Sitting of 18 October 1999

Preamble
The House met at half-past two of the clock: The DEPUTY CHAIRMAN OF COMMITTEES on the Woolsack.
Prayers—read by the Lord Bishop of Lichfield.

Baroness Gale
Anita Gale, having been created Baroness Gale, of Blaenrhondda in the County of Mid Glamorgan, for life— Was, in her robes, introduced between the Baroness Gould of Potternewton and the Lord Davies of Coity.
Lord Waldegrave of North Hill
The Right Honourable William Arthur Waldegrave, having been created Baron Waldegrave of North Hill, of Chewton Mendip in the County of Somerset, for life—Was, in his robes, introduced between the Lord Hussey of North Bradley and the Lord Butler of Brockwell.

Working Time Directive and HM Armed Forces
2.49 p.m.
Earl Attlee Earl Attlee asked her Majesty's Government:
How the working time directive will affect Her Majesty's armed forces.
The Minister of State, Ministry of Defence (Baroness Symons of Vernham Dean): My Lords, the working time directive was incorporated into domestic legislation as the Working Time Regulations on 1st October 1998.
The provisions of the regulations are applicable to the armed forces, but the services are excluded from many of the provisions under Regulations 18 and 25 which implement Article 2.2 of the framework directive. Those exclusions allow significant flexibility for the armed forces to safeguard operational effectiveness and training.
Earl Attlee: My Lords, I am grateful to the Minister for her reply. I remind the House that I have an interest as a serving officer in the TA. I understand that the DTI has told the MoD that the working time directive will apply to the TA. Will that not make the TA unworkable?
Baroness Symons of Vernham Dean: My Lords, the important factor to remember is that not all the service that the Reserve Forces—they include the Territorial Army—render is covered because it is exempted under Regulation 18. Some of the duties—they would be the same for the Army—would cover operations.
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However, as regards the Territorial Army, exercises simulating operational conditions and operational training are completely exempted in the first place.
We are considering advice to be promulgated to reservists to identify the provisions which affect them. We hope to be able to promulgate that advice by the end of the year.
Lord Campbell of Croy: My Lords, as regards those parts of the service which are not exempted, will members of the Regular Army or the Territorial Army be expected to sign certificates of exemption in the way that civil servants are expected to do if they are required to work longer hours?
Baroness Symons of Vernham Dean: My Lords, no. your Lordship will remember that I mentioned two regulations. Regulation 18 refers to operational requirements. Regulation 25 exempts the Ministry of Defence from keeping records of the time worked by members of the armed forces which would be applicable in the civilian part of the Ministry of Defence.
Lord Burnham: My Lords, perhaps I may welcome the Minister to the Dispatch Box on her first appearance wearing this particular hat. From the way in which she conducted semi-military affairs in Kosovo, I have no doubt that the join will be seamless.
In the light of her reply, will she tell the House the undoubted major cost implications on training? The time required for training is likely to be extended by 20 to 30 per cent. Who will pay for that? Will it come out of the defence budget?
Baroness Symons of Vernham Dean: My Lords, I thank the noble Lord, Lord Burnham, for his kind remarks. I assume that he is talking about additional costs which will flow from the working time directive. Operating the regulations for the Armed Forces has not in any discernible way contributed to costs in the way that the noble Lord suggests it might. We have of course been keeping a firm eye on the issue across all three armed services and all three are reporting that they see no operational difficulties. None has reported any additional costings.
Lord Marsh: My Lords, if any of the armed services found any difficulties, would we be able to do anything about it?
Baroness Symons of Vernham Dean: My Lords, I am sure that we would be able to do something about it because the Ministry of Defence would have to ensure that money was available in order to keep the law of the land. However, I hope that the noble Lord, Lord Marsh, is reassured by the fact that we have looked specifically at all three armed services and no such difficulties have been reported. Of course, the regulations have been in operation only since October last year and I am sure that we will continue to keep a very firm eye on what is happening.

Hereditary Peers
2.54 p.m.
Baroness Park of Monmouthasked the Leader of the House:
What steps are to be taken and when to determine what privileges and facilities, if any, are to be accorded by the House to those hereditary peers who are to lose their right to speak, vote and enjoy the privileges hitherto available to them as Members of this House.
The Lord Privy Seal (Baroness Jay of Paddington): My Lords, following the last meeting of the House's Offices Committee in July, the usual channels, in this case including the Cross Benchers, were charged with exploring this issue. They decided to consult the Library and Computers and Refreshment sub-committees. The results of those consultations will be discussed at the next meeting of the Offices Committee at the end of this month. I understand that the usual channels consider that the present House cannot make decisions about any arrangements which might affect the new House. That would certainly be the view of the Government.
Baroness Park on Monmouth: My Lords, I thank the noble Baroness for that reply. However, may I urge the Government and the committees concerned to reconsider? I do so first because it will be vital that the servants of the House—the Doorkeepers, the Attendants and so forth—should have clear briefing as to what is to happen once the change has been made. Secondly, I suggest that it is part of the honour of this House that it should be seen to treat honourably and not shabbily those who are leaving and who have served it and the country well. It is all very well to say that the matter might be considered in the next Session, but by then the time will have come and gone. I urge the Government to reconsider.
Furthermore, will the noble Baroness use this opportunity to correct press reports of remarks allegedly made by her at the Labour Party conference which, if they were truly reported—and they concern this matter—were, to say the least, graceless? I feel sure that as Leader of the whole House, she would never have spoken in that way. Will she now correct those reports?
Baroness Jay of Paddington: My Lords, I am afraid that in response to the noble Baroness's final point, I cannot correct what I do not know. As I have no personal recollection of referring to the Offices Committee, or to any matter which would be within its provenance, at the Labour Party conference, perhaps the noble Baroness has misread a press report or is incorrect in her assumptions.
Of course it is appropriate that the officers of this committee and people she refers to as "Doorkeepers and so forth" should be properly briefed on their responsibilities. I am sure that the people responsible for that—not myself, of course—will undertake to do so.
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As regards the relevance of the Offices Committee to the decision, I reiterate what I said in my original Answer. This is a matter for the Offices Committee and the whole House. I understand, however, that the agreement is that the decision is for the next House.
The Earl of Listowel: My Lords, will the noble Baroness recognise the relevance of Hamlet's words of his father:
"Die two months ago, and not forgotten yet? Then there's hope a great man's memory may outlive his life half a year";
or King Lear's words to his daughters:
"How sharper than a serpent's tooth it is To have a thankless child!"?
Baroness Jay of Paddington: My Lords, no, I do not recognise the relevance of that. I am sure that individual hereditary Peers who have given great service to this House, which has been acknowledged, would not wish to be remembered necessarily in terms of their club privileges in this House. Their contributions have been substantial and not relevant to those matters.
Lord Dormand of Easington: My Lords, will my noble friend confirm that at no time before the House considered the Lords reform Bill and during the passage of that Bill did the Government commit themselves to anything of the nature contained in the Question? Indeed, a number of amendments to the Bill were considered and rejected, if not by this House, certainly by the other place. Does my noble friend not consider that to give such a privilege to people who are not Members of Parliament that is, not Members of this House—would be ludicrous and make a mockery of this House?
Baroness Jay of Paddington: My Lords, as I am sure my noble friend would agree, we spent many hours, during both Committee and Report stages of the Bill in this House, on matters which, as the Government constantly said in replying to amendments, were matters for the House and for its committees rather than matters for an Act of Parliament. We have consistently taken that position on the question of the relevance of club privileges to membership of this House. I am sure that my noble friend will not be surprised to hear me reiterate the point I made many times during our debates on the Bill that this is indeed a legislature, not a club.
Lord Hooson: My Lords, as a point of information, am I not correct in supposing that ex-Members of another place enjoy no privileges once they have lost their membership, save unless they become Members of this House?
Baroness Jay of Paddington: My Lords, that is not quite correct. The position is that Members of another place of at least 15 years' standing have certain limited

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privileges. Those privileges do not include the ability to entertain guests or to use any other related facilities of the House.
Baroness Young: My Lords, for many people this is a serious issue. When the Offices Committee comes to report to the House, will the noble Baroness consider the feelings of many Peers who have served in the House and whose families have served in the House for a long time and who have given distinguished service to the country? That cannot be equated with having some kind of club principle or privilege. No one, so far as I know, thinks of the House of Lords as a club, but there are many organisations which give to former members certain recognised privileges on leaving. If that principle were not considered properly, it would lead 10 a great deal of discredit for the whole House of Lords.
Baroness Jay of Paddington: My Lords, I have no doubt that the principle will be considered properly. In response to the noble Baroness, I reiterate my remarks to the noble Earl, Lord Listowel. Many individual hereditary Peers will be remembered for their great contributions to this House and to previous Houses. Personally, I do not see that that should necessarily be associated with use of the cafeteria.
Lord Mackay of Ardbrecknish: My Lords, I agree with the noble Baroness the Leader of the House that the decisions must be taken by the new House. However, does she agree that it is right that the various committees of the present House should at least look at the position so that the new House will be able to reach a decision quickly after it comes into being? Does she further agree that it would be sympathetic and in keeping with the way in which the other place treats ex-colleagues if, when the new House comes about, our ex-colleagues were treated with a great deal more sympathy than—dare I say—the noble Baroness sometimes exhibits?
Baroness Jay of Paddington: My Lords, I challenge the noble Lord to identify anything in my remarks today which could not be described as sympathetic. The point I am making is that that is irrelevant to the present House. As I said in my original reply to the noble Baroness, Lady Park, the matter has been considered by the relevant committees, is being considered—and, in response to the noble Baroness—has, in my view, been properly considered. The next meeting of the Offices Committee, I understand, will be at the end of the month, but although it may make recommendations to this House, it is not empowered to make decisions either for this House or the next.
Lord Monson: My Lords, will the noble Baroness confirm that, contrary to recent press allegations, the taxpayer does not subsidise food and, drink in this House, whether consumed by hereditary Peers or life Peers?
Baroness Jay of Paddington: My Lords, the strictly accurate description is that the premises here are
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subsidised. Taking the restaurant as an example, we all enjoy the benefit of eating in a subsidised place which is very different, for example, from buying lunch in Victoria Street. To that extent it is subsidised.
Lord Colwyn: My Lords, I too am tempted to give a reply to that last question. Will the noble Baroness please confirm that the role of the sub-committee, despite the leaking of our conclusions to the Daily Telegraph, is purely advisory in providing options for consideration by the Offices Committee and later by the whole House?
Baroness Jay of Paddington: Yes, my Lords. I am sorry if I was unclear in my response to earlier questions, notably the question of the noble Lord, Lord Mackay of Ardbrecknish. Of course that is indeed true.
Lord Montague of Oxford: My Lords, is there not a risk that the country at large, with the benefit of a media which are not always helpful, might say that this House is merely a club and make mischief by suggesting that if hereditaries continue to possess club membership it is nothing more than a gigantic old boys' network at work? On the one hand, they have gone; on the other, they are still there.
Baroness Jay of Paddington: My Lords, I should always hesitate to prejudge any position taken by the media. However, it is interesting to see that that was the position taken by the editorial in the Daily Telegraph at the end of last week.

Rail Investment
3.6 p.m.
Lord Berkeley Lord Berkeley asked her Majesty's Government:
Whether, now that construction of the motorway network has been completed at a capital cost of about £80 billion over 20 years, similar investment is required to modernise the rail infrastructure.
The Minister of State, Department of the Environment, Transport and the Regions (Lord Macdonald of Tradeston): My Lords, we have made it clear that we wish to see much higher levels of rail investment. We are confident that in the next 10 years we shall see the largest investment in the railways for a long time.
Lord Berkeley: My Lords, I am grateful to my noble friend for that answer. I should declare an interest as chairman of the Rail Freight Group. Does he agree that the £6 billion which Rail track has committed of its own money over 10 years of investment is nothing like enough? Under the principle of creating a sustainable transport network, will the Government consider that

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some of the revenue coming out of the planned motorway tolls and other road charges might be allocated to creating a modern rail network?
Lord Macdonald of Tradeston: My Lords, Railtrack's plans for investment are under review by the Rail Regulator. That review should be concluded by next summer. Rail investment has totalled over £1 billion per year over the past decade. Last year it totalled £1.7 billion. The indications are that this year it will exceed £2 billion. We are looking at a great increase in rail freight grants, which will rise to around £50 million available this year.
On the question of whether any road-charging moneys might be invested in rail freight, I cannot presume on legislation which may be coming before the House. However, given the precedent being set in London, the money raised locally is hypothecated to be spent locally.
Lord Islwyn: My Lords, does the Minister appreciate that, whereas all noble Lords might agree that £80 billion is an awful lot of money, it is nevertheless only a small proportion of the amount that the motorist has paid and is paying over the years in taxation? Does he further appreciate that £80 billion, measured per capita or as a share of gross domestic product, is far less than is being spent in Germany, Italy, France or the Netherlands? That is why we have a poorer service here.
Lord Macdonald of Tradeston: My Lords, the £70 billion which as I understand it was spent over the lifetime of the previous administrations resulted in the end in traffic being kept moving, but for every mile of road there were 100 cars at the end of that period for every 70 cars which had been there at the beginning.
Therefore, I believe that the conclusion of our analysis, and indeed implicit in the Green Paper produced by the previous administration, is that we cannot build our way out of congestion any longer through investment in new roads. We believe that the integrated transport policy which we are putting forward will allow us to keep Britain moving and to ensure also that a proper balance is maintained between public transport on the road, on rail and indeed on freight.
Lord Brabazon of Tara: My Lords, does the Minister agree with what is said in the Question: that the construction of the motorway network has been completed? Does that mean that we shall not have any more motorways built or further improvements to the motorway system?
Will the Minister say that the Question is not comparing like with like because the motorway network was started from scratch whereas the rail infrastructure consists mainly of improvement to existing rails? No one would believe that a completely new rail network should be built.
Lord Macdonald of Tradeston: My Lords, I believe that the presumption that the motorway network was
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largely complete underpinned the Green Paper on transport produced by the previous administration and was one on which we built in our White Paper. There still is a scheme to build a motorway north of Birmingham parallel to the M.6. That, of course, would be financed privately. However, we have introduced a targeted programme of improvement which consists of 37 schemes, more than half of which seek primarily to promote safety and healthier communities. We continue to spend very large sums on roads. They play a major role in the UK's transport network. We believe that the agreed programme carefully targets specific problems, with the majority of our schemes being bypasses designed to improve health and safety in the communities who have been bypassed.
Baroness Thomas of Walliswood: My Lords, I wonder whether the noble Lord will confirm that the French, with years of levels of investment in rail superior to those obtaining in this country, are still investing more than twice as much as we are on an annual basis? Secondly, is he satisfied with the proportion of our investment in rail which goes into capital projects intended for that purpose—projects with a life span of at least 20 years—rather than routine maintenance or the improvement of rail stations?
Lord Macdonald of Tradeston: My Lords, we have set up a strategic rail authority which also envisages, as part of its objective, the enhancement of our railway networks. The authority will promote rail use and plan the strategic development of that network. As I have said, we anticipate that the investment in rail will be the greatest wave of investment that we have seen, perhaps for the past century. Therefore, we hope that under the guidance of the strategic rail authority we shall see a considerable development in the scope, safety and service of the railways.
Lord Faulkner of Worcester: My Lords, will my noble friend agree that one of the most regrettable consequences of the fragmentation of the railway in recent years has been the abandonment of the network approach to railway electrification; and had the railway industry's proposals been accepted by the previous administration, we would now have electrified main lines to the Midlands, to the west of England and to South Wales?
Lord Macdonald of Tradeston: My Lords, I repeat again that the question raised by my noble friend is exactly the kind of question that will be addressed by the strategic rail authority. We hope to empower the authority—at present in its shadow form—to promote rail use, to plan the strategic development of the network and to ensure that the railway is properly integrated with other forms of transport. With the legislation that is in prospect, I look forward to seeing the strategic rail authority address such questions.
Lord Mackay of Ardbrecknish: My Lords, do I take it from the replies of the Minister on the motorway

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system that the Government have no intentions of building a motorway to link the northern end of the M.6 with the southern end of the M.74?
Lord Macdonald of Tradeston: My Lords, at present I know of no particular plans for that to be built.

Badgers
3.13 p.m.
Baroness Sharples Baroness Sharples asked her Majesty's Government:
What are their plans to control the rapid population growth of badgers beyond the schemes proposed and in operation.
The Minister of State, Ministry of Agriculture, Fisheries and Food (Baroness Hayman): My Lords, there are no plans to control the growth of badger numbers. However, there is a culling trial in operation which is designed to establish the extent to which badgers contribute to the problem of bovine TB in cattle.
Baroness Sharples: My Lords, I thank the noble Baroness for that reply. I have in my 23 acres of woodland 10 badger sets, which means at least five badgers per set. I also have 20 acres of grazing which have been really ruined by the badgers. What can I do about that problem? The land is let to organic farmers and I do not believe that they will return next year.
Baroness Hayman: My Lords, because of the protection which has been afforded to badgers, in order to disturb sets or to remove badgers a landowner needs to obtain a licence from the Ministry of Agriculture, Fisheries and Food or the appropriate conservancy council. I suggest that the noble Baroness contacts the regional service centre of the ministry which will assess whether the damage being caused is such as to justify the issue of a licence.
Lord Hardy of Wath: My Lords, will my noble friend confirm that in by far the greater part of the United Kingdom badgers present no problem whatever, and that where bovine tuberculosis is a problem, that is being dealt with? Will my noble friend confirm also that the reported rapid increase in the population of badgers may be much greater in appearance than in reality, largely because of the high death toll of badgers on the roads and motorways of the United Kingdom? Does she agree that by and large the animal is beneficial rather than harmful?
Baroness Hayman: Well, my Lords, there are differences of view in this area. Certainly we should not underestimate the problem of bovine TB and the fact that last year it cost the lives of 6,000 cows. I believe that my noble friend is right to say that no one has any interest in attacking the badger population for the sake of it. However, there is considerable concern
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at the rise in bovine TB. I understand that it is estimated that the badger population has increased by about 25 per cent over the past 10 years or so.
The Earl of Onslow: My Lords, will the noble Baroness tell me, first, where the hairs for my shaving brush come from? Secondly, is she aware that the Argyll and Sutherland Highlanders' sporran has a badger's head on it? When stationed in Ulster, they went to the South of Ireland to kill badgers to ensure that they had proper badgers' heads on their sporrans. Will the Minister explain how this arose?
Baroness Hayman: My Lords, I am glad to say that I have no intimate knowledge of the noble Earl's shaving brush and, therefore, I am not able to answer that question.
Viscount Simon: My Lords, is my noble friend aware of the fairly recent press reports which drew attention to the fact that one gentleman sought to avoid the misuse of his land by feeding the badgers excessive amounts of food so that they went somewhere else?
Baroness Hayman: No, my Lords. I am not aware of those press reports. However, I say in all seriousness to the House that I am aware of the concern and the damage done by bovine TB to farmers' livelihoods and to their cattle. I believe that it is in everyone's interests that the scientific trials currently being undertaken are allowed to be completed so that, once and for all, we can have a sound basis for policies in this area.
Baroness Trumpington: My Lords, is the Minister aware that I applaud totally what she has just said with regard to TB? However, is she aware that horses and badgers do not go together, and that many horse owners are unable to graze their animals because of the large holes and tunnels very near to the surface which are caused by badgers and which may cause serious leg injury or death to horses?
Baroness Hayman: My Lords, badger sets can damage property; for example, waterworks and railway embankments. As I said earlier, that is why it is possible to apply for a licence to disturb or remove a set. That, I believe, is not in dispute. The area in which there is not agreement relates to the potential or possible link between badgers and bovine TB. That is why we believe it is important that the trials are allowed to continue.
Baroness Strange: My Lords, is the Minister aware that, although badgers are terribly sweet and one does not want anyone to do anything about them, they are very addicted to strawberries? I have a friend in Dorset whose strawberries are constantly being eaten by badgers.
Baroness Hayman: My Lords, I was not: aware of the particular predilection of badgers for strawberries, but I find that one always learns something at the Dispatch Box of your Lordships' House.
Lord Luke: My Lords, I know nothing about strawberries or sporrans. However, is it true that

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bovine TB has now been identified in Wiltshire? If so, what are the Government doing about it? What recent progress has been made in discovering a vaccine for bovine TB both for cattle and for badgers?
Baroness Hayman: My Lords, on the second part of the question raised by the noble Lord, Lord Luke, he is right to direct our attention to the possibility of a vaccine being a way forward. I understand that current research is directed at a vaccine for cattle; but a vaccine for other wildlife, including badgers, is not outwith that research. It is a long-scale programme that does not offer an immediate response.
On the Wiltshire issue, we have now enrolled in the Krebs trial to which I referred five of the 10 areas recommended by Sir John Bourne and the Independent Scientific Group. Concern is expressed that we are seeing bovine TB in areas of the country that have not experienced it before. However, there is no unanimity about the cause of badger infection or the role that infected badgers play in this matter. For that reason we need to get our facts straight.

Immigration and Asylum Bill
3.20 p.m.
The Parliamentary Under-Secretary of State, Home Office (Lord Bassam of Brighton): My Lords, I beg to move that the Report be now received.
Moved, That the Report be now received.—(Lord Bassam of Brighton.)
Baroness Williams of Crosby: My Lords—
Lord Cope of Berkeley: My Lords, as we launch into the Report stage of this Bill, I want to draw your Lordships' attention to two matters.
First, a large number of government amendments were handed in very late. Last week about 250 government amendments were tabled and well over half were tabled for Thursday's or Friday's Order Paper. This morning I saw many more on the supplementary list.
I say about 250 because some amendments that were handed in last week have already been withdrawn and replaced by other government amendments. Such a situation causes noble Lords—and those outside the House—great difficulty in looking properly at the government amendments.
I realise that some of the amendments reflect the Government's response, in whole or in part, to points raised in Committee from all parts of the House. We shall have to see whether the amendments respond in whole or in part to the points that were raised in Committee, and that will require careful study.
These amendments include the removal of three clauses that were previously in the Bill, and the inclusion of nine totally new clauses and one new schedule. The result is that in response several late amendments have been tabled by me and other
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Members of your Lordships' House. Another result is that Third Reading will have to pick up some of the points that have not come to light in time for them to be raised on Report.
My second point is that these new amendments contain at least 16 new powers to make orders or regulations to give the Secretary of State powers. None of those has been examined—as always happens when Bills first appear in this House—by the Select Committee on Delegated Powers and Deregulation. Therefore, I have written to the Chairman of that committee, drawing his attention to those powers and to the number and the importance of them—as will become apparent when we consider the detail on Report. I suggested that his committee may want to consider the amendments that have been tabled since the 22nd Report, which dealt with the Bill, was produced and to see whether it has any points that it wants to draw to our attention.
Of course, the committee could not consider the amendments—no one would expect it to—in time for the Report stage today, or when the Report stage is continued on Wednesday. I do not know whether the Report stage will be completed on Wednesday. There may be time for additional work, but much of what the committee may want to say to us cannot be considered except in time for Third Reading.
All that has made it extremely difficult to consider this Bill. The lateness in tabling these amendments demonstrates that the Government cannot have worked hard in the early part of the Recess to prepare them, otherwise they would all have been tabled on Monday, when no one would have complained. This matter also demonstrates that the Bill was not well drafted in the first place. I believe that point will emerge from our debates during the course of today and in subsequent proceedings.
Baroness Williams of Crosby: My Lords, I apologise to the noble Lord, Lord Cope. I was not aware that he was about to make such a point. I had informed the Government of my intention to do so.
I share completely the objection expressed by the noble Lord, Lord Cope of Berkeley. We have had innumerable amendments and major clauses—as the noble Lord has pointed out—tabled over a very short period of time.
I had imagined that such a situation would occur. Towards the end of July there were two major judgments—one by Lord Justice Simon Brown and one by Lord Justice Woolf—both of which directly affected the central tenets of the Bill. I was concerned that the Government may not have time to consider those judgments and redraft the Bill accordingly, so on 5th August I wrote to the Home Secretary. I stated:
"These major consequences of the judgements for the Bill cannot be satisfactorily examined and debated within a few days of amendments being tabled, since consultation will be necessary with interested parties. I would urge that the Report Stage be postponed to allow proper consideration of the substantial changes to the Bill that now require to be made".

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No such delays were allowed before the Report stage. Consequently, we find ourselves dealing with major consequences with virtually no notice at all.
On the morning that I saw the last group of major government amendments, which was the morning of the debate of the most reverend Primate in this House, I was replying on behalf of my party to that debate and I found myself having to draft amendments as I sat in the House listening to the most reverend Primate. I do not believe that that is a satisfactory way in which to run the House.
I wholly agree with what the noble Lord, Lord Cope of Berkeley, has said about the Select Committee on Delegated Powers and Deregulation. Some of the new clauses—in particular the new clause after Clause 11, new Clause 25 and others— have deep constitutional implications. They lead to legislation on major issues being covered by secondary legislation, not by primary legislation. On that matter many noble Lords would have welcomed the views of the Select Committee, which are intended to assist the House. The Select Committee said that it considered it necessary, if there is to be adequate Parliamentary control over the exercise of substantial powers conferred by the Bill, that careful consideration is given to the issue of secondary legislation.
For all those reasons, I believe that the Bill is in considerable trouble. I share the view of the noble Lord, Lord Cope of Berkeley, and regret that we shall have to return to the matter on Third Reading. We do not want to do that, but we have no option as this Bill will affect the civil liberties and the lives of a great many people. Therefore, I strongly endorse what the noble Lord has said about the unsatisfactory nature of the handling of the Bill and the fact that this means that as a revising Chamber, with the best will in the world—I have reason to thank the Government for their willingness to listen to many points that we have made—we cannot fulfil the functions we are charged with fulfilling if we do not have more time in which to consider these major issues.
Lord Dholakia: My Lords, I want to speak in support of the noble Lord, Lord Cope of Berkeley, and my noble friend Lady Williams. During the Second Reading of the Immigration and Asylum Bill I raised the issue of the substantial number of provisions in the Bill that would require secondary legislation. I believe that that was backed by the Select Committee on Delegated Powers and Deregulation. We now find ourselves in a similar situation.
A large number of amendments have been introduced, some of which reached me only this morning. I understand they were not available earlier. I am grateful to the new Minister, who arranged everything last Friday, but even then some of us were not aware of the amendments proposed. Now we have these amendments which have implications for the Delegated Powers and Deregulation Committee.
I want to stress the need for this House to have the opportunity to promote legislation which has the co-operation of all sides of the House and for legislation
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not simply to be pushed forward on the basis of the Government's programme. Let me give an example of my anxiety. It seems extraordinary that the definition of "class" in the Bill, in relation to family visitors, is being given a new statutory right of appeal. We welcome that. Yet it does not appear on the face of the Bill; it has to await secondary legislation.
Rights of appeal should not be subject to such changes without full scrutiny. The danger is—it has happened in the past—that if refused family visitors are too successful, the definition may be changed by the Government and that alters the whole purpose of the Bill. I hope that the new Minister will take that into account and that in the course of Third Reading we have the views of the House of Lords Delegated Powers and Deregulation Committee.
3.30 p.m.
Baroness Gardner of Parkes: My Lords, it seems extraordinary that we should be having a general debate whereas I thought we were going to get on with the business.
The Minister of State, Cabinet Office (Lord Falconer of Thoroton): My Lords, perhaps I may answer rather than my noble friend Lord Bassam because I was involved in the Bill at the previous stage.
I apologise for the number of amendments which have come so late. There are a number of reasons for that. First, a number have been caused by decisions in court cases and we cannot dictate the time at which court cases come up. Secondly, a number of them result from consultation papers issued during the summer. Thirdly, it is a long and complex Bill. Those are the problems. I accept that they do not explain the huge volume of amendments which came late; I wish they had come earlier. I apologise to the House for that.
The point in relation to the Delegated Powers and Deregulation Committee is a point of substance which must be addressed. I suggest we address it in this way. Any provision which should have gone to the Delegated Powers and Deregulation Committee we debate today and on the second day of the Report stage. The Government will then formally withdraw the amendment so that it is not on the face of the Bill. That will ensure that the Delegated Powers and Deregulation Committee will have an opportunity to consider it between now and Third Reading. We will not then be deprived of two debates in relation to it. That was a suggestion made to me by the Chief Whip but it seems to me to be eminently sensible.
I apologise to the House on behalf of the Government Front Bench for what happened, but this seems to be a practical way of dealing with the problem.
Baroness Williams of Crosby: My Lords, I thank the Minister for what is clearly a helpful proposal. I recognise his apology and accept it with grace.
On Question, Motion agreed to; Report received.
Lord Falconer of Thoroton Lord Falconer of Thoroton moved Amendment No. 1:
After Clause 3, insert the following new clause—

ACCOMMODATION FOR THOSE TEMPORARILY ADMITTED OR RELEASED FROM DETENTION
(". The Secretary of State may provide, or arrange for the provision of, facilities for the accommodation of persons—

(a) temporarily admitted to the United Kingdom under paragraph 21 of Schedule 2 to the 1971 Act;

(b) released from detention under that paragraph, or

(c) released on bail from detention under any provision of the Immigration Acts.").

The noble and learned Lord said: My Lords, in moving Amendment No. 1, perhaps I can speak also to Amendment No. 289 because the two cannot be dealt with separately.
Lord Cope of Berkeley: My Lords, I am sorry to interrupt the noble and learned Lord so early, but I asked that we might leave Amendment No. 289 until the second day when it would arise in the normal course of the Bill. That provision provides for making this into formal quasi-detention. We cannot avoid discussion on Amendment No. 1 and I am prepared not to oppose it, as will emerge in due course. But the detail of Amendment No. 289, particularly the quasi-detention, I should like to leave until Wednesday.
Lord Falconer of Thoroton: My Lords, I am more than happy to do that, but I cannot explain why we are dealing with Amendment No. 1 without referring to Amendment No. 289. Perhaps I may do it that way while accepting that they have been effectively de-coupled before I start.
Amendment No. 289 provides a power to extend by regulation the residence conditions which may be imposed when those seeking leave to enter or remain in this country are given temporary admission, or are released from detention on temporary admission, while their application is considered.
I am sorry that we were not able to give your Lordships earlier notice of these amendments. There was a large influx of asylum seekers over the summer months and the problems that that influx created in some parts of the country led us to the conclusion that existing powers to impose residence conditions on temporary admission are too narrow.
There is already power in the Immigration Act 1971 to impose residence restrictions on those granted temporary admission. Our legal advice is that, as currently framed, the restrictions should be those necessary to maintain contact and prevent absconding. So the only reason we can impose these powers at the moment is to maintain contact and prevent absconding. Such objectives are important but we believe that they are too narrow. The events of the summer suggest that we may need wider powers to impose residence conditions which are necessary not just to maintain contact but possibly also to prevent potential public order problems or to ensure full and rapid consideration of claims.
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For example, it was clear that the large number of asylum seekers residing in the Dover area as a result of the summer influx was giving rise to public order problems. Similar problems could arise in the future, whether at Dover or elsewhere. While the Bill provides for a support scheme for asylum seekers which will provide for dispersal to other parts of the country, we believe it will be prudent to take powers in this Bill to enable conditions to be imposed prohibiting residence in specific areas of the country or, if the need arose, in specific types of accommodation.
We may also need to require asylum seekers or others given temporary admission to reside at accommodation provided by the Secretary of State to enable proper and rapid consideration of their claims. We are examining the possibility of establishing a reception facility at which asylum seekers would reside while their claim was examined and a rapid decision taken. The aim would be to deal with the claim in a matter of days rather than weeks. Applicants would reside at the reception centre for a comparatively short period for that purpose. As such residences have a wider purpose, we believe that we need the wider power that Amendment No. 289 provides.
I hope that that explains the background and purposes of these amendments. Amendment No. 1 is essentially consequential to the amendments providing the wider power to impose residence conditions. It establishes a clear statutory basis for the provision of accommodation by the Secretary of State to persons on temporary admission. It is clear that any new power in this area must be flexible. That is why it is necessary to proceed by way of a power to make regulations. The use of the powers will depend on changing events and changing pressures. One of the problems with our current system of control is that we cannot respond quickly or flexibly enough to deal with the pace of events.
The Bill is intended to provide a more modern, flexible system. The amendments will contribute to that overall objective. The regulations will ensure that additional residence requirements are proportionate and relevant to the circumstances which may arise. They will also provide the opportunity for Parliament to scrutinise the types of condition that may be imposed and also the purposes for which they may be imposed. Under the Human Rights Act 1998 any regulations made will have to comply with the convention rights.
At this stage I invite the House only to support Amendment No. 1. For the reasons given by the noble Lord, Lord Cope, Amendment No. 289 will be dealt with at the other end of Report stage. I beg to move.
Baroness Williams of Crosby: My Lords, I shall not detain the House for more than a moment but I should like to ask a number of questions. First, am I right in thinking that this accommodation will not be secure? It will probably be accommodation in which people can move in and out of. Or is there any distinction between those residencies which will be made secure and those which will not? Secondly, can the Minister say anything about whether there will be a compulsion

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on people, for example possibly as a condition of bail, to reside in such accommodation? Thirdly, can he say what are likely to be the costs and by whom they will be borne? I take it that there will be some for living in such accommodation. It will be helpful if the Minister can give us some idea as to the costs, who will be expected to meet them and whether they will fall within the support arrangements. It will be helpful to us in looking further at the clause if the Minister can answer those questions.
Lord Avebury: My Lords, I can understand why it should be necessary to prescribe that a person granted temporary admission should reside in a specific location. I take the point the Minister made about the difficulties experienced in Dover during the summer. In circumstances of that kind, the provision in Amendment No. 289 would allow the Secretary of State to direct that persons arriving in large numbers at the port of Dover should be accommodated in the locations prescribed by him somewhere else in the country. I understand the point, but why should that entail prohibiting the person who is directed to that accommodation being absent from it except in accordance with the restrictions imposed?
If large numbers of people arrived from the Czech Republic in Dover and, for reasons of public order, had to reside in accommodation provided by the Secretary of State in Faversham, why should a curfew or some other restriction be imposed on those people to prevent them leaving that accommodation except when the Secretary of State allowed? That seems an extraordinary condition to attach to a temporary admission. We can debate that point more thoroughly when we reach Amendment No. 289 but, as the Minister has spoken to that amendment, it would be useful to have an explanation now.
Lord Falconer of Thoroton: My Lords, the noble Baroness, Lady Williams, asked first whether the accommodation will be secure. It will not. People will be free to come and go, subject to any other conditions that are imposed. As to the relationship between this provision and the compulsion to stay in a particular place as a condition of bail, this is an entirely separate power from that to award bail on conditions. The Secretary of State will bear the cost of the accommodation.
The noble Lord, Lord Avebury, asked why there is a need to introduce a power that imposes a curfew. I need proper instructions but I suspect that the answer is that one might deal with a public order problem either by sending people to a different place or saying that they could stay at a place but could only go out at certain times. The note that I have says the idea is that those concerned will be required to reside overnight but will he free to come and go during the day. That is a slightly different answer but one can see what is in mind.
Lord Cope of Berkeley: My Lords, I apologise for not rising to speak before. I was a bit slow. This is an entirely new way of dealing with asylum seekers and others. It is a proposal for a new form of hostel or reception centre. I am not sure whether or not it is secure but when we debate Amendment No. 289 and the powers to which the Minister referred it will be clear that the Secretary of State certainly has the power to require individuals to remain at the centre permanently and not let them out at all. The answer may be given that, assuming they are fed, what need is there for them to be let out? There is no restriction on the power that I can see but we shall discuss that point when we reach Amendment No. 289.
This seems a major initiative on the Government's part to create a new form of reception centre under the Secretary of State's control directly or indirectly—he can put such centres out to contract if he wishes—for those admitted to or released from detention. It may in part be detention of its own, but in some cases individuals will be released from detention into a centre of this kind.
Lord Falconer of Thoroton: My Lords, I set out the purpose. The correct course may be to wait until we reach Amendment No. 289 before debating the detail.
On Question, amendment agreed to.
Clause 4 [Charges]:
Lord Falconer of Thoroton Lord Falconer of Thoroton moved Amendment No. 2:
Page 4, line 1, leave out ("is").
The noble Lord said: My Lords, Amendments Nos. 2 to 6 deal with charges for after-entry applications for leave to remain and for Home Office travel documents. Government Amendments Nos. 2, 3, 4 and 6 place on the face of the Bill a clear statement that people already in this country who seek asylum or protection under Article 3 of the European Convention on Human Rights shall not be charged for applications. That follows the recommendation of the Delegated Powers and Deregulation Select Committee, which the Government accepted, as I indicated to the House on 12th July.
The amendments cover also the dependants of such applications. To ensure that there is no doubt, I should say that although the new clause refers only to a claim for asylum, the cross-reference to Clause 89 makes it clear that applications for protection under Article 3 of the ECHR are also covered. Amendment No. 5, in the names of the noble Lord, Lord Cope, and the noble Baroness, Lady Williams, has the same intent and I anticipate that they will withdraw it.
The new clause set out in Government Amendment No. 28 puts beyond doubt the power to levy fees in connection with a Home Office travel document. I am not sure why I am talking about Amendment No. 28. It is not grouped on the list that I have, so perhaps I shall come to that amendment later.
Lord Cope of Berkeley: My Lords, it will be apparent from Amendment No. 5 that the noble Baroness, Lady Williams, and I were on the same point. I detect only one difference between the effect of our drafting and that of the Government. The latter seems to suggest that if someone makes a claim for asylum that is not refused for whatever reason, he or she can be charged a fee. The fee is only not payable if asylum is granted or the case is still pending. Will the Government try to collect fees for asylum applications from individuals who have been refused? That seems to be the effect of the Government's amendment, by contrast with the wording that the noble Baroness and I support.
3.45 p.m.
Baroness Williams of Crosby: My Lords, generally speaking, the wording of the government amendment is helpful and I thank them for responding to our submissions. We share the concern expressed by the noble Lord, Lord Cope, that someone who is waiting for a final decision on their claim can be charged a fee—or that if the claim is decided against them, even though their application was bona fide, they would still be charged a fee. If so, we must ask the Minister to say something about the level of fees. We hope that the government amendment does not mean that. If that is so, we shall withdraw our amendment.
Earl Russell: My Lords, the statement in Amendment No. 6 that the word "dependant"
"has such meaning as may be prescribed"
may be a concession to certain remarks I made in Committee about the various irregular types of dependency that exist among asylum-seeking communities. If so, I thank the noble and learned Lord very warmly and welcome it. However, I ask him to reflect, as that provision is administered, on whether prescription or case law is the right way to approach what will be a very varied set of circumstances. With that single reservation, I thank the Minister very warmly.
Lord Falconer of Thoroton: My Lords, as to the difference between the government amendment and that of the noble Lord, Lord Cope, it is not our intention to chase individuals for a fee if they are refused asylum. The intention is for there not to be any difference between the two. As to the statement that "dependant" may have such meaning as may be prescribed, it must be clear what is meant. It is far better for that point to be dealt with by statute rather than case law. With case law, there will not be the same degree of certainty as to who is dependent and who is not.
On Question, amendment agreed to.
Lord Falconer of Thoroton Lord Falconer of Thoroton moved Amendment No. 3
Page 4, line 2, after ("kind") insert ("is payable").
On Question, amendment agreed to.
Lord Falconer of Thoroton Lord Falconer of Thoroton moved Amendment No. 4:
Page 4, line 4, after ("But") insert ("—

(a) a fee prescribed in connection with such an application is not payable if the basis on which the application is made is that the applicant is—

(i) a person making a claim for asylum which claim either has not been determined or has been granted; or

(ii) a dependant of such a person; and").

On Question, amendment agreed to.
[Amendment No. 5 not moved.]
Lord Falconer of Thoroton Lord Falconer of Thoroton moved Amendment No. 6:
Page 4, line 10, at end insert—
("( ) "Claim for asylum" has the meaning given in subsection (1) of section 89; and subsection (3) of that section applies for the purposes of this section as it applies for the purposes of Part VI.
( ) "Dependant" has such meaning as may be prescribed.").
On Question, amendment agreed to.
Lord Bassam of Brighton Lord Bassam of Brighton moved Amendment No. 7:
After Clause 6, insert the following new clause—

PERSONS EXCLUDED FROM THE UNITED KINGDOM UNDER INTERNATIONAL OBLIGATIONS
(". In the 1971 Act, after section 8A, insert—
"Persons excluded from the United Kingdom under international obligations.
8B.—(1) An excluded person must be refused—

(a) leave to enter the United Kingdom;

(b) leave to remain in the United Kingdom.

(2) A person's leave to enter or remain in the United Kingdom is cancelled on his becoming an excluded person.
(3) A person's exemption from the provisions of this Act as a result of section 8(1), (2) or (3) ceases on his becoming an excluded person.
(4) "Excluded person" means a person named by or under a designated international instrument.
(5) "Designated international instrument" means a resolution of the Security Council of the United Nations or an instrument made by the Council of the European Union which—

(a) requires or recommends the United Kingdom not to admit to the United Kingdom a person named by or under the resolution or instrument (however that requirement or recommendation is expressed); and

(b) is designated in an order made by the Secretary of State.

(6) Subsections (1) to (3) are subject to such exceptions (if any) as may specified in the order designating the instrument in question.
(7) An order under this section must be made by statutory instrument.
(8) Such an instrument shall, after it is made, be laid before Parliament without delay." ").
The noble Lord said: My Lords, the effect of the amendment is to insert a new Section 8B into the Immigration Act 1971 to provide that certain people who have been excluded on a European Union or United Nations travel ban can be excluded from the United Kingdom. From time to time, both the UN Security Council and the Council of the European Union introduce travel bans, the purpose of which is to restrict the movement of certain individuals associated with hostile or despotic regimes. This is achieved by requiring members states of the UN or EU respectively to exclude the individuals concerned from their territory or to restrict their access to those territories.
As a matter of international law, the United Kingdom is required to recognise all UN and EU travel bans and to refuse persons who are subject to those bans permission to enter its territory. At present, refusal of entry on the basis of a travel ban is effected under paragraph 320 of the Immigration Rules. This is done either by a personal exclusion order signed by the Secretary of State under paragraph 320(6) of the Immigration Rules or by way of a decision by the entry clearance officer or the immigration officer at the port of entry under paragraph 320(19) of the rules.
However, in order to determine whether the public good is being served by refusing entry to a certain individual, account has to be taken of all the facts of the case. Under current legislation, to exclude someone simply because he or she were included on an EU or UN travel ban may be an unlawful fetter of both the Secretary of State's and the immigration officers' decision-making powers. Therefore, as currently drafted, paragraph 320 of the Immigration Rules does not provide a vehicle by which the UK can discharge its international obligations under these travel bans. In order to overcome this problem and honour the UK's international obligations, it is necessary to amend the Immigration Act 1971 to provide that persons subject to a UN or EU travel ban can be excluded from the United Kingdom. I beg to move.
Lord Avebury: My Lords, we have in fact been excluding people under UN or EU travel bans for a long time. Therefore, what the noble Lord has just told the House is that we have been behaving unlawfully. However, I wish to raise a particular difficulty as regards the amendment as drafted. I shall illustrate my point by referring to the ban, which was imposed on members of the Sierra Leone military junta under Security Council Resolution 1132 of October 1997.
The task of naming people to be included in the ban was delegated to a sanctions committee. The first thing that happened was that the committee, acting at the behest of President Kabbah of Sierra Leone, produced a list which it circulated to member states. We, in turn, notified the Immigration Service that persons named on that list were to be refused entry to the United Kingdom. But the list was not published and it was not until 28th January 1997 that a revised list was produced by the sanctions committee, including all the members of the military junta and their senior associates in the armed forces and in government who were to be excluded from the UK.
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However, the Foreign Office omitted to notify the immigration and nationality department that the list had changed; indeed, it continued to work on the previous un-published list, which had been circulated by the sanctions committee immediately after SCR 1132 was promulgated. The practical effect of this was that a gentleman, who happens to be a friend of mine, was stopped by an immigration officer when coming into Heathrow in June of this year. He was interrogated over a period of many hours but was subsequently released when the Home Office referred the matter to the Foreign Office and it was discovered that his name was not on the current list. When I protested, I was told that instructions had been given to ensure that this would never happen again and that whenever lists were modified as a result of action by the Security Council, or its agent—in this case, the sanctions committee—such information would immediately be drawn to the attention of the Immigration Service.
The amendment refers to a person "named by" a Security Council resolution or "under" it. I want the Government to assure me that they will not operate on the basis of secret lists issued by a sub-committee or agent of the Security Council and that they will only apply the restrictions in the amendment to persons whose names are properly published either by the Security Council or by any sub-committee which it designates for the purpose. It is fundamentally unjust for a person to have such restrictions applied to him when he does not know that they have been imposed and has no opportunity of objecting if his name appears improperly on the list, as was the case with my friend.
The Government admitted that there was no suggestion that this gentleman had ever been in any way associated with the military junta in Sierra Leone. The only reason for his name appearing on the list was that he was a political opponent of President Kabbah, against whom he displayed extreme malice in a letter which he wrote to the Prime Minister, about which we need not go into detail now. However, it was the subject of previous exchanges in the House and dealt with by the Select Committee when it looked into the subject of Sierra Leone.
I have a further query about the amendment namely, why has the Commonwealth been excluded from the organisations that can ask for members states to be excluded? The Commonwealth habitually does so; for example, in the case of Nigeria. I have before me the communiqué from the Commonwealth Heads of Government meeting held in Edinburgh in October 1997, paragraph 15 of which says:
"Heads of Government also empowered CMAG"—
that is, the Commonwealth Ministerial Action Group—
"to invoke … Commonwealth-wide implementation of any or all of the measures recommended by CMAG",
which included,
"visa restrictions on members of the Nigerian regime and their families".

