Lords Sitting of 18 May 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 Salisbury.

Newspapers: Influence on Public Policy
Lord Lea of Crondall Lord Lea of Crondall asked Her Majesty's Government:
Whether newspaper proprietors should have more influence over the development of public policy than Parliament.
The Parliamentary Under-Secretary of State, Department for Culture, Media and Sport (Lord McIntosh of Haringey): No, my Lords. Parliament is of course responsible for legislating on public policy issues. But in developing policy issues the Government listen to other views.
Lord Lea of Crondall: My Lords, I thank the Minister for that reply. First, does he agree with the analysis of Mr Geoff Mulgan, head of policy at No. 10, speaking in a lecture on 7 May, that,
"the lack of a strong ethic for searching for the truth in much of the media has the net result that the public are left with systematically inaccurate perspectives on the world—on issues ranging from Europe to migrants to public services?"
Secondly, does not the need to change the culture of unaccountability—the culture that you can print anything which is not libellous so long as it sells newspapers—make the case for a totally independent ombudsman, established by Parliament, to assess complaints about inaccuracies?.
Lord McIntosh of Haringey: My Lords, I thought I heard sounds of approval for the views of my noble friend and those of Mr Geoff Mulgan from a number of quarters within the House. Mr Mulgan is entitled to his views as a private citizen. I assume that that is the basis on which he expressed them.
On the issue of self-regulation, we have the Press Complaints Commission, which has a significant number of lay members as well as editors of newspapers serving on it. We have editors of newspapers with contracts which require them to adhere to the principles of the Press Complaints Commission, and of course the lay members
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of the Press Complaints Commission are appointed by an independent appointments commission, which includes three Members of your Lordships' House.
Baroness Trumpington: My Lords, what is the point of the Press Complaints Commission if newspapers are never punished when found guilty?
Lord McIntosh of Haringey: My Lords, I am not sure what the noble Baroness, Lady Trumpington, means by "punished"—clapped in irons? Brought before the Bar of the House?
Baroness Trumpington: My Lords, a little hit of money would not come amiss.
Lord McIntosh of Haringey: My Lords, there are few countries in the world which have government-appointed press regulation bodies. I can discover only two, but I cannot remember which they are. I would not wish us to join that small number of countries.
Lord Borrie: My Lords, is it acceptable in a democracy that one man or one company in which one man has a dominating influence should own not only several newspapers but perhaps also other interests in radio and television, so that there is a real lack of diversity in the ownership of newspapers and other media which influence public opinion?
Lord McIntosh of Haringey: My Lords, I suspect that my noble friend is referring to a gentleman whom the noble Lord, Lord McNally, would describe as an Australian/American media mogul. If that is the case, I remind the noble Lord that in the Communications Act 2003, we provided criteria of the public interest in media mergers. Those criteria were the accurate presentation of news, the free expression of opinion and, to the extent reasonable and practical, a sufficient plurality of views in each market in the United Kingdom or part of the United Kingdom.
Lord McNally: My Lords, has the Minister noticed that the Prime Minister and the Chancellor of the Exchequer have taken to having regular meetings with that Australian/American media mogul? How can his Secretary of State and the Secretary of State for Trade and Industry protect the public interest if deals are carved up in the rose garden of No. 10, where, as is reported in the Guardian, even the noble Lord, Lord Butler, is getting worried by the fact that many meetings take place in Downing Street with no minutes, no record and therefore no defence of the public interest.
Lord McIntosh of Haringey: My Lords, I pay great attention to the activities of the Prime Minister and the Chancellor of the Exchequer, but it does not extend to monitoring their diaries, so I do not know who they meet. As to reports in the Guardian, I suppose in response to any question other than this I should say, "Don't believe everything you read in the newspapers".
Baroness Buscombe: My Lords, surely we cannot complain that newspaper proprietors are increasingly

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exerting influence over public policy, more so than Parliament, when the noble Baroness the Lord President of the Council has just told the Financial Times that this Government, if re-elected, will seek to diminish the powers of your Lordships' House?
Lord McIntosh of Haringey: My Lords, I have not read the Financial Times and my noble friend may or may not have said what the noble Baroness, Lady Buscombe, says. But it sounds to me like another example of, "Don't believe what you read in the newspapers, even the Financial Times".
The Lord Bishop of Salisbury: My Lords, does the Minister agree that the way that this little interchange has developed is diverting attention from the ethical deficit at the core of the information society? Is not that the real question we should be dealing with rather than these kinds of exchanges?
Lord McIntosh of Haringey: My Lords, I have a lot of sympathy with that view. Those who concentrate attention on some of the inevitably more extreme views of a press, which is not regulated in this country by government—and in our view it should not be regulated by government—still fall short of the standards referred to by the right reverent Prelate. Our duty as citizens and as readers of newspapers is to make choices on what we buy and read and to make our views felt if we are not satisfied.
Baroness Warnock: My Lords, does the Minister agree that, whatever the merits or demerits of the press, it does not help the general public to understand what is in a way the most important issue before us: that of Europe? If we are to have a referendum on the constitution, could not the Government do something to educate the public, who are at present absolutely ignorant about the issues on which they are to be asked to decide?
Lord McIntosh of Haringey: My Lords, I understand that the House debated that issue at some length last week and that views such as the noble Baroness, Lady Warnock, expresses were expressed in that debate. It would be hugely controversial if the Government took upon themselves to inform the public about the issues in Europe during a referendum campaign. There could be considerable criticism.
Lord Stoddart of Swindon: My Lords, if newspaper proprietors indeed have more influence over public policy than Parliament, which is sovereign in this country, is that not the fault of Parliament, rather than the newspaper proprietors?
Lord McIntosh of Haringey: My Lords, that was the assertion of my noble friend Lord Lea; I do not agree with it. I do not believe that newspaper proprietors
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have more sovereignty than Parliament; I believe that it is Parliament's responsibility to assert its sovereignty and I think it does.
Lord Puttnam: My Lords, the original Question mentioned proprietors. We live in an era in which the dividing line between proprietors and shareholders is becoming ever more vague. Does my noble friend believe that the Government have either sufficient controls or influence in place to ensure that a very large shareholding purchased by someone from overseas in one of our national newspapers that tended to influence the policy and direction of that newspaper could be curtailed?
Lord McIntosh of Haringey: My Lords, I have explained the context of the Communications Act, in which there is a public interest on behalf of which the Government might be entitled or obligated to intervene. I accept that there is a potential difference between proprietors and other shareholders. There are four kinds of newspaper proprietors: those who claim to influence editorial policy and do; those who claim to influence editorial policy but do not; those who do not claim to influence editorial policy but do; and those who do not claim to influence editorial policy and do not.
Lord Lawson of Blaby: My Lords—.
Lord Grocott: My Lords, we are into the 10th minute.

Patients Forums
2.45 p.m.
Lord Clement-Jones Lord Clement-Jones asked Her Majesty's Government:
Whether they are satisfied with the progress and performance of patients' forums.
The Parliamentary Under-Secretary of State, Department of Health (Lord Warner): My Lords, we are satisfied generally with the progress made. Since their establishment at the end of 2003, patients' forums have been building relationships with key local stakeholders. Many forums have undertaken specific reviews of local health services and are now contributing patients' views to local decisions.
Lord Clement-Jones: My Lords, many, both inside and outside the National Health Service, will be surprised at the Minister's satisfaction. It is already clear that patients' forums lack members, openness about their membership, resources, facilities, infrastructure and, above all, experience. They are currently completely unable to do the job that they are supposed to do, which is to scrutinise the National Health Service. That already bears out the fears of many of us when the Government chose to abolish community health councils. Is it not now time, before things go much further, for the Government

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to institute an independent evaluation of patients' forums to ensure that they can carry out the jobs that they are supposed to do?
Lord Warner: My Lords, about 5,000 people have been recruited to serve on patients' forums. My information is that all patients' forums have their minimum number of members, which is seven. The Commission for Patient and Public Involvement in Health recruits forum support organisations, with 68 of them involved providing support to forums themselves. It is on the public record that about 25 per cent of the members of forums are former members of CHCs.
Baroness Gardner of ParkesMy Lords, is it not a fact that, although, as the Minister says, patients' forums may have members, there has been little choice of people to serve on them? That means that they are not really representative of their communities. What is the Minister going to do to ensure that the general public understands the purpose of both patients' forums and the Commission for Patient and Public Involvement in Health? With the community health councils people knew where to go; they had become a well established, well known name. The Government have a passion for name changes and no one now knows where to go if they have a National Health Service complaint. What will the Government do to educate the public more widely on the matter?
Lord Warner: My Lords, the noble Baroness is a little unkind to us. The commission is responsible for putting the system in place. The Act that provided for that was passed by this House and the other place. As I said, forum support organisations are supporting patients' forums. They are under a contract that expires next year and their performance is being monitored. On my visits to hospitals, I have seen patients' forums clearly identified and prominently housed in many of our hospitals. We need to give the system time to run at local level to ensure that it is the success that we all want.
Baroness Greengross: My Lords, is the Minister satisfied that patients' forums are reaching out to the most vulnerable people in the communities that they serve?
Lord Warner: My Lords, as I understand it, the point of the commission appointing patients' forum support organisations was that they comprised people who were in contact with local networks and could provide linkages between the forums and those networks. My information is that there is a good gender balance, about 10 per cent of forum members are from ethnic minorities and a very large proportion are people with a disability.
Earl Howe: My Lords, has the Commission for Patient and Public Involvement in Health decided to cap the number of members per patients' forum at 10? If so, where did the idea come from and do the Government approve of it?
Lord Warner: My Lords, I am unaware that the commission has capped the number at 10, but as Parliament decided in the legislation to make the commission independent, the Government have respected its independence. The commission is responsible for monitoring the performance of the forum support organisations and patients' forums.
Lord Hunt of Kings Heath: My Lords, is my noble friend aware that the very point of independence is apposite, because it was the parties opposite who argued during the passage of the Bill in this House that the commission should be independent? Is he puzzled that at the first sign of the commission taking action, noble Lords opposite now wish the Minister to intervene?
Lord Warner: My Lords, I have learnt to handle the ambiguities that are sometimes expressed in this House.

Director of Business Change and Delivery
2.51 p.m.
Lord Peyton of Yeovil Lord Peyton of Yeovil asked Her Majesty's Government:
Whether they have identified a suitable person to fill the post of Director of Business Change and Delivery in the Office of the Deputy Prime Minister; what the postholder's duties will be; and how much the postholder will be paid.
The Minister of State, Office of the Deputy Prime Minister (Lord Rooker): My Lords, not yet. This is a director post designed to drive forward the office's challenging delivery agenda of creating sustainable communities. The advertised salary is up to £100,000 per annum. The main responsibilities include improving the office's programme and project management systems, strategic information technology and driving forward the office's change programme, called "Excellence in Delivery".
Lord Peyton of Yeovil: My Lords, I suppose I ought to be grateful to the noble Lord for his Answer, but he has not done much to unravel the mystery of what this extraordinary person will do. I should be grateful if the Government could confirm that what they are looking for is a,
"Graduate calibre change manager with a track record of measurable positive impact in a complex environment of multiple stakeholders".

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I do not think that I could find an adequate comment on that. Does the noble Lord share my anxiety that this genius, if he were ever discovered, would be in severe danger of getting totally lost in the bureaucratic sprawl of the Office of the Deputy Prime Minister?
Lord Rooker: My Lords, first, it may be a "she" and not a "he". Secondly, given that the noble Lord quoted from the job advertisement, on which presumably he based the Question, he will understand that the closing date for applications was yesterday. It is a Civil Service appointment, not a ministerial one. It will go through the normal process of the Civil Service Commission and the appointee will be part of the management team. It is not blowing up the management team; indeed, the Office of the Deputy Prime Minister's executive board has been reduced from 10 to eight members.
Lord Tebbit: My Lords, does the Minister not agree that from the specification read out it sounds as though the ideal man to apply for the job would be the Deputy Prime Minister?
Lord Rooker: My Lords, I will not be tempted into commenting on a question about my right honourable friend. As I said, this is a Civil Service appointment to be dealt with by the Civil Service Commission and the Permanent Secretary, not the Deputy Prime Minister or the humble Ministers in the department. We have a programme of change in the department. The budget is £7 billion. We are trying to deliver economically at £22 billion a Sustainable Communities programme. It cannot be done on a shoestring and it needs quality people. There have been major changes in the management of the department at the top level; this is part of those changes. I do not see a problem in the way that the noble Lord, Lord Peyton, puts it.
Lord McNally: My Lords, is not the problem at the heart of the question that the Deputy Prime Minister himself is like one of the Easter Island obelisks —nobody knows how he got there and nobody knows what he is really for? Why not abolish this sprawling department, which is really tailor-made for his ego and not for good governance, and separate it back to a Cabinet Office and to the departments responsible?
Lord Rooker: My Lords, I find some of that personally offensive. It happens to be the name of the ministry. The Deputy Prime Minister is the first Secretary of State. It is the ministry of housing, local government, planning, homelessness and the fire service. It is a fully fledged department of state; it just happens to be called the Office of the Deputy Prime Minister.
Lord Brooke of Sutton Mandeville: My Lords, if the Government succeed in finding somebody courageous
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enough and ambitious enough to fill the job, how will they prevent him being nicked by No. 10, where the need is even greater?
Lord Rooker: My Lords, because the job of delivering the Sustainable Communities programme is much more interesting than working in No. 10.
Baroness Hanham: My Lords, the post will raise the number of staff members in the Office of the Deputy Prime Minister. How is the department responding to the Chancellor's commitment to reduce the number of civil servants in each department? Will such a review of staff include those from the government offices?
Lord Rooker: Certainly, my Lords. We will definitely meet the Chancellor's target of a 2.5 per cent real terms efficiency gain in each year of the spending review. There is no problem about that. Fifty-eight per cent of the department's staff are outside London: 9 per cent of headquarters staff and 90 per cent in the government offices, which are shared with other departments; 100 per cent of the Planning Inspectorate is outside London, as is 100 per cent of the Fire Service College. We are fully consistent with our commitment under the Lyons review to move a further proportion of central staff outside London, although there are not many to move out.

Cyprus: Annan Plan
2.56 p.m.
Baroness Knight of Collingtree Baroness Knight of Collingtree asked Her Majesty's Government:
Whether, given that the Turkish Cypriots have voted to accept the Annan plan, they will now take steps within the European Union to promote the immediate amendment of legislation which restricts trade or communication with northern Cyprus.
The Minister of State, Foreign and Commonwealth Office (Baroness Symons of Vernham Dean): My Lords, the United Kingdom, together with our EU partners, has already adopted a regulation intended to facilitate trade and other links across the Green Line. In addition, the 26 April General Affairs and External Relations Committee invited the Commission to,
"bring forward proposals to put an end to the isolation of the Turkish Cypriot community, with particular emphasis on the economic integration of the island and on improving contact between the two communities and with the EU".
The UK fully supports these objectives and will consider the Commission's proposals when they are presented.
Baroness Knight of Collingtree: My Lords, I am grateful to the noble Baroness for what she has said. Is she aware that being prevented flying directly into or out of northern Cyprus and having to go all the way round through Turkey puts a considerable cost burden on the poor people who must earn their living by selling their produce abroad or looking after foreign

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visitors? Does she not agree that the Turkish Cypriots, having now accepted the UN plan, which was by no means drawn up in their favour, now deserve to have this spiteful and unfair stricture removed?
Baroness Symons of Vernham Dean: My Lords, we agree that it is important that proposals are brought forward to end the isolation of the Turkish Cypriot community. My right honourable friend the Prime Minister made that clear when answering questions on the subject only yesterday. He made it clear in respect of air travel, trade and disbursement of moneys. We welcome the announcement on 5 May that EU and other foreign tourists arriving on the island from legal ports of entry will have the right of free movement across the Green Line and there will be no restrictions on the time that they could stay in the North. That has been a step forward, but we would like to see further measures to end the isolation of the Turkish Cypriot community.
Lord Maginnis of Drumglass: My Lords, does the noble Baroness really expect that the Turkish Cypriots will be accorded a level playing field across the Green Line? Can the Minister cite one single example of trade and travel embargoes and cruel victimisation of a small, peaceful and democratic nation to compare with what has been inflicted on the Turkish Cypriot people for the past 30 years? Is it not time for the Government to make sensible amends?
Baroness Symons: My Lords, I know that the noble Lord has particular concerns and interests about this. I am bound to say to him that that is exactly the question that my Answer to the noble Baroness, Lady Knight, addressed; it was exactly about what can he done to facilitate trade between the two sides of the island. There are also the proposals that we want brought forward and which we have asked the Commission to draw up for our consideration, we hope, in June.
Lord Avebury: My Lords, first, does the agreement that was signed by the Prime Minister and his Turkish opposite number Mr Erdogan go any further than had already been agreed by the Commission, or indeed had been announced by the Cyprus Foreign Minister? Secondly, is the Secretary-General due to report on the implementation of the Annan plan; and thirdly, what happens next to the Security Council this week? Will the United Kingdom consider implementation of parts of the Annan plan regarding the transfer of territory, demilitarisation, property, and the Reconciliation Commission?
Baroness Symons of Vernham Dean: My Lords, in his time-honoured fashion, the noble Lord, Lord Avebury, has asked me a number of questions, and I shall answer two of them. The Secretary-General is writing a report on the Good Offices Mission, and we hope that that report will be forthcoming next week. I cannot guarantee that, but that is certainly the hope. Thereafter, we want and expect a full and frank discussion of the report in the
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Security Council, but we are not necessarily looking for new solution ns. The Secretary-General has made it clear that he has already given his best advice on this issue. It is probably wise at present to allow the dust to settle to see what can be done about some of the practical issues addressed by the noble Baroness, Lady Knight.
Lord Hannay of Chiswick: My Lords, now that the Turkish Cypriots have rejected and turned their backs on the misconceived policies of Mr Denktash, which were the cause of much of their isolation, and have opted for a plan that has the approval of the United Nations and the European Union, does the Minister agree that it would be wrong if they were made in any way to suffer from this? Does she also agree that the European Union should do anything that it can to prepare the Turkish Cypriots for membership, which should be their right as they voted for it?
Baroness Symons of Vernham Dean: My Lords, I echo what my right honourable friend said yesterday when he paid tribute to the work of the Turkish Cypriots by saying that it was clear that we must now act to end the isolation of northern Cyprus. He said that that means lifting the embargoes in respect of trade and air travel, and it means making sure that the European Union funds that are available for dispersement are actually disbursed. He said that he could not make any undertaking about the timings of these moves, but that he wished them to happen as soon as possible. That gives the noble Lord, Lord Hannay, a very full response.
The Earl of Dundee: My Lords, how far will the co-operative position of the Turkish Cypriots influence the line that the Government will choose to take on the EU candidature of Turkey itself when that comes to be considered at the December summit this year?
Baroness Symons of Vernham Dean: My Lords, we have said throughout that we would welcome the opportunity, if all the criteria are met, to open serious negotiations with the Turkish Government on their accession. It has been the view of the United Kingdom Government since we came to power in 1997 that we would do everything that we could to encourage the reforms in Turkey. Those reforms have been very thorough-going, and a number of encouraging moves have been made by the Turkish Government in respect of human rights in that country. We will have to see what the assessment is of all our colleagues in the EU before any decision is taken to open the formal chapters of negotiation.
Lord Monson: My Lords, the noble Baroness said just now that there would be free movement for EU citizens across the Green Line, provided those citizens had arrived at "legal ports of entry". Does she agree that that differs from the Written Answer that she kindly gave me yesterday, which made no such qualification regarding legal or illegal ports of entry?
Baroness Symons of Vernham Dean: My Lords, I was giving the answer that, as I understand it, has been

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forthcoming from the Government of Cyprus. The fact is that EU citizens are allowed to move freely in either direction across the Green Line. The regulations allow third party nationals to cross the Line if they possess a residence permit issued by the Republic of Cyprus, a valid travel document, if required, or a valid visa for the Republic of Cyprus. If there is any ambiguity on these issues, I would be grateful if the noble Lord would see me privately. I will go through them with him, and if there are remaining issues to be settled I will write to him and place a copy of my letter in the Library of the House.
Lord Howell of Guildford: My Lords, further to the Minister's reply to my noble friend Lord Dundee, does the Minister accept that we agree with the view that the EU should reduce its restrictions on Turkish Cyprus and improve communication links, as my noble friend Lady Knight suggested? Furthermore, we agree that the behaviour of the Turkish Government in Ankara has been so positive throughout the process that this does qualify them to ask for an early beginning to negotiations to join the European Union. If that is the case, does she also agree that when and if Turkey joins the Union—I hope that it will be "when"—that will make it the second biggest country in the entire Union; and that, therefore, it should have a right to have a say in any new constitution for the Union?
Baroness Symons of Vernham Dean: My Lords, I can fully understand that the noble Lord thinks that I have let myself in for it a bit because I answered the question on Turkey that was asked by his noble friend Lord Dundee. The fact is that this Question is actually about Cyprus and not about Turkish accession. However, we believe that Turkey adopted a most constructive approach over the negotiations, and I am sure that that approach will not have done its candidature any harm.

Zimbabwe: Food Supply
3.6 p.m.
Baroness Park of Monmouth Baroness Park of Monmouth asked Her Majesty's Government:
What consequences they anticipate from the Zimbabwe Government's decision to cut short the United Nations assessment of the food situation and food crops.
The Lord President of the Council (Baroness Amos): My Lords, the Government of Zimbabwe's cancellation of the joint UN Crop and Food Supply Assessment Mission means that there is no internationally accepted estimate of Zimbabwe's harvest. The Zimbabwean claim that they have produced 2.4 million metric tonnes of maize is simply not credible. The UN will continue to monitor the humanitarian situation closely. If food aid is needed later in the year, there is likely to be a serious delay in the international response.
Baroness Park of Monmouth: My Lords, I thank the noble Baroness for that Answer. Does she agree that it is now imperative that Her Majesty's Government use their full influence, first with President Mbeki, and then in general with the African Union, to persuade the Zimbabwe Government to change their mind and allow the UN teams back again to report on what will undoubtedly be an extremely dangerous situation? It is widely thought that the Zimbabwe Government have acted in this way in order to bring forward the elections, in the knowledge that only their people will be fed with the food that they control. What action is being taken now, since the elections may well be brought forward to October, to provide international observers in plenty of time? I recognise that it is difficult, but it seems to me that it is vital that we should be acting on this now, and not suddenly being caught short in October.
Baroness Amos: My Lords, I totally agree with the noble Baroness, Lady Park, that in some ways this can be seen as a cynical political manoeuvre on the part of ZANU-PF in terms of politicising food aid and controlling this in the run up to any parliamentary elections. With respect to the issue of international observers, obviously we would be keen to see observers present at those elections, but the noble Baroness will know that they must be there at the invitation of the Zimbabweans, and we are mindful of whether the invitation will come, or whether it will come too late.
With respect to the use of our full influence, the noble Baroness will know, as a result of answers previously given from this Dispatch Box, that we are in touch with our partners in the African Union and with the South African Government, and that we have used our full influence in terms of seeking an understanding of the situation in Zimbabwe. The South Africans are still working on a political solution, but we are not aware of the timescale for that.
Lord Acton: My Lords, does my noble friend agree that this decision of ZANU-PF may lead to still greater numbers of Zimbabwean refugees striving to get into South Africa, Botswana, and Mozambique? What are the reactions of the South Africa, Botswana and Mozambique Governments to this development, and will she remain in touch with them?
Baroness Amos: My Lords, we will remain in touch with those governments. At this point, there has not been a public reaction from them with respect to the decision about the UN Crop and Food Supply Assessment Mission. There are large numbers of Zimbabwean refugees in those three countries, particularly in South Africa. It is thought that more than 2 million Zimbabweans are living in South Africa. We will continue to work with those governments because we must keep an eye on the issue of refugees.
Lord Astor of Hever: My Lords, the food assessment programme rejected by the Zimbabwean Government is a UN initiative. Does the noble Baroness agree that there can now be no grounds on which the

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international community can withhold support from a UN motion expressing concern at the threat to the stability of the region?
Baroness Amos: My Lords, the noble Lord, Lord Astor of Hever, will know that we have worked with colleagues in the UN and in the region to bring the issues to the attention of the United Nations. In particular, we have tried to use the different arms of the UN to bring pressure to bear on the Zimbabwean Government. The noble Lord will also know that, every time that the European Union brings a motion relating to human rights before the UN, it is blocked en masse by the African group of countries. There is no widespread political support throughout the region for bringing such issues to the attention of the UN machinery, but we will continue to try.
Baroness Northover: My Lords, if Zimbabwe follows its actions with a refusal to accept international food aid, would it be feasible to arrange food drops, at least in rural areas of Zimbabwe? What plans is the international community putting into place to drive forward arrangements for refugees crossing into neighbouring countries?
Baroness Amos: My Lords, my understanding is that the Zimbabwean Government have indicated that the feeding of the most vulnerable groups—children and so on—can continue through the World Food Programme. The noble Baroness will know that we have our own programme, carried out through NGOs operating in Zimbabwe.
The World Food Programme has indicated that it is prepared to continue its emergency programme beyond June, when it is due to come to an end, and through to September. However, that will have to be done with the agreement of the Zimbabweans, and therein lies part of the difficulty. We will not be able to assess the full scale of the problem until after the harvest, which is much later in the year, in October or November. The lack of an assessment team on the ground will make that very difficult.
The noble Baroness will know that the UN has been looking at the issue of refugees. It has contingency plans in place, but they have not had to be put into effect.
The Earl of Sandwich: My Lords, does the Minister see African governments or any other international organisations coming forward with sufficient election monitors, now that the Commonwealth is no longer a channel?
Baroness Amos: My Lords, of course we hope that African governments will play a role. As the noble Earl knows, the AU has some good norms for the management of elections that we would want to see followed in Zimbabwe. There is a caveat, however, as there is much talk about the particularity of local circumstances. In addition, the SADC parliamentary forum has produced some good guidelines on elections. Unfortunately, the governments have not signed up to them, only the parliamentarians.

Carers (Equal Opportunities) Bill
3.14 p.m.
Brought from the Commons; read a first time, and ordered to be printed.

University of Manchester Bill [H.L.]
Lord Grocott: My Lords, I have it in command from Her Majesty the Queen to acquaint the House that Her Majesty, having been informed of the purport of the University of Manchester Bill, has consented to place her prerogative and interest, so far as they are affected by the Bill, at the disposal of Parliament for the purposes of the Bill.
Bill read a third time, and passed, and sent to the Commons.

Asylum and Immigration (Treatment of Claimants, etc.) Bill
3.15 p.m.
Report received.
Clause 2 [Entering United Kingdom without passport, &c.]:
Lord Bassam of Brighton Lord Bassam of Brighton moved Amendment No. 1:
Page 2, line 20, leave out "to prove"
The noble Lord said: My Lords, the amendments will provide two new defences to the offence of being without a valid immigration document at a leave of asylum interview. Amendments Nos. 6 and 12 will do that by adding two new defences to those listed in subsection (4) and by making the defences available in subsection (5) to someone who is charged with the offence in respect of a child.
The first defence ensures that, if a person has no valid immigration document, he has a defence if he can produce a false document and can prove that it is the one that he used for all purposes in connection with his journey to the United Kingdom. As has been stated in this House and in another place, we understand that not everyone will have a valid passport available to them and that they will consequently find other means to travel to the United Kingdom. We want people to be honest about those means and to ensure that those travelling on false passports are upfront about the fact and present them to us. The destruction and disposal of false passports hinders immigration control and fuels the work of facilitators in much the same way as the destruction or disposal of valid passports.
The defence will make clear to an individual travelling on a false passport the advantages of retaining it in order to protect himself from committing an offence. A person who travels on a false passport that he then destroys or disposes of will not be able to rely on that specific defence. He may still seek to rely on the defence of

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reasonable excuse for not being in possession of a valid document or that of never having had a valid document. In those cases, though, we would expect the person to establish that it was indeed his false and not his valid passport that he destroyed or disposed of and to explain why he disposed of it. Amendment No. 13 provides a definition of the term "false immigration document", which is needed as a consequence of Amendments Nos. 6 and 12, which provide a defence related to the production of such a document.
I hope that the second defence will be welcomed by your Lordships' House. We have listened to and carefully considered the concerns raised in Committee in this House and in another place about when the offence is intended to bite. It has always been clear that the offence is designed to capture the mischief of destroying or disposing of immigration documents en route to the United Kingdom. It will not target those who have never had an immigration document during their journey. In creating the additional defence, we have sought to address those concerns.
The amendments will provide that it is a defence for a person to prove that he never had such a document during his journey to the United Kingdom. That puts beyond doubt our intention to catch only those who have destroyed or disposed of their immigration document, not those who never had one. The other amendments are consequential. I beg to move.
Baroness Anelay of St Johns: My Lords, I support the Government's amendments. I welcome the fact that the Government are still trying to provide greater clarity by ensuring that the clause will penalise only those who intentionally destroy or dispose of the immigration document that they have used to travel to the UK, where they then claim asylum or intend merely to disappear into the population at large, as some people do.
The clause was improved considerably in another place, which takes us one step further. While I agree that it is right to ensure that those who are fleeing from persecution or being trafficked illegally should not fall foul of the penalty in this clause, I have one or two questions to ask about the potential impact of the government amendments.
Does the Minister see any potential problem with the provision that perhaps could be seen as acting as a stimulus to the trade in false papers? Does the Minister think that it might act as a signal to people who are economic migrants—not those who are fleeing from persecution, as so many do, to come to these shores—that perhaps there is a way around the penalty if they are able to afford to buy forged or stolen documents? I am sure that the Minister is as concerned as I am about the stories of the problems faced by people who put themselves and their families into hock with the vile people who trade in false papers because of the huge costs involved in buying them and in being transported here.
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If people come to these shores, what do they have to prove to the Government to show that they have used those documents throughout? For example, do such people have to prove that they used the documents at all stages of their journey from their country of origin or does it apply only for that leg of the journey where they come into this country? As noble Lords are well aware, people who travel from around the world are taken on goodness knows how many different types of journey before they are finally in safety in this country.
How will those people be able to prove when and where they started to use those particular documents? What kind of proof will the Government accept as valid? I realise that if the Government's experiment with documentation by carriers in Clause 11 is considered by the Government to be successful at some later stage, the Johannesburg experience may spread further but not, I believe, worldwide, as under the Government's current plans.
That causes a problem because some people who are coming here might face questioning about their documents and have to provide for the Government a level of proof about where they got their false documents and how long they have used them, but that might not affect everyone. The difficulty is that the carriers, who are required to follow rules about documentation under Clause 11, are not all the carriers worldwide. They appear to be just those who are providing the carriage of the person from their last port of call, such as Johannesburg to the United Kingdom, whereas we know that many people use other airports as a hub.
I am asking the Government to give the House assurances about the level of proof that people will have to give about when they started using their false documents; that is, whether the proof must be from all around the world or from just before they came into this country. What is the duty placed on that person therefore in garnering and preserving any relevant information?
Lord Avebury: My Lords, I entirely agree with the point just made by the noble Baroness, Lady Anelay. At Question Time, the noble Baroness, Lady Amos, told us that there are 2 million Zimbabwean refugees in South Africa. As we know, some of them attempt to come here on false South African passports. But the documents that they use to travel from Zimbabwe to South Africa, if any, would be lost in the mists of history. I agree with the noble Baroness that we need clarification from the Minister about whether the first of the two amendments means that the document at which we are looking is simply the one on which the person travels for the last leg of the journey.
However, I can see that there are problems even with that. How does one actually prove that that was the document used to get on the aeroplane in Johannesburg— or wherever it may be? I should like to know what standard of proof would be expected and what sort of evidence would be used in defence. Obviously, the person responsible at the airline desk in Johannesburg cannot be called to come to this country to say that he saw that someone was in possession of a South African travel

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document or that he could confirm that that was the document presented on arrival. A person on a travel desk is only verifying that someone has a document to enable him or her to get on the aeroplane.
Much the same questions will apply to the second amendment where a person has to prove that he did not have either a valid or invalid immigration document during the course of his journey to the United Kingdom. As we have said, there are people who travel from one country to another clandestinely. They do so for the very good reason that the people who are persecuting them in their country of origin will not issue them with travel documents so that they can go abroad and tell the world what the regime is like.
Although we welcome any attempt that has been made by the Government to mitigate the difficulties of this offence, which we shall come to in more detail in the next set of amendments, we think that they still need to explain how a person satisfies the court that he has a defence under either of those headings.
The Lord Bishop of Salisbury: My Lords, I, too, want to press the Minister to be a little more specific about this point. I am thinking of a particular group of people; that is, those in the southern Sudan who, when they leave, will not have anything that any of us would recognise as a travel document. He may have seen, as I have, some of the very flimsy home-made laissez passer documents that the SPLA use and issue to people, particularly to young people. Young boys who are conscripted for fighting from the age of 11 or 12 will have hardly anything in their hands. Some of them may well get stopped on their way. But if any do come here, it is not just a question of whether their documents have been stamped on the way. Often, they will not be stamped because there is hardly anything to stamp. In most cases, they will have just a very small scrap of paper, which will be a pasteboard at best. The whole business of trying to record a passage will be extraordinarily difficult.
I understand that we cannot put into legislation the details of how people coming from particular countries might be able to fulfil that. However, there are those countries in the world where people who have been under duress and are unable to link with the authorised or publicly recognised governments of their countries for many years will just not have any papers that we could possibly call documents.
Lord Bassam of Brighton: My Lords, first, I thank the noble Baroness, Lady Anelay, for welcoming the amendments. I am grateful for that. I also thank the noble Lord, Lord Avebury, and the right reverend Prelate for their support. I am also grateful for the recognition that we have gone some way to allaying concerns. I understand and appreciate the points that have been raised and I shall try to answer the questions. But I am not entirely confident that I shall be able to keep everyone happy. I entirely understand the point made by the noble Baroness with regard to stimulating a trade in false papers. In part, the fact that we are encouraging the continued holding of those documents may well aid the law enforcement process, but that is by the by.
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Existing legislation for immigration offences that deals with those who have false documents and do not own up to it is there and in place. The amendment does not really encourage the use of false documents or the further production of false documents. However, we think that it may assist us in the processing of detection.
The noble Baroness asked: "What does a person need to show in terms of proof in respect of a false passport?". Whenever a person does not provide a valid document, that person will be asked to explain how he or she managed to arrive in the United Kingdom with no passport or on a false one. We will need to be satisfied, for example, that the quality of the forged passport is such that a person could realistically have got through immigration control. The standard of proof on the defendant, proving that he or she had used a false document, is and will be the balance of probability. A person would need to show that he or she had used a false passport for the whole duration of his or her journey to rely on the new defence. It is also important to note that the defence of "reasonable excuse" for not having a passport remains in the clause.
I take the point made by the right reverend Prelate the Bishop of Salisbury. If a person travels from a country where we know that immigration controls are limited and from where it is possible to leave without a valid passport, we would take that into account when listening to the explanation offered by the applicant for arriving in the United Kingdom without a valid passport. However, each case will have to be considered on the facts and on its own merits. That is by way of qualification, but I hope that I have addressed the issue raised by the right reverend Prelate.
I am grateful for the questions and I hope that these points of explanation have assisted noble Lords. If not, I shall be happy to try to pursue them further by providing additional details.
3.30 p.m.
The Earl of Sandwich: My Lords, before the noble Lord sits down, the right reverend Prelate used the phrase, "people travelling under duress". On reading the letter dated 12 May from the noble Baroness, Lady Scotland, to the noble Baroness, Lady Anelay, I see that it states,
"the clause captures the mischief of destroying or disposing of the immigration document".
If you are travelling under some duress, you may be required to destroy that document. Perhaps I have missed something, but has the noble Lord implied that that category of traveller would be helped by these amendments?
Lord Bassam of Brighton: My Lords, we would like to think that such travellers would be helped, but we do believe that this is a form of mischief. I take the point made by the noble Earl, but we would expect travellers to continue to hold on to their documents. But of course, as I said earlier, each case will be judged on its merits. Importance will be attached to the

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explanation given by the applicant and I am sure that that will have a bearing on the judgment made in each case.
On Question, amendment agreed to.
Lord Bassam of Brighton Lord Bassam of Brighton moved Amendments Nos. 2 to 13:
Page 2, line 22, at beginning insert "to prove"
Page 2, line 23, at beginning insert "to prove"
Page 2, line 25, leave out second "or"
Page 2, line 26, at beginning insert "to prove"
Page 2, line 27, at end insert—

( ) to produce a false immigration document and to prove that he used that document as an immigration document for all purposes in connection with his journey to the United Kingdom, or

( ) to prove that he travelled to the United Kingdom without, at any stage since he set out on the journey, having possession of an immigration document."

