Lords Sitting of 15 March 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 Oxford.

Biological Weapons: US Sales to Iraq
The Lord Bishop of Oxford The Lord Bishop of Oxford asked Her Majesty's Government:
Whether, in accordance with the Biological and Toxin Weapons Convention, they will report to the Security Council of the United Nations the reported sale of biological weapons to Iraq by the United States.
The Minister of State, Foreign and Commonwealth Office (Baroness Symons of Vernham Dean): My Lords, no. The materials were exported by the United States in accordance with export controls in place at the time. The United States did not believe that they would be used for anything other than legitimate research purposes and therefore did not knowingly export the materials to assist a biological weapons programme. There are therefore no grounds for reporting a breach of the Biological and Toxin Weapons Convention.
The Lord Bishop of Oxford: My Lords, I thank the Minister for her reply. Those who know about these matters point out the significance of the phrase that those biological materials,
"were not attenuated or weakened and were capable of reproduction".
That seems to suggest that they might have been used for other than purely therapeutic purposes. Will the Minister comment on that?
Baroness Symons of Vernham Dean: My Lords, I have asked those questions myself. While I do not claim to have any particular expertise, I understand that the export of pathogens is the best way of producing vaccines. The Riegle report, which the right reverend Prelate has no doubt seen, details the quantities of various biological materials that were exported between 1985 and 1989. He will have noticed that those quantities were quite small. The Biological and Toxin Weapons Convention makes it clear that governments and states parties have the right to exchange equipment, materials, and scientific and technological information for peaceful purposes. The United States believed that to be the case at the time of those exports.
Lord Redesdale: My Lords, the Iraq Survey Group report came up with three suspicious findings. Two were the clandestine weapons laboratories that do not seem to be there—the Minister will respond to that through the ombudsman. The third was a phial of botulism. Will the Minister confirm that since the Americans supplied the botulism—and we know that they did—it is possible that the phial came from those pathogens supplied by the Americans?
Baroness Symons of Vernham Dean: My Lords, I cannot answer the noble Lord with any certainty about the origins of any particular substances that were found. I am not sure if there is a copy of the Riegle report in the Library of the House, but if there is not, I shall arrange for one to be placed there. As I have said to your Lordships, that report gives details of a whole range of different biological substances that were exported to Iraq at that time. Those substances were exported in very small amounts. It would have been legitimate to have exported pathogens because, as I understand it, it is easier to make vaccines from pathogens. Although it is possible to make them from non-pathogenic material, it is much easier to make them from pathogenic material. However, I doubt whether anybody will be able to say with any certainty what the origins of any particular phial have been.
Lord Hannay of Chiswick: My Lords, does the Minister agree that a serious weakness in the efforts to prevent the proliferation of biological weapons is the lack of an international inspection system to underpin the Biological and Toxin Weapons Convention? Will she say what steps Her Majesty's Government are taking to persuade the US Administration to allow negotiations for such a system to be restarted?
Baroness Symons of Vernham Dean: My Lords, I agree wholeheartedly with the noble Lord. We would like to see a proper verification process put in place under the convention. In terms of persuading the United States to take the same view as we do, we take the opportunities that are available to us to do exactly that. I myself have had meetings with the appropriate under-secretary in the United States State Department and have attempted to persuade him to that very point of view. Sadly, I have not so far been successful.
Lord Howell of Guildford: My Lords, the Minister mentioned the 1994 Riegle report, which, as she has indicated, is very detailed and extensive. Does she agree that whether or not it proves that bacterial cultures were exported by the United States to Iraq at the time—I think that the United States authorities have denied or minimised such claims—it also shows that the Iraqi regime, even then, before and after the first Gulf War, was building up, or aiming to build up, a biological and chemical weapons capability, as well as a nuclear capability, on a considerable scale? If the weapons cannot be found today, there are clear indications that this could happen again. Will the Minister agree that it is vital to strengthen biological weapons conventions of the kind that can be enforced? It is vital, and justifiable, to be sure that Iraq never returns to being a threat to us all.
Baroness Symons of Vernham Dean: Yes, my Lords, I of course agree strongly with that view, which is why the United Kingdom Government are making efforts to strengthen the convention and to emphasise the importance of inspection within the convention. When the Riegle report was first published, it was pointed out that by the time of the invasion of Kuwait, Iraq had developed biological weapons. Its advanced and aggressive biological warfare programme was the most advanced in the Arab world. It was therefore clear that there was such a programme. The way to avoid that in the future is proper enforcement.

Supreme Court
2.43 p.m.
Lord Lamont of Lerwick Lord Lamont of Lerwick asked Her Majesty's Government:
Whether they will consider siting the new Supreme Court in the Millennium dome.
The Secretary of State for Constitutional Affairs and Lord Chancellor (Lord Falconer of Thoroton): No, my Lords, we are not considering siting the Supreme Court in the Millennium Dome.
Lord Lamont of Lerwick: My Lords, may I thank the noble and learned Lord the Lord Chancellor for that Answer? Is he aware that I was just trying to save him from having two monuments to his folly? But he prefers to have two follies as a monument—
Noble Lords: Oh!
Lord Lamont of Lerwick: Given the Government's record on the Scottish Parliament building and the noble and learned Lord the Lord Chancellor's own involvement in the Millennium Dome, how can anyone have any confidence in the costs that he has put forward as estimates for the building of the new Supreme Court? Given that he said that the costs of the building will be defrayed by charges to the users of justice, can the noble and learned Lord explain why it should be right for the users of the court to carry the risk that the costs of the court will, judging by past experience, most likely be exceeded twice, five times or even 10 times?
Lord Falconer of Thoroton: No, my Lords, I was not aware that the noble Lord was seeking to protect me from myself. As to his second point, yes, there have plainly been other occasions when costs have been greatly exceeded, but that is not a reason for the Government not to embark on a course that is otherwise right. Thirdly, in relation to ensuring that the costs are properly estimated, a very thorough process, including the Treasury's Green Book process, is being gone through in detail to ensure that there are proper costings.
Lord Campbell of Alloway: My Lords, does the noble and learned Lord accept that the fundamental objection for setting up the Supreme Court and removing the Appellate Committee from your Lordships' House is not for some of us a question of cost?
Lord Falconer of Thoroton: My Lords, I recognise that there are other very considerable issues apart from costs. There is a real issue as to whether, as we contend, the constitutional arrangements should reflect the reality—namely, that when one is appointed to the final Court of Appeal, one should be appointed to a court, not to a legislature.
The Earl of Onslow: My Lords, has the noble and learned Lord the Lord Chancellor forgotten that Parliament is the High Court of Parliament?
Lord Falconer of Thoroton: My Lords, I have not forgotten that, but Parliament is a legislative not a judicial body.
Lord Addington: My Lords, would the noble and learned Lord the Lord Chancellor consider making a

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study available of how the Dome was brought in on time and of the problems that we had as regards doing something with it afterwards? In that way, we would have something to study and recommendations to make for all future projects to ensure that we do not have the same sort of success then followed by disaster.
Lord Falconer of Thoroton: My Lords, I am sure that there are many lessons that we can learn from the Dome. The National Audit Office has already written one report in relation to it and will write another one after the sale process is completed. When we have seen that second document, we can consider what further lessons can be learned.
Lord Mackay of Clashfern: My Lords, does the noble and learned Lord the Lord Chancellor accept that at the present time the House of Lords is in fact the final Court of Appeal for England, Wales, Scotland and Northern Ireland, although not for Scotland in respect of crime? It may be, as he says, that it is a legislature, but it is not only a legislature. Is it not also a judicial body? I know that the noble and learned Lord wants to change that.
Lord Falconer of Thoroton: My Lords, of course I accept the current arrangements. My point in answer to the question asked by the noble Earl, Lord Onslow, was that essentially Parliament is a legislative body, although I accept what the noble and learned Lord says about the current arrangements.
Lord Henley: My Lords, the noble and learned Lord, or rather his department, has no doubt been looking at a number of possible sites for the proposed new Supreme Court. Can he tell us what discussions he has had with English Heritage about some of those possible sites?
Lord Falconer of Thoroton: My Lords, we looked at a large number of sites. In particular, we are focusing on six sites. In so far as English Heritage is involved with any of those sites, we shall have discussions with it. We have not had legal discussions with that body so far.
Lord Phillips of Sudbury: My Lords, is there not a good compromise that would satisfy most of the Government's objectives, most of the judges and most of everybody else—namely, to maintain the reading of judgments in this Chamber, which would give them dignity and the force of tradition? The Government might also retain the informality of the Judicial Committee's work, which is unique—no wigs, no palaver—while obtaining the extra space, which everybody agrees is needed, by acquiring premises in the immediate vicinity at a very modest price.
Lord Falconer of Thoroton: My Lords, if there are premises in the immediate vicinity for a very modest price, I would be interested in knowing what they are. I have absolutely no doubt that the new Supreme Court will be able to conduct its proceedings with both
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appropriate dignity and the degree of informality appropriate to its proceedings. I know that the Law Lords are very keen to achieve that.
Lord Ackner: My Lords, is the noble and learned Lord prepared to draw a distinction between costs up to the Court of Appeal and costs in the Lords? Litigation in the House of Lords or the Supreme Court is designed to develop and clarify points of principle and is not concerned to the same extent with a dispute inter partes? In those circumstances, is it not right that the state should pay the costs in the House of Lords or the Supreme Court?
Lord Falconer of Thoroton: My Lords, civil fees currently make a contribution to the court system, not to the final Court of Appeal. It is appropriate, if one seeks to invoke the civil court system, that one makes a contribution to the cost, even if one never gets to court at all, for example. Most civil cases never get to court, yet they make a contribution to the cost. That is the right approach.
Lord Dubs: My Lords, does my noble and learned friend agree that in addition to the many good arguments for the changes that he proposes, there is one other? The general public, whose servants after all we all are, is totally unaware of the distinction between this place as the legislative Chamber and this place as a court. I would invoke the fact that during the Pinochet hearings many people asked me how I was going to vote on the future of General Pinochet. I pointed out that I had no opportunity to do so—and that it would not be proper. Does my noble and learned friend agree that in order that the public understands what we are about, the separation of the legislature from the Supreme Court would be beneficial and would lead to transparency?
Lord Falconer of Thoroton: My Lords, I think that one effect of creating a Supreme Court is that it will make much clearer the distinction between the final Court of Appeal and Parliament. I also think, separately, that once there is a proper Supreme Court building, it will be easier for members of public to come to see the proceedings of the final Court of Appeal.
Lord Millett: My Lords, may I be naive enough to ask the noble and learned Lord the Lord Chancellor a question in the desire to obtain information? I should like to ask him whether Somerset House has been ruled out as the location for the Supreme Court; and, if that is so, can he say why?
Lord Falconer of Thoroton: My Lords, in relation to particular sites, I have said that it is wrong for me to identify the position we have reached. I have said that I will inform the Select Committee in another place where we have got to, so that my negotiations with other sites are not prejudiced.
Lord Skelmersdale: My Lords, the main reason for the escalation of prices of buildings in government

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contracts is surely the fact that either the commissioners or potential users change their mind before the contract is complete. Can the noble and learned Lord give us an assurance that he will not change his mind?
Lord Falconer of Thoroton: My Lords, I am sure that one reason that leads to an increase in the costs of any building is that we learn more about our requirements as time goes on and, as a result, are in a weaker negotiating position in the middle than at the beginning of the process. Whatever we commission, whether it be by way of refurbishment or a new building, we will do our level best to ensure that all the requirements are provided at the earliest possible stage. I cannot guarantee that we will get it absolutely right but, plainly, the noble Lord's point is a good one.

Sustainable Communities Plan
2.51 p.m.
Lord Smith of Clifton: My Lords, on behalf of my noble friend Lord Greaves, and at his request, I beg leave to ask the Question standing in his name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government what are the status and purpose of the Office of the Deputy Prime Minister's report Making it happen: The Northern Way.
The Minister of State, Office of the Deputy Prime Minister (Lord Rooker): My Lords, Making it happen: The Northern Way is the second progress report on the delivery of the Sustainable Communities Plan. The document outlines the good progress that we have made to date with our partners since publication of the communities plan in February last year with a particular emphasis on the north and the Midlands.
Lord Smith of Clifton: My Lords, I thank the Minister for that reply, but does he recall the late Lord Williams of Mostyn, replying to a Question on the cessation of producing government annual reports, telling the noble Lord, Lord Campbell of Croy:
"If the noble Lord believes that it was a waste of time and spin. he ought to rejoice, because the sinner has repented".—[Official Report, 13/3/03; col. 1480.]?
Apparently not. Making it happen: the Northern Way is another fatuous glossy. I must press the Minister: what is the point of it; to whom is it being distributed; and what is it supposed to achieve?
Lord Rooker: Well, my Lords, I am astonished at the Question asked by the noble Lord on behalf of the noble Lord, Lord Greaves. As I said, this is the second progress report, not the first one, on delivering a £22 billion programme. As I said, most of the others have concerned the south-east. We want to make clear
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that the sustainable communities programme is a national programme. It is not north, it is not south; it is not urban, it is not rural.
The document outlines the progress that we have made on, for example, the northern market renewal pathfinders, involving a half a billion pound programme where we have collapse of the housing market and problems of community cohesion. The document explains how the money has been spent. It contains a progress report on the coalfields community programme.
The document mainly concerns the north and the Midlands, but not exclusively. For example, it announces the setting up of the 16th urban regeneration company in Gloucester. To describe it as a fatuous glossy is quite out of order and out of proportion to its contents. I cannot respond fully in the context of this Question, but I am quite happy to have these reports debated in this House at any time that noble Lords choose.
Lord Henley: My Lords, I am tempted to use the same form of words to describe the document as did the noble Lord, Lord Smith, but I shall refrain. The Minister talked about creating sustainable communities costing £22 billion. How much of that will come from general taxation?
Lord Rooker: My Lords, the £22 billion is government expenditure. The programmes that have been carried out across the country will lever in a factor of four, five or, sometimes, up to tenfold from the private sector. Most of the investment will come from the private sector; we have made that clear. Most of our money is for remediation—getting land, especially Brownfield land, ready; opening up sites with infrastructure such as bypasses or bridges; and a whole host of work. Most of the money for investment in both the wider four growth areas of the south-east, which is what the Sustainable Communities Plan is about, and in the north and the Midlands, on which I have just touched, will be levered in from the private sector.
I challenge anyone to argue that this is not a report on progress made—as I said, a second progress report. No one seemed to criticise the first one. Perhaps that is because it was devoted exclusively to the south-east and the Members of this place, like the Members of the other place, and journalists, being London-centric, thought that that was a good idea. Because this report concentrates on the north and the Midlands, all of a sudden, it is not on.
Lord Woolmer of Leeds: My Lords, does my noble friend agree that the north of England, with 15 million people, six major cities, three world-class national parks and several world-class universities, represents a tremendous opportunity for this country and an alternative to the continued over-expansion and investment in the south-east of England? Does he recognise that the three regional development agencies in the north of England do not regard this as a fatuous exercise, but are working extremely hard, along with

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the Government, to ensure that not only does it receive appropriate public funds, but that it is based firmly on attracting private investment to show that the north of England is indeed a major alternative to the southeast?
Lord Rooker: My Lords, my noble friend is quite right. The report sets out the work that is being carried out by the three regional development agencies and the other partners, such as English Partnerships. Most people would say that the growth pressures are only in the south-east, but the potential for growth in the north, as set out in the concept of the northern growth corridor, is enormous. We dismiss that at our peril. For example, productivity in the three northern regions is not as good as in the rest of England. If they worked only to the English average, the income for those three regions would be £30 billion more. So there is enormous potential that we fail to exploit at our peril.
Baroness Sharples: My Lords, would the noble Lord please interpret the word "remediation"?
Lord Rooker: Well, my Lords, getting second-hand land use-ready is one example. It is clearing derelict sites so that the pressure is taken off the countryside and greenfield sites; it is remediating land or, in this case, buildings, that have been used for other purposes. Our objective is to make good use of the assets that we have and to ensure that we push development away from greenfield sites. For example, with the housing programme, our target is to ensure that 60 per cent of new dwellings are built on brownfield sites—either second-hand buildings or second-hand land, if I can call it that. They must be prepared. so it is more expensive to build on brownfield than on greenfield sites. So far, we are achieving a proportion of 64 per cent.
The Countess of Mar: My Lords, as a resident of Worcestershire, which might be called the Midlands, can the noble Lord tell me where the north begins? Is it north of Watford Gap?
Lord Rooker: My Lords, I am going to get into trouble here. I fear that we will have to tear up some of the old boundaries. The wider south-east, as we now talk about it, finishes at Peterborough and Corby, because they are part of the two south-east growth areas. There is then a wedge called the Midlands between what we might call the north and the southeast. I shall not get into any arguments about where the boundaries are. I have my own views about some counties being in the wrong region, but I shall not deploy them here and now.
Lord Wallace of Saltaire: My Lords, does the noble Lord accept that one of the strongest arguments for regional government for the north is that currently all those schemes are administered and managed by a network of agencies that it is extremely difficult for the outsider to understand? Is he further aware that I
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attended the Yorkshire Forward annual meeting the year before last and did not understand quite a lot of the jargon used? A little more democratic power in the north and a little more simplicity in the structures might help considerably to enable the north to make its case for stronger growth against the south.
Lord Rooker: My Lords, the noble Lord is perfectly right. Later this year, the citizens and residents of the three northern regions will have the opportunity to decide whether they want a directly elected body. It will be for the people to choose whether they want to go down that road.

Northern Ireland: Paramilitary Ceasefires
2.59 p.m.
Lord Glentoran Lord Glentoran asked Her Majesty's Government:
In the light of the Chief Constable of Northern Ireland's comments on 9 March about paramilitary activity in Northern Ireland, what assessment they have made about the current state of the Ulster Defence Association and Provisional Irish Republican Army ceasefires.
The Lord President of the Council (Baroness Amos): My Lords, the Government's assessment of the state of the various paramilitary organisations' ceasefires remains unchanged. A judgment is made in the round, not on the basis of individual incidents. The Secretary of State, in making a judgment on the status of a paramilitary ceasefire, takes account of all relevant considerations and, in particular, those set out in Section 3(9) of the Northern Ireland (Sentences) Act 1998. However, we have to bring about a complete end to all paramilitary activity.
Lord Glentoran: My Lords, I thank the noble Baroness for that response, which, as I expected, is measured but is not going anywhere. Recently, the Chief Constable said that republican terrorism is at the same level as that of the UDA. In the light of that, do Her Majesty's Government still believe that the IRA ceasefire, in the words of the 1998 Act, is complete and unequivocal? If not, why do Her Majesty's Government refuse to deal with the IRA on the same terms as the UDA—that is, specify it'?
Furthermore, do Her Majesty's Government agree that the IRA has been the prototype for global terrorists and is the organisation from which those terrorists have drawn encouragement over 30 years?
Baroness Amos: My Lords, regarding the question about specification, the noble Lord will know that when the UDA was specified by the Government, it had been involved in a number of murders and bombing incidents. We shall continue to judge it by actions and not words. I repeat exactly what I said in my original Answer to the noble Lord's initial Question. We need to move beyond a narrow definition of ceasefire. We have made it absolutely

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clear that we want to see an end to all paramilitary activity. That was repeated last Thursday by the Taoiseach and my right honourable friend the Prime Minister. I agree with the noble Lord that in talking about issues of terrorism we and other governments need to look at terrorism across the world and work together to bring an end to it. The noble Lord clearly knows that that is something on which we have been working over many years. We shall continue to do so.
Lord Hylton: My Lords, do we not need something rather more than words from Prime Ministers? Surely, the continued terrorist activities of all groups, totally contrary to the Belfast agreement, should be the first priority for the police, the security services and the criminal justice system.
Baroness Amos: My Lords, I agree with the noble Lord, Lord Hylton, that it is about more than just words. That is why we have seen so much progress in relation to issues in Northern Ireland. That would not have happened without considerable work and action not only by my right honourable friend the Prime Minister, but by previous Prime Ministers in this country and by the Taoiseach. Of course, the police, the security services and others have to see this as a priority. That is why we continue to say that the ending of all paramilitary activity remains our goal.
Lord Marsh: My Lords, to my personal knowledge, governments have been saying that since the Labour Government of the 1960s. Does the Minister agree that the current situation of lawlessness is not fundamentally different from then? Surely, it is no good to go on for ever saying, "Well, everyone is being nice to us at the present time, but we will not put up with it". We have put up with it for over 30 years.
Baroness Amos: My Lords, I do not agree with the noble Lord, Lord Marsh. The situation has changed dramatically. It is different. I shall happily send the relevant figures to the noble Lord. While we should not condone the violence and murder that continues, the situation is quite different. The people of Northern Ireland are actively seeking peace in a way that has not been the case over the past 30 years.
Lord Smith of Clifton: My Lords, I congratulate the noble Baroness on her birthday on Saturday, which I understand she is celebrating today. I am sure that she has the good wishes of the House.
Last year, there were 191 loyalist and 125 republican outrages, which, as the noble Lord, Lord Marsh, said, is about as bad as it gets and is not unique. Following the terrible outrage in Madrid, does that not act as an additional spur to persuade the police to work more actively against these outrages? Given the worldwide condemnation of what happened in Madrid, will the Government take the political initiative to tell these proto-Fascist organisations that it is time to stop?
Baroness Amos: My Lords, I thank the noble Lord, Lord Smith of Clifton, and all other noble Lords who
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have expressed good wishes, sent me cards and, indeed, presents. It is very gratifying to be in place where reaching 50 years old one is still considered to be very young.
The Government have taken the political initiative on this matter. My right honourable friend the Prime Minister has dealt with this issue from the time that he became Prime Minister. Indeed, he was talking with other world leaders about these issues before they became such an issue in many other countries. That needs to be acknowledged. The Prime Minister has faced a great deal of criticism for doing precisely that.

Domestic Violence, Crime and Victims Bill [H.L.]
3.6 p.m.
The Minister of State, Home Office (Baroness Scotland of Asthal): My Lords, I beg to move that the Bill be now further considered on Report.
Moved, That the Bill be further considered on Report.—(Baroness Scotland of Asthal.)
On Question, Motion agreed to.
Clause 23 [Disclosure of Information]:
Lord McNally Lord McNally moved Amendment No. 76:
Page 13, line 30, leave out subsection (8) and insert—
"(8) Nothing in this section authorises the making of a disclosure which contravenes the Data Protection Act 1998 (c. 29).
(8A) Notwithstanding subsection (8), any disclosure or processing of information under subsection (1) for the purposes set out in subsection (2) in performance of functions referred to in section 13 shall be deemed to be necessary to be processed for the exercise of any such functions for the purposes of the Data Protection Act 1998, in particular section 35 and Schedules 1, 2 and 3 thereof."
The noble Lord said: My Lords, Amendment No. 76 refers to Clause 23(8) on disclosure of information, which states:
"But nothing in this section authorises the making of a disclosure which contravenes the Data Protection Act 1998".
That matter was discussed in Grand Committee, but it is right to bring it back to the Floor of the House. During the passage of the Bill, there has been legitimate public concern about how different authorities have interpreted their responsibilities under the Data Protection Act. Concerns have been expressed by non-governmental organisations associated with domestic violence that an overenthusiastic interpretation of the Data Protection Act could undermine the code of conduct for implementing it.
The amendment seeks to clarify that nothing a service provider does which complies with the victims' code will put it in breach of the Data Protection Act. The voluntary bodies associated with implementing the Bill continue to be concerned. On one occasion, the Minister stated:
"There are circumstances where compliance with the code might be important. For example, compliance with the code might be relevant to the question of whether a person has committed an offence under the Data Protection Act 1998".
On another occasion, the Minister said:
"Any government revising the code in the future needs to ensure that it does not require the disclosure of information that would be contrary to the Act".
My amendment seeks to maintain the need to respect the Data Protection Act, but clarity is needed regarding the disclosure of information between the relevant agencies. That will be crucial to give effect to the code of practice for victims. A number of the agencies already have found a variance in police cooperation in sharing information. At this stage, we need assurances in the Bill that will make the sharing of relevant information the automatic rule.
Victim Support has experienced practical difficulties in operating the referral process and a lack of clarity in interpreting the requirement of the Data Protection Act 1998. Therefore, there needs to be such clarity in the Bill. However, the amendment leaves in place the existing reference to the overriding obligations imposed by the Data Protection Act.
The Minister knows from our discussions in Committee that I think that that is important. There is genuine public concern that the good intentions of the Data Protection Act may bring with them unforeseen circumstances and consequences in implementing other Acts that have equally important duties and responsibilities. I hope that by moving this amendment we give her the opportunity to put on record her and the Government's attitude to interpretation, and perhaps also to bring us up to date—as she did in Committee—on the various intergovernmental and other consultations that are going on to enable the Data Protection Act to be properly interpreted and public confidence to be fully restored with regard to the Act's operation. I beg to move.
The Chairman of Committees (Lord Brabazon of Tara): My Lords, I should point out that if this amendment is agreed to, I cannot call Amendment No. 76A.
Baroness Scotland of Asthal: My Lords, as the noble Lord indicated, we talked about this issue in Committee; the debate can be found in Hansard at cols. GC 443–44 on 5 February.
I do not support this amendment—that will not surprise the noble Lord, Lord McNally. However, I am aware as—I think I made clear on the previous occasion—of the anxieties that Victim Support has about data protection legislation and its effect on the organisation's work with victims. In Grand Committee, I hope that I explained that the administrative protocols for passing a victim's personal details from the police to Victim Support had been approved by the Information Commissioner. This amendment now seeks to put beyond doubt that compliance with the victims' code of practice.
I am extremely grateful that Victim Support has signed up to deliver obligations under the code, which will not put individuals in breach of the Data Protection Act. I do not propose to repeat in detail the arguments I put forward in Grand Committee. The
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main reason for resisting the amendment then was that it is unnecessary and would cast doubt on the legality of existing arrangements and on data sharing in other contexts. That is still an important reason to resist the amendment. I know the noble Lord wants me to say a little more about the Act and I am very happy to do that because, as he pointed out, when I wrote to him and the noble Baroness, Baroness Anelay, about whether the code of practice should be admissible in criminal proceedings, I cited proceedings for an offence under the Data Protection Act as an example of when it might be relevant. The noble Lord said that because individuals could face criminal prosecution, they are entitled to more certainty about whether they are complying with the Data Protection Act.
The offence under the Data Protection Act which is most likely to be relevant is that under Section 55(1), which says that it is an offence for a person to disclose personal data,
"knowingly or recklessly, without the consent of the data controller".
There are a number of exemptions from liability for this offence, set out in Section 55(2). These include, amongst other things, that the disclosure,
"was required or authorised by or under any enactment, by any rule of law or by the order of the court".
It also requires that the person making the disclosure acted in the,
"reasonable belief that he had in law the right to obtain or disclose … the information … that he acted in the reasonable belief that he would have had the consent of the data controller if the data controller had known of the … disclosing",
and that,
"in the particular circumstances … the disclosing … was justified as being in the public interest".
Clearly, compliance with the code could be relevant to those defences. It does not, however, follow that there is ambiguity in the current drafting of the Bill or that service providers acting under the code should be given protection over and above that which is already available under Section 55(2) of the Data Protection Act. An individual who acts within the disclosure policy of his organisation, has the explicit consent of his organisation to disclose information, or reasonably believes that he has the right to disclose information will be protected. That will be the case whether or not the disclosure actually complies with the Data Protection Act. Therefore, it would make no difference if disclosure under the code were deemed to be compliant with the Data Protection Act.
The noble Lord also spoke about the Government revising the code in the future and the need to ensure that it does not require the disclosure of information which would be contrary to the Data Protection Act. However, this is not an argument for deeming information disclosed under the code to be compliant with the Data Protection Act. The point is that the Data Protection Act provides important safeguards to the citizen and that those safeguards need to be preserved. If disclosure under the code automatically

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complied with the Data Protection Act, it would effectively be open to a future government to override the Data Protection Act by means of secondary legislation. I know that is certainly not the noble Lord's intention. The fact that information is disclosed under the code will often be sufficient to ensure compliance with the Data Protection Act. However, in some cases—most notably those involving sensitive personal information—it will be necessary to ensure that other information and other requirements of the Data Protection Act are satisfied.
We are confident that the current draft of the code does satisfy those requirements but want to ensure that future versions also satisfy them. If there were a conflict between the requirements of the code and the requirements of the Data Protection Act, the Data Protection Act would prevail. The sanction for breach of the code is investigation by the Parliamentary Commissioner. We would expect the Parliamentary Commissioner to take into account the fact that the code had not been complied with because compliance with the code would involve breach of the Data Protection Act.
The noble Lord wanted further updates in relation to developments. I have nothing more to tell him over and above that which I outlined in Committee. As soon as I have fresh information I will make sure he, those in Committee and those here today who may be interested get notice of it.
3.15 p.m.
Lord McNally: My Lords, in Committee, the Minister told us that she chaired an inter-departmental domestic violence committee which she told us had expressed some of the same concerns that we had expressed in Committee. Has that committee made any progress in its considerations?
Baroness Scotland of Asthal: My Lords, I assure the noble Lord that this work by the committee which I chair is considered to be of the utmost importance. We are energetically trying to craft something which meets the needs of all practitioners. There is currently a draft that is being looked at by various departments, to see whether it should not be further and better perfected. We will certainly issue it as soon as that work is completed.
As I hope I indicated last time, it is very important for us to get this right. We absolutely agree with noble Lords who said that this whole issue is very important for practitioners. Regrettably, some are just misunderstanding how the Act operates and what they need to do to keep in tune with it. We can help them in this regard. I am hopeful that this will be a useful piece of work that can be shared across departments and those other agencies that would benefit from it.
Lord McNally: My Lords, in the light of that reply, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Scotland of Asthal Baroness Scotland of Asthal moved Amendment No. 76A:
Page 13, line 30, leave out "But"
On Question, amendment agreed to.
Clause 24 [Victims' Advisory Panel]:
Baroness Anelay of St Johns Baroness Anelay of St Johns moved Amendment No. 77:
Page 13, line 36, after "appoint" insert "a minimum of ten"
The noble Baroness said: My Lords, in moving the amendment I shall speak also to Amendments Nos. 78 to 81. I gave notice in Grand Committee it can be found at col. GC 447 of Hansard for 5 January—that I would need to probe on Report the nature and membership of the Victims' Advisory Panel. That is what the amendments do.
I am surprised that the drafting of Clause 24 means that the Government translate the existing Victims' Advisory Panel from an ad hoc body appointed by the Secretary of State to a statutory body in the twinkling of an eye, without actually giving us any idea of what the body does now or what it will do in future. We are asked to take an awful lot on trust by Clause 24(7), which simply states:
"The non-statutory Victims' Advisory Panel is to be treated as having been established in accordance with this section".
I remarked in Grand Committee that the Library had done its utmost to find out how the panel operates now, but had drawn a virtual blank.
The noble Lord, Lord Borrie, whom I am pleased, as always, to see in his place today, thought that I might be satisfied with the information in paragraph 91 in the Explanatory Notes. That paragraph is far too limited a source of information for the House to agree simply to transcribe the unofficial body into a statutory one.
I therefore tabled some Written Questions on 23 February to ask Her Majesty's Government: on how many occasions the Victims' Advisory Panel has met since March 2003; to list the members of the Victims' Advisory Panel and, where appropriate, the organisations that they appear to represent; and on how many occasions since March 2003 the Victims' Advisory Panel has reported directly to the Home Secretary and whether its reports are printed or presented by a government Minister. So far, I have had only one response to those three Questions, which arrived while the House was debating the Bill on Thursday.
When I looked back over the snippets of information that had been published about the panel, I noticed that its composition appears to be different from how it was set out in the Government's press release, in Justice for All and in the Explanatory Notes. I am trying to reconcile all those descriptions and work out what the Government's panel really is.
The press release stated that:
"The members of the Victims Advisory Panel have been affected by crimes including murder, rape and stalking, and many have experienced giving evidence in court".
That makes it clear that the members have personal experience of being victims of crime themselves. However, that is not what Justice for All describes. It refers to a body representative of organisations. Page 48 states, in paragraph 2.45:
"The Commissioner will be supported by a National Victims' Advisory Panel. This will be representative of victims' groups and others affected by crime, and will include community representation".
The description given in the Explanatory Notes about the current membership seems to show a confusion of those two models. Paragraph 91 states that the current membership comprises,
"ten voluntary lay members, who have direct experience of issues relating to victims".
We need to know whether that is personal experience, or whether they represent groups with experience of assisting victims.
Paragraph 91 also states that three members are co-opted to represent "wider victims' interests". What does that mean? What are those interests? It goes on to say that those three co-opted members are also,
"representatives of voluntary organisations to which the Government provides core funding".
That is why I ask what those organisations are. Will they continue to be co-opted to the new body? Will different bodies be represented? How do the Government define the community representation to which Justice for All refers? Is that the representation of national voluntary organisations, or does it refer to local community organisations?
The response that I received on Thursday 11 March was to my Question in which I had hoped that the Government might list the members of the Victims' Advisory Panel. In fact, the Minute Room slightly changed my wording, which I know is not always felicitous. I had asked the Government to list the members, and that was changed to "Who are the members". The Answer that I received was as vague as anyone in the Government could want, and as vague as I would not want. It reads:
"The panel consists of 10 voluntary lay members"—
as the Explanatory Notes say—
"recruited through open competition in accordance with guidelines laid down by the Commissioner for Public Appointments—who have either experienced victimisation themselves, or are family members or very close friends of murder victims.
In addition there are representatives from the following victims groups: Victim Support, Support After Murder and Manslaughter, Victims Voice and Birmingham Racial Attacks Monitoring Unit.
The panel is chaired by myself"—
the noble Baroness, Lady Scotland—
"and is also attended by Chris Leslie MP, of the Department for Constitutional Affairs, and Harriet Harman MP, the Solicitor General".—[Official Report, 11/3/04; col. WA 186–87.]
Senior representatives and officials also attend.
There is no mention of the three co-opted members, so we still do not know what they are—we do not know which bodies that receive public money are in the loop at the moment and whether they will continue to be. We do not actually know who the current members
18
are. One assumes, unless the noble Baroness tells me differently, that by signing the virtually blank cheque in the Bill we are saying, "All those of you who have done such sterling work so far and worked so hard can carry on in the job". Alternately, will they complete their membership before a new system of appointing takes place?
We do not know the answer to other questions. How will the chairman be appointed? Will there be a change from the current chair, the Minister, to non-ministerial chairmanship? How will that run? How long will the members serve? Will any good governance procedures be put in place? Will there be a limit on the number of co-opted members? Who appoints them—the panel or the Secretary of State? Do the co-opted members have voting rights? All members who have been elected as councillors to local authorities will know that those are always vexed issues in governance terms.
We anticipate, of course, that the panel will have the job of giving very valuable advice to the Government on which they should then act, yet there is still no duty on the Secretary of State to pay its expenses if he considers it appropriate. It is still left open to the Secretary of State whether to pay the expenses or not, which I find extraordinary. In her response on 5 February, the Minister argued that it was common and accepted legislative practice to provide a power rather than a duty to pay expenses in such circumstances. I do not think that that necessarily makes it right, even if it has been practice.
I hope that the Government have thought again, and are able to give us some further and better particulars on what the body will be. In particular, has it even been consulted? The questions about its work since last spring go unanswered. I beg to move.
Lord Renton: My Lords, the Government have undoubtedly done right in Clause 24 on the Victims' Advisory Panel. However, the attention that my noble friend Lady Anelay has given to the detail is worthy of the Government's respect. She is absolutely right to assume that the members of the panel will be ordinary but experienced people who must not be reimbursed merely at the discretion of the Government. They will deserve to be reimbursed. Amendment No. 80 surely must be agreed to. Amendment No. 78 goes much further in ensuring a composition of the panel representative of people who are experienced, but are lay people. I hope that the Government will give the amendments very careful attention, because they are excellent.
Lord Borrie: My Lords, it has been extremely worthwhile for the noble Baroness, Lady Anelay, to have pursued—behind the scenes, and indeed through the amendments today—her inquiries on what type of body the Victims' Advisory Panel is at the moment in its non-statutory form and should be in a statutory form.
To some degree there is, in both the Explanatory Notes and the amendments, a good deal of vagueness. For example, I am not sure what "lay persons" or "issues" mean in this context. Those words can be