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As noble Lords will recall, we did in fact impose those restrictions on the leading members of the military government in Nigeria, and quite properly so. Therefore, why is it that only the EU and the UN are covered under the amendment?
Finally, if the Government think that lists should be published of the persons we would not admit to the UK, why not extend the arrangement to those who, because of their alleged association with organisations deemed to be involved in terrorism, are not to be permitted to enter the United Kingdom? Would that not make the clause more comprehensive? My primary purpose in detaining your Lordships on the matter is to ensure that we do not impose these restrictions on anyone whose name is not published by the organisations dealt with in the amendment.
Lord Hylton: My Lords, I express my support for what the noble Lord, Lord Avebury, has just said. Will the Minister give an assurance that all exclusion lists will be published as soon as they are known, or as soon as they begin to come into effect? In that case, people will know where they stand.
Lord Alton of Liverpool: My Lords, in supporting my noble friend Lord Hylton and the noble Lord, Lord Avebury, perhaps I may also put a few questions to the Minister about the amendment. I should like to know the specific reasons why it has been necessary to bring forward such an amendment at this stage. Can the Minister tell us whether there have been controversial cases where Her Majesty's Government have not been able to exclude someone with the existing powers when they have been quite reasonably requested to do so by one of the international bodies mentioned or, indeed, any other international body?
It seems to me that this is a potentially draconian power which we are ceding to groups of people about whom we do not know a great deal. For example, who makes up the committee of the Council of the European Union that will be deciding whether or not people will ultimately be allowed to enter the United Kingdom? Why do we need to give this right away instead of making the decision ourselves in the UK?
Further, just for the purposes of today's debate, I wonder whether the Minister can tell the House how many people have actually been involved in this way? For example, can he tell us how many people have been referred to the Home Office during the past 12 months by either of these agencies and how those cases were dealt with?
4 p.m.
Lord Cope of Berkeley: My Lords, I was hoping that the Minister would not only give us some of the information that the noble Lord, Lord Alton, seeks but would also perhaps give us some examples of individuals who have been excluded as a result of this process and as a result of resolutions of the Council of the European Union. In giving those examples perhaps he could say which part of the Council of the
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European Union made the decision, and whether such decisions are made by weighted majority or by unanimity. The Council of Ministers meets in a great variety of forms in the European Union. The expression used in the new clause is,
"the Council of the European Union".
That usually refers to meetings of Prime Ministers, heads of government and heads of state rather than to the ordinary day-to-day meetings of lesser Ministers. However, I am not quite sure whether that would be the legal meaning of the phrase within the Bill.
Baroness Williams of Crosby: My Lords, I too wish to pursue the issues contained in this new clause a little further, not least because it is a new clause of a kind in which one would have thought the Select Committee on delegated legislation might be interested as regards a negative procedure on a matter that affects the liberty of movement of a number of people. We may want to obtain a recommendation on that matter from the committee before Third Reading so that we can consider whether such an issue is raised. I follow what the noble Lords, Lord Alton and Lord Cope, have said on another matter too. I take it that the reference to,
"the Council of the European Union".
is a reference to the Council of Ministers, or possibly to the European Council. It is not completely clear which of the two it is.
However, in the light of the Tampere Summit, of which we do not yet have details—I understand that a Statement will be made on that tomorrow when the House of Commons reconvenes—we need to know whether the names of people excluded as a result of the new co-operation that is to be established on matters of criminal justice, and in particular organised crime, could lead to the exclusion of a number of additional people by the Council. Will that point be embraced by the new clause? In other words, we could be contemplating the exclusion of a number of people in terms of co-ordinating the fight against organised crime. We on these Benches fully support that fight, but it is important for us to know just how open-ended this new clause is, and whether it would involve the possibility of people being excluded by the Council without further reference to this House. Thus the lack of an affirmative procedure is much more serious than would be the case if this measure could not be applied to additional numbers of people whom we cannot at present discuss.
Lord Bassam of Brighton: My Lords, I thought that this would be a relatively simple amendment but the House has proved me wrong! I congratulate the noble Lord, Lord Avebury, on the way in which he has conducted some difficult negotiations involving his noble friends. I fully acknowledge the seriousness of the matters that he raises.
The example of Sierra Leone that the noble Lord mentioned is unfortunate. That involved an error by the authorities and not a problem with the travel ban system itself. As to the question of secret lists which the noble Lord quite properly mentioned, we must

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obviously comply with an international obligation. We shall make every effort to ensure that there are no secret lists. As I say, we must comply with those obligations. It seems only right and proper that we do so. We must share our part of the international burden. I am sure that the noble Lord will accept that point.
The noble Lord asked about the Commonwealth. We are generally concerned with United Nations and EU travel bans. We see no need to include Commonwealth bans. We undertake to consult our colleagues in the Foreign and Commonwealth Office on this matter before Third Reading as we think that it is absolutely right to do so. The results of that consultation may more fully answer the point that the noble Lord has raised. To date, colleagues in the Foreign and Commonwealth Office do not believe that we necessarily need to involve the Commonwealth.
Lord Avebury: My Lords, how does the noble Lord explain the fact that the Commonwealth, through the Commonwealth Ministerial Action Group, has imposed travel bans, such as the one I mentioned on the members of the Nigerian military junta? Presumably we complied with that ban. As far as I know, we never admitted anyone who belonged to the Nigerian military regime as long as the ban that was imposed by CMAG lasted. Why are we treating the Commonwealth differently from the European Union and the UN?
Lord Bassam of Brighton: My Lords, it is difficult to give a precise answer. These matters are dealt with on a case-by-case basis. We shall consult further and return to this matter.
The noble Lord, Lord Alton, asked why we need to deal with this matter now. We take the view that it is for the good of the public. I should have thought that the drafting of the amendment and the explanation I have given have clearly set out the public good. I am happy to try to give the noble Lord more detail as and when we can. Clearly this is a sensitive matter which we view as important. It is very much an important part of our international obligations.
The noble Baroness, Lady Williams—
Lord Alton of Liverpool: My Lords, before the Minister leaves that point, for the purposes of debate in the House, I believe that the House is entitled to know whether there has been any example of Her Majesty's Government ever being censured by any international body for admitting someone into this country, or permitting them to travel, in circumstances of which those organisations did not approve.
Lord Bassam of Brighton: My Lords, I shall have to write to the noble Lord on that point because I cannot produce immediate facts as I speak. I am, however, quite happy to provide the noble Lord with more detail on the matter.
In response to the point made by the noble Baroness, Lady Williams, we shall withdraw this new clause, as we said we would, to enable the matters
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within the amendment to be considered fully by the Delegated Powers Scrutiny Committee. I trust that your Lordships will accept what has been said about this new clause in the context of the arguments that we have put forward this afternoon.
Lord Cope of Berkeley: My Lords, before the Minister sits down, is this new clause covered by the undertaking given earlier by the noble and learned Lord and, if so, will he not therefore withdraw it?
Lord Bassam of Brighton: My Lords, I thought that I had made that point clear; I apologise if I did not. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 7 [Treatment of certain overstayers]:
Lord Bassam of Brighton Lord Bassam of Brighton moved Amendment No. 8:
Page 4, line 42, leave out from beginning to ("overstayers") in line 43 and insert ("During the regularisation period").
The noble Lord said: My Lords, Amendments Nos. 8, 9 and 10 put into effect an undertaking given by my noble and learned friend Lord Williams to the noble Lord, Lord Dholakia, to bring forward an amendment requiring Clauses 8 and 59 to come into force together. This would ensure that overstayers could not be removed without an in-country appeal on human rights grounds simply because Clause 8 came into effect before Clause 59 which depends on the Human Rights Act for its force and thus might possibly be delayed. I understand that such an amendment was not strictly necessary because Clause 7 and Clause 164(4) already provide that Clause 8 will come into force on the day after the day prescribed as the end of overstayers' regularisation period.
Clause 59 will be brought into force on 2nd October 2000 to coincide with the Human Rights Act. Regulations under Clause 7 would have set the prescribed day as 1st October 2000 and thus Clauses 8 and 59 would have come into force together. 1f there was a delay in the Human Rights Act coming into force, a new end date for the regularisation period could easily be prescribed. As this is not, however, easily apparent from the clauses themselves, we have to recast Clause 7 so that it sets out the interrelation of Clauses 7, 8 and 59 more clearly. I invite your Lordships to agree to these amendments. I beg to move.
Lord Renton: My Lords, before the noble Lord sits down I think that it is rather important for him to give us some idea of the extent of Clause 7 and the number of people to whom it will apply. If he could do so, we could then better evaluate these amendments.
Lord Phillips of Sudbury: My Lords, the House may remember that at Second Reading there was an extensive debate about the provisions in this clause. We on these Benches are still unhappy with the way things are left.

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It may help the House to recollect the history of this particular control on those who overstayed when they originally had leave to come here. In the Immigration Act 1971 there was no limitation at all on the right of overstayers to appeal later if they wished to extend their right to remain. The Immigration Act 1988 then restricted that right. The only group that would have a right to apply to remain were those overstayers who had been here at least seven years. If this provision is agreed, that right, too, will be removed. All that that group are left with will be the regularisation period, which currently is to be three months or until the Human Rights Act comes into effect.
Many of the organisations which try to help immigrants and those caught up in the trammels of this complex legislation are unhappy at the way this proposal will work for the following reasons. First, how do the Government propose to adequately publicise this major change in the regulations? In effect, how will they get across to those who will have their rights diminished and removed the fact that they have three months, we anticipate, within which to lodge their application to remain? That is a very serious problem because, by definition, one is dealing only with a finite group of individuals who will have been here already seven years. They will have established themselves in their way of life here and will probably have lost contact with the immigrant organisations.
We suggest to the Government that they should give further consideration to amending the three-month provision. They should do so in one of two ways: either they should greatly extend the period to two, three or four years rather than three months; or they should perhaps bring in a provision such as that in Clause 70(3)(b) of the Bill which deals with the failure of someone to disclose his or her grounds of appeal. In that clause there is the provision that such people will not lose their rights if there is a "reasonable excuse". We suggest to the Government that, at the very least, there should be a reasonable excuse clause for those who are not aware of the three-month provision. Much more, we would prefer to see the three-month period extended. Admittedly, under the clause as drafted, there is a right to extend the period to more than three months, but I am afraid one always suspects that the least will be the fact.
Finally, I should draw to the Government's attention the administrative repercussions of what appears to be in train here. Already there is to be an attempt to meet the two-month target for dealing with applications to come here under the new legislation. If the Government persist, the likelihood is that there will be an additional flood of applications within the three-month period. We see no grounds at all for not amending and liberalising the process. It is not as if one is extending the right to any future group of
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individuals. I repeat: it is a finite group of individuals with which one is dealing. We urge the Government to think again.
Lord Bassam of Brighton: My Lords, the noble Lord, Lord Renton, asked, on the face of it, a very simple question. I wish I could provide a very simple answer. Regrettably, no matter is ever as simple as it first appears. I am unable to give the noble Lord the full response that he would like. The best I can offer is that I shall write to the noble Lord with any of the details we can find on this matter. It is very difficult for our officials to come up with precise figures because there are so many absconds. Therefore the figures are much harder to track than might at first be thought.
The noble Lord, Lord Phillips, asked the Government to give further consideration to the clause. We have given very careful consideration to the amendment we have moved. It reflects an undertaking given to the noble Lord, Lord Dholakia, during the earlier stages of the Bill. We consider that the amendment provides for the circumstances he described.
We hope to introduce a regularisation period in January 2000; the regularisation period will be for eight to nine months. It may offer the noble Lord some comfort that we intend to publicise details of the scheme in the ethnic minority press. We shall also be consulting the voluntary sector. With those important caveats, the amendment should be acceptable to your Lordships. As the noble Lord Phillips said, this is a minimum period. We can extend it; there is flexibility. We have the right to extend it.
This is a practical measure dealing with a difficult and complex situation which we need to regularise and regulate effectively so that this piece of the legislation works well in our interests and in the interests of those who are subject to its provisions.
Baroness Williams of Crosby: My Lords, may I ask the Minister to respond to the question posed by my noble friend on the issue of publicity. That is a matter of great importance. I believe my noble friend Lord Dholakia also has a question.
Lord Dholakia: My Lords, perhaps I may ask the Minister whether any thought has been given to the number of applications there will be from people appealing against the decision. Bearing in mind that there are some 70,000 to 80,000 people in the queue, the fact that the Home Office will have a new computer, and the utter chaos that exists, how can the Minister say genuinely that there will be a cut-off date within a period of eight or nine months? How can that be done without creating absolute chaos?
Lord Bassam of Brighton: My Lords, I hope that all Members of your Lordships' House will support the Government in their genuine and real intention to get to grips with some of the problems that we inherited with the immigration and asylum system. That is what our officials are trying to do. We should give them credit for the way in which they have conducted

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themselves, particularly in the past few months. Given the influx of cases that they have had to cope with, they are doing extremely well. We have a commitment that should be shared by your Lordships. I invite all sides of your Lordships' House to support us in our endeavours.
As to the point raised by the noble Baroness, Lady Williams, on how we intend to give effect to and publicise the details of the scheme, as I said, we intend to use extensively the ethnic minority press. Given the level of interest in the Bill and these particular clauses, I have little doubt that much attention will be drawn to the matter in the press generally. We shall assist in every possible way we can. We are open to suggestions as to other means that we can use to give publicity to the effects of the amendment.
On Question, amendment agreed to.
4.15 p.m.
Lord Bassam of Brighton Lord Bassam of Brighton moved Amendments Nos. 9 and 10:
Page 5, leave out lines 2 and 3 and insert ("begins on the day prescribed for the purposes of this subsection and is not to be less than three months.
( ) The regularisation period ends——

(a) on the day prescribed for the purposes of this subsection; or

(b) if later, on the day before that on which section 59 comes into force.").

Page 5, line 5, leave out ("the prescribed day") and insert ("that on which the regularisation period ends").
On Question, amendments agreed to.
Clause 9 [Removal of asylum claimants under standing arrangements with member States]:
Lord Falconer of Thoroton Lord Falconer of Thoroton moved Amendment No. 11:
Page 6, leave out lines 3 and 4 and insert ("In determining whether a person in relation to whom a certificate has been issued under subsection (2) may be removed from the United Kingdom, a member State is to be regarded as").
The noble and learned Lord said: My Lords, in moving Amendment No. 11 I shall speak also to Amendment No. 12. Amendment No. 11 is an amendment to Clause 9. The purpose of Clause 9 is to prevent unnecessary disputes about the safety of European Union member states as safe third-countries of asylum—disputes which threaten seriously to undermine the asylum process by encouraging abusive claims.
Subsection (2) establishes the conditions in which a certificate can be made by the Secretary of State overriding the normal suspension of removal action pending any appeal. Subsection (1) provides that for these purposes member states, in effect, are to be regarded as safe for asylum-seeking, third, country nationals. However, the wording of Clause 9(1) as it stands presently is unclear because it refers simply to a member state being regarded as safe,
"for the purposes of sub-section (2)".
We believe that this should be clarified, and the amendment achieves that.
If the amendment is agreed, it will be clear that it is for the purpose of determining whether a person to whom a certificate has been issued may be removed from the United Kingdom, but a member state is to be regarded as safe. I commend Amendment No. 11 to your Lordships.
I turn to Amendment No. 12. The House will recall that a similar amendment was tabled in Committee, but was not pressed. In the course of the debate my noble, and now learned, friend Lord Williams of Mostyn—for me he has always been learned— indicated that he would investigate whether there had been any problems concerning the transfer of persons from Northern Ireland to the Republic of Ireland in accordance with the Dublin convention.
The proposed amendment concerns persons who, having claimed asylum in the Republic of Ireland, have made their way into Northern Ireland where they have been brought to the attention of the United Kingdom Immigration Service. Such persons may express a wish to be returned to the Republic of Ireland to pursue their asylum claim, but that cannot be done without the agreement of the authorities in Dublin. I must make clear to noble Lords that the agreement of the Irish authorities may not be immediately forthcoming, or indeed forthcoming at all.
For example, it may be that the personal details given to one authority do not match the personal details given to the other. En those circumstances, a comparison of photographs will be necessary because the Irish authorities are not empowered to take fingerprints of asylum applicants. Inquiries may reveal that the person concerned is properly the responsibility of the United Kingdom authorities in accordance with the Dublin convention because, for example, they may already have made an unsuccessful application for asylum in this country.
The Immigration Office in Belfast exercises the power to detain such persons most sparingly. As of 15th October, there were only two persons detained in Northern Ireland pending transfer to the Republic of Ireland in accordance with the Dublin convention. The decision on whether to detain is taken on a case-by-case basis and is both made and regularly reviewed at a senior level in the light of all the circumstances that pertain at the time, including the progress of the application. Most of those who would be affected by this amendment are not detained, but are granted temporary release or temporary admission. The fact that only a small number of persons may be detained does not mean that we are content for then' to be detained for any longer than is necessary.
Following the debate in Committee, officials from the Third Country Unit at the Home Office paid a visit to their counterparts at the Department of Justice, Equality and Law Reform in Dublin between 9th and 10th September of this year. The purpose of their visit was to ensure that lines of communication were clear, and to remove any obstacles that might stand in the way of obtaining the earliest response to transfer requests. Relations between the two authorities have been further improved as a result of that visit. We are

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confident that this process is now working as fast as is possible consistent with the requirements of the department of justice to establish the identity of those for whom transfer is sought.
The amendment proposed would place a duty on the authorities in this country to enter into special arrangements with the authorities in the Republic of Ireland. As I have said, officials of both countries have already met to discuss the matter, and have agreed to give priority to such cases, in particular those few in which detention is considered necessary. Officials in the department of justice in Dublin are co-operating fully to minimise the delay in resolving the issues. Further, I must remind noble Lords that the transfer of some of those affected will be unacceptable to the department of justice and our own Immigration Service, which may have quite proper reasons for seeking to detain such persons. The need for detention must be judged on a case-by-case basis; nor should we be seen to be seeking to constrain the authorities in the Republic of Ireland from reaching their own decisions in their own manner. If passed, I fear that the amendment would have both those effects.
I hope that your Lordships will find this explanation helpful and, subject to further debate, will not consider it necessary to press the amendment. I beg to move.
On Question, amendment agreed to.
Lord Cope of Berkeley Lord Cope of Berkeley had given notice of his intention to move Amendment No. 12:
Page 6, line 28, at end insert—
("( ) Special arrangements shall be made to facilitate and expedite the return to the Republic of Ireland of any person who, after taking independent legal advice, requests to be returned.").
The noble Lord said: My Lords, the Minister's reply seems to me to be very helpful. Clearly he and his officials have been working hard to fulfil the undertaking given by the noble and learned Lord, Lord Williams of Mostyn, on 12th July. I am glad to know that it is expected that the process will work more quickly and smoothly in the future, without alterations to the mechanism.
One suggestion was made and repeated in the letter sent to the noble and learned Lord, Lord Falconer, from the Northern Ireland Law Centre on 2nd September. It stated that the Chief Immigration Officer in Belfast should be given authority to make Dublin convention requests direct to Dublin through the department of justice without having to go through the Third Country Unit in Croydon. I believe that within the island of Ireland that might speed up matters and save Croydon some trouble. Croydon has quite enough to do without the extra handling involved in these few but rather special requests. Has that matter been considered?
Lord Avebury: My Lords, this morning I spoke to the Northern Ireland Law Centre, and I listened carefully to their arguments, which have already been mentioned by the noble Lord, Lord Cope. I believe that there are powerful reasons for accepting the
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suggestion, mainly because when the law centre sends cases to the IND in Croydon it takes at least one month for them to come back. No matter how often they visit the Department of Justice, Equality and Law Reform in Dublin—although I welcome the fact that they do have that close liaison—they cannot accelerate the procedures in Croydon. We know of the utter chaos there, and the Third Country Unit should be relieved of the small amount of work entailed in dealing with these cases which, as the noble and learned Lord has explained, are not numerous.
If the cases could be dealt with directly between the Chief Immigration Officer in Belfast and the Department of Justice, Equality and Law Reform in Dublin, that would be much quicker than having to have all the papers sent to the IND in Croydon and then returned to Belfast before any decision is made.
I emphasise that the law centre in Northern Ireland is not suggesting that people should be sent back to Dublin against the wishes of the authorities there, or that we should try to palm off those people who have properly sought asylum in the United Kingdom at an earlier date. All that is suggested here is that an administrative tidying-up should be implemented by avoiding the necessity for Northern Ireland always to have to deal through Croydon. Given that the Government are keen on devolution, I should have thought that this might be acceptable to them.
Lord Renton: My Lords, despite what the noble Lord, Lord Avebury, said I should like to emphasise, from personal experience of long ago and more recently, that the Government of the Republic of Ireland have been exceedingly co-operative in helping us to deal with the difficult and delicate matter of controlling immigration.
Lord Glentoran: My Lords, I, too, should like to support the noble Lord, Lord Avebury, bearing in mind the conditions in which detainees in Northern Ireland are often held. I shall be interested to hear what the Minister has to say on those conditions later in the debate. However, it would be extremely helpful if a direct line of communication could be set up between Belfast and Dublin, particularly as sometimes—I do not have the figures—some people have become lost and wandered over the Border. They have then been collected up by the authorities in Northern Ireland entirely by accident. That seems funny, but I am not sure whether those involved would agree. However, I think it would be very helpful if this could be done.
Lord Falconer of Thoroton: My Lords, the answer is yes, we have considered the question of whether the Chief Immigration Officer in Belfast should be authorised to make Dublin convention requests direct to Dublin. After careful thought we have concluded that he should not, for the reason that if he were given that power without reference to IND, that could potentially lead to inconsistencies in the operation of the Dublin convention.

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Further, we considered that it was not necessary for that to be done because the Third Country Unit can, when necessary, process requests very quickly, and plainly would do so when there was any issue of detention involved.
Lord Avebury: My Lords, before the noble and learned Lord sits down, I agree that under the Dublin convention there can be more than one identified group within each member state. That is a phrase used in a letter from Ms Barbara Roche to the law centre in Northern Ireland. She states,
"It is an important operational feature that information can only be exchanged between identified groups notified by Member States".
Does the Dublin convention require each member state to have only one identified group, or would we be free, if it was thought convenient to do so, to have two identified groups, one in Croydon and one in Belfast?
Lord Falconer of Thoroton: My Lords, with the greatest respect to the noble Lord, that does not meet the point that I have just made. There must be consistency in the way that the Government operate their rights under the Dublin convention. To give two people those powers, which may well be lawful under the terms of the convention, does not deal with the point I have made on consistency.
[Amendment No. 12 not moved.]
4.30 p.m.
Lord Goodhart Lord Goodhart moved Amendment No. 13:
Leave out Clause 9.
The noble Lord said: My Lords, Amendment No. 13 stands in my name and that of the noble and learned Lord, Lord Ackner. The amendment is of very great importance. We believe that Clause 9 offers a threat to the legitimate rights of asylum seekers and involves a breach of the obligations of the United Kingdom under an international treaty into which it entered nearly 50 years ago.
I should like to start by explaining—I shall do so as briefly as I can—what is the present law, both domestic and international; how that will be changed by Clause 9; and why that is wrong. I start with the Geneva Convention relating to the status of refugees, signed in 1951, which I shall call the refugee convention. Article 1 of that convention defines a refugee as,
"any person who … owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country".
Article 33 of the refugee convention states:
"No contracting state shall expel or return a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion".
The Dublin convention, of which we have already had some discussion, is a European Union convention, binding on all member states. The convention was
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signed in 1990 and came into force on 1st September 1997. The ease of crossing the internal borders of the European Union had, as is well known, led to problems because an applicant for asylum, having arrived in one European Union state, might move to another before claiming asylum or, having applied for asylum in one state and been refused, or having become bored with waiting for a decision, might move to another and apply again. We accept that a standard practice was needed to prevent multiple applications and to decide which state had jurisdiction to hear the application for asylum.
The Dublin convention lays down rules for deciding those questions and in general provides, under Articles 6 and 7, that it is the state of first entry which hears the application. If, therefore, the applicant lodges an application in another state, the latter can return the applicant to the state of first entry, which is required to consider the application. However, the United Kingdom, like other member states, is not obliged to return an applicant to the state of first entry; nor does the Dublin convention in any way alter the terms of the refugee convention. We in the United Kingdom should not therefore return an applicant to a state where rights under the refugee convention are not properly applied.
I turn now to the United Kingdom legislation. I shall refer only to Section 2 of the Asylum and Immigration Act 1996. That allows the Home Secretary to deport an applicant to certain states, including European Union states, if he is satisfied that three conditions are fulfilled: first, that the applicant is not a national of the state to which he is to be sent; secondly, that his or her life or liberty would not be threatened in that state; and, thirdly, that the government of that state would not send him or her on to another state otherwise than in accordance with the refugee convention.
The effect of Section 2 of the 1996 Act has been decided by a recent decision of the Court of Appeal—known as the Adan case. That was decided on 23rd July—after, that is, the debate on Clause 9 at the Committee stage of the Bill in your Lordships' House. The problem in that case arose because France and Germany interpret the refugee convention in a way which is different from the way in which the United Kingdom and, I believe, most other member states of the European Union interpret it. France and Germany say that an applicant can be treated as a refugee only if the persecution which he or she fears is persecution by the state authorities or is condoned by them. The United Kingdom and others interpret the convention as applying also where the state is unable to prevent persecution by non-state parties.
Of the three different cases that were heard concurrently by the Court of Appeal, two had come through Germany and one through France as countries of first entry. One case was that of a Somali woman who claimed a fear of persecution from a rival tribal group in a state whose authority had completely collapsed and where there was, in effect, no government whatever. The second applicant was a Tamil man from Sri Lanka who had been living in a

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part of Sri Lanka controlled by the Tamil Tigers, not by the government, and who claimed fear of persecution by the Tigers. The third case was that of an Algerian man who claimed fear of persecution by Islamic terrorists from which the government in Algeria were unable to protect him. In each of those cases the French and German Governments would have refused asylum because they were not cases of persecution by, or with the complicity of, the lawful government of those territories.
The Home Secretary originally decided to return the applicants to France or Germany, although in fact he had changed his mind before the Court of Appeal decision was given. Nevertheless, the Court of Appeal decided the case and the original decision was quashed by it on an application for judicial review. It was held that the Home Secretary was not justified in law in sending the applicants back because the Home Secretary could not have been satisfied that the third condition for return was satisfied; that is, that France or Germany would not return applicants to their home states in breach of the refugee convention as interpreted by the English courts. That decision of the Court of Appeal accords with justice and with common sense. What I am saying is not intended in any way as a general attack on the judicial systems of France or Germany. There is no objection to the way in which they interpret the refugee convention in cases of persecution by state governments; still less am I intending to say that there is any fundamental weakness in their judicial systems.
That being the present law, perhaps I may turn to the effect of the Bill. Clause 9 states that if the Home Secretary wishes to deport an applicant to another European Union state, which is the state of first entry, that state is to be regarded as a place from which that person will not be sent to another country otherwise than in accordance with the refugee convention. The Home Secretary has to certify that the other state has accepted that it is a responsible state under the Dublin convention, but he does not have to certify that the government of that country would not return the applicant to the country from which the applicant has fled. In other words, the courts must assume that the French and German authorities would not return the applicant to the country of origin in breach of the refugee convention, irrespective of whether or not that assumption is correct.
Clause 9 does provide a limited safeguard. It permits a right of appeal, under Clause 59 of the Bill, on the ground that the decision to return the applicant to the country of first entry is a breach of the applicant's rights under the Human Rights Act. The Government may say that that is adequate protection. That is not the case. The European Convention on Human Rights, incorporated under the Human Rights Act, is very weak on asylum rights. The right of asylum is not itself a convention right; nor is there any general protection against discrimination in the convention; and—I say in passing—there will not be any such general protection against discrimination as long as
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the United Kingdom Government maintain their opposition to the draft 12th protocol to the convention which, if adopted, would create a free-standing right not to be discriminated against.
The only relevant right which is clearly protected by the European Convention on Human Rights is the right to life. Clause 59 may, therefore, protect an applicant where his or her return would cause a serious risk of death. But the refugee convention is not limited to cases where there is a threat to life. In addition, the refugee convention gives refugees many substantive rights in the country of refuge which would not be available under the European convention.
In short, the position is that applicants for asylum in the United Kingdom presently have rights under both the refugee convention and the European Convention on Human Rights. Both treaties are accepted by the United Kingdom. If Clause 9 is enacted, applicants who have arrived via another European Union country will have no rights under the refugee convention. That will be so, even if the country of first entry interprets the refugee convention in a way that is rejected by our courts.
Unofficial reports from the Tampere conference suggest that it is proposed, in cases of non-state persecution, to lower the standards to those of France and Germany rather than raise them to those of the United Kingdom. We on these Benches would accept a reference to the European Court of Justice to determine the interpretation of the refugee convention in the European Union states. However, we cannot accept a political decision of the European Union governments to reduce the standards provided by the refugee convention. We believe that the provision in Clause 9 is in plain breach of our obligations under the refugee convention. We do not propose to press this amendment today because the decisions taken at Tampere are likely to be highly relevant and we shall not know what they are at least until a statement is made tomorrow. Unless the Tampere decisions are much more helpful than we expect, we shall return vigorously to the issue at Third Reading. I beg to move.
Lord Phillips of Sudbury: My Lords, I merely want to add two points to the persuasive argument made my noble friend Lord Goodhart. In a letter to my noble friend Lady Williams of Crosby on 24th September, the Home Secretary summarised what might be described as the political case to justify Clause 9. He wrote:
"We would not be asking Parliament to agree that other Member States should be trusted to deal properly with the asylum seekers for whom they are responsible under international law, unless we were confident that there was no risk in practice of those people being returned to face persecution".
He later referred to those who doubt the wisdom of Clause 9 as representing some,
"challenge to the good faith of other EU member states".
It is not a challenge to the good faith of another EU member state, any more than it indicates any lack of trust in another member state, for us to allow our courts to deal with asylum seekers here under the

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circumstances prescribed by this legislation. If democracy under the law means anything, surely it means democracy under the supervision of the courts. This law relates to asylum seekers in this country who will be seeking rights under the provisions of this Bill.
Perhaps I may refer to another section of the Home Secretary's letter in which he stated:
"As to who should have the final say in matters like this, we live in an elected Parliamentary democracy, with Parliament the ultimate law maker".
Absolutely. But we also live in a democracy where the courts prescribe what Parliament does in terms of its own legislation, and where the rights bestowed on the courts by Parliament, far from representing a lack of trust or good faith in those institutions, is the highest flowering of our democratic way. Clause 9 engages deep principles which the House would be well advised to consider very seriously. I hope that the Government will reconsider the wisdom of Clause 9.
4.45 p.m.
Baroness Williams of Crosby: My Lords, perhaps I may intervene briefly. In my letter to the Home Secretary on 5th August, I specifically mentioned the problems that might arise under Clause 9—not least because of the discussions that were due to take place with the rest of the European Union. I simply want to underline the point made by my noble friend Lord Goodhart. We have had the rather sudden introduction of the Tampere Summit. I fully appreciate that, in August, no one could have known what decisions might or might not be reached at the summit. However, it looks as though it will have a profound effect on Clause 9. Therefore, we felt it appropriate to ask for a further delay before pressing the matter, as we are likely to know more about the decisions reached between heads of state at the summit within the next few days. Those decisions are likely to have an intimate and powerful effect on the whole standing of asylum seekers in this country in line with other EU countries. At present, we cart only speculate as to the basis on which the summit decisions have been made. For those reasons, we wish to give a clear indication that, while we shall not seek the view of the House now, we intend to return to the matter at Third Reading—not in order to cause difficulty for the Government, but simply because we do not presently have adequate information to be able to raise some of the issues that we wish to raise about the decisions reached at the summit.
Lord Ackner: My Lords, following the excellent exposition by the noble Lord, Lord Goodhart, I feel some frustration that we shall not be dividing the House. The principle that citizens of this country should be entitled to take advantage of the decisions of the Court of Appeal and not have those decisions blocked or obliterated by policy decisions of a political nature is immensely important. I am delighted that we shall return to the charge next time round.
Lord Cope of Berkeley: My Lords, I do not want to add to what has already been said. I merely want to ask
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a question. Are France and Germany to be regarded under the clause as member states? Clause 9(l)(b) states that a member state is,
"a place from which a person will not be sent to another country otherwise than in accordance with the Refugee Convention".
As I understand it, the interpretation of the refugee convention by the British Court of Appeal being different from that in France, Germany and some other countries, it could not be argued that someone being sent to France, for example, was being sent to a country from where he or she might not be sent somewhere else under the refugee convention. Under our interpretation of the refugee convention, such people could be sent to another country. It therefore seems to me that, if the UK definition of the refugee convention, as settled by our courts, is to govern this legislation—I take that to be the case as it will be British law—France and Germany cannot be regarded for this purpose as member states.
Lord Falconer of Thoroton: My Lords, the Government have repeatedly and emphatically made clear their determination that they should meet their obligations to those who are genuinely in need of protection from prosecution and torture. We have to face up to the undeniable fact that the system of international protection for such people is under threat—not from anything that this Government or fellow members of the European Union are doing, but from cynical, opportunistic abuse of the asylum system by people who have no motive other than racketeering and money-making, and whose other activities involve organised crime of all kinds. If we do not respond effectively to the systematic abuse of the asylum system, however well intentioned our motives are, the genuine asylum seekers will become lost in a system that will be completely overloaded.
The purpose of the Bill and of the Government's whole wider strategy is to deal firmly with abuse without in any way taking away protection from those who really need it. We must tackle the abuse robustly, if protection is not to be undermined. Perhaps up to half of all asylum seekers in the United Kingdom have at some point been in another European Union member state. I give an example. Of the 4,445 who claimed asylum at Dover and the 2,843 who claimed asylum at Waterloo in the first eight months of this year alone, every single one must have come from another member state. The problem is, therefore, one which we share with our European Union partners. It is vital that we share the solution with them too.
At the special European Council at Tampere just two days ago, all member states agreed to work more closely together on asylum and immigration in support of protection against the abuse that undermines the whole system. The Dublin convention is a crucial part of a European-wide response to the problems. An asylum applicant in the European Union should have his or her case considered by one member state—and one member state only. Unless we can ensure that that happens, unfounded applications throughout the European Union will continue to spiral, as would-be migrants see the opportunity to move from one

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country to another, decide where they have the best chance and, in many cases, make successive claims, exploiting just the kind of differences in interpretation of the law to which the noble Lord, Lord Goodhart, referred.
Because of its geographical location, the United Kingdom is frequently the end of the line for such applicants. But let us be clear: this is not a question of the United Kingdom seeking selfishly to reduce its own numbers of asylum seekers at the expense of other member states. The point is that an effective Dublin convention will benefit all member states, because its deterrent effect will reduce the numbers of unfounded applicants circulating throughout the European Union.
Clause 9 is essential if the United Kingdom is to play its full part in the arrangements and gain full advantage from them. In the past 12 months nearly one-third of cases in the United Kingdom certified for removal to other member states have become entangled in disputes and litigation, often protracted and on the basis of differences between member states' approach to the 1951 convention. That is a perfect background for racketeers to operate in, resulting in typical abuse of the legal system.
Other member states do not report similar obstacles to making the agreement work. Let us consider, for example, the question of non-state persecution, to which the noble Lord, Lord Goodhart, referred. Denmark and Belgium, like the United Kingdom, take a different view from France or Germany in relation to the interpretation of the refugee convention; yet neither Denmark nor Belgium has any difficulty, as a result of the difference, in transferring applicants under the Dublin convention, and both regularly do so.
Clause 9, as drafted, therefore proposes that other member states should be regarded as safe third countries of asylum. That has been challenged by the noble Lord, Lord Goodhart, in a persuasive but incomplete speech, on the basis that in a recent case the Court of Appeal held France and Germany's interpretations of one point in the 1951 convention to be different from that of the United Kingdom.
Before I turn to that, perhaps I may deal with the point made by the noble and learned Lord, Lord Ackner. He said that the Court of Appeal's decision should not be overturned on policy grounds. It is broadly accepted that, wonderful though the Court of Appeal is, it is subject to the sovereignty of Parliament in a number of respects. Although noble and learned lawyers might think that they should be the final determiners of such things, it is widely accepted that Parliament should be the determiner of those matters.
Lord Ackner: My Lords, I do not believe that anything I said in any way criticises that well established and well accepted point. But if you are
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going to deprive the citizen of the advantages of the decision of the Court of Appeal, you must do it in the proper way, not like this.
Lord Falconer of Thoroton: My Lords, I would not put it on the basis of depriving the citizen of the benefit of the Court of Appeal's decision. I put it on the basis that in so far as it is a matter where Parliament disagrees with the conclusion of the Court of Appeal, it does so on the basis of legislation which comes to a different conclusion.
The question of whether other member states can be regarded as safe third countries of asylum is properly one which Parliament may address in legislation. All member states are highly advanced democracies with independent courts and distinguished judges and advocates. Their vigilance in applying international law to the highest standard is surely a matter on which they can be expected to show a mutual trust. There is no international court dedicated to interpreting the 1951 convention and it is inevitable that national courts will develop case law in some respects differently or will arrive at similar conclusions but at different times. With asylum law being such an active and developing field, it would be astonishing if there were complete uniformity between all member states.
However, despite all that, the noble Lord, Lord Goodhart, argues that France and Germany cannot be regarded as safe third asylum countries because of the conclusion of the Court of Appeal in the cases to which he referred. That decision is subject to appeal to my right honourable friend the Secretary of State. However, I do not invite your Lordships to anticipate the outcome of that appeal, nor to hear the arguments that will be put forward on my right honourable friend's behalf, because this is not a court of law.
Instead, I suggest that we address the fundamental question: in the light of the rulings in France and Germany, do we regard those countries as fundamentally safe, in that they will not return to other countries people who are in genuine need of protection? That is the question, not what is the effect of differences in the law. That is just what the racketeers wish to take advantage of.
To answer the fundamental question, we need to consider the full range of measures of protection available in member states. The Court of Appeal's judgment was focused on the question of interpretation. In doing so, the court was examining the cases in the framework of the legislation set by Parliament in the Asylum and Immigration Act 1996. As we had agreed in court to consider the cases substantively, the Court of Appeal at no stage addressed the actual risk of the three individuals involved being returned to their countries of origin. The noble Lord, Lord Goodhart, nods. The court was

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not addressing the issue of whether they would be returned; it simply addressed the question: what did the refugee convention mean?
Like the United Kingdom and other member states, both France and Germany operate other forms of protection outside the 1951 convention. Both countries have provisions in their statute law which expressly deal with such alternative forms of protection. Both countries, as well as all other member states, are signatories to the European Convention on Human Rights. That convention has a supranational court overseeing its interpretation. Moreover, Article 3 of the convention focuses squarely on protection against inhuman or degrading treatment. The court at Strasbourg has found that to be an absolute protection. In that respect, the ECHR goes even further than the 1951 refugee convention.
I would not ask your Lordships to agree that other member states should be trusted to deal properly with the asylum seekers for whom they are responsible under international law unless we were confident, as a Government, that there was no risk in practice of those people being returned to face persecution.
Clause 9 is a bold provision, but it is entirely consistent with our international obligations. We face a clear choice. We can let Clause 9 stand part of the Bill and he ready to play our full part with our partners in the European Union in tackling the insidious abuse of asylum processes which undermines the protection of those genuinely in need; alternatively, as the noble Lord, Lord Goodhart, supported by the noble and learned Lord, Lord Ackner, proposes, we can vote to exclude the clause from the Bill and allow differences in the boundary line which member states draw between one form of protection and another to frustrate the operation of the Dublin convention. That would be to the benefit of no one except the abusers of the system and those who profit by exploiting them. I urge your Lordships to prefer the first option and to reject the amendment.
Lord Goodhart: My Lords, I do not dispute that there is abuse of the right of asylum, but that argument must not be used to prevent people who have a justifiable case from putting it forward. Non-state groups can, and plainly do, commit acts of persecution. France and Germany do not recognise that kind of persecution as coming within the refugee convention; the United Kingdom does, in my view rightly. It follows inevitably from those propositions that if the UK authorities return an applicant who complains of non-state persecution to a state which does not recognise that as coming within the convention, they are being required to act in a way that is contrary to their obligations under the refugee convention as interpreted by the Court of Appeal. While that is clear, and for reasons which my noble friend Lady Williams and I explained earlier we do not intend to divide the House on this occasion, it is certainly something to which we shall return on Third Reading. I therefore beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
5 p.m.
The Attorney-General (Lord Williams of Mostyn)The Attorney-General (Lord Williams of Mostyn) moved Amendment No. 14:
After Clause 11, insert the following new clause—

PROTECTION OF CLAIMANTS FROM REMOVAL OR DEPORTATION
(" .—(1) During the period beginning when a person makes a claim for asylum and ending when the Secretary of State gives him notice of the decision on the claim, he may not be removed from, or required to leave, the United Kingdom.
(2) Subsection (1) does not prevent—

(a) directions for his removal being given during that period;

(b) a deportation order being made against him during that period.

(3) But no such direction or order is to have effect during that period.
(4) This section is to be treated as having come in to force on 26 July 1993.").
The noble and learned Lord said: My Lords, I beg to move Amendment No. 14 with which is grouped Amendments Nos. 14A, 14B, 14C, 74, 304 and 315. Essentially, this group of amendments repeals and re-enacts Section 6 of the Asylum and Immigration Appeals Act 1993 but with some important modifications. Noble Lords will be aware that at the moment Section 6 of the 1993 Act provides that someone who has applied for asylum may not be removed from and be required to leave the United Kingdom until he has been notified of the decision on his claim. This will continue to be the case under Amendment No. 14. However, the amendment goes on to provide that, nevertheless, it is permissible to set removal directions or to make—that is to say, sign—a deportation order in respect of the person concerned, although the direction or order will not have any effect until the individual concerned has been notified of the outcome of the asylum application.
The reasons are technical and I shall explain them briefly. Section 8 of the 1993 Act deals with appeals, to a special adjudicator. There is no right of appeal against a decision to refuse asylum as such; rather, under Section 8(1) there is a right of appeal against refusal of entry. Under Section 8(2) there is a right of appeal against refusal to vary leave, and Section 8(3) provides a right of appeal against a decision t o make a deportation order or to refuse to revoke one. Section 8(4) gives a right of appeal against directions for someone's removal as an illegal entrant. In each case the grounds for appeal are that to remove the person concerned, or to require the individual to leave, would be contrary to our obligations under the 1951 convention.
Section 6 means that someone who has applied for asylum cannot be required to leave until he has been notified of the outcome of that application. In the case of an illegal entrant, if the notices are served in person the immigration officer cart hand the person concerned the letter explaining why the application has been refused, which brings to an end the period during which the person cannot be required to leave. He can then go on to set directions for that person's removal. The person can appeal to an adjudicator against the

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decision to give directions and the case comes before an adjudicator who assesses the merits of the claim to protection under the terms of the convention.
If the applicant is being notified by post, the position is more complicated. If the directions are a requirement to leave the UK, Section 6 in its present form stops the asylum decision and removal directions being sent to the applicant at the same time. This is because when the letter is sent the applicant obviously cannot have received the decision on his application. The immigration officer, therefore, has no power to make removal directions, but it is the decision to give removal directions which triggers the right to appeal. This bears most heavily on asylum applications from illegal entrants where about half the refusal decisions are served by post, but the principle applies also to other types of asylum application.
We therefore have two unattractive alternatives: either we have to serve notice of the asylum decision in person, which is resource-intensive and affords an opportunity for the person concerned to prolong the period during which he cannot be removed by failing to come in to receive the decision letter, or there is a situation in which the letter that refuses asylum is sent to the applicant, followed a couple of days later by a second letter which sets removal directions. Bureaucracy gone mad! From the standpoint of the applicant, he would have a letter saying that his asylum application had been refused but until he received the second letter in no way could he challenge that decision.
The government amendment allows removal directions to be given or a deportation order to be made before the applicant has been notified of the decision on the claim, although obviously the decision is taken only after the claim has been considered and the case worker has decided that the applicant is not a refugee. The directions or order do not take effect until after the subject has been informed that the application has been refused. Amendment No. 74, which is linked with this amendment, makes a corresponding adjustment to the protection from removal granted under the Bill to those who seek leave to enter or remain on ECHR grounds.
Subsection (4) of the main clause in this grouping provides that the provision is to be treated as having come into force on 26th July 1993. That was the date on which the 1993 Act itself came into force. For some years it has been the practice to serve by post letters that refuse asylum and give removal directions. In many, probably most, cases the person concerned will have appealed; the appeal may have been heard and the person concerned may have been removed. The legal advice we have received is that because there was no power to give removal directions at the time they were made, it is arguable that there was nothing to appeal about and those appeals are nullities. Those to whom this has happened have not been disadvantaged. They have been refused asylum and have appealed to an independent adjudicator who has considered the case and reached a decision on the evidence before him. There is nothing in terms of fairness to require them to
780
be brought before an adjudicator to have the case considered a second time because the first appeal ought not to have been accepted as valid. We have therefore decided to take the pragmatic step, which we hope your Lordships will approve, of legitimising those removal directions and the appeals flowing from them retrospectively. Small consequential changes will be required at Third Reading if your Lordships approve this group of amendments.
It is probably convenient, subject to the view of the noble Baroness, if I deal briefly with Amendments Nos. 14A to 14C. I have given the explanation that stands behind our amendments. Amendments Nos. 14A to 14C, if carried, would mean that someone who had claimed asylum could not be required to leave until his application had been decided and there was either no appeal or an appeal had been determined. Amendment No. 14B, which seeks to delete subsection (2), would mean that removal directions that required an applicant to leave the country could not be set until the period of protection from removal had come to an end. We would be going round and round in circles. Bearing in mind questions raised earlier today in my absence—for which I apologise—I appreciate that there has been a relatively short time to consider some aspects of these matters. That is why I have sought to explain the deficiencies, as we see them, of Amendments Nos. 14A to 14C. I hope that that explanation is sufficient and that your Lordships will approve the amendments to which I spoke earlier.
Baroness Williams of Crosby Baroness Williams of Crosby moved, as an amendment to Amendment No. 14, Amendment No. 14A:
Line 3, in subsection (1), leave out ("the Secretary of State gives him notice of the decision on the claim") and insert ("that claim is determined").
The noble Baroness said: My Lords, on the face of it Amendment No. 14 appears to be rather innocent and the amendments that I have tabled may look no less innocent. However, despite the explanation offered by the noble and learned Lord, Lord Williams, for which I thank him, there are a number of questions I should like to pursue. There is an evident conflict between Amendment No. 14 tabled by the Government and the text of the explanation note on the clauses. This is more than a mere procedural matter.
Under Amendment No. 14, it would be possible for the Secretary of State to give notice to someone who had made a claim for asylum that he would be likely to be removed at the end of that period. From what the noble and learned Lord, Lord Williams of Mostyn, said, notice of intention to remove the asylum seeker could be given at any point between the time of the asylum seeker making a claim and the decision being taken.
The explanation note from the Home Office on this clause states:
"Where an illegal entrant has applied for asylum and that application has been refused, the new clause will allow the decision letter and the notice of the removal directions … to be sent to the applicant at the same time".