Page 2, line 29, leave out "to prove"
Page 2, line 30, at beginning insert "to prove"
Page 2, line 31, at beginning insert "to prove"
Page 2, line 33, leave out second "or"
Page 2, line 34, at beginning insert "to prove"
Page 2, line 35, at end insert—

"( ) to produce a false immigration document and to prove that it was used as an immigration document for all purposes in connection with the child's journey to the United Kingdom, or

( ) to prove that he travelled to the United Kingdom with the child without, at any stage since he set out on the journey, having possession of an immigration document in respect of the child."

Page 3, line 47, at end insert—
"( ) For the purposes of this section—

(a) a document which purports to be, or is designed to look like, an immigration document, is a false immigration document, and

(b) an immigration document is a false immigration document if and in so far as it is used—

(i) outside the period for which it is expressed to be valid,

(ii) contrary to provision for its use made by the person issuing it, or

(iii) by or in respect of a person other than the person to or for whom it was issued."

On Question, amendments agreed to.
Lord Avebury Lord Avebury moved Amendment No. 14:
Page 4, line 11, at end insert
"(17) The Secretary of State shall, before commencement of this section, and thereafter from time to time as he may decide necessary, publish detailed regulations on the implementation of this section and of section 31 of the Immigration and Asylum Act 1999 (c. 33) (defences based on Article 31(1) of the Refugee Convention).
(18) Schedule (Prosecution of documentation offences) shall have effect.
(19) Guidance issued under subsection (17) shall not be made unless a draft has been laid before Parliament and approved by a resolution of each House."
The noble Lord said: My Lords, we continue to have serious concerns about the offence created by Clause 2 in spite of repeated assurances given by Ministers in both Houses that applicants will be prosecuted only in limited circumstances, by trained officers and with the benefit of clear and publicly available guidance.
The clause as drafted is a wide, catch-all provision, and the limited use that Ministers say will be made of it depends on the restraint of the government of the day. Parliament would not be doing its job if it assumed that Home Office Ministers and the Immigration and Nationality Directorate would always have the compassion and the moderation of the noble Baroness, Lady Scotland, and, of course, of the noble Lord, Lord Bassam. Under this clause there is a real danger that asylum seekers will be prosecuted rather than protected.
So far, we have been unable to budge the Government on the most objectionable features of this clause. They refuse to take children out of the scope of prosecution altogether and to incorporate the appropriate criminal standards and burdens of proof which would safeguard defendants. Instead, the Government have asked us to accept that Clause 2 will be used sparingly and carefully and that the appropriate guidance will be forthcoming. The noble Baroness, Lady Scotland, said:
"We will produce detailed guidance on the offences in the Bill before it is enacted".—[Official Report, 5/4/04; col. 1639.]
She went on to say that much of the detail set out in our amendment tabled in Committee would be found in the guidelines.
On a matter as critical as this, determining whether a person fleeing persecution in his own country may acquire a criminal record at the outset of his life abroad, we have assurances and the promise of detailed guidance before the Bill reaches the statute book, but after it is too late for noble Lords to do anything about it on the face of the Bill if the guidance is unsatisfactory. That does not provide adequate safeguards for refugees in accordance with Article 31 of the refugee convention. The Government have had six months since the Bill was first published to think about this. It is time that Parliament put its foot down against the pernicious custom that has developed of putting the most important parts of legislation into guidance which is produced after any real opportunity for scrutiny has expired.
Failing that, we say that the guidance on this clause should be brought into effect by affirmative resolution and that the prosecution of offences should be conducted within the framework of the new schedule. This would ensure effective parliamentary scrutiny and consistency in the use and understanding of the powers in Clause 2 across agencies and advisers.
We assert that, although, as the noble Baroness, Lady Scotland, said on 5 April, the CPS, the police and the IND now have guidance on how to take account of the Article 31 defence in the prosecution of relevant offences—she has reiterated that in a letter I received from her only this morning—it does not go far enough to protect refugee convention rights and is not properly co-ordinated to ensure that there is consistency across all agencies.

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From 1999 until late in 2002, the Home Office relied on guidance issued following the Adimi case, but it was only around October 2002 that asylum policy instructions on Article 31 and immigration offences were first published on the IND website. That guidance was so at odds with the UNHCR's understanding of Article 31 that in March 2003 it published a detailed position statement on APIs, setting out its own expert understanding of Article 31. I can go into more detail about that if the Minister wishes.
New guidelines within the asylum policy instructions were issued in October 2003, and they were certainly an improvement on the earlier edition. However, they were still inconsistent with the proper interpretation of Article 31, according to the Article 31 working group made up of the UNHCR, ILPA and the Asylum Rights Campaign. The Minister may wish to confirm that the UNHCR has written to the IND about these differences.
ILPA and the UNHCR have called for the interagency group, previously agreed by IND to establish a memorandum of good practice on these issues, to be reinstated and for individual agency guidance to be consolidated into one integrated and consistent set of guidance. Is that now agreed by the department? The disclosable parts of the Home Office IND operation enforcement manual, such as Section A covering illegal entry, offer no advice or cross-reference to Article 33 of the refugee convention, or to the statutory defences set out in Section 31 of the Immigration and Asylum Act 1999, despite giving enforcement instructions on those specific offences.
Current published CPS immigration offences guidance contains a statement of the defences afforded by Section 31 of the Immigration and Appeals Act 1999, but little on its scope. Internal casework bulletins from 1999 are referred to in the guidance, despite the fact that they are not disclosed and, according to the CPS policy department, some have in fact been superseded. Draft updated guidance was still being finalised when I last checked with the CPS Policy Unit on 10 May and is now about to go out for consultation. Apparently the draft guidance does not include the offences set out in Clause 2 of this Bill.
At the beginning of 2000, a protocol on the joint prosecution of immigration offences between the CPS, the Association of Chief Police Officers and the Immigration Service was produced. That was intended to,
"provide a frameworkto… progress cases… more efficiently with defined lines of communication and identified accountability at all stages of the investigation and prosecution process".
However, although the general principles are accepted, we are advised that IND officials told the Article 31 sub-group of the Asylum Rights Campaign at a meeting in February that the agencies were not working under this protocol. Can the Minister please clarify this? The protocol was also said to be a precursor to direct access by the IND to the CPS under
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Section 164 of the 1999 Act, pending the introduction of the Glidewell/Narey recommendations. What is the current state of play on this, and will the Government ask the CPS to put a progress note on its website if it is not yet in a position to finalise the arrangements?
On 5 April, the noble Baroness said:
"We are not aware of any examples of inappropriate prosecutions where the possible relevance of Section 31 has come up".—[Official Report, 5/4/04; col. 640.]
But whether appropriate or not, Magistrates' Court Sentencing Guidelines provide no advice to magistrates or their court clerks specific to these immigration offences. We are apprehensive that guidance on the new offence in Clause 2 will offer only a narrow legal view, enabling the prosecution of asylum seekers to take place within the Government's own understanding of their obligations while offering completely inadequate safeguards for the vulnerable.
ILPA has given illustrations of current cases where Article 31 and Section 31 issues have been relevant in previous briefings to your Lordships, and the ARC discussed these at the recent meeting with the IND, to which I referred earlier. Evidence available to the immigration and prosecuting authorities in those cases had not, in ILPA's view, been properly or fully considered in accordance with the various agencies' guidance before deciding to prosecute.
Of course, the Government may take an unduly restrictive view of the protection of Article 31 rights and the Section 31 defences to argue that their prosecutions are not inappropriate. The vulnerability of the group of people affected by this issue, the speed of prosecution and the sheer perversity of clogging up our grossly overcrowded prisons with people serving short sentences prior to their removal, means that we have got to be particularly careful.
One recent case about which I should like to inform your Lordships has been drawn to our attention by ILPA as an illustration of the deficiencies in the guidelines. Two Chinese—a man and his pregnant wife—were arrested as they were about to leave for Canada using illegal travel documents. The wife had already made an asylum application in France before she arrived to join the husband who had applied for asylum here, and the couple were arrested at the airport. They were charged with attempting to obtain service by deception contrary to Section 1(1) of the Criminal Attempts Act 1981. They were convicted within 24 hours and each was given a three-month custodial sentence. When they had both completed their sentences action began to remove the wife to France and an emergency injunction had to be obtained when the IND said it had no record of the husband having claimed asylum. The police restricted case summary did record the asylum claim but said that,
"as [he] has not used false instruments he is not covered by Article 31 and therefore would not be afforded any protection under Article 31".
That is completely wrong. There is evidently some confusion, not only in the police but also in the CPS, as was shown in the case of Pepushi, which was dealt with by the High Court last week. There Lord Justice Thomas reiterated the principle which has been established in a

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number of recent cases, such as R v Lyons, that international treaties do not confer rights under our domestic law. But the learned judge went on to add,
"there may be a limitation…on the ability of the Executive to act against an individual where that action is in breach of the obligation undertaken by the Executive under international human rights treaties".
This was after the CPS had expressly repudiated the statement in the asylum policy instructions, as regards offences not covered by Section 31 of the 1999 Act, that,
"In relation to these offences, refugees are entitled to Article 31 protection in accordance with legitimate expectations".
The point was not argued in the Pepushi case and so remains unresolved. But Section 31 represents Parliament's interpretation of the United Kingdom's Article 31 obligations only in relation to the specific offences in that particular section. It cannot be used to limit or restrict the application of Article 31 to any other illegal act which a presumptive refugee may commit in his quest for refugee status—subject, of course, to the conditions specified in Article 31 itself. Therefore, in the Pepushi case the court did not overturn the judgment in the Adimi case as it applies to all those other offences. They still have a legitimate expectation that they will not be prosecuted while their application is under consideration or is or may be subject to appeal.
To summarise, the guidance should deal with two classes of offence which a person may commit in relation to his or her entry or stay in the UK: those that are specified in Section 31 of the 1999 Act or in Clause 2 of the Bill, which are entitled only to the limited protection conferred by Section 31 itself; and any other offences, such as obtaining an advantage by deception, where the Adimi judgment still applies and the presumptive refugee should not be prosecuted while his or her application is still in play.
The confusion and inconsistency of current guidance clearly shows that ministerial assurances alone cannot be relied on. We propose that the guidance must be on a statutory basis; that it should be readily available to all those affected by the offences to which the protection of Article 31 could apply; that it should be transparent and consistent in its application to all agencies; and that it should be monitored to ensure understanding and compliance. I beg to move.
3.45 p.m.
Baroness Anelay of St Johns: My Lords, the noble Lord, Lord Avebury, was right to draw our attention to the importance of draft guidelines. I have some rare sympathy with the Government on this occasion because I appreciate that Clause 2 has been a moving target, not least because of the requests from these Benches that the Government should refine and clarify the nature of the offence.
I assume that we are now moving towards a final clarification. Unless the Government are minded to make some further alterations at Third Reading, it is right that we should now have an idea of what the guidelines are likely to be. As the noble Lord, Lord Avebury, pointed
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out, a potentially serious level of imprisonment can be imposed: on indictment, two years, a fine or both; on summary conviction, 12 months. I wish to ask a question on a related issue in regard to the operation of Clause 2. It falls fairly and squarely within the amendment tabled by the noble Lord, Lord Avebury, which requires detailed regulations to be published on the implementation of Clause 2.
After some sideways thinking it has occurred to me that the Government, I am sure, will have applied their mind to the potential impact of the Domestic Violence, Crime and Victims Bill on the application of Clause 2. The Minister has worked with the noble Baroness, Lady Scotland, on these matters and will be aware that the Government went out to consultation at the beginning of the year—it finished in March—as to the future funding of services and compensation for victims of crime in this country. Part of the consultation procedure involved the proposal that in future, in addition to a term of imprisonment—at the moment it is left as to "any" term of imprisonment—and any fine the court may impose, an offender may also have to pay a surcharge of £30 towards the victims fund.
I pass over the basic concern that courts always have that one should not impose financial penalties when one is imposing a term of imprisonment, but they will wish to look closely at the kind of people who will be subject to the term of imprisonment which could follow on from an offence under Clause 2. They are people, surely, who would be the least likely to have the finances to pay the £30 surcharge. What consideration has the Home Office given to the interrelationship between its proposals for compensating victims with the operation of Clause 2? How does that feed into its proposals for producing guidelines? Is the Minister at this stage able to give an assurance on that? Is he able to say that anyone convicted of this particular offence under Clause 2 would not be subject to any surcharge over and above a sentence of imprisonment and a fine imposed by a court?
Lord Hylton: My Lords, I support Amendment No. 14. I congratulate the noble Lord, Lord Avebury, on the amazing detail that he has managed to work into Amendment No. 53, the proposed new schedule before Schedule 1. I support the amendment because published detailed regulations, approved by Parliament and then made widely known, will be extremely helpful in clearing up all the kinds of uncertainties and difficulties which were referred to from several parts of the House when we were debating the previous group of amendments. I have in mind, for example, stateless people and former residents of unrecognised entities, of which there are several within the boundaries of the old Soviet Union. There may be more in other parts of the world for all I know.
Lord Bassam of Brighton: My Lords, rather like the noble Lord, Lord Hylton, I am always grateful to the noble Lord, Lord Avebury, for the very fine consideration he gives these issues. He never ceases to amaze me with his detailed knowledge of the minutiae of legislation and regulation. He is to be congratulated on this.

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These amendments seek to regulate, very specifically, the use of Clause 2 and Section 31 of the Immigration and Asylum Act 1999, in particular in cases where Article 31 may be relevant and other cases where vulnerable individuals may be involved.
I completely agree that those who are investigating offences under Clause 2 will need guidance on how to do so. We have been very open about that and it is fairly obvious. Immigration officers already have instructions about what actions should be taken if they suspect other immigration offences may have been committed, such as obtaining, or seeking to obtain, leave by means which include deception. We will be producing similar guidelines for this offence. We fully expect a first draft of these guidelines to be made available for comment before Third Reading of the Bill in your Lordships' House.
I can assure the noble Lord that much of the detail that he has tabled in the new schedule will be included in those guidelines. It needs to be—I think we are at one about that. That includes assessment of reasonable excuse before proceeding with an investigation or arrest, charge or prosecution and treatment of vulnerable individuals, such as victims of trafficking. Consideration of Article 31 of the refugee convention will also be given specific mention in the guidelines. I know that noble Lords expressed concern in Committee that there was insufficient guidance on this matter. I assure the House that there is a published asylum policy instruction on Article 31/Section 31. In addition, the Crown Prosecution Service is currently reviewing and, importantly, updating its guidance, which we expect to be published shortly, following consultation with the many interested agencies.
Although guidance for the offence provided for by Clause 2 is necessary, to provide for it by statute makes for an overly cumbersome process. It is inevitable that that will be the case. It is the not the way that we deal with other offences, and I do not think that there are special factors that make statutory guidance appropriate here. I do not see any particular and overriding reason for it.
We agree that training is needed with regard to this offence. The guidance we are producing should go a long way towards satisfying that need. We will also be providing seminars and road shows for immigration officers about these offences, as we did for offences brought in by the Nationality, Immigration and Asylum Act 2002. But statutory provision for the training of immigration officers, police officers, prosecutors, legal representatives and the judiciary in working with children is surely not appropriate for a Bill dealing mainly with asylum. If the police and judges need training on working with children, then they need it for all offences, not just for the offences in this Bill.
Other assurances that the schedule seeks to introduce are also unnecessary. For example, subsection (2)(e) would ensure that certain offences will be within the scope of Clause 6—ones about which the Director of Public Prosecutions may advise immigration officers. They are already within the scope of this clause, so nothing further is needed.
The provision stating that no arrest or prosecution shall take place unless a person is reasonably suspected of disposing of or destroying their documentation is similarly
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unnecessary. The guidance will instruct immigration officers to consider whether a person has a reasonable excuse for having no document. In most cases, a person who does not have a document, for a reason other than destroying or disposing of it, will have a reasonable excuse for that.
There will also be rare circumstances in which, even if the person has destroyed or disposed of their document, they will have a reasonable excuse. Immigration officers will thus need to consider the broader question of whether in the circumstances a person has a reasonable excuse for destroying or disposing of their documents, not solely whether they suspect that they have done so.
As for the provision of statistics regarding prosecutions brought and convictions secured under Clause 2, these will be published, along with all statistics about criminal offences, which are published at least yearly by the Home Office. I therefore see no use or need to govern their publication in this Bill.
The noble Lord, Lord Avebury, and the noble Baroness, Lady Anelay, raised a number of other points on this amendment. The noble Lord asked about the UNHCR position; I will try to deal with that. The published asylum policy instructions are a proper interpretation and explanation of Section 31 of the Immigration and Asylum Act 1999. As he said himself, Section 31 is Parliament's approved interpretation of Article 31 of the refugee convention. It is clearly right that the Home Office asylum policy instructions should reflect the UK's interpretation of that article.
In addition, we discuss these instructions regularly with the UHNCR and other bodies, and incorporate their views where it is right to do so and appropriate in the circumstances. But we are free to disagree with them, and we do not always agree with their views on the subject. I am sure that the noble Lord would recognise that that has to be our prerogative.
The noble Lord, Lord Avebury, also suggested that perhaps we should have a joint protocol. The published asylum policy instructions on Section 31 are followed by the Immigration Service in deciding whether to pass cases to the CPS for possible prosecution. As I explained earlier, and as the noble Lord knows, the CPS has its own guidance on Section 31 and it is being updated. It is not felt that an overarching protocol on Section 31 is right, appropriate or required in the circumstances, and that the existence of instructions and guidance available to the various agencies is sufficient.
The noble Baroness, Lady Anelay, asked about those convicted of an offence under the clause. I am not in a position to give a specific commitment about whether the surcharge the noble Baroness mentioned might ever be levied on a person who is convicted under this offence. I take the point, and it is probably right that I take the issue away; I shall write to the noble Baroness and share that with other Members of your Lordships' House who are understandably concerned about it. It is a good point to raise at this stage.
I hope that I have answered the various questions, and that the noble Lord will withdraw his amendment.
Lord Avebury: My Lords, I certainly agree with the noble Baroness, Lady Anelay, that it would be absurd to

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levy fines on somebody who came here as an asylum seeker and has spent the last three months or so in custody, because he will obviously not have any resources out of which he could pay such a levy. I am most grateful to the noble Baroness for her support for the amendment and to the noble Lord, Lord Hylton, for his useful and cogent remarks.
I disclaim any special expertise in these matters. It was kind of the Minister to ascribe that to me, but I rely heavily on the advice of the agencies, particularly the Immigration Law Practitioners' Association, whose briefings have been absolutely splendid, as I am sure all your Lordships who have been depending on them will agree. It has the expertise; it knows where the shoe is pinching. All the matters I have raised come from their experience of asylum cases.
I did not think that the Minister answered my points adequately. He said that the asylum policy instructions applied throughout the whole of the consideration of these cases, but they do not. I quoted an example of when the CPS expressly repudiated the application of asylum policy instructions with regard to a particular offence, which was not dealt with by Section 31 of the 1999 Act. That was an important distinction, on which the Minister did not touch. Nor did he say anything about the lack of any sentencing guidelines for magistrates' courts. I still think that we are making a serious mistake in agreeing this clause, by depending on the guidelines that will ultimately appear and not taking steps to ensure that there will be proper co-ordination between the CPS, the magistrates' courts, the police and the IND.
Before I sit down, I should like to give another example. In Section 173 of the Extradition Act 2003 there is a mandatory code of practice, which is seen as appropriate in that context. I cannot see what is the qualitative difference between codes for extradition in that Act and the offences with which we are dealing in this section. In the few seconds that remain to me, I will not be able to persuade the Minister, so I shall withdraw the amendment for the time being, but without an undertaking that we will not return to the matter at Third Reading. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
4 p.m.
Clause 4 [Trafficking people for exploitation]:
Baroness Anelay of St Johns Baroness Anelay of St Johns moved Amendment No. 15:
Page 5, line 15, after "he" insert "or another person"
The noble Baroness said: My Lords, in moving this amendment I shall speak also to Amendments Nos. 16 and 17. I am grateful to the noble Lords, Lord McNally and Lord Avebury, for their support for the amendments, which would ensure that the definition of exploitation is sufficiently broad to cover cases of exploitation of children. It should ensure that, if a request or inducement is made to one person—a parent, for example—but another person—the child, for example—is the one involved in the activity, then the exploiter can be charged
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with trafficking. I want to ensure that those trafficking in children, especially very small children, cannot escape prosecution.
In Committee, I tabled amendments to probe whether the changes that the Government made at Report in another place had left a loophole—I refer to col. 1642 of Hansard for 5 April. I readily acknowledged then that those amendments were my own very rough stab at providing an opportunity for debate, and not the honed article. I am grateful to the noble Baroness, Lady Scotland, for writing to me following the Committee stage with further clarification of the Government's position. The letter was undated but I received it on 11 May. I decided at that stage that I should take further advice from the Refugee Children's Consortium, whose briefing raised the question in my mind in the first place. After talking to the consortium's representatives, I tabled these amendments which are their drafting and which I fully support.
The consortium warmly welcomes Clause 4, as I do. At Report in another place, the Government amended the clause adding what is now subsection (4)(d) to address concern that the definition of exploitation did not provide sufficient protection for children and that Clause 4 as drafted would allow some people to escape prosecution who, in any normal sense of the word, would be seen as traffickers of children. The consortium, as I do, fully recognises that the Government have been striving throughout to ensure that there is no such loophole. The good will is there: we are trying to use that good will to close the loophole.
The concern can be simply stated—does the clause cover the situation where a request or inducement, force threat or deception is made to person A, but person B is exploited? To be guilty of trafficking under this clause, a person must arrange or facilitate the arrival of another person in UK, and intend to exploit that person, or believe that another person intends to do so. Thus the definition of exploitation is central to proving the offence. I certainly accept that the noble Baroness, Lady Scotland, wanted to close any lacuna. She referred to the Government's interpretation of the Palermo protocol. I examined that in detail and, since it is quoted in her letter at length and that letter is in the Library, I will not try the patience of the House at Report by reading it all out.
As we see it, the lacuna is as follows. Children may not be subject to treatment amounting to slavery or forced labour. They could therefore not satisfy the definition of exploitation in Clause 4(4)(a). Children may not be trafficked for their organs, thus they may not satisfy the definition in subsection (4)(b). As for subsection (4)(c), the threat of violence may not be made to the child; the parent may be told that the child will be harmed. As for subsection (4)(d), not all children who are exploited are deceived; they may not understand what is being done to them. The parent may be asked to agree that the child becomes involved in an activity; no one may ask the child at all. Thus it appears that those who traffic in children may escape prosecution under this clause. In the case of those

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addressed in subsection (4)(d), it is highly likely that any request or inducement would have been made to a third party, not to the person trafficked.
The noble Baroness, Lady Scotland, said in her letter to me:
"We have sought in subsection (4) to offer victims of trafficking wide protection from the types of exploitation that they may encounter".
That is confusing. The clause is not about defining trafficking for the purposes of protecting its victims. It is about coming up with the definition to ensure that those who exploit others can be prosecuted. In her letter, the noble Baroness, Lady Scotland, went on to say:
"One must be careful not to confuse the initial request/ inducement/ threat made to the parents of the child (which is not strictly relevant to an offence of trafficking a person for exploitation) with any subsequent threat or inducement which may be relevant (if subsection 4 (d) is relied upon) for the purposes of determining whether the child is exploited".
That is also a little confusing, because threats would be more likely to fall within subsection (4)(c) and not subsection (4)(d). However, I do not consider that my amendments fall into that confusion. The amendments are concerned with the definition of exploitation and ensuring that it is broad enough to cover the ways in which children are exploited. The reference to a threat or request being made to a third party is simply a means towards the end of obtaining a satisfactory definition, as was the amendment laid at Committee which introduced the words,
"abuse of power or of a position of vulnerability".
As I said earlier, we are all trying to achieve the same objective. I am trying to take this one step further along that process. I look forward to the Minister's response. I beg to move.
Lord McNally: My Lords, I, too, look forward to the Minister's response. I hope that it will not be overly defensive because the suggestions of improvement come from the Opposition Front Bench. As the noble Baroness, Lady Anelay, said, we warmly welcome the fact that Clause 4 is there. The attempt of all parts of the House now is to get as good and effective a clause as possible and one that will allow us to get at the traffickers. That is the test. People are genuinely appalled and amazed at revelations in the press of the extent to which people—who can apparently sleep at night—can earn vast amounts of money by the organised crime of people trafficking and, more particularly in terms of what we are trying to deal with here, children trafficking. It is something that unites all sides of the House. The search is on the for a clause as all-encompassing as possible to get at this evil trade. I hope that the Minister responds in that way.
The Earl of Sandwich: My Lords, I also support the amendment, partly because I have the greatest admiration for the Refugee Children's Consortium and its many member organisations, which put together such valuable briefing. On this clause in particular, it has been assiduous in its search for the right definition that will best serve children rather than the Government or the public.
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I have learnt a lot about trafficked children from a new report by ECPAT UK, which I hope to mention in a later amendment. This research makes it much easier for us to understand the vulnerability of children who are being trafficked.
The nub of this amendment is surely, as the noble Baroness said, that these children are capable of being exploited indirectly—by their parents or another party or both—and that they do not therefore benefit from the clause as it is presently worded. I know that the Government have been accommodating in their efforts to interpret the Palermo protocol as widely as possible, but it may not be too much to expect them to close the gap now and to accept the amendment.
Lord Bassam of Brighton: My Lords, I want to reach out to the point made by the noble Lord, Lord McNally, and say first up that I hope that my response will not be read as in any way defensive. In looking at the notes on the amendments and the background correspondence, we share with the noble Baroness, Lady Anelay, and the noble Earl, Lord Sandwich, a comity of view, as my noble friend Lady Scotland might describe it—or a unity of view, as I might call it—to deal with this vexed issue. We are trying to understand the riddle around the definition of exploitation. Therefore, what I say to your Lordships this afternoon is designed to be as helpful as possible and to close the lacuna that the noble Baroness identified.
With regard to Clause 4, we are all determined to ensure that we criminalise all instances of trafficking that should properly be criminalised, including those set out in the protocol to the United Nations Convention against Transnational Organised Crime, which deals with trafficking. In that respect, subsection (4) is crucial, in that it sets out the circumstances in which a person is exploited for the purposes of the offence.
The concept of exploitation is key to the Clause 4 offences, as without it there is only the facilitation of travel, which in itself, in the absence of a breach of the immigration laws, is not morally repugnant or worthy of criminal sanction. In order to secure a conviction under Clause 4, the prosecution will therefore have to prove that the accused arranged or facilitated the travel of his victim, and that he intended to exploit his victim or believed that another person was likely to do so.
Taking the offence in subsection (1) as an example—and echoing the comments of the noble Baroness—a person is guilty of an offence under subsection (1) if he, first, arranges or facilitates the arrival in the United Kingdom of a person—P—and, secondly, intends to exploit P or believes that another person is likely to do so.
Amendments Nos. 15 to 17 seek to amend subsection (4) in two ways. First, Amendment No. 15 seeks to ensure that for the purposes of the offence in Clause 4, a person—P—is exploited if another person is subjected to force, threats or deception designed to induce P to provide services or benefits. Similarly, Amendments Nos. 16 and 17 seek to ensure that, for

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the purposes of Clause 4, a person—P—is treated as being exploited if a request or inducement is made to another person with the purpose of getting P to undertake an activity.
The sort of scenario that the amendments appear to envisage was well described by the noble Baroness. It is when the parents of a child are requested, induced or forced to give up their child and that child is then brought to the United Kingdom with the intention that he should be exploited. As I have explained, the key to the offences in Clause 4 is the intention of the accused to exploit his victim. In a case such as this, Clause 4 as currently drafted would capture the behaviour of the accused. That is the case because the accused has arranged or facilitated the arrival in the United Kingdom of the child and has done so with the intention that he will exploit the child. The fact that an inducement, request or threat may have been made to the child's parents certainly does not prevent the clause operating to catch the behaviour of the accused.
If the amendments were accepted, the offences would be focusing not on the exploitation of the child but on the initial request, inducement or threat made to the parents of the child. While making such a request, inducement or threat may be considered morally repugnant behaviour, and may constitute an offence in the country where it takes place, we do not consider that it is strictly relevant to the question whether the child is in fact exploited. In this respect, one must take care not to confuse the initial request, inducement or threat made to the parents—which, as stated, we do not consider to be strictly relevant to the question of whether the child is in fact exploited—with any subsequent request or inducement which may be made to the child himself, which may be relevant to the issue of whether the child is exploited, if subsection (4)(d) is relied on. The issue of force, threats or deception or of a request or inducement in subsections (4)(c) and (d) respectively is simply a means of determining when a person is exploited.
4.15 p.m.
I appreciate fully that the kinds of cases that the noble Baroness has in mind are those in which there is an inducement or threat to a third party—for example, to a parent to give up a child—and when the intention of the trafficker is to exploit the child. In such circumstances, we all agree that the behaviour should be covered by the clause, and we believe that that is already the case as the clause is drafted.
I hope that that lengthy explanation is intelligible to all. I have tried to set the logic out as clearly as I can. It is for those reasons and no others that we feel unable to accept these amendments. I hope that with the reassurance of our continued determination to tackle this issue, on which we all plainly agree, the noble Baroness will this afternoon feel able to withdraw her
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amendment. We are grateful for the dialogue that we have had on this matter, and feel that it has been helpful to us in perfecting the offence. I hope that the explanation has been satisfactory to your Lordships' House this afternoon.
Baroness Anelay of St Johns: My Lords, I am grateful to the Minister. He has certainly taken us some way forward, although I believe the journey will have to be continued—but not today. As the noble Lord, Lord McNally, said, this is an instance of the House being united against an evil trade. We want to achieve the right definition, but we do not by any means intend to test the opinion of the House today.
As the noble Earl, Lord Sandwich, said, we are seeking to act in the best interests of the child. The difficulty is in trying to marry up the action of the person doing the exploiting, the definition of exploitation and ensuring that that child is protected in all circumstances.
I shall consider the Minister's comments carefully. I should be grateful if he would bear in mind for consideration between now and Third Reading the fact that the core of our concerns is our worry about a situation in which no one has actually made any threat, request or inducement to the child himself. The Minister directed us to subsection (1) and said that if a person intends to traffic, he is done for and that is it—he is caught within the clause. However, if it were as simple as that, most of the rest of the clause would not be necessary; it is a little more difficult than that.
The question is whether a person has the intention of exploiting a child if that person's conduct towards a child does not actually fall within the definition of exploitation. That is what we are trying to move towards. The matter is complicated, and the Minister has begun to take us further forward, so that we can at least see more clearly where there may be a little gap between our positions. It is not a difference—I would not call it that—but it is a gap. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 16 and 17 not moved.]
Lord Bassam of Brighton Lord Bassam of Brighton moved Amendment No. 18:
After Clause 5, insert the following new clause—
"EMPLOYMENT
(1) For section 8(4) of the Asylum and Immigration Act 1996 (c. 49) (employment: penalty) substitute|—
"(4) A person guilty of an offence under this section shall be liable—

(a) on conviction on indictment, to a fine, or

(b) on summary conviction, to a fine not exceeding the statutory maximum."