19
found in the Explanatory Notes; perhaps they are all right there, but to translate them into statutory form would probably not seem appropriate. Some of the words of the amendments are at least equally vague. The persons appointed should,
"appear to be representative of victims' groups and others affected by crime".
There is no doubt that one big group affected by crime is the prisoners' wives, spouses, girlfriends, families and so on. They probably need support in a variety of ways, yet I do not think they are intended to be covered by the support to be given by the Victims' Advisory Panel.
As for community representation, I do not know what that means. Is it geographical, ethnic, religious or local? It could be any of those. I do not wish to be critical of the noble Baroness because she is entitled—and it is helpful to us all at this stage of the Bill—to probe what is intended. I am not sure that I want the Government to be too precise at this stage as to who should be on this panel. I certainly do not want the Government to use vague words in what will eventually be the Act, which would not be particularly helpful because they would have so many different meanings. I associate myself with the noble Baroness to this extent: I am at least equal with her in eagerly awaiting to hear the Minister's response.
3.30 p.m.
Baroness Anelay of St Johns: My Lords, I will try to keep just within the rules for Report and say to the noble Lord, before he sits down, that he may be interested to hear that two Written Answers, to complete the trio, have just arrived hotfoot from the Doorkeepers. If they had arrived half an hour ago, I might have saved the House about five minutes of its time. I have no doubt the noble Baroness, Lady Scotland, will give an even better explanation.
Lord Carlisle of Bucklow: My Lords, that may be the answer to the question I was going to ask. If we are setting up a statutory panel, surely we should at least know what its intended size is and, as the noble Lord, Lord Borrie, said, the type of person likely to be on it. If it is a fact that the first panel is to be formed by turning what is, at the moment, merely an advisory panel into a statutory panel, presumably—the information may be in the Written Answer to which my noble friend referred—the membership of that advisory panel should be public knowledge to this House, so that we may know who we are appointing to this statutory panel.
Baroness Scotland of Asthal: My Lords, I thank the noble Lord, Lord Carlisle, and my noble friend Lord Borrie, for the acuity of their questions about this panel.
The noble Baroness, Lady Anelay, has kindly indicated that her reason for this amendment is to seek greater clarification about the administration of the current non-statutory panel, which this clause will put on a statutory footing. I am sorry that she has had
20
difficulty in establishing how the panel currently works. I assure the noble Baroness that we are not seeking to hide the panel's light beneath a bushel, but it is a relatively new body which met for the first time almost exactly 12 months ago, and the substance of its work is still taking shape. I am grateful for the opportunity to inform the House in more detail about the administration of the panel.
As the noble Baroness said, the members can be grouped into three categories. The lay membership comprises 10 volunteers who either have experienced victimisation themselves or are close relatives of those who have been killed. I am very happy to present the whole list of the membership but will give noble Lords one name that they will recognise: that of Jayne Zito. Noble Lords will know that she falls into both categories. First, her husband was a victim of crime and, secondly, she is also a representative of a group of people who have become victims of mental health patients. The same is true of virtually all the 10 lay members, whom I could outline.
There are three co-opted members: David Hines, a member of the North of England Victims' Association; Maxie Hayle, the Birmingham Racial Attacks Monitoring Unit representative; and Wendy Robertson of Victims' Voice. The victims' groups involve Theresa Reynolds of Victim Support and Rose Dixon of Support After Murder and Manslaughter, which your Lordships will know represents those who have suffered as a result of murder. The 10 lay members, whose names are now in the public domain—I am very happy to send them to the noble Baroness—are people or family members who have had direct experience of being victims, and who participate in various groups dealing with that type of victimisation.
These lay members, who will serve initially for three years, were recruited through open competition, overseen by an independent assessor in accordance with the Cabinet Office guidelines on public appointments. The second category is a small group of co-optees, which I have just outlined: Victim Support, Support After Murder and Manslaughter, Victims' Voice and the Birmingham Racial Attacks Monitoring Unit.
The third group comprises senior representatives from the criminal justice agencies, who will present papers or respond to points that are made by the lay members. The whole point of the group is to put a human face on some of the issues we are dealing with, so that there can be a real understanding, from the victim's point of view, about how some of the changes we are making and the procedures we are putting in place can be viewed. For example, when we created the "victim's walk-through" on the website, we asked the victim's panel to look at what we had done, to identify whether there are other things they, or their members, might have wished to see, to help us to adapt it.
It is my great pleasure to chair the panel, and a Minister from the Department for Constitutional Affairs and the Solicitor General will also attend. It is proposed that there should continue to be a ministerial

21
chair, not least because there can be a very direct correlation between that and what the victim's panel has to say about the impact that our policies and procedures may have. Ministers have the advantage of hearing from them in a very direct way and there can be a very immediate conversation between the panel members and those who have ministerial responsibility for them. Noble Lords will know that I am the Minister responsible for victims and witnesses issues, and therefore it is only right and proper that I chair those meetings.
The aim of the panel is to advise the Home Secretary, the Lord Chancellor and the Attorney-General of the views of victims and witnesses of crime, and generally to contribute to developing and safeguarding the rights of victims. We have so far had five meetings. The first was in March 2003, and others were in May, July and October of that year. We had our first meeting this year, in February. As an advisory non-departmental public body, the panel is required to produce an annual report. The panel's first annual report will be published at the end of April 2004 and will give details of the issues it has discussed during its first full year of operation.
We would like the Victims' Advisory Panel to continue to be a flexible and dynamic group, and the noble Baroness will not be surprised to hear that we are not prepared to be as prescriptive about its administration as her amendment would suggest. I am sure she will forgive me if I do not deal with each and every item of her amendments in detail. I understood the purpose of it was to allow me to give more information.
I would, however, like to reaffirm what I said during Grand Committee about the payment of expenses to lay members of the panel. I explained that it is fully intended that lay members will be reimbursed for their expenses as outlined in their terms of appointment. We would be in breach of our contract with them if we failed to do so. But it will remain a discretion of the Secretary of State as to what expenses would be appropriate in each case. I would therefore wish to retain the "may" rather than the "must" in the drafting.
I hope these explanations have been helpful, but I reiterate that it is not my intention to accept any of the proposed amendments to Clause 24. I do, however, understand the thrust of them and hope I have been able to reassure the noble Baroness both of the purpose of the panel and of the fact that it will be properly reimbursed for moneys properly expended by it. I assure the noble Baroness that my purpose and hers are absolutely in accordance on these matters.
Baroness Anelay of St Johns: My Lords, I am grateful to the Minister. She has now resolved some of the inconsistencies that appeared between the various publications about the Government's proposals on the composition and the role of the Victims' Advisory Panel. In Grand Committee we paid tribute to its work. I am sure that in its new form it will continue to gather that approbation.
22
I accept what the Minister says about expenses. If a case were to come to light where appropriate expenses were not reimbursed, she might well find that there could be an outcry as a result.
I am grateful to all noble Lords who took part in the debate. The noble Lord, Lord Borrie, was right; my drafting was not full of acuity; on the other hand, I pinched the Government's drafting in some respects, as I said that it was not quite right, particularly with regard to the use of the words "lay members". If the noble Lord is to remain for the Second Reading of the Asylum and Immigration (Treatment of Claimants, etc.) Bill, I can promise him that I will offend yet again by using the term "lay members" in a different context. I value the role that lay members play.
I am grateful to the Minister, and beg leave to withdraw the amendment.
Amendment by leave withdrawn.
[Amendments Nos. 78 to 81 not moved.]
Clause 25 [Grants for assisting victims, witnesses etc]:
Baroness Anelay of St Johns Baroness Anelay of St Johns moved Amendment No. 82:
Page 14, line 26, at beginning insert "Subject to subsection (1A),"
The noble Baroness said: My Lords, Amendment No. 82 is a paving amendment for Amendment No. 83, to which I shall also speak.
In Grand Committee I raised the issue of the manner in which the Secretary of State would make grants to organisations that assist victims. I asked that question because I wanted to get some idea about the ground rules that would operate when the Secretary of State gave out any available funds. I did not seem to get very far, so I have tabled the amendment to prompt the Government to give us a flavour of the kind of organisations that they anticipate may be successful in an application for funds.
I do not expect the noble Baroness to say that specific organisations will be successful—I am not daft enough to think that she would be enticed to answer that anyway. I appreciate that some level of flexibility is needed. We need to know whether funds will be available—within a finite range of money, we know—for national-only organisations, or whether they will go to regional and local organisations. How will the decisions be made? For example, is it anticipated that a tendering system will be started whereby organisations submit bids for particular sums? Are we to go through the same kind of screening as happens for organisations when they look to the lottery funds for assistance? How will that work?
The amendment contains a very haphazard list of organisations—that makes it sound as though I am being rude towards the organisations listed. The organisations that I have mentioned are all those that have briefed me heretofore during our debates. In addition, the Minister will notice that, as a red rag to a bull, I have placed at the top of the list the Criminal Injuries Compensation Authority. I did so just to remind noble Lords that we are not yet finished with

23
the Bill, even at the end of Report and Third Reading, because it is very likely that the Government will bring it winging back with substantial amendments that affect the authority, the manner of the disposition of its funds and, indeed, its very existence.
The organisations listed are not the only ones to which I anticipate the Government might consider giving money. Broken Rainbow, which I shall meet very soon, has pointed out to me that none of the organisations specifically would assist those who have suffered domestic violence and are from groups that would consider themselves to be gay, lesbian, bisexual or transgender. In addition, the list includes no organisation specifically targeted at disability groups. I have listed only those who have had contact with me so far, but I shall certainly continue to have meetings with others.
This is a probing-only amendment to ensure that, before we get to the end of this major stage, we will have a better idea of how grant funding will proceed. I beg to move.
3.45 p.m.
Baroness Scotland of Asthal: My Lords, I understand that the noble Baroness intends to use this as an opportunity to probe. I shall assist her as much as I can in that regard.
The purpose of the clause is simply to provide a statutory authority for regular government grants to voluntary sector bodies and is consistent with Treasury best practice. It is not intended to signal that more funding will be available, nor that we intend to redistribute the money currently directed to victims organisations. Noble Lords will see that Clause 25 is permissive in tone, because it simply provides that the Secretary of State may,
"pay such grants to such persons as he considers appropriate in connection with measures which appear to him to be intended to assist victims, witnesses and other persons affected by offences".
Should any additional funds become available, I can assure the noble Baroness that my right honourable friend the Home Secretary will consider very carefully the needs of victims and witnesses when deciding which organisations to fund or to continue funding.
Much of what we have done to join up the system, to work with the local criminal justice boards and to identify local needs has helped us to craft better responses than those that we were able to provide in the past. That certainly proves very helpful. Our pilot projects have involved the prosecution and the police working together to support witnesses and victims. Noble Lords will see that, together with what Victim Support and other organisations can do, that is important cross-cutting work that has given us some very good indications about how we may target funding, or perhaps how we should consider targeting it in future. This clause is merely permissive.
I see no reason why the Secretary of State should be required to consult victims organisations before grants are paid, as he will be better placed than they are to assess the overall financial position and the overall
24
needs that arise across the system. Organisations remain free to lobby government—they do so most energetically—about their funding needs. Any arrangements for grants paid to organisations are between the Government and that particular organisation, and would very rarely be subject to consultation with third parties. Wider strategic decisions—for example, about longer-term funding plans—would also be considered first within government before views are sought more widely. We see no reason why that process should be subject to the constraints of legislation.
I understand why the noble Baroness would like to entice me into giving a little more, but I regret that on this occasion I must disappoint her.
Lord Carlisle of Bucklow: My Lords, I declare an interest as a former chairman of the Criminal Injuries Compensation Board. Can I take it from the Minister's answer that there is no intention of changing the current means by which the board is funded?
Baroness Scotland of Asthal: No, my Lords. The process will remain the same. Noble Lords will know that we are carrying out consultation. As I have said in the past, we will await the outcome of the consultation about any changes that are made. However, that will not be the way in which it is funded entirely. Noble Lords know the areas on which we seek views about any proposed change.
Lord Carlisle of Bucklow: As we are setting up a statutory victims body, is there any intention to change the way in which the board is funded?
Baroness Scotland of Asthal: No. my Lords. I hope that I have been clear; the board will continue to be funded as at present. The consultation is dealing with changes that we propose to the ambit of things that may be included or excluded. At the end of that consultation, we will decide whether any further or other alteration will be needed.
Baroness Anelay of St Johns: My Lords, I thank the Minister for her response, although I am not sure whether it takes us much further down the line of knowing how the moneys will be distributed. Of course the Minister did not take the bait about deciding whether it would be tendering against "lobbying", to use her word. Organisations are to be able to lobby, and there is a world of difference between that and a more organised system of tendering. However, I accept the position as she has explained it.
The Minister realises that organisations will listen carefully to her words. She has not signalled that more funding is to be made available, more that it will be a redistribution. The second point might be a consolation, but the first might not in the light of press interest ahead of the Budget on Wednesday which

25
anticipates that the Home Office budget is one that is to get the chop. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 83 not moved.]
Lord Dubs Lord Dubs moved Amendment No. 84:
Page 14, line 30, at end insert—
"(3) The Secretary of State may exempt victims of domestic violence and their dependants who arc subject to immigration control and who have sponsors from the restriction on public funds, and may recover such funds from the sponsor (as defined by section 113 of the Immigration and Asylum Act 1999 (c. 33) (recovery of expenditure on support from sponsor)) of the victim.
(4) The Secretary of State may pay such grants or make available funds to such bodies or individuals as he considers appropriate in connection with measures intended to assist victims of domestic violence who are subject to immigration control and their dependants and who otherwise have no recourse to public funds and do not have sponsors within the meaning of subsection (3), for the purposes of funding emergency accommodation and living costs."
The noble Lord said: My Lords, the amendment is concerned with a small number of victims of domestic violence who are also subject to immigration control. In moving it, I am grateful for the support of the noble Baronesses, Lady Anelay and Lady Walmsley, who have added their names to the amendment.
When we debated a more wide-ranging amendment in Grand Committee, my noble friend on the Front Bench indicated that she understood the purpose of the amendment and that while she could not give it her support, she certainly showed a deep understanding of its underlying issues. I hope that she will show a similar understanding of this amendment.
I understand that under the terms of the Social Security (Consequential Provisions) Act 1992, the Government can recover funds from sponsors. My amendment is in two parts. The first concerns the recovery of money from sponsors to finance the costs consequent on people leaving their homes because of domestic violence. Therefore the Government have the power to recover such money. I am also aware that for sponsors to be liable, they give a written undertaking to maintain the person from abroad. However, it appears that, currently, such undertakings are required only from sponsors of dependent elderly relatives, not for spouses. However, immigration rules permit the Secretary of State to require written undertakings from all sponsors. Introducing such a requirement would require only a change in policy, not in the rules.
I thank the Southall Black Sisters group for its help in providing useful briefing and information for this amendment. It estimates that 90 per cent of all victims of domestic violence subject to immigration control will have sponsors. The first proposed new section covers those. It is clear to me that were the Government to make sponsors stick by their undertakings, most of the costs of dealing with the consequences of such domestic violence, affecting a very vulnerable group of people, would not be borne
26
by the taxpayer—the Exchequer—but would be recovered from the sponsors themselves. That is the main aim of the amendment.
However, that would leave a small number of persons, perhaps 60 or so a year, who in equity would need similar support but, because they do not have sponsors, require some backing. The amendment suggests that that could be provided by means of a grant, so as not to undermine the basic principle of the benefits system. The estimate of the total grant required would be something in the region of £80,000.
The Government recently made a contribution of £40,000 to the Women's Aid Last Resort Fund, which was matched by another £40,000 from a charitable trust. That sum is roughly equivalent to what would be needed to provide grant support for those victims who are not sponsored.
We are not asking for an enormous sum, rather a tiny one. Moreover, the main thrust of the amendment is to ensure that the Government accept that sponsors should be made liable for victims of domestic violence when they are subject to immigration control. This is a simple proposition. I beg to move.
Lord Bassam of Brighton: My Lords, before debate continues, perhaps I was remiss in not reminding noble Lords that certain procedures apply at Report stage. After the Minister has spoken, unless there is a question for elucidation, no other Members of your Lordships' House should again rise to question the Minister further.
Baroness Anelay of St Johns: My Lords, I am sure that when my noble friends ask questions of the Minister, they are following immediately on what has just been said. They preface their remarks with phrases like, "Before the noble Baroness sits down", to keep well within the rules. My noble friends are old hands at this and they teach me a lot.
I rise briefly but strongly to support the amendment moved by the noble Lord, Lord Dubs, and I add my thanks to the Southall Black Sisters group for its careful briefing both before Grand Committee proceedings and subsequently. The group has taken up in a very practical way several issues that we debated in Grand Committee.
The organisation does not seek to undermine any of the existing rules—which I think is the most important point made by the noble Lord, Lord Dubs. The majority of people have sponsors, and the noble Lord, Lord Dubs, made it clear that the number of those who do not is relatively small. So we are not talking about large funds to be made available for grant purposes, and we are certainly not asking for benefit rules to be undermined. I hope that the Minister will be able to respond favourably to this matter, or perhaps to take us a little further forward so that we can think about it again between now and Third Reading.
Lord Renton: My Lords, this is surely an amendment which fills the gap in our law and the noble Lord, Lord Dubs, has put forward a strong case for it.

27
I hope that, even if the Government do not accept the wording, they agree with the substance here and ensure that this matter is covered.
Baroness Walmsley: My Lords, I, too, rise to support the amendment. I am sure that all who favour this amendment were grateful to the Minister who, in Grand Committee, expressed her understanding of and concern for these few very vulnerable women. At the time she said that women who apply under the domestic violence rule would be fast-tracked. However, many of us are still concerned that fast tracking may still take four months and that some of the funding now being made available would be so for only two months. Additionally, the changes about to be made as a result of the Asylum and Immigration (Treatment of Claimants, etc.) Bill could well mean that women are left without recourse to public funds for longer than that. Even under the present rules, people who apply outwith the domestic violence rule and who need this kind of support are not covered, along with those subject to appeals at the time, many of which are brought by the Home Office rather than by the appellants themselves.
I echo the words of the noble Lord, Lord Dubs, in saying that this provision would not require an enormous amount of money. There are relatively few women for whom the money could not be recovered from the sponsor, but they are extremely vulnerable. Moreover, if the amendment is agreed, it would enable Britain to fulfil the rights of women enshrined in the convention covering the elimination of all forms of discrimination against women. These rights have already been acknowledged and upheld by what has been done in other countries when dealing with this kind of appellant. I refer to the USA, Canada. Australia and Denmark. On that basis, I hope that the Minister will look kindly on the amendment.
Baroness Howe of Idlicote: My Lords, I rise briefly to express my support for those proposing this amendment. An extremely persuasive case has been made by the Southall Black Sisters group. As we have heard, only small sums are required and it would be a sad injustice if these women were excluded from the important provisions of this Bill.
4 p.m.
Baroness Scotland of Asthal: My Lords, from the comments made by my noble friend Lord Dubs and other noble Lords, I know that your Lordships are aware that I am sympathetic to and concerned for this group of women. I hope, therefore, that what I say will assist, although I fear that it may in part also disappoint.
The amendment tabled by my noble friend and the noble Baronesses, Lady Anelay of St Johns and Lady Walmsley, would give the Secretary of State the power to exempt domestic violence victims still subject to immigration control from restrictions on access to public funds and to recover such funds from the sponsor. I understand the basis on which that
28
suggestion is made. In addition, the amendment would give a power to the Secretary of State to fund organisations and individuals that seek to assist domestic violence victims who are still subject to immigration control and do not have sponsors from whom the recovery of public funds can be made.
As I said in Grand Committee, I am grateful for the opportunity to set out what the Government are doing to protect victims of domestic violence who come to the country as the spouse or partner of a British citizen or someone who has indefinite leave to remain. I will not rehearse everything that I said in Committee, but I stress that the Government's position is clear: we are concerned to give assistance to victims of domestic violence who are still subject to immigration control, if they have come to this country for settlement on the basis of marriage or relationship to a British citizen or a person with indefinite leave to remain. However, we do not intend to amend the immigration and benefits rules for that one category, as that could lead to avoidable difficulties with fraudulent and other applications. It could perhaps also be an invitation to people to introduce further delay. Clearly, it would not benefit the real victims of domestic violence or other people if such a delay were to take place. Those women and other applicants need speedy determination of their application.
We have given further thought to the proposal on sponsors' undertakings. We thought that it deserved further scrutiny, to see whether we could use it to meet the needs of the situation. We have some concerns about it. The idea of recovering funds from sponsors could lead to more problems, particularly for the victim of domestic violence who may be brought into contact inadvertently with their violent partner.
The practical difficulty of recovering money from sponsors is clear. For example, if the marriage or relationship has broken down, the sponsor may argue that he does not wish to support the individual but is prepared to return them to their country of origin. We know that sponsors have said, "No, I am not willing to maintain my undertaking now, and I wish to resile from it". Would we be justified in insisting that the sponsor should nevertheless pay in such circumstances? We are keen to keep an open mind on the question of holding sponsors to account and will continue to monitor the situation to see whether we can do anything with it. However, we see that there may be practical and other difficulties that may prove to be insurmountable. We will continue to consider the position.
The balance that we have struck through the changes to the immigration rules is the priority given to such applications in the Immigration and Nationality Directorate and the exemption from charges for indefinite leave to remain. Those measures 'are designed to give the necessary support and help to that small number of domestic violence victims, without relaxing the immigration and benefit rules.
I hear what the noble Baroness, Lady Walmsley, says about the time limit being perhaps four months, but she knows that we are using our best endeavours

29
to fast-track such cases. They get the priority that they need because we understand how the situation can be for those who find themselves almost falling between two stools.
The second part of the amendment deals with the powers of the Secretary of State to provide grants for bodies or individuals,
"in connection with measures intended to assist victims of domestic violence who are subject to immigration control and their dependants and who otherwise have no recourse to public funds and do not have sponsors within the meaning of subsection (3)".
Of course, the Secretary of State does not need a statutory power to make such grants. Therefore, I am pleased to confirm what was said by my noble friend Lord Dubs and to tell the House that we have agreed a one-off grant of £40,000, to be provided to Women's Aid to bolster its last resort fund. In Committee, I said that we would try to see what we could do to fill that gap, and I am pleased that the Government have been able to match the £40,000 found by Women's Aid to do it. As noble Lords may know, Women's Aid has run the fund for several years. Its members can apply for funding from it to cover the living expenses of women who are making an application for indefinite leave to remain because of domestic violence. It will help to meet the rent and living costs of a small number of cases in refuges that cannot be covered by the "Supporting People" arrangements. It is in addition to the overall spend throughout Whitehall on domestic violence issues. This year, we are investing £84 million.
I believe that that combination of measures will give such victims of domestic violence the support and help that they need at a difficult time. However, I must say that the majority of such women come as spouses to the sponsors. As such, they, like any other wife who does not live with her husband because she has had to leave, are entitled to apply for ancillary relief. Legal aid is available in ancillary relief proceedings, under Section 1 of the Domestic Proceedings and Magistrates' Courts Act 1978. It could be done in a few weeks, but the question of enforcement must be considered. However, there are several possible avenues, and we are trying hard to work together on the protocols that exist between different departments and different organisations and to make sure that the network of support that is available to victims of domestic violence is as tight as we can make it.
I cannot give noble Lords the total answer that they would have liked, but I hope that they will accept that the Government not only recognise the problem but continue to do all that we can to address it, with appropriate vigour.
Lord Dubs: My Lords, I am grateful to my noble friend. I listened carefully to what she said, and I noted the point about ancillary relief under the legal aid scheme. As regards the main thrust of the amendment, which is to do with recovering money from sponsors, the Minister, while indicating that there were difficulties with the procedure, said that she would keep an open mind on the matter. From that, I take it
30
that she will keep the issue under review and that, if anything else can be done, she will bring the work forward.
Some of the domestic violence concerned may be criminal behaviour. If the pressures are such that the victim leaves the country, the chance of a successful prosecution of the person who has perpetrated the violence will be so much smaller. In considering all the issues, will my noble friend also take into account the need for us to have a robust criminal justice system, so that anybody committing a criminal offence such as certain types of domestic violence will not escape prosecution because the victim has been forced to leave the country, for understandable reasons?
I shall read my noble friend's speech in more detail. I thank her for being open-minded in her approach, and I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Viscount Bridgeman Viscount Bridgeman moved Amendment No. 84A:
After Clause 25, insert the following new clause
"AMENDMENTS TO THE YOUTH JUSTICE AND CRIMINAL EVIDENCE ACT 1999 TO EXTEND THE CATEGORY OF WITNESSES ELIGIBLE FOR ASSISTANCE ON GROUNDS OF FEAR OR DISTRESS ABOUT TESTIFYING
Section 17 of the Youth Justice and Criminal Evidence Act 1999 (c. 23) (witnesses eligible for assistance on grounds of fear or distress about testifying) is amended as follows.
After subsection (4) insert—

"(4A) Where the complainant in respect of proceedings relating to any form of molestation, including violence, involving the complainant, a cohabitant, a relevant child or associated persons, is a witness in such proceedings, the witness is eligible for assistance in relation to those proceedings by virtue of this subsection unless the witness has informed the court of the witness's wish not to be so eligible by virtue of this subsection.

(4B) For the purposes of this subsection, "cohabitant", "relevant child" and "associated persons" mean a person as defined by section 62 of the Family Law Act 1996 (c. 27) (meaning of "cohabitants", "relevant child" and "associated person") as amended by sections 2 and 3 of this Act.""

The noble Viscount said: My Lords, we are grateful for the support for the amendment from the noble Lord, Lord McNally, and the noble Baroness, Lady Walmsley.
The amendment is identical to one that I moved in Grand Committee. In her reply, the Minister suggested—I hope that I understood her correctly—that domestic violence was less easy to define than sexual offences and that such violence covered,
"a whole spectrum of behaviour".—[Official Report, 9/2/04; col. GC 468.]
I suggest that the need for special measures is related not to the seriousness of the crime but to the relationship of the victim to the perpetrator. The behaviour complained of may have been relatively mild, but that pales into insignificance when the victim is faced with the often terrifying possibility of confronting the perpetrator in court. In many cases, the victim will have had previous experience of the courts in any number of contexts. For many of the

31
victims that we are considering, that experience may well have convinced them that courts are intimidating, unsympathetic and even hostile places.
I come back to what I said in Grand Committee. Against that background, I invite your Lordships to see the difference between the victim's solicitor being able to say, "Don't worry. You have the right to special measures. It's yours. You will not have to confront the perpetrator across the court". But as the Bill currently stands, the solicitor can only say, "I cannot be absolutely sure but there is a good chance that the court will permit you to have special measures".
In that second scenario, there is a further practical consideration which has been brought to our notice recently by Victim Support. That is, that magistrates are frequently reluctant to make an order for the use of screens when the application is made on the day of the trial. That is a potentially very serious point. The Minister's reply to the point regarding the application to the court for special measures, which I raised in Grand Committee, was that it was likely that these would be granted. I refer to cols. GC 466 to 469 of the Official Report of 9 February 2004. If what Victim Support now tells us is substantiated, I am sure your Lordships will agree that it will make the case for the rights to special measures for victims of violence to have statutory entitlement very much stronger. I hope that the Minister will give the matter very careful consideration when she replies.
That could make all the difference in many cases between the victims agreeing to give evidence and being too frightened to do so. That is well recognised by the Minister, who, if I may be permitted to quote her, said in Grand Committee:
"We … want to … ensure that women know what opportunities are available to them so that they receive the succour they so desperately need to enable them to have the courage to come forward, to come forward early, and to be supported through the process so that they are not discouraged from obtaining the justice they so rightly deserve".—[Official Report, 9/2/04; col. GC 469.]
The Minister also suggested in Grand Committee that my amendment was too widely drawn. That amendment, which is reintroduced, in bringing the rights of a victim of domestic violence into line with those relating to sexual offences, makes use of the definitions contained in the Family Law Act 1996.
The Minister suggested in Grand Committee that that amendment will catch offences where the special measures are not needed. That is quite possible. However, I suggest that these will be far outweighed by the many cases where victims will be able to come to court to give evidence in the absolute certainty—that is the whole point of the amendment—that they will be free from the terrifying prospect of having to confront the perpetrator across the court.
I should have liked to have brought to the Minister's notice, before this debate, the point about court practice. From these Benches we are grateful to the noble Baroness for agreeing that Victim Support can meet the Government before Third Reading. In view
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of these two considerations I should like to advise the Minister that we will not seek to divide the House on this amendment. I beg to move.
Baroness Walmsley: My Lords, from these Benches, we support the amendment. One of our objectives must be to encourage as many victims of domestic violence as possible to come forward to talk about their suffering and to be prepared to do something about it. But, as the Minister pointed out during the debate, evidence given in domestic violence cases may not be as sensitive as that given in sexual offences cases. Therefore, witnesses may not automatically need the additional protection of special measures. However, we argue that while the nature of the crime may not be as sensitive in that it may not be sexual, it is sensitive in that the crime takes place within the home and in the context of a power relationship.
It can be very hard for a victim to admit that a seemingly minor threat or slight physical contact can have such a devastating effect on him or her, but, in the context of domestic violence, that is the case. We are all different: something that might run off one person like water off a duck's back might completely devastate someone else. I am not, of course, talking about insignificant slights or insults, but alleged behaviour which is regarded as criminal. So it is important that a victim does not feel demeaned in court, particularly as their self-esteem will already have been knocked about a good deal, and their body as well, by domestic violence.
I also support the point made by the noble Viscount, Lord Bridgeman, that, according to Victim Support, courts are reluctant to make an order for screens on the day of the trial, even though that measure is already available to them. This amendment seeks to make absolutely sure that a woman is quite clear that she will not have to face her assailant across the court. It is to be hoped that she will then be much more likely to come forward and give evidence.
4.15 p.m.
Baroness Scotland of Asthal: My Lords, I am very glad that we are all in agreement that not only is the domestic violence issue a sensitive one, but it comes in various forms, as the noble Viscount, Lord Bridgeman, and the noble Baroness, Lady Walmsley, have made plain.
I entirely accept what the noble Baroness said, that instances that take place in the home can be very hurtful to talk about in a public place. However, I hope that the noble Baroness and the noble Viscount will know too that one size does not fit all, because there are some women who are abused in the home who wish to take advantage of an opportunity to say to their partner in an open forum: "I am going to tell everybody what you did to me. I am going to stand up for myself, and I am not going to allow you to see that you have obliged me to take special measures to hide from you". Some go one way; others go another. The real thing that we are saying is that you have to be