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We seem, therefore, to have made rather a large leap from the Explanatory Notes. We do not take exception to that because, first, it would be after the asylum seeker's application had been refused; and, secondly, it would be simultaneous with the notice of appeal. We fully accept that. But that is a very different proposition from receiving a notice of removal in the course of an asylum seeker's application and before any decision has been made.
Unless I am under a large misapprehension, there are two reasons why the difference is serious and not merely procedural. First, the applicant would be sent notice of his probable removal before any decision had been made on his claim. Therefore, the phrase in the explanation note "an illegal entrant" makes an assumption which cannot be made. We do not know that the entrant is illegal; he might be a bona fide asylum seeker. Secondly, and at least as disturbing, the procedure of putting a removal direction before the asylum seeker—the noble and learned Lord, Lord Williams of Mostyn, may be able to help us—might prejudice hearings of his claim in courts other than those under the Home Office adjudication procedure.
Under new Clause 25, someone accused of entering this country with fraudulent documents could be prosecuted for fraud because he had fraudulent documents, despite the fact that he had made his original application under the refugee convention, and could then use the defence that he had come under the refugee convention, but that case would not mean that the person might not be prejudiced by having a deportation order against him. We are not clear whether in a magistrates' court considering a charge of fraudulent papers the asylum seeker could be described as someone against whom a deportation order had been made although his case would not by that time have been decided by the Secretary of State. That is our first and real concern.
Our second concern is that the phrase "during the period" in Amendment No. 14 suggests that the deportation order could be laid at any time. The legislation appears to be unambiguous on that point. But that is very different from the reference in the explanation note that,
"the new clause will allow the decision letter and the notice of the removal directions … to be sent to the applicant at the same time".
We have no objection to that provided that the claim has been determined. Indeed, we believe that it is efficient and will speed up procedures. But that is very different from making an assumption that someone will he removed when his or her case has not even been heard.
I add a final consideration. We believe that this is important; that is why we have put down the amendments at relatively short notice. I refer to the impact on the asylum seeker whose case had not been determined of receiving suddenly by post an indication that he is about to be returned to the place from which he came; in other words, that he is to be removed or deported. I ask noble Lords to think for a moment about the impact on someone who has only just arrived in this country. He has made an application for asylum. He may have strong reasons for claiming
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asylum, including, for example, evidence of torture, but within a matter of days of lodging his claim he receives a removal or deportation order. I can imagine that that would put such a person under the most extreme stress and would enable us to distinguish clearly—as we on these Benches seek to do throughout the Bill—between someone illegitimately seeking to enter this country and a bona fide asylum seeker.
We do not regard Amendment No. 14 as a minor matter. Regrettably, we have to regard it as a significant matter, not least because of the wide difference between the assurances of the explanation note as to what Amendment No. 14 means, the wording of the Bill, and the remarks of the noble and learned Lord, Lord Williams.
Amendment No. 14A is intended primarily to deal with the time at which a deportation or removal order could be served on an asylum seeker. We have consistently stated, and believe, that this should happen only when the claim is determined although procedures could move as quickly as possible after that.
Amendment No. 14C makes plain how strongly we believe that action should be taken as quickly as possible after that. We have indicated that we believe that there should be very quick action on that matter.
Subsection (2) is objectionable for the reasons I have stated. The phrase "during that period" is not compatible with "at the same time". The issuing of a deportation order could raise huge issues if the matter passed to a magistrates' court in the way that we understand could happen under new Clause 25.
We shall listen closely to the Government's response. However, at this stage I cannot promise in all circumstances not to try the opinion of the House. I beg to move.
5.15 p.m.
Lord Renton: My Lords, I sympathise sincerely with the Government's efforts to control immigration and bogus asylum seekers. However, in my opinion the clause is very confusing. It contradicts itself and other clauses of the Bill. The noble Baroness, Lady Williams of Crosby, wishes to leave out subsection (3).
Baroness Williams of Crosby: My Lords, we suggest that subsection (2) should be left out.
Lord Renton: My Lords, I apologise. If subsection (2) were left out, the position would be chaotic. Subsection (3) should surely not apply if the immigrant is already known to be a notorious political terrorist; has a bad criminal record; entered the United Kingdom with the manifest intention of taking aggressive action against Her Majesty's Government or some group of people here; or if he is obviously a bogus asylum seeker. Subsection (4) is most unusual. It is retrospective to such an extent that it affects the past six years.
I understand that the Government are trying their best to deal with a difficult and complicated situation, but I believe that they should take away Amendment

783
No. 14 and reconsider it. I should have thought that they could do without it, but they should certainly reconsider it between now and the next stage. Amendments Nos. 14A, 14B and 14C make the measure even more ineffective and I hope that they will be rejected.
Lord Avebury: My Lords, perhaps I may reassure the noble Lord, Lord Renton. Supposing that the person concerned is a terrorist or bogus asylum seeker and the Secretary of State has so ruled, he will be able to give a decision on the claim. The period mentioned in subsection (1) will have expired and the direction or order could have effect.
The correct reading of the clause is that the direction or order is not to have effect during the period between two events. The first event is when the person makes a claim and the second is when the Secretary of State gives him notice of his decision on the claim.
Lord Renton: My Lords, I thank the noble Lord for giving way. What he says is negatived by what is put into subsection (3) of the new clause, which states:
"But no such direction or order is to have effect during that period".
Lord Avebury: My Lords, no direction for his removal—
Lord Carter: My Lords, we are on Report; we are not in Committee.
Lord Avebury: My Lords, I will bear that in mind and not give way in future. I am sorry if I broke the conventions of the House, but it was important for me to clear up a misapprehension in the mind of the noble Lord, Lord Renton, and perhaps, because of his great authority, in the minds of other Members of your Lordships' House.
The direction or order does not have effect during the period of the two events I have described. However, my noble friend Lady Williams pinpointed something which also causes me great anxiety. The wording of the new clause is directly contradictory to the Explanatory Notes issued by the Home Office, which states, and I have every sympathy with this, that it wishes to serve the notice of decision on the claim and the removal directions at the same moment, thus triggering off the right of appeal. But as my noble friend explained, the directions for removal, or the deportation order, can be served at any time during the period between the two events I have described.
The Secretary of State, if he chooses to do so, can give directions the day after receiving a claim, even though he will not make a decision on it for months or even years. We know that people do not receive the first decision for many years after the first application. Therefore, according to the clause, throughout the whole period an asylum seeker will have a removal direction hanging over his head. I am sure that that
784
was not the Government's intention and therefore they need to take the new clause away and think about it again.
Lord Alton of Liverpool: My Lords, while supporting the points made by the noble Baroness, Lady Williams, and the noble Lord, Lord Avebury, perhaps I may reiterate the point about natural justice. It would be peculiar indeed in this country if someone were charged with a felony before the investigation had been completed. That is the analogy one can draw with the procedure placed before your Lordships' House.
I want to ask the Minister a direct question about the practical effect on someone against whom a removal notice has been served, but who before a decision is reached, decides to return to his country of origin. What will happen if on another occasion he applies to come to this country, or to go to any other country, and is asked, "Has a removal notice ever been lodged against you?"?
Surely, in those circumstances he will have to give the truthful answer, "Yes, it has.". Can the Minister say whether that will lead to a prejudicial decision being taken against a subsequent visit being able to be made either to the United Kingdom or to any other country?
Lord Cope of Berkeley: My Lords, I have considerable sympathy with what the Government are trying to achieve by inserting the new clause. However, it might be helpful if it were a little closer to the Explanatory Notes which were sent to some of us, and was modified so as to make clear that the notice will not be served on the individual concerned except at the same time as, or later than, the notice of the determination of his application for asylum. I believe that in that way we shall overcome all the difficulties that have been expressed during this short debate.
There is no such amendment on the Marshalled List, but no doubt there could be at a later stage.
Lord Williams of Mostyn: My Lords, I shall give careful attention to what the noble Lord, Lord Cope, has said. I cannot give an undertaking, but I shall think about it with some care.
I turn to the problems raised by the noble Baroness, Lady Williams. I understand her concern, but, taking her amendments together, we could never remove anyone who had claimed asylum on arrival or any illegal entrant who had claimed asylum, whether or not that application was refused. The reason, which I tried to indicate clearly, is that removal directions cannot be set until the appeal has been completed. However, the appeal cannot even begin until the removal directions are set. That is the difficulty with Amendments Nos. 14A, 14B and 14C.
Under Section 6, we cannot set removal directions until the applicant has been notified of the outcome of his application. Section 6 does not state "until the claim has been decided". That is why decisions cannot be served at the same time and the wording I am

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requesting would allow removal directions to be set before the applicant has been notified. We shall in every case consider whether the subject is a refugee. If the subject is a refugee, we shall not set removal directions. We do not propose to set removal directions until the asylum case has been considered, but at the moment we cannot do that until the asylum seeker has been told.
The noble Lord, Lord Alton of Liverpool, asked a particular question. If someone is being granted leave to remain as a refugee, he is allowed to stay. Therefore, he will not be abroad seeking to come here and I suggest that in those circumstances the noble Lord's question does not arise.
Lord Alton of Liverpool: My Lords, I am grateful to the Minister for giving way. With respect, that was not the question I put. I asked what would happen if the individual against whom a removal notice had been made in advance of any of these procedures taking place decided to short-circuit the mechanism by returning to his country, because circumstances had changed there, and did not go forward with an appeal in the United Kingdom. If he were subsequently asked whether a removal notice had ever been placed on him, would that prejudice his subsequent request to come here or to enter any other country?
Lord Williams of Mostyn: My Lords, in those circumstances, I do not believe that it could prejudice, in the sense that the noble Lord means—namely, determine adversely—any subsequent decision.
The directions will not be served until there is a decision on the claim. I am sorry that I was wrong in my example; I am sure that it was my misunderstanding. In the circumstances predicated by the noble Lord, there would not have been a decision. If he asks whether a person would be irretrievably damaged or prejudiced by the circumstances he describes, my answer is that as far as I am aware, no.
I ought to research that matter further because I plainly did not understand the question the first time round. I or my noble friend Lord Bassam will write to the noble Lord with an answer as to whether he is right or I have misunderstood him again.
We are trying to get some shape into a situation which everyone agrees is not satisfactory. I shall think about what has been said. If true difficulty still remains, obviously we shall give the matter further attention. For the moment, I invite the noble Baroness not to press Amendments Nos. 14A, 14B and 14C, and urge the House to accept government Amendment No. 14.
5.30 p.m.
Baroness Williams of Crosby: My Lords, I should say right away that if the amendments are defective— they may be—it is partly due, first, to the confusion, which I attempted to explain, between the amendment on the Marshalled List and the explanatory memorandum; and, secondly, because although we read Amendment No. 14 carefully, we simply could
786
not square it with the explanatory memorandum. With great respect to the eloquence of the noble and learned Lord, which is very great indeed, we are still unable to do so.
The noble and learned Lord indicated that he would give consideration to the points being made in this short debate, but he also said clearly that he could not give an undertaking. The noble and learned Lord, Lord Williams, agrees that he cannot at the moment answer the subsequent question of the noble Lord, Lord Alton, because it is on a point somewhat different from that which he had in mind; nor has he been able to respond to the point I raised, which is admittedly extremely complicated, about the impact of new Clause 25. I asked whether it would mean that a defence by an asylum seeker against a charge of entering the country with fraudulent documents might in fact be prejudiced by a statement that a deportation or removal order was already outstanding against him, although the claim itself by definition would not have been decided because he would not be in front of a magistrates' court if that had been the case.
Therefore, we fear that Amendment No. 14 carries many more complexities than we at first thought. At first we were happy to welcome it, but the more we thought about it and talked to one another and the more we consulted people with long legal knowledge in the field of immigration law, the more we became concerned. If the noble and learned Lord and his colleagues would be willing to consider tabling a redrafted amendment which met some of our worries and which would also deal with the gap between the explanation note and the clause, we should not press our amendment at the present time.
We would much rather not do so, because we want to work with the Government on this matter and we certainly do not want to string out an endless process of appeal. The Government are aware that we have always said that we support them on speeding up the procedure, and we still do. However, I am afraid that the complexities are such that we dare not allow this amendment to go ahead as it stands, because the Bill will go to another place on the understanding that all the parties have agreed on the matter. With great respect, for the reasons which I hope I have made reasonably clear, we simply cannot leave it like that.
I shall pause. If the noble and learned Lord wants to intervene before I sit down, I am happy not to sit down for the moment. If he feels unable to intervene, I am afraid that we shall have to seek the view of the House, not on the amendments but on the clause itself; that is, on Amendment No. 14.
Lord Williams of Mostyn: My Lords, the noble Baroness has been helpful, as always. I am intervening not to meet what she asks for, but simply to say that I cannot do so. We have thought carefully and come to an appropriate conclusion on this matter. I have said, as always, that my noble friend Lord Bassam and I are perfectly willing to reconsider the matter, but l cannot

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give any guarantee. I believe that we have got it right and I should not want the noble Baroness to be under any misapprehension about what is likely to follow.
Lord Cope of Berkeley: My Lords, I am sorry to interrupt the noble and learned Lord, but is he going to look at the drafting again and particularly at the point I raised?
Lord Williams of Mostyn: Certainly, my Lords, I said that I would, but I believe that the noble Baroness would like me to say either that I shall take the amendment away, or something more positive than that. I shall look at the drafting in the way that I mentioned to the noble Lord, Lord Cope, in response to his helpful intervention. Amendment No. 14 is indeed my baby. I commend it to the House.
Baroness Williams of Crosby: My Lords, I had already indicated, I hope, that for the reasons which I have already explained to the noble and learned Lord, Lord Williams, I intend to seek the opinion of the House on Amendment No. 14, but not to press our amendments. I beg leave to withdraw Amendment No. 14A.
Amendment No. 14A, as an amendment to Amendment No. 14, by leave, withdrawn.
[Amendments Nos. 14B and 14C, as amendments to Amendment No. 14, not moved.]
5.35 p.m.
On Question, Whether the said amendment (No. 14) shall be agreed to?
*Their Lordships divided: Contents, 129; Not-Contents, 47.

Division No. 1

CONTENTS

Acton, L.

Darcy de Knayth, B.

Ahmed, L.

David, B.

Allenby of Megiddo, V.

Davies of Coity, L.

Alli, L.

Davies of Oldham, L.

Amos, B.

Denham, L.

Archer of Sandwell, L.

Desai, L.

Ashley of Stoke, L.

Diamond, L.

Bach, L.

Dixon, L.

Barnett, L.

Donoughue, L.

Bassam of Brighton, L.

Dormand of Easington, L.

Berkeley, L.

Dubs, L.

Blackstone, B.

Eatwell, L.

Blease, L.

Evans of Parkside, L.

Bragg, L.

Evans of Watford, L.

Brett, L.

Falconer of Thoroton, L.

Brooke of Alverthorpe, L.

Farrington of Ribbleton, B.

Brookman, L.

Faulkner of Worcester, L.

Brooks of Tremorfa, L.

Filkin, L.

Burlison, L.

Gale, B.

Carter, L.[Teller]

Gilbert, L.

Christopher, L.

Gordon of Strathblane, L.

Clarke of Hampstead, L.

Gould of Potternewton, B.

Cledwyn of Penrhos, L.

Graham of Edmonton, L.

Cocks of Hartcliffe, L.

Gregson, L.

Crawley, B.

Grenfell, L.

Currie of Marylebone, L.

Hacking, L.

788

Hardy of Wath, L.

Morris of Manchester, L.

Harris of Haringey, L.

Murray of Epping Forest, L.

Hayman, B.

Nicol, B.

Healey, L.

Palmer, L.

Hilton of Eggardon, B.

Park of Monmouth, B.

Hogg of Cumbernauld, L.

Peston, L.

Hollis of Heigham, B.

Pitkeathley, B.

Howie of Troon, L.

Plant of Highfield, L.

Hughes of Woodside, L.

Ponsonby of Shulbrede, L.

Hunt of Kings Heath, L.

Prys-Davies, L.

Irvine of Lairg, L. (Lord Chancellor)

Puttnam, L.

Ramsay of Cartvale, B.

Islwyn, L.

Rea, L.

Janner of Braunstone, L.

Rendell of Babergh, B.

Jay of Paddington, B. (Lord

Richard, L.

Privy Seal)

Rogers of Riverside, L.

Jenkins of Putney, L.

Sainsbury of Turville, L.

Kilbracken, L.

Scotland of Asthal, B.

King of West Bromwich, L.

Sewel, L.

Lauderdale, E.

Shepherd, L.

Lea of Crondall, L.

Sheppard of Liverpool, L.

Levy, L.

Simon, V.

Lipsey, L.

Simon of Glaisdale, L.

Lockwood, B.

Stone of Blackheath, L.

Lofthouse of Pontefract, L.

Strabolgi, L.

Longford, E.

Symons of Vernham Dean, B.

Lovell-Davis, L.

Taylor of Blackburn, L.

McCarthy, L.

Taylor of Gryfe, L.

Macdonald of Tradeston, L.

Tenby, V.

McIntosh of Haringey, L.

Thornton, B.

[Teller]

Turner of Camden, B.

Mallalieu, B.

Uddin, B.

Mar, C.

Varley, L.

Marsh, L.

Walker of Doncaster, L.

Masham of Ilton, B.

Warner, L.

Mason of Barnsley, L.

Warwick of Undercliffe, B.

Milner of Leeds, L.

Watson of Invergowrie, L.

Molloy, L.

Whitty, L.

Molyneaux of Killead, L.

Wilkins, B.

Monkswell, L.

Williams of Elvel, L.

Montgomery of Alamein, V.

Williams of Mostyn, L.

NOT-CONTENTS

Addington, L.

Lichfield, Bp.

Ailesbury, M.

Limerick, E.

Alton of Liverpool, L.

McNair, L.

Avebury, L.

Maddock, B.

Barker, B.

Merrivale, L.

Blyth, L.

Monk Bretton, L.

Bradshaw, L.

Newby, L.

Carlile of Berriew, L.

Ogmore, L.

Carlisle, E.

Oxford, Bp.

Dholakia, L. [Teller]

Phillips of Sudbury, L.

Falkland, V.

Razzall, L.

Redesdale, L.

Goodhart, L.

Richardson of Calow, B.

Greenway, L.

Sandwich, E.

Grey, E.

Sharp of Guildford, B.

Hampton, L.

Southwark, Bp.

Hamwee, B.

Taverne, L.

Harris of Greenwich, L.

Thomas of Walliswood, B.

Holme of Cheltenham, L.

Thomson of Monifieth, L.

Hylton, L.

Thurso, V.

Jacobs, L.

Tope, L.

Jenkins of Hillhead, L.

Tordoff, L.

Kinnoull, E.

Wallace of Saltaire, L.

Lester of Herne Hill, L.

Williams of Crosby, B. [Teller]

[*The Tellers for the Contents reported 129 votes. The Clerks recorded 131 names.]
Resolved in the affirmative, and amendment agreed to accordingly.
5.45 p.m.
Lord Williams of Mostyn Lord Williams of Mostyn moved Amendment No. 15:
After Clause 11, insert the following new clause—

ESCORTS FOR PERSONS REMOVED FROM THE UNITED KINGDOM UNDER DIRECTIONS
(".—(1) Directions for, or requiring arrangements to be made for, the removal of a person from the United Kingdom may include or be amended to include provision for the person who is to be removed to be accompanied by an escort consisting of one or more persons specified in the directions.
(2) The Secretary of State may by regulations make further provision supplementing subsection (1).
(3) The regulations may, in particular, include provision—

(a) requiring the person to whom the directions are given to provide for the return of the escort to the United Kingdom;

(b) requiring him to bear such costs in connection with the escort (including, in particular, remuneration) as may be prescribed;

(c) as to the cases in which the Secretary of State is to bear those costs;

(d) prescribing the kinds of expenditure which are to count in calculating the costs incurred in connection with escorts.").

The noble and learned Lord said: My Lords, in this group we find Amendments Nos. 15, 15A and 283. Amendment No. 15 is a government amendment; Amendment No. 15A is tabled in the names of the noble Baroness, Lady Williams of Crosby, and the noble Lord, Lord Avebury; and Amendment No. 283 is a government amendment.
Perhaps I may speak quite briefly to these amendments because my understanding is that they fall within the category on which it has been generally agreed that the views of the Delegated Powers and Deregulation Select Committee will be helpful. I hope I am not in error on that. I shall deal briefly with the points as they presently stand on the indication that I have given.
As I said, Amendment No. 15A is tabled in the names of the noble Baroness and the noble Lord. Under paragraph 8 of Schedule 2 to the 1971 Act, where a passenger is refused leave to enter, the captain of the ship or aircraft may be directed to remove him from the United Kingdom; or the owners or agents of the ship or aircraft may be given directions to remove him.
Under paragraph 9 of that schedule, such directions may be given in respect of an illegal entrant, although not where leave to enter has been obtained by deception. Under paragraph 10, the Secretary of State may give certain directions relating to removals at public expense. Schedule 3 allows such direction to be given in respect of someone who is being deported. For completeness, Amendment No. 283 is a consequential amendment to Section 27 of the 1971 Act.
I spoke briefly to Amendment No. 15A. I said at the outset that Amendments Nos. 15 and 15A fall into the category upon which I believe there is general agreement among your Lordships. Therefore, I shall confine myself to saying that, if pressed, as I shall be by the noble Baroness in a moment or two, I shall be
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content to subscribe to the agreement which was reached earlier. I do not believe it is helpful to address your Lordships further. I beg to move.
Lord Avebury Lord Avebury moved, as an amendment to Amendment No. 15, Amendment No. 15A:
Line 7, leave out subsections (2) and (3).
The noble Lord said: My Lords, I am grateful to the noble and learned Lord, Lord Williams of Mostyn, for his explanation and for kindly saying that this is one of the provisions to which the undertaking he gave a few minutes ago applies. In other words, we need not waste a great deal of time on it because it will come back to us—perhaps in a different form—at Third Reading.
As I understand it, the directions to remove a person or to make arrangements for his removal can be given to the captain, owners or agents of the ship or aircraft on which the person arrived. The noble and learned Lord has referred back to the provisions in the schedule to the 1971 Act on which these powers are originally based.
The clause provides for an unlimited number of escorts. The carrier has to pay not only the cost of carrying the person being removed, but also the cost of carrying the escorts. The carrier also has to pay the remuneration of the escorts, presumably for the time that it takes them to travel overseas and back.
Further, the Secretary of State can oblige the carrier to pay other costs in connection with the escorts, which are to be defined in regulations. The noble and learned Lord, Lord Williams of Mostyn, referred to those regulations and the fact that they shall need to be looked at by the Select Committee on Delegated Powers and Deregulation.
The clause does not say who is to be landed with such costs. We are obliged to the Minister for the note that clarified that. I wonder whether that should be on the face of the Bill. Do the carriers know about that provision? Have they been consulted?
On previous occasions, on other parts of the Bill, there have been expressions of concern from carriers about the enormous costs being imposed on them under this Bill. If we are to tell them that they not only have to carry those who are being removed, but also an unlimited number of escorts, and that they have to pay for the remuneration of the escorts and any other incidental costs that the Minister may impose on them by such regulations, they must be entitled to have their say. They should be able to make representations that there should be a right of appeal against the penalties which the clause imposes on them. I see nothing in the clause about the rights of the carrier to appeal to an independent authority against having to pay those additional costs when the carrier had no means of knowing that the passenger was not a bona fide entrant.
I am sure that in many cases where a person is given notice of removal, and has to be returned by the carrier, the carrier had no reason to assume that the documents used by that person to travel to the United

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Kingdom were not genuine and that he did not have a legal reason for entering the country until that fact was discovered by the immigration officer.
We are anxious about this clause. I need not say more about it at this stage because we shall have an opportunity to refer to it again at Third Reading. I beg to move.
Lord Dholakia: My Lords, I have a point of concern on this matter. My noble friend Lord Avebury has raised the matter of the cost of escorts. Some deportees, who may have settled illegally in this country, cause considerable anxiety in the community. In some cases people have been bound and gagged and death has occurred.
I am interested in the legality of this issue. If someone escorts an illegal immigrant and that illegal immigrant dies in the country to which he has been deported, what would be the position of the escort? There have been cases where, once deported, such a person has been taken out of the airport and shot dead. There have been cases of people who have never been found again. A considerable onus could be placed on the escorts if they could be charged with matters such as manslaughter.
Lord Hylton: My Lords, this may be a convenient moment for me to raise a point that, to my knowledge, has occurred in certain cases where escorts have accompanied deportees back to their countries of origin. Such problems have occurred, particularly when the country in question has a despotic government or where the political situation is chaotic.
Can the Minister give me an assurance that the duties of escorts will be carefully and precisely defined? I have in mind the fact that they should have a duty to take the deportee as far as the steps of an aircraft or the gangplank of a ship, when landing in the appropriate country, and no further. I say "no further" because if the escorts go further, there is a risk, particularly with political dissidents or people who have opposed the government in their country of origin, that the deportee will be identified and immediately arrested.
In my view, similar considerations apply to such matters as aircraft or ship passenger manifests. In cases of political dissidents or political opponents of certain regimes, the manifests should not make it clear that the individual is being deported from the United Kingdom, otherwise suspicion will immediately be aroused.
I realise I have not given notice of this slightly arcane matter, but I ask the Minister to consider it fully.
Lord Cope of Berkeley: My Lords, I rise primarily to express gratitude that the Government are treating this new clause as one to which the undertaking given at the start of our proceedings applies. It seems to me that the regulations that can be made under this new clause are extremely wide and permit the Secretary of State to do all sorts of things to quite a lot of people, should he take it into his head to do so. The powers are not
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restrained. They are extremely wide. For that reason I believe that we should be cautious about giving the Secretary of State carte blanche in this respect.
I have not had any representations from carriers. They may not have noticed this clause. It was handed in on Wednesday and appeared in the Order Paper on Thursday so they have not had a lot of time to notice it and decide whether they have views on it. Perhaps between now and Third Reading we shall think of some suitable restrictions which may be placed on this to make sure that the Secretary of State cannot extend its use beyond the more restrictive words that were used in the covering letter to me and to others which described the clause and confined it to captains of ships and persons of that class.
Lord Desai: My Lords, while travelling I came across the case of a passenger who, after boarding an aircraft, proceeded to destroy his passport by flushing it down the toilet. The people in charge of the carrier had accepted that person, believing that he had proper proof, but he destroyed that proof and hoped to claim asylum when he landed in London. Carriers may object, but they should be trusted to do the best that they can, and not be held responsible for matters when they are manipulated.
6 p.m.
Lord Williams of Mostyn: My Lords, all the points raised were reasonable ones, which is why it was agreed earlier that the appropriate scrutiny should be given. Perhaps I may touch generally on one or two matters of detail.
The level of payment by carriers for escorts will be settled by regulations, not set out on the face of the Bill. Carriers will not always have to pay. The circumstances will be set out in regulations. If one looks at the amendment in the name of my noble friend—Amendment No. 15—after Clause 11, one sees in subsection (3)(c) that there are some cases in which the Secretary of State will have to bear certain costs.
A point specifically raised by the noble Lord, Lord Avebury, was that the number of escorts should not be unreasonable or unlimited; that they must be appropriate to the circumstances. If they were unlimited, the matter would be subject to judicial review. The question of escorts raised by the noble Lord, Lord Hylton, is important. They are trained in safe procedures. That point was touched on by the noble Lord, Lord Dholakia. I am happy to reaffirm that escorts will be subject to the normal restraints of the criminal law in just the same way as anyone else who is acting in restraint of any person in this country.
All the questions raised were prudently raised. I am grateful for the indication given by the noble Lord, Lord Cope of Berkeley. That is the reason the understanding was arrived at and I am happy to deliver on it. Accordingly, I beg leave to withdraw Amendment No. 15.
Lord Avebury: My Lords, I endorse the gratitude expressed by the noble Lord, Lord Cope, to the

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Minister for dealing with this point under the general undertaking that he gave at the beginning that the matter would be referred to the Select Committee.
A number of points were raised during the course of this short debate which require further examination, including particularly the question the Minister dealt with in part; that is, the training of the escorts referred to by my noble friend Lord Dholakia and the noble Lord, Lord Hylton. It seems to me from looking at the list of matters on which the Secretary of State can make regulations, that the training of escorts is not among them. Perhaps that matter too can be considered before the clause comes back.
The noble Lord, Lord Cope of Berkeley, is probably right that the reason carriers have not made representations to your Lordships on this provision is because they have had inadequate time to consider it, bearing in mind it was tabled only on Friday morning. This may result in quite a lot of representation as to why they should not be asked to bear the costs, even though, as the Minister said, there are circumstances— not defined—where the Secretary of State has to pay the charges.
If the clause had said that the Secretary of State would always pay the charges in cases where the carriers had used their best endeavours to ensure that the person was a bona fide traveller, we would not have been so anxious about it. But the example given by the noble Lord, Lord Desai, is a telling one. It may frequently happen that a passenger boards the plane with documents which appear to be in order and the people responsible for examining the documents for the airline do everything they possibly can to satisfy themselves that that is the case, but it then turns out that the person intended to enter by irregular means or without proper documentation and the carrier is faced with the burden of carrying the costs, not only of taking the person back to his own country, but also for the escorts.
Although I take the Minister's point regarding opportunities for judicial review if the number of escorts is unreasonable, the new clause refers to,
"one or more persons specified in the directions".
That means that the number is, on the face of it, unlimited, although it could be challenged, as the Minister explained.
For all those reasons we are legitimately anxious about the wording of the new clause and hope not only that it will be looked at by the Select Committee during the interval between now and Third Reading, but also that the Minister will take the opportunity to go through the clause and see whether points have been raised during the debate which lead him to feel that some modification should be made on Third Reading. Meanwhile, I beg leave to withdraw the amendment.
Amendment No. 15A, as an amendment to Amendment No. 15, by leave, withdrawn.
Amendment No. 15, by leave, withdrawn.
Clause 12 [Security on grant of entry clearance]
Lord Dholakia Lord Dholakia moved Amendment No. 16:
Page 8, line 6, after first ("clearance") insert ("as a visitor").
The noble Lord said: My Lords, when this matter was debated in Committee, the concern I was expressing at the time related to the provision of financial security; that is, that we hoped it would not be a norm for visitors coming to this country and that it would not adversely affect a large number of people whose financial resources may not be adequate to sponsor a visit.
I read the clause carefully and discovered that it was extremely wide. The initial discussion related to visitors. But nowhere in the clause do I find it restricted to visitors. It goes much wider. Amendment No. 16 seeks to ensure that the payment of securities will not be widened to other categories. Why did we feel it necessary to table the amendment? The categories of person who would be made to pay securities are those who want to come here for a short visit. The entry clearance officer abroad may not necessarily believe that. Sponsors would then be asked for a. proper surety in this country.
Many sorts of people enter this country. We want to ensure that other categories of people—for example, businessmen, people coming here for the purpose of marriage, dependants, au pairs, and those who come for a working holiday—will not be asked for a depositor a surety as a basis for their entry.
I hope that the Government will accept this small amendment to restrict the scope of this clause to visitors so that it does not include also other categories of people. I beg to move.
The Countess of Mar: My Lords, I disagree with the noble Lord, Lord Dholakia. A number of working holidaymakers and students overstay and play the system once they are in this country. I do not see, where there are cases of doubt, why a security should not be required from them as much as from a visitor.
Lord Bassam of Brighton: My Lords, as the noble Lord, Lord Dholakia, said, Amendment No. 16 is designed to ensure that the scope of the provisions enabling financial securities to be required is restricted solely to visitors to the UK. I am aware that concern has been expressed by interested parties and that the Bill as drafted does not limit the power to require financial securities solely from those seeking to visit the UK.
During the course of the debate on this clause in another place, it was made clear that our current intentions are to use these powers in respect of visitors; more specifically, only those seeking to undertake family visits—a particular class of visitor which causes problems for applicants and visa officers alike over the assessment of an applicant's intention to leave the UK at the end of his visit. I am happy to have this opportunity to confirm that that remains our current intention. The vast majority of visit applications are straightforward and will not require the application of this provision.
Under the 1971 Act, the Secretary of State is empowered to make rules setting out the practice for regulating entry into and stay in the UK. That is the

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appropriate place for us to set out precisely how this power will be used, in what sorts of cases, and in what way. I can assure your Lordships that in making those rules we shall take full account of responses to the consultation exercise on the design of the pilot scheme which we shall undertake later this month.
The noble Countess, Lady Mar, makes a useful and valuable point. Bearing that in mind, it seems absurd to us to rule out completely the extension of the scheme to other categories of case if it proves popular and is a success. That would deny to other categories of applicant a possible way of showing their bona fides. I am afraid, therefore, that I cannot support the amendment.
Lord Dholakia: My Lords, I noted what was said by the Minister in the other place—that primarily the power is required in respect of visitors and family visits alone. We shall watch this financial security operation carefully and if need be return to the matter at another stage. Meanwhile, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Bassam of Brighton Lord Bassam of Brighton moved Amendment No. 17:
Page 11, line 15, at end inser—
("( ) a person with whom the Secretary of State has made a contract or other arrangements under section 90 or 94 or a sub-contractor of such a person;").
The noble Lord said: My Lords, this amendment places on the face of the Bill a power that might otherwise be taken under secondary legislation. It will make clear that those who contract with the Secretary of State to provide support for asylum seekers and their families will have the power to pass information to the Secretary of State for the immigration purposes set out in subsection (3). That represents a sensible precaution.
Contractors such as the landlords of accommodation used for asylum seekers will almost certainly have information about the asylum seekers that they are housing that they feel the Secretary of State ought to know about, to reassess an asylum seeker's needs. Contractors may also find themselves in the position of holding information relating to immigration control or to immigration crime. We want them to have the power to pass on that information, so that it can be assessed and processed by the asylum support directorate. In doing so they will, of course, be required to respect the confidentiality of such information in relation to any wider audience.
The House will note that this is a permissive power. We are imposing no obligation in statute on the bodies to seek out such information—merely a power to pass on what they come across in the ordinary course of their work under Part VI of the scheme. I beg to move.
Lord Alton of Liverpool: My Lords, I am grateful for the Minister's explanation but I know from
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discussions that the noble Lord, Lord Hylton, and I had with the previous Minister, the noble and learned Lord, Lord Williams of Mostyn, about the scope of voluntary organisations that the Government envisage that support providers will be given an enhanced role in future in the care and support of asylum seekers. What consideration have the Government given to the change in the relationship between voluntary organisations and their clients and the difficulties that the amendment's provisions will create? A voluntary organisation may acquire information about a client that it would not wish to impart to the authorities, but it could be required to do so in future under Clause 16. Does the Minister accept that that will place voluntary organisations in an impossible position? A simpler way would be to stay with the wording of the previous legislation, which specifies police chiefs and others responsible for upholding the law—rather than those responsible for the provision of services.
6.15 p.m.
Baroness Williams of Crosby: My Lords, the Minister moved the amendment in an extremely charming and emollient way, but I see a number of sinister things below the surface. I hope that the Minister can assure the House that there are no such things.
A person contracted or subcontracted by the Secretary of State to provide support arrangements or accommodation will be authorised by Clause 16 to provide information about asylum seekers and others in his or her care. The noble Lord, Lord Alton, raised one point that concerns me—the position of charities providing such accommodation or support. Two further matters that trouble me are how far the provision is compatible with Article 8 of the European Convention on Human Rights and with the Data Protection Act 1984. We are primarily concerned that the Government are absolutely satisfied that there is no conflict of privacy in Clause 16.
I will take the matter one step further, in line with the question asked by the noble Lord, Lord Alton. It is very much in the interests of the Government and of voluntary organisations and charities to establish and maintain a relationship of trust with the people in their care—not least to avoid escape attempts or fights with the staff looking after them. If people feel that they are under an obligation to provide information under Clause 16, that trust will be destroyed from the beginning. We are dealing here with people who have little reason to trust their fellow human beings anyway and who therefore start with considerable suspicion.
It may be that the Minister can give the House more assurance. He said that the provision of such information will be voluntary on the part of a contractor or sub-contractor. It is not clear, however, whether such a voluntary commitment will make any difference to the awarding of a contract. In other words, can we be absolutely certain that refusing to make such a commitment will not damage the right of a contractor or subcontractor to obtain a contract on any other grounds? More important, is the Minister

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willing to say that charitable or religious organisations that might be contractors or sub-contractors to the Secretary of State will not be made to feel in any way morally bound to provide such information? I fear that the losses might be greater than the gains in demanding such a commitment.
Lord Cope of Berkeley: My Lords, I am surprised that this amendment was felt necessary. If somebody rents a room from a landlady and after a while a policeman comes around and asks her about that tenant, the landlady is entirely entitled to say to the police whatever she wishes in answer to their inquiries. The same is true of other officialdom and people who may ask about the tenant. The provision does not require the individuals concerned to give information but only that the information "may be supplied" to the Secretary of State for immigration purposes.
I understand, of course, that the police cannot give to others information that they have acquired in the course of their duties. The same goes for Customs and Excise and others listed in the Bill. They require legal permission to impart information to someone else—in this case, the Secretary of State. The landlady does not require such permission. She can give such information if she wishes. Clause 16 does not require her to do that. The same applies to a charity or any other body that has contracted with the Secretary of State to supply accommodation or another service.
My second thought was that there must be something behind the amendment, otherwise the Government would not have gone to the trouble of adding it to the Bill. Perhaps it gives the Government relief from some privacy restriction that might otherwise apply to a landlady in respect of the affairs of her tenant—for example, under human rights legislation. I am insufficiently knowledgeable about such provisions, new as they are, to know whether the amendment overcomes any such restriction.
The amendment is not necessary in one sense because, as the Minister made clear, the Government could have extended the provision to other persons by order under Clause 16(1)(e), subject to affirmative resolution. However, I am grateful to the Government for putting the provision on the face of the Bill rather than leaving it to an order. That seems a good thing.
By definition, the people who may give such information will have made a contract or other arrangement under Section 90 or 94. Presumably, the Secretary of State could have made it a term of the contract that they should give certain types of information. That might not be easy to do if the information comprises of suspicions that may have arisen in the landlady's mind that the person concerned is not all that he seems or that his story is not accurate for some reason. Therefore, it may be difficult to write that into the contract terms. But the underlying question is: why does a landlady, or anyone else who is contracted in this way, need statutory permission in order to have the ability to give information of this kind?
Lord Bassam of Brighton: My Lords, I am grateful to noble Lords for the points and questions that they
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have raised on the matter; indeed, they have enabled me to elucidate a little further on why we feel that this provision is necessary. I believe that the noble Baroness, Lady Williams, put her finger on the point: it is about establishing relationships of trust. We see that as being very important. It is also about openness and transparency. That is why we have decided that this provision would be best placed on the face of the Bill.
I take the point made by the noble Lord, Lord Alton, about the important relationship based on trust that must exist between voluntary organisations and the need to avoid difficulties. We well understand the points that have been raised about the relationship with Article 8. However, I can offer some reassurance. This clause does not in any way override the ECHR or existing data protection legislation; indeed, it does not compromise it in any way. We believe that disclosures must each be assessed for compatibility with those considerations.
It is a matter of volunteering; it is not a matter of the organisations concerned being placed under a duty to provide such information. Therefore, any sense that there may be some obligation, some pressure, placed on organisations to bring forward information here is misplaced. I do not believe that noble Lords' concerns in that respect need to be too greatly emphasised. We feel that this is a sensible, practical and transparent move. We also believe that it is probably a protective provision, which will place voluntary organisations, and also some statutory organisations which are contracted as a result of the clause, to fulfil their role more openly and transparently. This will be a beneficial move and one which will enable them to be established on the same basis as all the other main organisations under the clause. For that reason, we think that this is a sensible amendment to bring forward at this stage. I commend the amendment to the House.
On Question, amendment agreed to.
Lord Dholakia Lord Dholakia moved Amendment No. 18:
Before Clause 18, insert the following new clause—

EMPLOYMENT OF ILLEGAL IMMIGRANTS: PENALTIES
("In the 1971 Act, after section 25(2), insert—
"(2A) If any person ("the employer") is employing or has within the preceding 3 months employed any person who is an illegal entrant or a person who has committed an offence under section 24(1)(b) or (c), an immigration officer may serve a notice on the employer, in accordance with regulations made by the Secretary of State.
(2B) Any employer who, within 12 months of being served with a notice under subsection (2A), employs any person who is an illegal entrant or a person who has committed an offence under section 24(1)(b) or (c), shall be guilty of an offence punishable on summary conviction with a fine of not more than level 5 on the standard scale or with imprisonment for not more than six months or with both.
(2C) It shall be a defence to proceedings under subsection (2B) above to prove that in respect of any person employed alter service of the notice under subsection (2A), before the employment began the employer made such enquiries or inspected such documents as were reasonable in the circumstances to satisfy himself that to employ the person would not contravene subsection (2B).
(2D) Where an offence under subsection (2B) committed by a body corporate is proved to have been committed with the consent or connivance of, or to be attributable to the neglect on the part of—

(a) any director, manager, secretary or other similar officer of the body corporate; or

(b) any person who was purporting to act in any such capacity, he as well as the body corporate shall be guilty of the offence and shall be liable to be proceeded against and punished accordingly.

(2E) Where the affairs of a body corporate are managed by its members, subsection (2D) above shall apply in relation to the acts and defaults of a member in connection with his functions of management as if he were a director of the body corporate.
(2F) In this section, "employ" means employ under a contract of service or apprenticeship, whether express or implied and (if it is express) whether it is oral or written, and "employment" shall be construed accordingly."").
The noble Lord said: My Lords, I introduced this amendment in Committee and was given some assurance by the Minister that he would take the matter away, look at it and see whether we could come to an agreement on its form. I am sorry to say that nothing of that sort has happened. Effectively, my purpose was to assist the Government as regards precisely what they said while in opposition. I distinctly remember the Labour Party saying, when in opposition, that it would repeal Section 8 of the Immigration Act 1971. I was simply trying to assist them in this particular exercise.
Perhaps I may explain the purpose of the amendment. It is not designed to take away any powers that the Government have now. In fact, there arc now much wider powers in terms of the powers of immigration officers. We are trying to ensure that the powers they use do not in any way harm good community relations in this country. The purpose is simply to amend the Immigration Act 1971 and put into statutory form the criminal sanctions on the employment of illegal workers as they are being applied by the Government at present.
Why do we think that it is necessary to do so and what would the proposed new clause do? The new clause would provide a two-stage process. In the first stage, an immigration officer would be given specific powers to serve a notice in a prescribed form on an employer where the officer has reasonable grounds to believe that the employer is employing an illegal entrant—an overstayer, or a person in breach of his or her conditions of leave. Of course, the power is supplementary to powers that may be exercised directly in relation to any offence committed by the employee. The power to serve a notice is discretionary and consistent with current policy. It is anticipated that immigration officers will serve notices on those employers whose employment practices are of particular concern to the Immigration Service, notably those who appear to be involved in large-scale exploitation of illegal workers.
The basic defect of Section 8, which is now incorporated in the Bill, is that, by imposing a threat of prosecution on all employers and by offering a statutory defence that was acknowledged to be an
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additional burden to employers, it is an invitation to discriminate on racial grounds. Rather than become involved in checking documents for every new employee, employers are easily tempted to avoid recruiting anyone whose appearance or accent suggests that he or she may be foreign.
The forecast made from these Benches by my noble friend Lord Thurso, as early as 1996 when we debated Section 8 in this House—namely, that some employers would simply "go white" to avoid prosecution—has already been realised in some cases, while, in others, employers have introduced their own arbitrary restrictions, based on a misunderstanding of immigration law, and have excluded jobseekers who are lawfully able to work in this country.
The new offence has been drafted to meet the Government's reluctance to accept the recommendation of the CBI, the Federation of Small Businesses, the Better Regulation Task Force, the TUC and the Commission for Racial Equality. It would shift the balance of responsibility to the Immigration Service; it would put the responsibility on employers to change their practice once there is evidence that they are permitting people who have committed immigration offences to work for them. It would also remove the threat of prosecution—and either the burden of elaborate checking or the inducement to discriminate—from well-intentioned employers. As it is proposed to repeal Section 8, Clause 18, which seeks to modify the discriminatory impact of Section 8, would not be required and should be deleted from the Bill. I beg to move.
Lord Sheppard of Liverpool: My Lords, I hope that my noble friend the Minister will take rather seriously what the noble Lord, Lord Dholakia, has said. At various moments we have expressed concerns in your Lordships' House about the effect of immigration and asylum law on race relations. There is nothing that has touched me more sharply than this particular Section 8, about which I spoke on Second Reading. I said that I wished it was not there. I do not believe that the Government's Clause 18 actually removes the sting.
If we want to know where bad race relations bite as seriously as anywhere, the answer is in employment. The temptation for an employer to avoid all the hassle of vigorous interviewing, looking at people beyond his normal circle of staff and perhaps taking on someone who has an unfamiliar name or an unfamiliar face, is a great one. It is hard to charge someone with an omission when that omission is the fact that he has not vigorously recruited in the whole field and has limited his recruiting to where he feels he will be safe.
Employers have been exhorted over and over again by race relations legislation and by many attempts to produce codes of practice. I ask my noble friend the Minister to tell us what he thinks this new code of practice is likely to achieve that others have failed to achieve. I believe that the noble Lord, Lord Dholakia, has it the right way round. If an immigration officer has suspicions, he should serve a notice to which the employer must respond. But to make employers carry

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out such research will simply prove to be a disincentive to them to take on workers in fields where we very much want them to widen their recruiting.
6.30 p.m.
Lord Williams of Mostyn: My Lords, the noble Lord, Lord Dholakia, is quite right; when he introduced his proposal at an earlier stage I said that we would take it away and think about it carefully. That has been done. I hope that he has received a letter from my colleague, Mrs Roche, dated 12th October, which sets out fully the nature of the consultation that we undertook.
Originally the amendment of the noble Lord, Lord Dholakia—this was a critical difference—differed from the present one. The new offence under the present amendment of the noble Lord, Lord Dholakia, would be in addition to the existing Section 8 of the Asylum and Immigration Act 1996. I am not sure whether the noble Lord intended that. I thought that his purpose originally—I understood that this evening—was to repeal Section 8. We consulted quite widely through the summer. Those consultations included the CBI, the TUC, the Commission for Racial Equality, the Better Regulation Task Force, the Federation of Recruitment and Employment Services, the Construction Confederation, the Federation of Small Businesses, the Cleaning and Support Services Association and of course colleagues within government. The proposals of the noble Lord, Lord Dholakia, were supported by some but not by others. It was not an easy conclusion to reach.
The amendment outlined a warning notice procedure, but under the proposed arrangements there would be no obligation that a recipient could be warned of breaching. Without any expectation that employers would carry out employability checks, employers could employ illegal workers with impunity until served a warning notice. In other words, the message would be, "Employ illegal workers until you are found out". As Mrs Roche's letter to the noble Lord pointed out, we considered whether or not we could construct a hybrid amendment retaining the basic thrust of Section 8 but building into it elements of the noble Lord's proposals specifically to target more carefully—or in a more focused way—those in the business of exploiting the labour of those who are here illegally. This further alternative has not been supported either by the TUC or the CBI or, notably, the CRE.
The measures originally were designed to combat widescale abuse and not to penalise small employers who may have made a simple mistake. Where appropriate, offending employers were warned in the first instance rather than prosecuted, but no one can pretend now that the provision is new. The evidence we have suggests that most employers are aware of what is required of them. There has been one successful prosecution and a number are in prospect. The recent prosecution involved the illegal employment of a number of people in the horticultural industry. In many cases—I do not speak of any in the pipeline—people are being exploited in a harsh, abusive way.
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This is one protection for them. I believe that more cases will be brought to court to send a strong signal to those who are alleged to be racketeers that the Government are determined to see this kind of abuse tackled.
My noble friend Lord Sheppard asked what benefit a new code of practice would bring. We believe that it is able to work in a tighter, more focused way so that potential employers have their responsibilities properly in mind. We had to try to balance the maintenance of a firm line on the problem of illegal immigration on the one hand with the avoidance of the scope for discriminatory practice on the other. We believe that Section 8 can work properly if it is allowed to do so. However, we do not want this to be at the expense of good community relations.
That brings me to the point of Clause 18, the purpose and intention of which is to supplement the provisions of Section 8. We have been concerned at reports from the CRE that some employers may be making more checks than the legislation requires. We have had to face up to that.
Clause 18 therefore is aimed at employers and their duty to avoid racial discrimination in their recruitment practices when seeking to secure the statutory defence under Section 8. It places the Secretary of State—I return to the question of my noble friend Lord Sheppard—under a statutory duty to issue a code of practice containing measures to ensure that employers do not breach provisions of the Race Relations Act 1976 by making more checks than are required.
Some will perhaps take a contrary view to that expressed by my noble friend Lord Sheppard. They will feel that this is an additional cost to business and that another code of practice will add little. It is a difficult balance, but we think that we have it right. For the reasons I have set out in a little detail—I am bound to defer to the helpful and thoughtful way in which the noble Lord, Lord Dholakia, has approached this matter—I repeat that I said that we would listen carefully and consult widely. We have done so. I do not pretend that it was an easy conclusion to reach. I am sorry that the noble Lord will be disappointed but I do not think he can feel that I have not fulfilled my undertaking despite the fact that we came to the policy conclusion in the end that our way was better than his. I hope that that explanation will enable the noble Lord neither to press his challenge to Clause 18 nor to insist on his amendment.
Lord Dholakia: My Lords, I am grateful to the Minister for his explanation. I am well aware of the considerable consultation he has undertaken. However, there is still a difference of opinion on this matter. I am grateful for the comments of the noble Lord, Lord Sheppard, on this matter. Although I shall study carefully the effect of the code of practice that the Minister said will be issued, the end product of all this, however, is that a large number of people are still being subjected to inconvenience and are suspected of being illegal immigrants during "fishing raids". There are often big headlines in the newspapers about such "fishing raids" leading to the arrest of illegal

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immigrant workers although the actual numbers involved are rarely the same as those reported originally as having been arrested. That creates an unhealthy situation. I am grateful for the Minister's comments. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 18 [Restrictions on employment: code of practice]:
[Amendment No. 19 not moved.]
Clause 20 [Duty to report suspicious marriages]:
Lord Bassam of Brighton Lord Bassam of Brighton moved Amendment No. 20:
Page 14, leave out lines 41 and 42 and insert ("without delay and in such form and manner").
The noble Lord said: My Lords, in moving Amendment No. 20, I should like to speak also to Amendments Nos. 21, 22, 23 and 24. This group of amendments relates to Clause 20 which makes provision for registrars to report suspicious marriages to the Home Office. It had originally been intended that regulations would require registrars to make reports within two working days if, when they take a notice of marriage, or before, during or after the ceremony, they have reasonable grounds for suspecting that the marriage will be, or is, a sham.
It is essential that registrars prepare and send reports while the facts of each case, and their reasonable suspicions, are fresh in their minds. Amendment No. 20, which requires registrars to make reports "without delay", will ensure that this occurs and will achieve the necessary degree of flexibility.
A commitment was made in Committee to bring forward this amendment. It also seeks to satisfy the concerns of the Select Committee on Delegated Powers and Deregulation. On reflection, Amendments Nos. 21 and 22 would be too restrictive and may cause practical difficulties for some registrars, particularly those who work only a few days each week. Conversely, registrars in larger districts would be expected to make reports as soon as possible. The wording of Amendment No. 20 is preferable in our view because it requires registrars to make returns "without delay". This recognises the need for a flexible approach to the reporting arrangements to reflect the practicalities of delivering the local registration service. I hope that, in the light of this, the noble Baroness, Lady Williams of Crosby, and the noble Lord, Lord Cope, will agree to withdraw Amendments Nos. 21 and 22. I therefore commend Amendment No. 20 to the House.
Regulations provided for in the Bill set out the form and manner of reports which registrars will make to the Home Office. It is proposed that these include details of the couple's name, age, address, details of any documents produced, the date and place of marriage, and the registrar's reasons for suspecting the marriage to be a sham. It is also intended that information about the duty to report sham marriages will be made available at registry offices.
I believe that there would be obvious disadvantages in informing the couple that a report has been made which would be the effect of the Opposition's Amendment No. 23. Almost certainly, registrars would feel constrained in setting out their reasonable suspicions; and there might be a reluctance to comply with the duty to report, with a likely consequential under-reporting of suspected sham marriages. It must also be recognised that the duty to be placed on registrars is to report their reasonable suspicions. It will be for the Home Office to investigate individual cases in the light of those suspicions and the full facts of the case. In some instances no action may be taken following the receipt of a report. I am sure that other reports will reveal the existence of sham marriage rackets that the Home Office will wish to investigate. Giving couples and racketeers advance notice of such an investigation would negate the underlying purpose of the making of reports by registrars. For that reason, we cannot accept those amendments.
Finally, I turn to Amendment No. 24. The noble Lord, Lord Dholakia, tabled a similar amendment at the Committee stage which, after discussion, was withdrawn. As I understand it, his concern is to ensure that the duty to report sham marriages does not reintroduce the "primary purpose" rule in another guise.
The primary purpose rule, which required applicants to prove that the primary purpose of their marriage was not to obtain admission to the United Kingdom, was widely considered to be arbitrary, ineffective and unfair as it caught genuine couples. In line with our manifesto commitment, we abolished the rule on 5th June 1997. We have no intention of reinstating it by another route. However, there is a legitimate expectation that where an individual seeks to remain in the United Kingdom on the basis of marriage, that marriage must be genuine. The aim of this provision of the Bill is to tackle abuse by those who are prepared to enter into a sham marriage in order to secure an immigration advantage.
The purpose of Clause 20 is to impose a duty on registrars to report all marriages where there are reasonable grounds to suspect that they are being contracted for immigration purposes. Registrars will be provided with detailed guidance in this regard and will take into account only factors obtained by direct observation or questioning related to the preliminaries of the marriage. They will not make immigration-related inquiries, nor will they question couples about the motives for their marriage.
Registrars therefore will not be in a position to make an assessment as to whether a marriage might be entered into solely for the purpose of securing an immigration advantage; nor would we wish them to do so. This is a consideration rightly reserved for immigration officials.
Once a registrar has reported the grounds for his or her suspicions, it will be for the Immigration Service to consider the report in conjunction with all the other facts relating to an individual's circumstances. Where an application is made for leave to remain in the