(2) Section 8(9) of that Act (extension of time limit for prosecution) shall cease to have effect."
The noble Lord said: My Lords, the House has previously acknowledged the widespread public concern about the activities of those who use illegal migrant labour, particularly following the recent tragedy at Morecambe Bay. The Government believe that it is essential to take action against unscrupulous

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employers who profit from the exploitation of illegal workers, and are sometimes found to have links with organised crime.
The effect of our amendments would be to allow for increased tines to be imposed on those who employ illegal workers in the most serious of cases. The purpose is to send a powerful deterrent message to unscrupulous employers who use illegal workers, and to mark our strong disapproval of the practice. These government amendments relate to Section 8 of the Asylum and Immigration Act 1996, which is the main statutory control on illegal working. Section 8 makes it an offence to employ a person subject to immigration control if that person has not been granted leave to enter or remain, or if that person's leave is not valid and subsisting or is subject to a condition precluding him from taking up the employment. The offence is currently triable summarily only and the current maximum penalty is a fine of £5,000 in respect of each person employed illegally.
The proposed amendment would make the Section 8 offence triable either way, which is to say on indictment as well as summarily. The maximum fine on summary conviction would remain £5,000, but in the more serious cases the Immigration Service would be able to pursue a prosecution in the Crown Court, where there is no limit on the level of fine that can be imposed following conviction on indictment.
The amendment also makes a consequential change to the time limit for prosecutions that can be brought under Section 8. The amendment reflects the general legal principle that offences that are triable either way may be prosecuted at any time. This aspect of the amendment would not, however, result in any change to our enforcement practice and we would not expect employers to retain employee records for longer than three years.
We have already taken steps to strengthen the Section 8 regime and improve its enforcement and these amendments must be regarded in that context. We have recently reformed the system of document checks that employers must carry out under the section to help to ensure they do not recruit people who do not have permission to work. The strengthened system of checks will be less vulnerable to false and forged documents and will provide a firmer basis for criminal action against those who flout the law in this area. In parallel, we are increasing the number of illegal working enforcement operations and related prosecutions.
An increase in the deterrent value of the law would in our view complement the work we are doing to combat organised immigration crime through Reflex, a multi-agency taskforce which targets, among others, people trafficking gangs, and through the introduction of a people trafficking offence in this Bill, which covers trafficking for the purposes of labour exploitation. The Serious Organised Crime Agency will also give us further capability to confront the problems of people trafficking and organised immigration crime. I hope that noble Lords will feel able to support the Government's amendments. I beg to move.
Baroness Anelay of St Johns: My Lords, let me make it clear that I share the widespread public concern about illegal working to which the Minister referred. He was right to remind us of the tragedy earlier this year at Morecambe Bay. It is right that the Government review the whole issue of the enforcement of existing provisions and question whether new measures are necessary.
I support the amendment but I have questions about the level of enforcement that has operated heretofore under existing powers. The Minister's answers to those questions will demonstrate how far the new provisions are necessary and how far they are part of a greater pattern or jigsaw. Since the questions are rather narrowly based, because this is an offence for employers and away from the general run of the Bill, I have given advance notice to the Minister of all my questions.
I am grateful to the CBI for its briefing on these matters. It kindly sent me a copy of the briefing it produced in response to the Home Office consultation on proposed changes to the law on illegal working. The CBI makes it clear that it condemns illegal working; it states that it is harmful to all parts of the UK economy and that it can give unfair competitive advantage to those companies that are flouting the law. Those who work here illegally are not protected from exploitation or dangerous working conditions and we should have a care for them.
However, the CBI points out that government policy on illegal working should be based on firm evidence—which we do not see—that legislative change is not necessarily the most effective way to change illegal working and that the Government should concentrate further resources on enforcement. All those points seem very sensible. The Minister made passing reference to the fact that the Government have been trying to increase the people available to do the enforcing. Can the Minister tell the House what evidence was presented to the Government that made them certain that these amendments were necessary? What is the scale and the nature of illegal working in the UK? What resources are they directing to enforcement that have not been available in the past? How many prosecutions against employers have been brought over the past three years and how many convictions were achieved?
The CBI states that there is a perception that the lack of experience of the offence among local magistrates could be a factor in low conviction rates as well as in the low levels of fines imposed. Does the Government's experience reinforce that perception? Have they discussed those matters with the Magistrates' Association? I assume that they must have done so before bringing forward these new powers.
The CBI also makes the valid point that the vast majority of employers seek to comply with Section 8 of the Asylum and Immigration Act 1996 but that they need

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information and advice to do so. Members of the CBI have said that current levels of compliance support for employers from the IND are inadequate. What is the Government's response to that? What measures have they taken over the past year to improve the service to employers? After all, we want to get to the situation where enforcement of these penalties is not necessary because the crime is not being committed. The CBI has recommended that there should be more regular updating of information on the IND website; that photographs of identity documents on the IND website should be clearer; that basic information sheets or user-friendly guidance with clear photographs of all documents should be distributed to employers; that the IND helpline should be improved to ensure that advice is consistent, which it is not at the moment; and that the IND helpline should get information about the immigration status of individuals. Have they taken up all the recommendations of the CBI and, if not, are they willing to undertake to do so? It is right that I should make it clear that members of the CBI have stated that when they have contact with individual members of the Immigration Service they have no complaints to make but they feel that the service is under-resourced.
Lord McNally: My Lords, I support the Government's desire to try to use the deterrent value of the law. The noble Baroness, Lady Anelay, with her usual thoroughness and courtesy, has provided me with a copy of her brief from the CBI and I will not repeat it to the House. However, it is interesting that we are all in some way complicit as it is only when we have a tragedy at Morecambe Bay or some fruit pickers are killed on a level crossing that we jerk to and acknowledge that there is a black economy using exploited labour. As the noble Baroness, Lady Anelay, indicated, it is almost a package industry. People are charged exorbitant sums to be transported, often illegally, to this country and are then exploited in the kinds of jobs that they are put into by the same organised crime. It is absolutely right that the Government should try to bring in some measures.
Rather as we were saying about child traffickers, the core of this is getting at those people who are making a profit out of ordinary decent human beings and are hurting them. When the Morecambe Bay tragedy broke, I was struck by the humanity of the victims. They were there because of poverty at home and some of them tried to contact their homes by mobile phone as they faced death. They were ordinary working people caught up by this ghastly trade. It is interesting that the CBI's response is to say not that these proposals are wrong and yet another burden on business but that the key to this is enforcement and the resources to make it hurt. It also needs to be recognised that it is not enough to go after the little guys. I know from my home town of Blackpool—and the Minister will know this from Brighton—that often those running very small businesses do not "tick every box" with regard to employing casual workers. However, I do not think that that is what we seek to tackle. I hope that the Government seek to tackle real exploitation.
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The whole debate about the exploitation of workers is not just a matter for the CBI. I am not sure whether the TUC has given the Government any evidence on the matter. This is not just a case of tackling certain employers. The exploitation of the workers that we are discussing constitutes an attack on all workers and their conditions. The TUC should adopt a higher profile and be more robust in calling for action on this matter. It has been strangely silent. That will probably result in my receiving a letter and a large bulky document from the TUC within 48 hours.
I give the measure a general welcome. Some of the points that the noble Baroness, Lady Anelay, expressed on behalf of the CBI are valid, not least the one about resources to make the measure bite where it should bite.
4.30 p.m.
Lord Bassam of Brighton: My Lords, I thank the noble Baroness for her courtesy in giving advance notice of the detailed questions that she intended to ask. That aids the Minister, as it were, at the Dispatch Box and helps provide better responses but, of course, has the downside of losing the advantage of surprise. I thank the noble Lord, Lord McNally, for his comments.
It is worth discussing the origin of the section that we are discussing. Back in 1996 the then Conservative government engendered a degree of controversy among Members of their own side, and certainly on our side of the House, when they brought the section forward. In retrospect one might say that it was a farsighted provision. They are to be congratulated on having persisted in introducing the section at the time because it has enabled us latterly to begin to capture a particular evil. The comments of the noble Lord, Lord McNally, on that point were well directed. The noble Lord made a very good point about the TUC and unions in general needing to be concerned about the issue. As he says, it is surprising that they have not been at the forefront of arguing the case. No doubt that comment will provoke fury directed at my good self.
This is an important issue. We should place on the record and state publicly here and now that a small minority of employers indulge in the exploitation of the workers that we are discussing and in so doing gain an unfair competitive advantage. They are knowingly negligent in the way in which they employ illegal workers. They do that in the full knowledge that any illegal workers who are taken out of the loop, as it were, can easily be replaced from the ready pool of exploited labour which can be tapped into, even where action has been taken by the Immigration Service. It is an evil business and we should express society's horror and abhorrence of it and do all that we can to attack it and undermine its effects, not least for good labour market reasons.
I turn to the points that the noble Baroness asked. I shall spend some time in responding as these are very important questions. The noble Baroness asked about evidence presented to the Government on the issue. The

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purpose of the amendment is to provide us with the flexibility to pursue the most serious cases in the Crown Courts, where there is no limit to the level of fines that can be imposed. While the existing penalty is likely to be adequate in most cases, we know from recent successful criminal investigations that the trade in illegal working can he big business and, as I said earlier, has links to organised crime. For example, in March this year, six individuals based in Cambridgeshire were found guilty of money laundering and using false documents and immigration stamps to provide illegal workers to farms and factories. In a separate trial, two people from Norfolk were found guilty of facilitation, fraud and forgery offences in connection with the supply of illegal workers.
As I said earlier, we believe that the proposed penalty increase for Section 8 is necessary to provide a firmer deterrent for those tempted by the profits to be made from illegal labour. However, it must be regarded in the context of a wider programme of measures, including greater enforcement activity, more secure document checks by employers, and the use of the proceeds of crime machinery to attack the profits of illegal working. Of course, we will also consider bringing more serious criminal charges against individuals where appropriate.
The cases that I mentioned are a good example of what we are trying to attack. No doubt there are many others that are equally horrendous. It is our intention to do all that we can to capture them.
The noble Baroness asked understandably what was the scale and nature of illegal working. That is very hard to determine because by its very nature it is a clandestine business and a criminal activity. Those involved in it are hardly going to advertise their activities. We know from the experience of workplace enforcement officers that illegal working is most prevalent in sectors characterised by low-skilled, short-term employment involving chains of subcontractors. We think that the most affected sectors probably include contract cleaning, agriculture and food processing, hospitality and construction. Those are areas that targeted enforcement activity may well benefit from being able to attack with greater vigour.
The noble Baroness asked about the level of resources. In April 2002, there were approximately 1,677 staff involved in in-country enforcement activity nationally. By November 2003, the figure had risen to 2,463. That figure includes operational and case work staff. In 2003, the Immigration Service reported carrying out 446 illegal working enforcement operations, compared with just 301 in 2002. Therefore, we have stepped up the level of activity and it is our intention that that vigorous effort should be maintained and surpassed.
The noble Baroness asked about the number of prosecutions brought over the past three years. Over the past three years for which data are available, 2000–02, there were 17 prosecutions and six convictions. We have now strengthened the security of the document checks that employers must carry out on prospective employees to establish a defence under Section 8. The revised legislation will make it easier for compliant employers to avoid giving work to illegal workers presenting false
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documents, and easier for us to take action against non-compliant employers who deliberately use illegal workers.
Lord McNally: My Lords, I am glad that the Minister confirmed those figures because my ever assiduous noble friend Lord Avebury slipped them to me during the course of the debate. However, I was hesitant about using them because I was not sure whether the figure one in the statistics referred to 1,000. However, the Minister has just confirmed that the relevant figures for cases proceeded against are 10, five and two and for those found guilty four, one and one. The Minister referred to industries involving literally hundreds of thousands of organisations, agencies and employers. Therefore, the figures that he mentioned are lamentable. How can we expect to establish any kind of deterrence when the chance of someone being even proceeded against is something like one in 100,000?
Lord Bassam of Brighton: Exactly, my Lords. We have strengthened the means of enforcement and tried to increase the rate of enforcement activity. I congratulate the noble Lord, Lord Avebury, on having rapidly reinforced my research with his own.
Lord McNally: My Lords, the Minister has the Civil Service; I have the noble Lord, Lord Avebury.
Lord Bassam of Brighton: That is true, my Lords.
The noble Baroness referred to the position of local magistrates. She was really raising the issue of how experienced they might be, and the relevance of that to the low conviction rates that have been confirmed and that I made clear on the record. She also asked what discussions we had with the Magistrates' Association. The low conviction rate and level of fines are probably a consequence of a number of different factors. The Home Secretary is to write to the Sentencing Guidelines Council about the low fines imposed in recent cases, which greatly concern us.
We have taken action to address the previous frailty of Section 8. As I said, it was very vulnerable to the use of forged documents by illegal workers, and it is important to remember that, in many cases, successful Immigration Service operations against illegal working depend very much on co-operation with, or information received from, employers. I fully acknowledge that dialogue with the Magistrates' Association on the matter is important, but we should use the recently enacted Sentencing Guidelines Council as a means of ensuring greater understanding of the seriousness of the offences and the way in which the Government approach them.
The noble Baroness raised the issue of the CBI. I ought to congratulate the CBI on its help and support as it has been very constructive in its discussions with us. She also asked about the measures taken by government to improve the service to employers. I am happy to respond on both those points. Through the illegal-working steering group, we have been working closely with the CBI—it has a representative on that group—to address compliance support issues. We sent summary guidance on the recent

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Section 8 changes to 1.4 million employers on the Inland Revenue PAYE register. We have produced more detailed guidance and made it available on the IND website, or on request from the employers' helpline, which includes high-quality photographic images of the documents that employers can check, together with other information.
The Immigration Service continues to make educational visits to employers to raise awareness of their legal obligations. We have also improved the technology supporting the employers' telephone helpline. I am told that the helpline answered a total of 7,515 calls from employers in April this year—many about the recent changes to Section 8. So that service is obviously well used.
The noble Baroness asked about the recommendations made by the CBI and what more we might do. As I said, we welcome the CBI's contribution, and we hope that the five points that it has raised can be addressed as fully as possible. The new material on the IND website includes clear photographic images of identity documents, immigration stamps and vignettes. Staff operating the helpline have been trained on the new legislation, and calls are recorded so that complaints about the quality of service can be investigated and further training needs can be identified if there is a decline in the quality of service.
In regard to the specific suggestion that the helpline should give information about the immigration status of individuals, there are two reasons why it cannot do so. First, there is no current central record of those entitled to work in the United Kingdom. We are taking steps to build the legislative base for such a register, with consultation on the draft identity cards Bill. Secondly, we would be prevented by law on confidence and data protection from disclosing a detail from a person's immigration record to their employer without that person's consent.
Helpline staff, however, provide employers with guidance on what stamps mean in people's passports, and they refer cases to the Immigration Service for investigation where appropriate. That service is obviously very important in determining whether someone's legal status as an employee is correct.
There is a lot going on. I hope that I have fully answered the points raised. If I have missed something, which is always possible, I shall happily pursue it and ensure that a fuller response is made available.
On Question, amendment agreed to.
4.45 p.m.
Lord Hylton Lord Hylton moved Amendment No. 19:
After Clause 5, insert the following new clause—
"INFORMATION AND EVIDENCE AGAINST TRAFFICKERS
Notwithstanding the provisions of the immigration rules, the Secretary of State shall have discretion to facilitate the giving of information and evidence against those who have committed offences under section 4, and such facilitation may include providing subsistence and the right to remain in the United Kingdom (including the permanent right to remain) but may not exceed compatibility with the interests of justice."
The noble Lord said: My Lords, in moving Amendment No. 19, I shall speak also to Amendment No. 20, both of which are tabled in my name. I warmly welcome the Government's action to make all forms of trafficking for exploitation serious offences. The noble Baroness, Lady Scotland, stated that the Government would continue to do all that they could to end this dreadful practice. I welcome that, but I reply that trafficking will not decrease or be ended unless there are many successful prosecutions. We have a duty to care for and rehabilitate the victims of trafficking, both adults and, especially, children.
Recent trafficking into Britain began to be noticed only in about 1995. Nine years later, we have only a hazy notion of its extent. Reliable Romanian sources, known to me personally, have estimated that 300,000 people per year may be trafficked westwards from or through eastern Europe. If only one in 20 of such people came to Britain, that would be 15.000 people a year. West Africa and Asia are other sources that could easily increase the annual total, as we have sadly seen both at Dover and in Morecambe Bay. It is probably necessary for one criminal to traffic only one woman per year into prostitution in London to gain for himself an easy life.
Apart from reports from UNICEF and the American State Department, I know of only two serious studies into trafficking to this country. Both appeared this year—the first by ECPAT UK and the second by the Poppy Project. The problem seems to affect asylum applicants and other incomers, with more female victims than males. It touches on all ages from about 30 downwards.
African child cases have increased recently. They are often masked by informal, non-registered fostering, which may cover as many as 10,000 children. Faced with the problem, social services do not always realise that they are dealing with victims of organised crime; nor do they always distinguish between smuggling and trafficking. Sometimes they find it difficult to share information among themselves. Quite often, there is still a lack of co-operation between police and social services as regards child protection.
The Kent protocol, involving immigration, police, social services and NGOs, is a model that should be helpful elsewhere. Other good inter-agency work is under way in Sheffield. I ask the Government to promote best practice everywhere, given that the main London airports are now better watched, thus diverting traffickers elsewhere. In that context, I welcome the start last month of a national service for trafficked children, called HM2.
I turn now to adult victims of trafficking. It appears that women who have suffered abuse in their own families are the most likely subject of trafficking. In a small sample, some 50 per cent had been raped before being trafficked, and 77 per cent had been beaten before escaping or being released. As a result, 92 per cent of the sample suffered some form of mental illness or acute distress, while 27 per cent had developed a sexually transmitted disease and 65 per cent had continuing physical problems.
At this point I must ask the Government whether they have studied the co-ordinated approach, adopted in Belgium, to all forms of trafficking for exploitation. That brings together administrative and labour law and the criminal code, together with full victim support. An annual report on trafficking is made to the Belgian Parliament. Grace periods for victims are provided for up to six months. Belgium co-operates with the International Organisation for Migration on voluntary returns or moves to other countries.
The key to the whole system is to be found in the bimonthly meeting of the anti-trafficking task force, which ensures that all relevant departments really do co-operate and that depersonalised case information is properly shared, with NGOs included in the sharing. If that system has not been studied I urge that it should be done as a matter of urgency, as it shows what is possible in a serious attempt to respond to acute human needs.
I very much hope that the evidence I have provided goes some way to indicate the daunting scale of the problem and the terrible damage that it does to both adults and children. As I said earlier, we have to convict the traffickers and we have to rehabilitate their victims. These are national responsibilities which cannot entirely be passed off to local authorities and voluntary bodies, even though the latter may be best suited to establishing relations of trust with individual victims.
I turn now to the text of my amendments, which I have tried to revise from those that I moved in Committee in a strenuous effort to make them more acceptable to Her Majesty's Government. The first amendment concerns the giving of information and evidence by persons of all ages so as to secure convictions. I have included the words,
"compatibility with the interests of justice",
to avoid suggestions that witnesses have come forward only because of the benefits that they have received. The point is to make it physically possible for evidence to be given and to remove obstacles and impediments that witnesses may encounter.
I realise that the Government may reply that the discretion that I seek for the Secretary of State already exists. I want to make it known as widely as possible that such discretion does exist and to do so by direct mention in the text of the Bill. We all know that the Secretary of State cannot personally exercise discretion in each case. He must act on advice so that the way in which officials in direct contact with cases actually operate is critically important. Do they always know of the existence of reserve and discretionary powers? If they know, do they use those powers? I suggest that they should be sympathetic and use discretion at an early stage, before victims of trafficking have made up their minds in full and have definitely stated, "we will co-operate". This is the whole point of the period of reflection during which relations of trust and confidence can be built up. This is the time when fears, blockages and impediments to the giving of information and evidence can be resolved.
The second amendment uses the language of the Palermo Protocol, which Britain has signed and will soon be able to ratify. The amendment is in two parts. The first deals with children, because of their vulnerability and special needs. That is why the mandatory word "shall" is included. The word "suspects" is important because cases arise where there is a strong probability of trafficking for exploitation, but cannot immediately be proved. The second part of the amendment is permissive, because it deals with adults. I must point out that the Poppy Project. to which the noble Baroness, Lady Scotland, previously referred contains only 25 places funded by the Home Office. This is a useful start, protecting and making possible recovery for some women trafficked for sexual exploitation. It is, however, unique and I understand that all of its places are fully occupied at present. There is now no special provision for when those trafficked for labour or domestic exploitation escape or are freed from their oppressors. My amendment would enable the Secretary of State to make provision for them and I am sure that many housing associations and other voluntary organisations up and down the country would like to be co-operative on this matter.
We understand that enforcement and protection are two of the Government's four prongs in dealing with this difficult subject. The drafting of my amendment may be far from perfect, but I hope that I have said enough to persuade the Government to produce, if they fall out with my wording, their own formula to place in the Bill. I beg to move.
Lord Avebury: My Lords, I think that I am correct in saying that a previous study was conducted by the University of London, which was quoted by some of your Lordships in the proceedings on the Immigration and Asylum Act 1999. So, the phenomenon of trafficking women is not new and we were already talking about the nature of providing them with assistance and rehabilitation at that time, when the only local authority that was taking any action at the time was, I think, West Sussex. There were some ballpark figures quoted at that time about the scale of trafficking, which were much larger than the number of people who have come to light.
The noble Lord referred to the Palermo Protocol and his wording is largely drawn from it, as he said. If we have signed that protocol, we should enact it in our own legislation, because it does not become part of our law—as I was reminding your Lordships in my references to the Pepushi case—until relevant legislation is passed by Parliament. If we do not take this opportunity there will be some aspects of the Palermo Protocol that are not implemented in our law, and on the last occasion that we discussed this matter, I quoted some sentences from the protocol about housing and so on, to which the noble Baroness, Lady Scotland, did not have time to reply fully. Unusually, she has not written to me on that subject, as she has done regarding so many of the other points that were raised in Committee.
I would be grateful if the Minister would confirm that it is the intention of the Government to implement fully the obligation of the state under the Palermo

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Protocol and, if he does not believe that the amendments tabled by the noble Lord, Lord Hylton, are acceptable on this occasion, to say how he will fulfil those obligations.
Baroness Anelay of St Johns: My Lords, I am also grateful to the noble Lord, Lord Hylton, for tabling these amendments on which he has worked so assiduously since Committee. He has met almost all of the objections that I, in particular, made in Committee to the drafting. I should make it clear that I support his objective of ensuring that we should consider the disadvantages for people who are trafficked into this country, because they may also be victims of that self-same offence—although I pointed out to the Committee that I could foresee some circumstances where someone who actively seeks to become an economic migrant may be trafficked without being seen as a victim in the normally accepted sense of the word. In particular, I welcome the changes that the noble Lord, Lord Hylton, has made which directly link the amendments with the offence in Clause 4.
Amendment No. 19 addressed the problem that we debated in Committee that we need to enlist the help of those people who have been trafficked in securing the conviction of those who are guilty of the offence of trafficking. I support the intention behind the amendment, but I am not yet convinced that it is necessary.
I recall the words of the Minister, the noble Baroness, Lady Scotland, in Committee. She said:
"There is existing provision within current United Kingdom immigration legislation for the exercise of discretion to hold removal action in abeyance in specific circumstances".—[Official Report, 5/4/04; col. 1662.]
The Minister also told the Committee that there was flexibility in the system to ensure that a person's willingness to co-operate in the prosecution of offenders could be taken into account when assessing any application to enter or remain in the UK.
It is important today for the Minister to point us to the relevant provision which gives the Government that flexibility. If he can do so, I would not then feel myself in a position where I would wish to support the amendment if a Division were called.
As regards Amendment No. 20, the noble Lord, Lord Hylton, is right to highlight the important role that voluntary organisations play in giving assistance to persons who are trafficked. I also agree that it is important for the Government to promote best practice. But I am concerned about one part of the amendment to which he referred; that is, the idea that the Government should be forced—he has used "shall" and not "may"—to make provision in respect of children where a case of trafficking has not been proved. That might take the net very wide indeed.
I look forward to the Minister's response. I hope that he is able to go further than the noble Baroness, Lady Scotland, did in Committee in explaining the steps that the Government intend to take to provide care for those people who have been trafficked for
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exploitation pending an assessment of whether and when they should be returned to their country of origin.
The noble Lord, Lord Hylton, referred to the Poppy Project, which provides assistance for those who have been trafficked for prostitution. What of those children who have been trafficked with their families for economic exploitation? What happens to them pending their deportation?
5 p.m.
Earl Russell:My Lords, I, too, support the amendments and I want to congratulate the noble Lord, Lord Hylton, and the noble Earl, Lord Sandwich, on the persistence and care with which they have returned to the subject. But there is one important gap in the amendments which I would like to see filled.
The noble Lord, Lord Hylton, will remember well the case of the Kuwaiti maids—the case of fairly gross ill-treatment which continued for a long time before it came to light. The reason was that they did not dare present themselves to the authority and make their case for fear that they might be sent back to Kuwait where they would not have been well received. The fear of being returned home always deters a traffickee from making any complaint. So until that fear is removed, the traffickee will not complain and therefore the trafficker will not be brought to book.
We need an exception drafted along similar lines as Article 1.1 of the refugee convention. It should state that those who successfully prove that they have been trafficked shall not then be penalised for their illegal presence in the territory—they shall be allowed to remain there—and that those who wish to make a complaint will not be returned home pending the conclusion of proceedings. Obviously, it is not enough in a perfect world, but one must balance right against right and I would not see my way to going any further. But this far we must go.
I also hope that the Minister heard the remarks of my noble friend Lord Avebury about the Palermo convention. It eases proceedings between states if they are able to treat international conventions as common legal language. I do not believe that our diplomats are under-worked—I do not believe that we need to give them a lot of extra work to do—so where we have a perfectly good international convention, let us incorporate it and let us stick to it.
The Earl of Sandwich:My Lords, once again, I support my noble friend's amendments and I want to speak in particular to that on children and young people. I know that my noble friend will be grateful for the encouragement he received from the noble Earl and the noble Baroness—although perhaps it does not go quite far enough in the case of the noble Baroness.
Noble Lords may remember that in Committee I raised the question of safe accommodation for adults. I was seeking assurance that the Government see the links between crime prevention and protection and can find ways of extending the scope of the Home Office's

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present support. I referred in particular to those who are trafficked into domestic service who are not eligible for protection via the Eaves Poppy Project.
My noble friend's amendment refers to child victims of trafficking and this is another vulnerable group slipping through the net. Here I would like to mention in more detail the work of ECPAT UK, the coalition against trafficking which includes Save the Children Fund and Anti-Slavery International of which I am a council member.
As we have heard, only yesterday ECPAT UK published a ground-breaking report, Cause fin- Concern: London Social Services and Child Trafficking. The report documents recent cases of about 30 trafficked children—only a small sample—living in 17 London boroughs. They are aged mainly between 13 and 17 and are of 16 different nationalities. They have been brought here mainly for prostitution or domestic service, often in appalling conditions. One or two are being used for fraudulent benefit claims. One Ghanaian girl who became pregnant was evicted from her home. A 13 year-old Vietnamese girl broke a window to escape prostitution. Many were sexually abused or assaulted either in the UK or before they came here.
But more seriously, the report found that many other cases remain undocumented and that social services are still largely unaware of the problem. This remains true, despite the publicity given by ECPAT and others to child trafficking since the horrible case of the Nigerian torso found in the Thames. When that case came to court last summer, UNICEF stated that thousands of children could be being trafficked in the London area without the knowledge of social services or the Home Office.
The report contains many valuable recommendations for the need for safe houses on the West Sussex model, specialised training, better co-ordination between agencies and the sharing of information. As my noble friend mentioned that, this is not the time to go into it. But it is obvious that despite the Children Act, well-known cases like that of Victoria Climbié and more recent legislation, not nearly enough is being done for trafficked children. That is partly because they fall into different categories of care, whether as asylum seekers or unaccompanied children.
I have no doubt that social services are doing their best, but the evidence shows that the Home Office needs to catch up with the extent of the problem. And as a matter of urgency, London boroughs and others need to learn from the report what can be done. Many of these young children are suffering injustices every day. Can the Minister explain what is being done for their protection and accommodation or will he assure us that something will he done?
Lord Bassam of Brighton: My Lords, I am grateful to all noble Lords who have taken part in the debate. I recognise its importance and the sensitivity of the issues raised. We have rehearsed it on several occasions at Question Time and I understand its seriousness. West Sussex is not far from where I live. I read the local press and I understand the sensitivities
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surrounding the work that the council has had to undertake. Several noble Lords have drawn to my attention some of the frailties of the evident provisions.
I agreed most with the first point made by he noble Lord, Lord Hylton, on the need for successful prosecutions. We need those high profile prosecutions to make the point that this is not something that we can tolerate and that it will be dealt with very firmly.
I also thought that the reference to the research made by the noble Lord, Lord Hylton, was very useful. Obviously we need at all times to take very careful account of that. It clearly reflects on the experience of victims and gives some very important insights into their treatment and the way they are abused and exploited. I found the statistics particularly depressing.
We have debated the issue over a long period. The noble Lord, Lord Avebury, reminded us that we had an important debate in 1999. I also thought that there was great value in reflecting on the work undertaken by voluntary organizations—a matter referred to by the noble Baroness, Lady Anelay, in her contribution to the discussion.
I want to turn to the amendments as they bear some reflection. The first and most important thing to say—and the noble Lord, Lord Hylton, made the point in his comments—is that Amendment No. 19 does not provide for the Secretary of State to do anything more in relation to traffickers or the victims of trafficking than he is already able to do.
Section 21 of the Immigration and Asylum Act 1999 already allows the Secretary of State to supply information to bodies, such as the police, the National Crime Squad and the National Criminal Intelligence Service (NCIS) where that information is required by those bodies for their particular purposes. For example, information may be passed to the police for the purposes of the prevention, detection, investigation or prosecution of criminal offences. So in those terms the amendment is not really required. It is already there and unnecessary.
It is worth adding that Ministers already enjoy considerable power to exercise discretion much as they see fit with regard to the victims of trafficking. Options can range from holding removal action in abeyance to the granting of leave to remain, even for an indefinite period. Ministers exercise that power on a case-by-case basis.
Similarly, we can, and indeed do through the Home Office funded Poppy Project—Eaves Housing project—make provision for victims to be supported while they remain in the United Kingdom, but again that too has to be determined on a case-by-case basis.
So this clause does not require the Secretary of State to do any more than he is already able to do. The noble Lord, Lord Hylton, not only acknowledged that, but he was trying in a sense to encourage the use of that discretion and to draw attention to it perhaps—and importantly through this debate.
Perhaps I may turn to Amendment No. 20, which has a bearing on the Palermo protocol. Perhaps the first assurance that I need to provide to your Lordships

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is that we have signed the United Nations protocol on this issue. We will ratify that once domestic legislation provides us with the opportunity. So it is our intention to act on the Palermo protocol. Perhaps it is worth reminding your Lordships of Article 6.3 of the Palermo protocol. It makes clear:
"Each State Party shall consider implementing measures to provide for the physical, psychological and social recovery of victims of trafficking".
That is obviously a laudable objective, which we believe we already undertake. Nevertheless, it is an important statement of principle.
I am satisfied that we are able to provide—and, indeed, do so in many cases—to the victims of trafficking many of the services the noble Lord proposes in his new clause. The Home Office has already recognised that need. We have worked very much in partnership with the voluntary sector—and we are very grateful to it—over the past couple of years in particular to put in place provision for adult victims of trafficking for sexual exploitation. The Poppy Project is currently being evaluated and, based on that information, we shall take decisions on the type and extent of support needed in the future. That evaluation is very important to us. We want to understand the value and worth of developing that service, in particular through the Eaves Housing project.
5.15 p.m.
It is also worth reminding noble Lords that the Children Act 1989 places an important duty on social services departments to safeguard and promote the welfare of children in need. That includes those who have been assessed as victims of trafficking. However, we are reluctant to place a duty on the Secretary of State to provide care where trafficking is merely suspected but not proven. I have no doubt that many social services departments will err on the side of caution—and do err on the side of caution—and will provide active support where there is little evidence of trafficking. But we must avoid providing what could be described in some circumstances as a "perverse incentive" for parents to send their children to the United Kingdom, often in highly dubious and unsafe circumstances, so that they might avail themselves of the provisions of this clause.
However, we recognise and understand the importance of working very closely with social services. We have regular liaison with them and are seeking to encourage and ensure that they are sensitive to the issues trafficking raises. I think that we already do what the amendments propose and valuable work is being undertaken.
The noble Earl, Lord Sandwich, raised the issue of the ECPAT report. Perhaps it is important to say that those who may have to deal with victims of trafficking are aware of the particular issues that it presents. The ECPAT report is extremely valuable. We are grateful to that body for the research that was undertaken. I want to reassure not only the noble Earl but other
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noble Lords who have participated in the debate that we shall consider the lessons that can be drawn from that report and will see what more needs to be done.
With that, I remain in favour of retaining the current system where the provision of care is based very much upon a careful assessment by local social services because I think they are best placed to provide those services. They are closest to the problem. I hope that the noble Lord, having valuably aired many of the important issues relating to trafficking and the care and support of the victims of trafficking will feel able to withdraw his amendment this evening.
Earl Russell: My Lords, I am a little puzzled by the Minister's objections to Amendment No. 19. I see the point he makes well enough, but I am not certain what the logic of his argument is. He is presumably not telling us that every time a Minister has a discretion, which may be exercised in favour of an asylum seeker, that he uses it. He is presumably not telling us either that Ministers object to being given a little gentle encouragement on occasion, which is all the draft of the noble Lord, Lord Hylton, would do.
So, if the noble Lord does not say that a Minister always uses his discretion, and that he does not want a little gentle encouragement. is the noble Lord suggesting that we ought to use a blunter instrument next time? That really would be a rather perverse incentive to give us.
On the subject of the Palermo convention, is there any possibility of its incorporation in the Children Bill at present before this House?
Lord Bassam of Brighton: My Lords, I am grateful to the noble Earl for his intervention. It would be wrong of me to assume great powers with regard to the Children Bill. That is not a proper consideration for me to make at the Dispatch Box this evening, although it is an interesting invitation, and one of which I shall certainly take note.
With regard to the noble Earl's earlier comment about giving the Secretary of State a nudge and some gentle encouragement, the amendment simply seeks to do what the Secretary of State already does. It would allow the Secretary of State to provide subsistence and to grant victims of trafficking leave to remain. The Secretary of State can already do that. It would be irrelevant to have an amendment that simply repeated what was already there. I see no good reason for putting this in the statute books. What is proposed is already actively undertaken in respect of traffickers and victims of trafficking. It does nothing more than we can already do. It adds nothing.
Earl Russell: My Lords, our parents sometimes used to give us sweets. We sometimes encouraged them to do it a little oftener.
Lord Hylton: My Lords, I thank noble Lords who have taken part in this short debate. I am grateful for the fair degree of support from the opposition Benches and to the noble Lord, Lord Bassam, for his generally