33
sensitive to the individual case, and that we cannot put all these cases into one group and treat them in the same way.
Therefore I refer noble Lords to the point that I made in Grand Committee, as alluded to by the noble Viscount, Lord Bridgeman. I reiterate that Sections 16 and 17 of the Youth Justice and Criminal Evidence Act 1999 already enable victims of domestic violence to have access to special measures where a court decides that is appropriate. The amendment is therefore unnecessary.
I take the point made by the noble Baroness and the noble Viscount about decisions being made on the day. Noble Lords will know that in terms of practice we are working very hard, together with the Crown Prosecution Service, the police, the court and Victim Support, to make sure that an assessment of the victim's and witness's needs takes place before the hearing so that we can maximise the opportunities: first, for the victim to turn up to give evidence; secondly, to get the sort of support that they will need to enable them to give their evidence, and, thirdly, to do so. These practical issues are very much to the forefront of the planning that is going on in local areas to make sure that those needs are addressed.
Therefore, automatic access to special measures may not be appropriate in all cases of domestic violence because they may not actually respond to the needs of that particular victim or witness. We believe that, due to the nature of the evidence given, special measures are always appropriate in cases dealing with sexual offences, and this is the only case where there exists automatic eligibility unless the witness refuses such assistance.
We have been careful to limit automatic access only to children and to those adult cases where the evidence to be given is consistently and always of a highly sensitive nature. That is not in any way to suggest that in a case of domestic violence the evidence may not be sensitive. Clearly the quality of the evidence given by such a witness may be diminished by reason of fear or distress. In such cases the courts have the ability to grant a special measures direction. Therefore we believe that the balance that we have struck between this single exception and relying on the court's discretion to grant special measures in all other cases where the court considers it appropriate is the right one. I reiterate that victims of domestic violence have access in all cases where the court decides it is appropriate.
We are continuing to implement those provisions and it may help noble Lords if I outline where we are now, because those provisions are coming in. From June, the vulnerable or intimidated witnesses in magistrates' courts will have access to screens and evidence in private. We are aiming to extend the availability of live links and video recorded evidence in chief from spring 2005, subject to sufficient securities being in place, and successful piloting of alternatives to full transcription in less serious cases.
As I said in the debate last time, I would expect courts to be sensitive to the needs of victims of domestic violence and grant special measures where it
34
would be appropriate. For these reasons, I cannot accept the amendment, but I hope that noble Lords know that I am with them in the spirit that those who need special measures should certainly have them.
Viscount Bridgeman: My Lords, I am most grateful to the noble Baroness, Lady Walmsley, for her support for this amendment. I think we are not entirely in agreement with the Minister on the question of "one size fits all". However, the outcome of the meeting between the Government and Victim Support will be interesting, and we shall also be interested to hear the further explanation of the point raised by Victim Support in relation to this amendment. In the mean time, I beg leave to withdraw the amendment.
Baroness Scotland of Asthal: My Lords, before the noble Viscount sits down, I hope I made clear that I said "one size does not fit all".
Amendment, by leave, withdrawn.
Clause 26 [Amendments and repeals]:
Baroness Scotland of Asthal Baroness Scotland of Asthal moved Amendment No. 85:
Page 14, line 35, leave out "enactments mentioned in Schedule 5 are repealed" and insert "provisions mentioned in Schedule 5 are repealed or revoked"
The noble Baroness said: My Lords, this set of amendments deals with a range of necessary consequential amendments.
The first, Amendment No. 85, replaces "repealed" with "repealed or revoked", in order to ensure that the Bill reflects the correct terminology for Northern Ireland. The next set of amendments will ensure that the new offence in Clause 4 is dealt with in a similar way to other homicide offences where that is appropriate, and other dangerous offences where that is appropriate. I will briefly run through what each amendment does.
Amendment No. 86 adds a new offence, when committed in respect of a child or young person, to those listed in Schedule 1 to the Children and Young Persons Act 1933. The schedule sets out offences to which certain special provisions apply. The provisions include presumption and determination of age. Amendment No. 92 will insert the new offence into the list of those excluded from the Home Secretary's power, under Section 32 of the Criminal Justice Act 1982, to make an order for early release of classes of prisoners. Amendment No. 94 will add the new offence to the list of serious arrestable offences contained in the Police and Criminal Evidence Act 1984.
Amendment No. 96 will create a presumption that, where there are criminal proceedings for the new offence, any coroner's inquest will be adjourned until after those proceedings. It will also ensure that the coroner is informed of the result of the criminal proceedings for the new offence. Amendment No. 99 will ensure that my noble and learned friend the Attorney-General's consent is needed to institute proceedings for the offence if the proceedings are brought more than three years after the death.
Amendment No. 102 will add the offence to those for which a person may be disqualified from working with children. Amendment No. 104 will add the offence to those offences regarding which a sexual offences prevention order can be made. Amendments Nos. 106, 113 and 115 are minor drafting amendments. Amendment Nos. 89 and 97 are consequential on extending the offence to Northern Ireland.
I should perhaps say that Amendment No. 106 is a drafting amendment adding the title of the offence to a consequential amendment already in the Bill, which adds the offence to Schedule 15 to the Criminal Justice Act 2003. I see that the noble Lord, Lord Carlisle of Bucklow, is not in his place, which is why I have the bravery to say that.
Amendments Nos. 113 and 115 would delete the word "or" in the Coroners Act 1988 and from Section 19 of the Law Reform (Year and a Day Rule) Act 1996, where the word "or" is no longer needed because of the previous amendment. Amendments Nos. 122 and 123 merely transfer the transitional and transitory provisions from Clause 27 to a separate schedule. This is due to the fact that the number of provisions has grown following the extension of some of the clauses to Northern Ireland.
Finally, Amendment No. 123A amends the extent of the Bill. It reflects the fact that provisions relating to causing or allowing the death of a child or vulnerable adult, homicide reviews, common assault as an arrestable offence, restraining orders on acquittal, multiple offending and grants for assisting victims and witnesses all extend to Northern Ireland.
Following discussions with colleagues in the Scottish Executive, we have amended the extent clause to make clear that Clauses 24 and 25 do not extend to Scotland. This amendment is also consequential on the extension of the Clause 5 evidence and procedure to courts martial.
After that exhaustive explanation, I beg to move the amendment.
On Question, amendment agreed to.
Schedule 4 [Minor and consequential amendments]:
Baroness Scotland of Asthal Baroness Scotland of Asthal moved Amendments Nos. 86 to 99:
Page 23, line 27, at end insert—
"Children and Young Persons Act 1933 (c. 12)
In Schedule I to the Children and Young Persons Act 1933 (offences against children and young persons with respect to which special provisions of the Act apply), after "Infanticide" insert—
"An offence under section 4 of the Domestic Violence, Crime and Victims Act 2004, in respect of a child or young person.""
Page 23, line 27, at end insert—
"Criminal Procedure (Insanity) Act 1964 (c. 84)
In section 8(2) of the Criminal Procedure (Insanity) Act 1964 (interpretation), after the definition of "duly approved" insert
""local probation board" means a local probation board established under section 4 of the Criminal Justice and Court Services Act 2000;"."
36
Page 23, line 27, at end insert—
"Criminal Appeal Act /968 (c. 19)
In section 15 of the Criminal Appeal Act 1968 (right of appeal against finding of disability), in subsection (1), for the words "the jury has returned" substitute "there have been".
In section 37 of that Act (detention of defendant on appeal by the Crown to House of Lords), in subsection (4). for paragraph (b) substitute—
"(b) a hospital order made by virtue of section 5(2)(a) of the Criminal Procedure (Insanity) Act 1964 (powers to deal with persons not guilty by reason of insanity or unfit to plead etc),".
B1 In section 51 of that Act (interpretation), in subsection (2A), for "6, 14 or 14A" substitute "6 or 14"."
Page 23, line 27, at end insert—
"Children and Young Persons Act (Northern Ireland) 1968 (c. 34)
In Schedule 1 to the Children and Young Persons Act (Northern Ireland) 1968 (offences against children and young persons with respect to which special provisions of the Act apply), after "Infanticide" insert—
"An offence under section 4 of the Domestic Violence, Crime and Victims Act 2004, in respect of a child or young person.""
Page 23, line 27, at end insert—
"Juries Act 1974 (c. 23)
C1 (1) Section 11 of the Juries Act 1974 (ballot and swearing of jurors) is amended as follows.
In subsection (5) omit paragraph (b).
In subsection (6) omit ", (b)"."
Page 23, line 27, at end insert—
"Criminal Appeal (Northern Ireland) Act 1980 (c. 47)
In section 19(1A)(a) of the Criminal Appeal (Northern Ireland) Act 1980 (legal aid), after "appeal under" insert "section 10A of the Domestic Violence, Crime and Victims Act 2004,"."
Page 23, line 27, at end insert—
"Supreme Court Act 1981 (c. 54)
In section 55 of the Supreme Court Act 1981 (constitution of criminal division of Court of Appeal), in subsection (4)(a)(iii) omit the words "of a jury"."
Page 23, line 27, at end insert—
"Criminal Justice Act 1982 (c. 48)
In Schedule 1 to the Criminal Justice Act 1982 (offences excluded from early release provisions), in Part 2, after the entry relating to the Sexual Offences Act 2003 (c. 42) insert—
"Domestic Violence, Crime and Victims Act 2004
Section 4 (causing or allowing the death of a child or vulnerable adult).""
Page 23, line 27, at end insert—
"Mental Health Act 1983 (c. 20)
D1 In section 69 of the Mental Health Act 1983 (application to tribunals concerning patients subject to hospital orders etc), in subsection (2)(a)—

(a) for "below," substitute "below or";

(b) omit "or section 5(1) of the Criminal Procedure (Insanity) Act 1964".

E1 In section 71 of that Act (references by Home Secretary concerning restricted patients) omit subsections (5) and (6).
F1 In section 79 of that Act (interpretation of Part 5) omit paragraph (b) of subsection (1)."

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Page 23, line 27, at end insert—
"Police and Criminal Evidence Act 1984 (c. 60)
In Schedule 5 to the Police and Criminal Evidence Act 1984 (serious arrestable offences), in Part 2, after paragraph 23 insert—
"Domestic Violence, Crime and Victims Act 2004
24 Section 4 (causing or allowing the death of a child or vulnerable adult).""
Page 23, line 27, at end insert—
"Prosecution of Offences Act 1985 (c. 23)
In section 16 of the Prosecution of Offences Act 1985 (defence costs), in subsection (4) (power of Court of Appeal to make defendant's costs order), after paragraph (c) insert "or
(d) allows, to any extent, an appeal under section 16A of that Act (appeal against order made in cases of insanity or unfitness to plead);"."
Page 23, line 27, at end insert—
"Coroners Act 1988 (c. 13)
In section 16 of the Coroners Act 1988 (adjournment of inquest in event of criminal proceedings), in subsection (1)(a), after sub-paragraph (iii) insert—
"(iv) an offence under section 4 of the Domestic Violence, Crime and Victims Act 2004 (causing or allowing the death of a child or vulnerable adult); or".
In section 17 of that Act (coroner to be informed of result of criminal proceedings), in subsections (1) and (2), at the end of paragraph(c) insert "; or
(d) an offence under section 4 of the Domestic Violence, Crime and Victims Act 2004 (causing or allowing the death of a child or vulnerable adult),"."
Page 23, line 27, at end insert—
"Police and Criminal Evidence (Northern Ireland) Order 1989 (S.I. 1989/1341 (N.I. 12))
In Schedule 5 to the Police and Criminal Evidence (Northern Ireland) Order 1989 (serious arrestable offences), in Part 2, after paragraph 14 insert—
"Domestic Violence, Crime and Victims Act 2004
15 Section 4 (causing or allowing the death of a child or vulnerable adult).''"
Page 23, line 27, at end insert—
"Criminal Appeal Act 1995 (c. 35)
In section 9 of the Criminal Appeal Act 1995 (references by Criminal Cases Review Commission to Court of Appeal), in subsection (6), for the words "a jury in England and Wales has returned" substitute "in England and Wales there have been"."
Page 23, line 27, at end insert—
"Law Reform (Year and a Day Rule) Act 1996 (c. 19)
In section 2 of the Law Reform (Year and a Day Rule) Act 1996 (restriction on institution of proceedings for fatal offence), in subsection (3), at the end of paragraph (b) insert ", or
(c) an offence under section 4 of the Domestic Violence, Crime and Victims Act 2004 (causing or allowing the death of a child or vulnerable adult).""
On Question, amendments agreed to.
Baroness Thomas of Walliswood Baroness Thomas of Walliswood moved Amendment No. 99A:
Page 24, line 11, leave out from "shall" to end of line 13 and insert "use the power conferred by subsection (2)(b) to make a non-molestation order, whenever violence has been used or threatened, or where there is a risk of significant harm to the applicant or any relevant child"
The noble Baroness said: My Lords, please excuse the confusion on the Liberal Democrat Benches. The noble Lord leading this team is in no way implicated in the confusion.
First of all, this amendment was not put at Grand Committee, so it is a new amendment at this stage. It amends Clause 3(2) of Schedule 4 of the Bill, which is of course in itself an amendment of Clause 42 to the Family Law Act 1996. It reflects concerns on the part of Women's Aid. I should say, because I have been having a discussion with somebody who is very concerned about violence in the domestic setting, that the fact that these concerns come from Women's Aid does not mean I am a paid-up member of the clan that says only women suffer violence. That is not true, and I want to make that point clear.
Clause 1 of this Bill amends Part 4 of the Family Law Act to make a breach of a non-molestation order a criminal offence, but it does not extend to criminalising breaches of occupation orders issued in the case of domestic violence under the Family Law Act 1996. The reason given for not making a breach of occupation orders a criminal offence is that a history of violence is not a prerequisite for granting an occupation order, as such orders not only deal with occupation and exclusion from the family home but also other matters relating to property. We have heard the noble Baroness making this point on several occasions during the course of this Bill.
However, while the assumption may be that, where domestic violence is present, non-molestation orders are also likely to be granted alongside the occupation orders, there is no requirement for this to be done in all cases where violence has been used or threatened, if the occupation order itself contains measures that are considered effectively to provide the same remedy.
It is the experience of Women's Aid that occupation orders may be applied for and granted without non-molestation orders. The present wording of the Bill means that the court may consider making a non-molestation order, but it does not make this compulsory, even where violence has been used or threatened. This could mean that the perpetrators of domestic violence could breach an occupation order, for example by visiting the property, loitering outside or other similar behaviour prohibited under an occupation order, but that, in the absence of a non-molestation order, such breaches would not be arrestable offences.
A mechanism is needed to ensure that in all cases where violence is used or threatened the breach of any relevant order is a criminal offence. An obligation on the court in cases where violence has been used or threatened, or where there is a risk of significant harm to the applicant or any relevant child, to issue a non-molestation order whenever an occupation order is issued, would ensure that victims are better protected, and a more effective and co-ordinated approach by relevant enforcement agencies. I beg to move.
Baroness Scotland of Asthal: My Lords, in cases of domestic violence, applications for occupation orders

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are nearly always made alongside applications for non-molestation orders. As the noble Baroness knows, and I think she has already outlined it in her remarks, by virtue of Section 42(2)(b) of the Family Law Act 1996, the court already has the power to make a non-molestation order on its own initiative, although paragraph 3 of Schedule 4 of the Bill amends the 1996 Act so as to place the court under an obligation to consider, whenever it is deciding whether to make an occupation order, whether it should also make a non-molestation order. The noble Baroness will know that that is a new duty which will basically highlight for the court the need to consider whether what it is doing gives rise to the necessity to consider a non-molestation order, even where no party has applied for such an order. It is an important new impetus for the courts to highlight this change. We consider that it will provide vital protection by ensuring that, whenever the court believes it is needed, a non-molestation order will be put in place.
The effect of the noble Baroness's amendment would be to force the court, when making an occupation order, always to make a non-molestation order when there is actual or threatened violence or a "risk of significant harm". The Government believe that this is unnecessary as it should be for the court to decide whether a non-molestation order is appropriate in the circumstances of each individual case. I have little doubt that in the circumstances to which the noble Baroness alluded, a court would make a non-molestation order. But we believe that the preservation of the court's discretion as to what to do for the best is important.
The amendment would also have the effect of removing the obligation on the court to consider making an order in the less serious cases that would not fall within the amendment—namely, where violence has not been used or threatened or where there is no risk of significant harm to the applicant or to any relevant child.
Noble Lords will know that in certain cases the making of the non-molestation order becomes necessary because you have changed the rights of occupation. That sometimes is the impetus for difficulty and the court must be left in a position where it can make an assessment as to whether or not that level of protection is appropriate.
There may be occasions when the actions complained of are sufficient to warrant the issue of a non-molestation order—for example, low-level but continuing harassment. Our changes to the Family Law Act would place a duty on the court to consider issuing a non-molestation order for such actions at the same time as an occupation order, thereby giving the best and most appropriate protection to the victim. I know that it is not the noble Baroness's intention to prevent the court from so doing, but her amendment could leave some victims without the protection of a non-molestation order.
Finally, I should also point out that the amendment would result in cases where the applicant for an occupation order found that the court had no option
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but to make a non-molestation order, regardless of either the applicant's wishes or how much time had passed since the violence occurred. For those reasons, I hope that the noble Baroness will understand why I cannot accept her amendment.
Baroness Thomas of Walliswood: My Lords, I thank the Minister for that extremely clear explanation of her difficulties with the amendment and I beg leave to withdraw it.
Amendment, by leave, withdrawn.
Baroness Scotland of Asthal Baroness Scotland of Asthal moved Amendment No. 100:
Page 25, line 10, after ""relative"" insert—
"(a) for "or nephew" in paragraph (b) substitute ", nephew or first cousin";
(b)"
The noble Baroness said: I am grateful to the noble Baroness, Lady Walmsley, for raising in Grand Committee on 9 February the issue of whether or not cousins should be added to the list of associated persons. I was concerned that any reference to cousins should be strictly defined to make it consistent with the definition of the relatives already in the Family Law Act 1996. I agreed to take the matter away for further deliberations. After careful consideration I believe it is right that first cousins should be given the same protection of the Family Law Act 1996 as other family members such as brother, sister, uncle, aunt, niece or nephew.
I hope that the amendment is perfectly straightforward. It incorporates a reference to first cousin in the list of relatives as set out in Section 63(1)(b) of the Family Law Act 1996, as amended by paragraph 8(2) of Schedule 4 to the Bill.
Perhaps I may take this opportunity to speak to Amendment No. 116, which is consequential on Amendment No. 7, which has been accepted and which repeals Section 41 of the Family Law Act. I beg to move.
On Question, amendment agreed to.
Baroness Scotland of Asthal Baroness Scotland of Asthal moved Amendments Nos. 100A to 107:
Page 25, line 26, at end insert—
"Crime (Sentences) Act 1997 (c. 43)
11A (1) Schedule 1 to the Crime (Sentences) Act 1997 (transfers of prisoners within the British Islands) (as amended by Schedule 32 to the Criminal Justice Act 2003) is amended as follows.
(2) In paragraph 8 (restricted transfers from England and Wales to Scotland), in sub-paragraphs (2)(a) and (4)(a), for "264" substitute "246A".
(3) In paragraph 9 (restricted transfers from England and Wales to Northern Ireland), in sub-paragraphs (2)(a) and (4)(a), for "264" substitute "246A"."
Page 25, line 26, at end insert—

Protection from Harassment (Northern Ireland) Order 1997 (S.I. 1997/1180 (N.I. 9))
11 A (1) Article 7 of the Protection from Harassment (Northern Ireland) Order 1997 (power to make restraining order where defendant convicted of offence under Article 4 or 6 of that Act) is amended as follows.
(2) In the heading, at the end insert "on conviction".
(3) In paragraph (2) omit "further"."
Page 25, line 30, at end insert—

Criminal Justice and Court Services Act 2000 (c. 43)
In Schedule 4 to the Criminal Justice and Court Services Act 2000 (offences against children for the purposes of disqualification orders), in paragraph 3, after paragraph (sa) insert—
"(sb) he commits an offence under section 4 of the Domestic Violence, Crime and Victims Act 2004 (causing or allowing the death of a child or vulnerable adult) in respect of a child.""
Page 25, line 30, at end insert—

Sexual Offences Act 2003 (c. 42)
In section 133 of the Sexual Offences Act 2003 (general interpretation of Part 2) after subsection (1) insert—
"(1A) A reference in subsection (1) to section 37 or 41 of the Mental Health Act or to Part 3 of that Act includes a reference to that section or Part as it applies by virtue of section 5 of the Criminal Procedure (Insanity) Act 1964 or section 6 or 14 of the Criminal Appeal Act 1968.''"
Page 25, line 30, at end insert—

Sexual Offences Act 2003 (c. 42)
(1) Schedule 5 to the Sexual Offences Act 2003 (other offences for the purposes of sexual offences prevention orders) is amended as follows.
(2) After paragraph 63 insert—
"63A An offence under section 4 of the Domestic Violence, Crime and Victims Act 2004 (causing or allowing the death of a child or vulnerable adult)."
(3) After paragraph 171 insert—
"171A An offence under section 4 of the Domestic Violence, Crime and Victims Act 2004 (causing or allowing the death of a child or vulnerable adult).""
Page 25, line 31, at end insert—
"12A In section 48 of the Criminal Justice Act 2003 (c. 44) (further provisions about trial without a jury), in subsection (6), for paragraphs (a) and (b) substitute "the requirement under section 4A of the Criminal Procedure (Insanity) Act 1964 that any question, finding or verdict mentioned in that section be determined, made or returned by a jury"."
Page 25, line 31, at end insert—
"In section 74 of the Criminal Justice Act 2003 (interpretation of Part 9), after subsection (6) insert—
"(7) In its application to a trial on indictment in respect of which an order under section 9(2) of the Domestic Violence, Crime and Victims Act 2004 has been made, this Part is to have effect with such modifications as the Secretary of State may by order specify.""
Page 25, line 36, at end insert "(causing or allowing the death of a child or vulnerable adult)"
Page 25, line 36, at end insert—
In Schedule 17 to that Act (Northern Ireland offences specified for the purposes of section 229(4)), in Part 1 (specified violent offences), after paragraph 60 insert—
"60A An offence under section 4 of the Domestic Violence, Crime and Victims Act 2004 (causing or allowing the death of a child or vulnerable adult).""
On Question, amendments agreed to.
Schedule 5 [Repeals]:
Baroness Scotland of Asthal Baroness Scotland of Asthal moved Amendments Nos. 108 to 121A:
Page 26, line 3, at end insert—

"Criminal Appeal Act 1968 (c. 19)

Section 14A."

Page 26, line 3, at end insert—

"Juries Act 1974 (c. 23)

In section 11 paragraph (b) of subsection (5) and "(b)" in subsection (6)."

Page 26, line 3, at end insert—

"Supreme Court Act 1981 (c. 54)

In Section 55(4)(a)(iii), the words. "of a Jury","

Page 26, line 3, at end insert—

"Mental Health Act 1983 (c. 20)

In section 69(2)(a), the words "or section 5(1) of the Criminal Procedure (Insanity) Act 1964".

Section 71(5) and (6).

Section 79(1)(b)."

Page line 3, at end insert—

"Prosecution of Offences Act 1985 (c. 23)

In section 16(4), the word "or" preceding paragraph (c)."

Page 26, line 3, at end insert—

"Coroners Act 1988 (c. 13)

In section 16(1)(a), the word "or" preceding sub-paragraph (iii).

In section 17, in subsections (1) and (2) the word "or" preceding paragraph (c)."

Page 26, line 3, at end insert—

"Criminal Procedure (Insanity and Unfitness to Plead) Act 1991 (c. 25)

Section 3 and 5

In section 6—

(a) the definition of "local probation board" in subsection (1);

(b) subsection (2). Schedules 1 and 2."

Page 26, line 3, at end insert—

"Law Reform (Year and a Day Rule) Act 1996 (c. 19)

In section 2(3), the word "or" preceding paragraph (b)."

Page 26, line 4, column 2, at beginning insert—

"Section 41."

Page 26, line 11, at end insert—

"Protection from Harassment (Northern Ireland) Order 1997 (S.I. 1997/1180 (N.I. 9))

In Article 7, the words "under Article 4 or 6" in paragraph (1) and the word "further" in paragraph (2)."

Page 26, line 13, at end insert—

"Access to Justice Act 1999 (c. 22)

In Schedule 13, paragraph 163."

Page 26, line 13, at end insert—

"Powers of Criminal Courts (Sentencing) Act 2000 (c. 6)

In Schedule 9, paragraph 133."

Page 26, line 13, at end insert—

"Care Standards Act 2000 (c. 14)

In Schedule 4, paragraph 16."

Page 26, line 13, at end insert—

"Criminal Justice and Court Services Act 2000 (c. 43)

In Schedule 7, paragraphs 99 to 102."

Page 26, line 13, at end insert—

"Criminal Justice Act 2003 (c. 44)

In section 246(6), in the definition of "the required custodial days", the word "or" preceding paragraph (b).

In section 264(1), the word "and" preceding paragraph (b)."

On Question, amendments agreed to.
Baroness Scotland of Asthal Baroness Scotland of Asthal moved Amendment No. 122:
After Schedule 5, insert the following new schedule—
"SCHEDULE TRANSITIONAL AND TRANSITORY PROVISIONS
1 (1) Section 1 and paragraphs 4 to 6 of Schedule 4 apply only in relation to conduct occurring on or after the commencement of that section.
(2) In relation to an offence committed before the commencement of section 154(1) of the Criminal Justice Act 2003 (c. 44), the reference to 12 months in subsection (5)(b) of section 42A of the Family Law Act 1996 (inserted by section 1 of this Act) is to be read as a reference to six months.
2 In section 4, the reference in subsection (1)(a) to an unlawful act does not include an act that (or so much of an act as) occurs before the commencement of that section.
3 (1) This paragraph has effect, in relation to any time before the commencement of the repeal (by paragraph 51 of Schedule 3 to the Criminal Justice Act 2003) of section 6 of the Magistrates' Co
Courts Act 1980 (c. 43), where—

(a) a magistrates' court is considering under subsection (1) of that section whether to commit a person ("the accused") for trial for an offence of murder or manslaughter. and

(b) the accused is charged in the same proceedings with an offence under section 4 above in respect of the same death.

(2) If there is sufficient evidence to put the accused on trial by jury for the offence under section 4, there is deemed to be sufficient evidence to put him on trial by jury for the offence of murder or manslaughter.
4 Section 7 applies only in relation to offences committed on or after the commencement of that section.
5 (1) Section 8(1) and paragraphs 10(3) and 12 of Schedule 4 do not apply where the conviction occurs before the commencement of those provisions.
(2) Section 8(2) applies only in relation to applications made on or after the commencement of that provision.
(3) Section 8(3) and paragraphs 10(2) and 11 of Schedule 4 do not apply where the acquittal (or, where subsection (5) of the inserted section 5A applies, the allowing of the appeal) occurs before the commencement of those provisions.
6 (1) Section (Restraining orders: Northern Ireland)(1) and paragraph 11 A(3) of Schedule 4 do not apply where the conviction occurs before the commencement of those provisions.
(2) Section (Restraining orders: Northern Ireland)(2) applies only in relation to applications made on or after the commencement of that provision.
(3) Section (Restraining orders: Northern Ireland)(3) and paragraph 11A(2) of Schedule 4 do not apply where the acquittal (or, where paragraph (5) of the inserted Article 7A applies, the allowing of the appeal) occurs before the commencement of those provisions.
7 (1) The provisions mentioned in sub-paragraph (2) do not apply—

(a) in relation to proceedings before the Crown Court, where the accused was arraigned before the commencement of those provisions;

44

(b) in relation to proceedings before the Court of Appeal, where the hearing of the appeal began before that commencement.

(2) The provisions are—

(a) sections (Unfitness to plead: procedure) and (Powers of court on finding of insanity or unfitness to plead etc);

(b) Schedule (Supervision orders);

(c) paragraphs A 1, B1, C1, D1 to F1 and 12A of Schedule 4.

8 The Schedule inserted by Schedule (Supervision orders) has effect in relation to any time before the commencement of sections 8 and 37 of the Courts Act 2003 (c. 39)—

(a) as if a reference to a local justice area were to a petty sessions area;

(b) as if a reference to a designated officer were to a justices' chief executive.

9 Each entry in Schedule 5 applies in the same way as the provision of this Act to which it corresponds."
On Question, amendment agreed to.
Clause 27 [Transitional and transitory provisions]:
Baroness Scotland of Asthal Baroness Scotland of Asthal moved Amendment No. 123:
Page 14, line 37, leave out subsections (1) to (9) and insert—
"Schedule (Transitional and transitory provisions) (transitional and transitory provisions) has effect."
On Question, amendment agreed to.
Clause 30 [Extent]
Baroness Scotland of Asthal Baroness Scotland of Asthal moved Amendment No. 123A:
Page 16, line 2, leave out subsections (1) and (2) and insert—
"() Subject to the following provisions of this section, Parts 1 to 3 extend to England and Wales only.
() The following provisions extend also to Northern Ireland—

section;

section 4;

section 6;

sections 9 to (Application of sections 9 to 12 to Northern Ireland);

Schedule (Modification of sections 9 to 12 for Northern Ireland);

section 25.

() The following provisions extend to Northern Ireland only—

section (Evidence and procedure: Northern Ireland);

section 7(2);

section (Restraining orders: Northern Ireland).

() Section (Evidence and procedure.' courts-martial), so far as relating to proceedings before courts-martial constituted under a particular Act mentioned in subsection (2) of that section, has the same extent as that Act.
() An amendment, repeal or revocation in Schedule 1, 2, 4 or 5 has the same extent as the provision to which it relates.
This subsection does not apply to the amendment in paragraph 12A of Schedule 4 (which accordingly extends to England and Wales only).
On Question, amendment agreed to.
In the Title:
Baroness Scotland of Asthal Baroness Scotland of Asthal moved Amendment Nos. 124 to 128:
Line 1, leave out "and"
Line 2, after "1997" insert "and the Protection from Harassment (Northern Ireland) Order 1997"

45
Line 4, after "indictment;" insert "to make provision about findings of unfitness to plead and about persons found unfit to plead or not guilty by reason of insanity;"
Line 4, after "indictment;" insert "to amend section 58 of the Criminal Justice Act 2003;"
Line 4, after "indictment;" insert "to amend Part 12 of the Criminal Justice Act 2003 in relation to intermittent custody"
On Question, amendments agreed to.
Title, as amended, agreed to.

Consolidated Fund (No. 2) Bill
Brought from the Commons, endorsed with the certificate of the Speaker that the Bill is a Money Bill, and read a first time.

Human Rights Act 1998 (Making of Remedial Orders) Amendment Bill [H.L.]
4.36 p.m.
Lord Lester of Herne Hill: My Lords, I beg to move that this Bill be now read a second time. Although the Bill has been introduced in my name, it is put forward on behalf of the Joint Committee on Human Rights, of which I am a member. The Committee's recommendations are all-party and beyond party, and they are unanimous. Six of its members are elected Members of the other place.
The Human Rights Act empowers Ministers, with parliamentary approval, to make statutory instruments amending legislation, including primary legislation, either where the legislation has been declared by one of the higher courts in the United Kingdom to be incompatible with a right protected by the European Convention on Human Rights, or where it appears to a Minister or to Her Majesty in Council to be incompatible with such a convention right, having regard to a finding of the European Court of Human Rights in proceedings against the UK. This is a beneficial power since it enables the executive, with the concurrence of the legislature, to remove a mismatch between UK statute law and convention rights.
The Joint Committee is responsible for reporting to Parliament on the operation of the remedial order procedure, which can be invoked only if certain other conditions described in the Explanatory Notes are satisfied. The Explanatory Notes have been prepared on the Joint Committee's behalf by our legal adviser, the admirable Professor David Feldman. There are different provisions for urgent and for non-urgent cases.
The super-affirmative procedure is a good one but, in our seventh report of 2001–02, Making of Remedial Orders, House of Lords Paper 58 of 17 December 2001, we drew the attention of both Houses to two defects in the prescribed procedure for non-urgent cases.
In the first place, the statutory period of 60 days during which the proposal for the order must lie before Parliament is calculated without taking account of any period during which Parliament is prorogued or
46
dissolved, or any period in which both Houses—I emphasise the word "both"—are adjourned for more than four days. The way in which paragraph 6(b) of Schedule 2 is drafted means that the statutory period runs when either House is adjourned for more than four days.
We recommend that the Human Rights Act should be amended by replacing the words "both Houses are" with the words "either House is". That would mean that the clock would not tick when either House is adjourned for more than four days—for example, when this House has Judicial Sittings in October but the other place is not sitting. This would be even more important were the other place to start sitting in September and this House not to follow suit. In other words, this amendment would increase the time available for consideration of any proposal that precedes the laying of a draft remedial order.
The second matter, the only other matter, is that the 60-day period before either House can consider a resolution to approve a draft remedial order seems to us to be longer than is necessary given that there will already have been a previous period of 60 days for the making of representations. It is anomalous to impose a specially long period of inaction in relation to draft remedial orders, particularly as they have the beneficent purpose of securing, rather than interfering with, the convention rights of the individual.
The second amendment—to paragraph 2(a) of Schedule 2— would allow a draft remedial order to be approved at any time after being laid before Parliament. As we explain, that would bring the procedure into harmony with the procedure for the approval of other types of draft order. But because it affects parliamentary scrutiny, it will need to be carefully considered in Committee.
The committee's recommendations were endorsed by the House of Commons Procedure Committee in its first report of 2001–02, Making Remedial Orders: Recommendations by the Joint Committee on Human Rights, House of Commons Paper 626. The Joint Committee on Human Rights considers that the changes would strike a better balance between the need to change the law to remove an incompatibility reasonably expeditiously and the need for adequate parliamentary scrutiny.
We hope that the Bill will be regarded as non-controversial and that it will proceed through both Houses on oiled castors. I also hope that I have broken some kind of record for brevity in introducing a Bill. I commend the Bill to the House.
Moved, That the Bill be now read a second time.—(Lord Lester of Herne Hill.)
4.41 p.m.
Lord Henley: My Lords, in my very brief and undistinguished career at the Bar, I think the first words I ever uttered in court were to seek "no order as to costs". I hope I can be almost as brief in dealing with the Bill of the noble Lord, Lord Lester, and stick to those sentiments in offering neither support for nor opposition to it.