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United Kingdom on the basis of a marriage which has been reported as suspicious, consideration will be given to all the facts of the case, including evidence of the subsisting nature of the marriage. I appreciate the noble Lord's reason for raising this point, but I ask the House to reject his amendment. I beg to move Amendment No. 20.
The Deputy Speaker (Lord Brougham and Vaux): My Lords, I must advise the House that if Amendment No. 20 is agreed to, I cannot call Amendment No. 21.
Lord Cope of Berkeley: My Lords, the amendment shows how difficult it is to help the Government. In Committee, I moved an amendment to this clause which suggested that the registrar of marriages should have five days to deliver up this information. The noble and learned Lord Williams—he was not learned at that point; he has become learned since—said that the Government thought two days was the correct period of time. I thought that I would try and help and put down two days for the Report stage, which I did. It turns out that the noble Lord, Lord Bassam, has changed his mind or the Government have changed their mind. Now we have "without delay" instead. I do not consider that quite as satisfactory as imposing a limit. However, I accept that there are some part-time registrars— there were some in my constituency when I was a Member of another place—and it is perhaps better therefore to say "without delay". I shall not pursue the amendment standing in my name.
6.45 p.m.
Lord Dholakia: My Lords, I wish to speak to the amendment, particularly in relation to the very small amendment I have tabled. My amendment is to ensure that only serious allegations about sham marriages are made to the Home Office.
The amendment is slightly different to the one I proposed in Committee. I accept that there is no intention on the part of the Government to introduce the primary purpose rule through other means. That is not in dispute. However, there are always a variety of reasons for a marriage. For instance, when one of the parties is in the UK subject to immigration control and the couple want to be together, that party may not qualify for further permission to stay—because a course of study has come to an end, for example—and they may decide to marry sooner rather than later. This may be in breach of the immigration regulations but by no stretch of the imagination would that marriage be a sham. One of its purposes might be to avoid the effect of the immigration rule which requires a student to leave at the end of a particular course.
The Government still have not answered the question I raised at the Committee stage. They have failed to address in this clause the issue of discrimination contrary to the ECHR in that it does not apply to marriage in the Church of England and the Church in Wales. The Minister's argument at that time was that there was no evidence of abuse in such marriages. But the only evidence is the report of registrars to the Home Office. Anglican ministers are
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not asked to report. The argument therefore is entirely circular and illogical. I hope that we will talk solely about sham marriages rather than marriages which are suspected of being sham without any substance whatever.
The Earl of Sandwich: My Lords, I wish to speak briefly to Amendment No. 23, which stands in my name. The noble Baroness, Lady Williams, raised in Committee the question of the investigative role of registrars. I remain concerned. Many of us are still concerned about the dual purpose of registrars. Is it not quite inappropriate to ask registrars, when they are explaining the importance of a marriage to a couple, to investigate and report back on their conversations? I know that we have had this debate but it should be registered that some people are concerned still about this issue. Surely it is more appropriate for an immigration officer than for a registrar.
Much of the conversation in Committee was about simultaneously reporting to the couple. This is a small point about information being given to the couple about what is being passed on. In this new amendment we have made that subsequent to the interview and within a reasonable time. It meets the Government's point that simultaneous reporting might interfere with the proceedings, as the noble Lord said. It is not the contents but the fact of the report that we are concerned about. I believe that this is a small compromise amendment the Government could take on.
Baroness Williams of Crosby: My Lords, the noble Earl, Lord Sandwich, has spoken to this amendment in his usual extremely reasonable and, if I may so, moderate way. My name is associated with the amendment and I want to put the case a little more strongly.
The noble Earl made the point—he is absolutely right—that we have amended our amendment to take into account the point made by the noble Lord, Lord Bassam, which was also made in Committee, that advance notice should not be given to the couple. We understand that they might decide to do a moonlight flit or marry somewhere mysterious, such as the Cayman Islands. Of course, we are not in the business of trying to encourage sham marriages, but we are profoundly concerned about letting the legislation go ahead with no requirement that at any point should the couple be informed that the registrar has passed on his suspicions about them.
Perhaps I may explain briefly why. The noble Lord, Lord Bassam, said that he felt that that might inhibit registrars in giving the information in the first place. It seems to me that that problem could be overcome by the registrar making it absolutely plain when he saw any couple that he was under a legal obligation to report the matter if he believed the marriage to be a sham; he would cover himself in advance.
However, I am much more deeply concerned about the principle that a report, which can involve people in very substantial consequences, may be given without their having any idea that that has happened and,

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therefore, without their having any ability to respond to it. Let me put it in very tough terms. For several years, from 1990 to 1996, I worked in central and eastern Europe. One of the most disturbing characteristics was that the secret police never had to inform anyone about any charge that was made or any criminal action that was to be taken; therefore no possible defence existed.
I am not drawing a parallel between the two situations—it would be quite unreasonable to do so—but for me at least, and I would have thought for many noble Lords, the line has to be drawn with every possible definition that can be drawn. When we bring a criminal action against someone we insist—and rightly so—that the police inform him of the action they are going to take as soon as they have enough evidence to make an arrest. Surely, it is not unreasonable to say that couples who may be charged in a way that may end their marriage or lead to their deportation should at least have the right to prepare a defence against the charge made.
As the noble Earl, Lord Sandwich, said, we are not asking for advance notice. We take the Minister's point on that. However, the Government should reconsider circumstances where the couple will receive no information at all. They then cannot prepare what might be a convincing defence. If I may say so, for a country like Britain to allow legislation to appear on the statute book, however minor it may seem, where people can be accused of a grave offence and not know that they have been accused, would be to place a foot into an opening that might lead to very undesirable consequences. I beg the Government to think again.
The Lord Bishop of Oxford: My Lords, the right reverend Prelate the Bishop of Southwark has had to dash down the river to take a service in his cathedral. He has asked me to speak on his behalf as well as on my own in support of the amendment of the noble Lord, Lord Dholakia.
We support the amendment because of the injustice which might otherwise be done to those communities such as the Asian community in Leicester where arranged marriage is so common. Often it takes place between a young person in this country and a friend of the extended family overseas. In those circumstances, it would be easy for a registrar who was not familiar with the different cultural norms to leap to the conclusion that the proposed marriage was a sham, entered into to avoid immigration restrictions.
The fact is that a marriage may have many motives, and although I am not so naive as to suggest that arranged marriages are without problems, it is also obvious that there are many examples among our fellow citizens of extremely happy, stable and loving marriages of heart and soul, emerging from what might have seemed an unpromising arrangement.
Mixed motives are present in all walks of life, and neither this House nor the Church is immune from them. I urge noble Lords to respect the mixed nature of all human motives and to accept that unless a
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marriage can be shown to be contracted solely for immigration purposes—Amendment No. 24, tabled in the name of the noble Lord, Lord Dholakia seeks to insert the word "solely"—it is as likely to be as sincere as any other human act. I very much hope that the Minister will be able to accept the amendment.
Lord Hylton: My Lords, I am glad that the right reverend Prelate the Bishop of Oxford has touched on the matter of arranged marriages. I believe I also mentioned that point in Committee, although it seems a long time since that stage.
Like the right reverend Prelate, I acknowledge and accept that many arranged marriages work out very well in practice and prove to be happy and successful. Nevertheless, we are faced with a situation where marriages may be fixed in advance over thousands of miles' distance between people who may have never, or hardly ever, seen each other. For that reason, I believe that it is important that registrars should satisfy themselves that consent has been freely given by both parties. That is even more important where one of the parties is under the age of 18 and, technically speaking, still a child.
Are the Government able to comment on that point now? I realise that that may be moving a little beyond the scope of the Bill, but it is an important point and one that bears directly on human rights and on the likelihood of success of marriages arranged between families.
Lord Bassam of Brighton: My Lords, I have listened carefully to the comments of noble Lords, and to those of the right reverend Prelate the Bishop of Oxford on arranged marriages. I shall take advice on that point.
We must examine the situation that will confront the registrar in his or her office and consider the matter in practical terms. I think the view is generally shared that registrars will need to adopt a pragmatic approach. We are not asking registrars to conduct an in-depth investigation. We are asking simply that they pass on their suspicions. This is not a matter of charges being laid or prosecutions being brought. Registrars are to act proportionate to the situation they see in front of them. I do not believe that noble Lords would condone in any shape or form sham marriages, because clearly that is not the cause of this debate.
Noble Lords have expressed understandable concerns about the proprieties of this matter. Of course we do not wish to blunder into what may be a highly sensitive situation. We think we have the balance right, and that is the reason for our sensible amendment which we believe is helpful, despite having had so much help from the noble Lord, Lord Cope, in this matter. The noble Lord has been extremely obliging in his comments today.
The noble Lord, Lord Dholakia, asked that we should insert the word "solely". We think that that would make it extremely difficult for registrars to operate effectively, and it would act as a disincentive to properly report those situations where they have reasonable suspicions. As I said earlier, where there are

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reasonable suspicions it will not be for the registrar to intervene. They will not carry out the investigation. That will be for immigration officers who, I am sure, will abide by the proper rules in responding to difficult situations where they have to question those suspected of indulging in sham marriages to get around the immigration legislation.
On the point raised by the noble Baroness, Lady Williams, we believe that it may be more distressing for a couple to be told that such a report had been made. It would be far better for immigration officers to deal with any concerns directly with the couple involved. That would be a better way of dealing with the matter.
Baroness Williams of Crosby: My Lords, I am grateful to the Minister for giving way. In his earlier speech, he mentioned "practical considerations". Before we move on from the point, I should like to put a further practical consideration to him. Let us say that, subsequent to conducting a marriage, a registrar writes to the couple to say that he has doubts about it. He does not have to meet the couple; he simply writes to them to report that he is of the view that the marriage may not be genuine. That would enable the couple to consider whether there is evidence they can bring to bear before an immigration officer questions them.
That would meet our concern that the immigration officer will have to reach a conclusion on the basis of having no knowledge of evidence on one side unless he can receive from the couple evidence that theirs is a genuine and not a sham marriage. Will the Minister therefore look practically at the possibility of providing for a letter to be sent by the registrar to the couple saying something along the lines of, "I am not convinced of the bona fides of your marriage?".
Lord Bassam of Brighton: My Lords, I am grateful to the noble Baroness. She has reiterated a point that she made firmly earlier. As I said, that would place an unfortunate burden on the registrar. We genuinely feel that it would act as a disincentive to him or her to properly fulfil the duties as set out in the amendment, which, in its effect, broadly has the agreement of your Lordships' House. We rely on the argument that we believe that it is proper and more appropriate for the immigration officer to deal with issues which the couple may raise, having been confronted with the possibility that they have entered into a sham marriage. We believe that our argument has force and conviction.
Lord Lester of Herne Hill: My Lords, I am puzzled by the answer the Minister has given. Can he clarify the following? Clause 20 requires the registrar to have,
"reasonable grounds for suspecting that the marriage will be a sham marriage".
If the couple are not to be informed that there is a suspicion about their marriage, then I do not understand the point of inserting the word "reasonable" here. What quality control will there be and who would deal with a registrar who reported a
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matter without there being any reasonable ground for suspicion? I do not understand that part of the Minister's answer.
7 p.m.
Lord Bassam of Brighton: My Lords, we have to trust the good sense of the registrars. Registrars are very experienced. They deal with marriages as an every day part of their working lives. It would not be unreasonable to rely on their good judgment that they may have reasonable grounds. That is an important point and it is one on which, I suggest to the noble Lord, Lord Lester, it is worth reflecting.
We are content with our amendment. We believe that it satisfies the commitment we gave earlier. I ask the House to reject the other amendments because of their various imperfections and the difficulties in which they would place us. We understand that good advice and guidance will be given to the registrars so that they will be able better to perfect their judgments. I believe that we can rely on their good sense in these circumstances. The clause is important to achieve an effect which, in general terms, the House has approved in the past.
On Question, amendment agreed to.
The Deputy Speaker (Baroness Turner of Camden): My Lords, I cannot call Amendment No. 21 due to pre-emption.
[Amendment No. 21 not moved.]
[Amendments Nos. 22 to 24 not moved]
Clause 21 [Provision of facilities for immigration control at ports]:
Lord Cope of Berkeley Lord Cope of Berkeley moved Amendment No. 25:
Page 15, line 19, leave out ("free of charge") and insert ("at cost price").
The noble Lord said: My Lords, as I am allowed to speak only once I shall, in moving this amendment, speak also to Amendments Nos. 26, 27 and 27A, which are grouped with it.
Lord Hacking: My Lords, I intend to move Amendment No. 27A separately. It relates to Clause 22, whereas the noble Lord's amendments all relate to Clause 21.
Lord Cope of Berkeley: My Lords, in that case, shall not speak to Amendment No. 27A at this point. I shall in any case speak rather briefly because I am aware that other noble Lords have been much closer to this matter than I have myself.
There has been considerable consultation on this subject between the Home Office and the port representatives. The subject concerns what facilities a port or airport should be obliged to supply to the immigration authorities. The ports are not suggesting that they should not supply any facilities. However, at the same time they see that sweeping powers are being taken in this clause to require them to supply all kinds of facilities.

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It is not clear to me that the clause would limit the Secretary of State and the Immigration Service should it require sufficient accommodation to house the whole Immigration Service. Under the clause as drafted, the Immigration Service might conceivably move its headquarters and everything else to a suitable port. It would then occupy an enormous amount of space entirely free of charge. Amendment No. 25 addresses the question of cost. The Immigration Service might also decide to put in one port an area headquarters to cover several ports in that county, area or district of the country, and might require space for that.
This seems to be an extremely wide power, particularly as the Secretary of State and the Immigration Service will not be paying any money for these facilities. The facilities may take up valuable space that the port would otherwise be able to use not only for its own purposes but, as is nowadays the habit, to let out for all kinds of expensive shops. A great deal of the income of airports and some of the income of seaports comes from the letting of retail premises of one kind or another.
Another specific question is that of car parking. Many ports and airports are extremely pushed for car parking space. I understand that in discussions between officials and representatives of the ports it was suggested that no car parking space will be required under these provisions. If that is so, it would at the very least be a good thing if the Minister could say so to the House and we would then have it on the record that the Secretary of State would not use these powers to require space for car parking. If he cannot not do so, we shall wonder why he is not prepared to do that and whether space will be required for car parking in some instances. Of course there may be space at some ports and thus car parking will be no difficulty. In that case the Immigration Service officials could be allowed to park where they wished and there would be no difficulty for the port. But at other ports and airports car parking space is at a great premium. At Heathrow, for example, one has to park a long way away and come in on a bus to catch an aeroplane. That is one demonstration of the difficulty of car parking there.
Underlying the discussions that have taken place, there has been an attempt on the part of the port authorities to achieve some kind of dispute resolution procedure in the arrangements. That need not be statutory, although it would be an advantage if it were. Amendment No. 27, which stands in the name of my noble friend Lord Cadman and to which I have added my name, addresses exactly that point. It is difficult to know exactly how far the Secretary of State and the Immigration Service intend to go in this matter but the powers they have taken in the Bill are very sweeping. Given the long discussions that have taken place and, as I understand the position, the relatively unsatisfactory outcome of those discussions, although I have not taken part in them, it is not surprising that
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the port and airport authorities of this country are extremely worried about the prospect of this clause. I beg to move.
Lord Cadman: My Lords, in speaking to my amendments, Amendments Nos. 26 and 27, I make no apology for revisiting this subject. I am happy to acknowledge that, via the Bill, the Government are attempting to address the problems caused by an increasing number of people who, for various reasons, seem to regard our country as one to which they might turn in preference to their own. That said, I am grateful to the Minister for meeting us recently and I am slightly reassured by the suggestion of the emergence of some kind of code of practice or memorandum of understanding.
The problem is that in the Bill the Government have decided that the Immigration Service needs to be able to beef up its facilities to, I suppose, defend us from the aforementioned onslaught. In doing so, the ports and airports are being almost ordered to provide facilities for the Immigration Service carte blanche, or so it would appear. In reply to my concerns at the Committee stage, the noble and learned Lord, Lord Falconer, suggested that, in view of the increased prosperity that improvements to control ports' capacity or customer services would generate, they should be responsible for the cost of any increased demand made thereby on the Immigration Service. This has evoked reaction based on the fact that in the past in some cases the Immigration Service, along with others such as the police, when consulted with, have required facilities which are, or have been proved subsequently to be, inappropriate to the task in hand or in excess of what later turned out to be necessary. Some noble Lords may have noticed the not inconsiderable office building to the left of the immigration kiosks at Eurotunnel's Coquelles terminal in France. It was built by Eurotunnel, at its expense, to provide for the accommodation of the Immigration Service at Coquelles. Subsequently, it has remained empty. It is unusable, because it is the wrong side of the theoretical frontier, being in effect in Britain, and is therefore not available by virtue of its redundancy, for occupation by Eurotunnel or the French.
The proposed legislation would give the Secretary of State sweeping powers to demand almost anything. There is presently little requirement to consult, and no procedures to be followed in cases where a genuine dispute arises. My amendments are designed to introduce a measure of cost-effectiveness upon the Secretary of State's determination and, failing that, to provide for an effective system of arbitration should negotiations or consultation break down.
It seems difficult to accept that the consequences of other EC countries' neglect of their responsibilities in this matter, coupled with our correct insistence on policing our borders properly, should be loaded on to the port and airport authorities. It is a matter of public policy, and the cost should be borne by the taxpayer. It is our hope that last week's discussions in Finland will result in some more common approach to immigration

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problems. But it is surely wrong for any government to attempt to finance a public service by using the increased prosperity of a control port, brought about by that port's increases in business efficiency, as an excuse for making possibly over-zealous requirements, especially where no effective method of dispute resolution or definition of service is in force.
The Countess of Mar: My Lords, I tend to support the noble Lords, Lord Cope and Lord Cadman. This is very much like the Ministry of Agriculture, Fisheries and Food and the Department of Health proposing that food producers should pay for the food standards agency. As I understand it, immigration control is for the greater public good. Therefore, the cost should rest upon the taxpayer, not upon the people who are expected to provide facilities at ports.
Lord Hacking: My Lords, I should like to give some support to Amendments Nos. 25, 26 and 27. As the noble Lord, Lord Cope of Berkeley, rightly said, under Clause 21 very large powers are given to the Secretary of State. It would be sensible to take a more rational view of those powers.
There is a large area of co-operation between the British Airports Authority and the immigration authorities. On the whole, that has worked very well over a number of years. But it is not a reason for any extensive right to expand immigration facilities at airports and leave the full costs with the British Airports Authority or other airport operators in this country. I hope that my noble friend will consider favourably the purport behind these amendments and that he will be able to help us, at least by Third Reading.
I support the dispute resolution proposals set out in Amendment No. 27. On many occasions I have urged upon your Lordships the virtue of arbitration. I am delighted to see that the noble Lord, Lord Cope of Berkeley, has identified arbitration as the best dispute resolution process. There should certainly be a dispute resolution process, particularly when such large powers rest with the Secretary of State.
Lord Greenway: My Lords, in supporting the general thrust of the amendments, I must declare an interest. Part of my work outside this House is with a company in the international port industry. I hasten to add that its work is on the marketing side and has nothing to do with immigration.
The noble Lord, Lord Cope of Berkeley, was right to express the widespread concern that exists in the ports industry in regard to this clause. The industry is anxious that its costs will rise. There is a tendency for more border controls, rather than fewer, to be imposed. I shall not venture too far down the road of cost to take up the interesting intervention from my noble friend Lady Mar; I shall have more to say on the matter in relation to a later amendment.
Experience has shown that the demands of the immigration authorities for basic facilities are generally reasonable. Unfortunately, there have been a number of cases where that is not so. There are also
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considerable grey areas in respect of the provision of backroom facilities. I support the proposals for arbitration in Amendment No. 27. It is important that there should be some means of resolving disputes regarding the provision of facilities.
I also support Amendment No. 27A, which has just been moved. It makes a useful start—
Lord Hacking: My Lords, I have not yet moved Amendment No. 27A.
Lord Greenway: My Lords, I beg the noble Lord's pardon, but I shall speak to it anyway. We have to sort out some definition of "basic facilities". Reference has been made to that. I understand that working parties are examining the matter. The noble Lord's amendment is a useful step in the right direction.
7.15 p.m.
Lord Berkeley: My Lords, I, too, support the general thrust of the amendments. The Government and the Immigration Service have a duty to operate in an efficient and effective manner, providing good value for the taxpayer, if the taxpayer is paying, and, more importantly, best value as compared with the best private sector practice, if the private sector is paying.
Many noble Lords have given examples of practice that is less than good. Long lists of examples were given in Committee which I shall not try to repeat. It is important that some limit is placed on what the service can ask for, whether in relation to accommodation which is then used for managing an airport or port 50 miles away, or whether for totally unconnected purposes.
The services also have a duty to demonstrate that they are working efficiently. If the accommodation is no longer required or can be reduced, buildings can be handed back. The accommodation should therefore be located where it can be of use to the port, not as in the example given by the noble Lord, Cadman, regarding Eurotunnel. The noble Lord did not mention I hat the requirement from the British Immigration Service was 10 times that from the French immigration service. We should reflect on that point.
The Minister was very helpful, and agreed to meet the noble Lord, Lord Cadman, and myself last week. Today, we received a document from the Immigration Service headquarters. It is a copy of a letter sent to the Immigration and Asylum Charging Consultation Group. I was not aware who the group were. The letter argues that the Home Office does not think,
"it would be possible, nor indeed necessary, to introduce to formal provision on the face of the Bill … for an independent and binding arbitrator".
It goes on to refer to a review process, ending with,
"an opportunity for an independent person to provide advice".
The letter has been sent out as part of a process of consultation with the industry.
The outcome of that approach would be less certain. I can see that that is why the noble Lords, Lord Cadman and Lord Cope of Berkeley, have tabled Amendment No. 27. Consultation goes only so far:

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"We will consult you, and then we'll do what we want". I am sure that that will not be the case, but it could be inferred.
Secondly, Amendment No. 26 it is a reasonable test of economic cost and practical relevance, to which I referred earlier. I say to my noble friend the Minister: why not accept the spirit of these amendments as a contribution to modernising government and setting an example to other ministries, as the noble Countess just said, which might learn from some of the examples set. I am pleased to support the amendments.
Baroness Williams of Crosby: My Lords, I rise to support the amendments. One concern many of us have is that as the number of small airports and ports extends—we are beginning to see that happening quite a lot—this provision will become a heavy burden for small airports and ports which are trying to attract business. They may suddenly find themselves having to carry substantial costs for providing immigration facilities.
I understand the Government's need for such facilities. It is quite likely that those facilities will move outwards to new ports and airports, particularly regional airports, as charter aircraft and so on use them. It would be a great shame if it were made economically difficult for that to happen because of the cost of immigration control.
I believe that the amendment in the names of the noble Lords, Lord Cadman, and Lord Cope of Berkeley, is reasonable. It would make it quite clear that the cost should be cost price and that the provision should in no way be exploited by the Government or, alternatively, by the authorities of the transport industry. There should be a compromise on this basis. The amendment is an attempt to go a long way to meet the Government's reasonable arguments for immigration facilities. It is also important to protect the interests of the transport industry when it is attempting to expand into different parts of the country, including some that could do without having to carry heavy economic burdens in order to flourish. I am thinking of some of the new airports in the North of England, Scotland and elsewhere.
Viscount Brentford: My Lords, I support my noble friends' amendments. Is any further encroachment involved here beyond the present situation in making, in this case, private companies, pay for the Government's expense? Alternatively, does this provision continue the present position? I suspect that it represents a continuation of the present situation, but it seems to me that there is a danger of further encroachment with more public expenditure being borne by private industry.
I should like to raise two questions. First, Clause 21(1) states "reasonably necessary". I assume that that means what may appear to be reasonably necessary to the Secretary of State and that, for example, the manager of the control port would have no right to say that something was totally unreasonable. Perhaps the Minister could answer that.
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Secondly, my noble friend Lord Cope said that the clause could give the Secretary of State the power to site a whole immigration service in a port, if I understood it correctly. If that were the case, I suggest that that could be obviated simply by adding at the end of subsection (1) the words "at such port". The subsection would therefore read,
"the operation of immigration control at such port".
It is perhaps far-fetched to see the whole of Lunar House being moved into a small northern airport, with the costs being borne by that control port, but that worry could be removed by such a small amendment, if the Minister thought fit.
Lord Bassam of Brighton: My Lords, I am grateful to all noble Lords for the comments made in a longer series of points in debate than I thought was merited. However, important points have been raised and I shall try to deal with as many as I can in turn.
In one way or another, Amendments Nos. 25, 26 and 27 are aimed at placing restrictions on the Secretary of State's ability to determine the level of facilities required to operate the immigration control and which are to be provided free of charge. I shall try to explain why they are unnecessary.
The House debated Amendment No. 26 in Committee at the instigation of the noble Lord, Lord Cadman. I am disappointed that he was not sufficiently reassured by the statements made at that time by my noble and learned friend Lord Falconer. I hope that I can dispel some of his anxieties. I had hoped I had dispelled them when we met last week, but we shall try to deal with the points raised.
The facilities to be provided are described in Clause 21 as being those which are,
"reasonably necessary for, or in connection with, the operation of immigration control".
The amendment refers to their,
"practical relevance to the control of immigration".
I should have thought that the test of reasonable necessity in the clause, as it stands, is stricter than that part of the amendment.
I should like to deal with the headquarters point raised by the noble Viscount, Lord Brentford, and the noble Lord, Lord Cope. Facilities have to be "reasonably necessary". That relates to immigration control at the port, which therefore could not be used to house any part of headquarters. We do not intend to pick up Lunar House and transport it to some faraway airport as a piece of sharp practice to try to re-allocate costs from headquarters! That is not the intention of the general drift of our legislation.
The amendment also requires regard to be had to the economic cost of the facilities to be provided. The clause provides for the facilities to be provided free of charge to be specified in directions. Subsection (2) requires the Secretary of State to consult in advance such persons likely to be affected by the directions. We are working very closely with the industry on the range of facilities it is reasonable to expect it to provide. When the statutory consultation takes place, if not

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before, I am sure that the port operators will undertake their own economic appraisal of the cost to them of providing the facilities being sought. If port operators consider the requirements too onerous, they will doubtless make representations to the Secretary of State. It is open to them to suggest that the costs falling on them are too great and onerous.
I can assure the House that the Secretary of State will give careful consideration to all and any representations made to him. It is perhaps important to recognise at this point that the facilities necessary for the operation of immigration control at a particular port will be dependent on the nature and scale of that control. The nature and scale of the operation needed and the size of the port will determine and drive the nature and scale of the immigration control. In turn, the nature and scale of the immigration control at a port will necessarily reflect the size. It follows, therefore, that a direction to provide facilities which ignored the size and nature of that port's operation could be challenged in the courts. So there is always that final test.
Amendment No. 27, in the name of the noble Lord, Lord Cadman, suggests an arbitration procedure as a possible way of providing assurance to port authorities that their concerns will be recognised. Subsection (1) of the clause makes it clear that the responsibility for deciding what facilities are reasonably necessary for the operation of the immigration control lies with, and only with, the Secretary of State. The Secretary of State will be able to take advice from whomever he chooses. We shall look at whether it would be appropriate to seek the advice of an independent person where there is some dispute.
However, we could not accept a binding arbitration. We could not accept being bound by an arbitrator as to the level of immigration control that was necessary at any port and the facilities needed to support it. That is a question which has a heavy element of policy in it. I am afraid that I must ask the House to reject the amendment accordingly.
However, as I indicated, the Secretary of State will carefully consider any representations put to him before making directions. Informal discussions have been going on with the industry for some time now and we are currently giving consideration to how any disputes between port authorities and the Home Office might be settled. That will include looking carefully at procedures to take into account any independent advice.
I am grateful to the noble Lord, Lord Berkeley, for his comments earlier. He carefully drew attention to correspondence which was despatched towards the end of last week. He quoted from it that we would seek,
"an opportunity for an independent person to provide advice on issues of dispute".
That is to be part of a wider internal review, and we would want to ensure and be satisfied that an independent view was given. In doing that, it is only right and proper that we provide those who are being consulted with every opportunity to make their views known to us.
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I turn to the amendment in the name of the noble Lord, Lord Cope of Berkeley, Amendment No. 25. It would mean that instead of port authorities providing facilities free of charge, they should be provided at cost price. I readily concede that in respect of some facilities for which the Home Office currently pays, payment at cost would be preferable to the charges imposed by port authorities. But it is also right to acknowledge that some port authorities already provide facilities free of charge to the Immigration Service, and in that case the amendment would mean an increase in public expenditure.
Perhaps I may reiterate why the Government believe that a certain level of facilities should be provided free of charge. In order to accommodate the growth in international travel and increases in passenger numbers, port operators may seek to expand existing facilities and establish new ports. That will require investment by the operators but, being commercial organisations, there will be an expectation of profits flowing from the expansion. Contrary to the suggestion of the noble Baroness, Lady Williams, although we do not want to impose a burden on business, we believe that there is a reasonable price to be paid by businesses in this area. We believe that our approach is entirely reasonable.
The Government welcome and are committed to facilitating growth, but the increase in passenger traffic will place additional burdens on the Immigration Service in terms of, among other things, increased staffing, rental and other associated costs. Inevitably, the taxpayer will be required to fund most of those additional costs. In those circumstances, I suggest to your Lordships that it is not unreasonable to expect port operators, who benefit commercially from their operations, to pay a small share of the increasing immigration costs. I hope that noble Lords will reject the amendment.
7.30 p.m.
Lord Cope of Berkeley: My Lords, the Minister very kindly ruled out the possibility of moving Lunar House to a port, which I believe is a small advance on the way in which the clause is presently phrased. However, the noble Lord spoke constantly of the limitations that arose from the fact that the Secretary of State could do only what was reasonable for the operation of immigration control at that port. But at the moment the words "at that port" do not appear in the Bill; it refers only to,
"the operation of immigration control",
and that is not limited to facilities at the port. As my noble friend Lord Brentford suggested, that opens up the possibility of an amendment at Third Reading to bring the Bill into line with the expression used by the Minister.
The Minister also referred to the question of a dispute resolution procedure, arbitration or something of that kind. He made the position of the Government very clear in rejecting that suggestion However, the independent person referred to is there to give advice. I suppose that in some circumstances

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that may be helpful, but it is not really what my noble friend's amendment seeks. However, as far as concerns Amendment No. 25, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Cadman Lord Cadman had given notice of his intention to move Amendment No. 26:
Page 15, line 21, at end insert—
("()In formulating such facilities, the Secretary of State shall have regard to their economic cost and practical relevance to the control of immigration.").
The noble Lord said: My Lords, I was slightly reassured by the Minister at our recent meeting. The term "reasonably necessary" when applied to the provision of facilities is open to considerable interpretation. Consequently, it is important that some kind of dispute procedure is made available. Any independent view on the matter is to be welcomed and will provide further reassurance. To reject the offer of arbitration appears to be a little harsh. I do not propose to pursue the matter any further at this stage.
[Amendment No. 26 not moved.]
[Amendment No. 27 not moved.]
Lord Bach: My Lords, I beg to move that further consideration on Report be now adjourned. In moving this Motion, I suggest that the Report stage begin again not before 8.35 p.m.
Moved accordingly, and, on Question, Motion agreed to.

Road Traffic: Speeding
7.34 p.m.
Viscount Tenby Viscount Tenby rose to ask Her Majesty's Government what steps they are taking to raise public awareness of the dangers of excessive speeding.
The noble Viscount said: My Lords, I am grateful for the opportunity to air this important issue. I am also grateful for the support that this Unstarred Question has attracted. It is a particularly appropriate time for such a debate as we all eagerly await the conclusions of the Government's review of the whole area of speeding and their welcome departure from the traditional stance to treat the subject in isolation rather than to relate it to a whole number of complementary issues, ranging from the impact on the environment to its effect on rural communities. No one has been more assiduous in pushing the process along than the Minister himself. I am sure that we are all grateful for his commitment to solving the problem.
Speed is the single biggest contributor to road accidents. That the problem is of formidable proportions is illustrated by figures from the recent vehicles speed data survey. It found that at 26 motorway sites 55 per cent of drivers exceeded the 70 mph limit, while a further 19 per cent drove in excess of 80 mph. More alarmingly, at 30 urban sites 69 per cent of drivers exceeded the 30 mph limit. Most
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alarmingly of all, in general no fewer than 72 per cent of heavy goods vehicles exceeded their limit of 40 mph. One wonders whatever happened to the concept of engine governors. In this context one of the initiatives that the Government may care to consider is prosecution not only of drivers but also of the firms employing them who may well be covert accomplices to the offence, for example, by laying down unrealistic and unsafe delivery schedules for their drivers.
Let us be sensible about this. There are very few of us who do not at one time or another break the limit. I am fully aware that I am providing a hostage to fortune by initiating this debate. Like St. Augustine, I am tempted to mutter,
"Give me … continency—but not yet!".
However, at least I am aware of speed limits—seemingly unlike a surprisingly large number of drivers—probably because of my experience as a magistrate for 25 years. It is also a global problem, as anyone who travels abroad can see.
We should not be too fatalistic. It is possible to turn round people's perceptions. Over the past 25 years we have seen a fundamental change in our attitude to drink driving as a result of relentless education and advertising. Although a hard core of irresponsible drivers continue to drink to excess and drive, the fact is that society has come to accept that the practice is anti-social. Yet more accidents occur as a result of speeding cars in the hands of drivers who are stone cold sober—perhaps on mobile phones, pace the excellent Bill introduced by the noble Lord, Lord Davies of Oldham. Our task must be to turn round perceptions in a similar fashion.
This mammoth crusade embraces not just drivers but also manufacturers and the media. There are three targets: first, drivers. The police always claim, and I agree, that fear of detection is the one great deterrent to crime, but only a comparatively small percentage of motorists are caught and fined for speeding. These unlucky few invariably feel badly done by, as if they had been unfairly singled out by capricious police enforcement. We are regularly informed that that state of affairs is due to lack of resources: not enough men on the ground and an insufficient number of speed cameras and no film to put in them.
It is here that the Government's promise of hypothecation for speeding fines takes on so much importance, for the money diverted to the appropriate police forces, assuming it is ring fenced, should provide the finance for more cameras, each with film in them, and the ordering of new state-of-the-art digital cameras which will eventually replace the existing GATSOs. In turn, all of this should produce more successful prosecutions and, therefore, more finance. Thus, the operation will be self-generating. I should be grateful if the Minister would say how negotiations with the Treasury are proceeding in this vital development which, on its own, can probably do more to lick the problem than anything else. The cynic in me ruefully admits that to hit recalcitrant drivers through their pockets, not by tax but by penalty, would do more than 1,000 educational campaigns.
Next, we come to manufacturers is their attitude responsible as far as concerns speed? Two recent examples may suffice. Last week a manufacturer was reprimanded by the Advertising Standards Authority for two advertisements glamorising speed. Both were subsequently withdrawn. The week also saw the welcome resurrection of an honoured name in the British sports car industry. We are informed that its new model will have a top speed of 150 mph or more than twice the legal limit on any road in this country or anywhere else in the world except possibly a German autobahn.
Manufacturers will and do argue that the extra power is to get out of trouble in an emergency—some emergency, my Lords!—and that anyway it is a global and competitive market and with everyone doing it they have to do so as well. There may be a scintilla of truth in both those assertions but if that is all there is to it why do advertisements for new cars invariably stress that speed has sex appeal and is the most direct route to success with the fairer sex? The attraction of power—I regret to say that it should not be entirely unfamiliar to politicians—comes into the issue as well.
I was told recently by the director of a well known British company that the only thing his middle aged colleagues cared about when choosing a new company car was how long it would take to get from nought to 60 miles per hour. The question was not how dependable the car might be, nor how comfortable or safe, but just how fast it was. This was the only concern of otherwise mature men. This preoccupation with speed is pandered to by much of the media, in particular by what I may describe as the "bloke-ish" motoring correspondents who extol the attractions of cars packing plenty of punch in contrast to the dull family models lacking glamour. They also seem unable to see the essential ludicrousness of praising a car for its ability to go far faster than any car is legally entitled to do on any road in this country.
Speed also plays havoc with the environment. Traffic volume is growing faster in rural than in urban areas. The CPRE has done much valuable work. I declare an interest in the organisation as president of a county branch. It is concerned about intimidation of country folk by speeding cars. It is the villages which are suffering from this modern plague—a fact admirably dealt with by the Private Member's Bill being introduced in another place by the honourable Member for Peterborough Its three principal proposals are a national speed limit of 20 miles per hour in villages, a reduction of the speed limit on C and unclassified roads to 40 miles per hour, and the creation of quiet lanes where pedestrians have priority. All have much merit.
The present position where minor roads—at weekends in particular they are crowded with walkers, cyclists and riders—are subject only to the national maximum limit of 60 miles per hour has been a scandal for many years; a scandal perpetuated by the archaic planning procedures which have tied the hands of local authorities trying to implement change. Accordingly, the Government's action earlier this year in cutting
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through that red tape is to be applauded. I hope that the Minister can tell the House how that process is proceeding.
I turn briefly to the other side of the coin; namely, enforcement. Too many of our limits, and too many of our procedures for evaluating and altering them, were set in the 1920s when the amount of traffic on our roads was one-fiftieth of what it is today. Keeping up with modern conditions, and changing, if necessary, with them so that some limits may be raised and others lowered, seems essential. Stories have recently been trailed in the press (I am told inaccurately so) that some elements of the police favour a zero tolerance policy in respect of speeding. In my view that would be both misplaced and dangerous. It would be misplaced because it could severely damage the relationship between the motorist and the police, and dangerous because if there is the distinct possibility of prosecution for someone doing, say, 31 mph, drivers will be looking at their speedometers rather than the road ahead, increasing the risk of accidents. In addition, the inaccuracy of speedometers to one mile per hour will provide a field day for lawyers in the courts.
No, what is needed is a rigorous overhaul of the existing limits for the protection of the vulnerable and the environment. And this must go hand in hand with the probability of detection and prosecution— within the existing discretionary parameters—as the result of increased finance for additional resources becoming available, so that to continue to flaunt speed limits flagrantly will become a very expensive option indeed.
It will be a hard task—harder by far than turning people's perceptions round about drink driving. But as our roads get ever more crowded it is a task that must be faced and a battle that must be won.
7.44 p.m.
Lord Bradshaw: My Lords, it is a privilege to make any first speech in your Lordships' House on the topical subject of transport safety. I am grateful to the noble Viscount, Lord Tenby, for giving me the opportunity.
I should like to bring to the notice of the House the annual casualty report of the Oxfordshire County Council. This shows that last year in the county one person was murdered, but 63 people were killed on the county's roads. At least one-third of those people were killed as the result of speeding.
Speed reduction requires a three-pronged approach embracing enforcement and education—about which we have heard—and civil engineering. We are pleased that the Treasury is now considering a scheme to hypothecate some additional revenue from extended enforcement to cover the costs of casualty reduction measures. It is about the scope of these allowable casualty reduction measures that I hope the Minister may be able to give us some comfort when he replies to the debate.
Obviously the Thames Valley Police Authority, of which I have the honour to be a member, hopes that the additional resources will enable our existing

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cameras to be used to full effect, which is certainly not the case at present. The police and the county wish to extend the use of cameras. There is a list of villages which want to have the protection that the cameras afford.
However, I stress to the House that we should not regard enforcement as our only goal. We spend a pitifully small amount of money on education. I do not agree that education should necessarily be restricted to a campaign. We should like to get on to local commercial radio station programmes to which young men listen.
There are also many identified safety blackspots in the county which would benefit from engineering solutions to slow down traffic and create safe conditions for cyclists and pedestrians, in particular school children. We as a county council need to maintain road markings and signs far more effectively so that people are constantly reminded of speed limits and the dangers ahead, and we need to apply better skid resistant surfaces.
In my view speed enforcement is not about persecuting motorists, as some of the more extreme commentators suggest. It is about protecting people and communities. It would be sensible to treat the problems of speeding holistically, and if the fingers of the Treasury are slowly being prised open to fund better enforcement I would hope that the Minister may be able to assure the House tonight that education and traffic engineering will also benefit from those funds so that it is possible to present a package which motorists will see has a positive angle as well as one which may be perceived negatively.
7.47 p.m.
Lord Mountevans: My Lords, on behalf of the Whole House it is my pleasure to congratulate the noble Lord, Lord Bradshaw, on an outstanding and beautifully timed speech. His career may be divided into two sections: the railways; and academia. In the first he was General Manager of the Western Region—dare I say it?—Brunel's successor if not his heir. I can say no more. In the second he was and is a professor at Salford. Again, I can say no more.
It is a full House for an Unstarred Question. I congratulate the noble Viscount, Lord Tenby, upon raising the issue. As some noble Lords will recall, Shaw said that those who can, do, and those who cannot, teach. I think that the maiden speech of the noble Lord, Lord Bradshaw, has proved, as has his career, that Shaw was wrong. Not only could the noble Lord do it in the railways but he can do it in academia as well. He has done it again elsewhere—each time, I hasten to add, with distinction.
I am told that 95 per cent of the population break the law by speeding. It may well be the only time that they ever break the law, but they do so almost every day. So this is an important matter. I have to say modestly that I have never done so. As some noble Lords will know, I have never had a driver's licence. I
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can plead innocence here. But as a pedestrian and a passenger I, too, am a road user and I share the concern of the noble Viscount.
I echo the noble Viscount and the noble Lord in their conspiracy theory, for those who read the debate in 50 years hence, that the watchword should be "education, education, education". Temporarily, I forget who said that in the first instance, but I am sure that the Minister will remember. Then there should be enforcement. I believe that all three of us are in agreement on that.
Our road casualty statistics show a positive trend. Education has persuaded more and more people not to drink and drive. Likewise, education has persuaded more and more people to belt up. Those are two great contributors to our substantial success in reducing road casualties. I wonder whether our next education campaign—whether aimed at the manufacturers with their 0 to 150 miles per hour before you even know you have started, or at others—should be that speed kills and maims, destroys and damages.
Two minutes have already passed, so I shall turn to my final point. It is enforcement. We do not need more road traffic legislation or another enforcement Act. Every minute as I walk in London, I see a road traffic offence which goes unprosecuted and unpunished. If we want safer roads, we must make the effort to enforce the existing law. I pick up the points made by the noble Lord, Lord Bradshaw, about the police; they must have the resources to do so. The law must be enforced again and again and again, not by a cautionary slap in the wrist or by a pocket-money penalty, but consistently and severely.
7.52 p.m.
Baroness Arlington: My Lords, it is a very great privilege to make my maiden, and possibly only speech, in your Lordships' House and I am extremely grateful to my noble friend Lord Tenby for introducing this debate. It is perhaps ironic that the only reason I am able to speak today is because of the fact that my uncle, the 9th Duke of Grafton, who was also the 10th Earl of Arlington, died from injuries sustained in a crash which occurred in a high speed car race in 1936, at the age of 21. I am only too aware of the dangers of speed. However, the issue of speed should be taken in its correct context.
While supporting the existing punishments for offenders, it is quite clear from the evidence which we have that driver education must be the principal way in which any government tackle the problem of road safety. It is also clear that enforcement is not the only way to get drivers to listen or heed speed limits with more understanding.
If we accept that driver education is the best way of dealing with this problem, where to start? Well, new and young drivers are the obvious targets. The historical facts tell us that one in three male drivers between the ages of 17 and 20 has a crash within the first few years of passing his test. One in three of all crashes involves men under the age of 20.