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sympathetic response. I fear that I have not been successful in getting the Government to move forward significantly. I would like to try out some further questions on the noble Lord.
Lord Williams of Elvel: My Lords, I am sorry to interrupt the noble Lord, but we are at the Report stage.
Lord Hylton: My Lords, in that case I shall try my best to be brief.
We have been discussing the Palermo protocol. I was under the impression that the Bill gave the Government an opportunity to ratify it. I may be wrong; perhaps the Children Bill would be a more appropriate place for that. One way or another, we would like to know where the Government stand.
Can the Government go further than the noble Baroness, Lady Scotland, did on 5 April, as reported at col. 1663 of Hansard, on the United Kingdom's not opting into the new European Union directive about victims of trafficking for exploitation? If the Government think that their system is superior, have they tried to convince the EU to apply it elsewhere? Has the draft directive been improved and amended since the beginning of April? The course of the research that I mentioned has shown that "hot addresses" crop up in practice, where people who have been either smuggled or trafficked into this country pass through fairly regularly. Will the Government undertake to investigate such addresses and to deal with them?
Lord Evans of Temple Guiting: My Lords, I must remind the noble Lord again that we are on Report. The sort of questions that he is asking should be raised in Committee not on Report. I think that the House would wish me to ask the noble Lord to remember what stage we are at and not to treat this as a Committee stage.
Lord Hylton: My Lords, the noble Lord will be relieved to hear that I am about to conclude my remarks. Perhaps we should take up the suggestion of the noble Earl, Lord Russell, that Article 31 of the refugee convention may provide a way forward. Failing that, an amendment proposed by the United Nations High Commissioner for Refugees may provide a solution. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 20 not moved.].
Clause 7 [Claimant's credibility]:.
Lord McNally Lord McNally moved Amendment No. 21:
Page 7, line 23, leave out paragraph (e).
The noble Lord said: My Lords, Clause 7, headed "Claimant's credibility", is in many ways the most subjective clause. Clause 7(2) says:
"This section applies to any behaviour by the claimant that the deciding authority thinks",
and so on. The UNHCR has quite rightly drawn our attention to the fact that what "the deciding authority thinks" can be the most subjective judgment, based as much on the cultural background of the deciding authority as on the cultural background of the person
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being interviewed. Therefore, it rightly warns us that the kind of considerations spelt out in Clause 7 should be treated with extreme caution.
The UNHCR helpfully provided an article prepared by Professor Audrey Macklin for the Immigration and Refugee Board of Canada. It says:
"Credibility determination is hard. It is frequently difficult to articulate in rational terms why one does, or does not, believe another … The stereotype goes something like this: truth-tellers look us in the eye, answer the questions put to them in a straightforward manner, do not hesitate, show an 'appropriate' amount of emotion, are neither too laconic, nor too verbose. Liars do not look us in the eye … do not answer the questions put to them … say too little … say to much…are either too demonstrative…or lacking in affect…Yet as we all know (or should know), culture, gender, class, education, trauma, nervousness and simple variation among humans can all affect how people express themselves. It is dangerous at best, and misleading at worst, to rely on a uniform set of cues as demonstrative of credibility, or lack thereof".
That is the core of the amendment. It would remove only one of the cues under subsection (2) that the determining authority is to treat as,
"designed or likely to conceal information … [or] … to mislead".
Subsection 3(e) refers to,
"failure without reasonable explanation to answer a question asked by a deciding authority".
In my schooldays, that was called dumb insolence. It is a step too far to imply that silence—whether because of dumb insolence, trauma, cultural misunderstanding or sheer prudence that an answer might cause problems elsewhere—can be used by the deciding authority to imply that the claimant's credibility is at risk. I beg to move.
The Countess of Mar: My Lords, I remind noble Lords of my involvement as a member of the Immigration Appeal Tribunal. In all the 19 years that I have done the job, I have never needed to be told how to assess a claimant's credibility. One does it from experience and knowledge of the situation. I find this clause absolutely amazing. I support the noble Lord, Lord McNally, in his amendment.
Earl Russell: My Lords, my noble friend reminded me of a passage in Konrad Lorenz's book On Aggression describing introductions between Americans and Japanese. The American looks up, opens his mouth, bares his teeth and extends his hand, and the Japanese takes that as an act of aggression. The Japanese will bow his head, look submissive, remain quiet and give an impression of total subservience. Both impressions are equally wrong. We are hearing of a process very like that. The clause should be entitled, not "Claimant's credibility" but "Credulity of the determinator". Many applicants come from countries in which what is taken for a reasonable explanation is very different from what is taken as one here. I support the amendment warmly.
5.30 p.m.
Baroness Carnegy of Lour: My Lords, there is a point in this amendment, and I have some sympathy with it. The noble Countess, Lady Mar, said

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something rather important. She does not think that usually one has to be told how to assess someone's credibility. Anyone who has sat on the Bench will know what she means. If the Government are going to do this, the list of things that are to be included should be carefully looked at. Of paragraphs (a) to (e) in subsection (3), (e) is the one that is, to my mind, the weakest.
If you do not without reasonable explanation produce a passport or a document, or explain why you have destroyed it, that is a concrete matter; but,
"failure without reasonable explanation to answer a question",
is not concrete at all. Even if it said "the manner in which" a person replied or failed to reply, I would be happier. We can all think of the difficulties that someone might have in answering. They might not answer just because they did not understand. This is a great weakness in this clause. I would rather like to think that the Government will look at it again.
Lord Bassam of Brighton: My Lords, the amendment would delete subsection (3)(e), which provides that,
"failure without reasonable explanation to answer a question asked by a deciding authority",
is to be taken as behaviour that damages a person's credibility. Of course, we accept and understand that there are cultural differences. The example given by the noble Earl, Lord Russell, was pertinent and interesting. We accept that some claimants may have some cultural distance from the experience of responding to questions and that some claimants may find it painful to recount the details of their experience. Obviously, it depends very much on the circumstances. It is possible that the circumstances could provide a reasonable explanation for a claimant's earlier reluctance, or reticence, to provide a full story or to be entirely truthful. We fully understand the need for sensitive evaluation to take place—we see that as a requirement. However, only the applicant can know the truth of the claim, and therefore it is right that the general principle must be that it is for the applicant to co-operate fully to establish what the truth is.
It is the Government's view that where a person refuses to co-operate with our procedures by not providing information that is requested in connection with his claim, and which it is in his gift to provide, that is a clear demonstration of non co-operation. It is only right that such failure—unless justified by a reasonable explanation—should be taken into account and an adverse inference be made when assessing the credibility of a person's claim. Of course, we would accept a reasonable explanation.
I am sure that the noble Lord, Lord McNally, will not like that explanation, but it is right and appropriate. I heard what the noble Baroness, Lady Carnegy of Lour, said about this wording. The wording is right—I cannot bend to the suggestions that have been made on this. This is the right way to proceed, and I hope that the noble Lord will feel able to with draw his amendment It is an amendment
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which, if passed, would significantly weaken the position of the determining authorities. That is an important element to be considered.
Lord McNally: My Lords, the Minister applied his usual straight bat to the amendment. I was enormously encouraged that I had the support of the noble Countess, Lady Mar, and the noble Baroness, Lady Carnegy, who spoke from considerable experience about what deciding authorities need to be told and what should be left to their experience. I hope that when the Minister has a chance to read Hansard, particularly the interventions, he might consider that subsection (3) (e) being taken out of the Bill would not end civilisation as we know it. In the mean time, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 8 [Failed asylum seekers: withdrawal of support]:
Lord Avebury Lord Avebury moved Amendment No. 22:
Page 9, line 19, at end insert—
"( ) In Schedule 3 to the Nationality, Immigration and Asylum Act 2002 (c. 41) (withholding and withdrawal of support) after paragraph 3 insert—
"3A (1) Support shall not be withdrawn or withheld from a person under the provisions of this Schedule unless the needs of that person and any dependants has been the subject of an individual evaluation.
(2) An evaluation for the purposes of this paragraph shall pay special attention to needs arising because the person is—

(a) a minor;

(b) a person who claimed asylum while still a minor;

(c) disabled;

(d) elderly;

(e) pregnant;

(f) a single parent with a minor child; and

(g) a survivor of torture, rape or other serious forms of psychological, physical or sexual violence.""

The noble Lord said: My Lords, we and many others have already explained our objections to Clause 8 in some detail in Committee, and I do not intend to repeat all that here. However, we do not accept that Parliament and the state can abdicate responsibility for the children of failed asylum seekers by saying that, if the parents refuse to depart voluntarily when they get to the end of the appeal process, it is the parents who are putting the children at risk and it is for the local authority to decide how the interests of the child should be protected under existing child protection legislation.
If any local authority should fail to protect the children in that situation, there would be a breach of the UN Convention on the Rights of the Child and of the Human Rights Act. Morally, it would not be only the local authority that was to blame—the Government and your Lordships would share the opprobrium for creating the circumstances in which the violation was likely to occur and failing to build in adequate safeguards to prevent it happening.
The noble Baroness said in Committee that it was not the intention of the Government to separate children unnecessarily from their parents. That means that there will be circumstances in which they think it

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is necessary to separate children from their parents; otherwise the Minister could have given an unqualified assurance that it would never happen. So far, no Minister, either in another place or here, has explained how this can he achieved without contravening the Children Act and corresponding legislation in Northern Ireland and Scotland. It is not surprising that the British Association of Social Workers has said that to operate this clause risks breaching their members' professional ethics. It will be the Secretary of State who lights the fuse that leads to this explosion of children's rights by certifying that the parents have failed without reasonable excuse to leave the United Kingdom voluntarily.
As the Minister said in Committee on 5 April, the Government mitigated the harshness of this clause by providing a right of appeal to an asylum support adjudicator against the certification and the consequent loss of support. The adjudicator would not be entitled to consider the likelihood that if the certificate was upheld, there would be a breach of the Children Act, the UN Convention on the Rights of the Child or the Human Rights Convention. Again, it comes down to the manner in which the local authority deals with the conundrum that is presented by Clause 8. The Minister can tell the House whether—and, if so, under what conditions—the local authority has to provide accommodation and support to the family. It would be grossly unfair to the hard-pressed local authorities not to spell this out. In particular, do Ministers say that powers to support children in need under Section 17 of the Children Act 1989 can be used?.
The assessment of whether a child is in need directs social workers towards promoting the upbringing of the child within the family. If parents are asking for support to keep their families together, and social workers believe that it is in the child's best interests, this is the support that ought to be provided, but as we read it, that is not allowable under Clause 8. If there is only a very limited power and, in practice, the local authority has no option but to take the children into care, leaving the parents on the street, it may be acting unlawfully too. As the Joint Committee on Human Rights put it, and the Minister candidly acknowledged:
"While Clause 7"—
as it was then—
"in itself is compatible with rights under the ECHR and the CRC, we fear that violations could all too easily follow in practice. We draw this to the attention of each House".
The noble Baroness said that the Government had taken that warning into account in providing a right of appeal, but, in effect, that only deferred the moment at which the risk envisaged by the JCHR would arise. The adjudicator has no power over the decisions that are to be made by the local authority. On the basis of those considerations, the only proper response to Clause 8 would be to delete it.
That is not to say that we believe that people who are unsuccessful in making asylum claims should be allowed to stay here indefinitely. We accept the need to remove them compulsorily as a last resort. However, what we find absolutely repulsive is the way in which the Government describe the infliction of destitution on
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families with children as voluntary departure. We want to know how they intend to apply the provisions of new paragraph 7A of Schedule 3 in the real world. If the parent or parents have no means and no accommodation, does Section 21C of the Children Act 1989 kick in? Are local authorities caught between the Scylla of paragraph 7A and the Charybdis of an expensive court case under the Children Act or the Human Rights Act? If your Lordships have not the faintest idea how the conflict is to be resolved and if Ministers will give us no answers, how can we expect local authorities to make such painful decisions?.
We already have some idea of what will happen when Clause 8 comes into effect from the experience of EEA asylum seekers from 1 May onwards. We dealt with the matter on two previous occasions: on 23 April, when your Lordships approved— I use the word tactfully—the accession regulations, and on 26 April, when the Committee heard that news of the three-day concession had not filtered through to NASS officials in Brent and, for all we know, in other parts of the country.
In a letter sent to A8 asylum seekers dated 5 April but, in some cases, received much later than that, NASS said:
"If you are living in accommodation provided or funded by NASS, you will need to vacate it by 1 May"—
that part was in bold—
"as you will no longer have authority to remain there".
The letter said nothing about the safeguards—limited as they may be—in the schedule, nothing about supporting children, and nothing about supporting people when not doing so would be a breach of their human rights, including the right to family life of a child threatened with separation from his or her parents. No evaluations of the likelihood of such breaches were carried out, and NASS made no attempt to assess individual cases to ensure that breaches of human rights did not occur.
Unsurprisingly, the evictions have been challenged. The High Court asked NASS to stay evictions so that the court would not be overwhelmed by applications for relief, as we predicted. NASS agreed to do so, but only if people contacted them, with the result that many people were unaware of the temporary reprieve. Mr Justice Collins granted permission to proceed to a full judicial review, which is now scheduled for 20 May. In that hearing, he said to the Government's representatives:
"You say that, because you have left it to the last moment, nothing can be done, subject to the [human rights] convention…That is a recipe for bad administration: leave to the last moment—don't do what you should have done earlier. Then you get away with it. That doesn't sound very attractive. That is the problem I am faced with. I think all the evidence points one way as to whether it was reasonable to expect them suddenly to find work when they had not been able to work".
What is to stop the same appalling situation occurring when Clause 8 comes into effect? The families that are to be deprived of support are not only those who reach the end of the line from now on but all the people who are likely to benefit from the backlog clearance procedure.
I had a letter from Home Office Minister Fiona Mactaggart about one such family. I shall give the reference in case the Minister wants to look it up: A545063. The applicant had arrived here on 6 November 1995 and applied for asylum at the beginning of January the following year. The former Minister, Beverley Hughes, wrote to me on 13 December last year, saying that Mr H would hear from the IND shortly. Four months later, there was still no word, and I wrote again. Ms Mactaggart replied, pleading that, as a result of the reorganisation of the IND, there had been what she described as "occasional delays". She apologised for the distress and inconvenience that it had caused the family. The Minister said that the IND would send Mr H a form in the next two months.
5.45 p.m.
I use that case as an illustration that, if Clause 8 were in effect while the backlog was still being cleared, Mr H and his family would have to live on nothing while the IND got round to sending out the forms. We are suggesting that, as a minimum, procedures should be established to ensure that the modest exceptions in Schedule 3 are identified and honoured. Amendment No. 22 spells out particular groups whose needs must be evaluated before any decision to withdraw support is taken. That list is modelled on the EU reception directive. Although that directive is concerned with the reception of people seeking asylum rather than those who have reached the end of the process, we used it as our source because it provides a definition of "vulnerable persons" agreed by the UK and other member states.
I have just seen a letter from the Treasury Solicitor to an applicant. It says:
"We confirm that those who have indicated their wish for support to continue by their representations to NASS either in writing or on the telephone will be eligible for an assessment".
Over the page, it says:
"We confirm that the assessment will take into account factors relative to whether or not the failure to provide support would result in an ECHR breach".
If that is the case, and the Treasury Solicitor is making the concession, we are almost where we want to be with Amendment No. 22. I hope that the Minister will confirm that the letter from the Treasury Solicitor represents the change in government policy that we are asking for through Amendment No. 22. I beg to move.
Lord Lester of Herne Hill: My Lords, I wonder whether, when the history of this Government comes to be written, the debate on this clause will not seem significant as a touchstone of what the Government are doing to respect basic human rights and freedoms. I find it dispiriting that such an unsightly clause should ever find its way into a Bill. I cannot believe that a previous Conservative Home Secretary would have given his authority for such a provision.
I speak only as a member of the Joint Committee on Human Rights, which will meet—rather late in the day because of the pressure on us—to consider this clause
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and others in the Bill. As we are on Report, any report that we publish will be able to be considered only at Third Reading. I shall be brief, and I make it clear that I speak only for myself. However, I am glad to see that the noble Lord, Lord Judd—another powerful member of the Joint Committee—is in his place.
As my noble friend Lord Avebury said, in the fifth report of the Joint Committee on Human Rights, we considered the human rights implications of the proposed withdrawal of various benefits from failed asylum seekers with families who, in the Secretary of State's opinion, had,
"failed without reasonable excuse to take reasonable steps—

(i) to leave the UK voluntarily, or

(ii) to place himself in a position in which he is able to leave the United Kingdom voluntarily".

In the report, we drew attention to the potential state of destitution facing people from whom support was withdrawn. We also drew attention to the fact that the Secretary of State had an obligation to undertake the most careful examination of the likely impact of withdrawing support in each individual case in order to avoid a violation of the right in Article 3 of the European Convention on Human Rights not to be subjected to inhuman or degrading treatment.
I believe the Government's position to be that they have a duty to exercise discretion to avoid a breach of Article 3 of the European convention. That will no doubt be confirmed by the Minister in his reply. However, I also believe that the Government rely on the argument that support will be withdrawn only from failed—I repeat, failed—asylum seekers who have failed to leave the UK voluntarily. The fallacy in that argument is that Article 3 of the European Convention on Human Rights is absolute. There are no exceptions. There is an absolute prohibition against inhuman or degrading treatment, which applies irrespective of the circumstances of the victim.
I recall, for example, that in the Chahal case—the case of a Sikh suspected terrorist facing extradition or deportation to India—the European Court made it crystal clear that Chahal was entitled to be protected absolutely against the inhuman or degrading treatment that he risked if he were sent to India, although one could say that he brought the situation on himself. The question that the Joint Committee on Human Rights will have to ask and answer is whether we still think, as we did in our previous report, that the Secretary of State must recognise and must give serious consideration in each individual case to the potential state of destitution that follows the withdrawal of benefits. I submit that the Government cannot treat an asylum seeker's failure to leave the UK voluntarily as in any way relieving them of their obligations under Article 3 of the European convention to secure, in practice, that there will be no violation of Article 3.
If that is right, although the amendment does not write that in as a specific obligation, it would require an individualised evaluation of the particular circumstances rather than a, per se assumption that because the failed asylum seeker is failed and because

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the failed asylum seeker has not voluntarily left the UK, he and his family must have the benefits withdrawn.
As I said before—I am using my language moderately here—this is a most unsightly provision to find its way into any Bill of a Government whom I, as a Liberal Democrat, looked forward to seeing in power in the hope that they would respect the basic principles of liberty and equality. I am deeply disappointed to find that provision in the Bill. The amendment would have the great benefit of ameliorating but not curing the position. It allows the Government still to have their policy of withdrawing support, but it means that the process by which it is done makes it more likely that there will not be a violation of Article 3.
I simply say that if the amendment is not accepted, I predict that there will be litigation under the Human Rights Act, which would not be to anyone's benefit. It would he much better if we write adequate safeguards against abuse into the Bill. Frankly, I can see no good reason why the Home Secretary should not be compelled to have regard to individual circumstances and ensure that there will not be breaches of the guarantees in Article 3 of the European Convention on Human Rights. I therefore strongly support my noble friend's amendment.
Lord Judd: My Lords, the noble Lord, Lord Lester, has said that he speaks for himself alone, although, not for the first time, I find myself in agreement with much of his sentiment. He has also drawn attention to the meeting tomorrow of the Joint Committee on Human Rights where we shall be considering the issue. This places those of us who are members of that committee in some difficulty. Obviously, we are influenced by the discussion with our colleagues. Therefore, it is important not to prejudge the outcome of those deliberations in the Joint Committee.
However, there are a couple of observations that I should like to make. First, I think that by any reading of the convention, there are certain absolute, unqualified obligations on government. We need to hear my noble friend's response on that point. Secondly, I take as seriously as any other member of that Joint Committee or indeed, I am sure, any other Member of this House, our obligations under the convention. But I think that it is sometimes a pity that we assess those matters and discuss them simply in terms of obligations under a convention. Of course, that is crucially important.
However, I should have thought that in this House we would want to take seriously the issue of law that is administered with compassion and feeling. We have got to do some joined-up thinking about the different issues that confront us at the moment. We are tremendously preoccupied with the issues of global terrorism and the alienation that feeds global terrorism. In that context, it is crucial not only that justice is done but also that justice is seen to be done. It is also crucial that in all that we do we are living evidence of the values which we say are the basis of our society that we are trying to protect.
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Those are points that intellectually it is quite easy to make, but the crunch comes when we come down to the practicalities of public administration. My own view therefore is that the amendment put forward is really quite a moderate and modest checklist of the responsibilities of compassion and of considering the position of the people who may be about to have their benefits withdrawn.
Before I conclude, I should like to put one point to my noble friend the Minister, to which I hope that he will feel able to respond. Would he, as a member of the Government, be happy that support had been withdrawn from a minor because a rule made that possible, rather than because a rule established the possibility of doing that and the case had been very carefully considered? Would he feel happy that it was done just because it was a possibility and therefore had been seized as a possibility for any of the other categories listed in the amendment?
I know my noble friend well. I have a great affection for him. I believe that he is a very sensitive and caring person. I do not believe that he would be happy. Therefore, in that context, the amendment helps us to establish the responsibilities of those administering the law to pause and consider the implications of what they are doing and to go through rather carefully what the consequences will be.
6 p.m.
The Earl of Listowel: My Lords, in speaking to Amendment No. 22, I shall speak also to Amendment No. 24, both of which stand in my name. I support all that the noble Lord, Lord Avebury, said. I declare an interest and remind your Lordships that in 2002 UNICEF sponsored a few other parliamentarians and me on a visit to Angola to see where the journey of the refugee child begins. We are currently working on the Children Bill, which we hope will ensure that many more children have a decent start in life. My deep concern is that as a result of this clause some children will have a poor start in life.
Will the Minister pass on my thanks to the noble Baroness, Lady Scotland, for the helpful meeting she arranged? It was useful to have the Government's position set out with more clarity.
I support this amendment because it serves as a means of clearly evaluating these families before their housing and benefits are removed and they are made destitute. I listened with great interest to the noble Lord, Lord Avebury, when he spoke of the recent debacle of asylum seekers under the accession arrangements. It is clear that this sort of protection is necessary in that context.
Whatever the parents may do, we must remain interested in the well-being of their children. Recently I visited some families at the Medical Foundation for the Care of Victims of Torture. Among them I met a mother whose children had seen a report of an event on television. Noble Lords may be aware of the story. Two or three months ago, back in Kosovo, three children were playing on Serbian ground. The local Serbian people set their dogs on the children, who were

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not of their ethnic group. The children were driven into a lake, where they drowned. In the ensuing struggle, 30 people were killed. The mother told me how her children had watched the reportage of this incident.
Some families have had their homes burnt out and they cannot return to their villages because they have fallen under the control of another ethnic group. Many of them will have been through the judicial process, which is thorough and effective. However, they will still be traumatised by the extreme experiences they have suffered in their home countries. Nevertheless, the process will decree that now that the situation in their home country has stabilised, they are no longer in fear of persecution. Objectively that may be true, but for the families who have lived through such terrible experiences—we all recognise those events—subjectively they may not consider it safe to return. When faced with the choice either to return or be made destitute, some of those families may well choose destitution.
I welcome the assurance of the noble Baroness, Lady Scotland, in Committee. She said that it is not the aim of the Government to put families on the edge. The Government want to avoid putting parents in a position where they have to make decisions that go against the best interests of their children. Given that, I hope that the Government will regard this as a helpful amendment, one that would protect the standards about which they are concerned.
I move on to the debate on whether the clause should stand part of the Bill. As I have said, I consider this provision to be one that poses a very real threat to the well-being of the children of these families. Her Majesty's Government deserve many congratulations on the steps they have taken to improve the asylum process over recent years: investing in the Immigration and Nationality Directorate; reducing asylum claims by half; speeding up the decision process to two months; and doubling the number of removals. In that context, is this draconian proposal, one that would make families destitute, really necessary?
Although the Government have not argued it, there must be a concern that if this clause is not as firm as it is, more families will be encouraged to claim asylum in this country. I draw the attention of noble Lords to a recent House of Lords committee report entitled Handling EU asylum claims: new approaches examined. On page 11 it states:
"Research carried out for the Home Office shows that asylum seekers may know little about the United Kingdom before they arrive here. It also suggests that changes to benefit regulations in different European countries have had little effect on the numbers of asylum seekers coming to the United Kingdom, whose numbers continued to rise … despite a decade of increasing restrictions on the availability of welfare benefits for asylum seekers".
Noble Lords may also care to peruse the evidence on asylum applications given by Dr Deborah Crawley in the second report of the House of Commons Home Affairs Committee in Session 2003–04. It provides more insight into that research. Dr Crawley was responsible for researching the reasons why people come to this country.
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I am sorry to speak at such length and trespass on the time of the House, but I am very concerned about this issue. The danger is that we do not know enough about what may happen as a result of this provision, particularly about the numbers it will affect. I should be grateful if the Minister could give us more information, in as much detail as possible, on the number of families likely to be affected. However, I suspect that he may not be able to be very helpful.
On the first night I visited a Centrepoint hostel, I met two homeless 16 year-old girls. One said that her stepfather had pushed her out of the home. An African cook, a young woman, sat at our table and said, "You know, if I had a place to stay, all my family would be welcome. There is no way that my family would not provide me with a place to live if I was stuck".
Many people currently in the care of the National Asylum Support Service will be caught by this clause. Many are now dispersed to areas under less pressure. What may happen as a result of all support for these families being removed is that they will move to the nearest place where there is a large number of those from their own ethnic group. That may be London or Manchester, if that city is closer. Such movements will put increased pressure on already very burdened settings. It will not be good for them and it will not be good for our people.
Often these families function reasonably well. Unlike many of the families that I meet, the parents are not addicted. They have not lived in deep poverty for a long time and they have not both had to go out to work, resulting in neglect of the children. However, I am concerned that these families will be put into a situation where they have to take on illegal work, because that is all they can get, and they have to live in the worst conditions. Although we have stopped local authorities placing families in bed and breakfast accommodation, NASS still puts some asylum seeking families into such housing. I have seen some appalling private accommodation. Once I saw a lavatory that doubled up as a shower. The lavatory and shower were sited together in one cubicle. We may drive these families into conditions like those.
In conclusion, I strongly commend the Government on their investment in processing asylum claims and I do not underestimate the difficulty of the job in hand. The noble Lord has a background in social work and I am sure that that will help him to understand our concerns. I look forward very much to his response, and the possibility that he may be able to suggest that the Government might just begin to think again about this highly controversial clause.
Earl Russell: My Lords, my noble friend Lord Lester of Herne Hill rightly stressed that in the European convention some rights are absolute; they are not contingent. It is the same in life, which I why I was proud to be in this House when it made legal history by ratifying the protocol of the European Convention on Human Rights which bans the death penalty.
I feel exactly the same about any measure which takes away from people the right to food and shelter. I may be right or I may be wrong in that. It depends

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very heavily on the evidence, on what it actually does to people. I have been trying to get that evidence for 15 years with a singular lack of success. Only once have the Government agreed to collect it; that was in the pilot studies on the effect of deprivation of benefits on those who are guilty of breaches of community service orders. I referred to that evidence in Committee on the Bill. The noble Baroness, Lady Scotland, said, "Oh, but those are quite untypical; they are some of the worst behaved people in the country". It may be that I am cynical but the thought went through my mind, "Perhaps that is why they allowed that particular evidence to be collected".
Amendment No. 22 is vital because it contains a requirement for evaluation. That will fill in exactly the gap between two imagined pictures of deprivation of benefit which has never been closed in 15 years to date.
We should remember also that not all failed asylum seekers are rightly so described. I remember corresponding with Lord Williams of Mostyn about someone who would certainly have been subject to this clause. This person was within three days of removal. Once Lord Williams applied his gift for evidence to the case, he decided that the man's case was justified and he was granted asylum. I do not know how many more innocent people we will catch in the web.
It is vital that victims of rape and torture should be allowed support. I am told that a brief from Women Against Rape has been chasing me around the House but has not yet reached me. I imagine that it might possibly say that women who have been victims of rape, or people of either sex who have been victims of torture, may be very reluctant to come forward in public, especially in a mixed sex environment. So we may catch in our great net a large number of people who have been victims of rape and torture.
In Committee, the Government relied very heavily on one single defence: that they did not wish to separate parents and children. I do not think that carries quite the weight they put on it. When we say, "If you do this you will be imprisoned", we do not want to imprison people; but we do take it for granted that some people will be imprisoned or the deterrent will not work. The Government are prepared to do this but, when I consider all the implications, I am not.
Lord Elton: My Lords, I apologise for intervening, if briefly, on this single group of amendments but I should like the Government to clear up some points that I wish to make.
As I understand it, new paragraph 7A is designed to deal with people at the absolute final end of the processing of asylum applications. That process will have shown that they have no shadow of a right to remain in this country. If the process was working smoothly, was adequately staffed and not overloaded, one might accept that this was a good, final judgment that should be executed without undue clemency, shall we say, to those upon whom the execution takes place.
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My first anxiety is that, as I understand it, the process is exceedingly overloaded. The provision will increase the load and make shaky decisions more likely. I therefore welcome Amendment No. 22, which at least directs the attention of officials and, as it were, the process itself to those who would be in the gravest danger if they were deprived of all the support listed in the first paragraph.
I am also puzzled by the fact that, as I understand it, these are people whom the Government are afraid will continue to be living out of the public purse, as it were, although they have no right to be here. But the Government will have a duty to remove them from the country at that point. The very fact that they come to collect the money from the public purse means that they will be available for deportation. It seems to me that their eligibility for social security and so on is a means of making the method of deportation more certain.
Those two matters seem to require some answer. Without such an answer, I shall be very much in favour of Amendment No. 24.
6.15 p.m.
Baroness Anelay of St Johns: My Lords, these are sensitive and serious issues. If one puts aside for the moment the issues surrounding Clause 14 on appeals, certainly they are the most intractable problems that face us today.
This debate concerns the well-being of children. The noble Earl, Lord Listowel, reminded us of his day-to-day experiences and the depth of his experience. He had no reason to excuse the length of his contribution; it was very valuable. He referred to a meeting that he set up for noble Lords which was attended by the Medical Foundation and, most importantly, by people who had themselves suffered through the system. It is important that we should put on record our tribute to the courage of those people who came to meet noble Lords that day. To come to a political institution when you have been the victim of persecution by other political institutions takes tremendous courage.
I have had the opportunity, both at Second Reading and in Committee, to speak at length on these issues. I shall therefore not abuse the rules on Report by repeating everything that I said at those earlier stages. I can summarise our response by saying that we on these Benches had initially severe reservations about Clause 8 because of the publicity given to the Government's alleged intentions prior to the publication of the Bill itself. When the Bill was published, we found that the worst of the abuses we thought were going to be in Clause 8 were not included.
As a result of that, we then sought a series of assurances in another place from the Government. These were given to my honourable and right honourable colleagues by Beverley Hughes, the then Immigration Minister. I thought it right in Committee and in this House to seek as full—and, indeed, fuller—assurances from the Minister, the noble Baroness, Lady Scotland. I asked particularly about pregnant women. The noble Earl, Lord Russell, referred to the brief today from

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Women Against Rape. I am grateful to that organisation for referring in the briefing to one of the questions I asked. To all the questions I posed, the Minister gave both full responses and full assurances. I stated on that occasion that I accepted those assurances; I still do.
I appreciate that in this House it is quite common for noble Lords to make up their own minds on such issues. My noble friend Lord Elton will always make up his own mind. I admire him for it. I know that I will be somewhat teased if there is a Division because of the fact that in another place the Conservative Party voted with the Government against amendments designed to damage—and, indeed, to withdraw—Clause 8. I have to make it clear that today I shall be abstaining on this issue and I invite noble Lords who have not been present for the debate to abstain. But, as ever, I invite my noble friends who are present and who have taken part in the debate to make up their own very considerable minds.
Lord Bassam of Brighton: My Lords, it has been a long and valuable debate in which important points have been made. I am impressed by the compassion and humanity that has been expressed throughout and the recognition that this is a difficult issue. It is attendant on many other difficult and related issues and the answers are not necessarily easy, simplistic or straightforward.
I was very much taken by the comments of my noble friend Lord Judd and his appeal to my sense of compassion. The noble Earl, Lord Listowel, made reference to my social worker past and it was nice of him to think of my first choice of career. I am grateful to him for that. However, I was more impressed by his reflection that, in reality, the Government have taken many important steps to improve the quality and range of services provided to those who seek refuge in our country, who have fled here and seek asylum status. We have invested very heavily in that; we have also invested in ensuring that our processes are robust, that they comply with human rights considerations and that they take account of the world as we see it. This debate and the amendments reflect on those issues and concerns. I have a great deal of respect for those who will differ from the Government's position on this. It is a very difficult and, ultimately, a quite tough and hard line position. We do not apologise for it—we think it is right.
Amendment No. 24 would delete Clause 8 in its entirety and mean that support could not be withdrawn from a failed asylum-seeking family unless they failed to comply with the removal direction. The amendment would mean that an individual evaluation must be carried out before support could be withdrawn or withheld. It lists a number of particular aspects to which special attention must be paid. It would apply to all classes of person listed in Schedule 3 to the Nationality, Immigration and Asylum Act 2002, and not just the cases affected by Clause 8.
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As I have said, there has been a lot of discussion and debate about Clause 8. The Government recognise that this is a highly sensitive issue, and we have had to make very difficult choices and tough decisions. Where children are involved, none of those decisions can be taken lightly, and we as a Government do not take them lightly.
However, we face a situation in which families whose asylum claims have been rejected and who have exhausted their rights of appeal do not leave the country voluntarily and frustrate our attempts to enforce removal by not complying with redocumentation. At present, those families are entitled to be supported at the taxpayers' expense. This cannot in the end be right. It undermines the asylum system—it boils down to families being able to disregard our laws completely when they have had a fair decision that an independent appeals process has upheld.
I fully understand the concerns that families may have about returning, but they will not be returning to face persecution. The fair hearing of their asylum claim will ensure exactly that. If we are to maintain a credible immigration and asylum system, there has to come a point where we say enough is enough.
We are not seeking to make families destitute, but we are making it clear that families do not have the option of remaining here indefinitely. It is very important that those opposed to the clause—and I understand the reasons for that opposition—do not inadvertently lead families to think that that is an option. It would be wrong of them to do so.
There is concern that local authorities will be forced to act in a way which is inconsistent with other legislative provisions, such as those contained in the Children Act 1989. First, it needs to be understood that our whole aim is to avoid this becoming an issue. With the family co-operating and leaving voluntarily, that issue simply will not arise.
We cannot have a situation in which central government decide that support for the family as a whole should cease, only for that support to be provided by the local authority. That, in our view, would be no incentive for people to co-operate.
Schedule 3 does not exclude the possibility of support being provided to the child under Section 17, nor does it prevent the use of Section 20 of the Children Act. We know that in both cases this requires the consent of the parents. We do not underestimate the challenges that this may pose in practice. It is why we want to continue well informed discussions with the Local Government Association on the way in which responsibilities towards children might be exercised.
However, we must all face up to the reality of the family's position in the country. This is not about making social workers into immigration officials, but we must all recognise that the family is in the country illegally and will not be given permission to stay. We simply do not believe it is in the child's best interests to remain for long periods in a country where they have no prospect of being allowed to stay permanently.