47
As the noble Lord, Lord Lester, will be aware in recalling the passage of the Human Rights Act 1998, I was never a particular fan of Section 10, which the Bill seeks to amend. I was probably one of those on this side of the House who felt, in the words of the noble Lord on that occasion, that it created,
"a vast Henry VIII clause with jackboots added on".—[Official Report, 29/1/98; col. 403.]
Nevertheless, we now have it, and we now have a recommendation from the Joint Committee on Human Rights, of which, as the noble Lord, Lord Lester, reminds us, he is a member. So I am perfectly happy not to oppose the passage of the Bill and to accept the committee's recommendations that some amendment to the Human Rights Act should be made.
In passing, let me say that just as I am happy to accept the recommendations of that distinguished Joint Committee, I hope that the noble Lord, Lord Lester, might consider—and perhaps this might also be true of the Government—accepting the advice of the Constitutional Affairs Committee, which reported in another place, particularly its advice that the Constitutional Reform Bill could be considered in draft before coming before this House.
4.43 p.m.
The Parliamentary Under-Secretary of State, Department for Constitutional Affairs (Lord Filkin): My Lords, I will not rise to the last bait—I think we gave that issue good measure last week.
I note the challenge from both noble Lords to be brief. I should like to put on record the Government's appreciation of the work of the Joint Committee in general and of its seventh report in particular, with which the Bill deals. I will not speak to those two measures; the noble Lord, Lord Lester, has already done so, admirably and clearly.
The Government can see the case for both changes. The then Minister for Human Rights at my department, my honourable friend Yvette Cooper, wrote to the chair of the Joint Committee on 8 July 2002 and indicated that the Government would not oppose a Bill to implement them should the Joint Committee's recommendations find favour with a private Member of either House. I am happy to stand by that position today.
This is subject to one reservation, which I have signalled to the noble Lord, Lord Lester. The second 60-day limit and other detailed rules in Schedule 2 to the Act reflect lively discussion in this House and in the other place about what were then described as a new raft of Henry VIII powers. The rules in Schedule 2 to the Human Rights Act are there as a safeguard for the legislature as a whole.
In the Government's view, this matter should be entirely one for the House to determine. The Government are, as I have signalled, neutral but not hostile. We merely wish to ensure that any decision is made in an informed way by the House, looking at the possible arguments on each side of the issue. I should therefore greatly welcome the tabling of a probing
48
amendment to the Bill in Committee so as to probe the opinion of the House on the merits of Clause 1(1). In the event of a favourable result, both Houses could, I believe, give a fair wind to the Bill's passage, as the noble Lord, Lord Lester, and his colleagues desire.
4.44 p.m.
Lord Lester of Herne Hill: My Lords, I am extremely grateful to both noble Lords who have spoken, especially to the noble Lord, Lord Henley, for his handsomely generous speech, given that he said he was not a great admirer of the handiwork of the Government and Parliament in 1998 in introducing and enacting the human rights legislation.
I hope it is clear that one of the advantages of this procedure is that it enables the Government and Parliament to put right a wrong done to an individual relatively speedily but with proper parliamentary scrutiny so as to avoid the long and costly journey to the European Court of Human Rights at Strasbourg, which is choking with a backlog of 80,000 cases. It is because of the interests of the individual, balanced with the need for parliamentary scrutiny, that this procedure is rather important.
The noble Lord, Lord Henley, asks me to return the compliment by expressing my view about the Constitutional Reform Bill. All things being equal, I strongly favour pre-legislative scrutiny of all Bills, including important constitutional Bills. I, for my part, wish that the Constitutional Reform Bill could have been introduced in draft some considerable time ago. What worries me now is that we may throw out the baby with the bathwater unless we proceed with reasonable speed. We will have no proper procedure in place for appointing the judges of England and Wales unless we are able to make proper progress.
Having said that, I entirely sympathise with the noble Lord. There is nothing between us—I hope he understands that I am a strong supporter of effective parliamentary scrutiny in this case as well as in any other.
I am sure that the committee will be very grateful for what the Minister has said. He is quite right that there needs to be full scrutiny of the second change in Committee in order to ensure that the House is satisfied that there really will be sufficient parliamentary scrutiny of this important matter. We do not want a vast Henry VIII clause, whether or not with boots on, which can circumvent effective parliamentary scrutiny. That can be done in Committee, with an appropriate probing amendment, and I am sure that that will happen.
Lord Henley: My Lords, before the noble Lord sits down, it might assist us if he expanded somewhat on what he would include in Committee. Knowing this was the noble Lord's Bill, we have got through it somewhat quicker than we normally expect to get through his Bills. As the Government Chief Whip will recognise, a number of noble Lords who are down to speak in the coming debate have not yet made it into the Chamber. I know that the noble and learned Lord

49
the Lord Chancellor had some problems getting in. If the noble Lord. Lord Lester, wishes to expand a little, I am sure the House would not object.
Lord Lester of Herne Hill: My Lords, I am too young in this House to know whether there is not some more elegant way of dealing with the matter than the House having to be wearied by me, since I will be making a speech in the next debate. I do not know whether it is possible for a pause that refreshes to take place. Otherwise, I am perfectly happy to blather on indefinitely, if that is the wish of the House. However, I should have thought there must be some better way of ordering our arrangements in 2004. Unless someone can think of anything else I can say, I propose to sit down.
On Question, Bill read a second time, and committed to a Committee of the Whole House.

Business
Lord Grocott: My Lords, before we start the Second Reading debate, I shall do what I usually do and remind the House of the arithmetic. We have a target rising time of ten o'clock. The figures are, very roughly, that if speeches were around eight minutes, we would hit that target rising time. If they were around 10 minutes, we would hit eleven o'clock. The rest is in the hands of your Lordships.

Asylum and Immigration (Treatment of Claimants, etc.) Bill
4.50 p.m.
Lord Falconer of Thoroton: My Lords, I beg to move that this Bill be now read a second time.
The Government have made substantial progress in the difficult area of asylum and immigration, including meeting the Prime Minister's target of halving the number of asylum claimants from 8,700 in October last year to around 4,000 this September.
Applications for asylum fell dramatically in 2003 as a result of the measures introduced by the Government, including legislation and border controls in France. The downward trend continued in the last three months of the year, with a 52 per cent drop compared with the same period in 2002.
In 2003 as a whole, following a surge in applications before tougher benefits rules came into force, applications fell by 41 per cent—this is four times as much as the average across the rest of the EU.
As a result of the fall in new claims, applications for state support fell by 60 per cent in the last three months of 2003 compared with the same period in 2002. We must recognise and accept our obligation and willingness to accept those in this country who are genuinely persecuted or are in real fear of persecution.
But reducing abuse of the asylum system is an important part of our overall immigration strategy—encouraging managed, legal migration, including from
50
the EU accession countries, working internationally to address the global problems of refugees at source, while robustly preventing abuse of the asylum system and illegal migration.
Despite these successes, we need to continue to respond flexibly to the evolving pressures created by sophisticated and determined people intent on abusing the system.
It is not just about legislation. We are making progress in moving border controls to the Continent. extending what we have already done in France to Belgium, in extending the use of biometrics on visas and at ports, and in agreements with other countries to return failed asylum seekers. We are also reviewing the way the Immigration Service works and how it links with other agencies.
However, legislation is also vital to help us keep one step ahead of this fast moving problem. This is why, on 27 October, the Home Secretary and I announced that we would be bringing forward further legislation to address two remaining problems in the asylum system: applicants who lodge groundless appeals to delay removal; and the problem of asylum seekers who deliberately destroy or dispose of their documents to make unfounded claims.
As noble Lords will know, the central part of this Bill is Clause 14, which creates a unified appellate structure for asylum and immigration appeals. It is important that the appeals system is fair, but it must also provide speed and finality. A swift and final decision is in the interests of both genuine refugees and the British taxpayer, who should not have to fund those seeking to play the multiple tiers of appeal and the support costs they incur.
There remains considerable scope for delay. We have reduced delay in the initial decision process to the point where the number of cases awaiting an initial decision stands at its lowest in a decade, and 80 per cent of decisions on applications are made and served within two months, but delays still exist in the appeals process. Only 43 per cent of decisions on permission to appeal to the tribunal are dealt with within two months and those granted permission can currently expect to wait until October for their hearing.
Of course, people are able to exploit that delay; not necessarily because they have a good case to run but because it enables them, in many cases, to claim benefit from the state and to have access to housing and health care.
Our intention in bringing forward the single tier was to target that delay and reduce abuse in the system. I am confident that our proposals do that, by reducing what is currently a 62-week process to 18 weeks.
At present, on average, it takes eight weeks for I N D to make the initial decision and inform the asylum seeker. If an appeal is lodged, it takes, on average, 17 weeks from the IND's decisions to the adjudicator's determination.
If permission to appeal against the adjudicator's determination is sought, it takes another seven weeks until the permission decision is made by the IAT. If

51
permission is granted, and there is a substantive hearing at the IAT, it can take another 30 weeks before the IAT decision is promulgated.
When added together, we have 62 weeks from beginning to end. That is far too long. There is too much delay. With so many layers, extra resource by itself is not a sufficient answer. But the system also needs to ensure that we have proper and appropriate judicial oversight of the system so that it is independent, thorough and fair. And we do not have that right yet.
I have listened carefully to the arguments put by the senior judiciary, including those of the Lord Chief Justice, the noble and learned Lord, Lord Woolf. I have also talked to my predecessor, my noble and learned friend Lord Irvine of Lairg, who has forcibly made representations about the Bill. I have read closely the arguments advanced in debate in another place, as well as the report by the Select Committee for Constitutional Affairs and by the Joint Committee on Human Rights.
I believe that we can have the necessary judicial oversight of the system by the higher courts and obtain the aims of speed and reduction in abuse. These are aims which I believe we share. There are a variety of ways in which we could achieve this, and I am confident that we can find a solution which meets the needs of all. I am sure that noble Lords will want to work with us.
In those circumstances, I am prepared to bring forward amendments to replace the judicial review ouster with a new system allowing oversight by the administrative court in those decisions. That system must ensure speed is increased and abuse is reduced. We need to concentrate on how these objectives should be achieved. The relationship between the single tier and the administrative court is important in this respect. No one disagrees that we should aim for a system where very few cases go to the High Court.
Reform of the appeals process goes hand in hand with reform of the legal aid system, including thresholds on legal aid, and by a clampdown on unregulated immigration advisers to put a stop to those whose only advice is how to exploit the system. We want to ensure that those who need advice because they have claims with merit get it. So, in parallel to the terms of the Bill, we will target legal aid better.
I shall discuss the individual clauses of the Bill. I have already dealt with Clause 14. Clauses I to 5 introduce new offences to tackle illegal immigration and abuse of the asylum system. The vast majority of people who claim asylum at UK ports do not have documentation, even though in many cases it was necessary for them to be in possession of a passport and travel documents in order to travel here.
Clause 2 sends out a clear message that this is unreasonable behaviour from someone who is seeking our protection, by creating a new offence of entering the UK without a valid passport without a reasonable excuse. The maximum penalty for such an offence will be a two-year prison sentence. The offence is not
52
intended to catch people who were not in possession of a document when they fled persecution, and to protect against that situation a reasonable excuse defence is built into the clause.
The Sexual Offences Act introduced a new criminal offence of trafficking for sexual exploitation. Clause 4 of the Bill introduces a new criminal offence of trafficking people into, or out of, the UK for the purposes of exploitation. The offence is aimed at those who traffic people into the UK in order to obtain labour or services through force or coercion, for the removal of organs, or for offences of false imprisonment. In line with the offence of trafficking for sexual exploitation, this offence will carry a maximum penalty of 14 years' imprisonment.
Clause 7 concerns the need for asylum claimants to be honest with us when they seek our protection. It sets out various behaviours which a deciding authority is required to take into account when considering whether to believe a person's claim. It covers situations where an applicant fails to provide a valid passport without a reasonable explanation, where a person has failed to take reasonable opportunity to seek protection in a safe third country that they have travelled through in order to reach the UK, or where a person has delayed making their claim without good reason.
Clause 8 will already be familiar to many noble Lords, as it was widely misreported by the press when we first announced the measure.
In fact, the policy is designed to encourage families whose asylum claims—and appeals—have been rejected, to take up the more dignified option of a paid voluntary flight home with some reintegration assistance at the other end, instead of having to enforce their removal and sometimes detain them.
It will be made clear that they cannot. as now, stay on indefinitely in the UK supported by the taxpayer, when it is possible for them to leave.
The provision in the Bill would enable the Government to withdraw support for families whose asylum claims have failed only if they are able to return but fail to take up the offer of a voluntary route home. This is designed to encourage more families to return voluntarily through packages that provide reintegration assistance. Returning voluntarily with some reintegration assistance, rather than having their removal enforced, is better for the families and would reduce the waste of public funds when they do not comply with enforced removal. The policy is not designed to make families destitute. It is designed to act as an incentive to return voluntarily before removal is enforced. There will be a robust process in place to ensure that support is only ever withdrawn as a last resort.
Clauses 9 to 13 propose to enhance existing enforcement powers. We brought forward an amendment to the Bill in another place—now Clause 11 of the Bill—which will enable us to require carriers to take copies of passengers' identity documents

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before they travel. We do not intend to use this power until we have considered the results of a voluntary scheme which will take place later this year.
Clause 15 introduces a further degree of flexibility into the concept of non-suspensive appeals introduced in the Nationality, Immigration and Asylum Act 2002, by permitting a designated country as generally safe for certain categories of people where we cannot be satisfied that it can be designated as safe for everybody.
Clauses 16 to 21 deal with various problems relating to rights of appeal and to removal.
Clauses 22 to 26 aim to tackle unscrupulous or unregulated immigration advisers. We propose to give new powers to the Office of the Immigration Services Commissioner—the OISC—which currently oversees immigration services, in order to help him act against those legal advisers who are simply giving advice on how to defraud the system. This will complement new restrictions on legal aid.
Clause 22 amends the categories of advisers qualified to provide immigration advice or services.
Clause 23 gives the OISC a power, subject to obtaining a warrant, to enter and search premises where there are reasonable grounds for suspecting that immigration advice is being provided by an unqualified person.
Clause 24 creates a new criminal offence of advertising or offering to provide immigration advice when unqualified, which will carry a maximum penalty of a £2,500 fine.
Clause 25 proposes to remove the right of appeal to the tribunal where the commissioner has recorded a complaint on file for consideration when an application for continued consideration is received from an immigration adviser.
Clause 26 amends Section 86 of the Immigration and Asylum Act 1999 to place a duty on registered advisers to provide timely information to the commissioner in order to enable him to carry out his statutory functions.
We believe in opening up more legal and managed routes into the United Kingdom. Such managed migration is a source of great benefit to the United Kingdom, but it also provides great benefits to those who take advantage of opportunities to come to work, study or make a permanent home here. We believe it is fair to raise income from such situations, and are therefore proposing to introduce an enabling power to allow us to introduce over-cost charging for non-asylum applications. Clause 27 sets out that enabling power, but the charges themselves will be phased in over a number of years, possibly at differing rates, and not without wider consultation.
The Immigration and Asylum Act 1999 already allows fees to be prescribed for the consideration of applications for leave to remain in the United Kingdom, variation of leave to enter or remain or the fixing of a stamp in a new or replacement passport or
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travel document. Clause 28 broadens that power to allow for a charge to be made when we transfer conditions.
This is a very important Bill which builds upon the major reform we have already undertaken in this area. It contains a number of tough but vital provisions to ensure that the public have continued confidence in the immigration controls of this country. This is vital work if we are to succeed in encouraging legal migration and successful protection and integration of genuine refugees, who should always be welcomed in the United Kingdom. I commend the Bill to the House.
Moved, That the Bill be now read a second time.—(Lord Falconer of Thoroton.)
5.4 p.m.
Baroness Anelay of St Johns: My Lords, the noble and learned Lord the Lord Chancellor has signalled today that the Government have begun to listen to the chorus of criticism of Clause 14 in the Bill. Naturally, we shall all consider his words very carefully indeed during the course of the debate—just as, no doubt, he judged every single word very carefully when he drafted his speech for today.
Our asylum system must be humane and we must continue our long and honourable tradition of giving safe refuge to the persecuted. We recognise, of course, that the asylum system must be efficient; it is not fair to anyone, including the asylum seeker, if it is not. We contend that our current system lacks efficiency and is in danger of losing humanity.
The Home Secretary has maintained that this Bill—the Government's third asylum Bill in four years—is the final stage in the Government's planned approach to solving the problems of effective administration of the asylum system. I have to say that it does not look quite like that to anyone else. It looks like a patching job rather than a carefully crafted response. After all, the ink is barely dry on the Nationality, Immigration and Asylum Act 2002, and much of that Act still remains not implemented.
I say immediately that some parts of the Bill can be welcomed from this Bench. I will refer to those later.
The blot on the Bill to which the noble and learned Lord referred at the beginning of his speech—quite rightly, he opened with it—and which means that it cannot be supported in its current form is indeed Clause 14. It is an objection because it seeks to treat one class of people substantially differently from others. Everyone in this country should be subject to the rule of law and have the protection of the law. That is why it is wrong for the Bill as currently drafted to remove the supervision of the higher courts from the process of administrative tribunals. Access to proper judicial oversight is a cornerstone of our democracy. It should be available to all.
I shall outline our position on Clause 14 briefly now. but my noble friend Lord Kingsland will explain our proposals in detail later tonight. He will lead for these Benches on the appeal section in the Bill.

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We agree that the Government face a problem with the appeals system. We accept that it could be streamlined to make it more efficient. However, the Home Secretary likes to blame lawyers and the courts for his ills. The noble and learned Lord the Lord Chancellor is always more circumspect.
We acknowledge that it is possible that some delay in the appeals process had been the result of abuse of the system by a few—a very few—lawyers who believe that they serve their clients best by spinning unmeritorious claims in the hope that their clients may never be removed. However, the real problems about delays in the asylum system have nothing to do with the lawyers or the courts. They stem from the Government's administrative failure to cope with the sheer volume of asylum seekers since 1997.
During that time, the number of asylum applications has at times threatened to overwhelm the Government's system. The process leading up to the tribunal stage is not only slow, but it is entirely in the hands of the Government, who run it. We know that too many decisions made by the Home Office executive officers are not made within the two-month period prescribed. The noble and learned Lord has referred to that already.
Lord Clinton-Davis: My Lords, is the noble Baroness asserting that everything before the Labour Government were elected was all right as far as this provision is concerned? Would she like to elaborate on that?
Baroness Anelay of St Johns: My Lords, asylum has always been a difficult issue. We have always accepted that. However, it has to be said that asylum applications trebled in the period after the Government took office, and they trebled because the Government were giving out a message that you could come here and not be removed. We accept—or certainly I accept, having sat through the proceedings on the Nationality, Immigration and Asylum Act — that the Government were making strenuous efforts to reverse that. It has been a long time coming. I, along with others, welcome the reversal in the numbers of applications last year. What I do not welcome is the fact that so many of the decisions that are made today are still wrong. What we want to do is to be able to welcome to this country those who have a justified reason for applying for asylum.
The Medical Foundation has referred to the fact that there are problems with decision-making in reports that were published just last month. It concludes that decision-making is often of poor quality, and that Home Office caseworkers regularly dismiss medical evidence of torture from asylum seekers. Amnesty International also found that the quality of initial decision-making is inadequate, highlighting in particular the lack of accurate information relating to the human rights situation in countries of origin, the need for objective consideration of issues relating to the applicants'
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credibility, and inappropriate consideration of allegations of torture and supporting medical evidence.
Problems also arise at the adjudication hearing. We understand from Written Answers in another place that Home Office presenting officers attend far too few of them; apparently, it was only about 60 per cent. Surely it is not surprising that adjudicators often overturn decisions.
As I said earlier, we are prepared to recognise that the appeals system itself could be improved. We accept the proposal to amalgamate the adjudicators and the tribunal into one new asylum and immigration tribunal, which will hear appeals from initial decision-makers, but we do so only if three main conditions are met: first, that a single tier must have the appropriate membership and the ability to reach decisions fairly and effectively; secondly, that there must be a process of statutory review that is sufficiently fair and robust to make judicial review unnecessary; and, thirdly, it is vital to retain the normal appellate jurisdiction of the Court of Appeal and the House of Lords. If those conditions are not met, the AIT would become a self-contained system that is not subject to the rule of law. We would find that unacceptable.
We have already published our proposals. They were debated on Report in another place on 1 March and will provide a framework by which it would be possible for the Government to achieve their aim of streamlining the legislation while keeping it compatible with the Human Rights Act and, indeed, making it work properly. Therefore, the Lord Chancellor's announcement today is welcome to me, because it looks as though the Government are beginning to work towards a change in the system that they originally proposed. We hope that they will take up our solution of coupling statutory review with judicial oversight of the appeals. As always, I shall await impatiently the amendments to be tabled by the Government before giving them any outright welcome or rejection. They will deserve everyone's full consideration.
I said earlier that some aspects of the Bill are welcome. The Government have made them even more welcome by improving their original proposals in an acceptable way in another place. The Lord Chancellor dealt with the Bill in its totality. I shall just pick out parts of the Bill where I am in agreement with the Government, but that does not mean that I disagree with the rest by any means.
The Government introduced a few new clauses on Report in another place. There was not enough time to give them full scrutiny, so I hope that we will be able to give them full and detailed consideration in this House. That does not mean that there is a problem with them. At first sight, I think that they will be acceptable, but they need to be fully considered.
I shall refer first to Clause 2, which covers entering the United Kingdom without a passport. It is right that we should try to make sure that people who seek asylum here should not deliberately destroy documents in their possession that are relevant to their

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claim in order to frustrate the system intentionally. However, we will need to consider the position of those who have never had travel or immigration documents or passports. Indeed, many people would be refused them in their country of origin for the straightforward reason that they are being persecuted there. We shall also want to consider the point, raised by the Refugee Children's Consortium, that amendments to the Bill in another place have, perhaps inadvertently, resulted in a risk that an adult will be prosecuted because a dependant child has no documents, even though that child became a dependant in the UK only after his arrival here.
We welcome Clause 4. which introduces the new criminal offence of human trafficking for non-sexual exploitation, with a maximum penalty of 14 years. In the threat assessment that it publishes on its website, NOS notes that human trafficking takes various forms, including exploitation as cheap, tied labour; for example, in illicit sweatshops producing counterfeit goods. According to NCIS, large numbers of illegal immigrants entering the UK in the future, as now, will be looking to work, but of course will not be entitled to work legitimately. Serious and organised criminals exploit that by controlling the recruitment and supply of illegal immigrants as cheap, unskilled and casual labour within the manufacturing, food-processing, construction, catering and agricultural labour markets. The illegal immigrants become victims of the system too.
I agree with the Immigration Advisory Service that there needs to be more joined-up thinking in the Home Office between the good work that is being done by the noble Baroness, Lady Scotland, in giving victims support in the criminal jurisdiction, and the policies of the immigration and nationality department on asylum. After all, we have in the past half-hour completed the Report stage of the Domestic Violence, Crime and Victims Bill. The Government make no specific reference there to support for victims of trafficking. We hope that they are covered by the provision in general.
In addition, we shall need to probe some of the amendments to Clause 4 that were added on Report in another place. The Refugees Children's Consortium is concerned about the new Clause 4(4)(d). While it improves the clause, it also unfortunately seems to allow some people who traffic children and families to escape prosecution. I am sure that that is not the Government's intent.
Clause 8 deals with the withdrawal of support. I recognise of course that it has been a highly controversial issue in recent years. We had a significant debate on the matter during the passage of the Nationality, Immigration and Asylum Act 2002. Press reports before the publication of that Act represented the Government as using the withdrawal of support as an incentive to force asylum seekers with children to leave the country or have the children taken into care. Neither the 1996 Act—under a Conservative government—nor the Government's 2000 Act, both of which withdrew benefits, were accompanied by such threats.
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When the Bill was printed, it did not have such provisions within it. The immigration Minister, Beverley Hughes, gave specific undertakings in Committee and on Report in another place on the intention behind those proposals. On the basis of her undertakings, we accept them. On the basis that the proposals are not intended as an incentive to force children into care, we have not opposed them and we shall not do so now. We agree, as we always have, with the proposition that people who should not be here and who have exhausted the legal process should not be entitled to support from the state.
However, despite our support for some parts of the Bill, the Government should remain under no illusion about our opposition to their current proposals, as drafted, in the appeals section. They are seriously flawed. They make the Bill illiberal and grossly unfair to tens of thousands of people. I look forward to those proposals being improved considerably in this House.
5.17 p.m.
Lord McNally: My Lords, it is a pleasure to follow the noble Baroness, particularly in the tone of her contribution. We certainly echo her analysis that the Bill as it enters this House is seriously flawed and illiberal. There are already indications that it will not leave this House in the shape in which it entered. The Lord Chancellor has already made one of his early concessions and the Government's charmer-in-chief, the noble Baroness, Lady Scotland. will wind up the debate.
One can understand why that team formation should have been put out. I can imagine Ministers and government whips looking at the list of speakers and seeing that the game was up. It is not often that one sees not just one former Lord Chancellor but almost two former Lord Chancellors willing to weigh in. I hope that we will hear the opinion of the noble and learned Lord. Lord Irvine, in the later stages of the debate on the Bill. A Lord Chief Justice and three other Law Lords are also in the line-up, plus what I respectfully suggest are some of the most formidable legal troublemakers in this House. Whenever I see from these Benches any one of my noble friends Lord Dholakia, Lord Avebury, Lord Russell, Lord Lester, Lord Phillips or Lord Thomas on the list of speakers, I know that the Government are in for a pretty rough time if they are touching on civil liberties or human rights. With all six of them there, I am looking forward to the next few hours.
The Earl of Onslow: My Lords, is not the fact that all the Law Lords are speaking a perfect example of why the Liberal Democrats were wrong to vote last Monday as they did?
Lord McNally: My Lords, as I said, most of the trouble makers are on parade today. I am grateful to have that reminder from one of the chief exponents of the art.
I start from the point made by the noble Lord. Lord Clinton-Davis. I hope that we all approach the matter with a certain humility. I entered the House in time for

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the final 18 months of the Conservative government, and I remember the vigour with which those on the Labour Benches, then in opposition, attacked the failure of that government to get a grip on immigration and asylum. They said that the waiting list was a cunning ruse to ration immigration—it was pretty good stuff. However, as has been pointed out, this is the Government's fifth attempt in six years to get this matter right.
We must recognise that some of the simple political jousting that has gone on over this issue does not come to terms with the reality of a world which, as the noble Baroness, Lady Anelay, said, involves organised crime, people trafficking, the sex trade and exploitation of labour on a global scale. Any government would be faced with new problems. The task is therefore to make legislation that keeps faith both with the rule of law and with our historic role as a safe haven for genuine refugees.
The noble and learned Lord the Lord Chancellor made much in his opening remarks about the recent reduction in the number of asylum seekers. However, as a number of observers have said, that is partly or mainly due to a more stable international situation; certainly, it has been more stable in places that have hitherto been a great source of refugees. We must ensure that we deal with this matter with a little humility, given the various track records on it, and that we address the reality and not just the perception of the problem. Our media, and particularly the tabloid press, have played a pretty miserable role in whipping up xenophobia and intolerance in this area. It is not surprising, if people rely on certain newspapers, that MORI found that most people in Britain believe that immigration is four times its actual level.
Many clauses in the Bill will demand our attention—and I give fair warning that we shall deal with them fully in Committee. The three that have been highlighted include Clause 2, which will make it an offence to enter the UK without a passport. As the noble Baroness said, that throws up real problems about refugees who come from countries where the niceties of obtaining a passport are frankly absurd. Yet there is a valid point to make in that we must find ways in which to penalise those who wilfully abuse the system by destroying their authentic documents.
Clause 8 threatens failed asylum seekers with removal of basic support. The noble and learned Lord the Lord Chancellor tried to put a good gloss on that proposal, but most observers have seen it as an attempt to coerce asylum seekers to leave the country by effectively starving them out. It seems almost reminiscent of the old Speenhamland system and the old Poor Law that a society should inflict destitution on people. Again, I believe that the clause will be given a very rough ride. The Government are in effect raising the spectre of depriving families of their children as a means to an end. It is inhuman to do that to facilitate their removal from the UK.
Clause 14, as a distinguished jurist said, infects the entire Bill. We get different noises from different ends of this Palace. The Home Secretary is on record as
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saying that he is sick and tired of spending valuable parliamentary time discussing Bills that are then overturned by the courts. As has been pointed out, that is not the line that the noble and learned Lord the Lord Chancellor usually takes in this House. We all read our newspapers and know of the Home Secretary's impatience with the judicial system, but we on these Benches will settle for the comment made by Shami Chakrabarti from Liberty, who said that judges looking over their shoulders was a powerful incentive to adjudicators to get things right.
I shall rely on legal and judicial opinions far more expert than mine to see just how much of a concession on Clause 14 the noble and learned Lord the Lord Chancellor has made today. At later stages of the Bill, we shall consider carefully the proposals put forward by the Conservatives on those matters. As the noble and learned Lord the Lord Chancellor has told us, the Government's justification for the measures is abuse of the system, yet we know that much of the delay is due to Home Office procedures.
Many people have concerns. I received a letter, which does not look as if it comes from a lobbying organisation of any kind, from a lady in Bristol who says that she is worried about the Bill because of the,
"exclusion of the judiciary from oversight of government decisions to refuse asylum … creation of a new offence of entering the UK without a passport, when it may be impossible for persecuted people to have one … removal of support from asylum seekers and the threat to take children into care. In many such instances the designation of the refugee's home country as 'safe' is in fact incorrect",
and,
"the curtailing of legal aid. Without adequate legal advice the initial interview will come to wrong decisions".
The lady goes on to say:
"I am concerned that this is an unjust Bill and does not reflect well the standards"—
that we expect in Britain. We may hear longer speeches tonight about the weaknesses of the Bill, but I do not believe that I have read a better one.
5.28 p.m.
Lord Woolf: My Lords, as I understand what the noble and learned Lord the Lord Chancellor said to us this afternoon, he has given us an unqualified indication that he is dropping from the Bill the ouster provision as to the jurisdiction of the High Court. On that basis, I warmly welcome the indication given by the noble and learned Lord the Lord Chancellor and Secretary of State. I am sure that his announcement will be greeted with approval by the judiciary and, indeed, everyone who is committed to the upholding within this country of the rule of law.
The judiciary share the Government's desire for there to be an efficient, effective and expeditious method of dealing with immigration and asylum appeals. Such a system must also be just and firm. That an appropriate system of appeals is necessary is beyond dispute. The statistics for successful appeals make that need clear beyond argument. What has to be achieved is a proper balance between the interests of the Government in upholding the law and avoiding

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unnecessary expense and complexity and the interests of appellants. The system needs to be fair and just, but not readily capable of abuse.
The judiciary has already made a substantial contribution to improving the existing system. It has provided leadership for the existing first tier of the system, the adjudicators, and, therefore, the tribunal. Considerable praise is due to His Honour Judge Henry Hodge, who has given up his normal role of Crown Court judge to be president and to lead the adjudicators. Initially, Mr Justice Collins and, now, Mr Justice Ouseley—respectively, the past and present presidents of the Immigration Appeal Tribunal— produced dramatic improvements in both tiers of the appeal system.
Together with Mr Justice, now Lord Justice, Maurice Kay, they deserve credit for their contribution in establishing the statutory review under the 2002 Act, mentioned by the noble Baroness, Lady Anelay. Statutory review appears to be a success. It avoids abuse while at the same time retaining appropriate supervision by the High Court. I was pleased to hear the noble Baroness indicating support for statutory review.
To avoid unnecessary appeals to the existing Immigration Appeal Tribunal, such appeals are only with leave. However, what happens if the tribunal wrongly refuses leave? Prior to the 2002 Act, there was a steady stream of applications for judicial review to the High Court against the refusal of leave. Statutory review provides an alternative simple procedure that for practical purposes replaces judicial review, as a decision of the administrative court on Friday last confirmed. The virtue of statutory review is that the whole process is completed within two weeks, which is a remarkably short period in the context of the periods to which the noble and learned Lord the Lord Chancellor referred.
If the statutory review is successful, the case is remitted back to the existing Immigration Appeal Tribunal for a substantive hearing by judges with experience in immigration work. Because it is so expeditious, there is no purpose in making an abusive statutory appeal. The applications are dealt with on the papers, but it is still a process that safeguards appellants, as the results of statutory review indicate. No doubt, that is the reason that in the other place the all-party report of the Select Committee for Constitutional Affairs of 24 February recommended that the statutory appeal procedure should be allowed more time to demonstrate its merit.
The judges to whom I referred and I support this recommendation. I appreciate that the Government are reluctant to do that, but I have reservations about whether there is any more satisfactory solution. The alternative is to risk overwhelming the High Court with applications for judicial review, which would be more expensive and would lead to delay. Of course, the judiciary will still try to assist in finding a solution, the desire for which we share with the Government. But I fear that that may be difficult.
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Finally, I turn to a related concern. Under the proposals contained in the Bill, the role of adjudicators within the single tier would be even more important than it has been until now. The adjudicators would be the majority of members of the new tribunal. Their role would be judicial. It is therefore a cause of some concern that Schedule 1(3)(1)(c) provides that a member,
"shall hold and vacate office in accordance with the terms of his appointment (which may include provision for dismissal)".
I am unaware of such a proposal for "dismissal" ever previously being included in a judicial officer's terms of appointment. The Council of Immigration Judges is concerned that this provision will be used as a justification for members of the new tribunal being dismissed because of dissatisfaction with their decisions. Their concerns are exacerbated because of the novel proposal that it should be a term of their engagement that they have to comply with practice directions. Judicial officers observe practice directions if they are issued by someone with such authority, but I am surprised that it should be felt necessary to have a term of appointment to that effect.
Because of the important role of those members of the new tribunal, I urge the Minister to deal with these concerns in her reply. In particular, I hope that she will make it clear that the current arrangements that I have with the Lord Chancellor— that judicial officers, including adjudicators, will not be dismissed or removed without my concurrence—will continue to apply to the members of the new proposed tribunal.
5.36 p.m.
The Lord Bishop of Oxford: My Lords, the Churches have a long-standing concern about the issue of asylum expressed, first, in relation to the successive Bills that have come before your Lordships' House and, secondly, in support of asylum seekers at the local level. The right reverend Prelate the Bishop of Southwark will speak more specifically about the Churches' involvement, as well as about the recent debate of the General Synod of the Church of England on this subject.
A bishop colleague, hardly noted for his modish views, once confided in me that he always supported the government of the day because government was always such a difficult, near-impossible task. The difficulties are large when it comes to asylum and immigration issues. I certainly sympathise with the Government's task of trying to achieve a fair and efficient asylum system in the present context. However, like many of your Lordships, I have grave reservations about a single-tier appeal system, despite the qualifications now built into the Bill and the previous assurances of the Government. Therefore, I was extremely glad to hear the noble and learned Lord the Lord Chancellor refer in his opening speech to the need for the necessary judicial oversight. That was very good to hear.
I was not quite sure whether there was a slip of the tongue or whether I misheard the noble and learned Lord the Lord Chancellor. I thought that I heard the phrase, "oversight by the administrative court", when