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The latest statistics from the DETR casualty report for 1998 tell us that 429 drivers between the ages of 15 and 19, and 785 drivers between the ages of 20 and 29, were killed last year, a combined figure of 1,214 out of a total for all ages of 3,537. In other words, over 34 per cent of all fatalities occurred in the 15 to 29 age group. Put another way, the most horrific and disturbing fact is that, on average, three young people will die today as they do every day as a result of road crashes in Great Britain.
Young male drivers consistently overestimate their driving ability. Making the standard driving test harder to pass is the first step, with additional sections dealing with areas such as hazard perception, motorway driving, driving in the dark and attitude. But passing the driving test is only the start of further driving education. Some noble Lords may be aware of the Pass Plus scheme which was set up in 1995, backed by the Government, the Driving Standards Agency and some of the major insurers. It is designed to make newly qualified drivers become better drivers, but it suffers from one major drawback; it is voluntary, not compulsory.
In my discussions with the extremely helpful Road Safety Officer of Argyll and Bute Council, I learnt that fewer than 20 drivers had taken the Pass Plus course between 1st January 1998 and the end of August 1999, even though half the cost of the course could be claimed from Argyll and Bute Council on production of the pass certificate.
After the initial driving test has been passed, all new drivers should be required to continue their driving education with Pass Plus, not just those with the interest or money to do so. Every driver has to read the Highway Code. This excellent brochure is updated on a regular basis, but how many of us in your Lordships' House have read the latest one? I suggest that the DVLCC in Swansea is asked to investigate the possibility of issuing the Highway Code to drivers every five years on renewal of their car licence, the cost to be added or included in the annual licence fee.
In 1997, the Pass Plus scheme offered, for two months, a new car as a prize. Why not make a car available every month with the draw included in a National Lottery programme, on national television?
Having a driving licence is not a right. It should be seen as a privilege, awarded after the necessary tuition and exams. Failure to get this message across will mean that our new drivers obtain little more than a licence to kill. It is not necessarily speed that kills, it is bad driving. You can be a bad and unsafe driver at 30 miles per hour.
I thank your Lordships for your forbearance and courtesy and apologise for my speech being longer than 75 words! I do hope that some constructive measures to improve driver education, which will highlight the dangers of speeding, among other aspects, will result from this debate.
7.55 p.m.
Lord Berkeley: My Lords, it gives me great pleasure to congratulate the noble, Lady Arlington,
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on a most interesting and thought-provoking speech, which began with a unique story of her fight to succeed to her title. From what she told me—and I hope that she will allow me to share it with the House—she is very brave. Her husband, who helped her to prepare this maiden speech, died suddenly at the weekend. Therefore, she deserves maximum congratulations on coming here tonight and sharing with us her thoughts.
Noble Lords: Hear, hear!
Lord Berkeley: My Lords, a recent letter in The Times criticising the Deputy Prime Minister for being anti-motorist went on to say that most motorists are law-abiding citizens. The noble Viscount, Lord Tenby, whose opening speech was very interesting, has put that story to bed.
Perhaps I may give an example. Recently, I drove from Oxford to Cambridge down the motorway and along the M25 doing 70 miles per hour all the way. I did not overtake a single vehicle; everybody overtook me! As we have said on many occasions, the limit set by law is too high. I congratulate my noble friend the Minister on the roadspeed management study now taking place.
Some of your Lordships may have seen an article in the Guardian in August about a survey by Carlton Television. It showed that 80 per cent of viewers favoured 20 miles per hour limits on residential roads in London. Cyclists and pedestrians fear cars on the streets. Therefore, I hope that the study will be completed soon and that the Government will take account of the massive majority in favour of lowering the speed limit.
I know that motorists do not like going slowly. As we all know, they feel safe inside their cars. I get the impression that the police do not always like enforcing speed limits. The noble Lord, Lord Bradshaw, in his most interesting maiden speech—the first of many, I am sure—mentioned that he is a member of the Oxfordshire Police Committee. I recently noted in the Oxford Times that the police were saying, "It's no good lowering the speed limits in two villages because we can't enforce them". I hope that at some stage my noble friend will tell the House why, because I believe that that is wrong.
Let us have education in this regard and a budget for it that matches the public relations of those who sell cars and drive them. But let us look at what was suggested in last week's Sunday papers: speed-limiters in cars set so that the limit cannot be exceeded on any particular road.
7.58 p.m.
Viscount Allenby of Megiddo: My Lords, I, too, thank my noble friend Lord Tenby for introducing this important subject. Since the introduction of the motor car on our roads—and a few noble Lords may recall that a man with a flag proceeded the vehicle—there have been dramatic changes, which have been highlighted in the debate tonight. In the 1940s and 1950s 30 miles an hour was the norm. Today, as we

827
heard from the noble Lord, Lord Berkeley, 70 and 80 miles an hour seems to be the norm. The number of vehicles has increased by 500 per cent in the past 40 years. There are now—I do not believe that this statistic has been quoted—over 23 million cars on our roads. The roads are overcrowded, and in some areas, particularly in the south-east where I live, they are becoming gridlocked.
Many roads, particularly C-class roads, are no straighter now than they were 40 years ago, making lines of visibility much shorter. Technology in the construction of all types of vehicle has advanced dramatically over recent years. There are far more heavy vehicles with articulated trailers, 4 x 4 vehicles—many of which will never see the countryside and are bought purely for show—and, of course, the Transit vans which breathe down one's neck, bearing only one letter or parcel.
The performance of those vehicles is often twice the legal speed limit. Turbo, catalytic converter, ABS and GTi are familiar household terms of which we would not have heard some 40 or 50 years ago. The relationship between speed and accidents is straightforward: the faster the speed, the greater the number of accidents and the more serious the level of injury on impact. Some drivers even appear to adopt the attitude that no one else should be on the road and that speed limits are there to be ignored. People appear to drive fast because of stress and—I hardly dare mention it—because it is sexier, or to save time or because it gives them a sense of power. I find it quite strange that because they have a stereo playing loudly they must go faster and faster.
Last year, tragically, 3,421 people were killed on the roads. Over 40,000 people were severely injured and 250,000 others were injured.
What is to be done? Many suggestions are being made and I shall not waste your Lordships' time. However, currently there is a campaign called "Kill your Speed", which was, I believe, initiated by the noble Baroness, Lady Hayman. Comparisons are often made between that campaign and that aimed at reducing the number of accidents caused by drink-driving.
Drivers do not look upon speeding as a criminal activity, all too often believing that they are driving at the speed appropriate to the circumstances of their journey, such as 50 miles per hour through a town at night—which is far too fast. They simply do not consider that they are endangering the safety of either themselves or others, nor the consequences to the police, the medics and all the people concerned with accidents.
Time is running out, but in concluding, I ask the Minister to consider introducing the following: a reduction and simplification of the speed restriction and road sign system to make them more effective than at present; that all drivers should be required to carry their driving licences at all times; and the possibility of using the driving licence to impose on-the-spot fines. Drivers found to be in breach of a driving ban should
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receive a harsh penalty and not be let off lightly. I suggest penalties such as confiscation of their vehicles and even a jail sentence. Consideration could be given to the recovery of medical and police expenses where a driver is found responsible for an accident causing injury and damage.
I apologise for being a second over time, but until we achieve discipline and a calm flow of traffic on our roads at all times, the carnage will continue. We need a mix of self-enforcing measures to be introduced now. The technology is there, and the question is how, and what will be the cost.
Baroness Farrington of Ribbleton: My Lords, perhaps I may courteously remind all noble Lords that we need some discipline on time. When the indicator shows "00:03", it means that Members have exceeded their time limit.
8.4 p.m.
Viscount Simon: My Lords, a couple of weeks ago I was on traffic patrol with the police, quite late at night, when a young man was stopped for driving at between 95 and 100 mph. That speed was excessive, not only because the driver had passed his driving test only a month or so earlier, but also because it was raining, which made the speed both excessive and inappropriate. Noble Lords might be disturbed to learn that this particular driver's excuse for his speed was that his windscreen wipers did not work.
It is the terms "excessive" and "inappropriate" speed that are generally misunderstood. "Excessive speed" is that which exceeds the speed limit while "inappropriate speed" is a speed which is inappropriate for the conditions. For example, a speed of 1 mph in a 70 mph limited area will be inappropriate when there is zero visibility. An AA report about to be published states:
"the wrong speed on the wrong road kills around 1000 people a year. We need to manage speed better. The key lies in defining the right speed limit for each stretch of road".
All speed limits should be reviewed. Getting the right speed on the right road is one of the most pressing road safety issues. Speed limits should be reconciled to the character of the road and, where the character of the road and the limits are at odds, there must be an explanation; for example, deceptive bends. The link between the 30 mph limit and street lighting should also end as it is not generally understood. The derestricted speed sign should be replaced with the speed limit in force. Authorities must implement speed limits which respect the integrity required of a national system. If speed limits are set too low and ignore police objections, motorists' acceptance will be undermined. It has been shown on the M.25 that variable speed limits are effective in reducing accidents and improving traffic flow. Their use should, where possible, be extended.
A few years ago a noble Lord remarked to me that modern cars were perfectly safe proceeding at 90 mph. My reply was, "Is the driver safe to proceed at that

829
speed?". Enforcement of speed limits will greatly assist road safety and will reduce the cost to society due to deaths and injuries of motorists and others.
The competitive nature and thoughtless actions of some motorists leading to accidents involving inappropriate speed must be addressed. Making motorists understand the potential implications of inappropriate speeding, which must be a prime objective, will be an uphill task, but it is one which has to be won. Education must be better than using satellite technology passively to enforce speed limits, thereby adversely reducing driving involvement, but that new method of enforcing speed limits is being tested and could become a reality if motorists do not become more responsible for their actions on the roads.
8.6 p.m.
Lord Gladwyn: My Lords, the Government's review of speed policy, admirably conducted by the Minister, has -itself already raised public awareness of this subject quite dramatically. The Kill Your Speed television campaign has also played its part, although it has been swamped by the mass of TV ads and programmes in which speed is adulated. The only law which is never broken on even the most violent films is the ritual fixing of the seat belt, a ridiculous acknowledgement to safety.
In a classic understatement, the White Paper vouchsafes that
"there is some evidence that driving fast is seen as "macho" and driving slowly as "old fogey" or "feminine"",
and it is surely this, as much as saving time, that forces the foot hard down on the pedal. Indeed, I myself was once a macho driver, pushing my Jag out between the cats eyes of the three-lane highway and daring the oncoming lights, but now I am a strict limitationist, provoking the fury of the flow.
l should like to speak for the pedestrians, bearing in mind that many pedestrians are also motorists whose attitude, indeed whose personality, can change once they are behind the wheel. For pedestrians, the main issue is what happens within the present 30 mile per hour speed limits. There is a powerful case for a reduction in urban speeds. That relates not only to protection from danger, but just as much to the need to alleviate the mental stress and the air and noise pollution of urban living.
Public opinion is coming round. The noble Lord, Lord Berkeley, mentioned the Carlton TV poll, but the Lex report of 1996 showed only 25 per cent support for lower limits. However, the case is articulated by the Slower Speeds Initiative, and in the country lanes and villages the message has been more clearly heard.
The new 20 mph zones, with their proven reduction of pedestrian casualties by 60 per cent, are greatly to be welcomed. Now that the local authorities are able to authorise them, we can expect many more. But they will still be confined to certain suitable residential areas with special traffic calming measures, and the
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Government are wary about more general sign-only 20 mph zones, doubting whether they can be enforced, even with those awful repeater signs.
I should like to see local authorities promoting wider experimentation of 20 mph limits, perhaps embracing a whole city except for the main roads. The other method of speed reduction is by rigid enforcement of the existing limit; a zero-tolerance imposed by means of automated equipment, just as strict as the Government Whips' clock up there. Most motorists accept that that would be impartial and, despite its Orwellian implications, I dare say its time will come.
I brake violently in order to conclude my speech on time.
8.10 p.m.
Lord Dormand of Easington: My Lords, one of the worst features of being the ninth speaker out of 10 is that everything has been said. However, I hope that m this case the repetition may seek to emphasise some of the points I want to make.
Whatever reservations there may be about some of the statements made in this debate, there call be no doubt that the biggest single cause of accidents, including death and serious injury, is speeding. The main issue is how drivers can be prevented from exceeding the speed limit. There are certainly three methods: first, what be might be called the "physical" way, such as speed cameras and road humps; secondly, the greater use of the police; and, thirdly, the use of deterrents.
The most depressing aspect of speed control is that all of those methods, and others, are failing. Last year 3,241 people were killed on the roads—I repeat, killed on the roads—with most of the deaths caused by speeding. I want to stress my view—unpopular, it seems, in this debate—that the single most effective deterrent is heavy penalties. Those penalties would increase with repeated offences. I take a hard-line view, advocating, for example, heavy fines and, with repeated offences, loss of licence for a limited period with, ultimately, permanent loss.
The reality that present measures are failing is recognised to some extent in the recent report issued by PACTS, the Parliamentary Advisory Council for Transport Safety, which states:
"The police, Crown Prosecution Service and courts do not appear to be taking full advantage of the powers available to them".
It is clear that that is true. I believe that all of us who have an interest in this matter think that that is true, and I assume that the Government can do something about that most serious allegation. Perhaps my noble friend the Minister will comment.
I, too, applaud the Government's decision last year to establish the speed review. I understand that the report of that review is due to be published very shortly. I hope that it will be a major step forward. I remind your Lordships that it is 10 years since the Government's last road traffic law review and, in that time, some fundamental changes have occurred. Much

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evidence is available for the review. My noble friend the Minister has shown a deep personal interest in road safety. Therefore, we hope that long overdue changes will result from the review.
Underlying all of the suggestions and proposals for improving road safety, whether related to speed or other factors, is the need for greater resources: more and better policing, increased use of technology and more publicity on the consequences of road traffic offences. There is much to be done. Those and other matters will cost money. If the Government do not make this provision, we shall know, regrettably, that they are not really concerned about improving the present situation.
8.13 p.m.
The Earl of Rosslyn: My Lords, I have been a police officer for 19 years, serving first with the Metropolitan Police and now as a superintendent in the Thames Valley. Nowhere in policing, I believe, are contradictory attitudes to law enforcement so evident as in the subject raised this evening by my noble friend Lord Tenby. Although the level of support in public attitude surveys for speed reduction is high, officers enforcing speed restrictions have to absorb some rather less supportive messages from drivers, often delivered in terms too plain to be repeated in your Lordships' House. Many of those most insistent in their demands for action will themselves emerge as offenders when speed surveys or enforcement is undertaken.
However, those ambivalent attitudes do nothing to undermine the evidence of a number of studies that just a one kilometre per hour reduction in speed can produce up to a 3 per cent reduction in the number of personal injury collisions; nor do they alter the fact that such speed-related collisions will involve more vehicles, be more severe, and will result in a higher proportion of passenger injuries.
Raising public awareness of those dangers may require discrete though complementary strategies since some drivers may simply be unaware of the risks while others know the risks but choose to ignore them. But those strategies will need to balance effectiveness with acceptability if they are to succeed.
Although the police service may stereotypically be associated with enforcement alone, much work is, in fact, undertaken by officers to influence attitudes and change behaviour. In our force, road safety continues to be an important part of our schools programme, and police officers support a number of driver skills courses for young people, such as the Driving with Attitude scheme in Reading and the Community Drive project in Slough. The latter includes courses for students attending Thames Valley University, responding to concern that, for some, school-based programmes are not as effective as those targeted at young people who have recently started to drive.
The force is also applying restorative justice principles when dealing with speed-related driving offences, bringing offender and others affected
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together to discuss how the offence occurred and how the harm caused can be repaired. We are working also with local authorities in schemes where speeding drivers are given the opportunity to attend road safety presentations as an alternative to prosecution.
In all those ways the police service can contribute to addressing the underlying causes of excessive speeding, rather than treating the symptoms alone.
8.16 p.m.
Baroness Thomas of Walliswood: My Lords, we should all be grateful to the noble Viscount, Lord Tenby, for initiating this debate, which has demonstrated the expertise on this subject of many Members in the House and particularly of the noble Viscount. It has given us two splendid maiden speeches. I am sure that the debate will make interesting and, for people like myself, very useful reading.
I rise to make only two points. First, I want very much to endorse what has been said on the subject of the psychologically intimidating effect of ever-increasing amounts of traffic and ever-increasing traffic speeds, particularly on minor rural roads and in residential areas in towns and villages. Three thousands deaths on the road are a tragedy, but accident rates are in fact still falling.
On the other hand, a whole way of life is being destroyed by the pressure of traffic, and of speeding traffic in those areas. Traffic on minor rural roads is rising faster than elsewhere in the network as larger roads become clogged. Meanwhile, there is a vicious circle of more people taking to their cars in the countryside because of the fear of increased traffic. I very much hope that in reply the noble Lord will be able to tell us that the Government fully support the case for reducing traffic speeds on rural roads, and that they will provide the funding to enable local authorities to build on the experiments in area-wide traffic calming already carried out by some in partnership with the Countryside Agency and its predecessor bodies. I should also like to hear from the noble Lord that the Government will give time and support to the Country Lanes and Villages Bill.
Secondly, I should like to draw attention to the fact that we have in this country no culture—to use a popular word—of obeying the speed limit. To take but two examples, the Dutch and the French do not drive more slowly than do the British on motorways, but unlike us, they slow down in villages and towns. Not only is that a safer and more considerate practice, it is also much cheaper. One has only to think of the money that local authorities and, ultimately, the Treasury could save if people generally obeyed a 48 mile per hour limit on a minor rural road and a 20 mile per hour limit in a residential street. That is what they do in Graz in Austria, for example, where there is an obeyed 20 mile per hour limit in residential zones in the city. There are no road humps, no ugly and intrusive signs, and less engineering. That all equals less expenditure of cash—a prize which is available to us if we can persuade people to drive at lower speeds.

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Therefore, I support everything that has been said and I look forward to hearing the Minister's response to the comments on the subject of the education of drivers. I do not mean education only at the moment that people learn how to drive; I believe that the campaign has to be carried into the schools as well as on to our television screens and radios.
We have to punish offenders. I believe in fining at the roadside. We also need to improve the culture and to persuade people not to drive too fast.
8.20 p.m.
Earl Attlee: My Lords, I have only three minutes, so I shall have to dispense with the usual pleasantries other than to add my congratulations to the excellent contributions of both our maiden speakers.
In listening to the speeches, it is clear that your Lordships well understand the problems. I believe that the root cause, so ably articulated by the noble Viscount and other noble Lords, is that many drivers have an inflated opinion of their driving capabilities and their vehicles. Furthermore, most of us drive fairly close to the speed limits and thus any reduction in mean speeds would be accompanied by the welcome reduction in accidents desired by many noble Lords. In short, for many of us our standard of driving leaves room for improvement.
However, I do not believe in the concept of zero tolerance, and I am uncomfortable with some of the draconian solutions suggested tonight. First, they would alienate the police from the people whom they aim to serve—a point mentioned by the noble Earl, Lord Rosslyn. Secondly, they would remove the discretion from the police to target their efforts. Finally, there are technical problems mentioned by other noble Lords. I believe that education, encouragement and enforcement combined would be more effective.
I am not sure that I entirely agree with the noble Viscount on his comments about HGVs. I believe that the problem lies in that there is only one HGV limit for a single carriageway road—40 miles per hour. Of course, there are many types of single carriageway roads, some of which are good and some of which are bad.
Studies clearly show that the worst offenders are young drivers who drive high mileages, often in company cars. When caught, some offenders take the message and do not offend for some time, often years. Others re-offend in as little as six months. Clearly, they have a problem.
Many noble Lords have talked about education, particularly the noble Baroness, Lady Arlington. It seems bizarre that we test our vehicles religiously every year, but a driver is tested only once at the tender age of 17 or 18, and only to the standard of a novice. I believe that that problem was raised by the noble Baroness, Lady Thomas of Walliswood.
The problem of speeding is one of poor driving standards, but that can be partially rectified by further training and education to reach an advanced driving standard or at least an improved standard. Drivers
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who drive to advanced standards, among other things, recognise the need for and respect speed limits to a much greater extent. If they travel a little faster than they should, they are less likely to have an accident.
To suggest that additional training should be compulsory for all would be a rather short political suicide note. However, perhaps we could consider additional training for those who have been convicted of careless driving or speeding on more than one occasion. I wonder what the Minister's view is on compulsory additional training for those who have demonstrated that they need it. It is not just the Government who have a role to play. Perhaps the insurance industry could be more pro-active in insisting on higher standards.
Drinking and driving is now socially completely unacceptable. We need the same philosophy to apply to excessive speeding, and I hope that the Minister can achieve that.
8.23 p.m.
The Parliamentary Under-Secretary of State, Department of the Environment, Transport and the Regions (Lord Whitty): My Lords, I thank the noble Viscount for raising this debate and noble Lords who have taken part, particularly the two maiden speakers. I congratulate the noble Baroness, Lady Arlington, on her speech, which clearly identified many of the problems, particularly in relation to young drivers. I also congratulate the noble Lord, Lord Bradshaw, on his maiden speech in this House. He is an expert on the topic of transport. It occurred to me that if he were a member of the police authority in Oxfordshire and had only one murder and 63 deaths on the road, it was about time the Oxfordshire police authority transferred Inspector Morse to traffic duties!
The noble Lord, Lord Mountevans, and the noble Baroness, Lady Thomas, referred to the relatively substantial improvement in road safety in this country. We have to bear that in mind. Nevertheless, the absolute figures are still terrifying: 1,000 people killed by accidents involving speed every year. There is overwhelming evidence that excessive and inappropriate speed is the most common contributory factor in the cause of road accidents. The facts are that driving in excess of the speed limit is endemic in this country for the reasons that everybody has indicated.
Research confirms what the noble Earl, Lord Rosslyn, indicated, that a one mile per hour reduction in average speed would mean a reduction of between three and five per cent in the number of accidents, and those accidents would be less severe. Those figures are part of what lies behind our launch of the speed review.
As Minister responsible for road safety, my postbag is full of two sorts of letter on this subject. Some are from those who believe that they should be able to drive as fast as possible; that the Government are "nannyish" and restrictive in trying to impose speed limits; and that cameras and the police are trying to catch them out. A rather larger package comprises devastating letters from those whose relatives have been killed or seriously injured in road accidents which often involve speed.

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I know where the balance of the argument lies. Speeding is a criminal offence. People caught speeding must recognise that they are likely to be fined. In more serious cases they may lose their licences, and in the most serious of cases they can be imprisoned. Yet, most people break the law by speeding. There is a serious cultural problem. Many simply refuse to believe that breaking the speed limit is unsafe, or do not consider it a serious offence. Placed on a scale of seriousness, in the mind of the public speeding rates somewhere alongside not having a television licence rather than where it should be placed: along with drink-driving and slightly short of manslaughter.
The noble Baroness, Lady Arlington, suggested that the main problem rests with relatively young drivers—those under the age of 25. That is true, but a wider range of people speed and cause accidents, right across the driving population. As noble Lords have indicated, we launched an extensive review of speed policy, relating to safety, mobility, the economy and the environment. I expect to report on that shortly, and it will be taken into account in our overall road safety policy that we hope to issue shortly.
In the context of safety, we shall look particularly at the problems on our rural roads. The noble Baroness, Lady Thomas, is quite right that that is where there is a serious and growing problem. We shall also look at urban residential areas where the largest number of accidents occur.
This debate is not entirely about limits. It is one thing to change limits, but quite another to get people to comply with those limits. Many people will not accept that the limits are appropriate if it seems to them that they could go faster on a road. It is partly an issue of road engineering and partly an issue of culture.
Policy initiatives need to be brought closer to people's preoccupations when behind the driving wheel: that speed is an issue and that the way in which they drive can cause serious accidents on all sorts of roads, whatever the speed limit.
The noble Viscounts, Lord Allenby and Lord Tenby, and other noble Lords referred to different statutory speed limits. It is important that we give greater flexibility to local authorities; for example, to introduce new 20 miles per hour zones and new home zones. Speed limits also have to be understandable and enforced.
On the issue of enforcement and on the slightly misleading reporting that we have had on the issue of zero tolerance, the police are not seeking to prosecute drivers who marginally exceed speed limits. They want to convey the message that speeding is inappropriate and that it is not acceptable, for example, to drive at 40 miles per hour in a 30 miles per hour zone. Also, the severity of an accident is greatly increased by the degree to which the speed limit is exceeded.
My noble friend Lord Dormand and the noble Viscount, Lord Allenby, called for harsher and more substantial penalties. The review will be looking at that area, and at compulsory retraining, as suggested by the noble Earl, Lord Attlee; at compulsory driver
836
improvement schemes and, for the more serious cases—including the more serious speeding offences—at compulsory retesting. It is important that that is seen not only as a penalty, but also, as the noble Earl, Lord Rosslyn, indicated, in the case of first offences as a salutary, effective alternative to court proceedings.
The noble Baroness, Lady Arlington, referred particularly to new and young drivers. That is an area in which the appropriate controls and penalties, and the post-driving facilities—including the pass-plus system which has a low take-up rate at the moment and needs to be improved—are being considered by the Select Committee of another place at this very moment. We look forward to its report.
My noble friends Lord Berkeley and Lord Simon suggested that the matter should be entirely taken out of motorists' hands by the introduction of mandatory technical speed-limiters in vehicles. That is a possibility in the long run. The technology is developing. Indeed, a number of manufacturers are seriously considering at least optional speed-limiters being introduced in a range of cars. In a number of years, that may be more widespread.
I have driven a speed-limited car with the speed limits enforced through the satellite system. Like other noble Lords, I am a slightly impetuous driver, but it did not take more than a few seconds for me to adapt to that system. I feel that the immediate opposition to it would be largely resolved if more drivers were to use it. However, the question of whether or not that should be mandatory will probably be answered further down the line as the technology develops.
The noble Viscount raised the question of enforcement cameras and the resources and facilities for them. They have proved an important tool for the police in areas where they have been situated. They have reduced average speeds by around four miles per hour but, more importantly, they have reduced accidents at those sites by around 30 per cent. That is an effective accident prevention measure. I know that many motorists resent them. But the results are clear. It is vital that we use them appropriately and to their full in order to save lives.
I was able to indicate a few months ago that we, along with other government departments, were engaged in looking at a new method of funding enforcement cameras. I am happy to tell your Lordships that we are making considerable progress in that area. Indeed, we have just appointed a consultant to oversee the pilot stage of introducing a programme whereby some of the fines arising from camera enforcement will be recycled to the administration of the police and others in the enforcement process. We hope to roll out the scheme in a number of pilot areas in the early part of the new year.
One other issue raised by the noble Lord, Lord Gladwyn, which is more of a cultural issue, was that of advertising. An important step was reported this week which led to the withdrawal of the Peugeot 206 GTi advertisement, when the Advertising Standards Agency upheld complaints that Peugeot's advertising was encouraging excessive speeds. I hope that more

837
people concerned about road safety will follow that example and complain about what is quite frequently poor advertising.
It is important that enforcement is effective and understood; that speed limits are more accepted; and that we have the tools to do the job in the form of cameras and better traffic engineering. But it is also important that we engage in education in the widest sense—through our schools; through the driving instruction system; and, as the noble Earl indicated, through education which the police undertake effectively. Much still has to be done to crack this particularly difficult nut. As the noble Viscount said at the beginning, convincing people that drinking and driving should not occur in a civilised society has worked. In one sense it has taken 30 years to improve that position. Let us hope that convincing us all of the dangers of speed does not take as long.

Immigration and Asylum Bill
8.35 p.m.
Consideration of amendments on Report resumed.
Clause 22 [Charges: immigration control]:
Lord Hacking Lord Hacking moved Amendment No. 27A:
Page 16, line 5, at end insert—
("(5) In formulating the definition of the basic service the Secretary of State shall have regard to the need to provide facilities for passengers which are quick and convenient and shall have specific regard to—

(a) the avoidance of excessive queues, and

(b) the siting of immigration desks in locations which are convenient for passengers.").

The noble Lord said: My Lords, in the absence of my noble friend Lord Clinton-Davis, who is in Europe carrying out duties with the Council of Europe, I shall move the amendment standing in his name.
Clause 22 was first introduced into your Lordships' House in Committee on 12th July. My noble and learned friend Lord Williams explained the reasons for it; that is, when additional facilities were wanted for the public need by the Immigration Service at airports, those facilities should be provided at public expense. But when there was a special need for additional services, they should be provided at private expense, either by the operators of the airport or by the airlines.
The provision in Clause 22 says that when additional charges are needed to provide a basic service at the airport—this is the purport of the clause—then they should be paid for out of public funds. My noble and learned friend Lord Williams of Mostyn, in moving the amendment, assured the House that the Government were working actively with the industry to agree the definition of "basic service". If your Lordships turn to the latter part of Clause 22, it will be seen that "basic service" is to have,
"such meaning as may be prescribed";
that is, by secondary legislation. Unfortunately, the first draft of the definition of "basic service" was only available on Friday. I have not had an opportunity to
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see that definition and the industry has had only a very limited opportunity to consider it. Your Lordships are therefore in the unsatisfactory position of having to agree a definition for "basic service" without knowing what it is.
There are practical implications to this point. For example, when Terminal 3 was opened at Manchester airport, it was initially suggested by the Immigration Service that if there were to be immigration officers at Terminal 3, that facility would have to be paid for by the airlines, though it would cover all passengers coming into Terminal 3 who needed to pass through immigration. It was suggested that if the airlines were not prepared to pay for the additional immigration services, then all the passengers would have to be bussed to Terminal 1. That unsatisfactory position was resolved and I understand that the Immigration Service now provides at public expense the additional services needed at Terminal 3. That is an example of the difficulties that could arise unless and until the definition of basic services is properly resolved.
I suggest that the test should be that where the additional arrangements are for the convenience of special categories of passengers—such as fast-track immigration clearance for first-class or business travellers—the expense should be met by airlines, which have always agreed that they should meet that additional expense. Where there are additional arrangements for all passengers, the cost should be paid out of public funding. It is all part of a welcome to Britain, to make sure that people who come to Britain are processed efficiently.
My noble friend's amendment is designed to help the process of getting the definition right. Your Lordships can see the terms in which it has been tabled. I beg to move.
Lord Bassam of Brighton: My Lords, I am extremely grateful to my noble friend for h is expansive explanation. I fear that I am not going to do it justice, for which I apologise. He is also owed an apology for our lateness in bringing forward a reasonable and serviceable definition. It may be that we need to give it further thought. I well understand the sense of grievance that perhaps accompanies my noble friend's comments.
The amendment has value in that it attempts to go some way to defining what a quick and convenient service might be but the matter needs further reflection. I suggest that my noble friend withdraws the amendment. If we need to pick up on other issues that we have missed in the past, perhaps we can do that at a later stage. I shall be happy to have further discussions on such matters with those interested in the amendment. On that basis, I invite my noble friend to withdraw Amendment No. 27A.
Lord Hacking: My Lords, I am grateful to my noble friend. He is coming in my direction and I am grateful for his agreement to give the matter further consideration. Clearly, there should be some concentration on the consultation process. There has been a long gap between the time when my noble and

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learned friend Lord Williams of Mostyn originally offered the consultation process and the arrival of the first draft. However, let us talk not about the past but the future. On the basis that my noble friend Lord Bassam will do all he can to ensure that the industry is consulted—so that before the Bill leaves the House, we have a much better definition of basic services—I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
8.45 p.m.
Lord Bassam of Brighton Lord Bassam of Brighton moved Amendment No. 28:
After Clause 22, insert the following new clause—
("Charges: travel documents

CHARGES: TRAVEL DOCUMENTS
—(1) The Secretary of State may, with the approval of the Treasury, make regulations prescribing fees to be paid in connection with applications to him for travel documents.
(2) If a fee is prescribed in connection with an application of a particular kind, no such application is to be entertained by the Secretary of State unless the fee has been paid in accordance with the regulations.
(3) In respect of any period before the coming into force of this section, the Secretary of State is to be deemed always to have had power to impose charges in connection with—

(a) applications to him for travel documents; or

(b) the issue by him of travel documents.

(4) "Travel document" does not include a passport.").
The noble Lord said: My Lords, the new clause puts beyond doubt the power to levy fees in connection with Home Office travel documents. The background was set out in a written answer to a question from my noble friend Lord Hardy of Wath on 27th July 1999 by my noble and learned friend Lord Williams of Mostyn. It may assist your Lordships if I briefly restate the position.
The Home Office has for a long time issued travel documents to refugees, stateless persons and some other third country nationals. It is a valuable service of which some 15,000 people take advantage every year. There has always been a charge which, in the case of refugees and stateless persons, is the same as that for a British passport. That complies with the United Nations conventions on refugees and statelessness.
Travel documents are issued by virtue of the royal prerogative but there is no specific legal power in UK legislation that authorises the taking of fees in connection with such documents. The Government have decided that it would be right to introduce an amendment to put beyond doubt the power to levy such fees.
There is a general enabling power in the Finance Act 1973 to charge for any services provided by the Government pursuant to any international treaty to which the United Kingdom is a party. That would cover documents issued to refugees and stateless persons. My right honourable friend the Home Secretary, with Treasury concurrence, has exercised those powers, and a charge of £21 was reintroduced for refugee and
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stateless person documents on 23rd August 1999 by virtue of the Travel Document (Refugees and Stateless Persons) (Fees) Regulations 1999.
Those regulations do not cover all travel documents issued by the Home Office and, for the time being, documents not covered are being processed free of charge. The intention is to make new regulations setting fees for the full range of travel documents when the Bill has received Royal Assent. Subsection (1) of the new clause provides the power to make regulations that will set fee levels. As usual in such matters, regulations require the approval of the Treasury. As has always been the case, the cost of documents issued to refugees and stateless persons will be the same as for a British passport. Other documents will be charged at a level that recovers the costs of processing applications. The price before we temporarily suspended charging was £67. That will be reviewed before new regulations are made.
Subsection (2) provides that if a fee is prescribed for a particular type of case, the application will not be considered until the fee is received. This ensures that the Home Office will not start to incur costs in processing applications until the appropriate fee has been paid. Processing costs are incurred whether or not an application is granted. It is not our intention to make any refunds if a document is not issued in a particular case. That is consistent with practice since 1994 and with the way that the powers in Clause 4 will be exercised.
Subsection (3) has retrospective effect and declares that the Secretary of State is deemed always to have had power to impose charges in connection with travel documents. The effect is that a claim for a refund in respect of a fee that was paid before the clause came into force could not succeed. The amendment in the names of the noble Baroness, Lady Williams of Crosby, and the noble Lord, Lord Avebury, seeks to leave out that subsection. The Government do not propose retrospective legislation lightly. In relation to travel documents, the vast majority of applicants have received either the document they sought or a refund. They have suffered no financial disadvantage, notwithstanding any doubts there may be now about the power to charge in the past.
The exact number of applicants who paid a fee but who received neither a document nor a refund is not known. The number is believed to be small and such people are eligible for a refund in accordance with the refund scheme announced on 27th July. In those circumstances, it is right for Parliament to approve retrospective legislation in this narrow area to ensure that there is absolute clarity on the state of the law and to avoid the possibility of small claims for refunds being brought before the courts on the basis of a legal technicality. I hope that the noble Baroness and the noble Lord will not press their amendment.
Subsection (4) makes clear that the clause applies to travel documents issued to foreign nationals and does not cover the issue of national passports. The new clause provides a clear and unambiguous power to charge for Home Office travel documents. It ensures

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that the position that was always thought to exist is properly established in UK legislation. Our intention is that it will be brought into force on Royal Assent, and a further drafting amendment will be brought forward to Clause 164 to that effect later in our deliberations. I beg to move.
Baroness Williams of Crosby Baroness Williams of Crosby had given notice of her intention to move, as an amendment: to Amendment No. 28, Amendment No. 28A:
Line 9, leave out subsection (3).
The noble Baroness said: My Lords, the Minister inferred immediately that my noble friend and I tabled the amendment because we perceived retrospective legislation and wanted to elicit an explanation of why that had gone down. We will read the Minister's remarks carefully. We do not want to make difficulties for difficulty's sake but the Minister will appreciate that we feel unhappy about retrospective legislation. He has helped us to some extent as to how it ever came about.
Of course, administrative mistakes are made—indeed, we understand that very well—but normally one should actually meet the penalty that applies. However, we would be most grateful if the Minister could perhaps say a few more words about the refund scheme. My noble friend and I will look most closely at this matter, but will not press the amendment on the point at this time.
[Amendment No. 28A, as an amendment to Amendment No. 28, not moved.]
Lord Hylton: My Lords, I think I heard the Minister say that charges for travel documents would not be greater than comparable ones for the issue of passports. If I am correct, that is encouraging. However, when he comes to reply, I should be grateful if the noble Lord could confirm that charges for travel documents will always be kept at reasonable levels and will not become a new kind of tax or source of fundraising on behalf of the Government. We need to bear in mind that travel documents are an essential facility for a large group of people—the noble Lord cited 15,000 per year—who would not otherwise be able to leave this country for whatever good reason.
Lord Avebury: My Lords, perhaps I may confirm what the Minister said; namely, that the charge to be made—if it remains the same as it has been for passports—is to be £67. Perhaps the noble Lord would reflect a little on that amount. After all, we are talking about people who, presumably, come here destitute from their country of origin where they have been persecuted. They may not have had time to build up any assets or to enter into work. Of course, people who are in the queue waiting to have their applications heard by the Secretary of State are specifically debarred from working. Therefore, £67 is rather a lot of money in such circumstances.
If we are proposing that all refugees should be charged that sum for the issue of travel documents, I think that it is worth pausing for a moment to consider
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the implications involved. I know many refugees who do apply for travel documents because they have to travel for their political work. If they come here as refugees from a country where they have been persecuted and are still engaged in activities which are linked to the opposition against the dictatorial regime in their country of origin, they may have to attend conferences in other parts of the world. Of course, they could not do so unless someone paid for it and I assume that that is normally the case. But they need travel documents for that purpose. It seems that we are proposing to charge every one of these people £67, irrespective of his or her ability to pay. That is a point that we should reflect upon before we leave this clause.
Lord Cope of Berkeley: My Lords, retrospective legislation is always odious, but at the same time it is sometimes necessary and often the right thing to do. In this particular case, as it has been thought to be the position for so long, it is my judgment that this is a proper use of the power of retrospective legislation which Parliament has along with its other powers.
As regards the question of the level of the fee that should be charged, it seems to me that the comparison with passports is obviously extremely relevant. However, in the end, the cost involved is what matters. We do not want the Government to make a profit out of these matters, but they should not face an undue burden as a result of the number of applications for such travel documents.
I do not know whether the cost of issuing such documents is greater than that which applies to supplying passports. I have not asked that question. If I had, no doubt I would have been told. We do not want people to be charged unreasonably for travel documents but, at the same time, it is unreasonable for taxpayers to bear too much of the expense. That is the balance which the Government have to keep in mind when fixing the level of the charges for such documents.
Lord Bassam of Brighton: My Lords, I should like to thank all noble Lords and the noble Baroness, Lady Williams, for their very helpful and constructive comments in this short debate. If I am unable to answer questions that have not been asked, I shall at least try to answer those questions which have been asked.
The noble Lord, Lord Avebury, made a perfectly valid and understandable point about the hardship suffered by people who may well come here in difficult circumstances. We are very sympathetic to that point. However, perhaps I should remind the noble Lord that refugees will be charged £21, in the same way that a UK resident is charged for a passport. As I believe I said earlier, before we lay new regulations, we will of course review the £67 suspended charge that we have already discussed. Therefore, we are keeping such matters carefully under review. We intend to be as sensitive as we possibly can in the application of the charges. I believe that to be a reasonable way for us to proceed.

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After all, these are not revenue-raising devices. As the noble Lord, Lord Cope, said, retrospective action is sometimes necessary, although it may be odious. I am grateful to noble Lords for their patience and forbearance in this matter. If I have missed any points in my response, I shall be more than happy to pick up some of the detail in further correspondence. I believe I was pressed in particular on how the refund scheme might work. I shall provide the noble Baroness, Lady Williams, with a letter setting this out in a little more detail, and shall copy it to noble Lords who entered into this debate. I commend the amendment to the House.
[Amendment No. 28A, as an amendment to Amendment No. 28, not moved.]
On Question, Amendment No. 28 agreed to.
The Lord Bishop of Southwark The Lord Bishop of Southwark moved Amendment No. 29:
After Clause 23, insert the following new clause—

PROSECUTIONS
(.—(1) In the 1971 Act, after section 24A, insert—
"Illegal entry and deception: prosecution etc.
(24B. No prosecution shall be instituted under section 24 or 24A above against a person who has lodged a claim for asylum under the Refugee Convention, or a person who gives information leading an immigration or police officer to believe that he may be seeking asylum, until his asylum claim is finally rejected, save with the consent of the Attorney General, and any person who gives such information to a police officer shall be referred to an immigration officer to ascertain whether he wishes to make a claim for asylum."
(2) In the 1971 Act, after section 26(1) there is inserted—
"(1A) No prosecution shall be instituted under subsection (1)(d) above against a person who has lodged a claim for asylum under the Refugee Convention, or a person who gives information leading an immigration or police officer to believe that he may be seeking asylum, until his asylum claim is finally rejected, save with the consent of the Attorney General, and any person who gives such information to a police officer shall be referred to an immigration officer to ascertain whether he wishes to make a claim for asylum."
(3) In the Forgery and Counterfeiting Act 1981, after section 3 there is inserted—
"Use of false instruments: prosecutions in asylum cases.
3A. No prosecution shall be instituted under section 3 above where section 24B of the Immigration Act 1971 would preclude prosecution under section 24A of that Act for the use or attempted use of the false instrument."
(4) In the Forgery and Counterfeiting Act 1981, after section 5 there is inserted—
"Passport offences: prosecutions.
5A. No prosecution shall be instituted under section 5 above in circumstances where the false instrument possessed is a passport or document which can be used instead of a passport and section 24B of the Immigration Act 1971 would preclude prosecution for the use or attempted use of the false instrument possessed."").
The right reverend Prelate said: My Lords, in effect, this amendment would ensure that an application for asylum is determined before any criminal prosecution is considered regarding a person who is thought to be attempting to enter the country illegally. This is not to say that illegal methods are not sometimes used to seek entry into this country by people having no genuine case for asylum; it is to say that the case for asylum should first be tested before the illegal methods of entry are dealt with.
A similar version of this amendment was debated in Committee in your Lordships' House on the eve of a judgment in the case of Adimi and others—a case which focused upon Article 31(1) of the 1951 Refugee Convention. That article is intended to ensure that bona fide refugees are immune from prosecution when, in order to reach safety, they have resorted to illegality. In the judgment on the Adimi case, Lord Justice Simon Brown confirmed that this applies to all refugees except those who have already found refuge in one country and are moving illegally to another for reasons of mere personal convenience.
In the High Court, Lord Justice Simon Brown held that prosecution should not be initiated or pursued where,
"the illegal entry or use of false documents … can be attributed to a bona fide desire to seek asylum".
Amendment No. 29, which is now before your Lordships, has been drafted to give effect to this ruling, giving protection against prosecution under immigration legislation and under the Forgery and Counterfeiting Act 1981. It would protect those who ask for asylum but it would also protect those who do not articulate a claim for asylum, thus placing a duty on police and immigration officers to take steps to ascertain whether or not a person is an asylum seeker before instituting a prosecution.
In the Adimi judgment, Lord Justice Simon Brown stated:
"I would express the earnest hope that decisions to prosecute, not least for offences under the general criminal law rather than under Part III of the Immigration Act, will be made only in the clearest of cases and where the offence itself appears manifestly unrelated to a genuine quest for asylum".
He went on to say,
"no arm of State, neither the Secretary of State, nor the DPP, nor anyone else, had apparently given the least thought to the UK's obligation under Article 31".
Those are stern words indeed. In the light of this it seems appropriate for the consent of the Attorney-General to be given in cases of prosecutions prior to the determination of the asylum application, and this is effected by the amendment before your Lordships.
We in the Churches in London have first-hand experience of trying to care for refugees. There are daycare centres run by the Churches in almost half of all London boroughs. Indeed, one is located within a hundred yards of where I live in Streatham. In addition the Churches run residential hostels and support structures for those in local authority accommodation. Through encountering these refugees and asylum seekers we meet with people fleeing some of the most oppressive countries on earth and we hear their stories. I have learnt from the experience of relating to such people that people in fear of their lives do not always have the right documentation, and if they have, they cannot always go home to get it because the agents of terror may be waiting for them. They naturally show up at borders with no documentation, wrong documentation or false documentation.
In the debate in Committee on the eve of the Adimi judgment the noble and learned Lord, Lord Falconer, indicated that the Government would study the

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judgment carefully. The evidence that this scrutiny has taken place is to be found in the welcome Amendment No. 30 of the noble Lord, Lord Bassam of Brighton. Because this amendment tackles the same problem as Amendment No. 29 which stands in my name, I hope that I shall not try your Lordships' patience if I seek to tease out the difference between the two amendments. Basically both seek to honour Article 31(1) of the refugee convention. I welcome the Government's realisation that this country's legislation must be based upon international treaties. The fundamental difference between the amendments, however, is that my amendment makes the application of Article 31 a bar to criminal prosecution, whereas the amendment of the noble Lord, Lord Bassam, allows it to be pleaded as a defence. I am not at all sure that this gives the protection which the article requires. To make the article a defence is to accept that a prosecution can be started against an asylum seeker before his status has been determined.
Let us consider what might happen in practice. I fear that in effect the magistrate in deciding whether Article 31 is a sufficient defence against prosecution will determine the application for refugee status—something that he is not qualified to do. Lord Justice Simon Brown in his Adimi judgment said as much. He stated,
"I am troubled by the prospects of busy magistrates trying issues as difficult and sensitive as those which arise under Article 31".
Indeed, it is quite possible that the same case might go to two different places, the Home Office or immigration appellate authority on the one hand, and the magistrates' court on the other, where in the course of proving,
"good cause for his illegal entry or presence".
under subsection (1) of the new clause in the Minister's amendment, the asylum seeker in fact might have to plead in a magistrates' court a large part of his or her asylum application.
The obvious solution to this dilemma would be for the magistrate to delay the trial until after the asylum appeal is decided, but in this case is it not simpler to follow the approach of Amendment No. 29 which provides that no prosecution can be brought until the asylum application is decided? I believe that this is a more straightforward and effective way of achieving in practice the full protection of Article 31.
I acknowledge that Amendment No. 30 is a considerable step forward and has some welcome elements. Certainly it could not now be said—as Lord Justice Simon Brown claimed—that no one involved in the criminal justice system had ever addressed their mind to this problem. Amendment No. 30 suggests that they have done so now. Nevertheless I believe that Amendment No. 29 is more straightforward and workable and is less likely to cause confusion and distress. I beg to move.
9 p.m.
Baroness Williams of Crosby: My Lords, I follow the excellent and clear speech of the right reverend Prelate
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the Bishop of Southwark and add a few more points to those which he outlined so effectively. I begin by saying a few words about the general approach of these Benches to the Bill. We fully understand that the Government have an almost impossible problem before them. As the standard of living as between the wealthy and developing parts of the world widens, in some cases it becomes more and more difficult to stop a great many people from trying to move from one part of the world to another. We recognise that this poses an extremely grave difficulty for the Government which is infinitely compounded by the fact that a great many profoundly crooked gentlemen and ladies who belong to illegal immigration rings try to cash in on the misery of many millions of people in this world in order to exploit them, and in some cases even blackmail them.
Therefore we have much sympathy for the Government on this matter. However, we have always held the view that a clear distinction should be made between those who seek asylum and who may be able to establish a bona fide case and those who are simply trying to get in on the wave of sympathy that genuine refugees attract in order to come here illegally and, indeed, to disobey and to evade the laws of this country. I want to state that point clearly as I shall not repeat it. However, I want our position to be fully and clearly understood.
Having said that, we began with the original Clause 23 which concerned us deeply. Ministers may recall that as long ago as 12th July my noble friend Lord Russell specifically drew attention to his concern that Clause 22, as it then was—it is now Clause 23 of the Bill—might not be compatible (I believe the noble Lord, Lord Alton, supported him in this) with Article 31(1) of the refugee convention. They gave due warning of that at the time.
I wrote to the Home Secretary on 5th August repeating that concern and suggesting that substantial steps would have to be taken to make the two positions compatible. I say with read enthusiasm that the noble and learned Lord, Lord Williams of Mostyn—who took delivery of these remarks in Committee before his noble friend Lord Bassam joined him—made it plain that he took on board some of these objections and would do his best to meet them. It would be less than gracious if we did not say—as the right reverend Prelate has said—that we are grateful to the Home Office and the Ministers for the steps they have taken in bringing forward the new clause in Amendment No. 30.
The right reverend Prelate has already referred to one of the difficulties of this matter, which is that cases under the Forgery and Counterfeiting Act 1981, and those under Sections 24A and 26(1)(d) of the Immigration Act 1971 continue to be conducted.
As recently as a few weeks ago, people who were trying to cross Heathrow in order to gain entry to Canada, among other countries, found themselves arrested and tried by this country without being able to put their case to the country to which they intended to go; they did not intend to stop in this country at the

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time. This has created great problems for the United Nations High Commission for Refugees, which has continually protested about it. There have been many hundreds of arrests at Heathrow over the years in order to pursue prosecutions. As long ago as 1988, Richard Dunstan of Amnesty International drew attention to such cases and suggested that they were likely to be in breach of the understandings we had with the United Nations High Commission for Refugees.
Be that as it may, perhaps I may now turn to the differences between Clause 25 and Clause 23, to which the right reverend Prelate has referred. I shall add one other very important one. In the response to the Adimi case, the respondent for the Home Office specifically said that administrative steps would be taken—the phrase he used was "administrative directions"—which would go a long way to meet the points raised by Lord Justice Simon Brown. I read the case in detail very carefully and noticed this precise commitment. I understand that since that time some kind of working party or working group has been established which is looking into the issues of the kind of administrative directions that might be given to the Crown Prosecution Service and others.
I must make it explicit that the problem is that the House knows nothing of this. Indeed, if I had not turned up the judgment—which was hard enough to get hold of—I would not know even today that administrative directions were proposed by the Government to deal with a large part of the problems raised under Clause 23. I mention this because new Clause 25 as it stands—if the administrative directions are clear and plain enough—would probably do.
The right reverend Prelate raised the issue of the difficulty and the problems of prosecuting people in magistrates' courts and, frankly, the inappropriateness of magistrates' courts effectively trying a refugee case. With great respect to the wonderful work done by magistrates, most of them are very unfamiliar with our obligations under international conventions because they rarely have reason to address that kind of topic. We do not think magistrates' courts are the right place for asylum cases to be tried. The right reverend Prelate made that very plain in his remarks.
Perhaps I may press the Government. We welcome new Clause 25 but a good deal depends on that unknown piece to which no reference has been made in either House. It perhaps could not be referred to in the other place because the judgment was not before us then. It is now before us—and it would be immensely helpful and a courtesy to the House if Ministers could tell us something about the administrative directives they propose. Perhaps they could tell us whether they believe that the directives could deal with the bulk of the prosecutions which neither they nor we wish to see in the case of asylum seekers.
As the right reverend Prelate has clearly and lucidly stated, that is why we tabled the amendment. The amendment makes clear that asylum seekers under Article 31(1) should not be treated on all fours with
848
people who have illegally come to this country. It will be most helpful if the Government can tell us more about this and, dare I say it, possibly even, when they are ready, put the administrative directions in the Library in order that we can consider whether they meet—as we hope they do—the kinds of objections that we have raised persistently on this matter since the Committee stage.
9.15 p.m.
Lord Avebury: My Lords, let me say first that it has been helpful all the way through these proceedings that the Government have issued notes on the amendments. We are particularly grateful for the notes on this amendment which refer to the issuing of administrative safeguards, in conjunction with the CPS and police, to avoid prosecuting those who fall within the terms of Article 31. We have that on the record but not in a form which has seen the light of day in a public document.
I very much agree with my noble friend that we are entitled to see what advice has been given to the police and the CPS. Otherwise, as the right reverend Prelate said, there is always the danger that people may be prosecuted—and there is a power to prosecute them—and that they have to use the defence that is set out in the Government's new clause. We think that is unsatisfactory. We need to be convinced that the administrative arrangements are sufficiently watertight to ensure that prosecutions do not occur. Otherwise it would be better to adopt the course of action proposed by the right reverend Prelate to decriminalise the conduct altogether so that it is not possible for such a prosecution to take place during the period when the asylum seeker is under consideration by the Home Office. It is absolutely vital that we know what is in these instructions and that we can see how certain it is that a person is not going to be prosecuted while he is awaiting the determination of his application.
Before I come to the substance of my remarks, I wish to ask a further question: what are we going to do about the people who have already been imprisoned and who are at present in prison as a result of their wrongful conviction when they would have had an Article 31 defence? We have been told that such persons have to refer to the Court of Appeal. However, by the time they reach the Court of Appeal and the case is heard, the sentence will have been served. I believe that the maximum sentence imposed by magistrates for such offences is six months. Three months have passed since the Adimi judgment, during which time presumably those people were not able to get a court hearing because we had the Recess.
Is it right, the Government having decided that they will comply with the judgment and thoughts of Lord Justice Simon Brown, that these people have been allowed to spend an extra three months in prison waiting for their cases to come before the Court of Appeal? I wish that the Government would choose a more expeditious arrangement to ensure that people who on the Government's own admission are

849
wrongfully imprisoned, are released as soon as possible. I hope that the Minister will have more to say on that matter in his reply.
The new clause proposed by the Government does not satisfy the requirements of the judgment of Lord Justice Simon Brown in two respects. First, in subsection (1)(c) it requires the person to have made an application for asylum,
"as soon as was reasonably practicable after his arrival in the United Kingdom".
This point was specifically dealt with by Lord Justice Simon Brown in the case of Mr Adimi himself. The respondents in the case said that what was required of a refugee was a "voluntary exonerating act". They stated that a person seeking asylum should reasonably be expected to claim that asylum as soon as he arrives at Passport Control. The Government are returning to that point. They say that for a person to benefit from this new clause, he or she must apply for asylum the moment he or she arrives at Passport Control.
However, Lord Justice Simon Brown specifically stated that that was not the case. He could not accept that argument. In the case of Mr Adimi, he did not apply as soon as he reached Passport Control, but he was still within the rules of Article 31 when later on he made his application. That part of the judgment is not reflected in subsection (1)(c).
I turn now to subsection (2), which states that,
"subsection (1) applies only if he shows that he could not reasonably have expected to be given protection under the Refugee Convention in that other country".
It is usually the case that a person will stop in another country on his way to the UK because almost everyone who comes from a country where he is being oppressed has to journey via an intermediate third country in order to reach the United Kingdom. In the case we have been discussing, Mr Adimi came from Algeria via Italy and France, Mr Sorani came from Iraq via Turkey and Mr Kaziu came from Albania via Greece.
The wording in subsection (2) appears to follow the submission of the Home Office which was again explicitly rejected by Lord Justice Simon Brown. The Home Office argued that, although the phrase "coming directly" in Article 31 should not be interpreted literally because that would contravene the clear purposes of the article, the condition was only met if the refugee,
"could not reasonably have expected to be given protection"
in any intermediate country. That would not be the case unless he needed, rather than merely desired, to come to the United Kingdom.
Lord Justice Simon Brown said that the Home Office contention was that Article 31 allows the refugee no element of choice as to where he may seek asylum. He must claim it where first he may. Only considerations of continuing safety would justify impunity for further travel. Lord Justice Simon Brown continued,
"For my part I would reject this argument. Rather I am persuaded by the applicant's contrary submission … that some element of choice is indeed open to refugees as to where they may properly claim asylum. I conclude that any merely short-term
850
stopover en route to some intended sanctuary cannot forfeit the protection of the Article, and that the main touchstones by which such exclusion from protection should be judged are the length of stay in the intermediate country, the reasons for delaying there (even a substantial delay in an unsafe third country would be reasonable were the time spent trying to acquire the means of travelling on), and whether or not the refugees sought or found their protection de jure or de facto from the persecution they were fleeing".
He went on to quote the UNHCR guidelines, which are also quite clear, that in looking at the phrase, "coming directly", each case has to be judged on its own merits.
None of that is reflected in the wording of subsection (2). I very much hope that the Minister will agree to take back this provision and reflect upon it so that he may return at Third Reading with a wording that brings it into conformity with the judgment in the Adimi case and with the guidelines.
The clause as drafted does not protect from prosecution an asylum seeker who is ultimately granted exceptional leave to remain. Yet it would be contrary to the spirit of Article 31 if a person who had been given the benefit of the doubt, even though he has not the proof that he has a genuine fear of persecution, is then prosecuted for one of these offences. That is another respect in which the clause is defective. It does not cater for people who are granted exceptional leave to remain as opposed to refugee status.
I submit that it can never be in the public interest for an asylum seeker to be prosecuted for one of the offences, whether or not he is ultimately successful in his application. If he is to remain here for the rest of his life, on whatever grounds, six months in prison will not start him off on the right track. If, on the other hand, he has to be sent back to the country of origin, there is no point in spending taxpayers' money on court proceedings and imprisonment before his departure.
Earl Russell: My Lords, in an amendment in which we are asking for the consent of the Attorney-General, it gives me great pleasure that the noble and learned Lord the Attorney-General is in his place to give his consent to the conduct of this debate. I am delighted to see him here.
I am delighted also that Amendment No. 30 is on the Marshalled List. It does indicate a desire to comply with the judgment, although it would be rather more impressive if all the cases which were before Lord Justice Simon Brown had been resolved. But, to my knowledge, at least one of these applications—that of Mr Sorani—was still undetermined two weeks' ago. That argues a certain lack of precipitate haste to comply with the implications of a judgment, which incidentally was forced to deal in considerable detail with the merits of Mr Sorani's application.
In that judgment, Lord Justice Simon Brown quoted from a memorandum by the UN Secretary-General in 1950, which is part of the préparatoire of the UN convention. It states:
"A refugee whose departure from his country of origin is usually a flight, is rarely in a position to comply with the requirements for legal entry (possession of national passport and visa) into the country of refuge".