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Amendment No. 22 is concerned with the way the clause will work in practice. I think that the amendment is unnecessary. We have made it clear that before a decision is made to withdraw support, the family will be offered an interview. This is where the family can explain why they have not yet left the country and what steps they are taking to do so. If there are particular reasons why they have not taken steps to leave, then they have the opportunity to inform and advise us of those. So the case will be assessed on its individual merits—precisely what the amendment argues for.
It is worth clarifying this: where people are co-operating, support will not be withdrawn. We are after co-operation—that is what we are trying to achieve. If they have a reasonable excuse for not having taken reasonable steps to leave, then, equally, support will not be withdrawn. The interview will not be an opportunity for people to reopen their asylum claim, and it is important that we are clear about that.
Schedule 3 already makes it clear that support is not to be withdrawn where to do so would breach a person's convention rights. The process we have outlined makes it clear that cases will be decided on their individual merits. Part of that assessment has to include ECHR considerations. We will of course assess whether needs arising, because the person is, for example, a single parent with a minor child, give grounds for believing that withdrawing support would breach our ECHR obligations.
I would have concerns about including an amendment which refers to an individual evaluation without seeking to define what that evaluation might be. That gives rise to greater scope for doubt and increases the likelihood of legal challenge. Given our ECHR obligations, I believe it to be unnecessary.
Because the noble Lord, Lord Avebury, raised this. I know that the amendment has, in part, been prompted by concern at the position of accession state nationals who cease to be eligible for support from 1 May unless a failure to provide support would breach ECHR considerations. I do not think that it is helpful to conflate the very specific situation that applies to those persons with what will happen in the case of those affected by Clause 8. The National Asylum Support Service has said that it will listen to any representations from people affected and will not seek to terminate support until those have been considered. This has been, and is, a very difficult area. I fully understand and respect the important and powerful views that have been expressed in regard to it.
A number of questions were raised in the debate and I will work through some of them. The noble Lord, Lord Avebury, spoke about how local authorities can exercise their duties. They can use Section 17, as I said earlier, but only to support the child, and not the family as a whole. They can, as I also said earlier, use Section 20 of the Children Act. So options might include the child being looked after by a family friend or relative, or the use of foster arrangements. We want to continue the dialogue with the Local Government Association on the workability issues arising from this legislation, and we will consider how best guidance could be given to local authorities.
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The noble Lord, Lord Avebury, raised issues relating to European accession states letters. As I said, it would be wrong to conflate the issues; however, the noble Lord raised precise questions about the Treasury Solicitor's letter. That letter was agreed with claimants in the judicial review cases, which were adjourned generally. Among other things, it was proposed that individual assessments would be carried out. That was why it was included at an important point in the correspondence.
As one would expect, the noble Lord, Lord Lester, raised concerns about breaches of Article 3. The saving provision in Article 3 states that support will not be withdrawn when to do so would be in breach of the Human Rights Act 1998, which effectively works within Article 3. The fact that a person is a failed asylum seeker does not have a bearing on a breach of Article 3. I said earlier that we need to address the issue with compassion.
6.30 p.m.
Lord Lester of Herne Hill: My Lords, the Minister has just given an important reply, which I am sure will be considered. I wish to make it clear beyond doubt that the Government are saying that there is an absolute duty under the European convention, even to a failed asylum seeker who has not been co-operating and who has no reasonable excuse for being here. It is an absolute duty as part of the state's positive duty not to withdraw support if to do so would expose that person or his family to inhuman or degrading treatment. In other words, that is expressly said in Clause 8 or the schedule. Is that the Government's position?
Lord Elton: My Lords, while the Minister is thinking about that, could he also help me with a small point? Earlier on he said—and invited us to weigh this in our decision—that NASS said that it would not withhold support under certain circumstances. However, as I read it, paragraph 1 is triggered by circumstances, not by a decision of NASS. Does that mean that the Secretary of State will be advised not to issue a certificate under new paragraph 7A (1)(b) of Clause 8? Otherwise, how does NASS have the right to continue support when the person is disqualified?
Lord Bassam of Brighton: My Lords, I am grateful to the noble Lord, Lord Lester, for his question, to which the Box is giving careful consideration. I can confirm that the situation described by the noble Lord to your Lordships' House is government policy.
Other points were made by the noble Earl, Lord Listowel, with which I have dealt. However, it is important that parents of failed asylum seekers accept their responsibilities. They do not have a right to remain here. At that late stage, their applications have failed and they should properly consider their positions. We do not want to give false hope or encouragement to families. They need to act responsibly. It is in parents' interests and those of their children that they do so. We are trying to encourage

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voluntary departure. The noble Earl asked how many families would be affected. I cannot give a precise estimate, because it depends very much on the individual actions of those involved. However, I cannot believe that we are anticipating large numbers. Obviously, a degree of co-operation will minimise the numbers involved.
If there is co-operation, the situation is much relieved and it is much easier for us to assist. If families do co-operate, they will receive support. If they do not co-operate, documents cannot be obtained, which makes it extremely hard for us to act effectively and much easier for them to stay here in breach of what has been a thorough process of determining their eligibility for asylum status.
The noble Lord, Lord Elton, asked about the triggering of paragraph 1. He is right to say that a person is rendered—I am finding this brief hard to read—ineligible for support. Prior to that happening, the Secretary of State has to make his certification. In that respect, the new class operates slightly differently to existing classes. I hope that that clarifies the point. If it does not, I shall reflect further on the noble Lord's question and respond to him by letter.
We believe that we have adopted the right approach. There are adequate safeguards in place and the mix of encouragement and inducement should work to everyone's benefit. We accept that there are hard cases. This is a hard case to resolve. However, we think that we have drawn the position as fairly as we possibly can and that it is in nobody's interests for us to provide inducements to carry on in breach of the quite proper findings of the appeal process. For that reason we have designed the clause in this way. I do not believe that the amendments would best serve those affected and I hope that the noble Lords who tabled them will feel persuaded by what I have said and withdraw their amendments.
Lord Avebury: My Lords, it was useful to have the exchange between my noble friend and the Minister towards the end of the Minister's speech because my noble friend elicited the fact that the Government would never take any steps with regard to this clause that would result in a violation of Article 3 of the ECHR. That leads me to make one point in conclusion. I cannot understand why the Minister resists an amendment that would enable the Government to form a judgment on whether, in the particular circumstances of the individual case, there was a danger that Article 3 would be violated. First, the Minister said that there would be no assessment. Then, in response to the point that I made about the Treasury Solicitor's letter, he said that in those particular circumstances there would be an individual assessment. That is all that we are calling for in Amendment No. 22. We are trying to facilitate the Government in the performance of their duties in ensuring that no breach of Article 3 occurs. This is such an important matter, that I must test the opinion of the House.
6.37 p.m.
On Question, Whether the said amendment (No. 22) shall be agreed to?
Their Lordships divided: Contents, 55; Not-Contents, 110.

Division No. 1

CONTENTS

Addington, L.

Newby, L.

Alton of Liverpool, L.

Northover, B.

Avebury, L.

Oakeshott of Seagrove Bay, L.

Barker, B.

Palmer, L.

Chan, L.

Park of Monmouth, B.

Chester, Bp.

Phillips of Sudbury, L.

Craigavon, V.

Prashar, B.

Dahrendorf, L.

Rennard, L.

Dholakia, L.

Rodgers of Quarry Bank, L.

Elton, L.

Roper, L. [Teller]

Falkland, V.

Russell, E.

Finlay of Llandaff, B.

St. John of Bletso, L.

Sandberg, L.

Freyberg, L.

Sandwich, E.

Hamwee B

Sharp of Guildford, B.

Hayhoe, L

Simon of Glaisdale, L.

Hooson, L.

Slynn of Hadley, L.

Laird, L.

Smith of Clifton, L.

Laird, L.

Stern, B.

Lester of Herne Hill, L.

Stoddart of Swindon, L.

Listowel, E.

Taverne, L.

Mackie of Benshie, L.

Thomas of Gresford, L.

Maclennan of Rogart, L.

Thomas of Walliswood, B.

McNally.L.

Wallace of Saltaire, L.

Maddock, B.

Walmsley, B.

Mar and Kellie, E. [Teller]

Walpole, L.

Masham of Ilton, B.

Watson of Richmond, L.

Methuen, L.

Williamson of Horton, L.

NOT-CONTENTS

Ahmed, L.

Donoughue, L.

Alli, L.

Eatwell, L.

Amos, B. ( The Lord President of

Elder, L.

the Council)

Evans of Parkside, L.

Andrews, B.

Evans of Temple Guiting, L.

Archer of Sandwell, L.

Farrington of Ribbleton, B.

Ashton of Upholland, B.

Filkin, L.

Bach, L.

Fyfe of Fairfield, L.

Bassam of Brighton, L.

Gale, B.

Bernstein of Craigweil, L.

Gibson of Market Rasen, B.

Blackstone, B.

Gilbert, L.

Boothroyd, B.

Golding, B.

Borrie, L.

Goldsmith, L.

Bragg, L.

Gordon of Strathblane, L.

Brooke of Alverthorpe, L.

Goudie, B.

Brookman, L.

Graham of Edmonton, L.

Burlison, L.

Greenway, L.

Cameron of Lochbroom, L.

Grocott, L. [Teller]

Carnegy of Lour, B.

Harris of Haringey, L.

Carter, L.

Harrison, L.

Chandos, V.

Haskel, L.

Christopher, L.

Hilton of Eggardon, B.

Clark of Windermere, L.

Hogg of Cumbernauld, L.

Clarke of Hampstead, L.

Hollis of Heigham, B.

Clinton-Davis, L.

Howells of St. Davids, B.

Colville of Culross, V.

Hoyle, L.

Craig of Radley, L.

Hughes of Woodside, L.

Crawley, B.

Hunt of Kings Heath, L.

David, B.

Janner of Braunstone, L.

Davies of Coity, L.

Jay of Paddington, B.

Davies of Oldham, L. [Teller]

Jones, L.

Dean of Thornton-le-Fylde, B.

King of West Bromwich, L.

Dixon, L

Kirkhill, L.

705

Lamont of Lerwick, L.

Rogan, L.

Layard, L.

Rogers of Riverside, L.

Lea of Crondall, L.

Sainsbury of Turville, L.

Lipsey, L.

Sawyer, L.

Lockwood, B.

Sheldon, L.

Lofthouse of Pontefract, L.

Simon, V.

McIntosh of Haringey, L.

Smith of Leigh, L.

McIntosh of Hudnall, B.

Stone of Blackheath, L.

MacKenzie of Culkein, L.

Strange, B.

Mackenzie of Framwellgate, L.

Symons of Vernham Dean, B.

Marsh, L.

Taylor of Blackburn, L.

Mason of Barnsley, L.

Tebbit L

Massey of Darwen, B.

Temple-Morris, L

Mitchell, L.

Thornton, B

Monson, L.

Thornton, B.

Morris of Manchester, L.

Triesman, L.

Nicol, B.

Turnberg, L.

Parekh. L.

Warner, L.

Patel of Blackburn, L.

Warwick of Undercliffe, B.

Pendry, L.

Weatherill, L.

Pitkeathley, B.

Whitaker, B.

Rendell of Babergh, B.

Whitty, L.

Richard, L.

Woolmer of Leeds, L.

Resolved in the negative, and amendment disagreed to accordingly.
6.47 p.m.
Baroness Park of Monmouth Baroness Park of Monmouth moved Amendment No. 23:
Page 9, line 19, at end insert—
"( ) In Schedule 3 to the Nationality, Immigration and Asylum Act 2002 (c. 41) (withholding and withdrawal of support) after paragraph 3 insert—
"3A Support shall not be withdrawn or withheld from a person who is a citizen of Zimbabwe under the provisions of this Schedule.""
The noble Baroness said: My Lords, I am a tirer in these matters—that is, in Divisions—and I hope that I may crave the indulgence of the House.
In March 2002, the Secretary of State said that no Zimbabwean asylum seeker would be forcibly returned. He also instituted a visa regime that severely limited access to the country for would-be asylum seekers from Zimbabwe. In May last year, those whose appeals had failed received a letter saying that NASS support, accommodation and subsistence was withdrawn and that they should apply to the voluntary repatriation scheme. The letter said that the Home Office deemed Zimbabwe to be a safe country. That view was entirely arbitrary and took no account of the Foreign Office country reports, nor of the assessment by the UNHCR that Zimbabwe was not a safe country. Representations were made and the letter was withdrawn.
Since December 2003, however, failed asylum seekers, many of whom would have failed through inadequate legal support and flawed and hurried assessments, have been told that they must move out of their accommodation, their benefit would be stopped and they should apply to the VARP—the Voluntary Assisted Returns Programme. They were told categorically that they must leave the country. That happened at the very moment when Zimbabwe was expelled from the Commonwealth and denounced as a regime in which the rule of law had collapsed and human rights had ceased to exist.
The Home Office Committee, considering the problem of failed asylum seekers who were unable to return to their country because of the human rights situation, recommended that in the case of such people Her Majesty's Government should make appropriate use of the power to grant a temporary right to remain in the UK. It is in the power of the Secretary of State to grant the failed Zimbabwe asylum seekers support, either by granting them humanitarian protection or discretional relief—but he does not do so. That condemns them to destitution since they are not allowed to work. There is surely a parallel between their situation and that of asylum seekers from northern Iraq. But in that case, one of the NASS criteria was that hard case support would be granted to any asylum seeker from northern Iraq who was unable to return while no safe return route existed.
I urge the Minister to give serious consideration to this amendment on the grounds that the Home Office is breaching the human rights of these people by trying to force them to return, as has already been said very eloquently in the debate on the previous clause, and in effect giving them no choice but destitution here. It is particularly ironic that these are people who want to work rather than to be dependent on the state and who are in many cases professionals—teachers, computer operators, nurses, mechanical engineers—whom we need and whose skills we ought to be preserving against their eventual return to Zimbabwe. It is also entirely consonant with HMG's policies both on human rights and as a way of helping Zimbabwe to help them to continue to keep their skills. It is one of the few ways open to us to demonstrate any support for that country.
Surely it is indefensible to drive them into destitution because they are not allowed to work. If the Secretary of State would treat them as a special case, as my amendment proposes, and use his power to apply the classification of humanitarian protection or discretional relief, the problem could be solved. Or it could be solved by a version of the special scheme that applies to all refugees from Kosovo who were admitted on the understanding that they signed up to say that they would return to their country when it was safe to do so.
As recently as March this year, the Home Office conceded that,
"although it would be safe for failed asylum seekers to return to Zimbabwe our view at present is that in the widest context of the government's position on Zimbabwe it would be inappropriate forcibly to return them at this time".
I am sure that destitution was not intended to be the alternative to forcible return. We are speaking about a maximum of only about 6,000 people, and thanks only too often to flawed and ill informed interviews and tribunal procedures, many of those were refused probably on the basis of poor decision making and should perhaps not have been refused.
The commitment, if the Secretary of State would accept it, is strictly limited. The visa regime has effectively taken applications down to a trickle. So we are not looking at opening the door to an immense influx of people. I suggested to the Home Office last

707
year that it might consider the special evacuation scheme from Kosovo, but I was told that it was not applicable. I suggest, however, that something must be done to remedy the intolerable treatment that we have meted out to valuable and decent human beings such as the air force sergeant who, observing that ZANU/PF had emptied out and destroyed the contents of the ballot boxes in the March 2002 election, was honest enough to report it to the police. He was promptly arrested and tortured and escaped from Zimbabwe only with very great difficulty.
I shall read to the House one example of another asylum seeker. NASS has stopped this woman's income support. She writes:
"They stopped the vouchers around the 14th of October 2002 up to now I have nothing. It was only at one occasion when my case worker brought me some tinned food. She had been given the money to buy the food by the British Red Cross. Last week but one a close friend of mine John Magasu"—
another asylum seeker—
"brought me some food and gave me £3 from his own pocket. I went to our drop in centre to tell them that I no longer have enough food but they said at the moment I can't access any support from them since my case has been refused and I should be expected to leave the accommodation".
That is one example. There are very many others.
So I very strongly hope that, particularly in view of the strong and excellent arguments that have been advanced on human rights grounds by the noble Lord, Lord Avebury, and others, that the Government will consider this very small but practical amendment. We are destroying decent and useful citizens who have a natural expectation of help from this country and who have no choice between a recognised danger and destitution. I beg to move.
Lord Elton: My Lords, I do not detect much prospect of this amendment being accepted by Her Majesty's Government. I got to my feet only to ask whether, in lieu of accepting it, they would not want to consider an undertaking to use the power in paragraph 2(2) of Schedule 3 to the 2002 Act, which states:
"Regulations under sub-paragraph (1)(d) may confer a discretion on the Secretary of State".
It seems to me that the citizens of Zimbabwe would qualify admirably for the use of such a discretion.
Lord Avebury: My Lords, I want to say only one word about this amendment. I did take the trouble to investigate how many people had availed themselves of the assistance of the IOM to return voluntarily to Zimbabwe during 2003. I think that the noble Baroness, Lady Park, knows what the results were, because I believe that I gave her the figures. Of the several thousand people who failed to get asylum in 2001–03, and who therefore remain in the United Kingdom working illegally or living on the charity of friends and neighbours, only 47 have actually returned at the expense of the IOM. I asked whether the IOM had any knowledge of those who had gone back, bearing in mind that, as the noble Baroness says, we do not believe that
708
all those failed asylum seekers had been properly refused considering the dire circumstances that we face in Zimbabwe today.
The IOM said that it could give information only about those who had approached it for assistance in rehabilitating themselves in Zimbabwe by entering into occupations or professions. It said that some had done so, but that in the cases where people had asked it for assistance, it was able to assure us that no victimisation had taken place as a result of their claims for asylum in the United Kingdom. But of the others, the ones who had not approached it, it could not say anything at all. So for all we knew, those people could have become the victims of ZANU\PF and been imprisoned on their return.
It would be useful if the Government, having created this situation, would make inquiries as to what does happen to those who go back. On the one hand, if they can prove that everyone re-entered their professions or occupations or were re-employed by the Zimbabwe Government in whatever capacity they had worked prior to their departure, then of course that would encourage people to accept voluntary departure. But, on the other hand, if the Government undertake the necessary research and find, as we fear, that some of those who "disappeared" on their return—and I use that word not in the sort of Argentine sense of having been taken into custody and then liquidated, but only in the sense that the IOM had no knowledge of what happened to them—then it might have been a different kettle of fish and we could have been able to persuade more people who are at present very reluctant to go back to do so. However, I do not believe that the research would have shown such a favourable situation. In the absence of the information, I think that the noble Baroness has a very good point.
Baroness Anelay of St Johns: My Lords, I am very grateful to my noble friend Lady Park for raising this particular issue. I know that it was one that was of concern to my honourable and right honourable friends in another place. They had a very short debate in Committee there.
My noble friend was right to start by talking about the problem of defining what is a safe country and the contradiction there can be between government departments about a definition of "safe country", and also perhaps a contradiction between a government definition of "safe country" and that commonly accepted by others outside government. I am reminded very much of our debates during the passage of the 2002 asylum Act when I moved an amendment at both Committee and Report stages requesting that there should be an independent documentation centre to inject into the decision-making system about what is a safe country an element of independence out with the political party system.
During the passage of that Bill, I was persuaded by the Government only at the very last minute to drop that amendment on the basis of assurances that another equally good system should be put in place. I fell for it that time; I will not do so again. I certainly have not been over-impressed by some of the decisions

709
made subsequently about what may be a safe country. However, I appreciate that it is always a very delicate and difficult decision to make.
My noble friend was also right to point out that there have been cases where citizens of countries other than Zimbabwe—she mentioned Kosovo—have been given "special treatment". That is the only way one can refer to it. They have been given the opportunity to remain here until it really is safe to return to their place of origin. My noble friend Lord Elton made a very interesting contribution in pointing out where government discretion could come into play. However, I suppose that Zimbabweans would say that they wanted not discretion on a case-by-case basis but certainty about their situation.
My noble friend is right to raise this issue. It is a very difficult problem. As she said, these people from Zimbabwe are coming to this country having suffered sometimes almost unimaginable persecution, as have so many from other countries who seek asylum in this country. These people come here with a willingness and an ability to work. The last thing they want to be is destitute. They do not wish to be a drain on the taxpayer or be destitute. However, they find themselves accused of being one or the other. I hope that the Minister is able to respond positively to the arguments put by my noble friend and is able to offer some reassurance that the Government will consider them when considering the treatment of people who come from Zimbabwe.
7 p.m.
Lord Hylton: My Lords, the whole House will be very well aware from discussions during numerous Questions and debates of the barbaric and quite unacceptable situation that prevails within Zimbabwe. Therefore, when the noble Lord replies for the Government, will he say whether consideration will be given to allowing those people from Zimbabwe who are here and who cannot safely return, to work here given the labour shortages of various kinds from which we now suffer? I should have thought that that would solve a great number of problems. It would be a fitting move for people from a country that was originally a Crown colony, then a member of the Commonwealth and is now, for reasons that we all know, an expelled member of the Commonwealth.
Lord Bassam of Brighton: My Lords, I am grateful to the noble Baroness, Lady Park of Monmouth, for tabling her amendment which has enabled us to have a short debate on the issue and to reflect on the position in Zimbabwe, to which the noble Lord, Lord Hylton, accurately referred. As we know from discussion on many Questions at Question Time, there is great concern in your Lordships' House about the Zimbabwean regime and the works of its government.
This amendment would mean that support under Schedule 3 could not be withdrawn from citizens of Zimbabwe. It would apply to all the classes of ineligible persons listed in the schedule and not just those affected by Clause 8.
710
In respect of Zimbabwe, the Government are not currently enforcing the return of failed asylum seekers other than for people with serious criminal convictions and those whose presence is not otherwise conducive to the public good. I am sure that the noble Baroness would accept that those exceptions are right.
The suspension of removals of failed asylum seekers to Zimbabwe announced in January 2002 was in response to concerns about the serious deterioration in the situation in Zimbabwe in the build-up to the presidential election held in March that year. We did not at that time regard it as unsafe to return failed asylum seekers to Zimbabwe, but in view of the rapidly changing conditions we considered that it would be appropriate not to enforce returns.
The Government's position is, as it has been since January 2002, that each asylum and human rights claim made by a Zimbabwean national will be considered on its individual merits in accordance with our obligations under the 1951 UN Refugee Convention and the European Convention on Human Rights. Each application is considered against the background of the latest available country information, including that obtained from and through the Foreign and Commonwealth Office.
We do, of course, recognise that conditions in Zimbabwe are such that there are individuals who are able to demonstrate a need for international protection. Where they meet the definition of a refugee in the 1951 convention, asylum is granted. There may also be individuals whose circumstances make them particularly vulnerable—the noble Baroness described some of those circumstances—and who would engage our obligations under the ECHR. Where this is the case, these individuals will be granted humanitarian protection or discretionary leave.
If an application is refused, there will be a right of appeal to the independent appellate authorities against that decision. Should a claim be refused and any appeal be unsuccessful, that means that, for that individual, return to Zimbabwe would be safe. That is why we consider it reasonable to expect an individual in that position to leave voluntarily instead of being supported indefinitely at the taxpayer's expense.
I draw noble Lords' attention in particular to the Voluntary Assisted Returns and Reintegration Programme operated by the International Organisation for Migration, to which the noble Lord, Lord Avehury, referred. It is open to all failed asylum-seeking families 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. Returnees are also offered reintegration assistance. An application to the IOM would clearly be a practical way for a family to demonstrate that they were seeking to leave voluntarily. Zimbabwean nationals are in fact leaving voluntarily under the programme run by the International Organisation for Migration, as I think has been acknowledged.
We already promote the assisted returns programme through a variety of means and discuss this with non-governmental organisations such as the Refugee Council

711
as well as the IOM. Information is available at reporting centres, for example, and in letters sent at various stages of the asylum process.
In summary, our view remains that, although it would be safe for failed asylum seekers to return voluntarily to Zimbabwe, in the wider context of the Government's position on Zimbabwe, it would be inappropriate forcibly to return them at this time.
Some issues were raised during the debate. The noble Lord, Lord Elton, raised the issue of discretion and the use of the regulation-making power in Schedule 3. We do not see the need for any measures of that kind. People can leave voluntarily. Those who demonstrate that they have a well established fear of persecution will, of course, be granted asylum. Decisions on asylum claims will have been made by what I believe is universally recognised as being a genuinely independent process.
The noble Lord, Lord Hylton, asked about the ability to work on the part of those who remain here who are not granted asylum status. We do not allow failed asylum seekers to work. I believe that we are right to do so. As I said, they can, after all, return voluntarily. They are assisted in that process, as I described. Obviously, that rule is there for a very good purpose. We do not think that it would be right to alter it specifically for Zimbabwean nationals.
I fully understand the arguments that were put forward very sympathetically by the noble Baroness, Lady Park, but I do not think that we can agree to what would in effect be an exemption specifically for Zimbabwean nationals.
The noble Baroness, Lady Anelay, raised concerns about the quality of information. I well remember the debates to which she referred. Partly in response to that, we have redoubled our efforts to improve the quality of country information, and to ensure that it is objective. We recently established the independent Advisory Panel on Country Information to make recommendations on the quality of such information produced by the Home Office and to ensure that it is accurate, balanced and impartial. The panel set up is chaired by the well respected Professor Stephen Castles of Oxford University.
We announced on 30 April that, following feedback from the advisory panel, the Home Office is to take a number of steps to raise the standard of country information, including providing revised instructions for staff on how to compile the reports. Those steps reflect comments received during the consultation exercise. There will be amendments to reports where appropriate, and we will strengthen and formalise the quality control procedures, including a revised management structure for the country information and policy unit. I am advised that our steps to improve the quality of country information are proving very fruitful.
712
I certainly understand some of the force of the noble Baroness's argument, but I hope that, having heard what I have said, she will feel able to withdraw her amendment.
Baroness Park of Monmouth: My Lords, I thank the Minister for that very detailed and positive reply. I also thank all noble Lords who supported me, particularly the noble Baroness, Lady Anelay of St Johns. However, I want to make two very quick points. First, the country reports from the FCO have consistently said that the country is not safe, so it is curious that the Government apparently rely on them to make the decision that it is safe.
Secondly, I find it very difficult to understand how it can be voluntary for someone to choose to go to a country that is too dangerous for them, or to stay and starve. That does not strike me as a normal definition of "voluntary". Although I fully understand the Government's many difficulties and their wish not to create precedents, I therefore think that Zimbabwe is a special case. After all, we have Secretaries of State to make special cases sometimes. When he was Secretary of State for Education, the Foreign Secretary said that he desperately wanted to do something about black boys in inner-city schools who were deserting to the gangs. Black teachers from Zimbabwe, educated in our system, accustomed to discipline and longing to work, would have been a wonderful answer.
All that said, I thank noble Lords for the patience with which they have listened. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord McNally Lord McNally moved Amendment No. 24:
Leave out Clause 8.
The noble Lord said: My Lords, Amendment No. 24 was grouped with Amendment No. 22, although it was in fact the counterpoint to it. As the Minister will recall, Amendment No. 22 was an attempt to be constructive and helpful about Clause 8, and we saw the response that we got to that. Amendment No. 24 is more draconian in that it seeks to delete Clause 8. The only person who spoke to the equivalent amendment in the previous debate was the noble Earl, Lord Listowel.
We had hoped that the House would recognise that Clause 8 imposed sanctions on children to try to enforce asylum policy. We still believe that. We had hoped that the Conservatives would stick with Michael Howard's original condemnation of the proposal. I am sure that people at the other end of the Corridor will read with great interest the ringing endorsement by the noble Baroness, Lady Anelay, of their new and courageous abstention. However, I do not need the noble Lord, Lord Graham, to help me to add up the numbers.
At this stage, but with no promises for Third Reading, when—who knows? —the Conservatives might even have had third thoughts on the matter, I shall withdraw the amendment.
The Deputy Speaker (Lord Ampthill): My Lords, if I may be so bold, as the noble Lord has spoken for a moment or two on the amendment, I should allow the Minister to respond to it, if he cares to do so.
Lord Bassam of Brighton: My Lords, most of the points were covered in the earlier debate, and I thank the noble Lord for the graciousness with which he stated his intention to withdraw the amendment.
Lord McNally: My Lords, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
7.15 p.m.
Lord Phillips of Sudbury Lord Phillips of Sudbury moved Amendment No. 25:
After Clause 8, insert the following new clause—
"LEGAL AID FOR ASYLUM INTERVIEWS
The Lord Chancellor shall make a direction under section 6(8) of the Access to Justice Act 1999 (c. 22) (services which may be funded) to require the funding of attendances by solicitors (and other non-solicitor suppliers accredited for the purpose by the legal services commission) and independent interpreters at interviews conducted on behalf of the Secretary of State with a view to his reaching a decision on a claim for asylum (as defined by section 167(1) of the Immigration and Asylum Act 1999 (c. 33) (interpretation)) in the circumstances where the supplier has certified that he has a reasonable belief that the asylum applicant to be interviewed—

(a) is a torture or rape victim;

(b) has had inflicted on him serious physical harm; or

(c) has a reasonable fear of being tortured, raped or so harmed if returned to his country of origin."

The noble Lord said: My Lords, although the Marshalled List does not say so, Amendment No. 25 should appear after line 25 on page 10 of the Bill. It would insert a new clause after Clause 8.
The history behind the amendment is simple. On 31 March this year, the Community Legal Services (Scope) Regulations came before the House. Their effect was to remove legal aid for initial asylum interviews, bar the two exceptional categories of minors and persons with mental incapacity. For all other cases, the situation that prevailed up to 31 March was withdrawn; legal aid was no longer available.
On 27 April in this House, I moved an amendment—it can be found at col. 750 of Hansard—that sought to undo the Community Legal Services (Scope) Regulations altogether and simply restore the state of affairs vis-à-vis legal aid that existed prior to 31 March. That was not put to a vote. In the interim, in an endeavour to reach a compromise that will appeal to both the Government and the House, I tabled—after a great deal of consultation with ILPA, the refugee legal service and others—Amendment No. 25. It would extend the exceptional categories in which legal aid was available for the initial asylum interview
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to three other groups; namely, torture and rape victims, applicants who have had inflicted on them "serious physical harm", and those who have,
"a reasonable fear of being tortured, raped or so harmed if returned to",
their country of origin.
There is no dispute between those who support the amendment and the Government on the benefit of lawyers in the immigration and asylum process. The noble and learned Lord, Lord Falconer, has said:
"I am wholly committed to keeping good lawyers within the legal aid scheme …We recognise that these lawyers provide value for money to the Government and the taxpayer … They deal with difficult cases, often in difficult conditions". —[Official Report, 4/5/04; col. 998.]
That very precisely sums up the role of the lawyer in an initial asylum interview.
I also call in aid the noble Baroness, Lady Scotland, who said when we debated the matter:
"We recognise that there are important exceptions where it is right that an applicant has his or her representative at the interview".
She went on at some length to say that the Government, far from wanting to see lawyers removed from the asylum interview process, sought to improve the standard of legal advice and assistance at those interviews. She called it "targeting excellence", and said that my amendment was,
"undesirable as the regulations have removed attendance in unnecessary cases and will help ensure quality representation in the exceptional cases".—[Official Report, 27/4/04; cols. 755–56.]
Therefore, I want to turn to the issue of exceptional cases. I have sought to demonstrate that the Government maintain not that lawyers are unnecessary but that they are needed only in exceptional cases.
I corresponded with the Minister in the other place, David Lammy. His view on exceptional cases was contained in a letter that he kindly wrote to me on 23 April from which I quote:
"In relation to further categories of exceptions"—
that is, exceptions to the "no legal aid" rule—
"such as rape or torture victims, at present, neither the DCA nor the Home Office are persuaded that victims of rape or torture (however defined) should be regarded as being in a category of vulnerable people".
That is a statement that many find extremely difficult to understand and impossible to agree with. The noble Baroness, Lady Scotland, when summarising the position of the Government on 27 April, said:
"The noble Lord, Lord Phillips, raised the issue of rape and torture victims not being included in the exceptions. That is not necessarily incompatible with presenting their cases. If they can show that they are suffering from a mental incapacity as a result of torture or rape, the interview will be permitted".—[Official Report, 27/4/04; col. 756.]
That is covered by legal aid. I believe that most noble Lords would consider that to allow legal aid only for initial asylum interviews of those who have been raped or tortured but who also suffer mental incapacity—but not for those who do not suffer mental incapacity—is bizarre and wholly untenable.
I add this point. The Government laid some stress—this was discussed in the debate on 27 April—on the new induction procedures that the Home Office is pursuing vis-à-vis asylum seekers. It maintains that the induction process has largely done away with the need for legal advice in these crucial early stages. In writing to me, David Lammy made that point.
The DVD that will provide asylum seekers with information on the induction process—it is an entirely automatic process—states: "You"—that is, the asylum seeker—
"can seek legal advice if you want it; but the Home Office do not believe that you need legal advice to tell Asylum Casework about your reasons for claiming asylum. They will not postpone interviews with you so you can get legal advice or be represented".
That is not a fair or an adequate explanation of the state of affairs confronted by asylum seekers when they arrive here. Later the same DVD states:
"It is vital you give the interviewing officer all the information you want to be considered and it is also your opportunity to provide evidence or papers to do with your application, for example—medical certificates".
Given that that is a single sentence flashed across a screen before an audience of asylum seekers, it might just about be understood by someone who speaks English fluently, is in command of their faculties, understands the culture in this country, has a little knowledge about the workings of the law and preferably some knowledge of the workings of the asylum system and is middle class and well educated.
I put it to the House that the process that now prevails makes the need for legal representation in this crucial initial interview absolutely essential for anyone in the three extra categories that are set out in Amendment No. 25. Today I shall not go into detail, as I did on 31 March and 27 April, on how crucial that first interview is. Everyone agrees that that is the rock upon which the whole process is built. I quote briefly from the noble Lord, Lord Filkin, when he summed up on 31 March:
"I also agree with the noble Lord, Lord Phillips, that the first interview with an immigration officer is a crucial factual ground. It is fundamentally important to have the facts of the applicant's case clearly set out and established as early as possible in the process".—[Official Report, 31/3/04; col. 1424.]
I try not to engage in unnecessary rhetoric, but I end with this point: as a very long-in-the-tooth lawyer, I find the state of affairs as presented by the Government to this House on two occasions, vis-à-vis torture and rape victims, simply unacceptable in a civilised society. It makes me wonder what the good Lord Atkin must be thinking in his grave in the sky: the judge who, in the middle of a war when we were fighting for our very survival, expressed sentiments vis-à-vis the oppressed, the weak, the unpowerful and the unpopular in Liversedge v Anderson. In denying legal aid to such cases, I believe that the Government are not living up to their own standards and their own aspirations.
The basest of arguments is that this proposal is a waste of money. It is said that this piece of cheese paring will save £12 million to £15 million. It will cost far more than that due to the increased number of appeals that will necessarily result from lawyers—my amendment talks of solicitors and other accredited legal personnel, not the outdoor clerks who the Government spoke of at previous stages of the Bill. We are ensuring quality. Without question, the Government will save not lose money by agreeing to this class of exceptional cases.
I have consulted adjudicators who tell me, unequivocally, that the length of appeals coming to them is by a very considerable margin added to by a bad initial interview and by a bad initial adjudication based on that initial interview. With those few words, I beg to move.
Lord Avebury: My Lords, my noble friend referred to the remarks of the noble and learned Lord, Lord Falconer, who said that he is committed to keeping good lawyers within the system. But we know that that is already being contradicted by the experience of good lawyers, such as my noble friend's firm which has left the system because of the legal aid restrictions and because it is not possible to represent clients properly with the inadequate number of hours that are now allowed. One example of that is that no representations are permitted at the initial interview, other than for the categories mentioned by my noble friend, plus applicants going through fast-track initial decision processes.
My view is that my noble friend's amendment is too restrictive. I would rather see the categories to which assistance is being given at this stage of the process extended to all those who are considered to be vulnerable by the EU reception directive. That means minors and unaccompanied minors, disabled people, elderly people, pregnant women, single parents with minors and, as my noble friend suggested, persons who have been subjected to torture, rape or other forms of psychological, physical or sexual violence.
I agree wholeheartedly with my noble friend that this will cause unnecessary expense at later stages in the process. If such vulnerable people are not taken care of at the start of the process, inevitably there will be further complications when cases come to the adjudicator stage or, until it is abolished, to the tribunal.
Every noble Lord who has spoken in previous debates on the Bill has pointed to the fact that the initial stages in decision making are always key to getting asylum right. Skimping and trying to economise at the initial interview, especially with such vulnerable people, will be to the detriment of the asylum process as a whole. I hope that the Minister will view the amendment sympathetically. Although he is not prepared to restore legal aid to the whole of the interview process, as my noble friend requested in Committee, I hope that this rather modest suggestion will be more acceptable to the Government.
7.30 p.m.
Lord Hylton: My Lords, I am happy to support the amendment. We all know that rape has been used as a form of torture in countries as widely separated as Bosnia and Turkey—and in Darfur—to name just a few. We also know perfectly well that torture and rape victims are extremely reluctant to speak about their own experiences until such time as a relationship of trust has been established with the interviewer.
It is highly probable that, acknowledging that reluctance, those people may be willing to tell their proper legal representative what they have been through and he or she can put it on their behalf. I urge the Government to accept the amendment because it will improve the quality of first decisions. That was a point I tried to make throughout every stage of the previous Bill on the subject.
Lord Bassam of Brighton: My Lords, I am grateful to the noble Lord, Lord Phillips, for bringing forward what he sees as a compromise. I do not quite see it that way. It is important that we understand what that compromise might look like and what it is part of in terms of "the process". I hope that in putting the Government's case for resisting the amendment, that will become clearer. However, I acknowledge one point made by the noble Lord, Lord Phillips, and supported by others; that initial stages in the process are important and have a bearing on the outcome for applicants.
As the noble Lord explained, Amendment No. 25 seeks to exclude victims of rape or torture in the exceptions listed in the accompanying direction to the Community Legal Service (Scope) Regulations 2004 so that funding for the attendance of a representative at a substantive IND asylum interview is available in these cases. Those regulations are made under Section 6(7) of the Access to Justice Act 1999. This enables the Secretary of State to make regulations to amend Schedule 2 to the Act in order to exclude specified services from the scope of the community legal service.
These regulations remove funding for the attendance of a representative at the majority of substantive IND asylum interviews from 1 April this year. In all but the exceptional cases detailed in the accompanying direction to the regulations, funding for the attendance of a representative at the substantive asylum interview is now not authorised.
I want to explain why we introduced the regulations. Previously, funding was available for a representative and, despite what the noble Lord said, usually it was for an agent or outdoor clerk working for a legally aided organisation representing an asylum seeker to attend the substantive interview with the Home Office. However, the Government believe that in the majority of cases this is unnecessary, of little or no benefit to the client and a waste of public funds. It does not merit the expenditure.
I know that the noble Lord rejects that explanation, but I want him to hear the explanation we are giving.
Lord Phillips of Sudbury: My Lords, I am grateful to the noble Lord for giving way. I do not reject that as an explanation, but it is just no longer relevant. My amendment gets beyond that and confines the right to legal aid to the three exceptional cases to solicitors and other accredited legal personnel.
Lord Bassam of Brighton: My Lords, I take the noble Lord's point. However, in reality, in most cases the role played by the person accompanying the asylum seeker was simply that of a note-taker as he was not meant to intervene during the interview. In addition, the interviews are non-adversarial. They are fact-finding and are there to elicit the basis of the application. They are part of that process. And there are remedies available to the client to deal with any discrepancies or disputes which may arise after the interview.
We recognised that there are important exceptions to this where it is right that an applicant has his or her representative at the interview—
Lord Avebury: My Lords, I thank the Minister for allowing me to intervene. How would the victim of rape or torture know that he is suffering from a mental incapacity within the meaning of that phrase in English legislation if he has no advice on it?
Lord Bassam of Brighton: My Lords, I am assuming that at some point in the process leading up to the interview he would have sought advice and had some support. I am sure that he would not be unsupported.
Unaccompanied minors; applicants going through the fast-track initial decision process; those suffering from a recognised and verifiable mental incapacity which makes it impractical to undergo an interview without support; applicants being interviewed at a police station or under the Police and Criminal Evidence Act 1984; or applicants alleged to pose a threat to national security should have an adviser at the interview if they so wish.
The Government are not persuaded that the victims of rape or torture or of other serious physical harm could be regarded as exceptions for this purpose for the following reasons. Under the Access to Justice Act 1999, the Legal Services Commission is under a statutory duty to provide access only to legal services. While some applicants may be entitled to specialist services in the United Kingdom, such as medical or social care, this does not fall within the remit of legal services.
All issues relating to an applicant's medical condition, vulnerability, ability to answer questions or otherwise can and should be dealt with by way of written representations with supporting medical evidence. We believe that this provides a much more effective legal service than attendance at interview.
It may be desirable for some clients to bring a companion to the interview for medical or emotional support, but again this does not fall within the remit of legal services. Furthermore, it is difficult to understand what added value a legal representative can add when an asylum applicant is giving an account of any persecution