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I was expecting the phrase, "oversight of the administrative court". If we are referring to the necessary judicial oversight, we are referring to oversight over an administrative court, not by the court itself.
At the Report stage in the other place, the Parliamentary Under-Secretary of State for Constitutional Affairs stated:
"It is vital to have early finality".—[Official Report, Commons, 1/3/04; col. 696.]
He used the word "finality" three times in a short speech. In his opening statement, the noble and learned Lord the Lord Chancellor used the phrase "speed and finality". Indeed, it is important to obtain a clear, certain and, above all, correct decision as soon as is practical. Inordinate delay helps no one, least of all the asylum seeker. But there is a human tendency, not confined to the legal process in asylum cases, to go for early finality at the expense of other important considerations.
There are many occasions in life when we would just like to "sort it all out" or resolve some issue. We may feel frustrated and impatient. But, more important than early finality is the correctness of the decision. The desire for early finality cannot be allowed to bludgeon the imperative to arrive at a just decision. In cases that are confused, which many of them are, where it may be difficult to get at the facts, it may take more time and procedures to double-check decisions already made than we would like in an ideal world. But this is not an ideal world. Where there is the possibility of human error, time, however reluctantly, must be allowed.
The Government say that those making an appeal will have the benefit of legal advice and representation, but, as we now know, that applies to only five hours of work, except for exceptional cases. I shall not stress that point because I know that noble Lords more experienced than I will emphasise it. Clearly, that is totally inadequate in cases which are very often complex and difficult to represent.
Many noble Lords have pointed out that the proposed one-tier appeal system, with no possibility of judicial review or reference to a High Court, would be unique in our legal system. The Government have argued that in other fields of law, there is no desire on the part of appellants to delay matters. They want a decision as speedily as possible. In the case of asylum seekers, it has been suggested that there is a vested interest in delaying matters as long as possible, spinning things out through a whole succession of appeals. Undoubtedly, that does sometimes happen. However, the fact that some people are motivated in this way is not, I would suggest, enough to make a fundamental change to the very basis of English law. As I have already emphasised, speed, though important, is subservient to the overriding imperative to achieve a correct—that is, a just—decision.
If getting a right decision is the paramount obligation, we have to note the grave concerns expressed by a number of policy bodies about the
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quality of decision-making in the first instance. For example, the Select Committee on Home Affairs in its recent report commented that:
"The real flaws in the system appear to be at the state of initial decision-making, not that of appeal".
It went on to recommend that the implementation of a new asylum appeals system should be contingent on a significant improvement in initial decision-making having been demonstrated.
A similar point was made in the report of the Constitutional Affairs Committee. Together with this, the poor quality of legal advice and representation already noted—which again affects the quality of first stage decisions—is a concern. The Churches in Reading and the Diocese of Oxford believe that this has led to a number of incorrect and unjust decisions.
On the Government's figures, of the 33,000 appeals to the Immigration Appeal Tribunal between October 2002 and September 2003, 2,000 were allowed. The figures are not always easy to evaluate because they depend on what year we are talking about—not everyone is talking about the same year—and at what level the appeal is made. Certainly other bodies put the rate of successful appeal much higher than the Government. For example, it has been argued that of the one-third granted permission to appeal and heard by the IAT, 58.8 per cent are either allowed outright by the tribunal, or else remitted back to an adjudicator for a fresh hearing. Even on the Government's figures, where 2,000 were allowed, we are talking about a significant number of people—people for whom a correct decision may be a matter of life or death.
For these reasons, I share the reservations of other noble Lords about the Bill as it now stands, particularly about Clause 14, which creates something quite unprecedented in our legal system. Even if the first stage of decision-making is improved as the Government intend, there will be a need for an appeal system which is independent of both the initial decision-making process and the initial appeal system. A one-tier system, even when staffed by experienced judges, will still be reviewing its own decisions, and that pertains in no other area of our legal system. I was therefore very grateful to hear what the noble and learned Lord the Lord Chancellor said in his opening statement. Obviously we will need to look very carefully at the Government's amendment when it comes before this House again in order to ascertain whether it really builds in that extra safeguard for which many of us are looking.
5.43 p.m.
Lord Clinton-Davis: My Lords, I am delighted to follow the right reverend Prelate the Bishop of Oxford, and I adopt many of the points which he has made.
In a matter of this overall importance, widespread consultation with all who have something worthwhile to contribute—some expertise—is absolutely essential. Yet there has been no consultation at all with the Law Society. I do not think there has been any consultation with the Bar Council either. Yet both have numbers of practitioners who play a vital part in

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this whole apparatus. Have the Government any intention, even now, to repair that omission? After all, there is no reason for any disgruntlement on this score.
We know that many of these organisations have expressed their profound concern about various concepts advanced by this Bill, particularly on the question of ouster provisions, the role of the High Court, and the restriction of the right of appeal. This idea of removing a challenge to the proposed asylum and immigration tribunal by virtue of judicial review should be abandoned by the Government.
Why, these organisations ask, do we have so many immigration appeals in such a relatively short time? That question was raised by the noble Lord, Lord McNally, today. Which measures in the past have been found to be inadequate to justify this stance?
Despite these shortcomings, the claim made by the Government—that the number of asylum applications has markedly diminished—is wholly to be welcomed. There has been a substantial reduction in the number of cases waiting for initial decisions and new cases are largely decided within two months. On the other hand, the Government have pursued with vigour up to now the measures contained in this Bill. In consequence, some serious injustices could have resulted. I am pleased to say that the Government have had second thoughts, particularly about Clause 14.
I now turn to that clause. It is a pity that the Home Secretary was not more amenable in another place when this issue was decided. Not only was he not amenable, he was distinctly hostile. I am delighted that, on second thought, the Government are going to entertain some amendments—about which the House of Lords is likely to be very concerned. We will look at those amendments very carefully. However, I assume there has been no consultation at all with regard to that point. I hope that the Government will put that issue right because, as I said before, consultation is absolutely crucial with people who know something about immigration.
In my respectful submission, as drafted, Clause 14 should never have seen the light of day. Yet it survived all the House of Commons's surveillance in the Bill's various stages. This ouster clause has, in fact, been heavily criticised by the Constitutional Affairs Committee, the Bar Council, the Law Society and many others with specialised knowledge of this issue.
What was envisaged—the single-tier asylum and immigration tribunal—was designed to take over the role of the asylum and immigration system, with the High Court and Court of Appeal no longer carrying out any oversight of the tribunal. It was alleged that there is abuse and delay in the present system of appeals. Is that right?
There probably is some delay, we have heard it said today. But my noble and learned friend the Lord Chancellor has an obligation to spell that out. It is no good making allegations—he has to provide the House with facts. He has not done that. If on the other hand I am right, we have to be guided by what has happened in the vast majority of situations. I am not sure
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whether I am right or wrong about this, but we have to ask ourselves what the statistics indicate. I submit that, on that basis, the Government have misled themselves.
In the House of Commons, the Home Secretary argued that only a tiny minority—he said about 3 per cent—of appeals succeeded. What he overlooked was that appeals to the Immigration Appeal Tribunal required permission to be granted in the first place. Of those, 11 per cent succeeded and 48 per cent were remitted for a re-hearing. It has been said before, but in the year between 1 October 2002 and 30 September 2003, the Immigration Appeal Tribunal allowed 639 appeals and dismissed 1,722. A small number were withdrawn. Thus there was a success rate of as much as 23 per cent, although the Home Secretary asserted that it was only 3 per cent. He was entirely wrong about that point, which is absolutely essential and goes to the heart of the whole matter.
The situation affecting appeals was amended by the Nationality, Immigration and Asylum Act 2002. Where permission to appeal was not given, there could be a statutory review. Because it was a paper-only review, it was very swift, as was said by the noble and learned Lord the Lord Chief Justice. Why on earth is it now alleged by the Government that that procedure has failed?
The real trouble, which I think that the Government now admit, is that the officials concerned with the initial decision-making have not made a very good fist of it. Indeed, that is the view of the Select Committee on Home Affairs. I therefore hope that the Government, in the light of experience, will not be averse to changing the situation. Other immigration Bills have been put before the House, but if this Bill demonstrates that it is in some material respects wanting, it is particularly important that the Government assert the confidence to change the system.
5.53 p.m.
Lord Mackay of Clashfern: My Lords, it is a pleasure to follow the noble Lord, Lord Clinton-Davis. I have had the experience of his wisdom over many years in a number of different capacities. It is of some interest that in the Times this morning there was a report of an appeal by the Home Office, under the statutory provisions that it set up, that failed on the grounds that the Home Office did not have a basis for its appeal in the statutory jurisdiction. I think that I am right in saying that the majority of the judges who decided the case suggested that the Home Office might have a remedy by judicial review.
When I put my name down to speak in the debate, I noticed that, on the already tight form, the name of the noble and learned Lord, Lord Irvine of Lairg, was present and that the debate was to be opened by the noble Baroness, Lady Scotland. That was on Wednesday last week, so events have moved somewhat in a direction that I very much appreciate.
It is important to notice what has happened. The Government have decided to put forward a Bill that provides that no court should have any supervisory or

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other jurisdiction, whether statutory or inherent, in relation to the tribunal. Not content with that, they went on to explain what the courts could not do. Proposed new Section 108A(3) of the Nationality, Immigration and Asylum Act is the vital provision, and reads:
"Subsections (1) and (2) …prevent a court, in particular, from entertaining proceedings to determine whether a purported determination, decision or action of the Tribunal was a nullity by reason of … lack of jurisdiction, … irregularity, … error of law, … breach of natural justice, or … any other matter".
Those who are familiar with that branch of the law will recognise those words as coming from a speech of the late Lord Reid in the case of Anisminic. Those were the grounds on which he held that the decision of the Foreign Compensation Commission in that case was not protected by the statutory ouster, which was elaborate, because the statutory ouster purported to protect determinations of the commission. However broad that protection is, if there is no true determination of the commission, there is nothing to protect. Alert to that problem, those who have put the Bill together sought to avoid it.
In my submission, that is a serious affront to the rule of law. Let me take a breach of natural justice. What the House of Commons has been asked to affirm by the Government—and has affirmed —is that the High Court should be prevented from intervening, even where there is a clear breach of natural justice on the part of the tribunal. But for that, the present law would of course allow the High Court to intervene to correct that breach of natural justice. That is what is required to be affirmed by each House of Parliament passing the Bill—that the High Court is precluded from intervening to put right a clear breach of natural justice by a tribunal. In my submission, that strikes right at the very heart of the rule of law. Anyone who read the Bill should have appreciated that.
I therefore find it disturbing, to say the least, that the Government thought it right to invite the House of Commons to pass the Bill in that form. As a footnote, I should say that when I first heard of the proposals for the abolition of the Office of Lord Chancellor and the setting-up of the Supreme Court, I was somewhat perturbed. When I read this provision in this Bill, I was much more perturbed, because I saw that the Government were apparently willing to subvert the rule of law in relation to people who might well be at risk of their lives from persecution in a foreign land.
In an article in one of what I should perhaps call the broadsheet newspapers, someone wrote suggesting that because asylum seekers and immigrants are not citizens of our country they should not be considered as requiring justice. I am proud to say that our courts over the years have not distinguished between foreigners and others in giving people proper justice, whatever their origins might be. I am proud to think that a very distinguished Scottish Lord Chief Justice enunciated that rule with great vigour.
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The noble and learned Lord the Lord Chancellor has now undertaken to table an amendment to allow a statutory appeal, I think, to the administrative court— that is, to the judges of the High Court who specialise in dealing with administrative matters. We used to call it the Crown Court list; now it is called the administrative court because it deals with matters that arise in administrative law. The right reverend Prelate the Bishop of Oxford may have assumed that, when the noble and learned Lord spoke of the administrative court, he was speaking of the tribunal under the Bill, but I do not think so. Rather, he was thinking of a review by the judges of the High Court who specialise in such matters under the name of the administrative court. I am assuming that that is going to be provided, and no doubt the experiences of the Home Office this morning will perhaps instruct its view as to the nature of the appeal to be provided. Obviously, time limits can be put into a statutory procedure as well as any other safeguards, consistent with justice, that should exist.
In my submission, this request to the House of Commons to pass this Bill was a very serious incursion into the rule of law, and I am glad that your Lordships' House—for all its shortcomings and things that have been said about its procedures—is going to have an opportunity to put this right with, I understand, the full approval of Her Majesty's Government.
So far as the previous history of these matters is concerned, the noble Lord, Lord Clinton-Davis, asked my noble friend about that and, as a member of the government who were dealing with these matters before the present administration took over, I fully admit that it was an extremely difficult jurisdiction. We tried to improve it by bringing judicial officers into the appeal tribunal, so I am very conscious of the difficulty of the situation. One must be quite careful in a difficult situation, however, that one does not increase the difficulties and destroy justice in the mean time.
6.1 p.m.
Lord Dholakia: My Lords, it is almost an impossible task to follow the noble and learned Lord, Lord Mackay of Clashfern; let me try a different angle.
We have had five such parliamentary Bills in the last 10 years, and as was predicted on all previous occasions, this will not be the last one. We are told that these are Government proposals on asylum reforms. They are some of the most draconian measures under the name of reforms. In essence, we are dealing with a system of justice the likes of which we have never seen before. We are creating a new offence of asylum seekers arriving here without proper documentation, and we are creating a class of people in our welfare services who will cease to be eligible for support. It is not just the asylum seekers but their families who will be ineligible for support and assistance.
A country has the right to determine its immigration policy, and the United Kingdom is no exception. But it has always been apparent that our policies have been based on xenophobia—the word was rightly used by

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my noble friend Lord McNally. The events of the past few weeks have demonstrated total inconsistencies in the way immigration matters are handled. It is no good Ministers denying responsibility. The buck must stop with them. I have no problem with whistle-blowers. They perform important roles in exposing a highly bureaucratic and secretive government. Equally, I do not think that the Minister needs to apologise for the way cases which fall within our obligations are dealt with speedily. I am delighted that my party did not offer cheap publicity to the character who wrote to the BBC advocating a policy of nuclear attacks against Muslim countries. The question we should be asking is how, despite a policy of equality and diversity, a person of such extreme views came to be employed by the Home Office. Do we genuinely believe that he could take rational decisions on applicants seeking asylum in this country? This xenophobic attitude is well documented in the way we have historically handled immigration and asylum issues. We have now turned full circle from the days when the Labour Party set out its suspicion of foreigners.
Let me refer to 1951—that is, 53 years ago—when immigration from the colonies started. The then Labour government set up an interdepartmental committee to consider the possibility of legislative and administrative methods to deal with immigration. At that time, so preoccupied were the Ministers with the numbers entering the UK that the welfare and integration of newcomers was not even discussed. In fact, its key policy recommendation was:
"Any solution depending on an apparent or concealed colour test would be so invidious as to be impossible for adoption. Never the less it has to be recognised that the use of any powers taken to restrict the free entry of British subjects to this country would, as a general rule, be more or less confined to coloured persons".
Such attitudes have not only shaped our immigration policies, but have also done much harm in the way we have conducted our race relations policies. In the 1964 general election, we had Peter Griffiths, the then Conservative victor in Smethwick. He captured his seat from Patrick Gordon Walker by using race and immigration in the most emotive way. He was called the parliamentary leper by Harold Wilson, and yet it was the Labour Party which, within two years of coming to power, actually deprived British passport holders of colour from East Africa of their right to enter the United Kingdom.
We then had, in 1968, Enoch Powell making the most divisive "rivers of blood" speech. Much water has flown since then and, to the credit of the British people, we have a culturally diverse society which has contributed so much to our prosperity. But now, more than 50 years after the first wave of immigration from the Commonwealth, the Home Secretary is actually questioning the benefits of diversity. Last week, he told a think-tank in America that there was powerful evidence that diversity is linked to falling standards in society and suggested that immigration can be damaging. He went on to say that the evidence that diversity correlates with a decline in social capital is sufficiently powerful that we need to address it.
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These comments come at a time when the majority of the ethnic population is British-born, and their home is more likely to be Burnley, Blackburn or Brixton. It seems a strange way of conducting a debate about immigration and asylum issues. Immigration, despite the infrequent blips of communal incidents, has been a success story and we should be proud of it. It does worry me that, at the highest political level, we have failed to single out the benefits and have concentrated on the negative aspects of our race and immigration policy.
It is therefore no surprise to many of us that this damaging piece of legislation before us will do more harm than good. Look at Clause 2. This will make it an offence, punishable by imprisonment, for any non-British or EEA national arriving at a UK port, not to have a passport. I accept that it will be a defence for that person to provide a reasonable excuse to the immigration officer. Almost all practitioners have told us that the threshold set when defining "reasonable" has been high, and with the added proviso regarding the deliberate disposal of a passport, there will be, effectively, no defence. In reality, it is likely to mean that many asylum seekers would be committing a criminal offence on entry to the UK, punishable by a prison sentence of up to two years.
I need to ask the Minster to explain if Clauses 2 and 3 contravene Article 31 of the Geneva Convention, which forbids a signatory country from prosecuting, on account of their illegal entry, those seeking refugee status. Successive governments have introduced measures which make it impossible for asylum seekers to enter the United Kingdom. The UN convention is rendered meaningless if a person in search of protection and assistance is unable to reach countries which are party to it.
We are now turning on those who have already sought shelter here. We are the architects of our own failings in the way we have dealt with immigration. It has taken us 50 years to distinguish between skilled primary migration, economic migration and asylum seekers. At a time when we had a manageable list of applicants, we removed almost 1,500 civil servants from the immigration and nationality division. Surely there cannot be any surprise that the list became unmanageable?
I have no doubt that if we had a properly managed system there would be only genuine asylum seekers. We would not need accommodation centres, detention centres or policies that take away their basic rights under the Geneva Convention. An effective policy on skilled managed migration and one about employment or economic migrants would establish different routes of admission to the UK, without damaging those who are genuinely victims of torture and persecution.
This is why it is necessary—and there is public support for it—that a system should be designed that helps refugees and deals effectively with those who have been rejected. We have numerous concerns about the Bill and, as my noble friend Lord McNally has pointed out we shall certainly deal with them in Committee.

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Let me start with a quote from the Lord Chief Justice, the noble and learned Lord, Lord Woolf. I know that the Minister has now indicated that there will be some concession, but the Lord Chief Justice was absolutely right when he said:
"Immigration and asylum involve basic human rights. What areas of government decision making would be next to be removed from the scrutiny of the courts? What is the use of the courts, if you cannot access them?".
Let me give an analogy: we are the envy of the world in which our justice system operates. The lives of so many decent people, particularly in the third world, have been saved because their authorities follow our legal process. It beggars belief what would be the reaction of the British Government if dictators curtailed the judicial process as we seem to have done, or are thinking of doing, regarding the right of appeal.
In a democracy no one is above the law, not even the tribunals. Vernon Bogdanor, Professor of Government at Oxford, is right when he says:
"The clause … is not to be condemned merely because it will promote inefficiency. It is a constitutional outrage, and almost unprecedented in peacetime".
What surprises me is how long it took the Government to suggest improvement.
At the root of my argument is the concern expressed by many practitioners about the poor quality of initial decision-making by the Home Office. If the process here were effective, the number of successful appeals at adjudication stage would be reduced.
When I ask for information on specific cases, I am denied it by the immigration Minister at the Home Office. Recently, I sought information about a detainee at his request. This is the reply that I received from the Minister, Beverley Hughes:
"I hope that you will understand that the Home Office records on individuals have to be treated as confidential. I appreciate your concern but as you are not acting for Mr. X, nor are his constituency Member of Parliament, I regret that I cannot give you any information regarding this case".
Obviously, I am left to ask the Parliamentary Ombudsman whether the Minister is justified in withholding information from a Member of your Lordships' House. particularly when that information was requested by the person who was to be deported.
The point at issue is that the Government have imposed cuts in legal aid for immigration and asylum cases. Five hours for asylum case advice and three hours for immigration case advice will mean that in many cases applicants may be unrepresented. They are most vulnerable at a time when legal representation could make all the difference. Surely a right of appeal is vital in such cases.
There has been much adverse publicity relating to Clause 8, which seeks to deny financial support and accommodation, currently provided by NASS, to the families of asylum seekers whose appeals have been dismissed. No matter how the Government try to disguise the implication, it is clear that in order for a local authority to maintain its obligation to the welfare of children in such families, they may have to be placed into the care of that authority.
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There is ample evidence to confirm that, even if an appeal has been dismissed, there are applicants who fear to return or cannot be returned. We now have a government that will ensure that families will be forced to live in poverty until they depart. Let me remind the Government that there are families who are prepared to face prosecution in their own homeland but the only reason that they have sought asylum here is to protect their children from harm.
More than anything else, I want the Government to lead on such issues, and not to follow public opinion shaped by tabloids. So far, I have seen very little evidence of that.
6.13 p.m.
Lord Donaldson of Lymington: My Lords, many people, both within and outside this House, have condemned the ouster provisions of Clause 14 as a constitutional outrage and an affront to the rule of law. Suffice it to say that I wholeheartedly agree. Fortunately, it appears that the Government have now had second thoughts. We need not, therefore, stop to consider, as otherwise we would have done, what would and should have been the response of the judiciary had the clause been law, interesting and important though that would have been.
What is not about to go away is the problem of how to deal fairly and expeditiously with the vast numbers of asylum and immigration applications. In seeking a solution, it is necessary to identify at which level things are going wrong. Government Ministers, in particular the Home Secretary, point a finger at the courts. Thus, David Blunkett, at Second Reading in the other place, said that Clause 14,
"will cut out the terrible situation in which, despite the adjudication system, which weeds out initial decisions that are doubtful, we end up with months and sometimes years of prevarication before action can be taken".
He said that Clause 14 would ensure that,
"we do not end up with judicial review after judicial review on claims that are not valid".—[Official Report, Commons, 17/12/03; col. 1603.]
The Home Secretary seems blithely to ignore Section 101 of the 2002 Act, which requires would-be asylum seekers to seek leave to appeal from the Immigration Appeal Tribunal if they want to appeal a decision by an adjudicator. Since 9 June last year, if that leave is refused by the tribunal, asylum seekers can apply for a review of the refusal by the High Court. That is a paper application dealt with by a single High Court judge of the Administrative Court.
Between 9 June 2003 and 27 February this year, the High Court dealt with 552 such applications. The average delay between the time when the application was received by the High Court and the time when it was disposed of was 14 days—more accurately, it was 13.9, but I am prepared to take that as being 14. That is something of which the High Court can justly be proud. What is disturbing is that 20 per cent of those applications succeeded. In other words, the Immigration Appeal Tribunal should not have refused leave in more than 100 cases.

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I do not understand the Home Secretary's reference to,
"judicial review after judicial review'",
unless, when a decision was quashed by the High Court, the authority came back with an equally defective decision. It happened sometimes, but very rarely, when I was concerned with the work of the administrative court.
The alternative, which is slightly more charitable, is that the delays were such that, by the time the tribunal had come to reconsider the matter in response to the order of the administrative court, things had changed out of all recognition and a new situation had arisen which itself called for a review. I do not know, but I doubt whether we shall ever find out. Still less do I understand the Home Secretary's reference to,
"months and sometimes years of prevarication",
unless he is speaking of delays by Home Office officials in reaching an initial "immigration decision" and/or delays in appeals to adjudicators, and/or delays in appeals from adjudicators to the Immigration Appeal Tribunal. Unfortunately, the Home Office has not given us any figures for such delays.
The caseload may be declining—I have certainly read that the Government make that claim but it must still be enormous. Between October 2002 and September 2003 an unknown number of immigration decisions were made, but no fewer than 70,000 of them were the subject of appeals to adjudicators. Of that 70,000, no fewer than 11,000 succeeded. That left some 60,000, of which half—33,000, to be exact—sought appeal to the Immigration Appeal Tribunal, where 2,000 were successful. If the adjudicator level of appeal were eliminated, I very much doubt whether the Immigration Appeal Tribunal could cope. I am sure that the administrative court would be under considerable strain because so many would be seeking judicial review, and, on previous figures, a great many of them would be right. There would also be the intriguing possibility that the Home Office would seek review on so many occasions as to become itself a vexatious litigant, but we must wait and see how that turns out.
Surely the remedy lies, not in tampering with the levels of appeal, but in a determined effort by training and supervision to improve the poor standard of decision-making by Home Office officials. Coupled with that, the number of adjudicators and of judges of the Immigration Appeal Tribunal may need to be increased. Asylum seekers are likely always to regard delay in being deported as a desirable aim in itself. Only if, and when, it becomes apparent to them that appeals are dealt with so quickly that the effort is not worth it will the flood of appeals subside.
Finally, steps should be taken to curb the wholly unjustified enthusiasm of some lawyers for promoting proceedings which they should know cannot possibly succeed. They have a duty not to pander to their clients' desire for relief from the tribunals and the court and, above all, their clients' desire simply to achieve delay. 'To that end, I suggest very strongly—I suggested it much earlier, although not in this
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context—that the legal aid authorities should insist that in every case where proceedings recommended by counsel fail, certainly those strongly recommended, counsel should be required to give a free written opinion explaining why the proceedings failed. That might well be a salutary curb on such enthusiasm, which in some cases—I regret to say—is fuelled by the desire to earn fees in the process.
Whatever is the way forward, it is certainly not to be found in Clause 14. I am delighted to hear that Clause 14 is to be consigned to the bin rather than being reformed, because I doubt whether it is capable of reform.
6.21 p.m.
Lord Newton of Braintree: My Lords, it will not surprise anybody looking at the list or hearing the speeches that have been made since this debate started that a mere non-lawyer rises with some diffidence to address the House against the background of what has already been said. On the other hand it is quite important, given some of the controversy that has occurred and the reports that we have seen in the press, that it should be made reasonably clear that this is not just a spat between lawyers or a protection of the interests of lawyers, however grand. There are real issues for members of the public, and not least for those who will be affected by the operation of these asylum and immigration provisions.
My rationale for taking part in the debate is in part that I currently hold the office of chairman of the Council on Tribunals. My predecessor was the noble and learned Lord, Lord Archer of Sandwell, so I am relatively rare in being a non-lawyer in that capacity. The council was set up by the Tribunals and Inquiries Act 1958 to keep under review the constitution and working of a wide range of tribunals. We now supervise some 80 different kinds of tribunals, including the adjudicators and the Immigration Appeal Tribunal. It is intended that the new tribunal will be under the council's supervision, and therefore my remarks are principally directed to the proposals under Clause 14.
I suspect that, like many others taking part in this debate, the remarks that I originally intended will be somewhat truncated, partly by the Government Chief Whip's injunctions about the time that we were supposed to take if the House was to rise at a respectable hour, and partly because I am also among those whose principal concern was the ouster provisions of Clause 14, which to some extent at least—though we cannot yet be quite clear to what extent—have been disarmed in advance by the noble and learned Lord the Lord Chancellor and Secretary of State. He recognised very wisely that that clause—or some aspects of it had trouble written all over it.
Without going on about it at length, I should also make the observation that when the Council on Tribunals responded to the very short consultation that preceded the Bill's introduction, it made it clear that it was not enthusiastic about the move to a single tier of appeal. It is not on that point that I propose to

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focus most of my brief remarks this afternoon, but there did seem some irony that this proposal came forward not very long after the Leggatt report, Tribunals for Users, in 2001, which recommended that there should be a two tier system for tribunals generally, with the observation that:
"the appeal body needs to give genuine coherence to the development of the law, and promote consistency effectively at its own level and in the first tier tribunals".
In that sentence alone lie the reasons for our concern about some aspects of the proposal.
I do not want to make a meal of that this afternoon, merely to say that obviously any difficulties arising from the fact that this was now to be a single tier would be compounded if access to the higher courts were restricted in the way that appeared to be proposed by what was—when this Bill was published—the most comprehensive ouster clause ever devised.
I observe in passing that there was again some irony for the Council on Tribunals, since the Tribunals and Inquiries Act 1958—under which it was set up—provided an avenue of appeal from tribunals to the courts on points of law in cases where none had existed before. It rendered ineffective all the then subsisting statutory provisions purporting to oust the courts' supervisory jurisdiction. Against that historic background—and the reasons for the changes then made—it would be no surprise to anybody that the ouster clause in the Bill, as it stood, caused the Council on Tribunals serious concern because of its implications for tribunals generally. I made that clear when I was invited to give evidence to the Constitutional Affairs Committee in January. We submitted a memorandum to the committee setting out our concerns, and I can do no more this afternoon than endorse the committee's observations in that regard.
We need to be clear that the major practical issue is whether the provisions in Clause 14 for review of tribunal decisions by the tribunal itself, and for references of points of law by the president of the tribunal to the appellate court, provide adequate protection against incorrect decisions. I can only say, without elaborating in view of the time available, that in the council's view they do not.
I echo words that have already been expressed by others in this debate. All this might matter less if the issues at stake for individuals were not so serious and if the quality of initial decision making in the Home Office were better. But, at present, all too often a case receives full and proper consideration only when it comes before an adjudicator on appeal. Even then, problems frequently arise through poor preparation and the absence of a Home Office presenting officer. A further consideration is the recent restriction of publicly funded advice, assistance and representation in immigration and asylum cases. All these factors make it all the more important that there should be an adequate mechanism for appeal decisions to be reviewed.
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At the council's request, some little time ago I wrote on its behalf to the noble and learned Lord the Lord Chancellor and Secretary of State, to express its continuing concern about Clause 14 and particularly the ouster provision. I hope that the council's views played some part—possibly not quite as much as the views of the noble and learned Lord the Lord Chief Justice and others—in what the Minister said at the outset of the debate this afternoon. I very much welcome the indicated concession. Like everybody else, I shall study it with care, but I genuinely hope that it will provide a real answer to the concerns which I echo, building on what was said by noble and learned judges and others earlier in the debate.
6.28 p.m.
Lord Avebury: My Lords, what the noble Lord, Lord Newton of Braintree, said about the Leggatt report is extremely important. We should consider carefully not just Clause 14 but also whether we are now prepared to scrap the two tier system which has stood the test of time and is under severe criticism now only because, as the noble and learned Lord the Lord Chancellor said at the beginning of his remarks, there are long delays and people are spinning out the process. But that is in the context of 2003 and we are changing very rapidly as a result of steps already taken: non-suspensive appeals, juxtaposed controls, new visa regimes, the forthcoming enlargement of the European Union—which removes many of the countries from the list of those that provide asylum seekers—introduction of fingerprinting in Sri Lanka and the extension of that process to the countries of east Africa in 2004. So, there will be, irrespective of anything that we do in the Bill, a substantial fall in numbers—all the way through the process, from initial applications to appeals to the adjudicator and then, if we did nothing, appeals from the adjudicator to the tribunals.
The only thing that does not seem to be going down—I agree with the noble and learned Lord on this—is the number of undocumented arrivals, which remains stubbornly in one place, in spite of the successes that we have achieved on Eurostar. At Dover and Heathrow, particularly Terminal 2, it is still a problem. As the noble and learned Lord the Lord Chancellor said, the Government are considering proposals for carriers to copy the documentation held by passengers at the time of boarding, so that the identity of a person can be established by comparing his photograph in the document copy with the undocumented passenger himself, when he arrives. Presumably, that would be done initially at selected pilot departure points, so that we could see how difficult it is to match up the information. I draw to the Minister's attention a letter that we have received from British Airways urging that the proposal be confined initially to carefully targeted and specific routes, so that we know how it works and can minimise the burdens that it imposes on the carriers.
It is true that the number of appeals to adjudicators went up between 2002 and 2003, as has been mentioned, but that is because they were reducing the

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backlog. In the last three months of 2003, numbers were beginning to fall, and that trend is also certain to continue in 2004. In the absence of the Bill, that would mean fewer adjudicators. I hope that the opportunity will be taken to improve the quality of adjudicators, as well as the quality of first decisions. Neither is satisfactory, considering the success rate of appeals at both stages. That reduction would also feed through to the tribunal, if the present regime were not going to be altered by the Bill. The Government accept that, of the one-third of applicants who are given leave to appeal to the tribunal—they are only rough estimates, because the cases are not tracked through the system— three out of five are either allowed outright or remitted to an adjudicator for a fresh hearing.
The House is of one mind in wanting to see decisions on applications made as quickly as possible. However, if the initial decisions were more reliable, as has been said, many people would accept the adjudicator's decision, fewer applicants would get leave to appeal to the tribunal, and the upheaval in the system caused by the Bill would be unnecessary for the sake of a small proportion of important cases in which permission would still be given. In another place, Mr David Lammy told the Chairman of Standing Committee B that, of 78,000 adjudicated determinations before September 2003, 33,000 were appealed and, of those, 11,000 were granted. Miss Kate Eshun, a former adjudicator and now vice-president of the tribunal, told the Select Committee on Constitutional Affairs that the level of appeals rose dramatically because,
"there were cases in which the decision written by the Home Office was very poor and, therefore, without the aid of the Home Office presenting officer at the hearing, the adjudicator was more or less left in the dark".
The evidence given by Sir Duncan Ouseley to the Select Committee on Constitutional Affairs in another place is also of some importance. He said that one-third of those who applied for leave to appeal to the tribunal and to whom it was granted cannot be said to have abused the system. Either they have an arguable point, or they have, at least, been told by their legal advisers that they have an arguable point. For the two-thirds who are refused, he said, the time taken to process their cases is a measure of the delay created by the existence of a second tier, which, as the noble Lord, Lord Newton of Braintree, explained, is necessary in every other context.
Sir Duncan Ouseley also said that applications for statutory review of refusal of leave to appeal to the tribunal under Section 101 of the Nationality, Immigration and Asylum Act 2002, which was mentioned by the noble and learned Lord, Lord Donaldson of Lymington, were being made at the rate of 35 a week and were being turned round within a week or so by the administrative courts. That alternative system, which the Government promoted enthusiastically two years ago and has operated for less than a year, is being confined to the dustbin, along with the existing tribunal, although it is working well.
Since adjudicators have been reducing the backlog, cases are still coming to the tribunal at the rate of 1,000 a month. At the end of February, there was a backlog
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of 5,000 cases. That is causing delays. However, in the steady state, the tribunal would get 5,000 cases a year, a number that it can easily accommodate. From that analysis, it is clear that, with regard to the speed of decision making and the cost of the process, 2003 would not be a useful guide to future policy. No sufficient test has been done on the system in place, with the improvements that are acknowledged to be necessary by all concerned.
Before I close, I shall tell your Lordships about the case of a person who appealed through judicial review, Jacqueline Konan and her little girl, Thelma. The case was heard before Mr Justice Collins on 21 January. The judge said:
"It is a cautionary tale since it shows that … officials"—
the Home Office officials—
"and the appellate authorities can be wrong and that there is a need for judicial assessment … If the possibility of judicial review had not existed the claimants would wrongly have been returned to the Ivory Coast".
The judge described the Home Office's refusal to release Jacqueline and her little girl, Thelma, as "inexplicable". I certainly found it so, and I had written on 10 occasions to the Minister, Beverley Hughes, or to the noble Lord, Lord Filkin, as well as to officials and adjudicators, up to the point at which the mother and daughter were finally released on bail, after 190 days in custody.
I put it to the Minister on 5 November that there were lessons to be learnt from the case, and I outlined what some of them were. I added that I hoped that she would not adopt the tactic so often adopted by the Home Office when faced with awkward problems and delay her response for as long as possible. By January, the Minister had not replied, so I wrote to her again, calling her attention to Mr Justice Collins's decision that Jacqueline and Thelma's detention had been unlawful and that Ministers' continued refusal to consider release was manifestly contrary to public policy.
Things can go so badly wrong, even when the case has been dealt with by an adjudicator and has been the subject of extensive correspondence with Ministers. By scrapping judicial review without, at least, replacing it with as effective an alternative, Parliament would make it inevitable that, sooner or later, many other Jacquelines who have been failed by the system were sent back to persecution and even death, because that right had been withdrawn.
6.38 p.m.
Lord Parekh: My Lords, I see the need for the Bill and welcome many parts of it, but I am uneasy about several other parts. I shall concentrate briefly on three disturbing features of the Bill.
Many noble Lords have spoken eloquently about the unified appeal system and the ouster of judicial review that is proposed in the Bill. I share their unease. We must all acknowledge the problems involved with endless appeals, with all their cost and delay, and we can also concede readily that a system of endless appeals in which we cannot get rid of those who have