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That, he explained, was the reason why Article 31 of the UN convention was necessary. He stated that the need for it had not diminished. He said:
"Although under the Convention subscribing States must give sanctuary to any refugee who seeks asylum (subject only to removal to a safe third country) they are by no means bound to facilitate his arrival. Rather they strive increasingly to prevent it. The combined effect of visa requirements and carrier's liability has made it well nigh impossible for refugees to travel to countries of refuge without false documents".
That is why he suggested that the respondents—that is, the Government—might wish to reflect generally on the wisdom of prosecuting and imprisoning refugees for the use of false travel documents. He analysed their argument about the right to deter and concluded plainly:
"I find this argument unconvincing".
I shall not deal at length with the argument about the implications of the words "coming directly" because my noble friend Lord Avebury has covered that ground fairly clearly. But I shall add one point. If the object is, as it appears to be, to prevent an undue proportion of refugees from coming to one country, the rigorous application on an international basis of the words "coming directly" would tend to increase the proportion of refugees coming to a country with major airport links with the rest of the world. That is something which, applied as a general and not purely as a national principle, would tend to increase the proportion of refugees coming to this country. Although that might not cause me great concern, it does not appear to be precisely the object of the Home Secretary. So I wonder whether he is achieving his objectives.
Lord Cope of Berkeley: My Lords, I have, not often but sometimes, found it a disadvantage during a career in both Houses of Parliament not to be a lawyer. It is a disadvantage in this debate. I have a great deal of sympathy with what has been said in support of Amendment No. 29. However, the nub of the argument seems to lie in whether it is better to provide a defence in terms of Amendment No. 30, or a restriction on prosecution in terms of Amendment No. 29.
Neither amendment stops entirely the possibility of a prosecution. In Amendment No. 29, the right reverend Prelate and his colleagues have provided for the possibility of a prosecution with the permission of the Attorney-General in the circumstances set out in the amendment. If there is an obvious defence which will succeed as set out in Amendment No. 30, not many prosecutions will be mounted. So the difference becomes a rather close balance in regard to which a non-lawyer has difficulty making a decision. Is it better that a defence should be provided which will rule out most prosecutions before they begin, or that no prosecution should be instituted without the permission of the Attorney-General?
On balance, it seems to me as a layman that it is better to use the approach in Clause 29: to say that there shall not be a prosecution, except in exceptional
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circumstances. That approach seems clearer. But we all know that the clear approach is not always the right one to take in law when considering how matters will turn out in court. So it is with some diffidence that I express a preference for Amendment No. 29 over Amendment No. 30.
Lord Hylton: My Lords, I am glad to know that the Government have concluded that something needs to be done to mitigate the starkness of the provision in Clause 23 dealing with deception as the clause was originally drafted. Even before the Adimi case, it was clear that a large number of countries would never let their persecuted political dissidents go without their having false documents. One has only to think of Iran, Iraq, China and Burma, to name but a few.
When it comes to a choice between Amendment No. 29 and Amendment No. 30, as a non-lawyer, like the noble Lord, Lord Cope of Berkeley, my preference is for Amendment No. 29. It seems to be more positive, and to avoid the likelihood of defences having to be mounted unnecessarily.
Lord Sheppard of Liverpool: My Lords, Amendments Nos. 29 and 30 are grouped together. It would help me and, I believe, other noble Lords to hear Amendment No. 30 expounded and defended, so that we may consider that as we attempt to assess Amendment No. 29.
I want to refer briefly to the issue of deception, which is central to these provisions. I hope not to repeat what other noble Lords have said. In July 1991, UNHCR said that the protection owed to refugees under the 1951 UN convention on refugees may be rendered meaningless if persons in search of protection and assistance are unable to reach the territories of states that are party to this involvement.
Lord Justice Simon Brown has already been quoted in your Lordships' House. He spoke about false documents and said in the Adimi case that,
"the illegal entry or use of false documents … can be attributed to a bona fide desire to seek asylum, whether in the UK or elsewhere".
He noted that the requirement,
"will be satisfied by a genuine refugee showing that he was reasonably travelling on false documents".
I would like the Minister to explain why, in Amendment No. 30, for a defence to be established it would have to be shown that the person has,
"(a) presented himself … without delay:…
(c) made a claim for asylum as soon as was reasonably practicable".
At every stage of this debate, the point has been made that people who have been persecuted are fearful of officialdom. They may arrive in a strange country with a strange language. There will be moments of fear when they will not immediately know what they ought to do. I am sorry that such wording is included in what is in many other respects a helpful amendment.
Many of us honour and respect the work of the Medical Foundation for the Care of Victims of Torture. Among many cases quoted in its 1998 study of refugees from Zaire, it says that most had to use a

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false identity or had no papers in making an escape. A stud) of Turkey made this year says that of 16 people granted refugee status, two had come on their own passports. It is plain that many who have come would not have got here if they had not used false papers. As often stated in this debate, as in 1996, the Jews fleeing from Hitler would not have got here if they had relied on correct papers.
I am trying as best I can to compare Amendments Nos. 29 and 30. As the two previous speakers said, it seems to me to be a better strategy to go for restricting prosecution until the asylum question has been settled. That is not saying that no prosecution can happen, but what I propose seems a more logical way to proceed.
9.30 p.m.
Lord Williams of Mostyn: My Lords, perhaps, for the convenience of your Lordships, the pro-Amendment No. 29 argument has been put fairly fully. My noble friend Lord Sheppard asks why we have differed slightly in our approach. I do not believe we have differed in our fundamental purpose, but we have come to alternative conclusions.
My noble friend has asked one or two direct questions which I am more than happy to answer. They are helpful questions and deserve answers. The reason we framed our Amendment No. 30 in the way we did comes significantly from two sources: first, Article 31(1) and secondly, the question of administrative arrangements with which I shall deal fully in a moment.
Article 31(1) states:
"Contracting States shall not impose penalties, on account of their illegal entry or presence, on refugees who"—
I emphasise the following words—
"coming directly from the territory where their life or freedom was threatened in the sense of Article 1, enter or are present in their territory without authorisation"—
which goes directly to the question asked by my noble friend Lord Sheppard—
"providing they present themselves without delay to the authorities and show good cause for their illegal entry or presence".
Essentially, our Amendment No. 30 is to deal with the question of administrative arrangements in the way that I will specify, but it is based on the thinking of Article 31(1).
A number of questions were asked and I shall answer them all, if I can. The noble Lord, Lord Avebury, asked about the new clause and its application to those cases who have been granted exceptional leave. Article 31(1) applies specifically to refugees. Exceptional leave is granted for a variety of reasons but it is not granted to refugees.
Lord Avebury: My Lords, is the noble and learned Lord saying—I feared this was the case—that a person
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who is ultimately granted exceptional leave to remain will be vulnerable to prosecution for having used false documents to gain entry?
Lord Williams of Mostyn: My Lords, I seek to deal with the specific points that have been raised in the context of the amendments, which is perhaps a more sensible and practical way to get on with our business.
I believe that it was the noble Earl, Lord Russell, who asked about Sorani. If it was the noble Lord, Lord Avebury, who raised the question, I apologise to both. In that case, I am happy to be able to say that refugee status has been granted. Confirmation is still to be sent, but the interested MP has been notified and a letter is on the way.
The question was raised whether it would be better if the Attorney-General had power to authorise prosecutions rather than a defence being allowed. The Leader of the House, the Lord Privy Seal, informs me that I shall have plenty of time on my hands, to deal with these matters because it is unlikely that any further bizarre applications will be made to the Committee for Privileges. My noble friend tells me that, but I do not believe it for a moment!
If one wants to produce the desired outcome, Amendment No. 29 does not bring that about. The amendment provides that,
"No prosecution shall be instituted … against a person who has lodged a claim for asylum … or a person who gives information leading an immigration or police officer to believe that lie may be seeking asylum, until the asylum claim is finally rejected, save with the consent of the Attorney General".
Plainly, that offers the opportunity for the consent of the Attorney-General to be given in those cases where noble Lords who have raised this point say that no prosecution should ever be launched. I believe that therein lies an internal inconsistency.
Earl Russell: My Lords, we can have confidence in the restraint of the Attorney-General.
Lord Williams of Mostyn: My Lords, yes. However, as one always reminded oneself when Mr Howard and Ms Widdecombe were in charge of the Home Office, one must legislate for the worst possible Ministers being returned to power. I have never forgotten that salutary advice.
Baroness Williams of Crosby: My Lords, we were not at this moment thinking of the worst possible Ministers—which might trouble our dreams— but the worst possible cases. The reason we inserted a provision to deal with the consent of the Attorney-General was precisely because we believed that there could be cases in which people who sought asylum under the convention could be shown by the Home Office to be doing so fraudulently. Therefore, we wanted to leave open the possibility of a prosecution in those exceptional cases. That is the reason for the present phraseology; it is not for the other purpose.
Lord Williams of Mostyn: My Lords, I understand that. I repeat that we are beginning from the same

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fundamental basis: we want an outcome which properly accommodates Article 31(1) asylum seekers and the difficulties raised by Lord Justice Simon Brown. For my part, the decision that emerges from Adimi, although it may not be acceptable to all government departments in every particular, is another example of the great value of an independent, fearless and bold judiciary in this country. I do not say that the judges are always right, but very often they are. I hope that all that I have said in the past few minutes will be deleted from Hansard immediately!
I turn to the extremely important question of administrative arrangements. The noble Baroness asked about that and I undertook to deal with the matter in some detail. I shall do so now, if noble Lords allow me. Just before the judgment was announced, the Crown Prosecution Service, which I supervise, issued interim guidance to its staff to ask them to identify cases to which Article 31(1) issues might apply. I can tell your Lordships that the advice issued by the CPS was sent to the noble Lord, Lord Avebury, after Committee stage. I have a copy of the interim advice issued by the Immigration Service. I am happy to let the noble Baroness have my copy but it is probably better if I undertake that it be lodged in the Library as soon as possible. There is no reason why that should not be done within the next day or so.
I believe that I can describe generally the careful guidance in the following way. Interim guidance was given. The further advice was given. The CPS is required to ask the police officer in the case to establish nationality. Where there are any doubts on that score, the instructions require the police to approach the Immigration Service to seek clarification and a view as to whether or not Article 31(1) applies.
Interim advice on how to deal with such inquiries was issued. I have mentioned it already. Detailed guidance is being prepared for staff who provide that advice. So far as I can see, there is no sensible reason why that should not also be published. I cannot think of a reason at the moment. If there were difficulties, the guidance might have to be redacted, but I see no reason why that should be so.
The noble Baroness used the useful phrase "the bulk of prosecutions". The bulk of prospective prosecutions will undoubtedly be dealt with by the administrative guidance. However, there will be cases where administrative arrangements are not perfect. We all know that. It is important, as it seems to us, to have the defence available. It has only to be raised. When a defence is raised in criminal prosecutions, the prosecution then has to disprove it, as long as it is not merely fanciful. That is an important mechanism which is part of our scheme in Amendment No. 30. I respectfully suggest that it is a better mechanism than is provided in Amendment No. 29.
We go further than that. We say that, when those who have been prosecuted—I do not use this phrase harshly—rightfully in the circumstances of our law which then obtained and were convicted or pleaded guilty so that a conviction after trial or plea was obtained, there is this opportunity. The noble Lord,
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Lord Cope of Berkeley, was right in saying that we all bristle when we see retrospective legislation. This is retrospective legislation in favour of the individual. It gives someone who was "rightly" convicted in the state of the law as it was then understood to be the opportunity to have that conviction overturned.
That is not bad. Indeed, it is—I use the word with care and caution—very liberal indeed. I cannot say that it is unprecedented but it is very unusual.
The noble Lord, Lord Avebury, raised the issue of someone who might have been sentenced to six months' imprisonment. I have no details of that. I very much doubt whether anyone is still suffering imprisonment on the basis of that sort of sentence. If there are any cases, and he will provide details to my noble friend Lord Bassam, I know that my noble friend will investigate them at once. I doubt whether there are any. There may be; I cannot say that there are not because I have no access, nor has the Home Office, to a database which will tell us that. I simply doubt it.
Baroness Williams of Crosby: My Lords, we are extremely grateful to the noble and learned Lord for new Clause 25. What he said about administrative directions helps us greatly.
Can the Minister say when he thinks it might be possible to have a look at the final directions? They influence very much how one weighs the effect of new Clause 25. It was without the directions that we felt we had to put down amendments to ensure that the prosecution of people who came here legitimately but with false documents would not proceed.
Lord Williams of Mostyn: My Lords, I accept what the noble Baroness says. I am happy to give the interim guidance which I have in my hand to the noble Baroness and to have it put in the Library in the next day or two. I hope that my old friend the noble Lord, Lord Dholakia, did not think me impertinent or disagreeable. I was responding to my noble friend Lord Sheppard, who wanted some indication of the Government's thinking. I thought that it was helpful to respond in the way that I have.
Lord Justice Simon Brown took the view that being prosecuted did not of itself constitute a penalty for the purpose of Article 31(1). With great respect, I think that that must be right. I do not think that it would be tolerable for a prosecution to be avoided simply by claiming asylum. We believe that we have a more flexible, subtle balance using administrative guidelines, which, if published, can therefore be enforced, together with the possibility of raising the defence which then has to be disproved, together with the retrospective opportunity of having the conviction put on one side.
9.45 p.m.
Earl Russell: My Lords, I am grateful to the noble and learned Lord, but the point about the need to disprove a defence has force. Does it in any way weaken that force that in the case before Lord Justice Simon Brown it appears that two out of three solicitors

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for the applicants knew nothing of Article 31? A defence does not have to be disproved until it is put forward.
Lord Williams of Mostyn: My Lords, of course and I would make two responses immediately. First, Lord Justice Simon Brown was dealing with a situation to which it has been said—and I could not possibly comment—no one in a position of authority had put his mind. That is, if not a direct citation, certainly a paraphrase of what was said.
Secondly, what the noble Earl, Lord Russell, said gives power to the elbow of the reforms which the noble and learned Lord the Lord Chancellor is introducing; that solicitors will not be able to hold themselves out, certainly at public expense, to those who need special assistance without being endowed with the necessary expertise. It seems to me that if after the discussions in your Lordships' House tonight—which of course will be avidly studied by every solicitor up and down the country—they do not know, they ought perhaps to look for alternative employment. Or certainly they are liable to be sued in negligence.
I take the point that the noble Earl makes. Certain areas of the law are difficult. What we have done here is to produce a generous outcome. I am not claiming moral credit for it because we had to respond to robust views expressed by the higher judiciary. We have achieved more in our outcome than that contended for by the noble Baroness and those who supported her.
I turn to the helpful questions put by the noble Lord, Lord Cope of Berkeley, about whether our solution was better than that put forward by the noble Baroness and her supporters. It is important to bear in mind the overall rein with which the CPS approach matters. It will not launch prosecutions unless there is a sensible prospect of being able to prove beyond reasonable doubt that the defence does not apply.
Amendment No. 29 is loose in some ways, because it could lead to abuse. We say that we recognise Article 31(1) and that the administrative directions exist to avoid prosecutions which are inappropriate. If inappropriate prosecutions get through the sieve, the defence exists. That is a much better, more subtle, more flexible answer to the problems which Lord Justice Simon Brown identified.
I think that that deals with the body of the issues put forward. I submit again that looking at the matter with an open mind and an even judgment, we have produced an appropriate and, I repeat, generous response and solution to difficult problems.
Lord Cope of Berkeley: My Lords, before the noble and learned Lord sits down, would I be correct in thinking that the Government will not be pursuing Amendment No. 30 tonight? After all, the order-making power in subsection (10), admittedly subject to affirmative procedure, seems to bring it under the undertaking given earlier. We can of course proceed to a vote if it is wished on Amendment No. 29.
Lord Williams of Mostyn: My Lords, I should have wanted to take, I hope, the positive opinion of the
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House on Amendment No. 30. I believe that I have explained it fully. I do not believe that it falls into the category of problem areas which I gave way to earlier tonight.
Lord Shepherd: My Lords, before my noble and learned friend sits down, perhaps he can help me. How does he interpret subsection (1)(c), which reads:
"made a claim for asylum as soon as was reasonably practicable",
bearing in mind the questions we have asked about documents?
Lord Williams of Mostyn: My Lords, as "soon as was reasonably practicable" is a well known concept in English law. It would bite in a number of ways. First, the prosecuting authority, whichever it is, must put its mind to the question whether the claim for asylum was made as soon as reasonably practicable. In a sense, that is both an objective and a subjective question. One must come to an objective view about what was subjectively reasonably practicable. I take the examples given. If someone is suffering grievously from the consequences of torture, it seems to me that any court or administratively directed prosecutor is going to bear that in mind. That is opposed to the case of someone who is otherwise—I am not minimising distress—more hale and hearty in body, mind and spirit than someone who has been tortured.
Again, I believe that what has been tabled in this amendment in the name of my noble friend Lord Bassam is flexible and appropriate by way of response.
Lord Goodhart: My Lords, before the noble and learned Lord sits down, I should like to question him a little further on the matter of the delegated powers. He was suggesting that that did not come within the principle of the concession which the Government have made to refer those matters back to the delegated powers committee.
The power is that in subsection (10), as I understand it, in the new clause after Clause 25, which gives the Secretary of State power, by order, to add or remove offences from those that are for the time being listed under subsection (3). Is that not absolutely central to the issue? Will there not therefore be a serious question as to whether it is necessary to deal with that issue by, say, affirmative or negative procedure? I therefore invite the noble and learned Lord to withdraw this amendment and to treat it, along with the others, as one which should be referred to the delegated powers committee.
Lord Williams of Mostyn: My Lords, again I do not believe that that is an unreasonable approach. It is substantially the approach put forward by the noble Lord, Lord Cope of Berkeley. In fact, I had in mind that we might wish to extend the list of offences which the noble Lord will know as well as I—relating to fraudulent documents which would be subject to amnesty.
If it is the feeling of your Lordships, which I detect it to be, that the House would be happier with my not moving the amendment at this stage, I am perfectly

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happy to fall in with that. It seems to me that that is the general sense of the House. I am grateful to the noble Lord, Lord Cope of Berkeley, for raising the point. Perhaps I should have been more reflective in my response to him. However, I hope that I have been able to convince the House, whatever its feeling on subsection (10), that we have achieved a better outcome—I put that neutrally, not in any partisan way—than that proposed by the noble Baroness.
Therefore, on the basis of the invitation from the noble Lord, Lord Cope, supported by the noble Lord, Lord Goodhart, I am happy not to press the amendment this evening.
The Lord Bishop of Southwark: My Lords, I must acknowledge that the Bill is much better with Amendment No. 30 included than without it. Having flagged up some of the difficulties which may be encountered by the new procedures, and having heard something of the administrative safeguards being developed, I am prepared to withdraw Amendment No. 29.
Amendment, by leave, withdrawn.
[Amendments Nos. 30 and 30A not moved.]
Clause 26 [Penalty for carrying clandestine entrants]:
Viscount Astor Viscount Astor moved Amendment No. 31:
Page 17, line 31, leave out paragraph (a).
The noble Viscount said: My Lords, Amendment No. 31 begins a series of amendments which refer by and large to carriers' liability for asylum seekers and their effects. I should begin by saying that we support the general thrust of the Government's clauses, but that we have various concerns about Part II of the Bill in terms of the wording and its effects.
The effect of Amendments Nos. 31 to 33 is to limit the definition of a clandestine entrant in the Bill, so that it does not include people who present themselves to immigration officials immediately on arrival. The definition of a clandestine entrant is relevant to the question of which carriers can be fined. Therefore it is very relevant to carriers.
The way in which the Government have framed these clauses in Part II seems to penalise carriers for honest behaviour. It acts as a disincentive, as it were, to honest behaviour. That is something which I am sure the Government do not intend. Indeed, it would be a disincentive to anyone arriving in this country.
The way in which the Bill is framed is a disincentive to the owner of a vehicle, ship or aircraft to report a person if he or she should discover someone hidden on arrival in this country. At the moment, the Bill encourages carriers to let people stay hidden. Their honesty as a carrier and their proper behaviour in bringing such a person to the attention of immigration control and the Immigration Service will gain them nothing but a £2,000 fine. It hardly seems sensible public policy to punish people who co-operate with the Immigration Service; rather, it should be the other way round. The Bill is a disincentive to co-operation.
Paragraph (c) provides a positive incentive to a carrier to keep hidden someone discovered in the course of the journey. The second amendment attempts to delete that because at the moment the Bill punishes law-abiding behaviour and people who are in no way to blame.
Amendment No. 33 relates to the provision which imposes a particular disincentive on carriers to make known to the Immigration Service the presence of a person if they realise that the person is going to claim asylum. In such cases, giving up such a person to the Immigration Service will not help the carrier to avoid liability for the fine.
We believe that the Government have got the wording wrong in Clause 26. We support their purpose, but we feel that they should review the wording of that clause. I beg to move.
Baroness Williams of Crosby: My Lords, in order to speed up the process, I rise to make a few comments from these Benches about the group of amendments with which we are now dealing and with which my name is associated.
Like the noble Viscount who has just moved the amendment, I argue strongly that the problem here is that there will be no difference in terms of the penalties suffered by a lorry driver, a railway staff member or a member of a ship's crew irrespective of whether that person persuades someone they carry to come out openly and declare that they are seeking asylum or the person carried continues to remain concealed within the ship, lorry or whatever it may be.
I believe that it follows logically from the eloquent statement made by the Minister and by the noble and learned Lord, Lord Williams, that a distinction should be made between the position of bona fide asylum seekers under the refugee convention and those who are not bona fide—and who, indeed, need to be studied carefully by the Immigration Service.
A further step should be taken in relation to those people carried in a vehicle—I shall not go into detail over the different types of vehicle—who declare themselves immediately they enter the United Kingdom to be seeking asylum and who make it absolutely plain that that was their intention. They then submit themselves to a careful study of whether or not their claim is substantiated. Those who carry them may do so innocently, not knowing they are there. There is then information relating to whether the person has been unknowingly or, in some cases, knowingly carried. Without such information, effectively, one would be penalising the staff, the lorry drivers and their owners for something for which, I believe, they should not for one moment be penalised; that is to say, for taking part in bringing to this country someone who has a genuine claim for refugee status, as distinct from taking part in the entry of somebody who is an illegal immigrant.
We are concerned with the third of these amendments, Amendment No. 33, which penalises people who claim that they intend to seek asylum. It seems that that is the person who should not be

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penalised and that everybody else should be heavily penalised. We are a little puzzled that carriers will be held responsible for people who, we have just agreed, should be treated differently because they have claimed, and have proven that their claim is valid, to be treated under the terms of the refugee convention, Article 31(1).
In supporting the amendments, I suggest that the Government should make that distinction and that they should not penalise carriers because they carry into this country legitimate people who declare themselves to be asylum seekers. It is absolutely right and proper that carriers should be penalised if they carry people who are deliberately intending to enter this country illegally. They may well be part of an organised trade that should be stopped. We fully support the Government on that, but we feel that they run the two together in Clause 26 in a way that cannot be justified.
10 p.m.
The Lord Bishop of Oxford: My Lords, on the issue of whether we go with the common sense definition of "clandestine entrant" or whether we go with a rather contrived understanding, perhaps your Lordships will forgive a simple example. If we find someone in the House who has no right to be here, we may regard him as an illegal entrant. Contrast that with a person who travels by railway without a ticket and on the Underground without a ticket. He arrives at the Peers' entrance and says, "I have no right to be here, but I would like to have a look around." We would not regard that person as an illegal entrant. The fact that he has travelled on the railway and the Tube without a ticket has no direct bearing on his entrance in this House.
I do not know whether I am fair to allude to the noble and learned Lord, Lord Falconer, as reported in Hansard. He stated:
"My understanding of the statute is that a person is a clandestine entrant if he arrives concealed in a vehicle and then later indicates that he intends to seek asylum in the United Kingdom".—[Official Report, 12/7/99; col. 162.]
Surely, there can be no justification for including in the definition of a "clandestine entrant" those who make themselves known to the immigration authorities on arrival. There is also no reason to include in the definition any reference to whether or not a person makes a claim for asylum. It is wholly inappropriate to include in the definition of a "clandestine entrant" any reference to whether or not a person makes a claim for asylum.
Passengers who clandestinely embark upon travel but who bring themselves to the attention of the persons carrying them and/or the authorities in the United Kingdom are surely not in the same category as those who evade control on entry. Those responsible for the former should not be liable to the same penalties as those responsible for the latter. I plead for a common sense definition of "clandestine entrant".
Lord Renton: My Lords, my noble friend, supported by other noble Lords and by the noble Baroness, has tabled probing amendments. If particular parts of Clause 26 were to be left out and nothing put in their place, the control would be seriously weakened.
Lord Falconer of Thoroton: My Lords, the noble Lord, Lord Renton, has put his finger precisely on the issue in relation to these amendments. The effect of the amendments is to delete two out of the three circumstances in which somebody is defined as a "clandestine entrant". The only circumstance left in which one is a clandestine entrant is if one,
"passes, or attempts to pass, through immigration control concealed in a vehicle,
and evades, or attempts to evade, immigration control. That is the effect of the amendments.
Therefore, one would not be a clandestine entrant if one arrived in the United Kingdom concealed in a vehicle, ship or aircraft. One would not be a clandestine entrant if one arrived in the United Kingdom on a ship or aircraft having embarked concealed in a vehicle al a time when the ship or aircraft was outside the United Kingdom.
The purpose of the provisions is to impose upon the carriers—road, air or ship—the obligation to seek to ensure that nobody is secreting themselves on to a vehicle with a view to entering this country. The effect of the amendments, cumulatively, is to say, "You are not a clandestine entrant unless you try to get through immigration control within the United Kingdom".
The problem of clandestine illegal entry in vehicles and other forms of transport is extremely grave. In September this year 1,237 clandestine entrants were detected at Dover. That compares with 309 in September of last year and 145 in September 1997. It is an alarming trend. The Government are determined to reverse it and to ensure that in future our immigration controls are not circumvented in that way.
The civil penalty is carefully designed to play a major role in combating clandestine illegal entry. If the amendments were allowed, it would remove most, if not all, the benefits that the civil penalty will bring. It would create an incentive for drivers of vehicles to neglect their security measures. It would encourage them to gamble that any clandestine entrant will seek asylum, since that would mean the civil penalty would not apply. That would be the effect of deleting the words,
"claims, or indicates that he intends to seek, asylum in the United Kingdom or".
The civil penalty is being introduced to tackle the growing number of clandestine illegal immigrants. The definition of a clandestine contained in Clause 26 has been drafted to catch all those different categories of individual who are seeking to enter the United Kingdom illegally. We believe that the operation of the civil penalty should not make allowance for the eventual status of the clandestine entrant. We are seeking to prevent circumvention of our immigration control, which is not acceptable. It is vital that the civil

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penalty provides the clearest possible signal of the importance of security measures to prevent the entry of clandestine illegal entrants. We do not believe it would be right to modify the civil penalty in a way which might encourage laxity in checks which ought to be made by those persons responsible.
There is no reason why those genuinely in need of protection should be seeking to come clandestinely to the United Kingdom. For example, their journey overland will already have taken them through at least one safe third country where they will have had the opportunity to claim asylum.
Perhaps I can demonstrate what we are trying to achieve by way of example. A person secretes himself on a lorry as an immigrant in France. He comes out of the lorry on the ferry, which gets him into the United Kingdom, and he says to the lorry driver, "I intend to claim asylum when I reach the United Kingdom". If that happened, the effect of the amendments would be that he would no longer be a clandestine. The right reverend Prelate says that that is how it should be; that then he would not be clandestinely trying to enter the United Kingdom because he is perfectly open about his motives. We say, as a matter of policy, no. The purpose of the policy is to make sure that carriers, before they embark on their journey to the United Kingdom, make sure that people are not secreting themselves in the relevant form of carriage.
That is the policy. The amendments seek to come up with a different policy, which is that as long as people are honest about what they are trying to do by the time they reach immigration control, there should be no complaint. But we take a different view. We say that in order to stop clandestine entrants we must put pressure on carriers to make checks. If the approach adopted by the supporters of these amendments were followed, there would be absolutely no incentive for people to check. That is not what we are trying to achieve. So there is a fundamental difference of approach.
The Lord Bishop of Lichfield: My Lords, I must make a humanitarian point here. I am concerned about children in this situation. I am motivated to speak because I lived for some years among Ruandan and southern Sudanese refugee children. If any of them got into Europe, I am concerned about the effect of the clause on lorry drivers.
If a carrier is to face a penalty for bringing in a clandestine entrant, his primary concern will be to get rid of that unauthorised passenger as soon as the carrier discovers him or her. The routes of long-distance lorry drivers may be well away from towns and villages. The unwanted passenger—I am thinking of children—could be dumped by the side of a motorway.
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If the clandestine travellers are children, the driver may go to the nearest town and drop them off somewhere central where they can find help. He may not. They may have to fend for themselves in a place they do not know. If the driver is kind enough to take the clandestine travellers off the motorway and to a town or village, there is no guarantee that they will fall into safe hands. All children are vulnerable and in need of adult protection. I make a plea that we give thought, on the humanitarian front, to the vulnerable—to the children.
Viscount Astor: My Lords, we agree that carriers must have an incentive to check that they are not bringing anyone in illegally. The difficulty arises where a lorry driver finds someone. What does he do about it? Clause 26 does not offer an incentive to own up. We want lorry drivers to own up rather than dump clandestines on the M.20 or wherever. When the carrier, whether he is in charge of a lorry or a train, says mid-Channel, "I am going to offer myself up and report myself to the immigration officials", he should not be penalised.
Lord Falconer of Thoroton: My Lords, one would have to make a judgment in relation to the noble Viscount's point. Is it seriously being suggested that when a lorry driver finds a clandestine in his lorry—using the word neutrally—he is likely to report that to the authorities immediately, even though the driver is nowhere near a port or immigration control? That premise underlies the noble Lord's proposition. Is that more likely to reduce clandestines than a series of provisions that require the carrier to have in place adequate arrangements to ensure that clandestines do not get on in the first place? As a matter of common sense, a civil penalty that puts pressure on carriers to make searches in the first place is much more likely to reduce the number of clandestines.
Of course we share the right reverend Prelate's concern about children and the effect of immigration control and asylum provisions in relation to them. I am certain that the way to reduce that effect is to take proper measures against abuse and racketeering, which make children much more vulnerable. If a proper security system is in place for carriers, that will make it much harder for children to secrete themselves or be secreted on transport. If they are secreted in relation to someone who is genuinely innocent, I hope—though I appreciate this will not apply in every case—that he would not dump them by the side of the road. Nothing in the Bill encourages that.
Viscount Astor: My Lords, we have not convinced the Minister. The amendment is bound up with another that we shall reach shortly on codes of practice. It will probably be better to have that debate before we decide on the purpose of this amendment. In light of that, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 32 and 33 not moved.]
10.15 p.m.
Viscount Astor Viscount Astor moved Amendment No. 34:
Page 18, line 8, at end insert—
("() No penalty may be imposed under this section where the alleged clandestine entrant claims that his removal from the United Kingdom would be in breach of the United Kingdom's obligations under—

(a) the Refugee Convention; or

(b) the Human Rights Act,

or both, and is granted protection in the United Kingdom as a result.").
The noble Viscount said: My Lords, I can be brief in what I have to say on this amendment. It provides for refunds for those who carry clandestine passengers who are then, ultimately, accorded protection. It deals with both those recognised as refugees and those accorded protection under the Human Rights Act, thus removing the current anomaly that the Human Rights Act is not mentioned in the carriers' concession.
There seems to be a difference here which, I believe, arose when we previously discussed the Bill in July; namely, that concessions are available to carriers which bring in undocumented passengers who fear for life or limb, or who ultimately get refugee status, but no refunds are available for those carrying clandestine passengers who are ultimately given protection. This seems not to be right. Indeed, it is something which should be made the same. I beg to move.
Lord Dholakia: My Lords, we on these Benches would like to support the amendment moved by the noble Viscount. This amendment is not about clandestine entrants; it is about those entrants who have been given refugee status in this country. The interesting thing about this amendment is that it is not only talking about the refugee convention but also includes mention of the Human Rights Act, and refers to someone who,
"is granted protection in the United Kingdom as a result".
The amendment provides for refunds for those who carry clandestine passengers who are ultimately accorded this particular protection. The relevant discussion took place in Committee in July. At that time, the Government tried to justify the absence of a refund scheme for those who bring in clandestine entrants who are ultimately accorded protection on the basis of a distinction between carriers carrying undocumented passengers and those carrying clandestine passengers.
Concessionary refunds are available to carriers (not necessarily on the face of the Bill) who bring in undocumented passengers who fear imminently for life or limb and ultimately get refugee status. No such refunds are available for those carrying clandestine passengers whose passengers are ultimately given protection and whom the Government said were, by definition, uninterested in whether or not the persons carried were "genuine". When he last replied to this debate, the noble and learned Lord, Lord Williams, actually described the distinction that he was making as,
"not a philosophical one or a linguistic ploy".
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I hope that the noble and learned Lord will now accept that most carriers who carry undocumented passengers do not know that they are undocumented; otherwise they would not carry them. Whether an undocumented passenger ultimately satisfies the criteria for the concession is a matter of chance so far as the carrier is concerned. The situation is in fact the same as that for clandestine passengers. There is thus no justification for the distinction made between the two categories. The refund should be available to both and given statutory force.
The amendment is also tied up with a few other amendments; namely, Amendments Nos. 41,44 and 45. Perhaps I may briefly touch on Amendment No. 44. Again, in that amendment we are proposing that the Secretary of State should be liable to compensate any person,
"whose vehicle is detained or sold for losses incurred, if the detention is subsequently found to be ill-founded".
We find it incredible that the Home Secretary could actually take a decision to impound someone's vehicle, and yet refuse to pay compensation for such action when ultimately the case is not proved and the owner's status granted. There cannot be two different laws: one for the illegal entrants who are given refugee status and another for the Home Secretary. I believe that this amendment would actually put the matter right.
Viscount Brentford: My Lords, I support Amendments Nos. 34 and 41 and agree with the comments that have been made. It seems to me that it may be a matter of pure chance whether an individual is a clandestine or an undocumented passenger. Indeed, it merely depends on his or her situation at the time when the decision is made to try to get into this country as an asylum seeker.
It has already been said that this is a matter of chance so far as the carrier is concerned. I suspect that that is also the case as regards the applicant. Therefore it seems to me that these two almost identical amendments, Nos. 34 and 41, should be perfectly acceptable. I warmly endorse them.
The Lord Bishop of Oxford: My Lords, I rise briefly to support this amendment and to make one point. It might be argued that the amendment will encourage clandestines to claim asylum. However, this is unlikely. The clandestine has no interest in whether or not a particular carrier is subjected to a penalty. The amendment will generally have an effect only after the clandestine is discovered by a carrier. At this point a significant percentage of clandestines will have decided to claim protection anyway. The imposition of a penalty will make no difference to their behaviour, rather it may influence the behaviour of carriers in bringing clandestines to the attention of the authorities. I support this amendment and also Amendment No. 41 for similar reasons.
Earl Russell: My Lords, a penalty normally is intended as an incentive to some forms of action and a disincentive to others. I do not think that it is appropriate to the situation to have a disincentive to

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take clandestines on board. I think that practically no carrier wishes to do so. No one who is carrying a load wishes to have that load mucked up; it might cause them some damage and some trouble with their employers were they discovered.
But, if the Bill remains unamended, I wonder what kind of incentive is being given to carriers by the existence of the penalties if we once accept that they did not intend those people to be there. This, I think, is practically always the case. If a carrier, say in the middle of the ocean, discovers a clandestine passenger on board, what is the incentive effect on that carrier of the penalties at present provided in the Bill? I should be glad to know what the noble and learned Lord thinks is the answer to that question.
Lord Falconer of Thoroton: My Lords, there are four amendments in this group, Amendments Nos. 34, 41, 44 and 45. Amendments Nos. 34 and 41 basically put forward the proposition that if you are a clandestine but ultimately succeed in your application for asylum, no civil penalty should be imposed upon the carrier. Thus, I may approach a lorry driver and say, "I am bound to be granted asylum. Can I secrete myself upon your vehicle to get through immigration controls?" As I understand noble Lords, they would wish no civil penalty to be imposed in that situation, subject to the result of the application for asylum. That cannot be the right message to give when one is seeking to reduce the number of people who seek to enter by clandestine means. In my respectful submission this matter has not been thought out at all by the movers of the amendments, if one accepts that one is trying to prevent people entering on a clandestine basis.
No doubt any carrier who is at all sympathetic may be confronted with someone who says that he will gain entry, or may be confronted by a racketeer who says that every person in a group of people are bound to succeed in their applications as they have reasonable claims and the carrier should therefore hide them on his lorry. As I understand the position, that is the kind of case that some noble Lords would wish not to give rise to a civil penalty. In my respectful submission that is not consistent with the earlier proposition of the noble Viscount, Lord Astor, when he said that we were trying to stop people from entering on a clandestine basis. I ask noble Lords to think again on these amendments.
The other amendments propose in effect that where a wrongful detention of a transporter takes place, albeit not one that is unreasonable, the state should, in effect compensate the carrier whose transporter has been removed wrongfully but not unreasonably. With respect, we reject such an amendment. Your Lordships will be aware that every carrier has two separate opportunities to make representations against any individual charge liability which it disputes—first, to the port inspector and, secondly, if those are unsuccessful, to a senior officer at Immigration Service headquarters.
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Although we seek to work closely with carriers, once the representation process is complete and where the representations are unsuccessful, we expect payment of the debt without further ado. The power to detain will be implemented only as a last resort and after all efforts to persuade the carrier to settle the debt have failed. As the Bill makes clear, if that power is used unreasonably compensation will be paid. If the power is used reasonably, albeit that subsequently it proves to be wrongful—perhaps for reasons not brought forward at the two stages of representation—we feel it would be inappropriate for the taxpayer to meet the cost of compensation to carriers. I respectfully ask your Lordships to resist these amendments.
Earl Russell: My Lords, before the noble and learned Lord sits down, perhaps he can answer one question. Suppose, in his private capacity, he was to meet, shall we say on Calais docks, an asylum seeker without genuine documentation who convinced the noble and learned Lord that he was genuine. What advice would he give that asylum seeker about the correct method for gaining entry into this country?
Lord Falconer of Thoroton: My Lords, I would certainly not say to the asylum seeker "Why don't you get into the boot of my car. Let's go through immigration." As I understand it, that is what is being suggested.
Earl Russell: My Lords, what would the noble and learned Lord say?
Lord Falconer of Thoroton: My Lords, the noble and learned Lord would say to the asylum seeker, "Make an application to the authorities in the usual way. Do not try and get into the country clandestinely".
Baroness Williams of Crosby: My Lords, perhaps the Minister will answer a further question. I am puzzled by what he said. If someone applies to enter this country in the normal way—which means with proper official documents—but he is fleeing from Iraq and could not therefore possibly have official documents in order to come to this country, we see no way in which even the most extreme case of a genuine asylum seeker who has suffered for his beliefs—beliefs that we share—can any longer come to this country without heavy penalties falling on whoever facilitates his arrival here, however genuine he is. With great respect, the noble and learned Lord is overstating the case and leaving out of the count almost entirely this group of people whom he and his noble and learned friend said they were concerned about.
Lord Bach: My Lords, I hope the noble Baroness will forgive me. I must remind the House that we are at Report stage, not Committee stage. It is proper for the noble Baroness to ask a short question of the Minister at this stage of the proceedings but not, I fear, to make a speech. I hope she will forgive me for saying so.
Lord Falconer of Thoroton: My Lords, perhaps I may deal with that important point. What is wrong, in

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the example given in combination by the noble Earl and the noble Baroness, of the genuine asylum seeker claiming asylum in France?
Baroness Williams of Crosby: My Lords, I am not allowed to reply.
Earl Russell: My Lords, I have been asked a question. Perhaps I may ask a question in return. What if the asylum seeker is an Algerian and is denied protection under France's interpretation of the convention, which differs from ours?
Lord Falconer of Thoroton: My Lords, if the asylum seeker would suffer persecution or inhuman treatment if returned, he would be protected—as was made clear earlier in the debate—by Article 3 of the European Convention on Human Rights, which provides a bigger protection than the relevant provision of the refugee convention.
Viscount Astor: My Lords, perhaps the Minister will answer one brief question before he sits down. As I understand it—I would be delighted to be corrected if I am wrong—there is a distinction in terms of refunds, under the Bill as it stands, between carriers who carry undocumented passengers and those who carry clandestine passengers. Am I correct in thinking that one carrier can get a refund and the other cannot under the terms of the Bill at the moment?
Lord Falconer of Thoroton: My Lords, there is a distinction between Clause 26 and Clause 34. At the moment we are dealing with Clause 26.
10.30 p.m.
Viscount Astor: My Lords, it is that distinction that is causing concern. It implies a lack of fairness between one carrier and the other. The noble Lord has said that there is a distinction. We shall have to consider the matter and perhaps return to it at Third Reading. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Berkeley Lord Berkeley moved Manuscript Amendment No. 34A:
Page 18, line 43, at insert—
("(3A) Before laying a code before Parliament, the Secretary of State must consult, in the way he considers appropriate, persons appearing to him to be likely to be affected by the code.").
The noble Lord said: My Lords, first, I should declare an interest as chairman of the Rail Freight Group. The clause concerns carriers' liability. We must be careful to separate the concerns and problems of the road and rail freight industries, which have been gathered together in this grouping. I shall therefore speak to Amendments Nos. 34A, 34B and 36A in my name, and to Amendments Nos. 35, 36 and 37 in the names of the noble Lord, Lord Cope, and the noble Viscount, Lord Astor.
I shall briefly cover the background. The inclusion of rail freight happened at a late stage in the Bill; the first time it was incorporated into the text of the measure was at Committee stage in your Lordships' House. My colleagues and I raised our concerns then, which resulted in my noble and learned friend Lord Williams of Mostyn agreeing to provide a draft code of practice followed by a report. We received the code of practice last Wednesday and I understand that it is now in the Library of your Lordships' House. We had a meeting with the Minister on Friday evening. For that reason, I apologise that the amendments were not tabled earlier.
Immigrants using rail freight are a serious problem and the industry must help to deal with them. They are causing an enormous amount of damage to cargo, which is often rejected. That can lead to consignors wishing to transfer to other means of transport or routes. There is also the matter of fire, such as that in the Channel tunnel. Eurotunnel has sent me a brief, pointing out that a couple of years ago it suffered a disastrous fire in a lorry shuttle. There was apparently a freight train trapped behind it. Of course, the emergency services took no steps to remove the freight train other than to help the driver because they assumed that there would be no one else on the train. However, if there had been clandestines on board, they would have perished. There is therefore a serious problem concerning fire and safety.
The industry wants to work with the Government to find solutions to the problems. The amendments attempt to probe the Government's intentions and to ensure that there is the fullest consultation in the development of regulations and the code.
I turn to Clause 27 and the code of practice. The rail freight industry wants a code and it is grateful to the Government for producing one. No doubt we shall hear from the noble Lord, Lord Cope, why other parts of the industry may not want it.
Lord Falconer of Thoroton: My Lords, the two amendments proposed by the noble Lord—Amendments Nos. 34A and 34B— relate to requiring consultation in respect of a code of practice. The Government have consulted representatives of the road haulage industry on the draft code. Further, we are committed to maintaining a dialogue with industry representatives. There is a similar provision in Clause 33 in relation to representatives of the rail freight industry. The Government are prepared to accept in principle the amendment of the noble Lord and will table a suitable provision at Third Reading. In doing so, we may seek to provide for consultation carried out prior to the coming into force of Clause 27 and prior to Royal Assent. I hope that that helps the noble Lord.
Lord Berkeley: My Lords, I am grateful to my noble and learned friend. That will save us some time. I shall study what he has said, but, on the face of it, it goes a long way to giving the rail freight industry what it wants from the code of practice.
However, because a number of amendments are grouped, I should like to speak briefly to Amendment No. 36A. That concerns Clause 28, and provides an

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additional possible line of defence for a carrier. This is where the contractual arrangements for the carriage of freight by road and rail are completely different. Whereas the arrangements for carriage by road are fairly clear—probably one lorry brings the load all the way from where it originated—on the railways there is an agreement with 21 railways—the COTIF agreement—which has taken around 50 years to come into being. That means that the railways along the line of the route of a freight shipment have no responsibility for the contents of the wagons. Their only obligation is for the safety of the rolling stock involved. The duty to ensure that the contents of the wagons conform with the consignment note rests with the consignor railway. Therefore, if the consignment comes from Italy, the duty rests with the Italian railways. We think that that includes the duty to ensure that there are no extraneous items or illegal immigrants in the consignment.
Furthermore, the railway operator which takes delivery of a train at the frontier cannot be held responsible for events taking place in the territory of the depot or the region of origin. Therefore, any fault in that respect lies with the railways having responsibility for security at the depot of origin. In Italy, the Italian railways would be responsible for sealing the consignment and so on. For the Channel Tunnel, SNCF is responsible for the trains until they arrive in Folkestone. Therefore, it is SNCF which brings the clandestines, if there are any, into the country.
I wish to know whether under this clause the Government would institute proceedings against SNCF, which would be the organisation bringing the clandestines into the country, or whether the proceedings would be instituted against the Italian railways. I hope that my noble and learned friend will be able to assure me that he will not try to lay blame on a British company such as EWS for something over which, as I hope I have demonstrated, it has no control. I beg to move.
Viscount Astor: My Lords, my amendments, Amendments Nos. 35 to 37, are grouped with Amendment No. 34A. I am grateful for the concession made by the noble and learned Lord about the code and consultation. However, without being too mean to the noble and learned Lord, I have to say that the consultation so far has not been a great success. The Government seem to feel that the problem is not their fault but the haulage industry's fault and that it is up to the industry to sort it out. We know that that is not the case. We know that the number of immigrants who lurk around the docks in Calais is huge and that they will try to enter Britain in any way they can. The haulage industry does not attract them. It does not want them. They are more trouble than they are worth.
The position is not the same as it was some years ago when immigrants would suddenly jump out of a truck and disappear into the wide blue yonder and were never seen again. I am told that recently a lorry stopped on the M.40 and a number of illegal
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immigrants jumped out. The police were called and advised the lorry driver to drop them at the nearest Immigration Advisory Service centre as they had all come out of the back of the lorry with a written message saying, "I claim asylum. Where do I go?" These are not people who want to disappear. As the result of erroneous information, they want to appear in the system. The wrong message has been sent to Kosovo, or wherever it happens to be. This is not the fault of the haulage industry.
There is a general view in the industry that the draft code of practice is not yet right. I should be interested to know from the Minister what consultations there have been within government, not merely with the industry. For example, what consultations have taken place under the Department of Transport, which is now absorbed into the huge new department?
The code must work. It must both provide protection for, and impose responsibility on, the industry. It must be reasonable and practical. The operator has to be able to follow it.
Another aspect of the Government's role is to press our neighbours on the Continent to take steps of their own. I am told that, at Zeebrugge, the lorry park is regularly patrolled using sniffer dogs and it is extremely difficult for illegal immigrants to gain access. Equally, I am told that at Cherbourg dogs are sent into the back of vehicles, with spectacular results—sadly, people pour out. But in Calais, which is always under pressure as a result of the sheer volume of trucks, cars and trains, there is no incentive for anyone to do anything. If one drives through, one sees people queuing up, looking for one means or another to get on board. The Government must involve the French authorities. It would be interesting to know what the Government are doing to encourage their help to prevent that.
There are a number of technical points that I do not intend to go into in great detail relating to how a lorry driver can always check his load. This is an issue that the industry must discuss directly with the Government. For example, the Government require lorries to be sealed. But seals can be broken and lorries can be resealed, even using a unique number. The driver has no knowledge of how it is done. Often, drivers are not present when the loads are sealed. A driver has to take it that it has been properly done; there may be a letter or document. The working of these matters is difficult. If the code is to work, the industry must be involved.
There seems to be a problem between various government departments. The most obvious example is the provision in paragraph 2.3 that the driver must check the outer shell and fabric of the vehicle for signs of damage or unauthorised entry, and must pay particular attention to the roof. That sounds entirely reasonable to most of us. We know that people enter via the roof. It is the weakest point. However, I am told that the Health and Safety Executive advises that haulage companies should not encourage their drivers to clamber over the roof because it is dangerous. So what can be done? There are two arms of government giving conflicting advice.