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he claims to have suffered. The IND interview is an opportunity for an asylum applicant to tell his story in his own words and his own terms. It may be of interest to note that when the Medical Foundation interviews alleged victims of torture, it insists that a legal representative is not present.
The Government believe that this amendment is undesirable and that the preparation of a good statement and material evidence in support of an asylum claim is a more effective legal service than attendance by a legal representative at an interview.
The Government also believe that there is enough flexibility in the system, both at the initial stage of the process and at appeal, to allow a client's representative to address a client's vulnerability or illness, including his ability to answer questions at the Home Office interview. For those reasons, we continue to resist the amendment.
Lord Phillips of Sudbury: My Lords, I thank the Minister for that explanation. It seems to me to be a justification that could be advanced only by someone who had absolutely no idea of what goes on at these initial interviews. He can have no idea of the degree of trauma, confusion and fear which can exist in the minds of asylum seekers newly arrived in this country. He can have no idea of the nature of these initial interviews, conducted as they often are by junior Home Office staff. He can have no idea of the complexity of translation; of the need to clarify the questions being asked; of the need to ensure that the relevant questions are being asked; or of the need to ensure that the record of the interview is fair. Without legal advice in these hugely important cases—rape, torture and physical harm—there is a high prospect of the initial process being faulty and inadequate, leading to a faulty and inadequate decision by the senior immigration officer, leading to an appeal.
The noble Lord, Lord Filkin, and the noble Baroness, Lady Scotland, made no attempt to answer the point I and other noble Lords have now made three times; that the so-called saving in depriving this narrow class of applicants of legal representations will be swept away and overborne by the increase in the number of appeals and in their length.
I am deeply disappointed by the Government's response. I do not believe that this House would be doing its due and proper duty as a revising Chamber if it did not attempt to amend this aspect of the Bill at the next stage. At this stage, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Crawley: My Lords, I beg to move that consideration on Report be now adjourned. In moving the Motion I suggest that the Report stage begin again not before 8.40 p.m.
Moved accordingly, and, on Question, Motion agreed to.

Overseas Territories
7.40 p.m.
Baroness Hooper Baroness Hooper rose to ask Her Majesty's Government what plans they have to make changes in the overseas territories following the meeting of the Overseas Territories Council 2003.
The noble Baroness said: My Lords, the British Overseas Territories comprise Anguilla, Bermuda, the British Virgin Islands, the Cayman Islands, the Falkland Islands, Gibraltar, Montserrat, the Pitcairn Islands, St Helena and its dependencies of Ascension and Tristan da Cunha and the Turks and Caicos Islands. There are other territories—the British Antarctic Territory, the British Indian Ocean Territory, South Georgia, and the Sandwich Islands, which are also under that designation, but which have no indigenous population.
That may be well known, but I suspect that as these are for the most part tiny territories scattered around the world they are not always considered as a group. Populations range from Bermuda with more than 60,000 people to the Pitcairn Islands with a mere 54 or 45, depending at which statistic one looks.
Although each territory is very individual and different, there are links which bind them together—a shared history, allegiance to the Queen and a unique relationship with the United Kingdom, both within the European Union and as part of the Commonwealth.
Co-ordination and a common approach is provided by the Foreign Office and, indeed, by the Overseas Territories Association. It now meets on a regular basis and provides a forum for discussion of those issues which are common to all—mainly constitutional, but also concerning good governance, observance of international commitments and the building of a sustainable economic future in this global environment.
The consultative council meeting, to which my Question refers, was held last December. I tabled my Question in advance of it, hoping to have a much earlier date for the debate. Nevertheless, as is often the case, events have moved on, and there has been a recent meeting of the governors. So I look forward to an update on the results of both meetings from the Minister when she winds up.
I believe that the overseas territories are very dear to all our hearts. I have had the privilege of introducing previous debates on the subject, in 1994, 1997 and 1999, always with considerable support. From time to time, it has been suggested that representatives of the overseas territories should be found a place in your Lordships' House. It still seems a good idea to me and perhaps it should remain on the table as an idea when we next consider further reform of the House of Lords.
In parliamentary terms and within the aegis of the Commonwealth Parliamentary Association, we have an active All-Party Parliamentary Group on Overseas Territories as well as the Falklands and Gibraltar bilateral groups. I should like to put on record our thanks to the official representatives of the overseas

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territories for the work they do in maintaining and developing links and keeping us parliamentarians well informed.
The last occasion we had for a general debate on overseas territories was during the passage of the British Overseas Territories Bill in 2001 when the name of the territories was changed from dependent territories to overseas territories and when outstanding issues relating to rights to British citizenship were resolved. That was a welcome piece of legislation, and I should like to ask the noble Baroness whether its implementation has been completed and whether it has gone smoothly.
I should also like to ask the noble Baroness whether events are going smoothly for the participation for the first time of Gibraltarians in the European parliamentary elections next month. Noble Lords will remember the long and eventually successful campaign led by Lord Bet hell in that respect.
I am delighted to see how many noble Lords are to speak in the debate. Each will speak with considerable personal knowledge of and interest in one or more of the territories. I know that they will be raising particular and focused points in the short time available. Because of time restrictions I shall try to confine myself to general issues.
I have already asked the Minister to update us on the implementation of recent legislation affecting overseas territories and on the December meeting of the consultative council and the recent governors' meeting. In that context, I hope that she will be able to inform us in particular on the progress and implementation of the constitutional reviews that have taken place in most of the territories.
I should also like to explore a little further, as part of the relationship of overseas territories with international organisations, the relationship with the European Union. I know, for example, that the United Kingdom has committed Gibraltar and the Caribbean overseas territories to the implementation of the EU savings tax directive and that most overseas territories observe European Union environmental standards and other directives. What, therefore, will be the voice, for example, of the Caribbean overseas territories at the Latin American and Caribbean EU summit to be held in Guadalajara on 29 and 30 May?
In terms of funding from the European Union, I am aware I hat in the past overseas territories have received European Investment Bank loans and Stabex (Stabilisation of Exports) funding. Given that the European Union is now setting criteria for the new EDF (European Development Fund) funding for all European overseas territories, does the Minister agree that our overseas territories should receive a fair share in that, in spite of the fact that their constitutional status differs considerably from those of the overseas territories of France, Spain and Portugal, for example? I particularly look forward to hearing her views since I know—as her past like mine is as a member of the European Parliament—she takes a particular interest.
Another general issue relates to education, which we all agree is so important for the future. There is no recognition of the special relationship between the
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overseas territories and the United Kingdom in terms of university education. Their students are expected, like other overseas students, to pay the full overseas fee. In many cases they come from small territories where there is no alternative choice. The Caribbean territories may have the opportunity to look north and go to the United States, but where then is the special relationship between ourselves and these so important territories?
I believe that all these issues deserve a more thorough examination than we are able to give them today, so I would draw your Lordships' attention to a two-day seminar, which is being organised by the Institute of Commonwealth Studies on 28 and 29 June, when a number of issues, such as governance and politics, political parties in small communities, resource development and management, security and international questions, environmental issues and comparative perspectives will be considered. I think that that debate will be a very useful.
Since I have the time, perhaps I may ask some very short specific questions. I understand that the Pitcairn Islands are hoping to develop an air strip and also that they wish to set up a scheme for returning islanders, many of whom are currently residing in New Zealand. Can the noble Baroness give us any information on that, given that the tiny population seems to be diminishing further?
Furthermore, what plans are there for Tristan da Cunha, a dependency of St Helena, when the R MS "St Helena" ceases to go there? I understand that it is to be based in South Africa rather than in Cardiff as before. Will the inhabitants of Tristan da Cunha be totally dependent on fishing vessels for their communications with the rest of the world in the future?
What are the Government aiming to do to encourage the Argentine Government to desist from ruining the Falkland Islands' developing tourist industry by preventing charter flights from Chile overflying Argentine territory? What will the Government do to encourage the new Spanish Government to see the value of improving their relationship with Gibraltarians, rather than constantly antagonising them, especially during this special celebratory year for Gibraltar?
Finally, what will the Government do to save the blue iguana, unique to the Cayman Islands? I understand that there are only 30 of those creatures left.
It is difficult to give sufficient weight to all the issues that arise concerning the overseas territories. I know that the Minister will deal with the questions sympathetically and perfectly understand that if the answers for all of them are not available, she will write to me. Once again, I thank all noble Lords who will participate in this short debate.
7.50 p.m.
Baroness Howells of St Davids: My Lords, I begin by congratulating the noble Baroness, Lady Hooper, on raising this debate and on giving such an insight into the present position of the overseas territories. Her

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commitment is well known and, as she said, she raises the these matters publicly in the House. Her focus, following the meeting of the council in 2003, gives the debate a yardstick against which we can all measure our concerns.
I will concentrate on the British Caribbean territories that are still dependent. Their vulnerability is obvious for all to see—chiefly because of their size and location. They are: the British Virgin Islands, Anguilla, the Cayman Islands, Montserrat, Bermuda and the Turks and Caicos. The constitutional position of the dependent territories varies, but the chief British responsibility is for the regulation and supervision of the financial services sector.
In four of the territories, the Governor as Her Majesty's representative, among his other duties, has direct responsibility for offshore financial services. In Bermuda and the British Virgin Islands, that responsibility lies with the local Minister of Finance. Both territories have always co-operated fully with the Foreign Office in the conduct of their offshore sectors, because the UK has reserve powers to override local government and regulate the sector, even if the local government silently disagrees with the UK's mandate.
On 10 December 2003, at the Overseas Territories Consultative Forum, which has already been referred to, Bill Rammell, speaking for the Government, said that he welcomed the need to clarify mutual responsibilities in the constitutional review process. He noted that the 1999 White Paper set out the balance. The UK, he said, has the right to expect high standards of probity, governance and adherence to international obligations and to minimise the extent to which the UK is expected to be responsible for liabilities. He stated further that that is what the Government expect governors to do in the territories.
However, the territories feel left in limbo because there has not been any follow-up, as I understand it. I therefore ask my noble friend the following questions. We understand that the British Virgin Islands has established a constitutional commission that in part seeks to reduce the Governor's powers. Can the overseas territories enact different powers to the Governor and, if so, how? If not, what plans do the Government have to change the powers of governors in overseas territories even when there is not yet a constitutional commission in place?
Can the Minister clarify the level of consultation taking place with the overseas territories on international agreements, especially where the territory may be susceptible to money laundering by the drug trade or international terrorists? Where do overseas territories sit in meetings between the UK and regional organisations? Last week, at the Caribbean Forum, the members of overseas territories that are members of CARICOM were concerned that they could not fully participate.
The position with EU matters seems to be as perplexing: will the Minister clarify to what extent the Government have consulted the overseas territories on the impact on their financial centres by the wide range of EU regulatory proposals arising from the Financial Services Action Plan? Have the Government explored
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the impact of those proposals, for example the EU Investment Services Directive? The Caribbean overseas territories were pressed to accept the provision of the EU directive on savings taxation, which they believe could adversely affect their economies. Can the Government give us some insight?
7.55 p.m.
Lord Waddington: My Lords, it is always a great pleasure to follow the noble Baroness, Lady Howells of St Davids, who always makes such a sensible and balanced contribution to our debates. I am also very grateful to my noble friend for giving us the opportunity to discuss these matters tonight. Noble Lords opposite may be somewhat surprised at what I am going to say next, but this Government have taken more of an interest in the overseas territories than some of their predecessors who, in my experience, tended to go along with the prevailing view among Foreign Office officials that the dependent territories, as they were then called, were a bit of a nuisance and an embarrassing relic of the past.
This Government, with one sad exception—Gibraltar, to which I shall turn in a moment—have recognised the dependent territories, the overseas territories, as an important responsibility and have seen their wish to maintain the British connection as something of which we should be proud. Indeed we should. The Government were certainly right to grant belongers in the territories British citizenship.
Against that background, it is a pity that the Government had blotted their copybook over Gibraltar. It amazes me that they should have tried to strike a deal with Spain which they must have known that there was no chance of Gibraltar accepting. When I look opposite and see my noble friend Lord Hoyle—he may sit on the wrong Benches, but he is still my noble friend; I have known him for years and count him as a friend—I think of his son, Lindsay, who has fought a doughty battle in the House of Commons. He must be very proud of him.
However, I want to use the few moments at my disposal to voice my concerns about government policy towards St Helena. Of course, there was rejoicing when the islanders got British citizenship, but it has not worked out quite as expected. Unfortunately, because of the lack of opportunities on the island, that step has had the effect of accelerating the decline in population as people come to Britain to get the work that they cannot get at home. The population has sunk quite dramatically and frighteningly during the past two or three years.
It has been clear for some time that there is only one way to arrest that decline, which is to improve communications with the island and thus open it to tourism or other development. But on 19 April this year, all our hopes were dashed when those who, at the Government's invitation, had submitted proposals for air access were told that none of their plans were acceptable and that the Department for International Development was no longer interested in the development of air access as part of its package of

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private sector investment in which air access would be part-funded by proceeds from other private development.
I attended a very unsatisfactory meeting on 27 April, at which the Minister seemed to be saying that the runway needed to be longer than any of those who had submitted proposals thought necessary. I left that meeting without a clue as to whether DfID's advisers thought that the runway could be extended to the new recommended length if the present alignment was maintained; what additional cost was involved if they needed to be a new alignment; or what additional cost was involved if it was the same alignment. If the runway is too short, too short for what? I am by no means clear. Is it too short for flights from Europe and South Africa? If so, is it long enough for flights from Ascension? Surely, a shuttle service to and from Ascension would be better than nothing.
I would appreciate the Minister's guidance. I should particularly like to know whether the Americans have yet agreed to the use of the airbase on Ascension for commercial flights. Above all, I would like to feel that there is some sense of urgency in DfID about the matter. I was not at all impressed by the passage in the Minister's statement, in which he said, after torpedoing the plans to which I have referred:
"Nevertheless, we understand that air access still remains the preferred option of the people of St Helena for maintaining physical links with the island after the present ship is withdrawn from service during or soon after 2010". —[Official Report, Commons, 19/4/04; col. WS 1.]
That reply did not betray much urgency. Many sought the opening of an airport well before then and can see what enormous damage will be done if the Government pursue that policy of drift much longer.
8 p.m.
Lord Greenway: My Lords, I, too, am grateful to the noble Baroness, Lady Hooper, for raising this question, because it allows me to raise a rather narrow point on recent action by the Spanish Government concerning cruise ship calls at Gibraltar.
This is not the first time this has happened. It has happened twice before: once in 2002 and again last year. The present incident arose at the end of last month, when the cruise ship "Norwegian Dream" was barred from calling at the Spanish port of Barcelona following a call at Gibraltar. The Spanish Government cited EU Regulation 4055/86 of 1986, which related to maritime transport between member states—cabotage, in effect. It was designed for use by cargo ships and had nothing to do with cruise ships. As a result of that, the Foreign Secretary instructed our ambassador in Madrid to write a letter to the Spanish Government expressing "disappointment and surprise". I am no expert in diplomatic language, but that hardly seems a tough line. Where is the EU in all this? Surely, it should have something to say. I am astounded at the silence in Brussels on these matters.
As a result of the Spanish Government's action, six ships so far have cancelled their calls at Gibraltar. There is no rhyme or reason for the Spanish action, because they cited the cruise ship as being "non-EU
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flag"; it flew the Bahamas flag. The second ship, the first to cancel a call at Gibraltar, flies the Dutch flag; therefore there is no reason why she should have been excluded.
I am surprised that the action seems to relate only to the ports of Barcelona and Cadiz. There has been no trouble with ships going to other Spanish ports. Indeed, after Gibraltar they have called at Malaga, Almeria, Valencia and shortly at Tarragona. That is the result of an edict direct from Madrid to those ports. I have had a personal complaint from the director of the port of Barcelona, whom I know quite well, and who still thinks that I am president of Cruise Europe—I gave up that position a year ago—asking what I could do about the situation. So the Spanish ports are just as worried as Gibraltar.
The only reason that Spain is doing this is a deliberate act to cause confusion and uncertainty. Uncertainty is very dangerous in the cruise business, because cruise companies work on itineraries two to three years ahead. If there is the slightest uncertainty, they will drop a potential port call. That has an enormous impact on the economy of Gibraltar. I need hardly add that it also suffered another setback this year when it lost 27 calls due to the financial difficulties of a Greek company, Royal Olympic Cruises. In addition, the Queen Mary 2, a very prestigious call, had to be put off because the dredging was not done in time.
I believe the Government's view is that there is no legal basis for the Spanish action. What exactly is the position? Has there been a reply or indeed any clarification from Madrid? I gather that there is a meeting tomorrow between the Foreign Secretary and his Spanish counterpart, Señor Moratinos. Perhaps we may learn more from that. This intermittent nit-picking action by Spain must not be allowed to continue. Surely it is not beyond the wit of Her Majesty's Government and the EU between them finally to put an end to it once and for all.
8.5 p.m.
Lord Davies of Coity: My Lords, I thank the noble Baroness, Lady Hooper, for introducing the debate. I declare an interest as chairman of the All-Party Parliamentary Group for the Cayman Islands, which provides a link between the Cayman Islands Legislative Assembly and the United Kingdom Government.
I am sure that the image that most people have of the Cayman Islands has been conjured up as a result of its exaggerated portrayal by Hollywood. I intend to present a much more realistic picture. The relationship between the Cayman Islands and the United Kingdom stretches back 500 years. When Jamaica became independent in 1962, Cayman decided to remain with the Crown. It is politically and economically stable. It has a world-class financial structure, with lawyers, bankers, accountants and so on, and an excellent legal system. The belief that the Cayman Islands is a haven for money-laundering is now outdated and it has done more than most to remove those practices. The

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Cayman Islands is the fifth largest financial centre in the world after New York, London, Tokyo and Hong Kong. You do not get that level of business by being "shady"; it is because you develop an effective and efficient financial environment, and that has been done.
The Cayman Islands has implemented a host of international measures, including OECD and financial action task force initiatives. Cayman is now a place where the "know your client" due diligence requirements exceed the standard required in the United Kingdom and where the anti-money-laundering legislation matches that of the United Kingdom and exceeds the standards operating in the United States of America and continental Europe. That is why bank deposits and inter-bank bookings have increased over the past four years from £340 billion to over £540 billion. Caymanians are proud that they have lifted the islands from a basic economy in the 1960s to a sophisticated financial centre today which has provided its citizens with a high standard of living.
In December 2003, the overseas territories at the consultative council produced a joint statement in which they all recognised the responsibilities they have as a consequence of their relationship with the United Kingdom. They also shared with Her Majesty's Government the aim of providing high standards of governance for all their citizens. Although this is a shared objective, there is no doubt that discussion and consultation must continue about the means of achieving it. In the Government's 1999 White Paper, the stated aim was to enable overseas territories to achieve greater autonomy. The overseas territories have emphatically stated that they are not seeking independence. There is, however, a need to improve democratic accountability while at the same time strengthening, and not weakening, the relationship with the United Kingdom.
There is no doubt that, if there is not measured progress towards democratic accountability and elements of internal self-government, there is a risk that the demands for full-blown independence will become much greater. As different levels of internal self-government already exist among different territories, there is bound to be a feeling of some unfairness and a desire on the part of some territories to catch up.
The time is now right for a meaningful dialogue, and for a rebalanced relationship, particularly in respect of the Cayman Islands. Handled with care and goodwill, this can lead to improved constitutional advancement without damage to the relationship with the United Kingdom. The issues are complex but, with the necessary understanding and tolerance, an outcome acceptable to all can be produced.
A recent issue of some concern has been the European Union Savings Tax Directive. The Cayman Islands has been largely concerned that a level playing-field approach was not being applied in the implementation of this directive and, as a result, felt that banking business now being held in the Cayman Islands would go elsewhere, with a consequential adverse impact on employment. Last summer, I led a cross-party delegation, along with Members from the
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other place, to see the Paymaster General. Arising from this, there has been subsequent discussion, which has proved fruitful, between the Treasury and the Leader of the Cayman Islands Legislative Assembly, with the Cayman Islands having given a commitment to sign up to the directive and the UK Government having given appropriate assurances.
Although the United Kingdom benefits from having overseas territories, and the people in the overseas territories benefit from having an association with the Crown, the relationship is much, much deeper than that. The development over centuries must mean a great deal more. It is about mutual loyalty; it is about responsibility; and, above all, it is about civilised behaviour on the part of all. I hope that the relationship between the United Kingdom and the overseas territories in the years to come will mutually strengthen, and not weaken, this partnership.
8.10 p.m.
Lord Beaumont of Whitley: My Lords, I too join in thanking the noble Baroness for introducing this debate tonight. It is a good thing that we should, from time to time, consult about the overseas territories. As we have heard, it is necessary to pick and choose when dealing with them because there is a wide variety involved. As I have raised the issue of St Helena over a long period of time, your Lordships will not be surprised to hear that I am choosing it as my subject. That is not least because, as all noble Lords will be aware, next week will feature St Helena day, which we ought to be able to celebrate with some good news.
The problem about St Helena at the moment, as we all know, and as the noble Lord, Lord Waddington, has fleshed out, is depopulation. The population is shrinking, and we do not know what the Government propose to do in a situation where depopulation went on more than it does at the moment. Do the Government have forecasts of what the depopulation is likely to be over the next two to three years? What are their different plans, depending on what levels they think depopulation will reach? I too, with the noble Lord, Lord Waddington, went to the meeting about air access, and I too was very far from impressed about what we were told. The problems of St Helena are large; they are to a large extent our problems; and their own dependencies are also important, not least Tristan da Cunha.
Your Lordships will be aware that the Minister has recently given a Written Answer to a question of mine on access to Tristan da Cunha, which was reasonable as far as it went. The time has come when the Government must face up to all the problems of that group of dependent territories. It is time that we had a White Paper, or an equivalent document, devoted entirely to those three—St Helena and its dependencies. I hope that the Minister will be able to tell us that something like that is on the Government's agenda—because if it is not, they are letting things slide to a future disaster.
8.14 p.m.
Lord Hoyle: My Lords, I congratulate the noble Baroness, Lady Hooper. Her interest in the overseas territories is well known, and it has been shown again tonight. As many noble Lords have said, it is important that we discuss such matters from time to time. We have covered a range of territories already: the Cayman Islands, the old territories in the West Indies, and St Helena. I could not agree more about the problems there and the need for an airport to be developed very quickly, if we are to stop the population drain.
I shall turn my attention to the EU constitution and, in the main, Gibraltar. That will not be a surprise to anyone in the House, certainly not to the noble Lord, Lord Waddington. I have several questions to ask my noble friend about the EU constitution. There is a voluntary clause that allows member states to withdraw. Why does it not apply to dependent territories and to overseas territories? Surely, they should have that right as well. I look forward to hearing the answer to that question.
The other clause that worries the people of Gibraltar is the clause allowing member states to specify the location of the border. We know that Spain has put its case about the location of the border with Gibraltar. It is important that that matter is clarified for the people of Gibraltar. That is the border that they have always stuck by and about which they have argued.
I also want to ask about territorial integrity. Under the constitution, member states have a right to ensure it. Again, that is extremely important to the people of Gibraltar, as it is the basis of the claim that Spain has always made with regard to Gibraltar. Will it have a negative effect on Gibraltar's status in the European Community? I would like to hear my noble friend say something about that.
In trying to ensure that Gibraltar has certain facilities relating to things such as VAT and the common customs tariff, the Government must remember that it is important to Gibraltar that such things are preserved. Can my noble friend tell me about that?
The noble Lord, Lord Greenway, explained in great detail the silly situation that has arisen with cruise ships. Why is it that Spain, which strives to say that Gibraltar belongs to it, never tries to persuade the people of Gibraltar by friendship? Such pinpricks have an effect on the economy of Gibraltar. Cruise ships are exceptionally important. Gibraltar's economy is in a good way and is expanding. One can only think that it is a case of envy. As the noble Lord explained, the situation has not been welcomed by certain ports in Spain, particularly Barcelona. The meeting tomorrow is very important. My noble friend may not be able to give any further details except about what we have said to the Government about the matter, but I ask her to come back to us on it.
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The final issue I want to raise is the continuing problem with telephone numbers. They are still being restricted. The EU Commission has decided to take no action. We believe that it is unlawful, so will we take the matter to the European Court of Justice?
8.18 p.m.
Baroness Thomas of Walliswood: My Lords, I was so interested in what the noble Lord, Lord Hoyle, said that I forgot to get to my feet. The noble Baroness, Lady Hooper, introduced the debate with her usual expertise and thoroughness. I shall not be able to follow her down that line, as I have only a small portion of her time.
The overseas territories and their inhabitants are in a curious situation. They are British, and the territories are dependent on the UK partly at their own wish. Yet, their affairs are dealt with by the Foreign and Commonwealth Office. It is clear that it has proved difficult for other departments to take any account of the effect of their decisions on the territories. Even the citizenship situation is odd. As the noble Baroness pointed out, a student coming to this country from, say, St Helena—it could be any of the overseas territories—will pay more for his or her course than a student coming from France. Have the Government any plans to iron out that anomaly? Is it one of the aspects that the former Foreign Secretary wanted the Whitehall mandarins to concentrate on?
While reading for this debate, I was struck by the differences between the overseas territories of Pitcairn, Montserrat and St Helena at one end of the spectrum of size and wealth and Bermuda and the Cayman Islands at the other. Apart from a long association with the UK, they seem to share a determination to stay British. I am reminded of a comment made to a UK diplomat some years ago by a chief minister of a Caribbean dependent territory, who said:
"If you want independence you will have to fight for it".
In other words, they were not going to give the British the pleasure of making them independent.
While the White Paper, Partnership for Progress and Prosperity, welcomes all overseas territories to remain British for as long as they wish, it also talks pretty plainly about the consequences of doing so in the modern world. The December conference, to which this evening's debate refers, seems to have shown that the territories themselves are pushing at the boundaries of their own devolved powers in the course of following through their constitutional commission.
I have a good deal of sympathy with the title of this debate, which was so ably introduced by the noble Baroness, Lady Hooper: she is trying to find something out. An Answer to a Written Question in this House about last December's conference and a Written Ministerial Statement in another place have been couched in unusually reserved terms, even by FCO standards.
A question put by my noble friend Lord Wallace of Saltaire about offshore financial centres did not elicit much more information. The final conference speeches of the Foreign Secretary and especially that of his

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junior Minister, Mr Rammell, occasionally had the tone of a headmaster addressing a slightly recalcitrant group of prefects: that is, he wants them to take responsibility for helping him run the school, but only where he indicates that that would be suitable to their status.
When reading carefully, one can see that during the conference the FCO and at least some of the representatives of overseas territories differ in their attitude to the role of the Governor. The White Paper, Partnership for Progress and Prosperity, is a sensible document. Shorn of its verbiage it indicates that overseas territories can stay as such for as long as they wish. But that has implications for the standards of domestic governance and for the establishment of better regulation of financial transactions among other important matters. The UK Government have a right to see that progress is made because, if things go wrong, we might have to take the blame or have to pay to put things right. The Governor has an important role to play in helping a territory to go in the right direction and therefore has a specific range of positions which he ought to fill and duties within his territories. That is the Government's attitude to the role of the Governor.
How do the attitudes of the dependent territories vary from that? Is that difference of opinion important? I have come to the end of my time. I shall close by saying that I support, with sadness, the criticisms that have been levelled by several Members at the Spanish Government for the ham-handed way in which they are handling the dispute with Gibraltar, which, heaven knows, has been going on for long enough. However, I look forward to hearing the Minister's reply to a wide variety of questions.
8.23 p.m.
Baroness Rawlings: My Lords, I, too, pay tribute to my noble friend Lady Hooper for initiating tonight's debate. While the overseas territories are constitutionally not part of the United Kingdom, as we have heard, they continue to maintain their strong links with us. We have also heard during tonight's excellent debate that the 14 British Overseas Territories cover not merely a wide geographic region from Anguilla to the Turks and Caicos Islands, but also a range of other issues. These include access to British citizenship, the UK health system and the European Union. Those interrelationships form a continued and lasting partnership based on mutual trust, responsibility and the pursuance of good governance. It is of course a complex relationship.
As several noble Lords have outlined, the overseas territories have separate constitutions and most of them have elected governments with varying degrees of responsibilities for domestic matters. The Governor, who is appointed by and represents Her Majesty the Queen, retains responsibility for external affairs, internal security, defence and, in most cases, the public service. Yet, the relationship goes further.
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Noble Lords have referred to the British Overseas Territories Act 2002, which extended British citizenship, together with the right of abode in the United Kingdom, to people in the overseas territories who qualify for it. This is a non-reciprocal arrangement that also extends citizenship to the European Union. It is therefore fair to say that we have a mutual interest in each other's affairs.
As with any partnership, it is vital that channels of communication are always open and regularly maintained. We believe it is important for the Government to demonstrate our continued commitment to the overseas territories. I would ask the Minister how often she has communicated with the governments of the British Overseas Territories over the past three years.
We must not forget that this is an evolving partnership and for several years now, some overseas territory representatives have argued for a greater devolution of responsibility and reduction in the powers of governors. In some cases this has amounted to full internal self-government and the total abolition of the UK Government's reserved powers. It is important to bear in mind that the territories do have the right to seek independence, and it is equally important that the UK Government are seen to be actively listening to the concerns and views of the citizens in these territories. This should apply whether the call is for further devolution or, as is the case with Gibraltar, a call for continued affiliation to the United Kingdom, as demonstrated in the referendum held last year.
This debate provides a timely opportunity to ask the Minister to outline what consultations have been held with the people in the Overseas Territories Consultative Council.
We continue to welcome the ongoing commitment of Her Majesty's Government to the key principles of good governance in the overseas territories. I cite in particular the independence of the judiciary, the political impartiality and integrity of the public service, and sound financial management. We acknowledge too that the governors have a key role to play.
I support my noble friend Lord Waddington and the noble Lords, Lord Beaumont of Whitley and Lord Hoyle, in asking the Minister about the latest situation with the St Helena airport. As we have heard, transport links for the island are vital not only for tourism, but for trade, especially in fish. Why has the decision for this desperately needed airport still not been agreed? As the noble Baroness knows, there is either the RMS "St Helena", which needs to be replaced at a cost of around £38 million, or the airport. Which will DfID support?
We have heard during the course of the debate that the UK has a key role to play in this partnership. On our part, we have the responsibility to safeguard the defence and security of the overseas territories. Meanwhile, the territories should continue on their path to creating democratic and fair small-island economies with sound financial management and strong public services. The key point of this evening's debate must be to send a clear message to the citizens of the British Overseas Territories. They continue to be