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failed could easily make Britain a soft option and attract or invite dubious asylum applications. However, I do not think that the unified appeal system proposed here is the answer. As many noble Lords have said, it violates the rule of law. It also violates the principles of natural justice. If we consider the past few years, we will see that the system of judicial review has often been the only hope for securing justice for a large number of people. Although I cannot calculate it, I can imagine that many lives have been saved, simply because the system was in operation.
In the current system, one in five decisions is overturned at the initial decision stage—22 per cent. This figure rises to as high as one in three when Somalis and Sudanese are involved. Even when an appeal is made and the decision is taken by the Immigration Appeal Tribunal, 15 per cent of cases are either overturned or referred back by the courts. All this goes to show that judicial review has been the only guarantee of justice for victims of persecution.
I know that the Government intend to deal with this by improving the quality of decision making. I welcome that, especially the efforts being made, for example, to consult the United Nations High Commissioner for Refugees, and to introduce training input by organisations with specialist skills and so on. I am sure that all this will improve the quality of decision making. I also welcome the formation of the Country Information Advisory Panel, on which I have been invited to serve.
But that only goes to show that the quality of decision making will improve. It does not guarantee that it will be perfect or that it will not be open either to abuse or to mistakes. Why not, therefore, retain the system of judicial review and see what happens after a couple of years? If the new system the Government want to put in place works well—one with improved decision-making and the input of the Country Information Advisory Panel—we shall be able to decide after a couple of years whether many appeals have been made against its decisions and thus whether it has succeeded. At that point we might take a second look at the process of judicial review. Until then, I see the case for it as inviolable.
I turn now to the proposal in the Bill to deny benefits to failed applicants. The hope here is that this will encourage them to depart voluntarily. I am afraid that I do not see the logic of this argument, or the ethics of it. As long as people are here, it is simply unworthy of us even to think in terms of denying them any form of maintenance. Although it may not be our intention to starve people into submission, this move will be seen as such by those outside and might have that kind of impact on the people involved. In any case, I am not entirely sure whether it has any chance of working. Children could be taken into care, which only makes them a problem. Devoid of parental support, children in care are not likely to do any better and therefore will become a problem for the Exchequer and the Government.
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I turn briefly to my third point. Time is moving on and I know that other noble Lords wish to speak. I am a little surprised that not much has been said about Clause 27, dealing with the fees which the Government want to increase. These fees relate to the application for a certificate of entitlement to the right of abode and an immigration employment document. The Government argue that fees could be charged considerably in excess of the administrative costs involved because the claimants, if successful, are likely to benefit from the successful application.
I know that the Home Secretary has promised to consult before laying the order before Parliament. I should like him to think very carefully about this measure. It would affect nearly half a million people. If successful, those people will get jobs and benefit us through the taxation system, therefore I do not see why they should be made to pay additional costs.
I also want the Government to appreciate that we already benefit from a high number of trained immigrants. Doctors and IT specialists come to us fully trained. Recently I produced some figures showing that if we had to train the 5,000 odd doctors who come to us from the Indian sub-continent here, that would cost us somewhere in the region of £900 million. A doctor who comes here fully trained saves us around £225,000 in training costs. Multiply that by 5,000 and you get an astronomical figure for the contribution made by the poor people of the Indian sub-continent. Given that we derive all these invisible benefits, I cannot understand why we would want to take into account such benefits as people may gain in the future by trying to collect more money through increasing the fees on their applications.
I am also worried about the increased fees that foreign students have to pay in order to extend their visas to complete their courses. Although it has now become an established practice, reference is made to it in the Bill and so I feel entitled to talk about it. This is punitive. Already overseas students pay hefty tuition fees. Many come from poor and low-income families and have to save every penny in order to receive a decent education here. Experts have calculated how much higher education fees contribute to this country. It brings in something in the region of £7 billion a year. Students who study here also generate an enormous amount of goodwill when they go home, thus providing a valuable network. Good sense and generosity require us to resist the temptation to make a few thousand pounds either by increasing the fees that students have to pay or by increasing the fees to be paid by those applying for employment and so forth.
I end by making an appeal to the Government. As the noble Lord, Lord Dholakia, rightly pointed out, we should not allow ourselves to be panicked into taking decisions on a question of this magnitude. The number of asylum seekers is declining. Given that seeking asylum takes place largely as a consequence of political and economic instability in certain parts of the world, it is therefore not a permanent feature of the global landscape. Some asylum seekers do beat the system, but then who does not? Many of us have done so over the centuries, and those who colonise other

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countries have not refrained from doing so either. I want to suggest that while desperate people struggling to outsmart the system deserve to be restrained, they must also be approached with a certain measure of compassion. Our asylum policy must be firm but compassionate.
Increasingly, as Bill follows Bill and legislation follows legislation, we have concentrated on tightening up the system, making it even firmer, rather than showing a little compassion. Let us ask ourselves this. My noble and learned friend the Lord Chancellor has said that he is prepared to make concessions on the ousting of judicial review. But the question that puzzles me is this: how did the ouster of judicial review get there in the first instance, and why is it that those of us on the Labour side feel that we can even countenance a step of this kind? That is what worries me. If we are not very careful, the constant tightening of the screw and the constant sense of panic will easily coarsen our moral and even legal sensibility, trapping us into taking decisions of which we might be ashamed a few years from now.
6.47 p.m.
Earl Russell: My Lords, we are not usually in the habit of thinking about Aristotle and Jo Grimond in the same breath. But in the 1980s Jo Grimond made a very interesting remark—that governments tend to suffer from a legislative stammer. They keep on and on legislating about the same subject. At the time it was trade unions, then it was local government, then universities and now it is asylum. When governments do this, it usually means that they are trying to do something which cannot be done. Aristotle remarked that it is essential, in passing good law, for legislators to go home and be subject to the laws they have made. Not many people in this House have been asylum seekers. When we listen to those who have, we hear immediately a wave of comprehension that we do not get from many of the speeches here.
I think that asylum policy is failing because it is directed towards achieving something which is, first, not under the Government's—control that is, reducing the number of applications. The biggest single increase in applications in my time was caused by the break-up of Yugoslavia. I have no inhibitions about blaming Tony Blair, but I do not blame him for that. So the Government are trying to do something they cannot do, and which would not be desirable if they could do so.
The central assumption of the restrictionist case is that the fewer people we have coming in from outside, the better the race relations that will result. I happen to have the honour of being president of the Liberal Democrats in the London Borough of Brent, where we have more Uganda Asians than in Leicester.
The borough is, I think, just behind Newham as the greatest concentration of ethnic minorities in the country. What is vital about Brent is that it is not just two or three groups. It is a mixture of everything one can think of. At the end of a by-election, one surname usually sticks in one's memory. From Brent it is
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Ratnayake-Brederode, which is not merely cosmopolitan, but also a reminder of the days when Sri Lanka used to be a Dutch colony. I do not think reducing racial diversity is necessarily conducive to racial harmony.
I am delighted by what I hear about Clause 14, but since the compromise is not yet finished, it is necessary to say just a few words about it. If it had been successful, it would have had a claim to be regarded as the worst threat to the rule of law since Magna Carta. I know that plenty of other things can claim that; one could have a seminar on it. I say that of the clause, not because of the sharpness of its wolfish teeth, but because of the Jermyn Street smoothness of its sheep's clothing. I doubt whether 5 per cent of the population realise that there is a threat to the rule of law at the moment.
The device of making the arbitrary court the instrument of the rise of arbitrary power is, in its perverse way, nothing short of brilliant. As the noble and learned Lord, Lord Mackay of Clashfern, made clear by using Anisminic, it would also have the effect of bringing in an entirely positivist view of the law. It would cut us off from the wisdom of the laws of generations before Parliament, and from Glanville and Bracton. It would also cut us off from the 14th-century method of discovering the intention of Parliament by looking at the basic principles of the common law, from which a great deal of our present legislative thinking comes. That would be a very great loss, and all in order to avoid a delay, which—I agree with others who have spoken—emanates more from inside the Home Office than elsewhere.
For example, I once spent a large amount of time on the case raised by the noble Lord, Lord Alton of Liverpool, where the Home Office insisted that scars that the applicant claimed were the result of torture were in fact self-inflicted. Those scars were on his back. The Home Office fought that through several meetings with deputations of MPs. It is not in trouble for consumption of time.
On another occasion—a case discovered by Asylum Aid—an applicant was told by an adjudicator that his claim that he had been soaked in urine, beaten, stripped naked and locked in a cell by himself—all of which, he claimed, constituted torture—was so incredible that it deprived all the rest of his testimony of credibility. That seems to me to be a deliberate delay, and one for which I blame neither the applicant nor his lawyer.
The same goes for destruction of documents. From the same volume of Asylum Aid, Still No Reason At All, published to go with the previous Bill, the Home Office refused an application because the man came on his own passport and therefore, it said, could not possibly be in any danger. When the Home Office says all this stuff about destruction of documents, it knows better. I came to know quite well one person who came here from Pristina. She saw her house in flames, and she saw Serbs setting fire to it, but she could not prove that they had actually burnt her documents. Under

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this doctrine of burden of proof, she could not make her case stand. It is, I think, a mistaken use of burden of proof.
The total denial of support is something that, frankly, I am astonished that any civilised government use as an instrument of policy. If I may, I should like to tell the House of my last fully rational conversation with my wife. She had been told she was dying in terms that I witnessed, and I can testify they were plain. She chose not to take it in, so I had to make it plain to her. When this had been done, and when all those things had been said which must be said, we had a few moments of lucidity left. I told her about an incident on the day I brought her in to Casualty.
When I went out for my breakfast coffee at half past three, it was cold in the way it only can be in January off Gower Street, the wind creeping into every doorway around. I saw a man crouched in a doorway like a dog, with his cap over his face to keep the wind off. I went up to him and gave him a pound. He said, "Oh, thank you. You are the first person who has come near me all day". I told my wife this, and I said that there was she, inside, full of fear and full of pain, but receiving care and warmth, and with people prepared to come round her with love and affection more than any hospital room could hold; and there was he, apparently in good health, but knowing that nobody cared whether he was alive or dead. I said that I wondered which of these people I would rather be. After a long pause, she replied to me, "Yes. I think perhaps you are right".
If that comparison can be made by someone who is on the point of death, one has here a policy which no civilised Government should ever adopt.
The Lord Bishop of Southwark: My Lords, it is never desirable to follow the noble Earl, Lord Russell. I would much prefer to continue to reflect on what he has had to say to us.
Recent legislation has both dispersed asylum seekers around the country and put some into destitution. This has led many Churches in different parts of the country to have first-hand experience of encountering refugees and asylum seekers. Their response was, at first, cautious; then, occasionally, it was brave in the face of local, sometimes extremist, opposition. Many times it deepened concern about legislation such as that proposed to your Lordships' House today, and a recent debate in the General Synod very much reflected this concern. Let me quote from a letter sent to me from Sister Maureen Lynch, a missionary sister and a worker at Twickenham Refugee Welcome Centre. She writes this:
"I am dismayed at the devastating impact Government policy is having on people recently arrived in the UK who are seeking asylum here. I have witnessed the hardships caused by Section 55 of the Nationality [Immigration] and Asylum Act 2002. These people are not allowed to work. Many of them are completely destitute relying on help from other desperately poor asylum seekers, friends, charities, or are sleeping rough. I believe this cruel piece of legislation should be repealed".
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Church people such as Sister Lynch all over the country have become more aware of the issues and challenges asylum seekers and refugees face, because they are there on our doorstep. With their fellow citizens they engage in the political arguments for, of course, this is a deeply political issue. But for us this is also a pastoral and perhaps a prophetic challenge. People fleeing oppression and persecution arrive at our ports and airports—vulnerable, desperate, in a strange and bewildering place—and find themselves confronted with processes that they may not fully understand or trust. Such people come to our church halls and vicarages because there are very few other places to go.
I live near to the Home Office immigration centre in Croydon and within yards of the Spires Centre through which local Churches provide resources for the helpless and the homeless. Day by day we are not seeing worthless scroungers or economic migrants ready to manipulate a lax system. We are seeing men and women who are anxious and frightened and trying to keep body and soul together in a strange land. Churches, faith communities and concerned people are providing food and clothing banks, language and induction classes, housing and legal advice, translation services and befriending. They are filling a gap in provision which the Bill will, I fear, worsen.
Clause 8 proposes to remove benefits from those whose claims have been turned down. One can see the hard-headed reasons for the proposals, but one must doubt whether such an action will diminish people's determination to stay.
As your Lordships have heard, both the Home Secretary and the Minister in another place have insisted that leaving families destitute or taking children into care is not the Government's aim. Provision to ensure that this undesired aim is not achieved by default would therefore be welcome. Along with other noble Lords, I look forward to examining the robust provisions to avoid this calamity, as promised by the noble and learned Lord the Lord Chancellor in his introductory speech. Any government would be most unwise even to appear to bring in legislation in which it could be alleged that children were being used as a lever upon families to return to countries in which they fear to live.
While referring to children, will the Minister confirm in her response to the debate that under Clause 2(5)(c) being an unaccompanied child would always in itself be reasonable excuse for not being in possession of immigration documents? Surely it is not the Government's intention ever to criminalise such children.
Clause 8 raises concerns which I might call humanitarian. Turning to Clause 14, the concern would have become almost constitutional had not the noble and learned Lord the Lord Chancellor sent earlier signals of considerable amendment.

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In the debate in your Lordships' House last Thursday, the noble Baroness, Lady Hayman, remarked that the SIAC was like,
"Kafka played by the rules of cricket".—[Official Report, 11/3/04; col. 1356.]
The people of this country are a free people of a free nation built on the rule of law. It is not only lawyers who are concerned about this.
I can understand why the Government wish to speed up the appeals process and prevent its use as the means to justify the end of an indefinite stay. I also acknowledge that the Government have worked hard in improving the speed at which decisions on asylum claims are taken, most now within six months. But the Home Affairs Select Committee at the end of January emphasised the need to combine efficiency with fairness. This is also the concern of these Benches.
We need, at least, to raise the quality of early decision-making. We need to know who will make those decisions and how; and with what interview procedures, information and interpreters the decision will be made. What will be the training and professional development for those engaged in such important work?
We must seek a system which is rigorous, evenhanded and, above all, fair. A system which has all the appearance of quasi-legislation but which cannot be challenged in a court of law would surely give your Lordships pause for thought. Such a system would not work for it does not work in parallel situations.
I chair the governing body at Cuddesdon Theological College, a long-established theological college for training clergy associated with the University of Oxford. We have a long-standing twinning arrangement with a theological college in South Africa whereby two ordinands exchange places for a couple of terms every year. But not this year. The British ordinand was fine, but when the South African ordinand, carrying all the necessary documents, went to the British High Commission he was refused a visa. Why? He obviously was not a genuine student because he called the college "Cuddesdon" when its full name is Ripon College, Cuddesdon, and he did not know the timetable for the first week. On that standard of judgment we would have no students at all. But his application was refused and his appeal swiftly dismissed without any contact with the college.
The starting assumption is that the person seeking entry is lying. This skews the initial decision and requires an adequate appeals process. In this climate, the present system seems not so much excessive as necessary.
I understand from the speech of the noble and learned Lord the Lord Chancellor that the Government are prepared to make a move from their proposed position on Clause 14. Along with your Lordships, I look forward to examining the amendments that he promises.
The Bill comes before your Lordships' House when inflammatory reporting in some sections of the press has exaggerated public alarm and demonised claimants. In October last year, the Press Complaints
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Commission warned that inaccurate, misleading or distorted reporting may generate an atmosphere of fear and hostility that is not borne out by the facts.
I am no Thomas Gradgrind, but I appeal to your Lordships' sense of the importance of facts in asylum cases and the damage done to humanity where an appeals system risks being ignorant of the facts and a welfare system acts in flagrant disregard of them. For the local Church, ignored facts soon show up in broken lives. Let us work hard to enable the Bill to emerge as an Act worthy of a free Parliament, which has always led the way in working for a world community built on the foundations of justice and humanity.
7.7 p.m.
Lord Brennan: My Lords, asylum and immigration are controversial and highly charged issues. Debating them deserves—and I hope we will get it today—clear and objective thinking. The Home Office has an immensely difficult task in this area. It seeks a substantial reduction in immigrant numbers, at manageable cost with the least legal restraint. The objective has in-built tensions, the components of which, some might say, are irreconcilable.
The objective has four stages—entry, processing, decision and appeal. In assessing the task and determining the priorities, where does appeal come? At the end. The least important volumetrically; the least significant economically; and the most important in terms of justice.
Entry has been the subject of serious comment by the Home Affairs Committee in the other place; processing has been the subject of regular comment by our courts and even by the Chief Inspector of Prisons; and decision has been the subject of comment by the Constitutional Affairs Committee, which has called for better decision making. But appeals? Until this Bill arrived, in the legal world in which I practise I knew little of this degree of concern in the entire immigration system. But the issue has been raised and so we must deal with it.
Clause 14 conflicts with a basic principle of the rule of law, one eloquently enunciated by the previous Lord Chancellor, my noble and learned friend Lord Irvine of Lairg, when he said that English—for that we can read "British"—courts attach great importance to the citizens' access to justice, and judges have now come to speak of this as a constitutional right. What is this constitutional right in relation to appeals in the asylum and immigration system? It is judicial review.
Judicial review is at the application of the person aggrieved; it is not triggered by a judge or a court. In order to obtain judicial review, leave has to be obtained. In other words, the applicant has to establish that he or she has a properly arguable case. If the case goes to judicial review, there are three basic reasons upon which the court will find that government action has been wrong if the evidence justifies it.
The first reason is illegality, meaning that the body or process in question was outside the law. The second is irrationality, meaning that within the framework of

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the law, no reasonable person could ever have come to such a decision—it is beyond reason. The third reason is that there has been serious injustice in the process of inquiry or adjudication. So we have illegality, irrationality or fundamental injustice. Are we to deny a litigant the opportunity of showing, if he or she can, that he or she was subject to one or more of those aspects of wrongful government action? If we were to do so, we would divorce ourselves from the common-law countries which we founded—Australia, Canada, South Africa, India, the United States—all of which permit and promote a well controlled system of judicial review.
I entirely agree with the remarks of the noble and learned Lord, Lord Mackay of Clashfern. To stop such a right in respect of a person who, when it is denied him, may face grievous harm—even death in the country to which he returns, would be a blot on our system of justice. I am sure that in the light of what my noble and learned friend the Lord Chancellor said this evening, the Government will not wish to be associated with such a state of affairs.
As this debate has progressed, clarity has been introduced into the analysis. Such legislation is ready to be amended, as I understand my noble and learned friend the Lord Chancellor. He called it a state of affairs by amendment that led to necessary judicial oversight. For me, that is a synonym for appropriate judicial review. He said that there would have to be new arrangements with the administrative court. I read that to mean access to the High Court. And if there is access to the High Court, then there should be access to the Court of Appeal, strongly controlled as it is by that court only giving leave to a case which has good prospects of success, and then to the House of Lords—three or four cases a year, if that. Is this a system about which we should have concern or fear? Is it one we associate in our mind's eye with scroungers, thieves, ne'er-do-wells? I think not. It graces our system of justice. It introduces humanity. It represents what my noble friend Lady Scotland is reported to have said yesterday in a newspaper article—that which is just and proportionate.
So when Clause 14 returns for our detailed consideration, I am sure that what we will have most in mind is not, at the one extreme, shallow populist rhetoric or, at the other, libertarian fears of some legal Armageddon, but, rather, a coolly analysed, clearly reached conclusion that there must be access to the courts, especially for the poor, the ill educated, the foreigner, the alien, whose rights are no less than ours to have access to our courts.
7.15 p.m.
Lord Lester of Herne Hill: My Lords, it is always a pleasure to follow my learned friend, the noble Lord, Lord Brennan. I am only sorry that the noble and learned Lord the Lord Chancellor is not able to be here for most of this debate.
This is a mean-spirited and reactionary Bill. It contains some provisions that lack common humanity and others that fail to tackle the real problems
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resulting from the Government's failed asylum policy. However, like others, I shall concentrate on Clause 14—a provision which has stained the reputation of the Government and of the democratically elected Chamber.
The clause's death may have been announced by the noble and learned Lord the Lord Chancellor this afternoon, but it will long be remembered. It is difficult to understand how a Government who fashioned the Human Rights Act and who claim to respect the rule of law could ever have promoted a clause which is, in Churchill's famous words, "in the utmost degree odious".
Clause 14 has been universally condemned. It is the combined handiwork of the Home Office and Department for Constitutional Affairs. It has had the powerful backing of a Prime Minister who once practised at the English Bar—a Prime Minister who, I am very sorry to say, most regrettably, responds to the pressure exerted by the gutter press with knee-jerk reactions in a vain attempt to appease the right-wing tabloid newspapers' insatiable appetite for ever harsher measures against asylum seekers, the Roma and would-be immigrants.
Until today, Clause 14 received strong backing not only from the Prime Minister and his populist Home Secretary but also from the Secretary of State for Constitutional Affairs who also practised with distinction at the commercial Bar. When the senior judiciary explained their objections about Clause 14, the Government's response was not to abandon the ouster clause but to widen it so as to prevent the courts maintaining the rule of law. I find it profoundly dispiriting that this clause was approved by the other place. Such a clause was not contemplated during the Second World War when this country faced Nazi invasion. It was not contemplated in the recent legislation to combat the barbarous scourge of terrorism. It is frankly outrageous that such a clause should ever have been introduced to curb judicial review by asylum seekers seeking refuge from persecution.
On 24 February, the Commons committee published its report on the Bill. It expressed its deep concern about Clause 14. On 14 February, the Joint Committee on Human Rights, of which I am a member, published its report. We wrote:
"Ousting the review jurisdiction of the High Court over the executive is a direct challenge to a central element of the rule of law, which includes a principle that people should have access to the ordinary courts to test the legality of decisions of inferior tribunals".
We said that the clause,
"seeks to make the immigration and asylum process operate outside normal principles of administrative law and legal accountability. This sets a dangerous precedent: governments may be encouraged to take a similar approach to other areas of public administration".
These unanimous criticisms from all-party committees of both Houses did not persuade the Government to withdraw the ouster clause. On the contrary, they used their dominant majority in the Commons to abuse their unbridled legislative powers.

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When I asked the noble and learned Lord, Lord Falconer, during the debate on 12 February, on the Government's proposed constitutional reform proposals, whether he was aware that the Joint Committee had unanimously concluded that Clause 14 is incompatible with the convention, his reply was that he was aware of that report, but that the Home Secretary had signed a compatibility statement indicating,
"on the basis of proper and legitimate advice that the Home Secretary has come to the view that this is a perfectly legitimate thing to do in the context of the Human Rights Act".—[Official Report, 12/2/04; col. 1317.]
I am saddened that the Minister was persuaded to make a similar compatibility statement when the Bill came to this House. I wonder who could have given that "proper and legitimate advice". Not, I feel confident, the noble and learned Lord the Attorney-General, nor any human rights counsel worthy of the name.
The Joint Committee did not share the Home Secretary's view that Clause 14 is fully compatible with the convention rights, and this use of a Human Rights Act compatibility statement as a shield against criticism illustrates the danger of treating the convention rights as the only constitutional rights protected by our system of law and government.
The Human Rights Act was meant, in the words of Abraham Lincoln in his Gettysburg address, to enable our nation to have,
"a new birth of freedom".
It cannot do so if it is interpreted by Ministers with the austerity of tabulated legalism. My noble friend Lord Russell was perfectly right to condemn the Government for being guilty of legal positivism, which is the hallmark of authoritarian government.
Only two weeks ago, the noble and learned Lord's junior Minister David Lammy MP—another barrister—told the House of Commons that the ouster clause was central to the Government's objective,
"to deliver a streamlined appeal system".—[Official Report, Commons, 1/3/04; co1.695.]
Yet the Secretary of State now tells us that the Government have decided to abandon Clause 14. Of course, we are glad that the Government have announced their prospective surrender, but they would have faced inevitable defeat in this House. And if they had somehow forced the clause through, there would have been a constitutional crisis, a clash between the principle of parliamentary sovereignty and the sovereignty of the Queen's courts.
If the courts could not have circumvented the all too plain and ugly words of Clause 14, they would have been called on to decide whether the powers of Parliament are unlimited. Could Parliament lawfully abolish the courts altogether, or indefinitely postpone elections, or in some other way attack the fundamental principles of democracy? According to the Home Secretary and Mr Lammy—and presumably the Lord Chancellor—there are apparently no limits to the lawmaking powers of Parliament.
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Our Joint Committee drew attention to the Commonwealth cases, where the Supreme Courts of India and of Bangladesh decided, under their written constitutions, that the legislature cannot destroy the essential features and basic structure of the constitution.
The maintenance of the rule of law is, as the noble and learned Lord, Lord Bridge of Harwich, once observed,
"in every way as important in a free society as the democratic franchise. In our society the rule of law rests upon twin foundations: the sovereignty of the Queen in Parliament in making the law and the sovereignty of the Queen's courts in interpreting and applying the law".
Parliamentary sovereignty exists only because the courts interpret the constitution and the common law as conferring wide law-making powers on the legislature. But if Clause 14 had been enacted, our courts would have had to decide whether that provision could be refused judicial recognition as an unconstitutional abuse of legislative power,
As the noble Earl, Lord Russell, knows, four centuries ago in Dr Bonham's case, Lord Coke said:
"When as Act of Parliament is against right and reason, or repugnant, or impossible to be performed, the common law will control it and adjudge that Act to be void".
Because of the Government's prospective 11th-hour surrender, the question of the modern application of Dr Bonham's case will not arise. But this unhappy chapter in the life of this Government will not be closed. It will be remembered by future generations as a warning against the arrogance of power, and of the need to protect minorities against the tyranny of an elected majority. It will leave an unsightly stain on the reputation of this Government, for adopting a measure for which they will always bear heavy and collective responsibility—each and every one of them. And it will serve as a warning against any further attempt by this Government—or some future government—to subvert the effective judicial protection of the rule of law.
7.26 p.m.
Lord Hylton: My Lords, I agree with the noble Lord, Lord Brennan, that the Home Office does indeed have a difficult task to achieve, but there seem to be people within it who think that real problems can be solved by legislation. What is really needed in dealing with refugees and other would-be immigrants is thousands of small improvements in daily practice, where officials have to deal with their fellow human beings. I shall expand that point later.
This very questionable Bill has one redeeming feature; namely, Clause 4. It creates an offence punishable by up to 14 years' imprisonment of trafficking people to exploit their work or to sell their organs. The clause will enable this country to ratify the anti-trafficking convention, and I welcome it warmly.
I understand that a report from UNICEF to be published this week will show that there are some 3,000 street children in Sierra Leone extremely vulnerable to trafficking. The same may well be true of Liberia, Ivory Coast and Guinea, where there are war orphans

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and many displaced young people. The Solicitor-General is reported to have visited Freetown. I trust that she will be able to convince her colleagues to take urgent preventive steps. Will it be made widely known in west Africa and elsewhere that trafficking for all purposes is an offence in Britain? Will our ports be put on the look-out for unaccompanied children and others who are travelling with people who are not their parents? When such children are identified as at risk, will the Government ensure that the care arrangements provide effective protection for the children?
In Sierra Leone, organisations such as Caritas have a good record in rehabilitating brutalised child soldiers. therefore ask whether our aid programmes will use that expertise to resettle the relatively small numbers of street children in west Africa and elsewhere at risk of being trafficked.
Victims of trafficking who co-operate in prosecution should be rewarded with residence and work permits if they want them. Victims should always be given both time and advice, before they decide what to do next. Will the Government draft amendments to cover these points?
As to the rest of the Bill, I notice that the Immigration Advisory Service says bluntly:
"There is simply no need for further legislation. These asylum driven reforms will have a massive and unwelcome impact on immigration cases, family visit visas, students and work permits".
This is all too likely, since the Bill had no preceding White Paper, no consultation and no pre-legislative scrutiny.
I am glad that I now have the support of the Home Affairs Committee and the Constitutional Affairs Committee of another place and of at least nine out of 10 of the numerous briefs on the Bill concerning the importance of correct first decisions in asylum cases. It is not difficult to see why many first decisions are wrong and, indeed, perverse. The applicants must start by completing a 19-page form, responding in English only. The replies on the form are then checked against Home Office information on countries of origin. That information, I am sorry to say, is quite often incomplete or out of date. It sometimes conflicts with Foreign Office or US State Department assessments. Then comes the crucial first interview, and often the applicant has had no legal advice or adviser present.
The applicant has to face the "culture of disbelief" all too prevalent among Home Office caseworkers and minor officials. Country information may be overlooked, and all sorts of assumptions may be used to invalidate the applicant's story. Caseworkers regularly ignore the prevalence of bribery in poor countries. They pretend to know how police and prison officers work in foreign countries. They ignore or discount the use of torture and casual brutality, including rape, by both official and non-official parties. Both torture and casual brutality in fact are frequently causes of general fears of persecution in individuals. Those who wish for more details on these kind of lapses should study the report on refusal letters
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and interviewing techniques for asylum applicants from one country, the Cameroon, which was published last month.
The result of this poor practice is that 20 per cent or more of first decisions are being overturned. The rate for Somalia, Zimbabwe and Turkey has been up to 35 per cent. That is why greatly improved training and supervision is needed for caseworkers and supervisors. Given their stated wish to reduce the number of appeals, will the Government provide resources for training staff, for ensuring that their usually good guidelines are in fact followed, and for early legal advice and top-quality interpreters? These are the minute particulars so urgently needed, rather than the endless legislation with which we are faced.
In Canada, where I once worked, there is a refugee protection division. Would that we had something similar here. Our duty of protection under the convention might be better discharged if we had an independent asylum decisions board. That should be supplemented by an independent centre for documentation and information on countries of origin. I hardly expect that the present Home Secretary, or indeed the rightwing tabloid press which has been mentioned, will take such suggestions very seriously. Some future government, perhaps, may find them useful. Meanwhile, I plead for steady improvements in asylum practice and for close teamwork on all the issues thrown up by trafficking. I am certain that this Bill needs major changes and wholesale improvement.
7.23 p.m.
Baroness Kennedy of The Shaws: My Lords, I start by apologising to those on the Front Bench. I was slightly late in arriving for the debate because I was delayed in court. I apologise and I meant no discourtesy. Happily, however, I was able to hear the end of the speech of the noble Baroness, Lady Anelay, and the speech of the noble Lord, Lord McNally. However, I apologise to the Lord Chancellor.
I have great misgivings about the Bill. I urge upon those who are non-lawyers that this is not just a matter for lawyers; it goes to the heart of our legal system. I think that the noble Lord, Lord Clinton-Davis, put it so powerfully when he said that, coming from this Government, the idea of an ouster clause removing judicial review should never have seen the light of day. I want to reiterate that it is shameful that we even considered it and that it was pushed through the other place.
It is very difficult to explain to people why the removal of judicial review is so serious. For lawyers, it is built into our souls; for ordinary people, however, it seems so obscure and out of touch with their reality. Many people feel that the abuse of legal processes, which can be costly and time consuming, should be challenged. They do not like the idea of appeals being strung out on spurious grounds. They want to see that dealt with. We would all, on the surface, agree with that.