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In a spirit of support for this part of the Bill, my hope is that we can receive a commitment from the Minister that, between now and Third Reading, the Government will consult with the industry on the code and produce a code that the industry can accept as workable.
Earl Russell: My Lords, I should like to support the points made by the noble Lord, Lord Berkeley, in relation to Amendment No. 36A. It is only necessary to look at passing freight trains and see the multifarious origins of the wagons that make it up to see that the noble Lord is right about the facts.
In the lay mind—and I admit only in the lay mind— there is a clear link between liability and responsibility. That link has been very much widened by the growth of liability, for example in American law. But the imposition of carrier's liability on the multifarious freight trains risks widening it to the point where it gets beyond the limits of eyesight. That is rather dangerous. It creates the nightmare of a billiard ball series of exchanges of claims of liability down the line which would make rail privatisation look a model of simplicity. I do not think we want to go down that road.
If the Government want to hold carriers liable, they should give rather more thought than they seem so far to have done to which carriers are responsible.
10.45 p.m.
Lord Cadman: My Lords, following what has just been said, the point has already been made that there is much difficulty in implementing the codes of practice where the responsibility for implementation rests with those remote from our shores and who obviously have little interest other than that of delivering freight by road or rail.
The effect of the civil penalties on lorry drivers would he most likely to encourage them to check their vehicles and loads before arriving on our shores. But with regard to railway services, the scope for doing the checking is limited and rests with foreign railway administrations. We hope the amendments will prevent some of those problems and I support them.
Lord Falconer of Thoroton: My Lords, I have dealt with the first two amendments which deal with consultations in relation to the code of practice and consequential amendments to that. I believe the noble Viscount, Lord Astor, supported the amendment and welcomed the concession.
We believe that we are consulting and making progress. That causes the noble Earl some mirth, but that is what we are doing and the measure of our confidence in it can be shown by the fact that we are prepared to put the requirement on the face of the Bill. That deals with the point about the obligation to consult the industry. We enter into the consultations in a spirit of genuinely trying to get the best results in relation to the code of practice.
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Amendment No. 36 would alter Clause 28 which provides defences against the civil penalty. Under subsection (3)(b) of the unamended clause, it is a defence if the carrier can show that,
"an effective system for preventing the carriage of clandestine entrants was in operation in relation to the transporter",
and if various other criteria are satisfied. Amendment No. 36 seeks to alter that to read:
"a system for preventing the carriage",
as opposed to "an effective system" for preventing the carriage of clandestines. That is the effect of Amendment No. 36.
The effect of Amendment No. 37 would be to delete subsection (4) of Clause 28 which requires the Secretary of State, in determining whether a particular system is effective, to have regard to the code of practice. Amendment No. 35 proposes that we should delete altogether the reference to the code of practice. I am not sure where the noble Viscount, Lord Astor, stands on that. He proposed it and on the other hand congratulated us on saying we would consult about it. However, we shall take him at his word.
The net effect of Amendments Nos. 35, 36 and 37 would be gravely to weaken the civil penalty and to make its implementation much more difficult for both the immigration authorities and for carriers. Without a code of practice there would be no guidance to carriers on the measures they might take to prevent clandestine illegal immigrants. From the point of view of enforcement, if it is a defence to have a system for preventing carriage of clandestines, rather than "an effective system", then enforcement would become impossible. Anything could be called "a system" and would satisfy the defence requirement. I urge the House to reject the amendments.
I turn to Amendment No. 36A. Clause 28 already provides two defences: one is duress and the other is the maintenance of an effective system. The effect of Amendment No. 36A would be to add a third defence. It would come into effect where the carrier could show that he had a system, no matter how ineffective, in place and had taken all reasonable steps to procure its implementation. It is not a sensible defence. The whole point behind the introduction of the civil penalty is to reduce the number of clandestine entrants arriving in the United Kingdom concealed in vehicles, ships or aircraft. We intend to achieve that aim by encouraging the owners, drivers and operators of such vehicles to take responsibility for the security of their vehicle and the loads they carry.
The defence proposed by the amendment would undermine the whole concept of a civil penalty. It would absolve carriers from their responsibilities for ensuring that they had effective systems in place for preventing the carriage of illegal entrants to the United Kingdom and implementing those systems. It would certainly not solve the original problem which the civil penalty is being introduced to tackle. The fact that an increasing number of clandestine entrants arrive in the UK and become a drain on the public purse is self-evident. It would make the problem worse, and I urge noble Lords to reject the amendment.

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I deal with two or three other points raised in the debate. The noble Viscount, Lord Astor, asked, rightly, about the French authorities. Should we be talking to them? My right honourable friend in another place has spoken to his French counterpart, M Chevènement. There have been talks at official level, both locally and nationally. Steps have been taken by the French authorities, for example to improve the security of the secure area in Calais. I hope that we have already taken that particular matter into account. I wholly agree with the noble Viscount that it is important that such consultation continues.
The noble Viscount also asked whether there had been consultation within government. There has been consultation with the Department of the Environment, Transport and the Regions—which was the phrase that the noble Viscount was striving for when he sought to describe the present organisation of government—and the Department of Trade and Industry.
The noble Earl, Lord Russell, I believe unfairly, suggested that the Government should have thought who would be liable in relation to particular carriers. If the noble Earl looks at the provisions of Clause 26(5) to (7)—which I am sure he has—there we specifically identify who is responsible.
The noble Viscount, Lord Astor, asked about the roofs of vehicles and the apparent contradiction between the draft code of practice and guidance given by the Health and Safety Executive. The roofs of vehicles is the favoured point of entry. A code of practice and system that does not require that to be checked will be ineffective. The point is being pursued at the moment with the Health and Safety Executive. There are a number of ways of checking roofs, for example by gantries, cameras and other systems. All these methods are being looked at and need to be, and will be, discussed with the industry. We are alive to the valuable points that the noble Viscount made.
Finally, in response to my noble friend Lord Berkeley, we are aware of the COTIF agreement, the particular circumstances of rail freight and why the Bill provides for the application of the civil penalty only after the making of further regulations and detailed consultations. We propose that the rail freight operator should be caught. We are also considering whether the operator who is responsible for taking the trains through the tunnel should be liable, but we wish to consult about that before we come to any conclusion in relation to it.
Earl Russell: My Lords, before the noble and learned Lord sits down, I am grateful to him for directing me to Clause 26(5) and (6). However, does he
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agree that since this lays responsibility on those who may have no control it partakes of the character of a legal fiction?
Lord Falconer of Thoroton: My Lords, people who are responsible as defined in Clause 26 must take steps to ensure that the relevant systems are in place.
Viscount Astor: My Lords, before the noble Lord, Lord Berkeley, decides what to do with his amendment, I am grateful to the Minister for the assurances that he gave in relation to my amendments, which were the hook on which to hang a debate about the code of practice. I am grateful for his assurance that consultations will take place with the industry so that a workable, effective and reasonable code of practice for the industry is produced.
Lord Berkeley: My Lords, before my noble and learned friend sits down finally, I am not sure about the position of rail freight and who is responsible. A lot of work is to be done in determining who is a train operator, who is a consignor and everything else. I shall carefully study his words and hope that we can have further discussions before Third Reading. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 34B not moved.]
Clause 27 [Code of practice]:
[Amendment No. 35 not moved.]
Clause 28 [Defences to claim that penalty is due under Section 26]:
[Amendment Nos. 36 to 37 not moved.]
Clause 31 [Effect on detention]:
Lord Falconer of Thoroton Lord Falconer of Thoroton moved Amendment No. 38:
Page 21, line 8, after ("expenses;") insert—
("( ) there is no significant risk that the penalty (or one or more of the penalties) and any connected expenses will not be paid;").
The noble and learned Lord said: My Lords, in moving Amendment No. 38, I speak also to Amendment No. 43. As your Lordships will be aware, the Government have made provision in Clause 31 of the Bill for the detention of a transporter pending payment of a penalty for carriage of clandestine entrants. Similarly, Clause 36 makes provision for the detention of a transporter pending payment of any outstanding charge in respect of passengers without proper documentation. In both instances, application may be made to the court for release of the transporter.
At present under Clauses 31(3) and 31(6), the court may release the transporter if it considers that satisfactory security has been tendered in place of the transporter or if there is significant doubt as to whether the penalty is payable and the applicant has a compelling need to have the transporter released.
Amendments Nos. 38 and 43 make further provision for the court to release the transporter if it considers that there is no significant risk that the penalty or penalties and any connected expenses will not be paid.
Your Lordships will see that these amendments widen the jurisdiction of the court to consider whether any security is needed in a particular case. Without the proposed amendments the only means of challenging a decision that security was required would be by way of judicial review. We think that the court, on an application under these clauses, should be able to consider this issue alongside the others already provided for. We therefore believe that these amendments will not undermine the civil penalty legislation but rather, by enabling those who have an interest in securing the release of a transporter to seek relief without the need for judicial review, will facilitate the effectiveness of the legislation. I commend these amendments to the House. I beg to move.
On Question, amendment agreed to.
Clause 32 [Assisting illegal entry and harbouring]:
Lord Bassam of Brighton Lord Bassam of Brighton moved Amendment No. 39:
Page 22, leave out lines 10 to 20 and insert ("for paragraphs (a) and (b) substitute—

"(a) until a decision is taken as to whether or not to institute criminal proceedings against the arrested person for that offence; or

(b) if criminal proceedings have been instituted against the arrested person—

(i) until he is acquitted or, 'under section 65 or 147 of the Criminal Procedure (Scotland) Act 1995, discharged or liberated or the trial diet is deserted simpliciter;

(ii) if he has been convicted, until the court decides whether or not to order forfeiture of the ship, aircraft or vehicle,

and for the purposes of this subsection, criminal proceedings are instituted against a person at whichever is the earliest of his first appearance before the sheriff on petition, or the service on him of an indictment or complaint." ").
The noble Lord said: My Lords, the amendment makes a further technical change for Scotland to the new Section 25A in the 1971 Act. The amendment takes account of the differences in Scottish criminal procedure and proceedings and is intended to achieve an effect similar to that for England and Wales under subsection (1).
As the amendment makes clear, the ship, aircraft or vehicle in connection with which a person has been arrested or charged with an offence may be detained until a decision is taken on whether or not to bring criminal proceedings against the arrested person.
If criminal proceedings are taken against him, the ship, aircraft or vehicle may be detained until one of the following events occurs—that is, until he is acquitted, discharged or liberated or until the prosecutor decides to drop the charge completely and proceed no further. That is the effect, I understand, of the expression contained in the clause of deserting the trial diet simpliciter.
Where the person has been convicted, the ship, aircraft or vehicle may be detained until the court decides whether or not to order its forfeiture.
The tailpiece to the amendment repeats what is currently at paragraph (c) in subsection (5) of the new Section 25A. The tailpiece sets out what is meant by the reference to criminal proceedings being instituted. I beg to move.
On Question, amendment agreed to.
Clause 33 [Rail freight]:
Lord Berkeley Lord Berkeley moved Manuscript Amendment No. 39WA:
Page 23, line 16, after ("person") insert ("in the United Kingdom and abroad").
The noble Lord said: My Lords, in moving this amendment, with the leave of the House I speak also to manuscript Amendments Nos. 39XA, 39YA and 39ZA. As I think that Amendment No. 39WA has been covered by previous discussions, I do not want to say anything further on that.
Amendments Nos. 39XA and 39YA refer to the impounding and selling off of rail wagons if a person liable has not paid the penalty. We have had no reasonable explanation of why this is necessary especially after the welcome amendment to new Section 25A which my noble friend has just moved. I gain the impression that the clause is included because there is a similar clause for road freight.
I submit that lorries may be mislaid but that it is hard to see how a rail wagon can be mislaid in the UK especially when there is a system of recording and tracking all wagons. I leave it to the Government to work out what will happen if they impound an Italian railways wagon. There would probably be an international incident.
I hope that my noble friend will ask that the amendments are withdrawn on the basis that they are unnecessary and that the railways always behave themselves and know where all their wagons are.
Amendment No. 39ZA proposes an arbitration measure, as we discussed on an earlier amendment in the name of the noble Lord, Lord Cadman. Perhaps my noble friend will feel able to make concessions similar to those he made as regards the size of immigration services buildings. I beg to move.
11 p.m.
Lord Cadman: My Lords, these amendments are obviously complementary to those in the noble Lord's previous group and introduce the added benefit of an arbitration system. As I have just been made aware, the Government do not appear to be receptive to any form of arbitration in this context, regrettably preferring simply to provide the Secretary of State with powers.
I believe that the Minister and his advisers in the DETR have not come to grips with the problem of people arriving, even in a train. I trust therefore that consideration will be seriously given to the different problems associated with rail freight compared with road haulage in this context before the Third Reading of the Bill.
Lord Dholakia: My Lords, we on these Benches support Amendment No. 39ZA. In many processes in

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this country, it is normal to allow arbitration and conciliation in trying to resolve a dispute. In this case, the suggestion is valid and it is right that in a disagreement of this nature an arbitrator should be appointed and that his decision should be accepted.
Lord Falconer of Thoroton: My Lords, I shall not deal with Amendment No. 39WA because my noble friend did not address further argument to it.
Amendment No. 39XA seeks to delete subsections (2)(c) and (2)(d) of Clause 33. Subsection (2)(c) refers to the introduction of possible provisions for the detention of a particular rail freight wagon. Subsection (2)(d) contains the power to sell a detained freight wagon. The intention of the two subsections is to reproduce in the rail freight regulations the same provisions as in Clause 30 of the Bill. I should emphasise that safeguards exist which ensure that the person on whom the penalty had been imposed may apply to the courts for the release of the wagon.
Deleting those requirements would seriously undermine the effectiveness of the civil penalty, which is to be underpinned by a power to detain and, if necessary, sell. We see no reason why there should be different provisions for the rail freight industry.
It is to be hoped that it will not be necessary to use this power in many instances, but it is essential that we have a power to detain vehicles and ultimately to sell them if the civil penalty remains unpaid. The power is likely to be used only rarely, where the officer believes that there is a significant risk that the penalty will not be paid in the time-scale allowed by the notice. The purpose of the provision is to ensure payment; it is not to find lost wagons.
Amendment No. 39YA would require any regulation made under this clause to include the provisions set out in Clause 27 relating to the issuing of a code of practice. It also provides that the code of practice relating to rail freight will have to be laid before Parliament before the regulations are published. That is unnecessary, in our view. The Government have based the whole operation of the civil penalty on the code of practice and it would make no sense for us not to issue a code of practice for rail freight operators. Indeed, I understand that the noble Lord, Lord Berkeley, has already been provided with a draft copy of the proposed code of practice.
In any event, the regulations relating to the imposition of the civil penalty on rail freight will be laid before Parliament before they come into force and noble Lords will have the opportunity to debate this issue fully at that stage. Those regulations must be subject to prior consultation.
Amendment No. 39ZA would place a statutory responsibility on the Secretary of State to appoint an arbitrator to resolve any areas of disagreement between him and representatives of the rail freight industry and to make binding recommendations. With respect, that is unacceptable.
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There will always be aspects of the civil penalty that will be unpalatable to the rail freight industry and areas on which it disagrees with the Government. As currently drafted, this amendment would have the effect of allowing the rail freight industry to spin out the consultation process and thus frustrate the imposition of the civil penalty, first, by disagreeing with the Secretary of State and then by providing a means whereby it can lawfully block the arbitrator's appointment. Nothing in the present context is suitable for arbitration.
The Government believe that the arrangements that have been set out for other aspects of the transport industry—
Lord Nunburnholme: My Lords, perhaps I may ask the noble and learned Lord to speak forward.
Lord Falconer of Thoroton: My Lords, I apologise for not speaking sufficiently forward.
The Government believe that the arrangements that have been set out for other aspects of the transport industry provide sufficient safeguards and we do not believe that it is appropriate to give the rail freight industry special treatment. I urge the House to reject the amendment.
Lord Berkeley: My Lords, I am grateful to my noble and learned friend for that explanation. I cannot say that I agree with every word he said, but he has given us a great deal of food for thought. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 39XA, 39YA and 39ZA not moved.]
Clause 34 [Charges in respect of passengers without proper documents]:
Lord Hacking Lord Hacking moved Amendment No. 39A:
Page 24, line 2, after ("vehicle,") insert ("ship or aircraft").
The noble Lord said: My Lords, in the absence of my noble friend Lord Clinton-Davis on duties with the Council of Europe, I rise to move Amendment No. 39A which is tabled in his name.
Like the Minister's Amendment No. 40, this amendment is directed to Clause 34(5). We debated this issue in Committee on 19th July. Therefore I shall briefly remind your Lordships of the curious history behind subsection (5), which was introduced into the Bill only during its passage through another place.
The basic provisions of Clause 34 are set out in subsections (1) and (2). They are that all carriers are liable to a charge of £2,000 if they deliver passengers to this country without a valid passport, or a visa, if required. However, there is a defence if a carrier can show that at the time of embarkation the passenger produced what reasonably appeared to be a valid passport and, if required, a valid visa. This means that if the passport was a forgery, or not related to the passenger, the carrier would not be in breach of the

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provisions of Clause 34 unless the falsity or the wrong identification was "reasonably apparent". These provisos are contained in subsections (4) and (6).
If the matter were to stop there, although undoubtedly onerous on all carriers, the provisions of Clause 34 would have applied equally to all carriers, whether by air, sea, train or coach. However, a special exception was created for train operators and the owners of road passenger vehicles. Those provisions are set out in subsection (5). Subject to the inclusion of the further provision in Amendment. No. 40—if it is accepted by your Lordships—the summary of the position under subsection (5) is that if the carrier can show that
"he had in place satisfactory arrangements",
and all practicable steps had been taken for the passenger to produce the required documents, he has a defence.
The reason why subsection (5) was introduced is apparently that in some nearby countries—France, Belgium and Spain were cited in Committee—it is not lawful to require train and coach passengers to produce the required documents, although apparently it is lawful to require air and ship passengers to produce those documents. Hence, we have the somewhat elaborate provisions of subsection (5), which will be made more elaborate if Amendment No. 40 is accepted.
When the matter was debated in Committee, we were assured by my noble and learned friend Lord Williams of Mostyn that there was no intention to put the airline or shipping industries at a disadvantage. In a letter that my noble friend Lord Bassam of Brighton recently wrote to British Airways, he confirmed that,
"The intention is not to disadvantage the airlines and shipping companies, they still have their existing defence in subsection (4), but rather to provide some defence for those companies who are unable by law to make the required checks".
The problem is that it does. There are different provisions. Subsection (4) applies to all the carriers but subsection (5) contains new special provisions for train and coach carriers.
The provisions of Amendment No. 40 do not solve the problem. It is perfectly possible that in some country, somewhere in the world, we shall find a similar prohibition against examining documents of those who travel by sea or air. It is inherently unsafe to base our own legislation on the vagaries of the laws of other countries.
The fact is that passengers destroy or mutilate passports during a journey because they want to become stateless or eligible for political asylum. It may also be because they know that although the documents do not appear to be so, they are false. It is in order to tackle these concerns that my noble friend Lord Clinton-Davis tabled the amendment. I beg to move.
Lord Greenway: My Lords, I support the amendment moved so ably by the noble Lord, Lord Hacking. On the face of it, there appears to be a distinct and costly disadvantage for sea and air carriers
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as opposed to train operators and owners of road passenger vehicles. As I see it, Clause 34 automatically grants the equivalent to what is known as the approved gate check status to the train operators and road passenger vehicle owners. It is automatic in the sense that they do not have to work with the immigration authorities in any way, as do the air and sea carriers.
Over the past few years, air and sea carriers have worked extremely conscientiously with the immigration authorities to try to reduce document violations. But there is no blanket let-off which Clause 34 grants to other types of carrier. As I said, it puts them at a disadvantage. It is on the record that when we have discussed carriers' liability over the years, I have always thought that at best it was unfair and at worst amounted to nothing short of extortion. The air and shipping companies have paid out enormous sums in fines. I believe that P&O Stena Ferries has had to put aside something like £13 million to cover the next five years if the present state of affairs continues. That is a disgraceful figure. I know that the present Administration did not introduce it but we are still lumbered with carriers' liability. I believe that serious efforts should be made to deal with those indiscretions by using government-funded immigration officers rather than relying on personnel from airlines or shipping companies who admittedly receive training but who can never be expected to be as efficient as properly trained customs officers and immigration officials.
Lord Falconer of Thoroton: My Lords, as the noble Lord, Lord Hacking, said, the defence contained in Clause 34(5) applies only to train operators or the owners of road passenger vehicles where they can demonstrate that they have in place a satisfactory system for the prevention of the carriage of inadequately documented passengers and have done everything practicable to carry it out.
The defence was constructed to cater for the specific and unique legal circumstances which surround the operation of passenger train, bus and coach services in certain European countries. It reflects the fact that train and road passenger vehicle operators are not allowed in law to carry out the checks required to secure the defence against a carrier's liability charge found in subsection (4) of this clause. There is no such restriction in any country on air and sea carriers. Therefore, there is no logical reason why this defence should be extended to air and sea carriers. We fully understand the concerns of the noble Lord that air and sea carriers may be disadvantaged because there will be a large number of rail and road carriers who are able to do the necessary checks.
Government Amendment No. 40 seeks to ensure that train operators and road passenger vehicle owners cannot take advantage of the Clause 34(5) defence in circumstances where they may lawfully check documents in the country of embarkation and thus are in the position to avail themselves of the Clause 34(5) defence.

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We have met the point of unfairness. We disagree with the noble Lord, Lord Hacking, that it would be appropriate to add air and sea because there is no such restriction on air and sea carriers from checking tickets.
Government Amendment No. 42 gives to the Secretary of State power by order to provide for the non-application of the carriers' liability regime either generally for all passengers embarking on a train in a particular country or in relation to passengers embarking at specified stations in a country. An order under this power may only be made where there is in existence at the time an international agreement between the United Kingdom and the country concerned providing for the exercise of UK immigration control in that country or for the checking of travel documents of those embarking on trains for the United Kingdom. The amendment is intended to enable effect to be given, should agreement be reached on wider juxtaposed controls, to that agreement.
I invite your Lordships to reject Amendment No. 39A and accept Government Amendments Nos. 40 and 42.
11.15 p.m.
Lord Hacking: My Lords, in the circumstances, I shall be happy to withdraw Amendment No. 39A. I would be grateful if the Minister could look at the problems that still face the airline industry under the approved gate check system which was raised by the noble Lord who spoke from the Cross Benches. That is a method under which air carriers can use the defence under subsection (4) because it is a system that ensures the checking of passports in a satisfactory way at the point of embarkation.
Currently there is a four-month delay in the checking process for approved gates. Also, there are some curious decisions. For example, at Frankfurt airport the approved checking system is not accepted because apparently there are glass partitions with space underneath the glass where it is thought that papers could be passed by passengers during the embarkation process. There is no logic in that, and it would greatly assist the airline industry if the Minister could look at that aspect of the matter. In view of the Minister's answers and in view of his confidence that nowhere in the world is there the same prohibition on the examination of documents by passengers who come in by air and by sea, I beg leave to withdraw the amendment.
Amendment, by leave, withdraw
Lord Falconer of Thoroton Lord Falconer of Thoroton moved Amendment No. 40:
Page 24, line 2, at end insert—
("( ) neither he nor his representative was permitted, under the law applicable to the place where A embarked on the journey to the United Kingdom, to require A to produce to him when embarking the required document or documents;")
On Question, amendment agreed to.
[Amendment No. 41 not moved.]
Lord Falconer of Thoroton Lord Falconer of Thoroton moved Amendment No. 42:
Page 24, line 30, at end insert—
("(8A) The Secretary of State may by order provide that this section is not to apply in relation to passengers arriving in the United Kingdom on a train who embarked on the journey to the United Kingdom—

(a) in a country specified in the order; or

(b) at places so specified within a country so specified.

(8B) The Secretary of State may make an order under subsection (8A) only if he is satisfied that there is in force between the United Kingdom and the country concerned an agreement providing for the operation of UK immigration control in that country or for the checking of passports and visas there.").
On Question, amendment agreed to.
Clause 36 [Power to detain vehicles etc. in connection with charges under section 34]:
Lord Falconer of Thoroton Lord Falconer of Thoroton moved Amendment No. 43:
Page 25, line 28, after ("expenses;") insert—
("( ) there is no significant risk that the charge and any connected expenses will not be paid;").
On Question, amendment agreed to.
[Amendments Nos. 44 and 45 not moved.]
Clause 38 [Bail hearings for detained persons]:
Lord Falconer of Thoroton Lord Falconer of Thoroton moved Amendment No. 46:
Page 27, line 25, leave out ("notifies the Secretary of State, in writing,") and insert ("has given to the Secretary of State, and has not withdrawn, written notice").
The noble and learned Lord said: My Lords, in proposing Amendment No. 46, I must thank the noble Lord, Lord Cope, who, during the Committee stage, proposed an amendment which would have required the Secretary of State to make a second reference even in those cases where the detainee had waived his right to a first hearing. At the time my noble and learned friend Lord Williams made it clear that this had always been our intention. I am pleased to tell the House that, to make the position clear, the Secretary of State is required, by this amendment, to secure a reference to the court if at any time the detainee notifies him, in writing, that he no longer wishes to waive his right to a routine bail hearing.
Turning to Amendments Nos. 48 and 51, it must surely be right that a person who is detained on national security grounds under immigration-related powers should not benefit from a general right to be released on bail. This does not mean that bail could not be granted in cases where the court was satisfied that adequate safeguards were in place, however unlikely that might be.
Amendment No. 54 will allow a court to vary the conditions on which bail was granted, at the request of either party. For example, bail may have been granted subject to a condition that the person live at a certain address. If the person moves from that address he or she will have broken a condition of bail and will be liable to arrest. This amendment will allow that person

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to seek the court's authority before changing address, which will mean that he will not be liable to arrest when he moves. I am sure noble Lords will agree with me that the introduction of this amendment will be beneficial to those who have been granted bail.
Amendment No. 55 is necessary simply to correct a printing error in the Immigration and Asylum Bill published after we considered the Bill in Committee. Subsection (7) of Clause 44 relates to the arrest of those who have been granted bail by the Special Immigration Appeals Commission The power to grant bail is set out in Clause 40, not Clause 41.
The purpose of Amendments Nos. 57 and 58 is to provide a power to bring applications for bail made under existing immigration legislation into line with this part of the Bill. The existing Clause 47, which allows for the transfer of jurisdiction over pre-appeal bail applications to magistrates, has effectively been subsumed into the new clause. The new power will be exercisable by the Secretary of Stale but any rules matte will require the approval of the Lord Chancellor.
The new power is intended to be exercised so as to ensure that the practice and procedures for bail applications and routine bail hearings are, as far as possible, the same. This will greatly simplify matters for all those who are involved in deciding bail related issues. I should like to make it clear at this point that we are still considering whether further amendments to this rule-making power will be required for Scotland. This power will allow the statutory presumption in favour of bail to be extended to bail applications. It would clearly be nonsensical for detainees to benefit from the presumption at routine hearings but not upon applications for bail.
By means of Amendment No. 272, any regulations made under the new clause will be subject to affirmative resolution procedure. We intend that applications for bail will be heard in the same locations as routine bail hearings. The choice of any particular location will, of course, be subject to the approval of the Lord Chancellor, as is the case in relation to routine bail hearings under Clause 39. We also wish to see, when the technology becomes available, the use of TV links for the hearing of these cases, as is the case in relation to routine hearings under Clause 46.
The new power will also be used to extend the power to require securities in the bail application context. For the first time, chief immigration officers and above will have the right to request a security before releasing somebody on bail. This will be used only to the extent necessary to prevent absconding, as is the case in the routine bail context under Clause 41. It is hoped that the ability to take a security will lead to the release of some of those who currently have to remain in detention because of doubts that they will abscond.
The Immigration Service will put in place satisfactory arrangements for the receipt, retention and return of securities. Those arrangements will be subject to scrutiny by the National Audit Office. I beg to move.
Baroness Williams of Crosby: My Lords, this group of amendments covers a fairly wide range and perhaps
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I may raise one or two questions on the earlier amendments. I am sure noble Lords on the Opposition Front Bench will want to raise other questions and it is perhaps appropriate to consider them together, as the noble and learned Lord, Lord Falconer, did, for reasons of time.
We welcome the commitment to two bail hearings—one within the first week of the first hearing, the second within roughly a month later. It is excellent that the Government are committed to routine bail hearings, with the broad presumption that bail should be extended unless there are strong reasons why not.
My questions relate to whether the second bail hearing will proceed even if the first were waived by the person concerned in writing. The individual might have arrived in difficult circumstances and be traumatised—and he or she might not have the connections and the legal advice required to understand the importance of attending a bail hearing. We want to ensure that the second routine bail hearing would not thereby be waived. If notice were given in writing that the individual did not want to take advantage of the first hearing, would it be assumed that he or she did not want the second hearing either—or would that require a fresh procedure? The argument is that the individual might not know how to go about getting legal representation or even understand fully the purpose of a bail hearing.
My question on Amendment No. 47 concerns any individual who has strong reasons for acquiring medical or other reports. The noble Lord, Lord Falconer, and his colleagues will be aware that there has been consistent concern in the House for victims of torture, who are obviously one of the groups for whom medical reports would be appropriate. The second part of Amendment No. 47 refers to the possibility that regulations might provide a requirement for there to be a second reference not to apply in prescribed circumstances.
We want to ascertain that where someone had called for a medical report or where one was thought appropriate to consideration of a case, the regulations do not make provision for there to be no second hearing—because the second hearing would be the one at which the medical evidence would probably be considered. We seek clarification that in every case, a second routine bail hearing would almost certainly be held unless an indication had been given by the respondent that they were not, for some reason or another, seeking one.
Viscount Bridgeman: My Lords, we shall be interested to hear the Minister's replies to the questions of the noble Baroness, Lady Williams, in relation to Amendments Nos. 46 and 47. We support the Government in the cases that they have enumerated, where bail need not be granted. In particular, we support Amendment No. 51, in citing the circumstance of national security cases. For the same reason, we do not support Amendment No. 49.

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Amendments Nos. 54A, 54B and 55A in the names of my noble friend Lord Cope and my noble and learned friend Lord Mackay of Drumadoon strengthen the hand of the immigration officer by substituting the words,
"there is reasonable suspicion that the arrested person will",
for the words
"or is likely to break".
On Amendment No. 58, we support New Clause 47 but ask the noble and learned Lord why in Committee in another place authority was specifically given to the Lord Chancellor. Under the new amendment, authority appears to be restored to the Secretary of State with the approval of the Lord Chancellor. Could not that have the bizarre effect that the Secretary of State could find himself drafting rules for magistrates?
11.30 p.m.
Lord Falconer of Thoroton: My Lords, perhaps I may begin by dealing with the specific questions that have been raised. The noble Baroness's first question was, I believe, seeking confirmation as regards the situation where the waiver of a right to bail was subsequently withdrawn by the applicant. She wanted to know whether that applicant would get the two hearings or simply one. I can tell the noble Baroness that he would get the two hearings unless his waiver occurred between the first and the second. In that case, he would already have had the first and would only be entitled to the second. Whatever the effect of the waiver, he would get the full benefit of Clause 38 one way or the other if it is withdrawn; namely, two hearings. I hope that that is clear.
I did not quite follow the second question posed by the noble Baroness. I believe she was concerned about a case involving torture where medical reports would be required which could well—and I accept this—be relevant to the question of bail. I think she would like me to confirm that, in all circumstances, medical reports will be available for the second hearing. However, I was not quite clear about the question. I give way.
Baroness Williams of Crosby: My Lords, I apologise to the noble and learned Lord. However, it is quite late at night. I am concerned about the second subsection of Amendment No. 47, which says that,
"regulations may … provide for the requirement for there to be a second reference not to apply in prescribed circumstances".
In view of the fact that the first part of the amendment refers specifically to medical reports, I want to make absolutely certain that that would not be the case for a second reference if the relevant factor was seeking "medical or other reports". There might be other factors which we would accept, but we assume that there would be a second hearing if a medical or other report was sought in order to consider the case. It is the second part of Amendment No. 47 which worries us.
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It deals with what regulations might be able to provide for; namely, the waiving of a second reference. We want to ensure that that will not apply in such cases.
Lord Falconer of Thoroton: My Lords, I understand the point and I am sorry that I have been so slow to grasp it. Under Amendment No. 47, regulations will provide that an adjournment should only be made in order to obtain medical reports in cases where there are arguments about torture or ill health. Where there is a delay in obtaining the report and the time for the second reference has passed, there will be no requirement to make the reference. As it is intended that adjournments will never last more than 21 days, this should never be the case. Therefore, it is to be hoped that you would always be able to adjourn and adjourn in order to allow time for getting the report dealing with the torture issue.
I turn now to the other point made by the noble Viscount, Lord Bridgeman. He is right to say that the Lord Chancellor's approval was added in Committee. The reason for that is the fact that the Secretary of State for Home Affairs is involved in immigration control, while the Lord Chancellor is involved in matters relating to the conduct of judicial or quasi-judicial proceedings. Therefore, it is appropriate that they should do it all together.
The noble Viscount asked one further question, but, as it is late at night, I have forgotten it.
viscount Bridgeman: My Lords, does it not follow that the Secretary of State had a hand in drafting magistrates' rules?
Lord Falconer of Thoroton: My Lords, they would only come with the approval of the Lord Chancellor, so the noble Viscount may, technically, be right. However, the Lord Chancellor is there to keep everyone on the right track.
Lord Lucas: My Lords, before the noble and learned Lord concludes, can he confirm that I am right in thinking that he did not actually address Amendment No. 47 in his initial remarks? After what he said in reply to the noble Baroness, Lady Williams, I still remain completely in the dark as to the purpose of the second half of the amendment and under what circumstances the noble and learned Lord believes it should be used.
Lord Falconer of Thoroton: My Lords, the noble Lord is absolutely right. I did not address the second half of Amendment No. 47; indeed, I did not address any of that amendment in my remarks. It appears to be quite an important regulation. It aims at the circumstances in which it is perfectly obvious that no second reference is required. It is certainly not intended to deal with the situation about which the noble Baroness, Lady Williams, was concerned; namely, where the report was not ready. In such a case there would plainly need to be an adjournment and there would have to be a second reference.

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However, I envisage that there will be circumstances where it is utterly obvious that a second reference would be a complete waste of time. In those circumstances—they would be quite limited—the regulations could make provision for that to be the case. That is the basis of the of the amendment.
On Question, amendment agreed to.
Lord Falconer of Thoroton Lord Falconer of Thoroton moved Amendment No. 47:
Page 28, line 29, at end insert—
("( ) The Secretary of State may by regulations make provision modifying the application of this section in relation to cases where the proceedings on a reference under this section are adjourned to enable medical or other reports to be obtained or for any other reason.
( ) The regulations may, in particular, provide for the requirement for there to be a second reference not to apply in prescribed circumstances.").
On Question, amendment agreed to.
Clause 40 [General right to be released on bail]:
Lord Falconer of Thoroton Lord Falconer of Thoroton moved Amendment No. 48:
Page 29, line 6, leave out ("or (3)") and insert (", (3) or (3A)").
On Question, amendment agreed to.
The Earl of Sandwich The Earl of Sandwich moved Amendment No. 49:
Page 29, leave out lines 24 to 38.
The noble Earl said: My Lords, this amendment deals with exceptions to the presumption of bail and whether they should extend to under 18s, those with mental disorder and those still awaiting final decision. We welcome the general right to be released on bail in the main sections of Clause 40, which is an important clause of the Bill. I think it was euphoria and the approaching dinner hour which made it difficult for the Minister to respond on the previous occasion to the noble Lord, Lord Dholakia, who made a number of clear points during Committee, some of which will be reiterated. General enthusiasm for the new clause was tempered by the knowledge that there are major exceptions in paragraphs (b), (c) and (d) which even come close to undermining the whole basis of the right granted. I submit that that situation remains today.
I refer to subsection (3)(b) on mental disorder. It was argued that this is much better dealt with under the Mental Health Act 1983, which defines circumstances under which someone can be detained, for example in a hospital. The noble and learned Lord, Lord Williams, said that he would look at this. Perhaps the Minister will be equally positive today. Subsection (3)(c) on under 18s could be covered under Section 47 of the Children Act which places a duty on local authorities to make inquiries and provide care where they have reasonable cause to suspect harm. The Government may argue that this provision refers only to late night or overnight accommodation, as they have before, but the power can theoretically last seven days. This seems quite out of proportion and is based, I believe, on inadequate reasoning as it implies that the present legislation under the Children Act is likely to fail. Subsection (3)(d) refers
890
to cases still being investigated. This has been far too widely drafted and would catch an enormous number of people who would be detained unnecessarily.
The new government amendment shows that the Government are trying to help but they seem determined to exclude anyone whose case is still being considered. This again raises the question of where the Government would hold so many people caught by this provision, and in what conditions. I recently visited Haslar and I know what overcrowding there is there. I hope that the Government will think again about this matter. I beg to move.
The Deputy Speaker (Lord Lyell): My Lords, I must advise the House that if Amendment No. 49 is agreed to I shall not be able to call Amendment No. 50.
Lord Phillips of Sudbury: My Lords, we on these Benches strongly support what has been stated by the noble Earl, Lord Sandwich, in moving this amendment. I wish only to endorse the desirability of trying to simplify legislation as far as possible. We have here a phenomenally complicated Bill. I would have hoped that the Government would have—at least as regards this part of it—latched onto existing legislation which we suggest works rather better than these new provisions. I refer in particular to the 1983 Mental Health Act. What has happened here is that part of the 1971 Act has been put into subsection (3) of Clause 40. It seems odd to be going backwards in time, as it were, given that the considerations which led to the wording and provisions in the 1983 Act are, of course, much more up to date and, we would say, more flexible and better suited to the purposes the Government intend here.
Merely on the grounds of legislative proliferation we would urge this amendment. The Children Act, too, is a more recent measure and contains flexibility and emergency procedures. We do not see any drawback to the Government agreeing with the amendment. No doubt we shall hear from them.
The Lord Bishop of Lichfield: My Lords, perhaps I may express a similar concern in a slightly different way. I wish to make clear that my particular concern is the effect of subsection 3(c), which makes it possible for children and young people under the age of 18 to be excluded from the right to bail in one startling circumstance; that is, where the requisite emergency accommodation under Section 20 of the Children Act has not been provided for the child or young person. Am I alone in thinking that that is astonishing?
My understanding of fairness is that if any penalty is to be imposed it is to be imposed on the person or organisation at fault. Here we have a situation in which the system fails to provide what it is required to provide, and the child or young person whose needs generate that requirement is refused bail. Surely that cannot be right. It must be possible to find somewhere for a child or young person to stay. I am not aware that if a social services department is having difficulty in finding emergency accommodation for a resident child or young person in distress it would even consider

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trying to have that child or young person locked up as an acceptable alternative. Here we are putting that option into law.
The Government made clear during early debates on the Bill that they do not wish children and young people to be detained unless the circumstances are exceptional; indeed, that their officials do not knowingly detain under age asylum seekers. I hope that the Government will recognise that subsection (3)(c) is incompatible with their intent and aspiration. I hope that they will consider removing it from the Bill.
Viscount Brentford: My Lords, I have very little to add. Having put my name to the amendment, I agree with what has been said. My concern is with the last three paragraphs and whether this is the best method for dealing with the vulnerable people involved. I refer in particular to paragraphs (b) and (c). If a person who is suffering from a mental disorder is a danger to himself or to other people, he should be under professional care and not detained as described here. He should be in a hospital or where he will obtain the best help available for him. Surely this is not the best way of dealing with somebody suffering from a mental disorder.
Similarly with paragraph (c). I echo what the right reverend Prelate said about young people. Surely the Children Act is working effectively and we can rely on that. The appropriate way to deal with the arrival of an unaccompanied child is to place the Immigration Service under a duty to contact the local authority and then to let Section 47 of the Children Act take effect. That would be far better than detaining a person and refusing bail for this purpose.
I have very little to add about paragraph (d). I am glad that it is being revised by the Minister. All I would ask is whether it is still too wide.
Earl Russell: My Lords, the first two categories covered by the amendment, those of people suffering from mental health problems and of children, if they should be detained at all—the burden of proof on that is a very heavy one—should be detained under different circumstances and different powers from adults.
For the third section covered by the amendment—those whose cases are still being investigated—paragraph (d) raises uncomfortable thoughts of Penelope's shroud.
Lord Avebury: My Lords, whether someone is suffering from a mental disorder is a matter of clinical judgment. I hope the Minister agrees with that proposition. Therefore, if subsection (3)(b) is to be implemented, it presupposes that the patient has been examined and has been found by qualified medical practitioners to be suffering from a mental disorder. If that is the case, those qualified medical practitioners would be able to make an order for him to be transferred to a psychiatric institution. As the right reverend Prelate said, that is the proper place for him to be. I cannot understand how a provision of this kind
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could have found its way into the Bill. We do not detain those suffering from mental ill health other than in institutions which have been established for that purpose.
The noble and learned Lord shakes his head. I should like to know of any examples counter to that statement. Where else do we place people who are found by two qualified medical practitioners to be mentally ill? That is what the mental health Acts are there for. I believe that this provision is completely contrary to Government's wishes as set out in those Acts.
11.45 p.m.
Lord Hylton: My Lords, I am pleased that the Government have written into the Bill a general presumption in favour of bail, provided that bail is set at reasonable levels. It is widely acknowledged, and has been spoken to by previous speakers, that the exceptions in Clause 40 are far too wide. I am not yet satisfied that the Government's two amendments to the clause bring them back to within reasonable limits. For that reason, I am minded to support the amendment, and I hope that the Government will have further thoughts on the matter.
Lord Falconer of Thoroton: My Lords, no one in this Chamber would disagree with the proposition that children should not be put in prison, nor should those people with mental disorders. The noble Lord, Lord Avebury, noticed that I shook my head when he remarked that surely nobody in this country with a mental disorder should be put anywhere other than in an appropriate institution.
I have terrible news for the noble Lord. It happens every day of the week in the courts, because they say repeatedly to the institutions, "Please provide an appropriate place for someone who should be detained". There are insufficient numbers of such places. In those circumstances, there is no alternative but to detain such people for their own good. The right reverend Prelate has said rightly that children should not be detained in prison, but should we then throw them out on to the street when there are no care places for them? As I understand it, that would be the effect of the amendments.
This is a very bad alternative, but it is the only alternative, and it is reflected in the wording of the Bill. I refer to Clause 40(3) which states:
"The detained person need not be granted bail if the court is satisfied that—…
(c) he is under the age of 18 and, while arrangements ought to be made for his care in the event of his release from detention. no satisfactory arrangements have been made".
Imagine the scene in the magistrates' court where they are determining what to do in their decision to grant bail? They will be ringing the social services department of the local authority. They will not be able to reach anyone by telephone. That is not a criticism of the local authorities; they are overstretched. What then is the right thing to do? Is it,

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as the right reverend Prelate has suggested, to be compelled to tip the child out into the street or do we need powers to put the child somewhere?
The right reverend Prelate shakes his head. We do not want to be in this position, but there appears to be no realistic alternative.
Lord Avebury: My Lords, I believe that we should distinguish between mental disorders that can be treated and those which are incapable of medical treatment. The mental health Acts do make such distinctions. Persons with a disorder which cannot be treated may indeed be kept in prison, but those who are treatable are transferred from prison to mental institutions. Although there may be difficulties in trying to have them transferred—doctors from prisons have written to me frequently on the subject—they are finally transferred to psychiatric institutions. That is the proper place for them. However, the clause as drafted does not make a distinction between mental disorders which can be treated and those which cannot be treated.
Lord Falconer of Thoroton: My Lords, the clause deals with a situation where very frequently the distinction which the noble Lord seeks to draw would be quite undeterminable.
Lord Avebury: My Lords, it is in the Act.
Lord Falconer of Thoroton: My Lords, what we are talking about here is this Bill and whether the person is suffering from a mental disorder and whether his continued detention is necessary in his own interests or for the protection of any other person. This Bill draws no distinction between a mental disorder which can be treated and one which cannot be treated. It simply raises the following question. Is the state of mind of the applicant such that he would be a danger to himself or to others if he were released? Of course it would be better if he could be released into appropriate accommodation for someone suffering from a mental disorder. But what if no such place were available? What then would the court be supposed to do?
Baroness Williams of Crosby: My Lords, does the noble and learned Lord agree that the statement he has just made is a disturbing comment on the policy of this and previous governments? Can he give the House some indication that the Government intend to correct a situation in which those who are mentally ill or those who are young cannot be dealt with outside prison? He will recognise, as we do, that the prisons themselves are extremely overcrowded and cannot deal effectively with such people.
Lord Falconer of Thoroton: My Lords, I wish I could, but I cannot. It would be irresponsible of any government not to make provision in relation to a Bill such as this for the world as we presently find it. Unfortunate as it is, we must make this provision. Noble Lords behind me are mumbling that this is the Report stage. It is in a sense my fault for putting the position in such a stark way.
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Perhaps I may go on and deal with the other amendments. Amendments Nos. 50 and 53 have been tabled for clarification purposes and reflect the outcome of the discussion between Home Office officials and Justice to which I have already referred. Justice was concerned that, as originally drafted, subsection (3)(d) of Clause 40 could be open to misinterpretation by immigration officers. The redrafted clause makes it clear that immigration officers can rely on this exception to the right to bail only if they can neither decide on whether to grant or refuse leave, nor on the curtailment of a leave already granted, nor on temporary admission. Thus, for example, subsection (3)(d) might apply in the case of a person who claims asylum on arrival and fails to give his true identity or where there is no suitable; release address. Such a person could not be given or refused leave and would not, on the information available, be suitable for the grant of temporary admission.
I commend these amendments to the House, but, for the reasons set out above, I am afraid that II cannot support Amendment No. 49.
The Earl of Sandwich: My Lords, the noble and learned Lord began to enlarge the debate, which I am sure we would have all enjoyed. But I had the feeling also that he would like to move on to other amendments. I do not think that the voluntary organisations will be satisfied with his reply. He is perhaps himself not satisfied. So we may bring back the matter at Third Reading. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Falconer of Thoroton Lord Falconer of Thoroton moved Amendment No. 50:
Page 29, line 31, leave out from ("and") to end of line 38 and insert ("there is no relevant decision which the officer is in a position to take; or").
On Question, amendment agreed to.
Lord Falconer of Thoroton Lord Falconer of Thoroton moved Amendment No. 51:
Page 29, line 39, at end insert—
("(3A) The detained person need not be granted bail if the court is satisfied that he is a person to whom section 3(2) of the Special Immigration Appeals Commission Act 1997 (national security cases) applies.").
On Question, amendment agreed to.
Lord Dholakia Lord Dholakia moved Amendment No. 52:
Page 29, line 39, at end insert—
("( ) If the court is satisfied that any of the provisions in subsections (2) or (3) apply, the detained person shall be notified in writing including the reasons for applying exceptions "
The noble Lord said: My Lords, this amendment is grouped with Amendment No. 56. In both cases we are asking for written reasons to be given. The amendment is intended to ensure that detainees refused bail are notified in writing of the reasons for the statutory presumption in favour of bail not applying and the reasons for applying an exception. We are not asking for anything new in this case.