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our valued partners and, so long as they want, the UK should maintain its commitment to this partnership and the obligations that go with it.
8.28 p.m.
Baroness Crawley: My Lords, the whole House is grateful to the noble Baroness, Lady Hooper, for initiating this debate on an important policy issue for the UK. Her considerable experience in foreign policy matters, along with that of many noble Lords who have participated tonight, has made this a most engrossing debate, if somewhat short.
Britain's links with the overseas territories are longstanding. I shall ensure that the noble Baroness, Lady Rawlings, receives an answer in writing detailing the very many meetings held between Ministers and representatives of the overseas territories. There is a deep bond of affection and respect between the people of Britain and the peoples of the overseas territories. Some of the territories share the same opportunities and challenges, but each territory has its own individual character and attributes.
I thank the noble Lord, Lord Waddington, for his kind words regarding our relations with the overseas territories, although I take note of his other words about those relations, which I hope to come to before the end of my time to speak.
Over the past 50 years or so, many of the UK's former possessions have moved from self-government to sovereign independence. Those territories which have chosen to retain the link with the UK are, like us, having to face the challenges presented by the rapidly changing modern agenda. Globalisation is a phenomenon that affects everyone. In recent years, Britain's relationship with the rest of the world has also changed. It was to reflect these changes that the Government undertook a major review of the relationship with the then dependent territories in the late 1990s. This led to the 1999 White Paper.
The paper noted that the UK's links with the territories should he based on partnership, with mutual obligations and responsibilities. The territories should largely administer themselves in accordance with their constitutions and in full respect for the UK's international obligations relevant to them. Within that framework, the UK should uphold the right of the individual territories to determine their own future and to enjoy a high degree of autonomy while ensuring their defence and external relations and, through governors, governance of a high quality.
The White Paper referred to by the noble Baroness, Lady Thomas of Walliswood, and other noble Lords was widely welcomed and still provides the basis for the UK's relationship with the territories. It led to a number of important changes. The first was the renaming of the dependent territories as overseas territories, the better to reflect the evolving relationship. A Minister for the overseas territories was appointed within the FCO and a new structured dialogue between the overseas territories and the government was established. This included a new political forum, the Overseas Territories Consultative
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Council, to which the noble Baroness refers in her Question. This brings together British Ministers and the territories' political leaders to discuss matters of common concern. It meets annually. This body provides an opportunity for the UK and the territories to set out their objectives and concerns in respect of the relationship in a frank and open manner.
The December 2003 meeting of the consultative council, the fifth in the series, tackled a number of issues, ranging from economic development to the environment; the EU; and overseas territories' membership of the regional organisations referred to by my noble friend Lady Howells of St Davids. It also provided an opportunity to take stock of the relationship between the UK and the overseas territories and to reaffirm the UK's approach to a range of issues on the basis set out in the 1999 White Paper.
At the meeting, the Parliamentary Under-Secretary of State at the FCO, Bill Rammell, noted that the relationship needed to take account of changes at international level, which meant that the dividing line between domestic and international issues had become blurred. The challenge was to strike the right balance between the territories' desire for increased self-governance and the UK's need to meet its overall obligations and responsibilities for the good governance of the territories and their compliance with international obligations, as well as protecting the UK Exchequer from contingent liabilities.
This meant that, as Ministers had consistently stressed at earlier consultative councils, the UK would have to retain sufficient powers to protect its overall responsibilities for the territories as long as the constitutional link with the UK remained. The Minister made clear that the UK's position on independence remained as set out in the White Paper. The UK would respond positively when independence was the clearly and constitutionally expressed wish of the people. But, equally, any territory wishing to remain British could do so.
So, in answer to the noble Baroness's Question, Her Majesty's Government do not propose any change in our policy towards the overseas territories. Our policy remains based on the White Paper. It does not imply any diminution in the role of elected governments in the overseas territories, many of which already enjoy a high degree of self-government. We want to work with them in fulfilment of the aims of the White Paper, many of which have been touched on today. These will continue to be the guiding lines in the ongoing series of constitutional reviews that the UK is conducting with the overseas territories and which, for the first time, are being driven by local review commissions in the territories themselves, a matter to which the noble Baroness, Lady Hooper, referred.
I have been asked more than 30 questions—I have lost count—and I hope that noble Lords will be patient with me if I do not answer all of them in my response. Of course, I will follow up with detailed written answers any questions to which I do not respond.
The noble Baroness, Lady Hooper, asked for an update on the EU taxation of savings directive in relation to Gibraltar. This, we believe, is a good deal

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for Gibraltar, and for the interests of the UK and Gibraltar. Her Majesty's Government are confident that the deal safeguards Gibraltar's position as an attractive centre for banking and financial services.
The noble Baroness asked for an update on the European Parliament elections in Gibraltar. Gibraltar will take part in the European Parliament elections on 10 June, for the first time. Gibraltar is part of the south-west constituency for those elections.
The noble Baroness also asked for details of the governors' conference. The annual conference of governors is not a decision-making body, but essentially a housekeeping meeting. It brings together governors, FCO officials and officials from other relevant government departments to exchange views on issues of common interest affecting the territories, especially those for which Her Majesty's Government retain responsibility. The subjects covered at the meeting this year included the relationship between HMG and the territories, law and order, aviation and maritime safety and security, nationality and consular issues, disaster management and preparedness, and human rights.
The noble Baroness also asked about the European Union's relations with overseas territories and the EU funding that they can access. As territories have graduated away from budgetary and technical aid from DfID, they have naturally looked for alternative sources of financing. One of these is the European Union. The 2001 Council decision on the EU overseas countries and territories—the OCT Association—was a good result for the UK overseas territories. Their share of national European development fund allocations increased by 14 per cent to a significant 41 million, or 32 per cent of the total.
I was asked about the European taxation of savings directive by the noble Baroness, Lady Hooper, and my noble friends Lord Davies of Coity and Lady Howells. The financial sector has also been affected by international legislation and regulation designed to eradicate and mitigate the effect of unequal competition between states. One key piece of legislation is the EU's taxation of savings directive. I am happy to report, as some noble Lords have observed, that all the relevant overseas territory governments have now agreed to introduce the same measures as are contained in the directive and implement the directive from the same date as the EU and other countries with whom the EU is negotiating an agreement in relation to the directive.
The noble Baronesses, Lady Hooper and Lady Thomas of Walliswood, asked about overseas students who are British citizens and whether the policy would change when it came to qualifying for home student fee rates. No—British Overseas Territory citizens do not automatically qualify for such rates. Eligibility for home student fee rates depends on UK or EU residence, not citizenship. So those who have already been in the UK for three years are eligible for home tuition fee rates and other student support.
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I was asked several questions about the situation concerning Gibraltar. My noble friend Lord Hoyle raised concerns, as did the noble Lord, Lord Greenway.
As far as the European Union Constitutional Treaty is concerned, under present arrangements the United Kingdom could initiate Gibraltar's withdrawal from the EU, but that would require a treaty amendment and perhaps an IGC. We would look hard at the case for any alteration, but do not believe that withdrawal is in either Gibraltar's or the UK's interest. We reviewed the draft treaty from a Gibraltar perspective. In respect of demarcation of borders—which was raised by my noble friend—we do not believe that the latest draft will change the existing situation in Gibraltar in any way.
Cruise ships are currently cancelling scheduled visits to Gibraltar because Spain is banning them from docking in Spanish ports if they come from Gibraltar. We agree that there is no good reason for Spain to deny entry to such ships. I was asked what the Government are doing about the problem. The permanent representative to the European Union sent a letter to the Commission on 14 May setting out Her Majesty's Government's legal position and inviting it to investigate. The Minister for Europe raised the issue with Spanish Ministers this week and the Foreign Secretary may raise it with his counterpart on Thursday 20 May.
My time is up. Of course, I will ensure that all noble Lords get detailed answers to their questions. In conclusion, I stress that Her Majesty's Government are committed to a relationship with the overseas territories for as long as they wish to retain that link with Britain.

Asylum and Immigration (Treatment of Claimants, etc.) Bill
8.41 p.m.
Consideration of amendments on Report resumed.
Clause 9 [Immigration officer: power of arrest]:
Lord Bassam of Brighton Lord Bassam of Brighton moved Amendment No. 26:
Page 11, line 22, leave out "and"
The noble Lord said: My Lords, I shall be brief. The proposed amendments extend immigration officers' powers to provide a power of arrest without warrant and ancillary powers of entry, search and seizure, in respect of several human trafficking offences. Those offences are trafficking people into, within or out of the United Kingdom for exploitation, trafficking people into, within or out of the United Kingdom for sexual exploitation and comparable offences in Scotland.
Given that tackling organised crime, including human trafficking, is now such a high priority both at national and international level, and given the sometimes tragic consequences of this appalling and abhorrent trade, it would seem opportune to give a power of arrest to immigration officers. Human trafficking is an offence that immigration officers are

737
increasingly encountering, particularly those who work with the police in joint teams investigating immigration crime. If immigration officers had a similar power of arrest and ancillary powers of entry and search, it would allow them to play a fuller role within these teams.
In addition, the current position fails to take account of the difference between the offences of people trafficking, where only the police have a power of arrest, and the offence of assisting unlawful immigration to a member state—under Section 25 of the Immigration Act 1971—in respect of which immigration officers currently have a power of arrest, and circumstances when the offences overlap.
The terms "people trafficking" and "people smuggling" are used indiscriminately and inaccurately, adding to the confusion on this subject and making it difficult to gauge the true size of the problem. If we are to bring clarity to this area, it is essential that we make the distinction at the outset; if a person is suspected of trafficking people for the purpose of exploitation, immigration officers should be able to arrest that person for trafficking rather than the less appropriate charge of facilitating the unlawful immigration of a person to a member state. As with the other offences specified in Clause 9, an immigration officer will be able to arrest a person for a trafficking offence only when, in the course of exercising a function under the Immigration Acts, the officer forms a reasonable suspicion that a person has committed or attempted to commit such an offence.
Noble Lords may be assured that adequate safeguards in terms of selection, appropriate training and mentoring will be in place for those immigration officers who are designated as able to use these powers. This will include an examination before acceptance on to a three-week, intensive training course run by the police. Officers who pass the course are then subject to a period of mentoring. It is only when they have demonstrated that they are able to use these skills safely and appropriately that they will be designated to do so by a senior Immigration Service member of staff. It will remain policy that those who are not designated to do so will not exercise their statutory power of arrest.
Having heard that explanation, I hope that noble Lords will be satisfied with these fresh amendments. I beg to move.
On Question, amendment agreed to.
8.45 p.m.
Lord Bassam of Brighton Lord Bassam of Brighton moved Amendment No. 27:
Page 11, line 29, at end insert—

"( ) an offence under any of sections 57 to 59 of the Sexual Offences Act 2003 (c. 42) (trafficking for sexual exploitation),

( ) an offence under section 22 of the Criminal Justice (Scotland) Act 2003 (asp 7) (trafficking in prostitution), and

( ) an offence under section 4 of this Act."

On Question, amendment agreed to.
Clause 12 [Retention of documents]:
Baroness Anelay of St Johns Baroness Anelay of St Johns moved Amendment No. 28:
Page 12, line 27, leave out from "document" to "an" and insert "is retained by"
The noble Baroness said: My Lords, in moving Amendment No. 28, I shall also speak to Amendments Nos. 29 and 30. I tabled probing amendments to Clause 12 in Committee, and I have brought two of those amendments back—Amendments Nos. 28 and 29—and tabled Amendment No. 30 as a peg no which to hang questions. I wish to enable the Government to put on record their explanation of the purposes behind the clause and how it will operate. Noble Lords will recall that the clause was added to the Bill on Report in another place without any ministerial comment or debate, because the guillotine fell.
We raised questions on the clause in Committee, towards the end of a long evening. The Minister—the noble Baroness, Lady Scotland, at that stage—gave a courteous but curtailed answer with the assent of all those present, since a full answer would have taken us some way towards midnight. However, she offered to write in depth to noble Lords to give the Government's full response, which she estimated would take about 20 minutes to give verbally.
The trouble was that that letter did not arrive, so I tabled the amendments last Wednesday while my colleagues contacted the Minister's office and were assured that a reply would come—which it did, finally, at a quarter to one today. In normal circumstances, I would be stamping feet, as I may do later tonight under another group of amendments, and say that it is a hopelessly late hour properly to consider the Government's response. However, on this occasion I am able to press ahead because the questions in the first instance came from me alone and not from outside bodies. Therefore, I do not have to refer the letter to other bodies to see what their consideration is before we plough ahead.
The Explanatory Notes state:
"Clause 12 provides the Secretary of State or an immigration officer with the power to retain documents … whilst it is suspected that the person the documents relate to is liable to removal, and that retention of the document may facilitate their removal from the United Kingdom. It complements current powers, such as those in paragraphs 4(2A) and 18(2) of Schedule 2 to the Immigration Act 1971, which already permit the seizure and retention of documents in certain circumstances".
In summary, I asked the following three questions: how the Home Office and the Immigration Service would get hold of the documents in the first place; the type of documents that could be kept; and whether the power to keep the documents extended to the retention of documents that were the private property of the individual or another person. The noble Lord, Lord Avebury, followed up with some in-depth questions on that point, too.
The Government seem to have taken us further along the line of clarifying the clause. I do not propose to go into detail about that letter, except to remark that it is in the Libraries of this House and another place. I wish to use this as an opportunity to ask the

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Minister whether the Government have had further thoughts on any of the amendments beyond that which they have already expressed in their letter to noble Lords. I beg to move.
Lord McNally: My Lords, I have not had an opportunity to see the letter in question. The postal service these days is just absolutely shocking. The only guidance that I have had on the amendment is from I LPA—the Immigration Law Practitioners' Association—which states:
"ILPA suspects that this clause is intended retrospectively to legalise current Home Office practice of retaining the passport of overstayers or alleged illegal entrants who have sent them to the Home Office in connection with applications for leave to remain even when the person has expressed the willingness and intention to leave the country".
It goes on to say that it is worried about wider implications, for example, making it harder for people who genuinely want to leave the country to do so. From the debate in Committee it seems that the definition of the kinds of documents that could be impounded in this way is vague and wide-ranging. As ILPA points out, this is also an opportunity for the Home Office to lose the documents. I look forward to the Minister's reply.
Lord Bassam of Brighton: First, I ought to apologise to the noble Baroness and to other Members of your Lordships' House for the late arrival of the letter. The copy I have is dated yesterday and I know that I received it late last night. I am not at all surprised that the noble Baroness received her copy some time this morning. Like the noble Baroness, I have had to read it rather rapidly to understand fully its import in relation to today's debate but I do understand it.
The first two amendments as drafted would largely render the clause ineffective. They would restrict the power to retain documents to immigration officers and even then only—.
Baroness Anelay of St Johns: My Lords, I think I made it clear that my amendments are merely pegs and I am very happy for the Minister not to address them. I am merely seeking to assist the House at Report if the Government have got further information.
Lord Bassam of Brighton: My Lords, I am grateful to the noble Baroness for reminding me of her earlier observation. All I wish to say on this group of amendments is that Amendment No. 30 raises an interesting question and we are interested in the point. I am happy to take that amendment away and see how we can make the clause more workable in practice. I am happy to give it further consideration. As I understand it, it clarifies how we intend the clause to work in practice. On that basis, if the noble Baroness is happy, I will draw my comments to a close as she may find it useful for us to do that.
Baroness Anelay of St Johns: My Lords, the noble Lord, Lord McNally, is right to point out that I may have had the letter but he has not. Yet again we reach
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this matter at a late hour and I am trying to assist the House in dealing with the matter as briefly as possible. I am grateful to the Minister for saying that he will look again at my new Amendment No. 30, which was not tabled in Committee and refers to having reasonable cause to suspect. I hope that might be of assistance in the clarification of the clause. I look forward to a further response from the Government on that and I am sure that we all hope for a rather earlier response next time round. Of course, none of us underestimates the difficulty of managing Bills and trying to get the responses. But it was a corker to get an eight or nine page letter more or less just before we came into the House today. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 29 and 30 not moved.]
Lord Avebury Lord Avebury moved Amendment No. 31:
Before Clause 19, insert the following new clause
"DETENTION OF CHILDREN: ASSESSMENT
(1)Section 62 of the Nationality, Immigration and Asylum Act 2002 (c. 41) (detention by the Secretary of State) shall be amended as follows.
(2)After subsection (9) insert—
"(9A) Where a detained person, within the meaning of section 147 of the Immigration and Asylum Act 1999, as amended by this section, is under the age of 18, an independent assessor appointed by the Department for Education and Skills, or the appropriate executive body in the country, must visit the detained person for as long as the person remains detained to carry out on each visit an assessment into the welfare, developmental and educational needs of the detained person.
(9B) All assessments under this section shall be guided by the principles set out in—

(a) the United Nations Convention on the Rights of the Child,

(b) the Children Act 1989,

(c) the Children (Scotland) Act 1995, or

(d) the Children (Northern Ireland) Order 1995.

(9C) Reports of the assessment shall contain advice on the compatibility of detention with the welfare of the detained person and must be sent to—

(a) the Chief Immigration Officer responsible for reviewing the detention;

(b) the detained person;

(c) the detained person's legal representative, if any.

(9D) When a Chief Immigration Officer receives a report of an assessment carried under this section he must review the decision to continue detention in the light of the advice contained in the assessment and send his decision on review, with the reasons for the decision, to—

(a) the independent assessor who carried out the assessment;

(b) the detained person;

(c) the detained person's legal representative, if any.""

The noble Lord said: My Lords, as I said when we last discussed the detention of children in Committee, we were not satisfied with the answers that we got then from the ever-courteous and helpful noble Baroness, Lady Scotland. In spite of her efforts there were some questions on which we did not get answers at all.
The Minister knows that it is not only Members of all parties in this House and the Bench of Bishops who are worried about children being held in detention centres. The Bill contains no provisions that would adequately

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address the concerns that have been expressed by Her Majesty's Chief Inspector of Prisons in relation to Dungavel, let alone those of the Refugee Children's Consortium, which is opposed to the detention of any child under Immigration Act powers on the grounds that it is incompatible with the principles of the UN Convention on the Rights of the Child and other human rights instruments.
The recently appointed Commissioner for Children and Young People in Scotland, Professor Kathleen Marshall, also recently expressed criticism of the detention of children at Dungavel when she said:
"Detention itself is inherently against the welfare of children and you cannot expect children's welfare to be served in that situation".
We have reason to believe that children are frequently held for weeks rather than days and that they are not being held just prior to removal in accordance with stated government policy. Following considerable pressure, the Government have begun including statistics on child detention in the quarterly asylum statistics. That information is of limited use as the figures do not show how old the children are, at what stage of the case they were detained or for how long, and gives no indication of the outcome of the detention.
In Committee, the Minister gave some more recent information which showed that the number of detained had increased from 10 in the quarterly RDS statistics to 24 at the time of the debate. That illustrates one difficulty of having only a snapshot at three monthly intervals. Between the dates of the snapshot the IND can detain any number of children without being noticed as long as they were cleared out on the day before the snapshot is taken. A child could be detained for 89 days in between and remain invisible in the statistics. It is true that the more extreme cases, such as the two that occurred immediately before the December statistics were published, of two single mothers and their children detained for 143 and 114 days at Oakington, would be picked up in at least one quarterly statistics, but the public still would not know that they had been held for all that length of time.
In Standing Committee B the then Minister argued that the requirement for Ministers to "expressly authorise" the detention of any child in excess of 28 days would provide protection for children. On April 27 I asked how many times the Secretary of State had used the lock on a child and whether he had ever used the key instead. Last week I wrote to the noble Baroness to remind her of her undertaking to respond by letter to the points that were left outstanding in that debate. Only if we have that information can we judge whether the Government are complying with our obligations towards children under Article 37(b) of the Convention on the Rights of the Child, which the Government say they accept.
This House is also considering the Children Bill which aims to improve services and safeguards for all children. That Bill extends the duty to safeguard children and promote their welfare in the exercise of their functions to a range of bodies, including the
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police and prisons, but not to immigration removal centres. The noble Baroness, Lady Ashton of Upholland, said in the debates on the Children Bill that the reason for excluding the immigration removal centres was because to do so might "cut across existing procedures". Surely existing procedures will have to be reviewed as a result of the Children Bill in other places where children are detained, so why not review them in removal centres as well?.
On the previous occasion when I gave the account of Jacqueline Konan and her baby, Thelma, the noble Baroness argued that,
"systems are in place to prevent a recurrence",
and, further, that:
"The detention procedures have been tightened up since the time of that case".—[Official Report, 27/4/04; col. 714.]
She prayed in aid the system of ministerial authorisation of detention of cases involving children beyond the 28 days that I have already mentioned. I respectfully suggest that that system is not working. I have just seen a report in the Islington Gazette of May 13 where a judge slammed a decision unlawfully to lock up a 17 year-old asylum seeker, saying that it was perhaps the worst case he had ever come across. In that case apparently the immigration officer detained the individual because he simply did not like the fact that an independent adjudicator had released him on bail. In that case the system lamentably failed, but that is not the only case.
Last week I received a letter from a child born on 29 March 1988 who has been detained at Harmondsworth since December 22 last year—147 days. Yesterday I gave the Minister notice that I would mention this case. The IND is disputing his age, although he claims to have given it a birth certificate. It had him examined by a dentist, who gave the opinion that, because his wisdom teeth had not erupted, he was probably 17 or 18. The determination of age from bone development of any kind is notoriously uncertain.
Given that development occurs at widely different ages in different ethnic groups, where there is a dispute about age a person should be given the benefit of the doubt. I would be grateful for an assurance from the Minister that that must be the case. Will he also agree that such cases must be submitted to the Secretary of State for express authorisation at the end of 28 days, and that that was done in the case of Master A? Even if there is a genuine review of the necessity to detain at the end of every 28 days, that far exceeds the few days recommended by the chief inspector, and fails to satisfy the UK's domestic and international obligations towards children.
9 p.m.
When we proposed in Committee that an assessment of children's needs should be undertaken to,
"advise on the compatibility of detention with the welfare of the child",
as the chief inspector had proposed in her Dungavel report, the Minister said that that recommendation had already been rejected. However, I am not aware of any reasoned answer to the report. The then Minister

743
in another place, Ms Beverley Hughes, had undertaken to the Home Affairs Committee on 6 January this year,
"to consider ways in which the assessment of the welfare and educational needs of children detained for more than just a short period might be improved".
It seems that the noble Baroness, Lady Scotland, has reneged on that commitment, however. She said that:
"In all probability, it would add an additional layer of bureaucracy",
and questioned,
"whether it is necessary or workable".
If a child were released within the seven days, there would be no assessment and no bureaucracy. If the child were released after 10 days or a fortnight, say, very little would have been done, as the Minister pointed out. She said:
"More than likely, the children would have been removed or released from detention before the assessor had a chance to do anything at all".
However, the 134 children detained between 27 February and 25 March 2004 spent an average of 9.8 days in custody. If the situation had continued, assessments would have begun on at least half of them according to the amendment. In practice, the existence of the assessment mechanism would give the IND an incentive to release many of those unnecessarily detained beyond the seven days, or very soon thereafter.
In any case, I was a bit surprised to hear the noble Baroness object to safeguards for children on such grounds. I would hesitate to describe an assessment of children's needs as bureaucracy. In the case of Dungavel, the Minister told us that the Government were,
"discussing arrangements with South Lanarkshire Council to conduct a welfare assessment for any child detained at Dungavel for 21 days".—[Official Report, 27/4/04; cols. 712–13.]
The argument between us is not one of principle, but only of detail. It is about when the assessment should be conducted—whether it should be 21 days or some shorter period—and what the assessment should cover. Despite assurances by Ministers, we believe that, without formal assistance such as we propose, children will continue to be detained in violation of both domestic law and our international obligations. If children's welfare was "monitored constantly", as the Minister asserts, there would be no anxiety that independent assessments would not confirm that the best interests of the child were being observed. I beg to move.
Baroness Stern: My Lords, I support the amendment; I promise to be extremely brief. My home is in Scotland where, as I am sure that the Minister knows, the detention of children is of great concern, because of the location of Dungavel Removal Centre. It may be that it is a particular cause of anxiety in Scotland because of the rather different approaches taken there, both to immigration and asylum—that is,
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some enthusiasm to welcome newcomers—and to the locking up of children, which is done in Scotland extremely sparingly.
I note that a briefing on the amendment comes from a consortium that includes all the major bodies that campaign for children, work with children and support disadvantaged children; and such widespread support from such a knowledgeable group might well make the Government feel that the amendment has considerable merit.
The Chief Inspector of Prisons has stated clearly that an independent assessment should be made after seven days; and that recommendation is based on a detailed inspection of what was actually happening in Dungavel removal centre at the time of the inspection. Locking up children is always a bad thing, a serious step to take; and locking up children for no reason that relates to the child, that is not for their own protection or the protection of others, is a very serious step, especially when they are in a foreign land and after experiences of upheaval and trauma.
The amendment seems to be an appropriate way of balancing the Government's need for a proper policy with our international obligations to protect the rights of children. I am happy to be able to support it.
Baroness Anelay of St Johns: My Lords, the noble Lord, Lord Avebury, is right to have retabled the amendment, which was debated in Committee, because it gives us the opportunity to press the Government a little further on the need to assess the requirements of children in detention. I thank the Refugee Children's Consortium for its helpful briefing on the matter.
Detention does give rise to a range of child protection issues. It can damage the physical and emotional health of children. The consortium is right to draw attention to the fact that the Bill does not address the concerns about children being held at immigration removal centres that were highlighted most recently in the report by Her Majesty's Inspectorate of Prisons, to which the noble Lord, Lord Avebury, and the noble Baroness, Lady Stern, have referred.
I asked questions in Committee (at col. 711 of Hansard for 27 April) regarding the Government's plans for implementing fully the recommendation of HMIP for an independent assessment of the welfare and educational and developmental needs of each detained child.
When the noble Baroness, Lady Scotland, replied to that debate (at col. 714) she answered my question only in part—she stated that arrangements for educational facilities were being put in place at Oakington as well as at Dungavel. The HMIP recommendation had gone beyond the provision of educational facilities. Can the Minister explain today what the Government intend to do with regard to the full extent of the HMIP recommendations for independent assessment of children in detention?
Lord Hylton: My Lords, I am happy to support the amendment, which seems to me to be extremely

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modest in the terms in which it is couched. It simply asks for the visiting of detained families and assessment of the welfare of the children. When we most recently discussed the matter the noble Baroness, Lady Scotland, said that,
"we are discussing arrangements with South Lanarkshire Council to conduct a welfare assessment for any child detained at Dungavel for 21 days".;[Official Report, 27/4/04; col. 713.]
Will the noble Lord who is to speak for the Government say what the outcome of those discussions has been? Others far more learned in these matters than I have pointed out that by 21 days damage and harm may already have occurred to children and that they should be visited and assessed earlier than at that point.
Lord Balsam of Brighton: My Lords, before I deal with the specifics of the amendment I want to say something about general government policy with regard to children. Our Government have a record and a reputation that is second to none for parties in government of making sure that in everything we do legislatively children are very much at the forefront of our thinking. We are a very child-sensitive administration and we have been praised on many occasions, across a whole range of domestic policy, for legislation that we have brought forward and for the general thrust of what we are trying to achieve—not just in child protection but in raising standards of provision for nurseries, educational facilities and so on.
Our concern, care and compassion obviously extends to those who are going through the processes of asylum and immigration. Therefore, I do not at all mind being put in the position of having to outline exactly what we are trying to achieve in the Immigration Service and in caring for and ensuring that children caught up in the asylum processes are looked after.
Amendment No. 31 would introduce a new clause requiring the establishment of a prescribed system of independent assessment for all children in detention. I shall spend some time going through exactly where we are in respect of children in detention.
The new clause is identical to one tabled and debated during Committee. We rejected that earlier clause and the noble Lord, Lord Avebury, agreed to withdraw it. Our position remains unchanged and we must reject this new clause too.
The detention of families with children is, understandably, an emotive subject and we recognise that it causes concern in many quarters. Indeed, we share those concerns and it is not something that we do lightly or gladly.
However, as we have made plain on many occasions, it is a regrettable fact that some families with children can give rise to the same immigration and asylum concerns as single adults, particularly in terms of failing to leave the UK voluntarily when they have no lawful basis of stay here. The detention of some families may therefore sometimes be necessary as part of maintaining an effective immigration control and asylum system. We cannot exclude families with children from those controls.
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Having said that, I must stress that overall very few families are detained and that most of those who are detained are held very briefly just prior to their removal from the UK. There is a presumption in all cases in favour of granting temporary admission or release, and each case will always be considered on its merits.
Unfortunately, despite figures to the contrary that we have given previously, the misconception that there are large numbers of families detained for lengthy periods continues to prevail in some quarters. Perhaps I can take this opportunity to dispel that notion and provide some reassurance to your Lordships.
Yesterday, there were 35 children in detention. Two of them were at Dungavel, 24 at Oakington and nine at Tinsley House. The numbers will necessarily fluctuate from day to day but those figures are not unusual. I would hope that demonstrates that at any one time there are very few families in detention—something we have been saying for some time, but it is a message we must repeat.
The noble Lord, Lord Avebury, and others have made much of the need for statistical evidence and have suggested that the absence of such evidence prevented them from accepting what we have been saying about the detention of families with children. We have listened to those calls and have conducted a special exercise to compile statistics to inform this debate. I should stress that this was a one-off exercise drawing solely on internal management information. However, I believe that the figures provide the reassurance being sought on this issue and I hope I will be forgiven for setting them out in some detail.
The figures relate to the period 1 March to 30 April and cover children taken into detention as members of family groups during that period. They do not include the 35 children who were already in detention on 29 February.
During these two months—that is, March and April—a total of 323 children were taken into detention. Fifty per cent—that is 164—were under the age of live. The average length of detention for the 323 children was four nights. In fact, most of the children spent considerably less time in detention. One hundred and twenty-eight—that is 40 per cent—were detained for just one night.Fifty-eight children—that is 18 per cent—were detained for only two nights. So, 186 children—in other words,58 per cent—were detained for no more than two nights. A further 74 children, making up 23 per cent of the total, were detained for between three and seven nights.
Before moving on to the very few children who remained in detention for more than seven nights, let me just stress this very important figure. Of the 323 children who were taken into detention with their families during March and April, 80 per cent of them—260—were detained for no more than seven days. Just to complete the picture: 47 children, or15 per cent, were detained for up to 14 nights; and16 children, just 5 per cent, were detained for more than 14 days. To sum up, 80 per cent of the children were detained for no more than a week, 15 per cent were detained for no more than two weeks and just 5 per cent for more than two weeks.