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As many in this House have said, however, the ouster clause is an affront to the rule of law. The term "the rule of law" is used as a mantra by politicians the world over, but people are not really sure what it means. It means more than passing laws through Parliament. It means more than that because there is no discipline in simply abiding by laws which you yourself have passed. There have to be norms against which those laws must be tested. We now have those human rights norms, which are the template against which the rule of law should be tested.
The ouster clause is an affront to the rule of law because it takes away from us as citizens, and from those whom we should be protecting, the right to say, "There may have been an abuse of process here". We should keep telling people that we in Britain should be particularly proud of the rule of law. It was developed here in this country so many centuries ago, to prevent abuse by the monarch and those who governed us and to put checks on power. It meant no one is above the law. Today, that means all those who govern us and all those who make decisions that affect our lives.
We have exported that principle around the world, not just to common law jurisdictions but to everywhere. Every nascent democracy is being encouraged to embrace the rule of law. It has to be a full-blooded rule of law. What comes through in this legislation, however, is the fragility of the Home Office's hold on that concept.
When people ask me what judicial review is about, I try to explain that it is not a new invention but comes from our long common law history. For centuries, prerogative writs such as habeas corpus could be used to protect the liberty and freedom of the people. Over the past 30 years, however, it developed and got the new name of judicial review because—and this is a great credit to the labour movement—poor people were able to get good lawyers to defend their rights and to develop a body of case law around abuses of power. In recent times, we have also seen governments acquiring ever more powers to interfere with people's rights.
Judicial review has become crucial within our justice system. I say to my colleagues on this side of the House that it is being used to particularly good effect by those whom we have always said we were concerned to protect. Judicial review has been used to protect the right to protest, to quash police orders which prevented demonstrations in important areas of the freedom of speech. It has been used to supervise the meaning of criminal laws. In fact, I remember it being used to challenge the validity of by-laws at Greenham Common. It is used to review mental health detentions. It was used to quash the government attempt to ban trade unions in GCHQ. At a higher level, that situation was turned round. However, the challenge and the public debate on it were very important.
Judicial review has been used by trade unions to prevent a Conservative government amending criminal injuries compensation schemes to the detriment of emergency workers. It has been used to
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protect the rights of women as part-time workers. It has been used to deal with death in custody and to develop systems. It has been used in relation to prisoners' rights, welfare and homelessness. So an erosion of judicial review goes to the heart of our commitment to human rights in protecting the most vulnerable. Yet, at the very same time, one cannot help but think that the ouster clause is being introduced in relation to some of the most vulnerable people in our society—asylum seekers— about whom public feeling might not be outraged because of the way in which xenophobic feelings are being enflamed.
We are faced with another example of something about which we should be very alarmed; namely, that legal principle is pushed to one side in the interests of short-term, attractive propositions. That abandonment of legal principle for short-term gain has long-tenn costs. It is a slippery slope, because where does it go next? The fact that we seem to have little grasp of what the rule of law means and of what principles are fundamental to our system is a matter that should concern us all.
Repeatedly, the Home Office tries to rectify problems that occur at first base, either in policing or in the immigration services, by interfering with justice processes. That is never the remedy for failure at the first decision-making point.
We see incredible schizophrenia on the issue of asylum. The Government have done many positive things in relation to racism, yet the rhetoric about false claims and abuse of the system feeds the very thing that we despise. The Home Secretary appears to believe that if you talk up a storm of toughness on issues, you can slip some decent change through under cover of darkness. He is wrong. That does not work. It only stimulates fear and intolerance among the general public. Even to talk of taking children away from their families, although we are told that it would be in the most extreme of circumstances and very rare, sent tremors of shock through the families of those who are awaiting decisions. The terror that that presents to people who have lived in abusive systems is quite disgraceful.
I fear that the Government are allowing the agenda to be set elsewhere. Right-wing tabloid newspapers are beasts whose hunger can never be sated. When the rhetoric that we have been hearing is insufficiently challenged by government, we see a shrinking of the space in which good things can be done, a shrinking of the space in which sensible debate can take place. I therefore urge Ministers to spend some time at charities such as Medical Aid for the Victims of Torture or the Refugee Council. They should spend time with people who are fleeing countries where they have been abused. That would remind them why the discourse of human rights should be filling our debate. Good politicians make the political weather. They do not respond to populist demands. I am afraid that the Bill is an example of the government responding to populist demands. We should revisit it, because many of its proposals are a source of shame to us.
7.43 p.m.
Lord Phillips of Sudbury: My Lords, I shall address my remarks to a particular aspect of the Bill and our debate; namely, legal aid and access to legal services for immigrants, whether they are asylum seekers or straightforward immigrants. In doing so, I should declare an interest because my firm has been active in that kind of work almost since I founded it in 1970 and we hold a legal aid franchise—at least we do at the moment, as, sadly, we are about to withdraw from it because of the proposed changes in the legal aid system to which I shall refer shortly.
I at least acknowledge the enormous difficulty of the subject that the Bill addresses. While, on the whole, I feel sorry that my political career started so late and is going to be so short, and wonder how I would have responded to the weight of office, I am quite glad not to be handling this Bill. It is an extraordinarily difficult collection of issues for any politician in any party, and particularly at this time, to have to confront. Strongly though I feel about some of the inadequacies of the Bill, I absolutely make no charge of racism or other unworthy sentiments on the part of the Home Secretary or his Ministers. What they are seeking to do with which I disagree comes from a lack of understanding of how the proposals work out on the ground, particularly in legal terms. However, I accept that the pressure on the staff of the Immigration Service is enormous. Many young and inexperienced people are trying to deal with matters of life or death for those concerned—life or death in terms of poverty; life or death in terms of abuse if they are forced back to whence they came. By the same token, I hope that the Government will accept—I know that the Minister will do so because she has experience of these matters—that it is a very difficult task for the lawyers. It is one of the most difficult areas of work in the whole calendar of legal services.
I made a note of the opening remarks of the noble and learned Lord, Lord Falconer, about legal aid. He said:
"Reform of the appeals process goes hand in hand with reform of the legal aid system … We want to ensure that those who need advice because they have claims with merit will get it … We will target legal aid better".
The first bit of targeting will take place on Wednesday this week when the Community Legal Services (Scope) Regulations 2004 come before this House. I shall start, in case I forget at the end, by asking the Minister whether the Government will consider postponing consideration of those regulations because they go directly to the heart of the practicalities of the Bill. The Explanatory Memorandum states:
"At present, funding is available for a representative (usually an agent or outdoor clerk)—
I wonder where they get that idea from—
"working for a publicly funded organisation—
that may be a solicitor's firm like mine—
"legally representing an asylum seeker, to attend the substantive interview with the Home Office".
For those who reasonably do not understand what happens, at the start of the process an interview takes place with an immigration officer. That is the only
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occasion on which the claimant will be in direct contact with, and directly answerable to, anyone from the Home Office. On the basis of the paperwork emanating from that first, substantive interview, the decision will then be made by the senior immigration officer on whether to allow or refuse the claim. Any subsequent appeal, whether under the present aegis—the Immigration Appeal Tribunal—or under the proposed aegis—the asylum and immigration tribunal—will be wholly dependent on that first interview. The memorandum continues:
"However, the Government believe that in the majority of cases, this is unnecessary, of no benefit to the client and a waste of public funds. It is therefore proposed that in all but exceptional cases, (unaccompanied minors; applicants going through fast-track initial decision processes; those suffering from a recognised and verifiable mental incapacity…funding for attendance by a representative at the substantive asylum interview will not be authorised".
There is to be some exceptional power, but that will be confined to that narrow band of cases.
I turn now to another statement, made by somebody who has spent many years dealing with asylum cases. I thought it would be helpful to the House and to the Government if I were to read out what he says about that first substantive interview. He states:
"The effective exclusion of reps will have a significant impact on the fairness of and efficiency of the procedure. For asylum cases in particular, the Home Office is the most important stage in the pre-decision process. The information provided by applicants at their interview forms the basis upon which the Home Office decision is made".
He goes on to state that representation is particularly important because applicants,
"are not given an opportunity to read or have their statements read back to them at the end of the interview. It is also recognised as good practice for representatives to bring independent interpreters to observe the interview, as it is not uncommon for the Home Office to supply interpreters who speak a different dialect or even a different language to the applicant. Although the Home Office do not formally permit representatives to intervene during the course of the interview, in practice representatives often intervene to iron out the not infrequent misunderstandings between the applicant and the interviewing officer or to remind a nervous applicant of an overlooked point".
I do not need to expand on the fact that a lot of claimants are traumatised, or, if not traumatised, extraordinarily unsettled. They do not know the country to which they have come, do not speak the language fluently or at all, are often in need and cut off from their relatives and friends. They are in a high category of legal need.
That is one change proposed under the legal aid regulations. Another is to confine the amount of legal service that can be rendered to a claimant to three hours in respect of an immigration case and five hours in respect of an asylum case. That may sound a lot of time to those who are not lawyers, but in that time the legal representative will have to get to the interview, as one often has to do; try to coax from a worried, frightened and often inarticulate person, who is usually not fluent in the language, his or her story and case; find witness statements to back it up; get evidence, which he or she may not have kept with him or her for all sorts of reasons; get reports from doctors if it is a case of torture; get reports from other

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countries; and get details from the country to which he or she is to be returned as to the true state of things there. In future, all that is to be dealt with within five hours, unless one can prove exceptionality and go to the Legal Services Commission, which, believe me, is an extremely cautious preserver of public funds. I have to say, too, with no disrespect to the many conscientious people who work there, that they are sometimes vastly inexperienced, with no idea what it is like to do a proper legal job.
The point that I am making is that the Bill cannot sensibly be passed by this House unless we have much better legal aid provision than is currently contemplated. If the regulations are passed on Wednesday, I shall in effect seek to strike them down by introducing clauses into the Bill to do something about that.
One may compare the procedure for immigration and asylum processes with that for any domestic criminal case. We all know that the PACE rules entitle anyone to be represented by a solicitor when he or she is interviewed by the police and when a first statement is taken. Crucially, that will be denied under these new rules. But that is only the first step: afterwards there is a court case, in which the person concerned has the right to go before a bench of magistrates or a Crown court and give evidence and make his or her case. That right will not be available in the cases that we are discussing; the interview is the last chance that a claimant will have to put his or her case personally. If one contemplates that process, and all that can ensue from a decision that can be perverse or simply wrongheaded, I believe that most of the points made against the Bill have been well founded.
Finally, I hope that the House will have regard to the provisions of Clause 7, which relate to claimants' credibility. In my view, that clause provides a presumption of incredibility as regards anything said by or on behalf of any claimant. I shall return to that matter when there is more time, but I commend it to your Lordships' attention.
7.54 p.m.
The Earl of Sandwich: My Lords, whenever there are terrorist outrages or new anti-terrorism measures are proposed, asylum seekers tremble at the prejudice that enters society and threatens their very survival. In approaching this Bill, which contains very specific new measures to control and even to criminalise asylum seekers, legislators and adjudicators must remember that those affected are already living in a climate of hostility and considerable ignorance. The noble Lord, Lord Parekh, has already referred to the constant tightening of the screw. Those who are persecuted, or claim to be so, demand at least the same standards from our judiciary as the rest of our population, who, under the new anti-terrorism terminology, now seek security from others almost as a form of privilege.
That said, there are one or two very important elements in the Bill. I particularly welcome the new trafficking offence in Clause 4. As a council member of Anti-Slavery International, I am very pleased that the
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Government have at last come forward with this legislation to curb traffickers. Admittedly, the Home Office was pushed to some extent by the EU Council framework decision of 2002, but, even so, there is genuine dialogue and even partnership with the specialised NGOs on this subject. It is no longer enough to rely on the amended Sexual Offences Act 2003, which deals mainly with trafficking of prostitutes and is very limited in effect. According to the vice unit, only five people received two-year sentences or more during the three years from 1999 to 2002.
However, as my noble friend Lord Hylton said, what about protection? Why has that been left out? It is no good concentrating on the crime if one is not also paying proper attention to the victims. Countries such as Italy are far ahead of us. In the United States, victims are even given residence and work permits in return for co-operation. What are the Government planning in that regard? There should be better balance in legislation and a new clause introduced. For example, are there plans for more Home Office support for those excellent non-governmental organisations providing safe houses, at the very least?
On the larger question of migration, I am sorry that the Government's plans for managed migration form no part of this Bill; indeed, they seem to have stalled. I understand how difficult it is to proclaim a positive agenda against the current media background. I hope that there will be some opportunities at Committee stage.
The passport offence in Clause 2 is a retrograde step, as has been argued, because, by definition, many persecuted claimants in a first interview either do not have access to documents or have come in with false papers. Some are simply in the power of traffickers. The Government are simply ignoring Article 31 of the 1951 convention.
Many people feel strongly about the matter of failed asylum seekers in Clause 8, so I shall not say much. There is a question of local authority funding when social services are already under pressure. It is a moral issue that no one in this community should be left destitute. Under Section 55 of the 2002 Act, 200 more destitute people have arrived every week in London. Two out of three asylum seekers are still in-country applicants, so the Government's deterrent strategy is plainly not working. There is also the matter of the reduction in the access to legal aid, as has been mentioned, which is bound to increase destitution. The Medical Foundation has brought up some good examples, which we shall refer to at Committee stage.
Clause 14 and the matter of appeals is the major concern today. We are all relieved by the removal of what amounted to a dangerous precedent, although it is very unclear whether the concession means the wholesale deletion of the clause, as it should—not least, because so many eminent judges and lawyers have spoken against it. The noble and learned Lord, Lord Steyn, has made the ultimate comment that the Bill attempts "to immunise manifest illegality". Several have referred to the poor quality of decisions,

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which I believe is a matter of unanimity in the debate. ILPA's list of 38 recent Court of Appeal judgments is itself evidence of the necessity for a proper appeals procedure. The Conservative amendment in another place does not go far enough, but at least it calls for the revival of statutory review, which has hardly been given a chance to work. It is no wonder that people say that policy is made on the hoof.
Like others, I picked up a much more fundamental concern about the continuing culture of disbelief in the Home Office—and, indeed, in the tribunal itself. That atmosphere will not go away with the replacement of the tribunal. Some adjudicators feel that the public climate turning against asylum seekers is actually affecting judgments. One adjudicator, to whom I have spoken personally, said:
"Many adjudicators and members of the Tribunal bring an even-handed and judicial approach to their work. Unfortunately there are many others who see themselves as the 'last bastion' against the 'hordes waiting at the gate'.
"Despite this, I can continue my work because I know that a final appeal lies from the worst excesses of the Tribunal. If Clause 11 is allowed to go through, there will be no such appeal".
That may be one person's view, but it is a serious indictment. That adjudicator, who has also lived in some of the countries of origin of asylum seekers, goes on to claim that the IAA,
"is not up to the task of being the final tribunal in the process of asylum".
In other words, it is not just the principle of the ouster clause that is wrong, it is the intrinsic quality of the decision-making in the system which has caused concern to many people and is the very reason for which an independent judicial review and appeal procedure exists.
That is not just a worry of a few adjudicators. In Arshad v Secretary of State in 2001, Lord Justices Laws and Waller both refer to the lack of evenhandedness and consistency on the part of the IAT. Lord Justice Schiemann cited that in Oleed v Secretary of State 2002. Those references do not amount to an open criticism of bias but at least they suggest an unease inside the judiciary about the validity of some of the judgments. The noble Lord, Lord Avebury, has referred to the quality of the adjudicators themselves. Whether the continuing culture of disbelief is driven by new government policies of deterrence can be debated, but given the general direction of those policies, it seems fairly obvious to me that it is.
Clauses 18 and 19 concern removal and detention. I hope that the Minister will take this opportunity to update us on improvements in the detention estate. For example, what progress has been made with accommodation centres and the new smaller model proposed by the Refugee Council? As a patron of the Haslar Visitors Group, I remain seriously concerned about conditions in so-called removal centres.
The word "removal" is still a misnomer. The average length of stay at Haslar is still five months and some stay more than a year. The improved accommodation proposed is welcome, but it does not reduce the waiting time or guarantee quality.
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Education standards at Haslar are high and must be preserved. Incidentally, the rise in the number of successful escapes—there were 11 last year at Haslar—suggests that detainees are getting more desperate as the Government place more pressure on asylum seekers.
Improving initial decisions means better information. I hope that the Government will consider the proposal for an independent documentation centre. White lists have not helped; they can even hinder. The most up-to-date information is essential. Even in safe third countries, there are always threats from non-state agents. I give the example of the Kurdish people, who may easily be returned from Germany, although Germany is classified as a safe country.
So consultation on the Bill has not been nearly as good as it was last time. Nevertheless, on some issues, it is fair to say that we have a listening Government. They have backed down over Zimbabwean nationals under UN pressure. The trafficking clause has already been mentioned. There is a possible rethink of accommodation centres. So it is reasonable to expect that they will listen today and in Committee and amend the Bill. I also appreciate that governments have to be seen to be active, although they cannot always convince themselves that their actions are legitimate.
8.4 p.m.
Baroness Gibson of Market Rasen: My Lords, undoubtedly, there have been major problems with initial decision-making on asylum and immigration issues over the years. Undoubtedly, it is the Government's job to ensure that any asylum and immigration system operates fairly, competently and robustly. Undoubtedly—it should go without saying—there must be no knee-jerk reactions to those who voice popular prejudice. Any policies in the field must be well thought out and capable of meaningful implementation.
Yes, the Bill has its flaws, which many of your Lordships have emphasised today. But that is nothing new. All legislation is flawed when we first receive it in this House. Indeed, it is our key and important job to improve it, and we will. Perhaps it should not be, but it is.
The Government have told us that they are in a listening mood and this Second Reading gives us the chance both to raise the issues about which we are worried and to point out where it strengthens current legislation and fills gaps in it. It is always easier to criticise than to praise. Therefore, before I turn to the Bill proper, I shall pay a brief tribute to those at the sharp end of our legislation—those whose job it is to assist it bona fide a sylumseekers and immigrants by sifting the genuine from the mass of overall applicants. That is not an easy job.
Recently, with other parliamentary colleagues, I visited the fast-track reception centre at Oakington and saw its procedures in action. Together with my noble friend Lord Dubs, I sat in on an interview with

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a young man who was claiming asylum. He also claimed to be under 18, and so should not be dealt with under the same procedures as the adults in the centre. It was difficult to assess his age, but it was not too difficult to understand that his story had large holes and inconsistencies in it from beginning to end. The young woman lawyer who was assisting him with his case was patient and kind. She gave him every opportunity to expand on and further explain his story. The translator was also conscientious and attentive.
The atmosphere at Oakington was not one of oppression or fear. The workers in Oakington and other centres and the agencies involved in the field of asylum and immigration are carrying out difficult work on our behalf. We should not forget them in our deliberations. Nor should we heap all the blame for weaknesses in the system on them. If there are weaknesses in the system, it must be more the fault of the politicians than those who work in our asylum and immigration services. It is too easy to criticise those who work in establishments. Yes, I think that we must accept some responsibility ourselves.
Whether we like it or not—I do not—many of our fellow citizens believe that there are still too many immigrants arriving and staying in the United Kingdom. Emotive words, such as "flooding", are still bandied about freely and most irresponsibly. There is still a great deal of muddle about legislation relating to asylum seekers and immigrants, economic or otherwise. I believe that some of that muddle may be deliberate.
Certainly, some of the muddle has been fuelled by lurid press headlines and less than accurate media reporting. Irresponsible and sensational headlines designed to sell newspapers rather than impart accurate information obviously have an effect on readers. Of course, the worry is the disturbing impact that such reporting can have on the lives of those who are currently members of our community.
I have the pleasure of knowing a prominent person and his family who came to this country 30 years ago. Since then, they have worked within and on behalf of their local community. Recently, they have experienced the impact of negative feelings about asylum seekers and immigrants. The family has felt a backlash against and prejudice towards them from people they have known for many years. A hostility has entered their everyday lives. Obviously, it is unnerving for them and, both in race relations and economic terms, it is bound to be detrimental to the community as a whole. That example and others serve only to reinforce the necessity for accurate reporting, coupled with a clear understanding of what we wish to achieve through our legislation.
Clause 4 was mentioned by two noble Lords, but it has not been highlighted by the media. However, it has been warmly welcomed by a number of organisations, including the Refugee Children's Consortium, which includes many prestigious organisations. This is new legislation to cover a growing problem throughout the world; that is, the trafficking of people for
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exploitation. I want to emphasise the plight of young girls and women used by traffickers for their own financial gain. The stories of the girls' plight are horrendous. They are enticed to the UK by false promises and end up in prostitution and slavery.
I first became more knowledgeable about the practice when I visited a number of organisations, including the National Criminal Intelligence Service, while taking part in investigations by EU Sub-Committee F on which I served, which looks at issues surrounding immigration, among other matters. I learned how the trafficking of women and girls in Europe has greatly increased over recent years. I heard that all the organisations involved in fighting that evil recognise that they are only scratching the surface in their efforts to catch the traffickers.
The story of one young Romanian woman illustrates the plight of the girls. She was a bright student in her late teens. In Romania, she met a young Romanian man who had recently returned from England. He told her about the opportunities in the UK and offered to help her enter the country—illegally, as it turned out. She came, and within a week she found herself in a seedy house with other young women, some of whom were very young indeed. She was imprisoned and a succession of men visited her day and night. If she did not provide the services required, she was severely beaten. She was one of many, many young women without hope and without help.
The Bill tackles that evil. Clause 4 covers the trafficking of people for exploitation, who are referred to as "passengers". It also covers those who assist traffickers to carry out their horrific crimes and those who arrange the departure of the passengers from the UK when the trafficking ring is discovered and, therefore, there is a need to transfer the passengers to another country to carry on their vile trade.
The Bill also covers illegal activities surrounding organ transplantation. It outlaws any inducement or pressure on individuals, many of whom are impoverished, to sell their organs to those people rich and unscrupulous enough to buy them. The Bill is designed to protect the most vulnerable; that is, people with little to sell except parts of their body and those who are desperately in need of protection from brutal and manipulative people who feed off the plight of unfortunates.
I support the questions raised by the noble Lord, Lord Hylton. I welcome Clause 4 and look forward to its implementation. I only wish that the media had chosen to highlight it or had given it even a little positive coverage. This clause brings hope and help to extremely vulnerable people. Surely, that is worthy of plaudits.
8.13 p.m.
The Lord Bishop of Worcester: My Lords, I am happy to associate myself with the noble Baroness in welcoming the provisions against the trafficking of children particularly, though noting that the Refugee Children's Consortium draws attention to other

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features of the Bill which are less child-friendly and which will need to be addressed as the Bill goes through this House.
However, I have a more fundamental—and perhaps less useful—contribution to make to this debate. Every few months I meet the person in my diocese whose job it is to provide counselling services for clergy under stress. She provides me with the raw statistics of the number of referrals: sometimes they go up and sometimes they go down. Every time, we have a conversation about which would be good news. This came to mind as the widespread welcome was given to the decline in the number of asylum seekers coming to this country. Is it good news? I am not so sure.
If it means that the world is a safer place—that there is less suppression and violence, that fewer people live in fear of their lives—that is a very good reason for being glad that the number of asylum seekers is going down. If, however, what it means is that this country, in common with many other countries, is constantly ratcheting up the fear involved in the process of migration and acceptance, and that people in oppressed countries are reflecting on whether their fear of that is greater than their fear of what they are enduring, then that is not such good news. I am far from sure that it is the former.
Just before the last general election, three groups of 10 Church leaders went to visit the three leaders of our main political parties in order to talk about the subject of race and how it might affect the coming election campaign. I was in the group that visited the Prime Minister, and remember saying then that I wondered whether the Government should do more to enlist public support by providing real education about the character of the asylum phenomenon and migration in the contemporary world. He and the then Home Secretary seemed to think that this would be a good idea, but I do not think anything along those lines has yet happened. What concerns me is that, whereas the noble and learned Lord, Lord Falconer of Thoroton, said that we need finality in the asylum process at an early stage, I long for some finality in the production of asylum laws. This Bill provokes in me the reflection, "When will this end?".
I welcome of course the provisions against trafficking. However, when my grandmother spent the Second World War in hiding in occupied France—and, when her husband died, had to bury him illegally in the garden—she had to pay an awful lot of money to the people who were hiding her, because there were people making money out of that. If we suppose this was entirely unjustified in the circumstances of the Third Reich, we need to remember that the rhetoric being used in this country at that time was not altogether friendly, and governments had to find resources of courage to be welcoming.
When I read the clause about the withdrawal of support, I remember the story I grew up with as a child—that of my mother arriving in this country and being told to go to the bank with one of those large, white £5 notes (the only money she had), to have it changed into £1 notes. The bank clerk made the
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insensitive error of tearing up the white £5 note before he had given her the pound notes in exchange. It is a story that has always stuck in my memory and imagination.
The account of the noble Lord, Lord Hylton, of what the process is actually like—together with the comments of the noble Lord, Lord Phillips of Sudbury, and the noble Earl, Lord Sandwich—is something into which we need to enter with imagination as we contemplate a Bill of this kind. What concerns me is that this Bill is one in a series of constant mis-statements of the problem. Of course there is a problem about trafficking, and about illegal and uncontrolled migration. These problems exist, but they pale into insignificance against some other problems to which I wonder who is giving attention.
Who is giving attention to finding how many people are sitting trembling in refugee camps in distant places, or enduring unbelievable oppression because of what they have heard about the processes which they will have to go through if they are to attempt to flee and come to a different country? Is not that a problem? How many people have been returned as a result of the draconian procedures we already have in place? Do we know and do we mind? Is that a problem about which we need to concern ourselves, and about which the public need to be educated?
The Refugee Children's Consortium rightly says that refugee children—the children of asylum-seekers—are, before anything else, children. The Disability Action Group rightly says on the subject that asylum seekers with disabilities are first and foremost people with disabilities. I do not accept, most fundamentally and perhaps least usefully for the deliberations of the House, that the Bill correctly states the problem. The problem is a world in which, for some people, migration seems the only option.
Of course, on the periphery of that ministry assembles itself a dark penumbra of criminality and sheer profiteering—but it is not the problem. It is the symptom. Those symptoms that the Bill addresses are only symptoms, and the problem remains not only unaddressed, but substantially undiscussed in the society of which we are a part. I regard that with the utmost seriousness.
Too many people have needed to speak already about Clause 14. I will say only that I am glad that it can be done away with, but I hope that it will never be forgotten. I feel quite sick that it was ever suggested.
I have wanted to say that I confront the Bill not only with some personal experience of growing up in households that talked about what migration was like. I speak also as someone who was briefly chair of the asylum committee of the Refugee Council, and as someone who has close friends working with scant resources in the west Midlands in the area of integrating, helping and supporting asylum seekers and refugees. That kind of experience leads me to say of the Bill that it simply mis-states the problem.
8.22 p.m.
Lord Corbett of Castle Vale: My Lords, the whole House will be grateful to the right reverend Prelate for coming at the Bill—dare I say it?—not as a lawyer, but with experience from another angle. I do not believe that the Bill belongs to lawyers; it has another dimension. I suggest to noble Lords that the Bill needs to be seen against the background of widespread and sustained public perception that the present system for handling asylum claims is failing. I did not state that as a fact; I said that it was a public perception.
In one recent poll, 36 per cent of respondents named asylum as their main concern. That is almost unbelievable. Every other poll tells us that the main concern is the National Health Service, education or transport. I want to say to your Lordships, particularly those who are lawyers, that those are the realities that Members of Parliament face day by day and week by week as they go back to their constituencies and meet members of the public. It is a challenge for us as well. The Government and Members of both Houses of Parliament have a duty to respond to such concerns. Unless we do, the mood of cynicism, falling voter turnout and all the rest of it will follow and accelerate.
It is not enough to condemn those who fish for votes in these waters as racists and bigots, although many are. It is not enough to condemn the bias and deliberate misreporting, day by day, of such issues by the Daily Mail, the Daily Express and others, although we should do so. We need better to understand what tempts and pushes voters into the clutches of the British National Party, not least when we prepare to mark the 60th anniversary of the Normandy landings, which presaged the destruction of the fascism that bodies such as the BNP embrace.
Too many people outside of these walls feel unheard and unrepresented on this and associated matters. There needs to be an open debate around these matters, so that we can try to reconnect with the public and their concerns. Those of us here have a responsibility, as those in the media do—as well as the faith groups, the trade unions and the voluntary organisations—to encourage and enable an honest, informed and mature debate, and I hope that this can begin to happen around this Bill.
I share with many noble Lords admiration for the work of the Immigration Advisory Service, the Immigration Law Practitioners Association and other sundry groups working in this area. In turn, they need to acknowledge public perceptions about asylum claimants and help to meet and explain them.
Clause 14, which, as we know, would have removed all supervision by the higher courts of all immigration appeals and not just asylum, has rightly attracted considerable opposition. In terms of public perception, many people do not understand how appeals can go endlessly on and on with the taxpayer seemingly footing the bill. It is the perceptions that matter. So the Government, like their predecessor in November 1992, are right to try to find a way of shortening the appeal process consistent with it
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remaining fair. I welcome the Government's willingness to listen to objectors, but if the legal brains and experience in this House cannot find a way, no one will. It should be possible to meet public concerns over often considerable delays, and give a proper role to the courts.
Much has been made of proposals in Clause 8 of the Bill to remove benefits from asylum claimants who have exhausted all appeal stages and declined the offer of an assisted return home—where this can be safely achieved—usually with the help of the International Organisation for Migration or the UNHCR.
Again, in terms of public perception, many people do not understand why people are not automatically removed when asylum claims fail. This is not straightforward, and I do not think that there is enough explanation. Some countries refuse to accept returning nationals. We rightly insist that it is safe to return failed claimants. There are difficulties in confirming a claimant's nationality and getting it confirmed by the country against which it is claimed, and so on.
If we are to win better support and understanding for the way in which we carry out our responsibilities, as we should under the 1951 UN convention, there must be a better system to return failed claimants. I ask my noble friend Lady Scotland to confirm my understanding that voluntary returns will be offered only to countries, or parts of them, where it is safe and that unless this can be achieved, no returns will be made and benefit will continue until alternatives have been found.
I do not want for a minute to sound harsh or uncaring, but those whose claims have been refused also have responsibilities, not least where children are concerned. It would be wrong to allow people in this position to seek to use children as a shield against safe return. It would also send a misleading signal to the people traffickers: if you stay around long enough in the United Kingdom, despite your claim failing, you can stay anyway. Building and sustaining a fair and efficient asylum system depends on a number of factors, not least the quality of the initial decision. The Government are aware of that and, as the UNHCR says, they deserve to be commended for their,
"willingness to engage in arrangements to review first instance procedures".
The UNHCR adds:
"This willingness deserves to be commended because independent scrutiny is an important first step towards achieving sufficiently high standards in this area".
I hope that in the same spirit we can work together to improve the present system, both for the benefit of asylum claimants themselves and to better acknowledge and respond to public concern in this area.
8.30 p.m.
The Earl of Listowel: My Lords, I welcome the intentions of the Bill, as put forward by the noble and learned Lord the Lord Chancellor, to increase public

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confidence in immigration and the process involved, and to promote the successful integration of immigrants into communities.
Like several other noble Lords, I welcome the introduction of Clause 4, which will punish people who traffic. I understand that, in organised crime in Europe, the trafficking of humans has superseded drugs trafficking in terms of financial remuneration and importance. This is therefore a timely initiation into legislation.
The principles that should govern the immigration procedures include the need for an effective initial decision on the applicant's case and an expeditious and fair process. If applicants are found not to have a valid claim, it is important that they be returned to their home country, if public confidence in the system is to be maintained. The noble Lord, Lord Corbett, has just referred to that.
We must also be cautious in our approach and remember that the predominant reason that immigrants come to this country is conflict in their home countries, as evidence adduced to the Commons Select Committee showed. Immigration flows follow conflict in countries; they do not depend so much on the level of poverty or development in a country. We should bear in mind that conflict is the predominant feature.
We need to act sensitively. I remember well speaking to a young woman from Sierra Leone who described to me how her sister had been toyed with by men in uniforms with guns. The men threatened to cut off the woman's hand or arm; in the end, they decided to kill her. The young woman to whom I spoke was still very, very upset by what had happened.
I used to play Scrabble with a young man, who I knew for a while. He was an excellent Scrabble player because he had been kidnapped in Sierra Leone and kept in the jungle for several months, where he and the other captives, who were doctors and so on, passed the time by playing Scrabble. He was an intelligent young man but had been clearly damaged by the experience. He fell back very much on the Koran, always listening to it on tape and finding succour through that means. Many such people have had traumatic experiences and must be dealt with extremely sensitively.
I welcome the principle of returning to their home countries applicants whose claims have been found to be false, where it is safe to do so. In principle, therefore, I welcome Clause 8, but I am very concerned about how it would work in practice and the consequences. I look forward to reading the correspondence from Beverley Hughes to the noble Baroness, Lady Anelay, to gain reassurance in the area. However, I am very concerned that real consideration is not given to how the provision will work in practice. Several noble Lords referred to the lack of consultation on the Bill. The withdrawal by the noble and learned Lord the Lord Chancellor of the central piece of the Bill during today's proceedings indicates that not enough thought has been given to these proposals. We need to look very carefully at the implications of Clause 8 and the
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provision to remove NASS support to families in certain circumstances, and at what consequences that might have for the care system.
The Government have acted admirably as regards the care system in introducing much greater funding to this long-neglected area. The latest programme is entitled -Choice Protects". It is entitled "Choice Protects" because each child has a different need and should be in the right placement, whether it is the right foster carer or the right residential children's home. The problem is that we are short of 6,000 foster carers, just in England. We have high ideals about what we want to do, but we are stuck with the work force—there are not enough people to take in these children. What implications does this measure have for that? We need to think very carefully about that.
Noble Lords have referred to Section 55 of the previous immigration Act. We received much literature about how that has been implemented. While that Bill was proceeding through the House, many assurances were given that people would not be made destitute and that there would be sensitive application of the law. But it appears that many people have been made destitute and we need to reflect on what has happened there as we think on this clause.
I remember another young man whom I knew for several years and with whom I studied for a short time. He came to this country from Eritrea at the age of 10 and lived with his sister and cousins here. He was a very bright young man—a member of MENSA. He went to University College, got a degree in engineering, led the college football team—a very gifted young man. Sadly, at the age of 20, when I saw him again, he was drinking and taking drugs, and really going to the dogs. My perception was that this was because he had been without his parents for so long. I would be very concerned if this clause led to children being separated from their families and their parents.
We need information on the numbers of families that the Bill is likely to affect. We need to know that the Government will have exhausted all the other possible means of removing these people. The Commons committee emphasised that more needed to be done by the Government to encourage voluntary returns and it put forward a number of proposals to encourage that. I hope that we may discuss those proposals and see what the Government's response has been. I look forward to working with the Government on this legislation. As was recognised, there was a single lack of consultation leading up to the Bill, so I hope that proceedings in your Lordships' House may allow for greater thought to be given to these very important measures.
8.38 p.m.
Lord Plant of Highfield: My Lords, like my noble friend Lady Gibson, I think there are some good things in the Bill. I want to concentrate on the things I found troubling in the same way as other noble Lords have done. I should say that I am a member of the Joint Committee on Human Rights and I endorse the report made by that committee on the Bill in February.