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Although no one would argue that detention is an ideal place for any child, I would hope that your Lordships will accept on the basis of these figures that children detained with their families are not spending long periods in detention, which is particularly relevant in terms of the proposal for a complicated system of independent assessment. There will always be exceptional cases, where individual families unfortunately may need to be detained for longer periods, but such cases are exactly that—exceptions. They are extremely small in number.
9.15 p.m.
As my noble friend Lady Scotland informed your Lordships in Committee, systems are now in place to ensure very close and frequent review of all detained family cases. The continued detention of any family beyond 28 days is now subject to ministerial level review and authorisation. Last week—the week beginning 10 May—ministerial authorisation for continued detention beyond 28 days was requested in respect of just one child. This week, the request to my honourable friend Des Browne, the Minister for immigration, was in respect of just two children.
We are also exploring the possibility of drawing up protocols with local social services to conduct a welfare assessment at day 21 of a child's detention, which would then feed into the system of ministerial authorisation at day 28. This work is being carried forward initially in relation to Dungavel but, if successful, would be extended to other centres.
Long-term detention of families is an extremely rare occurrence. It is truly exceptional, as the figures I have given show. Having established this crucial fact, I should like to provide reassurance to your Lordships on the facilities that are provided for children detained with their families. I recall that the noble Lord, Lord Avebury, suggested in Committee that we had failed to provide proper facilities for detained children. I must reject that suggestion and, again, I should like to provide some detail on this issue as it is important that our debate should focus on the reality rather than on some unfounded concerns.
At Tinsley House there are child carers on duty seven days a week between the hours of 8 a.m. and 6 p.m. All the needs of babies and young children are catered for; for example, cots, pushchairs and prams, baby baths, high chairs, bottles, formula milk and a variety of baby foods are all provided. There is a children's menu for older children.
Children have access to games, books, a playroom, games consoles, outdoor games such as swingball, scooters and bikes. There is a junior pool table and a designated and secure outdoor play area. The PE instructor leads children's games in the sports hall. Children receive gifts on their birthdays and at Christmas.
It is a similar story at Oakington. There is comprehensive provision of all those things that are needed by families with babies and young children. There is an outdoor playground for children, as well as outdoor sporting equipment. The crèche provides
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activities for children up to 12, including arts and crafts. For those children of school age at Oakington, I am pleased to be able to say that there is now education provision at the centre. Classes will be provided between 9 a.m. and noon and from 1.30 p.m. to 3.30 p.m. every weekday. Classes will run throughout the year except of course, and importantly, on public holidays.
Dungavel is no different. Here school-age children can attend classes between 9 a.m. and 5 p.m. on weekdays. Younger children can spend time at a creche that is open throughout the day and is staffed by fully qualified nursery nurses. There is a children's menu in the family dining room and all children are offered milk and biscuits at bedtime. There is an outdoor play area, and bikes, and there is dedicated gym time for families. Dungavel also has a family cinema slot once a week.
Children in detention are well cared for. Within the confines of detention, their needs are met. We care about those children. Staff at the centres, particularly in the family units, treat all detainees, including children, with great respect and humanity.
Each centre has in place robust policies and procedures for dealing with child protection issues. Links have been established with local area child protection committees, and local social services are always involved in any case of concern. Staff who deal with families are trained in child protection. There are excellent healthcare units at all removal centres, and the healthcare needs of adults and children are met in confidence and with care and respect.
I hope that noble Lords are reassured that the current provision for the care and welfare of children detained in immigration removal centres is of a very high standard. We will never be complacent about the issue, and we will ensure that we are aware of the need to maintain—and, where necessary, improve—the standard of care for children.
Introducing what appears to us to be a highly bureaucratised system of assessment and reviews would be unwieldy and unworkable. Our position is that we must have in mind not only the interests of the child but the need to maintain effective immigration control and to remove families who have no lawful basis for staying here. The proposed system would not allow a proper balance between those two needs to be struck. It would be likely to hinder proper immigration and asylum processes without at the same time providing any real benefit to the children concerned.
The noble Baroness, Lady Anelay, asked about the Government response to the HMIP recommendations. It is only right that I address that issue. We rejected the time limits suggested by HMIP but we accept the sentiment behind it; that is to say, detention should last for as short a period as possible. Also, we are actively looking to ensure that welfare needs in the detention of children are met, as I have made plain throughout my response.
I apologise for responding at great length, but it is only right that I place on the public record our approach to such matters. If perhaps the detail did not

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thrill everybody, I want to ensure that we move away from the notion that we provide a barren, arid range of minimal services, because we do not. We try to have a balanced view and approach to those matters. We realise that the circumstances of some of the children detained can be traumatic. We do not want to have children in detention for very long, but, where they are necessarily there, we want to ensure that that stay is properly conducted, that they have access to the right sort of things and that they can play, learn, grow and develop, however short a period they stay in those institutions. I have tried to demonstrate that that is exactly what we have done. The detail that I have put on the public record fairly reflects that.
The noble Lord, Lord Avebury, raised a specific case. It is not practice for Ministers to go into the details of an individual case, but it is probably right that I try to set the record straight. The individual—obviously, it would be improper to name him—to whom the noble Lord referred, entered the United Kingdom illegally on a false passport in early January 2003. He claimed asylum and said that he was born in 1988. At the time, the claim, if true, would have made him 14 years old.
The noble Lord questions the efficacy, or perhaps the accuracy, of the medical examination in the form of a dental assessment. However, the assessment has been undertaken in good faith, and it is believed that it firmly established that the individual was at least 18 years old. The individual's claim for asylum was refused at the end of February 2003, and his appeal against that decision was dismissed in October 2003. By the end of November, it was apparent that the individual had failed to keep in touch with either his representatives or the immigration authorities. In effect, he had absconded.
The individual came to light again just before Christmas, when he was arrested by the police for driving offences. He claimed at that point to be 15 years old, but the police were unconvinced that that was his real age. The individual was detained in order to effect removal. Two attempts have since been made to remove him, and on both occasions his disruptive behaviour has sadly meant that his removal has not been possible. He has been refused bail by an independent adjudicator. It is certainly worth noting that during his time in detention, this individual has not—I understand—sought to renew his claim to be a minor.
We could argue and dispute the facts of this case across the Dispatch Box. That would not be in anyone's best interests. I am trying to make the point that these cases are not always as they seem, and if my explanation has at least given some voice to that, it is worth reflecting on. I respect the proper attempt made by the noble Lord to raise issues of concern emerging from that case. That is fair enough, but I have described the situation as we understand it. It is only right that I try to put the record straight.
Lord Avebury: My Lords, I asked the noble Lord a perfectly simple question, and that was whether the cases that were submitted to the Secretary of State for his
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approval at 28-day intervals included people who claim to be under the age of 18, or are they only people who in the opinion of the Home Office are under the age of 18?
Lord Bassam of Brighton: My Lords, in those cases, in any event, we seek to establish the real age of the individual. That is what this case exemplifies.
Lord Avebury: My Lords, obviously, we will not reach a conclusion on this case across the Floor of the House. I am disappointed at the way in which the Minister has approached it. There are many cases where age is disputed. With great respect to the noble Lord, this determination of age by bone development is not an exact science. I refer him to a paper in your Lordships' Library on the use of X-rays for age determination in immigration control, which was published by my office on 5 June 1981. If the noble Lord refers to that paper, he will see that it was acknowledged by medical experts—and still is—that the process of determining chronological age from bone development is grossly inaccurate. The best that can be done is to come to within plus or minus two years of the actual age. It is important that where there is a dispute, as there is in this case, the Secretary of State should be asked to approve at the end of 28 days, as he would be with someone who is acknowledged to be a child. I am disappointed that the Minister did not give me a proper reply on that.
I am grateful for the statistics that the Minister has given, because they are useful, although I have one gripe about the way in which he presented them. It was as if this situation had existed since time immemorial. When I went to Oakington with Sub-Committee F just a couple of months ago, there were no educational facilities for children over 12. Now the noble Lord says that they have provided them between 9 a.m. and 12 noon every day, and I am delighted to hear that that is the case. I am glad to have on the record the various statistics that he gave about the length of detention of children. I cannot understand why this should not be a matter of regular reporting, instead of a one-off. He suggested that the exercise was undertaken for the purposes of this debate only. There were some statistics given in the quarterly Research Development Statistics for the past quarter, but they were nothing like as complete as those given by the noble Lord. I request him to consider whether it is possible to include that sort of analysis in the quarterly RDS statistics.
At the end of the remarks made by the noble Lord, I was left questioning why, if everything is so perfect, they did not agree to include detention centres in the process of assessment under the Children Bill. It would be perfectly normal for that to have been done, because as the noble Lord presents the picture that exists at the moment, the situation for children is as good in detention centres as it is in the other places that are subject to this provision in the Children Act. I do not think that we will take this matter much further this evening. I cannot promise not to return to the detention of children on Third Reading. For the time being, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Schedule 3 [Removal of Asylum Seeker to Safe Country]:
[Amendment No. 32 not moved.]
9.30 p.m.
Clause 21 [Deportation or removal: cooperation]:
Lord McNally Lord McNally moved Amendment No. 33:
Page 21, line 7, at beginning insert "Subject to subsection ( 1A),"
The noble Lord said: My Lords, noble Lords will be aware that Clause 21 allows the Home Secretary to require a person subject to criminal penalty at an undetermined stage in his claim to remain in the UK to assist and co-operate with any specified action designed to obtain travel documents to facilitate removal or deportation. That co-operation is defined in extremely broad terms, and failure to do any of the things specified is a criminal offence. The only defence under the clause is one of reasonable excuse.
The Government promote the clause as one that speeds up the removal or deportation of obstructive, undocumented individuals. We agree that, for the immigration and asylum system to work properly, removals must be effectively managed. However, the clause will expose people whose asylum claims remain unresolved to premature contact with the very authorities from whom they seek protection and criminalise them for a reluctance to co-operate. The main criticisms of the clause include the general dangers of contact with the authorities before a claim has been decided, the danger of premature prosecution and the lack of detailed guidance.
No guidance, draft or otherwise, has yet been provided; nor has the Minister acceded to requests to put that guidance on a statutory footing. We maintain that the new offence should not reach the statute book without a full, clear statement of the limitations on the specified action required and the circumstances in which it would be considered reasonable to refuse to co-operate.
Amendments Nos. 33 and 34 arise specifically from concerns about the Minister's response in Committee. The Home Secretary fully intends to commence the redocumentation process at a highly premature stage of the asylum determination process, subjecting applicants at the same time to criminal penalty. In effect, it will infect our refugee convention status determination with the process of criminal sanctions.
Amendment No. 35 deals specifically with breach of confidentiality and data protection. The Government have given no assurances on the concerns about data protection and confidentiality. We believe that there is every reason to respect the confidentiality of asylum seekers—even those whose claims have failed. It is a serious concern, and we hope that the Minister will have a response. I beg to move.
Lord Bassam of Brighton: My Lords, Amendments Nos. 33 and 34 would mean that we could not require—with the prospect of criminal sanction—a person to take certain steps with a view to obtaining a
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travel document if he or she had an outstanding asylum or human rights application or an outstanding appeal. The offence is all about encouraging people to co-operate with the process of redocumentation so that they may, if appropriate, be returned home. The offence is aimed at stopping people being obstructive, and only in the most extreme circumstances would we want to prosecute people. We would much prefer to remove them.
If a person fails to co-operate with the provision of the information or provides information that is false or incomplete, a travel document is unlikely to be issued, and the person may not be removed from the United Kingdom because of that—potentially indefinitely. So, there is a strong incentive for non-compliance—an incentive that we need to eliminate. We want to remove people with no basis to stay in the United Kingdom as soon as possible. In most cases, that would be after appeal rights had been exhausted, but in some cases removal is lawfully possible before that stage—for example, in the case of non-suspensive appeals procedures.
The provision refers to taking specified action only if the Secretary of State thinks that action will enable a travel document that will facilitate the person's removal from the United Kingdom to be obtained. This is made clear by subsection (1).
For those with asylum appeals outstanding, we believe that many of the listed actions are ones we can reasonably expect a person to take. It is rare for a person to be required to attend an interview at an embassy at this stage. If we require that, we do not inform the embassy of any asylum application that the person may have made. We also make it clear to the person that he is not required to answer any questions which relate to such an asylum application.
The offence provided for by Clause 21 is committed if a person fails to take action without a reasonable excuse. Thus, we would be unlikely to prosecute those who had a reasonable excuse for not undertaking actions required. That should ensure that someone who may have been requested to do something, which in his particular circumstances could be deemed as too restrictive, would not have committed the offence.
Restricting the offence in the way that is proposed in those two amendments would mean that some of its efficacy would be lost. As the House, which is now concentrating on noises outside, will know, obstructing redocumentation is a serious barrier to removal and undermines immigration control. We need robust measures to combat that.
In Committee, concerns were raised about how this offence, which will apply to those above the age of criminal responsibility, will affect unaccompanied children. I can assure the House that we would seek to remove an unaccompanied child only if we were confident that we had put in place reception arrangements and long-term care for that child in his or her country of nationality or we were returning the child to their family who had been traced.

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Unless one of the above circumstances applied, we would not try to remove that child. Therefore, no application for redocumentation would be made and the child would not be requested to take actions of the type that are covered by this offence. In cases where we are looking to remove, expecting the child to comply with the redocumentation process is not unreasonable. Guidance will contain specific reference to measures which will be used to ensure that no unreasonable demands are made of children.
Amendment No. 35 seeks to specify what should normally be considered a reasonable excuse for failure to co-operate with an interview or other information-gathering procedure. A consequence of this amendment would be to require a certain standard on the part of the authorities, in particular the consular authorities.
First and foremost, I do not consider this offence to be one for which it is appropriate to include a list of reasonable excuses. It is for the prosecution to prove that the person did not take the step and does not have a reasonable excuse for failing to do so. That is better left to the circumstances of each individual case and, ultimately, the courts. There are also more specific but still significant difficulties with the amendments. I hope that I have demonstrated by way of explanation the deficiency in Amendment No. 35.
Amendment No. 36 would require statutory guidance, subject to the affirmative order procedure, on the interpretation and implementation of the eight actions specified in subsection (2). We consider this amendment to be unnecessary. Although we will be publishing guidance on how Clause 21 is to be applied, we do not see the case for it to be on a statutory basis. Several of the actions listed are not ones for which detailed guidance, let alone detailed statutory guidance, is appropriate: for example, completing a form accurately and completely; or attending an interview and answering questions accurately and completely; or making an appointment.
Those are the sort of requirements that are susceptible to a common-sense assessment. Where a person is not complying with a process that we consider he should be complying with, our efforts will go first and foremost into persuading the person to comply. So there is no risk of someone being landed with a criminal charge from nowhere. We will make it clear to him what we expect to be done and the consequences of a failure to do so.
If a person is charged with this offence, it will be for the prosecution to prove in the usual way that he has failed to take the action required. The prosecuting authorities would need their own guidance for implementing this offence, as they do for other offences. We would have to be sure of our ground and would not be able to take an irrational view of what the requirements in subsection (2) amounted to.
I appreciate that I have given a lengthy explanation, which I think that the amendments deserved. Having heard what I have said, I hope that the noble Lord will feel able to withdraw his amendment.
Lord McNally: My Lords, Hansard is never able to give the flavour of the Minister's reply, which took
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place during some extraordinary noises off. The noble Lord kept a stiff upper lip throughout. Given how he ploughed on, clearly he is someone who the noble Earl, Lord Attlee, might keep in mind as a person good under fire.
I am grateful for the response. Again we are concerned about the guidance, which will be available only after the legislation has passed through the House. It is worrying because such assurances are neither specific nor binding and the consequences of inappropriate prosecution are not only a custodial sentence for the asylum applicant concerned, but may also entail breaches of the 1951 Geneva Convention on the part of the Government.
I note what the Minister has said and I shall consult further with those who are advising us. Meanwhile, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 34 to 36 not moved.]
Clause 24 [Immigration Services Commissioner: power of entry]:
Lord McNally Lord McNally moved Amendment No. 37:
Page 27, line 2, leave out "or a justice of the peace"
The noble Lord said: My Lords, I feel like one of those chaps who, when wandering past and seeing a disturbance, says, "Is this a private fight or can anyone join in?". Once again I have been asked to raise a matter by the Law Society of Scotland.
The society is far from satisfied with the reply given by the noble Baroness, Lady Scotland, when we discussed this in Committee. At that stage the noble Baroness said that the extension or retention of the right only to sheriffs applied to terrorism or firearms offences. The society has now returned to the fray, citing the Proceeds of Crime Act 2002, the Crime (International Co-operation) Act 2003, the Extradition Act 2003 and the Bail, Judicial Appointments (Scotland) Act 2000, all of which imply that this is not as suggested by the Minister during the last round. The society has therefore taken the fight to no less a person than Des Browne MP, at the Home Office, asking him to review the position in respect of the Asylum and Immigration (Treatment of Claimants, etc.) Bill. I hope that the letter to Des Browne has fared better than the letter sent by the Minister to the noble Baroness, Lady Anelay, in terms of arrival because that will mean that, by this time, the Minister will have prepared a full and detailed response to this further salvo from the society.
To be serious, it raises the important point that extending these powers beyond the level of a sheriff presents difficulties and problems north of the Border which need to be addressed. I beg to move.
The Duke of Montrose: My Lords, as the noble Lord, Lord McNally, pointed out, this subject has been brought back by the Law Society of Scotland. When something is raised by that society, it causes a stir among various noble Lords with Scottish interests. We have been talking about the issue. Given the hour, I am afraid that some of our more stalwart representatives have not

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managed to stay on. However, I have spoken to my noble friend Lady Carnegy of Lour and taken the views of the noble and learned Lord, Lord Cameron of Lochbroom.
The only addition I wish to make to the points made by the noble Lord, Lord McNally, is that experience has shown that the grant of a search warrant can be open to challenge, in particular nowadays on the ground that it might involve a breach of the Human Rights Act 1998. Perhaps the Minister can give us some further guidance on this point. This is an area where a professionally and legally qualified sheriff has a better chance of being aware of all the issues in deciding whether or not to grant a warrant. For example, there have been cases in recent years concerning breaches of the right to privacy under the Human Rights Act. Those cases have been raised in the High Court in Scotland.
9.45 p.m.
Lord Bassam of Brighton: My Lords, I am sorry. My attention was momentarily elsewhere. I was looking to see whether I had any more useful information to give to your Lordships on this issue but, no, I shall have to stick to my notes. The noble Duke may feel ill supported on this matter but we on these Benches are even more poorly supported at this time of day.
Clause 24 makes provision for a justice of the peace to issue a warrant to the Immigration Services Commissioner where he or she is satisfied of certain conditions set out in subsections (2) and (3). The warrant grants the commissioner a power of entry, search and seizure when investigating an offence under Section 91 of the 1999 Act. In applying the measure to Scotland, the clause makes provision for a sheriff or a justice of the peace to issue the warrant. The effect of the amendment, as described, would be to prevent justices of the peace from issuing warrants in Scotland, reserving the matter simply as the responsibility of sheriffs.
We have consulted colleagues from the Scottish Executive and the Office of the Advocate General and we maintain that sheriffs and justices of the peace should have the power to issue warrants of this kind. In saying that, we acknowledge that in some non-immigration legislation the power to issue warrants is, in Scotland, reserved only for sheriffs—we understand the point—but it is also true that there are non-immigration related powers of search and arrest where both sheriffs and justices are given the power to issue warrants. An example is paragraph 2 of Schedule 18 to the Environment Act 1995.
Justices are able to grant warrants for entry and even arrest in all other parts of immigration legislation. We think it is very important to maintain consistency in this area of law. We would not want to set a precedent in this area which may impair the operational effectiveness of the commissioner or of the Immigration Service as a whole.
We recognise that the position of justices of the peace in Scotland is complicated, with some having signing powers and others not, and that this may lead
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to confusion in the issuing of warrants. The commissioner has indicated that he would not object to being able to apply to sheriffs to obtain warrants in Scotland. On that basis we will obviously consider the point and we may—I go no further than this in giving an undertaking—return at Third Reading with a suitable amendment. I hope noble Lords will not press me any further because I cannot be absolute in making that commitment.
Lord McNally: My Lords, I am sure that the Law Society of Scotland and the Scots who are present at the moment will read Hansard with due care. As the Minister said, we will return to the matter at Third Reading. In the mean time, with some optimism, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 28 [Fees]:
Baroness Anelay of St Johns Baroness Anelay of St Johns moved Amendment No. 38:
Page 30, line 35, at end insert —
"( ) No fee shall be prescribed using the powers conferred in this section unless the Secretary of State had first given at least three months' notice of his intentions and consulted with bodies and individuals appearing to him to represent the interests of those affected."
The noble Baroness said: My Lords, hope springs eternal as I rise to move Amendment No. 38 and speak to Amendments Nos. 39 and 40.
I have brought back some of the amendments to Clause 28 that I tabled in Committee in response to concerns expressed by those in the education world that the Bill signals an intent to introduce charges for visa applications which will harm student recruitment, damage efforts to widen access to education and create further burdens for students who are already making a great financial contribution.
I shall tonight merely summarise the position—not least because it is 10 minutes to ten and also because at cols. 734 to 737 of Hansard of 27 April our debate is laid out in full. The summary of concerns can be put as follows: the international student market is worth an estimated £5 billion a year to the UK economy; international students contribute to income tax and national insurance contributions for part-time and vacation work; and there have been some negative experiences from the introduction in 2003 of immigration application charges which have failed to lead to an improved service. In short, it is felt that overcharging for students would be short sighted and would risk alienating the international student market. The fees for extensions to and variations of leave under the 1999 Act were introduced only last summer and the greatest complaint of all was at the lack of consultation.
Considerable support was expressed for my amendment in Committee. We heard in particular from those who are deeply experienced in the work of attracting students to our higher educational institutions. At the end of that debate—again, it was very late in the evening—the noble Baroness, Lady Scotland, offered to write a comprehensive letter to noble Lords. She said at

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col. 749 on 27 April that she had not been able to deal with all the issues as she would have wished because she felt under pressure of time.
That letter, as I said earlier this evening, was received only today, at lunchtime, so although I have been able to read it, I have not been able to put it in front of outside organisations such as the Association of Colleges, which has such a direct and important interest in this matter. Its interest is not financial but on behalf of the country in ensuring that the Prime Minister's objective of recruiting students can be met.
On Amendments Nos. 38 and 39 I shall give an interim view only. On Amendment No. 40 I can go further, because that is not a matter to which the outside organisations have had a direct contribution.
Amendment No. 38 would ensure that the Secretary of State cannot prescribe new fees unless he has consulted the relevant bodies beforehand. In Committee, the noble Baroness, Lady Scotland, gave some assurances with regard to the intention to consult in future on the level of fees to be charged, but she said that it was not necessary to put the requirement to consult on the face of the Bill. The feeling I have had since then is that it is important for the Government to be able to signal some definite plans about consultation—when and how it will be carried out. I am still not convinced by the Government's arguments, and I shall wait to hear from the Minister before I decide whether I need to refine Amendment No. 38 before Third Reading.
Amendment No. 39 would put the power to correct errors in the charging of fees on the face of the Bill. It would simply put into effect the commitment made by the noble and learned Lord the Lord Chancellor on 12 July 1999 at col. 49.
The noble Baroness, Lady Scotland, rejected the amendment on the basis that the Government could make ex gratia payments if they wished. I am still not convinced that this brings enough certainty and equity to the process.
Amendment No. 40 is on a different tack; it would put into effect the recommendation of the Select Committee on Delegated Powers and Regulatory Reform in paragraph 6 of its 12th report. It would make the relevant orders subject to the affirmative procedure. The noble Baroness rejected that recommendation on the basis that the Government believe that there are sufficient safeguards in the remainder of the clause. Subsequently, she wrote a response to the Delegated Powers and Regulatory Reform Committee, in which she repeated the arguments she put in Committee without, as far as I can see, any further weight of argument added to the original points.
The Government say that they do not believe that subjecting this power to the affirmative resolution procedure would be an effective use of parliamentary time. My Lords, I very much beg to differ. I am surprised and disappointed that Home Office Ministers have yet
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again rejected a recommendation of the Delegated Powers and Regulatory Reform Committee, whose advice I greatly value. I beg to move.
Lord McNally: My Lords, clearly my in-tray will be pretty full when all these letters arrive. In the mean time, I understand why the noble Baroness does not press ahead with Amendments Nos. 38 and 39. All I can say about Amendment No. 40 is that if she wishes to test the opinion of the House now or on Third Reading, we will be with her.
Lord Bassam of Brighton: My Lords, I am already quaking.
I am obviously grateful to the noble Baroness, Lady Anelay, for tabling these amendments and for the opportunity to comment further on the procedural matters contained within them. I should first deal with Amendments Nos. 38 and 40, about which we had had a full and constructive debate in Committee. We also had some mini debates during Question Time on the issues—as I know to my cost because I had to deal with the Questions. We particularly dealt with the way in which any fees levied under this clause might affect our ability to attract overseas students to the UK. The central allegation is that the extra cost of visa fees would act as a disincentive to those who might otherwise have sought to come here to access higher education, especially students from poorer countries. Noble Lords from all quarters of the House have been concerned that there might be a decrease.
The correspondence deals with that issue very well. However, it is worth placing it on the official record that the Prime Minister's challenging initiative set targets to increase the number of students in higher education by 50,000 and in further education by 25,000. We are a joined-up Government and the Home Office fully supports the Prime Minister's initiatives. Home Office officials are members of the steering group that oversees the strategic direction of the proposal's planning and implementation.
Members of your Lordships' House will be interested to know that there is absolutely no evidence to date to suggest that the introduction of charging has caused numbers of foreign students seeking to come to the United Kingdom to decrease. In fact, in a report released by UCAS on 29 April this year, entitled Latest figures for 2004 entry to UK higher education, there is an indication that applications by non-EU nationals for the forthcoming academic year received prior to March 2004 actually increased by 16.8 per cent in comparison with the same period in 2002–03. Therefore, quite the reverse appears to be the case. We continue to be successful in the overseas student market.
During the last debate, my noble friend Lady Scotland confirmed again—and, as I said, we are resolute in our commitment—that we would consult all interested parties, in accordance with Cabinet Office guidelines, before the introduction of any fees under this clause. As she said, and as I have said in the past, we were mistaken in our failure to consult fully before the introduction of new charges last year, but we are determined to learn

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lessons from that misplaced exercise. I know that noble Lords still have reservations about the way in which this power will be operated, and these were echoed by the Delegated Powers and Regulatory Reform Committee's comments that the power gives a "very wide discretion".
Although I understand the concerns, I can assure your Lordships that Clause 28 has been drafted with specific limits and safeguards in mind to ensure that it is operated in a fair and proportionate way that does not unduly disadvantage particular applicants or undermine our wider economic and social objectives. I know that the safeguards and assurances that we have given will not satisfy everyone and I am conscious that noble Lords still harbour concerns about the inappropriateness of the clause. To alleviate those concerns, we aim to introduce amendments at Third Reading that require a three-month consultation period and approval by both Houses of Parliament under the affirmative resolution procedure before any new fees can be introduced.
On Amendment No. 39, which we were able to discuss briefly during Committee, I wish to emphasise at the outset that we take this matter extremely seriously. I can assure anyone who has been inconvenienced by mistakes and administrative errors that we are absolutely committed to ensuring that we deliver a fast, efficient and effective service to all our customers, not least those who have paid a fee in relation to their applications. We have dedicated teams working hard to identify ways in which our procedures and case handling can be improved. There have been significant improvements. We currently meet our advertised service standard to process 70 per cent of all postal applications for leave to remain within three weeks of receiving them in IND. The Public Inquiry Office in Croydon is trialing an appointments system to ensure that customers do not have to queue for long periods before being seen. The Public Inquiry Office aims to process 100 per cent of applications on the same day. Sometimes that is not possible and the target is not met, but we have introduced a new screening process so that customers whose applications cannot be dealt with on the same day are advised of that before they pay the premium fee.
We recognise that in addition to ongoing improvements to the service and the limitation of mistakes and errors we must be able to deal with cases of maladministration. If and when they do occur, we must deal with them efficiently. We have made it clear in previous debates that we already have the power, and have used it, to make ex gratia payments in clear cases of maladministration. That exists independently of charging legislation, so there is no need to make express provision for it in Section 5 of the Immigration and Asylum Act 1999. All error cases reported are fully investigated; when there is a clear case of maladministration, we will rectify the case free of charge. We have successfully reduced delays in processing cases and are now working with UK visas to set up a coordinated system for rectifying errors, which will provide our customers with a central point of contact and a more streamlined service.
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I hope that I have been able to offer reassurance and hope that the noble Baroness will feel able to withdraw her amendments.
10 p.m.
Baroness Anelay of St Johns: My Lords, I am more than usually grateful to the Minister, who started by saying, in response to a comment from the noble Lord, Lord McNally, that he was already quaking at the thought of Third Reading. I know that he said it with a little irony in his voice—and rightly, because the gift that he has just given us means that he need quake no more.
I assure the Minister that there were two very significant issues here. First, outside organisations homed in very closely on the fact that they found it inconceivable that there should not be a clear plan for consultation in the Bill. I welcome the proposals that the Government have made today and look forward to seeing the amendments when they are introduced.
The other matter on which those organisations concentrated involved the importance of having proper parliamentary scrutiny of any future change in the level of fees. That is why I have taken so very seriously—as I always do, but even more particularly in this case—the recommendation of the Delegated Powers and Regulatory Reform Committee, which said that this should be done by affirmative rather than negative resolution. I am doubly glad that the Minister has confirmed that the Government are prepared to move on that issue, too.
That left another two issues. Although I am now almost sure that I shall not have to bring the amendments back, I shall need to consult the further education colleges and others. The Minister referred to the matter of ex gratia payments. I know that many still feel that measure to be inadequate, because of its uncertainty. I understand what the Minister says with regard to flexibility and will certainly consider the matter again and decide whether it needs to go any further.
With regard to the Minister's remark that higher charges have not proved the disincentive that it was anticipated could be the case, the argument that has been put to me this afternoon by those to whom I have been able to speak is that the people who have arrived here to take up places just after the summer 2003 announcement were already committed to coming to those courses. They were not in a position simply to give them up, having arranged their lives around it. They made the extra sacrifice. The concern that the universities and further education colleges have is that it will be a disincentive for future groups of students making decisions over the past winter about where they will go. It is the future application level that will be even more interesting, and which will either prove or disprove the Government's position.
However, the Minister is introducing amendments at Third Reading, and I suspect that those amendments will give outside organisations adequate opportunity to make any further representations that

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they wish to make. Therefore, it is most unlikely that, in withdrawing these amendments, I shall need to return to any at Third Reading. I beg leave to withdraw the amendment
Amendment, by leave, withdrawn
[Amendments Nos. 39 and 40 not moved.].
Baroness Anelay of St JohnsM Baroness Anelay of St JohnsM moved Amendment No. 41:
Page 30, line 35, at end insert —
"( ) Section 5 of the Immigration and Asylum Act 1999 (c. 33) (charges) shall be amended as follows.
( ) At the end of subsection (3)(b) insert—

"(c) the regulations must provide for no fee to be payable where—

(i) the application is for an extension of humanitarian protection, or discretionary leave, or for a variation of such leave, or of exceptional leave to remain; and

(ii) the applicant made an application for asylum in the United Kingdom in his own right while under the age of 18 years"."

The noble Baroness said: My Lords, we are still in Clause 28 but are approaching from a different angle. Amendment No. 41 has been brought to me by the Refugee Children's Consortium, which is concerned that Clause 27(2) makes reference to fees imposed under Section 5 of the Immigration and Asylum Act 1999. It says that there is a particular problem with the fees that are currently charged to children under the system. It is important to highlight them in the debate on this clause.
The problem is that unaccompanied minors who are refused recognition as refugees, but who are given leave to remain, are now being charged under Section 5 of the 1999 Act. They would thus face increased charges under Clause 28. However, the very fact that they are charged at all is considered problematic. It looks as though the Government have delayed too long in addressing this issue. Many of these young people were given leave until their 18th birthday. Where the leave award totalled less than one year, under Section 83 of the Nationality, Immigration and Asylum Act 2002 they will have had no opportunity to appeal against the refusal to recognise them as refugees, as this right only arises once leave has been granted for over 12 months.
The Refugee Children's Consortium says that under Section 5 of the 1999 Act, applications are to be refused if not accompanied by the fee. Many of the people who are in school or college are supported by social services. Some social service departments pay up, others do not or cannot. The consortium has seen cases in which legal representatives have refused to put in an application because there is no means of paying the fee or sometimes they have delayed putting the application in while seeking to find a means of getting the money. As one can imagine, the consequences of this can be devastating.
If an application is made before the leave expires, the young person continues to have all entitlements to support and benefit attendant on that leave until such time, if any, when the application is refused. But if the application for an extension of leave is made after the extant leave has expired, the young person is technically an overstayer at the time of the application and he or she is at risk of losing all support. I understand that the Home Office is well aware of the problem but the difficulty is how and when it is going resolve it. What action is coming from the Home Office, and when? I beg to move.
Lord McNally: My Lords, this time I have received the briefing from the Refugee Children's Consortium, and I thought that its position was put most adequately by the noble Baroness, Lady Anelay. I have nothing further to add other than to say this: as it seemed to work last time, if the noble Baroness divides the House on this matter, we will be with her. So will the Minister start quaking again, please?
Lord Hylton: My Lords, there are by now a very considerable number of people in this country quite legitimately, but having only exceptional leave to remain. They suffer from a number of disabilities which I hope the Government will seek to improve, taking into account the ones specified in Amendment No. 41.
Lord Bassam of Brighton: My Lords, I am grateful, as ever, for the tabling of this amendment. We have not yet had the chance during the Bill's passage to discuss how the fee regime affects unaccompanied asylum-seeking children in relation to this Clause.
Section 5 of the 1999 Act, which enables the Secretary of State by regulations to prescribe fees for certain immigration applications, including those for leave to remain in the United Kingdom, provides for exemptions to the leave to remain application fee in two ways. First, it provides that asylum claims and Article 3 ECHR claims can be made without charge. This reflects the special status of these claims for international protection and our international obligations.
During the passage of the 1999 Act, the then Home Office Minister Mike O'Brien stated that,
"no fee will be levied on applications for the right to remain by asylum seekers …our view that would not comply with the 1951 Convention …is debatable whether article 3 of the ECHR would allow a fee to be charged, but in any event, we have no intention of charging any such fee".
Secondly, the 1999 Act provides that regulations prescribing fees may provide for no fee to be payable in certain prescribed circumstances. This enables particular categories of applicants or applications to be exempted from the prescribed fee from time to time, as appropriate.
It would not be inconsistent with our international obligations to impose a charge on unaccompanied asylum seeking children or former unaccompanied asylum seeking children whose application for further claims is not based on asylum or Article 3.

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We do accept that children or those applicants who sought asylum whilst under the age of 18 who subsequently apply for further leave to remain in the United Kingdom are in some ways a special case. We have heard strong arguments for that during discussions on that point. But whether that justifies exempting them from charges even where no asylum or Article 3 ECHR claim is being made is another matter.
The majority of these applicants will not have qualified for asylum or Article 3 protection and in most cases will have been granted leave only as a result of our policy not to return unaccompanied asylum seeking children. If, having turned 18, they then apply for further leave to remain, there is a strong case for saying that they should be treated in the same way as any other adult who wishes to remain in the United Kingdom, and be charged accordingly.
We do not accept that the fee is prohibitive. Such applicants who apply for further leave to remain whilst their current leave is still valid—as they are expected to—are entitled to work in the United Kingdom without restriction.
Nevertheless, we are aware that some of these applicants may be in receipt of benefits and support from local authorities under the Children (Leaving Care) Act 2000 and may find it difficult to pay the fee themselves and may in turn look to the local authority to do so.
In view of this we are currently considering whether it would be appropriate to exempt such applications under the regulations. We have reached no final view on that issue but I would expect us to do so in the near future and be able to report back to the House on this matter at Third Reading.
In any case, we do not believe that it is necessary or appropriate to provide for exempt categories of applicants in or through primary legislation. As I have indicated, we already have the power to provide for exemptions by regulations made under Section 5. This provides us with the necessary flexibility to respond to changing circumstances rather than having to attempt to classify exemptions on the face of the Bill. I suggest that that is the more appropriate way to do so, should we feel such exemptions are necessary. The amendment would take away this flexibility by requiring the regulations to contain this exemption.
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I would not normally give as lengthy an explanation but I wanted to set it out fairly on the record. I also wanted to try to demonstrate that, while we were not entirely convinced of the case, we saw some merit in the argument and would have a period of reflection on that prior to Third Reading. I hope that response is useful and that I have answered the points that were raised.
Baroness Anelay of St Johns: My Lords, I am grateful to the Minister for taking us further down the road. That has been very much the tenor of our debates today. We have been able to develop some of the more difficult issues that we addressed in Committee in a constructive way. I am grateful to the Minister for saying that he will reflect further on these matters.
There are special considerations with regard to people who are minors when they are granted leave. They could still be minors when that runs out and they have to apply again, so those are difficult circumstances for them. The greatest concern is that at the moment the Home Office is providing a stopgap measure so that when an application is received without the fee attached it is not processed to avoid giving a mandatory refusal. People are rather in limbo. I realise that the Home Office is trying to be helpful but it means that the whole question is not resolved.
I appreciate what the noble Lord said about the Home Office not being completely convinced about providing exceptions by amending the immigration leave to remain fees regulations, but it is helpful that the Government are prepared to reflect further. I shall look keenly to see whether the Government have tabled any amendments, and perhaps a week before Third Reading get ready to table mine so that if we complete Report on 7 June, I can resubmit this amendment so that at least I have a holding position. At this stage, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Evans of Temple Guiting: My Lords, I beg to move that further consideration on Report be now adjourned.
Moved accordingly, and, on Question, Motion agreed to.
House adjourned at fifteen minutes past ten o'clock.