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Before coming into the House this afternoon, I was planning to concentrate on the issue of appeal in Clause 14. However, following the speeches of my noble and learned friend the Lord Chancellor and the noble and learned Lord the Lord Chief Justice, and the elucidation of the role of administrative courts made in the remarkable speech by the noble and learned Lord, Lord Mackay of Clashfern—with which I very much agreed—I am now much more settled over the issue of appeal. That is on the assumption, which I took from the speech of the noble and learned Lord, Lord Mackay—that the administrative court as a high court will be independent of the tribunal. Therefore, on that basis, I think I am reasonably happy.
There are some issues that I want to take up. I will return to the issue of the role of the administrative court. In paragraphs 67 and 68 of the Joint Committee's report, published in February, we drew attention to the fact that it was perfectly possible to imagine that the Immigration Appeal Tribunal might, in specific cases, act in a way that was incompatible with convention rights. Even if we accept the Government's view that the number of such cases will be low, it seems to me that numbers are not of the essence in the context of rights.
If rights have been infringed, there ought to be some kind of remedy, either under Article 13 of the European Convention on Human Rights or under Section 7(1) of the Human Rights Act 1998, and a determination that a public authority—in this case, the tribunal—has infringed convention rights. That process should be carried out by a body independent of the public authority—the tribunal—that has infringed the right. On the assumption that we are talking about an independent review, it seems that that qualm expressed by the Joint Committee is laid to rest.
That leads me to a second issue. Although it may be argued there are few immigration and asylum cases that would be concerned with civil rights, as understood in Article 6·1 of the ECHR, Articles 2, 3 and 8 impose a positive obligation on the state to take reasonable steps to protect rights against infringement. Mistakes are possible, given the conditions in which the Immigration Appeal Tribunal works, and that, again, is a good case for having access to a higher court.
I am not a lawyer, but to my mind the issue goes slightly broader than just the review by the court. I fully accept that the Bill will be amended by my noble and learned friend the Lord Chancellor, but Clause 14(7) says that the appeal tribunal may entertain,
"proceedings to determine whether the Tribunal has acted in a way which is incompatible with a person's rights under Article 5 of the Human Rights Convention (liberty and security)".
In a sense, that is a restrictive understanding of the sort of rights under the convention that can be appealed. Given that the whole idea of the Government's approach to the tribunal was to create a sort of self-contained system, does that mean that, if there is to be an appeal to the administrative courts—essentially, a form of judicial and independent review—those courts will be able to entertain the range of ECHR rights, or does it mean that the courts will be able to entertain
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only the two rights specified in the Bill? That was something that exercised the Joint Committee. On page 27 of our report, we said:
"It seems to us that this"—
the restriction to liberty and security—
"would leave many cases in which there could be a serious threat to fundamental human rights yet [this] clause would exclude the jurisdiction of the courts. For example, habeas corpus protects only the right to liberty of the person. There would be no access to courts to protect other Convention rights from being violated by immigration and asylum decisions. Some of these rights are of even greater importance than the right to liberty of the person, including the rights to life and to freedom from torture and inhuman or degrading treatment or punishment, to say nothing of the right to a fair trial and the right to respect for family life".
So what I am interested in is whether the proposed changes to the appeal system will allow the administrative court to entertain claims on that broader range of rights, as the Joint Committee suggested it should. It is an important issue and I am unclear about what the consequences of the announcement made by my noble and learned friend at the start of the debate would actually mean in that respect.
To conclude, I want to say a few words about what seems to be the general constitutional position in relation to the Bill, a matter which has been discussed quite widely and critically in the debate. I want to dwell for a moment on the claim made by the noble and learned Lord, Lord Mackay of Clashfern, about constitutional values which, it might be claimed, Parliament would have overridden in passing this legislation. I very much agree with what he said because at the root of that claim is, I think, the role of the common law. The claim is twofold. First, the sovereignty of Parliament itself is a product of the common law; and, secondly, the common law, as both customary and judge made, has over the years embodied principles of constitutionality which, over the past generation or so, have been made much more explicit by judges exercising judicial review. Hence both parliamentary sovereignty and constitutional constraints are equally products of the common law and therefore Parliament should accept that its own sovereignty is in some sense constrained by the principles of constitutionality enshrined in the common law from which it derives its own authority and sovereignty.
I am pleased that, in respect of the ouster clause, the Government themselves have decided to operate within conventional understandings of the constitutional position. In my view, one of the great successes of this Government, although there is a long way to go, has been in the field of constitutional change. It would have been a tragedy if this Bill had ridden roughshod over basic constitutional principles derived from both the parliamentary and the legal aspects of the common law.
8.47 p.m.
Lord Thomas of Gresford: My Lords, I am immensely flattered that the noble and learned Lord the Lord Chancellor has chosen my speech to be the first that he will hear in full. I am sure that he will take

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every opportunity tomorrow to read the speeches of all other noble Lords, in particular that of my noble friend Lord Dholakia. He made the very important point that immigration has been a "success story" in this country.
Not only has immigration been a success, but so has integration. The noble Lord, Lord Parekh, pointed out that we have had economic migrants coming to this country for centuries, some of them with swords and axes the Anglo—Saxons, as I recall. In addition we have had waves of people fleeing political and religious persecution. We have all integrated and benefited from that. I note that among the noble Lords who have spoken, nine have a Celtic background, nine have an Anglo-Saxon background, and the rest hail from a kaleidoscope of backgrounds which has added a great deal to this debate. I am alarmed when I read about fears of a plague of Roma people coming to this country because my Gypsy ancestors came here in the 16th and 17th centuries. They quickly integrated by adopting the harp as a way of earning a living. They would take harps around north Wales to play in pubs and clubs. Indeed, at night my friends have to restrain me from twanging the odd string in the Bishops' Bar.
We have all integrated and it has been a success. We are facing a problem only over a limited period of our history. All are agreed in this very informed debate that what is required is, as the noble Baroness, Lady Anelay, said, a "humane but efficient system". The noble and learned Lord, Lord Woolf, referred to a "fair and efficient system", which would sort out asylum seekers from economic migrants. May I just say this for emphasis: there is no reason necessarily to reject these economic migrants as failures. We ought to reflect that they may well have much to contribute to this country, even though they do not pass the asylum seeker test. They are risk-takers whose energy and drive to surmount obstacles to reach their goals is paramount. Such people have created successful and democratic societies in the United States, Australasia and elsewhere in the world.
The noble Earl, Lord Sandwich, was right to remind us that unfortunately the reform of immigration rules and policy has, for the moment, stalled. Coming to the subject matter of the Bill, surely this debate illustrates that the quality of the decision is crucial. As the right reverend Prelate the Bishop of Oxford said, finality is less important than the correct and just decision.
The noble Lord, Lord Brennan, pointed out to us the various stages of processing that an applicant for asylum has to go through. Under pressures of time, because there are very strict time limits placed upon applications, the applicant must first of all understand the procedures that he has to operate, and that may require interpretation. He then has to marshal his case, and my noble friend Lord Phillips of Sudbury reminded us that medical reports may be required to prove that the applicant has been subject to torture. He may have to prove, for example, that he is a member of a particular tribe in Somalia, because the Home Office will accept that if one is a member of one tribe
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in Somalia, that is the end of the issue—there is no further question. Very often that is an issue at that stage.
The applicant may have to show what the activities of a particular government are—for example, the current position of the government of Zimbabwe towards people of a particular political persuasion. He may have to deal with the loss of his documents and provide explanations for all that. Then he has to present his case to an unsympathetic interviewer. His legal aid, which your Lordships might think should be increased by a humane system, is now to be reduced, as the noble Lord, Lord Phillips, pointed out.
So that is the first step. Then there is the decision itself, and that is where the greatest delay arises: the initial decision is in the name of the Home Secretary, but it is in fact taken by a caseworker on the basis of the papers that are placed before him or her. My information is that such caseworkers are paid something in the region of £15,000 a year, which indicates to your Lordships the experience that such people have in taking these particular decisions. Some of them, I am told, are graduates who cannot get another job, and produce very good decisions. Others are less fortunate. Some are immigrants themselves, who, having come into the country in this particular way, are thought to be good to help in these decisions.
So an appeals process is clearly necessary. This is the third stage of the noble Lord, Lord Brennan: the appeal to the adjudicator. The scandal—because it is a scandal—is that the Home Office is represented in only about 60 per cent of those cases, and, with the limitations now being placed on legal aid, there is now a considerable chance that the applicant will be unrepresented as well. I am told that adjudicators have been instructed, if they are presented with an applicant in person and nobody from the Home Office, to do the best they can. In such circumstances, as is the tradition of this country's legal profession, the judicial figure will do his best to ensure that the applicant's case is properly put.
But that takes time, and points that may be made by the Home Office against an applicant are not made because there is no one there. I was amazed to be told that 40 per cent of appeals from the adjudicator to the tribunals are by the Home Office. Those appeals are brought because, very often, points adverse to the applicant have not been made and therefore the applicant has been successful. No doubt I shall be told if that statistic is wrong, but if it is right that is a disgrace.
There is a danger that if the principal indicator of the quality of a decision is the rate of success of asylum appeals, that will lead to cuts in legal aid, a single tier of appeal and an extension of the safe country concept. All those matters, plus the other problems to which the Bill gives rise, will make it more difficult to overturn the bad initial decision, and so the success rate of appeals will fall.
The logic the Home Office will then apply is, "If the success rate of appeals falls, that shows that the initial decision was a good-quality decision, so why do we not

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abolish legal aid altogether and then all appeals will fail?". That is the sort of danger that exists under the whole panoply of the reforms—I use the word with question marks around it—proposed by the Government.
I have criticised the initial decision making and the problems that arise on appeal but, at the other end of the process, only 15 per cent of failed asylum seekers are returned. That is not the fault of the lawyers. Many people say, "We are not lawyers; we are not inflicted with that particular plague", but it is the Government's failure to organise a fair and just system for dealing with people who do not pass the asylum test that, again, is a matter of deep concern.
How does the Bill improve the position? The noble Baroness, Lady Kennedy, has given the history of the supervisory jurisdiction of the High Court. Under the prerogative writs, under the judicial review system, the court does not purport to take away from the decision-maker the right to decide in a particular case. But, traditionally, on judicial review the court ensures that the procedures have been just and fair; that the higher courts—whether the Divisional Court, the Court of Appeal or the House of Lords—set standards and that the standards they set affect the whole system all the way down to the initial decision. It is quality control; it is acting as a regulator. If they were called "Ofjudges", that would go down very well with this Government, who have "Of" this and that in almost every field.
But the Bill as drafted makes the tribunal the judge of the fairness of its own procedures. I know that someone in the pub in Gresford will say to me, "Does Parliament have no regard to the principle nemo iudex in sua causa—no one should be a judge in his own cause—because for 2,000 years it has been accepted that a tribunal is blind, or may be blind, to its own errors?". Therefore the proposals initially set out in the Bill conflict with the principles of the English common law which, where it is old enough, go back to the very start of the legal systems that we know about.
In addition, there is in the Bill an attempt to coerce people to do things. It will be an offence to enter this country without a passport, although the true asylum seekers are the least likely to have passports and papers in the first place. It will be allowed for support to be withdrawn from people in an attempt to encourage them to get out of the country and make them indigent. We are saying, "We don't want you". We are threatening to take people's children away from them to coerce them to do things.
I entirely agree that it is a difficult problem. But the Bill, I suggest, has been formulated in a climate of prejudice and bigotry. We look to the Government for leadership—for resources of courage, as the right reverend Prelate the Bishop of Worcester said. The noble Lord, Lord Corbett, said that the public perception is that the system is failing. Notice that he did not say that the system is failing, only that the public perception is that it is failing. The public perception depends upon leadership. If the public
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think it is failing it is because the Government lack leadership. Let us have an open debate on these issues, and let us use the Bill as an opportunity to do so.
9.1 p.m.
Lord Kingsland: My Lords, I cannot think of a worse area of the law to make the basis of an ouster clause than immigration law. We, mercifully, abolished the death penalty many decades ago; but the consequences of making bad asylum decisions are often to send people to their death. I am therefore greatly relieved that the Government have decided, on mature reflection, to think again about the ouster clause and Clause 14.
The Government's attempt to persist with the clause until now has had, I think, one lasting benefit to the country, which has been reflected in a number of speeches made this afternoon. If I mention only those of the noble Lord, Lord Clinton-Davis, from the Labour Benches, the noble and learned Lord, Lord Woolf, from the Cross Benches, my noble and learned friend Lord Mackay of Clashfern from the Opposition and the noble Lord, Lord Lester of Herne Hill, from the Liberal Democrat Party, I hope that other Peers will not feel that they do not deserve an association with what I am about to say.
Tonight we have had an important constitutional debate which was, if I may respectfully say so, very effectively summarised by the noble Lord, Lord Plant. He reminded us that the doctrine of parliamentary sovereignty is not an assertion by politicians—it is a doctrine of our courts. It is our courts that say that Parliament is sovereign. And in saying so, it is also our courts that determine what the limits of parliamentary sovereignty are. I would like to think that, when the noble and learned Lord the Lord Chancellor began to reflect on Clause 14, this factor played a part in his subsequent decision.
I suppose that in a free society there are two cornerstones: one is democracy and the other is the rule of law. The essential component of democracy is access to the ballot box for everyone. The essential component of the rule of law is access to the courts for everyone. Underpinning both these concepts is a society's deep belief in equality. Everyone has access to the ballot box; everyone should have access to the courts. The noble and learned Lord the Lord Chancellor has listened in the past few weeks to many things the judges and others have been saying about Clause 14. I should like to think that he reflected on the constitutional limits of parliamentary sovereignty; and if he did, I congratulate him.
Whatever motivated the Government's decision, it has illustrated to the country—and to all political parties—what the limits of parliamentary sovereignty should be. The debate this afternoon has brought that out in an extremely effective way, and I believe it will have deep, long-lasting and beneficial implications for the quality of legislation in the future.
I want to look ahead now to the Committee stage and make some suggestions to the Government—they may think rather impertinently—about the direction in which they ought to travel.

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I have always believed that the ouster clause—quite apart from being constitutionally improper—is also unnecessary: if the Government can devise a statutory scheme which is fair, then the courts will exercise their discretion not to grant judicial review; and, therefore, the Government will not be faced with a series of re-applications to the courts on what is essentially the same issue.
There are three components to a fair statutory scheme. The first one is that, on matters of law—on alleged errors of law—there ought to be an appeal from the tribunal to the Court of Appeal and, if necessary, to the House of Lords. This is particularly important in asylum matters because the law is so complicated. We not only have a large number of primary legislative measures, but we also have detailed rules—the immigration rules, and immigration and asylum rules on appeals. Behind this, we have two very important public international conventions, the refugee convention and the human rights convention. This is a complex web of legal measures which will, inevitably, test the appeals tribunal, on occasions, beyond its capacity. It is, therefore, vital that the role of the Court of Appeal and the House of Lords is reinstated whatever else the Government propose to do with Clause 14.
I do not believe that this will be an additional cause of delaying the system. The statistics indicate that, last year, there were between 50 and 60 appeals to the Court of Appeal, and very few beyond that to the House of Lords. It must be right that that situation—which is in the existing legislation—is preserved in the Bill.
Secondly, as a number of noble Lords said—I recall particularly the speech of the noble and learned Lord, Lord Donaldson of Lymington—it is vital to reinstate in the Bill the supervisory powers of the administrative court to deal with applications for leave to appeal from the decisions of the adjudicator.
The noble and learned Lord, Lord Donaldson of Lymington, was perfectly right. He mentioned a statistic that over the past seven to eight months about 550 applications were considered. He also said that a rather high proportion of those were allowed, a little over 20 per cent. That is a reflection, I suspect, of the quality of decision making at adjudicator level. The lesson that ought to be drawn from this is that the main focus for the Government in devising a new scheme for Clause 14 ought to be at the adjudicator/appeal tribunal level.
What the Government want to do here—and there is evidence for this because it is on the face of the existing Bill—is to concertina the existing adjudicators with the existing appeal tribunal. In principle, we on the Opposition Benches are not against that; but we are against a solution which does not improve the quality of existing decision making. If we are going to have a one-stop shop rather than a two-stop shop, then it is vital that the institution that emerges does better than the combined effect of the two institutions that we have at the moment.
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It is premature to make detailed comments about what we think that ought to be. I think it better to wait for the Government to come up with their proposals. However, it would not be satisfactory to the Opposition simply to keep the adjudicators and abandon the tribunals. Something new has to be produced which meets the weaknesses of the existing adjudicator system. As a number of your Lordships have said, in my view quite rightly, what we want is a system that is both just and at the same time effective.
The other area that I hope the Government will look at—again, this has been mentioned by many of your Lordships—is the various earlier stages in the procedure between the asylum application and its consideration by the Home Office, and the period between the consideration of the Home Office decisions and the consideration by the adjudicator. Those are areas of great delay. I am convinced that, with better administrative procedures, the delays could be substantially reduced.
So the ouster clause is gone. The Government are going to think again. We must now all look forward to the Committee stage of the Bill.
9.11 p.m.
Baroness Scotland of Asthal: My Lords, I think it was the noble Lord, Lord Thomas of Gresford, quoting the right reverend Prelate, who said that leadership needs courage. I think that your Lordships have had no lack of that this evening.
I very much welcome the tone of this debate. I think that the noble Lord, Lord McNally, said that perhaps we all need to apply a deal of humility in looking at the history of how this issue has been dealt with over a period of time and a number of years. I was a little more doubtful about the title he gave me as "chief charmer" for the Government.
The noble and learned Lord the Lord Chief Justice says, and I think he said it well, that the system needs to be fair and just and not readily susceptible, I think he said, to abuse. We respectfully and wholeheartedly agree. The truth is that we all want a balanced, fair and just determination; in that, the Lord Chief Justice and the right reverend Prelate the Bishop of Oxford are absolutely correct. We have acknowledged that delay and abuse have to be removed. The old adage that justice delayed is justice denied holds particularly true in cases dealing with asylum seekers who are subject to the anxieties and trauma of having to resettle after a period of real disadvantage.
Much has been said about the quality of the initial decision-making process. That was a theme taken up by the noble Baroness, Lady Anelay, the right reverend Prelate the Bishop of Oxford, and the noble and learned Lord, Lord Donaldson, among others. We appreciate that fact. The Government have made strenuous and successful strides to reverse the figures so as to demonstrate an enhanced quality of assessment and determination.
The noble Lord, Lord Thomas of Gresford, raised the issue of presenting officers. We accept that the average level of representation for January to

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December 2003 was 70 per cent. That figure covers both presenting officers and counsel. By the end of March 2004, an additional 65 presenting officers will be in post, representing the Home Office at adjudicator appeals. We very much hope that that enhancement will assist us.
I can also reassure the noble and learned Lord the Lord Chief Justice and give him the assurances he seeks that our current arrangements on discipline and removal of judicial officers will continue and will not be removed without his concurrence. We also appreciate the Lord Chief Justice's anxiety about the provision in relation to the practice direction. We very much hope that this issue can be settled in a way that is satisfactory to him.
The right reverend Prelate the Bishop of Oxford raised the issue of legal aid, as did the noble Lord, Lord Phillips of Sudbury, and others. I can assure the right reverend Prelate and noble Lords that five hours refers to the time provided to ascertain whether there is a valid case. If more time is merited, more time can be provided. I know that noble Lords will have a full opportunity to debate those matters with my noble and learned friend the Lord Chancellor when he comes to address them in due course.
The legal aid regulations and provisions are of course extremely important, but they do not go to the root of many of the issues that we have been discussing today. I assure my noble friend Lord Clinton-Davis that the Bar Council and the Law Society have not been backward in coming forward with their comments. They have written to my noble and learned friend the Lord Chancellor on that matter and their views will be taken fully into account.
Lord Clinton-Davis: My Lords, it is one thing to make written representations. Will my noble friend, on behalf of the Government, ensure that Ministers and officials have meetings with the Bar Council, the Law Society and with the immigration authorities?
Baroness Scotland of Asthal: My Lords, there is no resistance to that if it seems to be appropriate. I cannot speak from the Dispatch Box to my noble and learned friend the Lord Chancellor as he is no longer by my side, but I am sure that he would be delighted to do that. I see him nodding his assent.
It is important that we all have an opportunity to debate and discuss those matters. The noble and learned Lord, Lord Mackay of Clashfern, said clearly that it is not an easy issue to deal with. From the experience that he had in government, he must appreciate the enormity of the task with which we are all faced.
However, the adherence to the rule of law, and equality and parity of treatment before our courts, are principles that the Government are determined to maintain. We accept that we must address the delay and difficulty presented by those who wish to take advantage of what they see as loopholes in the process, but that will not be at the sacrifice of other issues of fairness.
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I assure the noble Lord, Lord Dholakia, that the Government recognise the great advantages of diversity and we rejoice in it and are enriched by it. I heard the noble Lord's reference to a report of the comments in America of my right honourable friend the Home Secretary, but the theme of that speech was the huge benefit in diversity. It was said that problems had occurred between communities and that the challenge for us is to maximise the benefits and to minimise the difficulties. The Home Secretary said at Harvard that he was convinced that we can combine diversity with integration and therefore with stability, thereby maximising the benefits. I am sure that the noble Lord, Lord Dholakia, would agree with those sentiments.
The balance that we have sought to strike is between safeguarding those who seek and deserve to receive succour as a result of being seekers of asylum and penalising those who seek to delay and to obfuscate. I am sorry that the noble and learned Lord, Lord Donaldson, felt that in our efforts to provide a fair and just system, the Home Office may find itself castigated as a vexatious litigant. We have no such intent and our behaviour, which has been proportionate in the way in which we have addressed litigation, assisted as it is so ably by Treasury counsel and others, would not justify us being so categorised.
Noble Lords raised issues about what further changes we can make to the system, and rightly identified some of the difficulties that we face in relation to legal aid and the approach of a limited number of practitioners. The noble Lords, Lord Newton and Lord Avebury, questioned whether the change to a single tier was merited. The noble Lords, Lord Newton and Lord Avebury, asked whether as lawyers they could make an appropriate contribution. I certainly join my voice to that of my noble friend Lady Kennedy of The Shaws, in saying that all voices are welcome in this debate, and the lawyers by no means have the balance all in their favour.
In response to the noble Lord, Lord Newton, the proposed model for the tribunal has built into it a number of safeguards. It has starred determinations, which will be made by a panel in conjunction with the president and deputy president. That will provide authoritative case law that is binding on members of the tribunal. It will bring together the expertise of the two tiers and the judiciary and the tribunal will be mutually supportive. We shall consider all those issues together, and shall be able to hone them in a way that will, I hope, inure to the benefit of the system. I join with the comment made by my noble and learned friend the Lord Chancellor in saying that I am confident that we can find a solution that meets the needs of all.
The noble Lord, Lord Avebury, specifically raised issues about the numbers going down, so that we do not need a single tier. That was the thrust of one of the comments that he made. Even if the numbers in absolute terms fall, the percentage of people seeking to review decisions would be unlikely to alter. We have all

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said that we do not want there to be a slow system that was unfair in which genuine asylum seekers were delayed.
Lord Avebury: My Lords, presumably, if the Government are claiming to improve first decisions, people will not feel so inclined to appeal and the percentage will go down.
Baroness Scotland of Asthal: My Lords, we have said that we agree with that. I by no means seek to undermine the comments that we have made in the past, that the improvement of the initial decision-making process is of real importance. We have made strenuous strides to improve that, and it is a matter of some mild satisfaction that the level of appeals has been affected as a result.
Lord Lester of Herne Hill: My Lords, I am sorry to have to ask my questions of the Minister and not of the Lord Chancellor, who has achieved his usual invisibility in donning the wig and sitting on the Woolsack. However, could she make two points clear to the House? First, are we to understand from what was said at the beginning of the debate, that when the Bill says that the tribunal's jurisdiction will be exclusive and final, those words will no longer represent the Government's position because there will be judicial review? Secondly, does the Minister accept the view expressed on all sides of the House that Parliament's sovereignty depends upon the common law and is not absolute and unlimited if it violates democracy or the rule of law?
Baroness Scotland of Asthal: My Lords, I can say an unequivocal "yes" to the first question. I hope that we have made it clear that the provisions that we are minded to introduce will replace the current Clause 14 with a new system. My noble and learned friend the Lord Chancellor has made it plain that he hopes that in crafting something between us we shall be able to involve the administrative court in a satisfactory way. I also bear in mind the comments made by the noble Lord, Lord Kingsland, and others, in relation to the number of cases that will be subject to judicial review if it is replaced by an alternative. One possibility being discussed by a number of noble Lords is statutory review—as the noble and learned Lord, Lord Mackay, said, among others. That is what we are considering now. At this stage, we cannot look at the precise details because we are in the process of formulating them. But it was important that that statement was made by my noble and learned friend at the beginning to set the scene for the direction in which we all hope to go.
I am sure that my noble and learned friend the Lord Chancellor will not only listen to everything that has been said in the debate but also read every word about the issues raised with great care. In particular, I noted the comments made by the noble Lord, Lord Lester, and my noble friends Lady Kennedy of The Shaws and Lord Plant. My noble friend Lady Kennedy said that good politicians make the weather. We do, and we are.
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My noble and learned friend the Lord Chancellor set out the sort of weather that he intends to develop. As I said, the difficulties that we face have been set out in the debate. My noble and learned friend also set out the course which we—all of us—are now jointly embarked on. I hope that this opportunity will be grasped by all; that is, those noble Lords who may not have wanted any change whatever and those who are accused of wanting too much change.
My noble friend Lord Corbett said that we have a duty to respond to these concerns and to encourage informed debate. I respectfully agree. I understand the concern of the right reverend Prelate the Bishop of Worcester about discouraging genuine asylum seekers, but that is not the intent behind these procedures. If we manage to improve the procedures, we shall assist in reducing the anxiety that many asylum seekers experience as a result of the delay and help to ensure that they can settle and start to address many of the problems which they inevitably will face.
Despite some of the deeply held arguments put forward about Clause 14, we have found a lot of common ground on these complex issues. Most of us agree that public confidence is essential for the successful integration of refugees and for maintaining good community relations in towns and cities across the United Kingdom. The country's long tradition of welcoming genuine refugees and legal migrants should be encouraged to continue. We are fortunate to live in a diverse and tolerant society that, by and large, welcomes and embraces inward migration.
We have dwelt considerably on Clause 14. It is right that I seek to address other issues that have been properly raised by a number of noble Lords. The noble Lords, Lord Dholakia and Lord Avebury, and the noble Earl, Lord Russell, referred to Clause 2, which deals with the difficult and serious problem of individuals who are undocumented seeking leave to enter or remain in the United Kingdom. We know that many of those individuals have documents when they begin their journey. By the time they arrive in the United Kingdom, they claim not to have them, despite the fact that it is virtually impossible to get on many airlines without a passport or equivalent.
By introducing a criminal offence of being undocumented, we are sending a clear message that it is unacceptable for people to dispose of their papers in order to frustrate the consideration of their claim and, should the claim be refused, frustrate their removal. I can assure the House, as the Government have done on many previous occasions, that the clause is not designed to catch, for example, refugees who are fleeing their country without papers. Where people do not have a passport during their journey to the United Kingdom, that will be a reasonable excuse for not having it when they seek leave in the United Kingdom. Therefore, they will have a defence under Clause 2.
I also assure the House that we have taken full account of our obligations under Article 31 of the Refugee Convention. Following an amendment we put forward in the other place, we have provided an exception to the general provisions that it will never be

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a reasonable excuse to dispose of one's passport just because one is instructed or advised to do so by an agent. The exception will cater for the rare situation where, for example, an individual is so vulnerable or dependent on the person giving the instructions that he or she cannot reasonably be expected to ignore them.
The noble Earl, Lord Russell, touched on the burden of proof. Where a person is shown to be undocumented, the onus is on the individual to show on the balance of probability that he or she has a good reason for being undocumented; for example, that they never had the document. Given the special nature of the offence and that it will be uniquely in the knowledge of the individual to explain how he or she came to be in the United Kingdom without a passport, we are satisfied that it is right for the onus to be on the person to show that. I am glad that the Joint Committee on Human Rights shared our view.
I was asked a specific question in relation to children. I think it was the right reverend Prelate the Bishop of Southwark who raised this issue and asked specifically what happens when a child does not have a passport. The defence of "reasonable excuse" would include situations where, for example: the child never had a passport; the child travelled with an adult who was in effect in control of the passport and took it away; the child was pressurised into releasing their passport in circumstances where he or she could not reasonably resist that pressure. It would be a very rare case indeed for the offence to apply in practice to an unaccompanied child. However, it would not be right to exclude them from the scope of the clause since there will be situations where the offence might properly apply —for example, a 17 year-old child who chooses to dispose of their passport with a specific aim of ensuring or enhancing their claim.
A number of noble Lords—my noble friend Lord Parekh, the noble Earls, Lord Russell and Lord Listowel, and the right reverend Prelate the Bishop of Southwark—all raised the issue of withdrawal of family support. Clause 8 has been subject to some misunderstanding. The policy is not designed to make families destitute; it is to encourage a family whose asylum claims and appeals have been rejected to take up the more dignified option of a paid, voluntary flight home with some reintegration assistance at the other end, instead of having to enforce their removal and sometimes detain them. The choice for these families is not between staying in the United Kingdom and going home; it is between returning voluntarily with some integration assistance, or having their removal enforced.
Withdrawal of support will not be an automatic process. We will put in place a robust procedure to make people aware of the consequences of failing to leave and what they need to do to avoid withdrawal of support. We continue to assess the best way to implement these propositions and have really listened to the points raised. That is why we amended the Bill to allow a right of appeal to the asylum support adjudicator and this will provide further confidence in
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the overall process we envisage for Clause 8, and further reassurance that, where support is withdrawn, the decision is the correct one.
Compulsory removal is, of course, one of the options open to us. We will intensify our programme of these removals where possible, although it is clearly preferable for families to take up the more dignified option of voluntary return. Where a family does not have travel documentation, compulsory removal simply cannot take place. If a family do not have a document, we need to apply on their behalf to the relevant embassy to obtain one. Necessarily, this requires the family's co-operation as an embassy will not issue a travel document unless it is satisfied of the family's true identity and nationality. There remains, therefore, an incentive for some to fail to co-operate with the steps we have applied to take and, ultimately, this would thwart their removal altogether.
It is that incentive we must tackle, and of course we do face difficulties in returning failed asylum seekers to particular countries when there can be practical problems in obtaining travel documentation or secure routes back. It is important to keep in mind that these difficulties do not mean a country is unsafe simply because we are not in a position immediately to enforce removal. That should not mean that a family remains entitled to support at the taxpayer's expense indefinitely, when there are other options available.
I would also draw attention in particular to the voluntary assisted returns and reintegration programmes operated by the International Organisation for Migration. It is open to all failed asylum seekers to apply to the IOM to take part in this programme and we would expect families to take up this opportunity to make a dignified return home.
My noble friend Lord Corbett asked what would happen in relation to voluntary returns to unsafe countries. Each individual claim is considered on its merits. Therefore, we would only expect a person to return to a given country if we believed that it was safe for that individual.
No doubt we will return to many of those topics when we come back to the debate, but I hope that I have time to touch on the issues of trafficking for exploitation. My noble friend the Chief Whip is giving me the nod, so I shall speak as quickly as I can.
A number of questions were raised by the noble Lord, Lord Hylton, the noble Earl, Lord Sandwich, my noble friend Lady Gibson, and, again, the noble Lord, Lord Corbett, about the offence of trafficking for exploitation in Clause 4. I give warm thanks to those who commended the Government on that. The Government are committed to tackling effectively the crime of human trafficking, and that new offence is an important step in ensuring that sufficient legislative measures are in place. However, we of course recognise that that alone will not solve the problem of trafficking. The Government's efforts on the issue therefore go substantially wider, to tackle the range of problems presented by trafficking. Our work includes prevention, identification and support of victims, and prosecutions.

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The noble Lord, Lord Hylton, raised a question about spreading the message internationally of the serious nature of trafficking as a crime. I assure him that there are a number of schemes in source countries and regions involving the Foreign and Commonwealth Office and the Department for International Development aimed at raising awareness of trafficking. One example of that is the support given by DfID to Anti-Slavery International's work with civil society in west Africa to raise awareness and stop the trafficking of children.
The noble Lord and others raised an important issue about identification of victims and the need for the Immigration Service to be aware of trafficking as an issue. I can again provide reassurance that the immigration officers are aware of trafficking as an issue. One example of that in practice is that officers throughout the United Kingdom have been made aware of the trafficking toolkit, a publication that aims to raise awareness of trafficking and help those concerned to treat its victims appropriately. It is of course important, once the victims have been identified, that appropriate support is given to them, and social services will have a key role to play in that provision.
An issue was raised about reflection periods and residence. We are satisfied that our current practices have due regard to the effect of removals on all persons who have breached immigration law, including those
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who may be victims of trafficking. The Immigration Service will treat every application from a victim of trafficking on its individual merits, and will consider all relevant information. We therefore do not consider that separate and specific provision needs to be made.
The Bill contains a number of important measures to ensure that we are able to achieve all those aims. I commend it to the House.
Lord Phillips of Sudbury: My Lords, will the noble Baroness address a question that I raised in relation to the Community Legal Service (Scope) Regulations, which are before the House later this week? If passed, they will pre-empt the very debate that she was looking forward to with the noble and learned Lord the Lord Chancellor in relation to legal aid matters.
Baroness Scotland of Asthal: My Lords, the noble Lord will know that such matters usually have to be dealt with through the usual channels. Noble Lords will see that the debate is listed in the Forthcoming Business. I have had no indication that the Government are minded to remove it therefrom, but all will obviously have heard the comments that he and others have made. They will be able to make whatever decisions are deemed appropriate.
On Question, Bill read a second time, and committed to a Committee of the Whole House.
House adjourned at twenty-one minutes before ten o'clock.