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These are some of the good practices already adopted in criminal proceedings where a tick box applies. We are asking for similar provision to be made in relation to Clause 40.
The amendment provides for the issuing of written reasons for detention specific to the individual, with particular reference to the factors set out in the White Paper as militating against detention. This is probably the most important clause in as much as the reasons ought to be given in writing rather than simply in tick box form.
Written reasons for detention first emerge in response to a request to an immigration officer for temporary admission. The reasons given may be extremely broad and general. An individualised bail summary is produced, often at the door of the court, or at the bail hearing. Very often, it will be the fact that that summary omits, or makes mistakes in describing, certain aspects of the detainee's history, or that the reasons given for detention do not accord with those set out in the Immigration Service guidance on detention that will be of force in persuading the adjudicator that it is appropriate to release. Further information is provided by the reports from the Asylum Rights Campaign and the report by Bail for Immigration Detainees.
Paragraph 12.7 of the White Paper states:
"Taking into account that most people who are detained are held for just a few hours or days, initial reasons will be given by way of a check list similar to that used for bail in a magistrates' court".
We should appreciate clarification that full reasons particular to the individual will be given and in particular that they will be made available for the bail hearing, reflecting current practice in immigration cases. The need for that, in accordance with international standards, has been highlighted by many of those giving evidence to the committee—for example, the UNHCR in its comments. At page 3, the White Paper states:
"Individualised written reasons, as opposed to repetition of generic formulae, for detention should be given to asylum seekers at the time of arrest".
The Medical Foundation for the Care of Victims of Torture states that that is of particular importance to its patients, given the Government's statement, also at page 3, that,
"The Government also recognises the need to exercise particular care in the consideration of mental and physical health when deciding to detain. Evidence of a history of torture should weigh strongly in favour of temporary admission or release whilst an individual's asylum claim is being considered".
If that commitment is to be meaningful, we need to be sure that these issues will be considered and addressed by the Immigration Service and the magistrate or adjudicator. Clearly, that cannot be done if the information is not before them. I beg to move.
The Earl of Sandwich: My Lords, this is an expanded version of the previous amendment moved in Committee as Amendment No. 94 by the noble Viscount, Lord Bridgeman, which I supported. I have
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just read the reply given by the noble and learned Lord, Lord Falconer. It was a very full answer, but not a satisfactory one.
The noble and learned Lord argued that the amendment was unnecessary because the Government had already agreed with it. He said that they had already made provision for written reasons. But he was referring only to the checklist and faithfully following paragraph 12.7 of the White Paper. My concern is for the detainee. Why cannot a detainee be given full reasons, as the noble Lord, Lord Dholakia, said, and as stated previously, particular to the individual, taking account of his age, history and so forth? Surely he has a right to a document stating clearly why he is being held. It is something that he can show to other people and is part of his right to claim asylum. If full written reasons are available for a routine bail hearing within seven days, why not combine it in one and have it all at the same time?
I am sorry, too, that the additional point on torture made by the noble Baroness, Lady Williams, had to be reiterated. That was rather brushed aside by the noble and learned Lord last time.
Baroness Williams of Crosby: My Lords, before the Minister replies, perhaps I may remind him that the Special Standing Committee in another place was given something close to an assurance by the then Minister, Mr Michael O'Brien. He said:
"Where torture has taken place and it is a relevant consideration for bail conditions … it is right for the magistrate to be aware of this". [Official Report, Commons, Special Standing Committee, 27.4.99; col.1057.]
One of our concerns is that we do not quite see how the magistrate could be aware of it without the written declaration of reasons for detention which would enable him to bring about, or ask, for a specific reference to a history of torture. In particular, we had read what Mr O'Brien said to imply that the Government would give favourable consideration to an attempt to indicate that there must be written reasons in that particular group of cases where the presumption in favour of bail being waived involved special reasons.
viscount Bridgeman: My Lords, if there are procedural, administrative reasons why written reasons could not be given in individual cases, would the Government be prepared to consider an expanded check list, more informative to the applicant and more user friendly? It would be without having the obligation to give specific personalised written information in each case.
Midnight
Earl Russell: My Lords, there is a slight problem about that suggestion. If the reasons are not specific to the person, how can any attempt be made to rebut them?
Lord Hylton: My Lords, we have been arguing about reasons in writing for a long time. Certainly they came up under the last Bill on the subject and in view

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of that I am glad that the Conservative Front Bench is now converted to the principle of having reasons in writing.
I would go a little further than what has been expounded so far. It seems to me essential that the reasons should be stated in language understood by the applicant. If that is not possible, at least the reasons in writing in English should be accurately interpreted to the applicant by someone fully conversant with his original language. I support the first amendment and, more importantly, Amendment No. 56.
Lord Falconer of Thoroton: My Lords, Amendment No.:52 would provide that, where the court is satisfied that one of the exceptions to bail applies, the person must be notified in writing of reasons for applying the exceptions concerned. It is not clear whether it is intended that this notification should be provided by the court or the Secretary of State. As the noble Earl, Lord Sandwich, said, it has been made clear on more than one occasion that the Immigration Service intended to introduce written reasons for detention. Since I made that speech, immigration officers have now been issued with instructions requiring that written reasons for detention be issued in every case.
Clearly, there will need to be a revision of those instructions when Part III of the Bill comes into force, to take account of the provisions of Clause 40 which set out the circumstances in which someone may be released on bail.
I am happy to reassure the House that the detainee will have notification in writing of the reasons for his detention and the reason it is believed that exceptions apply in his case. This notification will be given as soon as possible after initial detention and in any event before the time arrives for any routine bail hearing.
If the court decides that bail is not applicable because one or more of the exceptions apply, it will endorse those reasons. Written reasons will be given as soon as possible; at present they will be in the form of a detailed check-list. But that detailed check-list will be tailored to individual circumstances and to relevant exceptions to the right to bail. By "be tailored", I mean., for example, that if it is thought that the applicant would abscond if released—which is what the check-list heading would be—the check-list would indicate why it is thought that he would abscond; that is, it would expand on the reason why it was thought that he would abscond. It could be because he had previously absconded. That picks up the suggestion of the noble Viscount, Lord Bridgeman, and appears to be a sensible way to ensure that people turn their minds to the problem. It does not go so far as to require detailed reasons, but I believe that it is the whole purpose of providing written reasons; namely, a person should know sufficient to understand why he has been detained so that he may appropriately challenge his detention.
In response to the noble Baroness, Lady Williams, I am told that the checklist contains no reference to torture. With no assurance one way or the other, perhaps I may investigate that matter. I can see an
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argument along the lines that the checklist should refer to torture and, if relevant, explain how it has been taken into account. I give absolutely no assurance as to that, but I shall look at the matter and refer to it again at Third Reading.
Amendment No. 56 would require the Secretary of State to give information to the detainee and his representative about the detainee's believed age, torture history, state of health and reasons for detention. Where the person's age is in dispute, there will be close contact between the immigration officer and the detainee about the evidence available to suggest that the person is other than the age claimed. As for reasons for detention, they shall be provided to the detainee in writing as soon as possible following the decision to detain. Therefore, this part of the amendment is unnecessary. The remainder of the information cmvered by the amendment is provided by the detainee himself. Therefore, those parts of the amendment also appear to be unnecessary, again subject to the point that I have made about torture, with no assurances. I am afraid that I am unable to support either amendment.
Lord Dholakia: My Lords, I am grateful to the Minister for that explanation. One of the difficulties faced by those of us who visit detention centres is that detainees do not know precisely why they are there. In many cases the reasons given are not sufficient. I look forward to hearing the results of the Minister's investigation into whether the question of torture is included in the checklist. Would it be possible to provide a sample of the checklist in the Library so that noble Lords can see precisely the kind of information that is made available to detainees? It will be helpful to look at this information and, having studied it in detail, we shall decide whether to return to this matter at Third Reading. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Falconer of Thoroton Lord Falconer of Thoroton moved Amendments Nos. 53 and 54:
Page 29, line 45, at end insert—
("( ) Each of the following is a relevant decision—

(a) a decision as to whether, and if so how, to exercise the powers conferred by paragraph 21 of Schedule 2 to the 1971 Act;

(b) a decision as to whether to grant the person concerned leave to enter, or remain in, the United Kingdom;

(c) a decision as to whether to cancel his leave to enter the United Kingdom under paragraph 2A(7) of that Schedule.").

Page 30, line 2, at end insert—

("( ) If bail is granted under this section, the appropriate court may, on an application by or on behalf of the person released, vary any condition on which it was granted.

( ) If bail is granted under this section, the appropriate court may, on an application by or on behalf of the Secretary of State, vary any condition on which it was granted or impose conditions on it.

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( ) "Appropriate court" means—

(a) if the person released has brought an appeal under the Immigration Acts, the court or other appellate body dealing with his appeal;

(b) in any other case the court which released the person concerned on bail.").

On Question, amendments agreed to.
[Amendments Nos. 54A and 54B not moved.]
Clause 44 [Power of arrest]:
Lord Falconer of Thoroton Lord Falconer of Thoroton moved Amendment No. 55:
Page 33, line 18, leave out ("41") and insert (" 40").
On Question, amendment agreed to.
[Amendments Nos. 55A to 55C not moved.]
Clause 45 [Procedure]:
[Amendment No. 56 not moved.]
Clause 47 [Power to provide for certain bail hearings to be before magistrates]:
Lord Falconer of Thoroton Lord Falconer of Thoroton moved Amendment No. 57:
Leave out Clause 47.
On Question, amendment agreed to.
Lord Falconer of Thoroton Lord Falconer of Thoroton moved Amendment No. 58:
After Clause 47, insert the following new clause—
APPLICATIONS FOR BAIL IN IMMIGRATION CASES
(".—(1) The Secretary of State may by regulations make new provision in relation to applications for bail by persons detained under the 1971 Act.
(2) The regulations may confer a right to be released on bail in prescribed cirumstances.
(3) The regulations may, in particular, make provision—

(a) creating or transferring jurisdiction to hear an application for bail by a person detained under the 1971 Act;

(b) as to the places in which such an application may be held;

(c) as to the procedure to be followed on, or in connection with, such an application;

(d) as to circumstances in which, and conditions (including financial conditions) on which, an applicant may be released on bail;

(e) amending or repealing any enactment so far as it relates to such an application.

(4) The regulations must include provision for securing that an application for bail made by a person who has brought an appeal under any provision of this Act or the Special Immigration Appeals Commission Act 1997 is heard by the appellate authority hearing that appeal.
(5) When exercising his power under subsection (1), the Secretary of State must have regard to the desirability, in relation to applications for bail by persons detained under the 1971 Act, of making provision similar to that which is made by this Part in relation to references to the court under section 38.
(6) Regulations under this section require the approval of the Lord Chancellor.").
On Question, amendment agreed to.
Clause 49 [Grants to voluntary organisations]:
Lord Cope of Berkeley Lord Cope of Berkeley moved Amendment No. 59:
Page 36, line 7, at end insert—
("(3) The Secretary of State shall ensure that advice and assistance under subsection (1) is provided in Northern Ireland.").
The noble Lord said: My Lords, there was a brief discussion in Committee about the availability of advice in Northern Ireland. The noble and learned Lord said on that occasion that advice was made available through Section 53 funding. The advice given is that out of 68 appeal and bail hearings in Belfast in the 12 months from March 1998 until February of this year at only two did the Immigration Advisory Service provide representation. It is the body which receives the funding. However, in more than half the hearings the Northern Ireland Law Centre provided representation out of its own funds.
The reasons are fairly clear. The Northern Ireland Law Centre is on the spot. The Immigration Advisory Service has no representation in Northern Ireland. It can in theory send someone over there. As the figures demonstrate, very occasionally it does. But in practice it is extremely difficult for it to cover the situation from Great Britain. It is made even more difficult by the fact that although the hearings are likely to be in Belfast, anyone detained is detained in the Magilligan Prison which is a further 70 miles to the far side of Northern Ireland, about as far distant as one can get. That is a matter to which we shall return later.
It is important that people are able to receive advice. I hope that the Government will consider either funding the Northern Ireland Law Centre to do so, or ensure that the Immigration Advisory Service is able to provide the advice required. I beg to move.
Lord Avebury: My Lords, I agree with the noble Lord, Lord Cope. I support the amendment. The arithmetic is conclusive. The noble Lord has given your Lordships the figures of the number of cases dealt with by the Northern Ireland Law Centre and the IAS. It is a waste of money to require the IAS to traipse over to Belfast, with the expense of air fares and hotel bills, when the Northern Ireland Law Centre is already on the spot and can easily deal with the matter.
I imagine that the IAS has obtained funding for this purpose, and has undertaken the two cases, so that it can obtain the Section 23 funding. But from the Government's point of view would it not be more economical to transfer whatever sum of money is made available for that purpose to the Northern Ireland Law Centre?
Will the Minister also confirm that it is planned to extend legal aid to cover representation at immigration appeal hearings in Northern Ireland as in the remainder of the United Kingdom?
Baroness Williams of Crosby: My Lords, I received recently a letter from the Lord Chancellor stating that he is looking again at the issue of legal representation where there are difficulties associated with those bodies the Government have already named as being acceptable to them as sources of legal representation.

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We are now considering one of the most outstanding cases. As the noble Lord, Lord Cope, and my noble friend Lord Avebury, said, there is no doubt that the Northern Ireland Law Centre is regarded as giving outstanding advice. I believe that there is no question about its propriety and the respect in which the body is held. In view of that, and of the letter from the Lord Chancellor—I do not expect the Minister to give a definitive reply now—I hope that the noble Lord will draw the Northern Ireland Law Centre to the attention of his noble and learned friend the Lord Chancellor. It is precisely the kind of case where we have argued that there should be assistance for bail hearings somewhat wider than that provided only by those bodies which are well known as major sources of advice but which do not operate very much outside the main centres on the mainland.
Lord Falconer of Thoroton: My Lords, I know that the subject has been of concern to interest groups. We have been advised by the Immigration Advisory Service that the relevant advice and assistance is available. However, I am unable to respond to the figures that the noble Lord, Lord Cope, gave. I can assure the House that particular attention will be given to ensure that representation in relation to bail is available in Northern Ireland. In the light of the concerns expressed, the best that I can do is to offer to write to noble Lords setting out what our investigations reveal and how best to deliver on the assurance I have just given: that particular attention will be given to ensure that representation is available in Northern Ireland in respect of those bail applications.
Lord Cope of Berkeley: My Lords, in the light of that response, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
12.15 a.m.
Lord Phillips of Sudbury Lord Phillips of Sudbury moved Amendment No. 60:
After Clause 49, insert the following new clause—
LEGAL AID
(" . The Lord Chancellor shall, by order, extend the provision of legal aid, to cover bail hearings under the Immigration Acts.").
The noble Lord said: My Lords, Clause 49 provides that the Secretary of State may, with the approval of the Treasury, make grants to any voluntary organisation which provides advice or assistance to detained persons under this part of the Bill. What the amendment seeks to do is to extend legal aid to private practitioners, solicitors and, through them, barristers.
The need for this is widely understood. To be fair to the Government, I must point out that they have extended legal aid to appeals of various kinds under the impending legislation. It is also fair to point out that as recently as the 13th of this month the noble and learned Lord the Lord Chancellor wrote to my noble friend Lady Williams of Crosby to say that the
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department is currently looking at whether to extend legal aid to bail applications and to immigration legislation generally and under this Bill.
According to the letter, the new contracting arrangements for immigration and asylum legal aid work is apparently coming into effect next January, which is not far off. The noble and learned Lord the Lord Chancellor stated that he would be looking at how to ensure that quality representation would be available in conjunction with the question of legal aid for bail applications.
We on these Benches strongly believe that the provisions in the Bill relating to bail are extraordinarily complicated. They extend from Clauses 38 to 41 and Clauses 47 and 48. It is apparent from tonight's debate just what a morass of fine print and detail the bail arrangements constitute. No criticism is implicit in that statement; it is merely an attempt by the Government and those in Opposition to make the best of a complicated world out there.
However, we believe that the liberty of the person who the immigration authorities wish to detain is a fundamental matter. We accept what the noble and learned Lord the Lord Chancellor said in his letter to my noble friend Lady Williams on 1st September. Many of the potential clients are extremely "vulnerable". That is the point; they are extremely vulnerable. Furthermore, many of them will not speak English, will not understand anything of the bail provisions and will be confused and disoriented. If ever there were a case in which the need for legal advice was paramount, it is this, affecting as it does the freedom of the individual concerned.
I hope that the Government, while having due concern for the public purse, will on reflection consider that this is a proper object of legal aid. I beg to move.
Lord Falconer of Thoroton: My Lords, my noble and learned friend the Lord Chancellor has agreed a recommendation by the Legal Aid Board that there should be an extension of funding thorough contracts to cover representation before immigration adjudicators and the Immigration Appeal Tribunal. This is clearly welcome since it will enable continuity of representation throughout a case and the quality of representation generally in immigration cases, which has long been a concern of the Government, will improve.
Officials in the Home Office and the Lord Chancellor's Department have been discussing whether and, if so, how there should be a similar extension to funding through contracts to cover funding for bail hearings. I can now announce that such an extension of funding has been agreed in principle by my noble and learned friend the Lord Chancellor. However, detailed arrangements have yet to be settled.
Of course, even in the absence of legal aid, funding will be available for the purposes of representation at all bail hearings, whether routine or upon application, by virtue of Clauses 49 and 76 of the Bill That representation is currently provided by the Refugee

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Legal Centre and the Immigration Advisory Service. Despite my announcement on legal aid, I am afraid that I am unable to support Amendment No. 60. First, this is not the appropriate place for such an amendment. Extensions to legal aid are dealt with by the Lord Chancellor under separate legislation. Secondly, the exact details of the agreed extension of funding have yet to be settled, so the amendment is premature. I hope that in the light of the encouraging announcement I have made the noble Lord will withdraw his amendment.
Baroness Williams of Crosby: My Lords, I am sure that the noble and learned Lord will recognise that the amendment has served a useful purpose, even if we now withdraw it. I thank him and his noble and learned friend the Lord Chancellor for the step they have taken, which will be extremely welcome. It will enable people to be properly represented at bail hearings and we believe that in the end it will save the Government a great deal of trouble and some money.
Lord Phillips of Sudbury: My Lords, I identify myself with those remarks and beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Schedule 2 [The Immigration Appeal Tribunal]:
Lord Cope of Berkeley Lord Cope of Berkeley moved Amendment No. 60A:
Page 112, line 5, at end insert ("after consultation with the Advocate General for Scotland").
The noble Lord said: My Lords, there is a large group of amendments suggested for discussion on the Marshalled List. Three of them stand in my name and that of my noble friend. All of them concern Scotland; they are all essentially concerned with the same point. They relate to the immigration appeal tribunal. The amendments are in Schedule 2. As the Bill stands, the Lord Chancellor is in charge of appointing the immigration appeal tribunal members. Of course, that provision is also to have jurisdiction in Scotland and the noble and learned Lord the Lord Chancellor is the Lord Chancellor of England. Scotsmen have suggested to me that, in spite of the nationality of the present noble and learned Lord the Lord Chancellor, it would be wise if the Advocate General for Scotland were consulted on the matter by the Lord Chancellor and, indeed, that either the president or the deputy president should be a Scottish lawyer so as to ensure by Amendments Nos. 60A, 61A and 62A that Scottish interests are properly taken into account in setting up the tribunal and the decisions that are made. I beg to move.
Lord Bassam of Brighton: My Lords, I believe that I can give some satisfaction to the noble Lord, Lord Cope in dealing with Amendments Nos. 60A, 61A and 62A, which, as he said, deal essentially with the same point. They concern the consultation arrangements for judicial appointments where Scotland has an interest. Those arrangements are already set out in a concordat
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which has been agreed by the Lord Chancellor's Office and the Scottish administration. The concordat will involve the Lord Advocate as appropriate.
I turn now to the Government's Amendment No. 61. The Lord Chancellor would not wish to apply such a restriction which could inhibit the selection of the president or vice president. However, for any matter to be heard in Scotland or which involves Scottish issues the legal chairman will be selected by the president from among those who have the relevant and appropriate knowledge of Scots law. I trust that that will be of further reassurance to the noble Lord.
I turn now to a package of amendments which, although largely technical, represent additional and necessary changes to the Bill. It has always been the case, and the Bill presently maintains the position, that legally qualified members of the tribunal must hold a seven-year general qualification within the meaning of Section 71 of the Courts and Legal Services Act 1990, including those qualified in Scotland or Northern Ireland. The Bill presently also contains a similar requirement for adjudicators. Since the Lord Chancellor took responsibility for those appointments in 1987, with one exception, only those who meet that requirement are appointed as adjudicators. Amendments Nos. 61 and 63 address the Government's concern that, in setting a strict requirement for legal qualification in this jurisdiction, it may well exclude from future appointment some talented academic and other lawyers—which we should not wish to do—who may not meet the qualification under the Courts and Legal Services Act, but would otherwise be exceptionally well qualified. The growth of the jurisdiction is such that the Government believe it would be unwise to limit eligibility in that way.
That brings me to Amendment No. 62. Our aim has always been to provide a flexible, modern framework for a modern service. The amendment expands the drafting to clarify the extent of the flexibility available to the president, allowing the formation of panels which will meet the needs of particular cases or types of case and the complexity of the appeal.
Another necessary tool to support the Government's efforts to speed up appeals is set out in Amendment No. 67. That amendment enables the Lord Chancellor to make provision in the appeal procedure rules for the circumstances in which an adjudicator's decision may be set aside by the same or another adjudicator. The Bill already includes power for provision to be made for the circumstances in which a decision of the Immigration Appeal Tribunal may be set aside. It will ensure that specified errors can be put right quickly at the right level, saving the unnecessary time and expense involved for cases which would otherwise have to join a queue in another part of the system.
Changes to the appeal procedure rules are being formulated through a programme of consultation with users. A paper setting out progress on that programme is now available to the House. The circumstances in which the set-aside provision is likely to be used has

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therefore not been finalised. However, it is likely that they will include situations in which an administrative mistake comes to light shortly after the adjudicator has made his decision. It is likely also that the provision will be used for cases which have no right of appeal to the tribunal and for which judicial review is the only mechanism available for turning back the clock on an administrative error.
I conclude this package by speaking to Amendments Nos. 301 to 303, 308 and 314. Those are technical amendments which change, repeal or preserve on a transitional basis existing legislative provisions relating to the terms and conditions of service of members of the Immigration Appeal Tribunal and immigration adjudicators, and are consequential on the provisions of the Bill.
Lord Cope of Berkeley: My Lords, in the light of the Minister's helpful response to the Scottish amendments, I beg leave to withdraw Amendment No. 60A.
Amendment, by leave, withdrawn.
Lord Bassam of Brighton Lord Bassam of Brighton moved Amendment No. 61:
Page 112, line 13, at end insert ("; or

(d) he has such legal and other experience as appears to the Lord Chancellor to make him suited for appointment as a legally qualified member").

On Question, amendment agreed to.
[Amendment No. 61A not moved.]
Lord Bassam of Brighton Lord Bassam of Brighton moved Amendment No. 62:
Page 113, leave out lines 3 to 7 and insert—
("( ) A direction under sub-paragraph (3) may—

(a) be given in relation to a specified case or category of case;

(b) provide for the jurisdiction to be exercised by a single member;

(c) require the member exercising the jurisdiction, or a specified number of the members exercising the jurisdiction, to be legally qualified;

(d) be varied at any time by a further direction given by the President.").

On Question, amendment agreed to.
Clause 51 [Adjudicators]:
[Amendment No. 62A not moved.]
Schedule 3 [Adjudicators]:
Lord Bassam of Brighton Lord Bassam of Brighton moved Amendment No. 63:
Page 113, line 33, at end insert ("; or

(d) he has such legal and other experience as appears to the Lord Chancellor to make him suited for appointment as an adjudicator").

The noble Lord said: My Lords, I beg to move.
Baroness Williams of Crosby: My Lords, will the Minister say a little more about the phrase "and other experience"? Does that mean that somebody could be
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appointed as an adjudicator whose experience was other than legal? In other words, would it be possible for a lay person rather than a lawyer to be appointed?
Lord Bassam of Brighton: My Lords, I am advised that they must have legal and other experience. We are looking for people who have legal experience but who also have a broader understanding of the ways of the world and life in general. I commend the amendment to the House.
On Question, amendment agreed to.
12.30 a.m.
Clause 52 [General]:
Lord Falconer of Thoroton Lord Falconer of Thoroton moved Amendment No. 64:
Page 36, line 33, leave out ("under paragraph 22 or 23 of Schedule 4").
The noble and learned Lord said: My Lords, this is a substantial group of amendments which deals with appeals. I shall deal with them as briefly as possible because I do not believe that they are very contentious.
First, I deal with government Amendment No. 64. Under the present Clause 52(6), an appeal is not to be treated as finally determined while a further appeal may be brought to the Immigration Appeal Tribunal or to the Court of Appeal. This amendment extends it to an appeal to the House of Lords.
Amendment No. 305 permits bail to be granted if there is an appeal pending to the House of Lords. Amendment No. 65 is a necessary clarification of paragraph 2 of Schedule 4. That paragraph is intended to apply only where a notice of decision attracting a right of appeal has been served by post and presently deems the notice to have been served if sent to the last known address of the applicant. The service of such a notice is governed by regulations made under the previous paragraph.
The amendment makes it clear that the notice is deemed to have been served if sent to the person to whom it is required to be given who, in some cases, may not be the person to whom the decision relates. The regulations will clarify that further, but where, for example, the applicant is a child represented by a guardian, or a nominated legal representative is handling his application, it is clearly appropriate for service to the third party to constitute good service. It also resolves the problem of when the applicant is of no fixed abode.
Amendment No. 66 is a small addition to paragraph 2 of Schedule 4. It makes clear that where the applicant receives late notice of determination he should thereby lose the right to appeal because the time is passed for appeal. We wish to make it plain on the face of the statute that a person will not be prevented from appealing through postal mishap, although in practice there is a wide discretion in procedural rules to allow late appeals to proceed in such circumstances.
On Amendment No. 68, Schedule 4, paragraph 4(2) states that the appeals procedure rules made by the Lord Chancellor must provide that any appellant is to

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have the right to be legally represented. Some may interpret that as having a universal effect way beyond the jurisdiction that we are discussing here. The intention is that the appellant has a specific right to be represented at any hearing of his appeal. Amendment No. 68 simply adds a rider to that effect.
Amendment No. 72 corrects a small problem with the wording of Schedule 4, paragraph 9(6)(a)(iii), which enables the Secretary of State to certify a claim when it is made after the claimant is aware that a decision has been taken to make a deportation order against him. The words should refer to Clause 5(1) of the 1971 Act, under which the Secretary of State makes deportation orders, rather than Section 3(5) of that Act, which sets out when a person is liable to be deported. Referring to Section 5(1) also ensures that orders made at the recommendation of a court under Section 3(6) of the 1971 Act are also covered.
The power to certify an asylum or human rights claim so that there is, if and only if the adjudicator agrees, no further right to apply for leave to appeal to the tribunal, is set out at paragraph 9 of Schedule 4. However, the power is presently limited to cases where the appellant has appealed under Section 63; that is, on asylum grounds. That would enable claimants to orchestrate their applications so that initial refusal attracted a right of appeal on a non-asylum ground. They would then raise asylum or human rights claims as additional grounds and those claims could not be certified. Therefore, Amendment No. 72 removes the limitation, enabling the Secretary of State to certify an asylum or human rights claim in the circumstances stated, regardless of the category under which that person has initially appealed.
Amendment No. 73 corrects an inadvertent omission. When removal directions are made under Clause 8, those directions should, of course, have no effect when a relevant appeal is pending. Therefore, we are adding Clause 8 directions to the list of types of direction which are subject to suspensive appeal.
Amendment No. 76 simply removes the unnecessarily long description of a "certificate of entitlement" in Clause 54(1)(b). Clause 161(2) applies the 1971 Act definition of the term to this Bill. We are merely removing superfluous words. Amendment No. 77 is a simple matter of using consistent wording throughout Clause 54.
Amendments Nos. 84 and 85 concern the certification of human rights claims made after an appeal has been determined which the claimant has had every opportunity to raise before. In such circumstances any second appeal is to be regarded as finally determined. We considered that the wording,
"the sole purpose of such a claim would be to delay the removal from the United Kingdom",
did not adequately reflect what we wanted to achieve. The effect of these amendments is to amend the justification for certification so that one of the reasons for the claim is to delay removal, and that there is no other legitimate purpose for claiming.
On Amendment No. 87, Clause 67(8) provides for circumstances when a person makes a further application on the same basis as a previous one which has been refused and appealed. We felt that that could usefully be brought into line with Clause 67(2), as amended by Amendments Nos. 84 and 85, so that one purpose of making the further application has to be to delay removal, while there is no other legitimate purpose for making it.
Amendments Nos. 90 and 91 serve the same purpose as Amendments Nos. 84 and 85, but in relation to Clause 70.
Amendments Nos. 97 to 99 mostly have the effect of combining the provisions of Clauses 71 and 72. Amendment No. 96 ensures that Clause 71 takes fully into account the effect of the Court of Appeal decision in Ravichandran. Amendment No. 100 simply corrects an omission from Clause 73.
Amendment No. 290 deals with paragraph 61 of Schedule 13 and amends the 1971 Immigration Act so as to give bail rights to detained appellants under Part IV of this Bill, but reference to Clause 59 (human rights appeals) was inadvertently omitted. Amendment No. 290 makes good the omission so that human rights cases are covered.
Noble Lords would have to be superhuman to take in the great bulk of what I have just gone through. Most of the provisions are purely technical but I understand that noble Lords may wish to read it in Hansard and take in the great majority of it. I beg to move.
Lord Avebury: My Lords, Amendment No. 78 is not technical and I shall be grateful if I can deal with it separately.
On Question, amendment agreed to.
Schedule 4 [Appeals]:
Lord Falconer of Thoroton Lord Falconer of Thoroton moved Amendments Nos. 65 to 68:
Page 115, line 5, leave out from ("If") to ("it"), in line 7, and insert ("a notice given under regulations made under paragraph 1 is sent by first class post, addressed to the person to whom the notice is required to be given,").
Page 115, line 8, at end insert ("unless the contrary is proved").
Page 115, line 31, after ("which") insert—

("( ) a decision of an adjudicator may be set aside by an adjudicator; or

( )")

Page 115, line 39, at end insert ("at any hearing of his appeal").
The noble and learned Lord said: My Lords, with the leave of the House I shall move Amendments Nos. 65 to 68 en bloc. I beg to move.
On Question, amendments agreed to.
Lord Graham of Edmonton Lord Graham of Edmonton moved Amendment No. 69:
Page 116, line 35, leave out paragraph 9.
The noble Lord said: My Lords, the hour is late—it is almost 20 minutes to 1 o'clock—and I do not wish to detain the House longer than necessary. However,

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having been in this place for some time I realise that opportunities arise and one must take them, however late, though I intend to be as brief as possible.
Amendment No. 69 seeks to delete paragraph 9 of Schedule 4, Part I. I realise that that is an enormous request, but it is a peg upon which to hang and to speak briefly about a special circumstance; that is, the plight of women who come into this country—both black and white—who, besides the trauma of seeking asylum, have a special circumstance. I speak having been briefed by the Black Women's Rape Project and Women against Rape.
Rape victims seeking asylum are disadvantaged. Rape and some other sexual violence is not recognised as persecution. I ask the Minister to confirm that the Home Office is seized of the special circumstance and is seeking to bring it into the nexus of consideration for asylum.
In addition, it is widely recognised that women suffering from rape trauma syndrome—a post-traumatic stress disorder—may be even less likely than other torture victims to be able to speak about what happened to them. All rape victims need a safe environment, time and sensitive support before they can speak about their ordeal. The interview with immigration officials forms a vital part of every asylum claim. Yet asylum seekers are expected, on arrival in the UK, to give personal and intensely painful details about the rape and persecution they have suffered.
Interviews with rape victims about matters on which their future safety depends, are often conducted with no privacy; usually by male officials who may be disbelieving and even hostile, and who are reminiscent of the police or military who raped the victim. The women may be speaking in English, which is not their first language, or through interpreters who may also be hostile, and/or careless, or even inadequate.
Such interviews take place when women have arrived exhausted after long, and sometimes dangerous, journeys, often accompanied by their young children. They may have suffered a brutal attack, often in detention, just days before arriving here. Sometimes women have been interviewed with their children and, understandably, have been unable to talk in front of them about what happened. Many have never told anybody about what happened. In those circumstances it is hardly surprising that the full details of the persecution they have suffered do not emerge at the initial interview. That makes their claims even more likely to be certified—that is, fast tracked. The Bill's proposal to remove support from those seeking judicial review, which provides the only avenue of appeal against certification, is likely to result in more women being deported back to rape, torture and even death.
I conclude by referring to the case of Miss A from Lithuania, who was raped by pimps who attempted to force her into prostitution. The Home Office fast tracked her claim and rejected it—ignoring evidence of police collusion with the rapists and reports of widespread police corruption in Lithuania. Without
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last-minute help, Miss A's hearing would have gone ahead with no representation or translation. She was granted full refugee status when the adjudicator accepted that young women constitute a social group vulnerable to rape and other violence to force them to work in the sex industry.
I am well aware that the noble Baroness, Lady Williams, has tabled Amendment No. 82 to ask for special consideration to be given to the plight of women and children. I plead the ca se for not just women but women who have been violated and raped and are in a dreadful state. I would like my noble friend the Minister to give the House and others outside some assurance that those special circumstances can be taken into account. I beg to move.
The Deputy Speaker (Lord Ampthill): My Lords, I remind the House that, if this amendment is agreed, I shall be unable to call Amendments Nos. 70 to 72.
Baroness Williams of Crosby: My Lords, I will briefly address the issue raised by the noble Lord, Lord Graham of Edmonton, who has touched on an issue that has not until recently been adequately recognised. At this late hour, the best thing to do will be to give the House two first-hand experiences of the situation to which the noble Lord has referred.
When I was in Bosnia in 1993, one of the issues that I pursued was the so-called Warburton report. Some Ministers and noble Lords may recall that Dame Anne Warburton was appointed to make a special study of whether at that time rape was being used as a method and weapon of war. She uncovered information which clearly indicated that rape had been adopted as a deliberate policy by the then government of the former Yugoslavia as a way of terrifying women and demoralising the Bosnian people that that government was attempting to repress.
Dame Anne pointed out that little information was available at first because most inquiries were made by men. In that particular culture, few women were willing to talk about their experiences for fear that they would be disgraced in the eyes of their families. Noble Lords who are familiar with the culture to which I am referring will be aware that women who are the victims of rape often feel that they are responsible for their plight and their families often condemn them for it.
When I went to Kosovo last year with my right honourable friend Paddy Ashdown, almost everyone that we met in the villages around Pristina and south towards Prizren were young men carrying rifles who appeared to be village vigilantes or members of the KLA. It was only when I asked as a woman to meet women refugees that I was introduced to them. En many cases, we had been specifically told by our colleagues that no women and children were in the village, only men.
That turned out to be untrue. I was led to rooms hidden at the back of farms, most of them ruined, that harboured up to 50 women and children who had been tucked away out of sight of the Serbian army, and of

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any male who entered the village who was not a member of their family. Even many journalists were quite unaware of the scale of the situation.
When I spoke to those women through a female interpreter, I discovered that many had been raped. They had not admitted that even to their husbands, certainly not to their families—and they were extremely reluctant to talk about the matter except to another woman. I bear out strongly what the noble Lord said. This matter must be handled with extreme sensitivity. The issue is difficult for women to discuss. Women in our country, thank goodness, are much more ready to bring charges of rape and to talk about the situation in which they found themselves. But in many countries from which refugees come rape cannot be spoken about. I strongly agree with the noble Lord, Lord Graham, that it is extremely important that the issue is dealt with by appropriately trained people of the same sex.
12.45 a.m.
Lord Avebury: My Lords, I, too, should like to support the noble Lord, Lord Graham. I should also like to remind your Lordships that, as a result of these horrendous experiences that have taken place in recent years, rape is now fully recognised as a specific war crime, as distinct from other forms of violence against civilians. Indeed, it is a specific offence which is included in the statute of the International Criminal Court. Therefore, it has to be taken into account when applications for asylum are being considered, and that has to be done in a very sensitive manner for the reasons given by the noble Lord, Lord Graham, and by my noble friend.
I also heard from the organisation, Black Women Against Rape, which has written to the noble Lord. In Committee, I asked whether the Government would consult that organisation in developing the gender guidelines which are to be used under this Bill. The answer I received from the noble and learned Lord, although he was not "learned" at that time, was that the guidelines were being developed by the Home Office and that it did not see any need for the consultations that I suggested. Nevertheless, I believe he said that the Home Office would take into consideration the representations that had been made. I am speaking here from memory because I could not find the relevant passage in Hansard.
I wonder whether the Minister who is to reply can tell me and the House what has happened about those gender guidelines. Have they been finalised? If so, can we see them; for example, could a copy be placed in the Library of the House? Further, have the Government reached the position where they can send copies of the gender guidelines to organisations, such as Black Women Against Rape, which have made representations in this respect?
Lord Falconer of Thoroton: My Lords, perhaps I may reply, first, to my noble friend Lord Graham of Edmonton. I state the obvious because I think it is worth stating: there is no doubt that rape, or other
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serious sexual violence, can amount to a human rights violation that could, in turn, amount to persecution, thereby founding a basis for asylum. Of course, rape or sexual violence will not in every case constitute persecution, but it is worth re-emphasising that it can found the basis of an asylum claim. That is stated in our instructions to staff dealing with asylum claims. These are publicly disclosable and have been placed on the Internet.
Perhaps I may also tell my noble friend Lord Graham of Edmonton that the Home Office and the Immigration Service are well aware of the peculiar sensitivities of dealing with such cases. In answer to him and also in answer to the noble Lord, Lord Avebury, I can confirm that we have agreed to incorporate into instructions given to asylum case workers an element of gender guidelines. I can also confirm that we have been discussing with the refugee women's legal group how best that can be done. The group has produced a 33-page booklet on gender guidelines for the determination of asylum claims in the United Kingdom. We have borne that in mind, but I cannot say that we have taken all of it into account.
In reply to the other point made by the noble Lord, Lord Avebury, I can say that our guidelines for staff are publicly disclosable and are available on the Internet. Therefore, they can be seen there. However, I shall be happy to write to the noble Lord with a copy of the guidelines and to place a copy in the Library of the House.
The pivot of this short debate has been how we deal with rape victims and the victims of various other sorts of sexual violence. In fact, the form of my noble friend's amendment would delete the certification procedure, but I do not think that this is the moment to go into that in detail. However, the purpose of the certification procedure is to deal with the extremely straightforward claim which raises no complexity and which is hopeless.
My noble friend's amendment would have the effect of preventing there being such a certification procedure, which would in effect clog up the system yet more with claims which, after proper safeguards had been met, had been certified as, in effect, hopeless. I hope that I have dealt with the points raised by my noble friend.
Lord Graham of Edmonton: My Lords, I am grateful to my noble friend the Minister for indicating clearly that perhaps those outside the House may not be fully informed of these various matters. The last thing I want to do is to urge the Minister to dismantle a piece of the legislation as that would cause only further trouble and delay. I hope that when those outside read what the Minister has said they will be satisfied that they have made their point on behalf of a growing number of people who come to this country in a dreadful mental and physical state and that they will feel that the Government are conscious of this problem and are doing their best in this regard. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Falconer of Thoroton Lord Falconer of Thoroton moved Amendment No. 70:
Page 116, line 35, leave out from ("appeal") to ("is") in line 38 and insert ("under Part IV of this Act by a person who claims that it would be contrary to the Convention for him to be removed from, or to be required to leave, the United Kingdom, if the Secretary of State has certified that, in his opinion, that claim").
On Question, amendment agreed to.
Lord Goodhart Lord Goodhart moved Amendment No. 71:
Page 116, line 44, leave out sub-paragraph (3).
The noble Lord said: My Lords, this amendment proposes to leave out sub-paragraph (3) of paragraph 9 to Schedule 4. The amendment raises issues that are similar to those raised in the debate on Amendments Nos. 29 and 30. I summarise the matter briefly. Article 31 of the refugee convention states that a state cannot impose penalties on refugees because of their illegal entry or presence in the state if they present themselves without delay to the authorities and show good cause for their illegal entry or presence.
It is also clear from the Adimi case that to say that refugees must present themselves without delay does not mean that they must tell the immigration officers when they arrive at the airport, or whatever, that they are seeking asylum. Paragraph 9 to Schedule 4 excludes the right of appeal from an adjudicator to the Immigration Appeal Tribunal in certain circumstances. One of those circumstances dealt with in paragraph 9(3) is that the applicant produced false documents to the immigration officer as valid. By contrast, those who tell the immigration officer that their documents are false and ask at that point for asylum get a right of appeal to the Immigration Appeal Tribunal.
We believe that this distinction is contrary at least to the spirit of Article 31. Of course, it is true that someone whose claim has been turned down by an adjudicator cannot be regarded at that stage as a refugee. But if the possibility of an appeal is still open, he or she would at least potentially be a refugee. The spirit of Article 31 surely requires that there should be no discrimination in the right to seek recognition as a refugee between, on the one hand, those who inform the immigration officer that they are travelling on false documents and immediately ask for asylum and, on the other hand, those who get through immigration control on false documents and then claim asylum without delay.
The Government have recognised that refugees who are illegal entrants should not be convicted of an immigration deception offence if they presented themselves to the authorities without delay and showed good cause for illegal entry. We would object much less to paragraph 9(3) if it was amended to exclude cases where the asylum seekers, having obtained entry on false documents, had presented themselves to the authorities without delay and shown good cause for their illegal entry. The fast-track procedure may be appropriate for someone who illegally enters the United Kingdom, lives here for months or years and claims asylum only when caught, but it is not appropriate for someone who illegally
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enters the United Kingdom and within a few days presents himself or herself to the authorities and says at that point, "I claim asylum". I beg to move.
Lord Falconer of Thoroton: My Lords, this amendment would prevent the certification o f an asylum or human rights claim on the ground that a person has, when asked to do so, either produced no travel document without reasonable explanation, or has produced an invalid document without admitting that it is invalid. I can well understand the arguments which have been expressed many times before (and again eloquently tonight by the noble Lord, Lord Goodhart) that those fleeing persecution may be unable to obtain proper documents and may be too fearful of authority figures to explain their circumstances on arrival.
I must point out that where a person is required by the carrier to produce a passport before boarding and no longer has it on arrival, we can only regard that as a deliberate attempt to deceive and an action that a genuine claimant would not find necessary. It is a very common method of making it difficult for the authorities to establish a person's true identity and history. If a person attempts to gain entry with a falsified passport or one that does not belong to him, that again is a deliberate attempt to deceive. One would expect a person who wishes to claim asylum here to want to tell us of the circumstances of his flight from persecution, not to attempt to deceive from the start.
I would remind your Lordships that those who claim asylum are given every opportunity to put their case and that the Secretary of State's certificate is open to review by the independent adjudicator. With regret, I am unable to help the noble Lord in this respect.
Lord Goodhart: My Lords, I am afraid that I find that answer distinctly unsatisfactory. Although I can understand the point about those who destroy their entry documents, it seems to me that this is inconsistent with the whole thrust of Article 1, which says that people are not to be penalised because they have entered on false documents.
Obviously at this time of night it is not appropriate to take the matter further. We will consider whether to bring the matter back. In the meantime I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Falconer of Thoroton Lord Falconer of Thoroton moved Amendments Nos. 72 to 74:
Page 117, line 19, leave out ("section 3(5) of that Act") and insert ("section 5(1) of the 1971 Act as a result of his liability to deportation").
Page 117, line 39, leave out from ("under") to ("for") and insert ("—

(a) section 8,

(b) Part I of Schedule 2 to the 1971 Act, or

(c) Schedule 3 to that Act,").

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Page 118, line 43, at end insert—
("(2) That does not prevent—

(a) directions for his removal being given during that period;

(b) a deportation order being made against him during that period.

(3) But no such direction or order is to have effect during that period.").
On Question, amendments agreed to.
The Earl of Sandwich The Earl of Sandwich moved Amendment No. 75:
Page 119, line 21, at end insert—
("(4A) This sub-paragraph applies where the appeal is one to which section 71 or section 72 applies and—

(a) the adjudicator considers that the case is one to which a published concession applies; or

(b) he considers that such compassionate circumstances as may be set out in the immigration rules relating to deportation or removal apply in the case.

(4B) Where sub-paragraph (4A) applies, nothing in subparagraph (4) shall prevent an adjudicator allowing an appeal under sub-paragraph (1)(b).
(4C) Where sub-paragraph (4A) applies, the adjudicator may allow the appeal under sub-paragraph (1)(b) notwithstanding that the ground upon which the appeal is allowed did not require to be considered at the time of the decision or action against which the appeal is brought.").
The noble Earl said: My Lords, I dare to move the amendment in this peculiar grouping at this very late hour fortified by the comment of the noble Lord on Amendment No. 63 that legal and other experience is required.
This is a new version of Amendment No. 110A, which I moved at some length in Committee and which was rejected by the Government as too broad. This amendment instead limits the power given to an adjudicator to allow appeals only on grounds which the Secretary of State is already taking into account. It would thus allow an adjudicator to consider published concessions or factors to be considered on a full appeal against deportation.
I am advised that the present wording of the schedule is contrary to the Government's intention to have a one-stop appeal. Others with legal experience and training were to have argued this more cogently than I. The Government will be relieved that the noble and learned Lord, Lord Ackner, is no longer in his place. I am sorry that he is not and that this amendment was not moved earlier.
So much of this discussion is reminding the Government of their own intentions. We need a one-stop appeal which is comprehensive and appropriate, and which would deal with all the additional compassionate grounds and so avoid judicial review. I beg to move.
Lord Cope of Berkeley: My Lords, my name is also attached to the amendment. Amendments Nos. 86 and 89 were originally grouped together. All three amendments have the same underlying purpose, which is to try to reinforce the one-stop approach. It has been put to me that the Bill has drifted away from the Government's intention of having a one-stop adjudication appeals system. In doing so, it not only
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makes life more difficult for those concerned with the process but means that judicial review is much more likely. That is not what any of us are seeking. I think all of us in the Chamber agree with the idea of the one-stop appeal process. All three of the amendments are intended to support that process.
1 a.m.
Lord Phillips of Sudbury: My Lords, on behalf of these Benches I should like to support the amendment, because it is important. Earlier it was made clear that policy issues should be taken into account by adjudicators. Furthermore, an adjudicator should be able to substitute his or her discretion for that of the Secretary of State in such appeals. For example, I refer to a letter written to Justice by the Minister of State at the Home Office, Barbara Roche, MP, on 12th August of this year. She confirms that,
"An adjudicator will be able to substitute his discretion for that of the Secretary of State in appeals involving compassionate factors but only where these are set out in a published concession".
As the noble and learned Lord, Lord Falconer of Thoroton, will know, the concessions are a crucial part of the working of the immigration law. There are all kinds of concessions for children and those who have been living here for a long time. There are four or more key concessions. Clause 70 envisages that additional grounds raised by an appellant in a statement made under Clause 68 can be considered by the adjudicator. An appeal may be allowed by the adjudicator on those grounds. It is therefore inconsistent both with that and with the Government's statements made repeatedly on the right of the adjudicators to exercise discretions that may overturn previous decisions. Further, it is entirely consistent that adjudicators may look at concessions as well as rules.
The amendment is of huge importance and I hope that the Government will see a way to permit it.
Baroness Williams of Crosby: My Lords, given that my name has been put to Amendment No. 89, I should like to add a few words, because it is obvious that it is the intention of the House to consider this group of amendments in one broad debate.
I should like to reiterate the point made by the noble Lord, Lord Cope, and my noble friend Lord Phillips that we are profoundly concerned at the limitations on the one-stop appeals procedure. We strongly supported that process, which would be able to consider all the factors. In effect, there would be a requirement to look back to the facts that were before the Secretary of State at the time of his decision and not consider other factors that might have come into the picture since that time.
I shall not tire the House by listing all the different factors, but these could range from the birth of a child, to a person being affected by a serious or even terminal illness. I should like to draw the Government's attention to the fact that there is a wide range of possible factors that may need to be taken into account.

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Further, I am concerned at the use of the phrase "Secretary of State" in Clause 70 dealing with appeals to be considered. We thought that this matter would be considered by the adjudicator together with all the other issues, and it is unclear why there is a clarification between those issues that can be looked at by art adjudicator and those that cannot.
Finally, I should like to underline the point made by the noble Lord, Lord Cope of Berkeley, that we are concerned that in a number of cases the only resort would be that of judicial review. We understood that the Government were anxious to avoid a series of judicial reviews because that would simply delay the whole process of completing an appeal. I should be grateful to learn why the Government support the clause as it stands rather than accepting the amendments. There is a possibility that that will lead to a full series of objections that will then have to be heard.
Lord Falconer of Thoroton: My Lords, I shall deal first with Amendment No. 75. Subparagraph (4A)(a) taken with sub-paragraph (4B) of this amendment would require an adjudicator to allow an appeal in the case of a published concession as if that concession was in the Immigration Rules. Noble Lords will be aware that we have been considering the question of concessions and we have stated that we shall give adjudicators the power which the amendment proposes. However, we plan to do this by reviewing, updating and rationalising the concessions, and then incorporating them into the Immigration Rules. For that reason, this part of the amendment is unnecessary.
Sub-paragraph (4A)(b) would extend adjudicators' powers to allow cases outside the Immigration Rules and outside published concessions applying considerations which are within the rules relating to deportation and removal. Such a proposal would be unfair to those persons who are to be removed without an in-country right of appeal. Those who lodged a human rights or asylum claim, possibly just to delay their removal, would benefit from an in-country appeal, and with it what amounts to an appeal on compassionate issues. Those who honestly accept that they have no basis for a human rights or asylum claim would have no such appeal. That is patently unfair. I should say that all of those people are able to put their compassionate circumstances to the Secretary of State, and those circumstances will be fairly considered.
Sub-paragraph (4C) would effectively make the adjudicator a first-instance decision-maker. That cannot be right. Moreover, it would mean that adjudicators could allow an appeal on the basis of concessionary and compassionate issues which did not form part of the decision under review, but not pursuant to Immigration Rules which were not relevant at the time.
The purpose of the one-stop system is to encourage applicants and appellants to set out all their reasons for staying here in a timely manner. Relevant additional grounds will be considered by the Secretary of State and will form part of the appeal which is submitted to the adjudicator who may allow the
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appeal according to Clause 71. But in any case, subparagraph (4C) of the proposed amendment operates only in conjunction with sub-paragraph (4A).
There are three consequences to Amendment No. 75: we do not need concessions because we are going to put that provision into the Immigration Rules; allowing the adjudicators to make decisions outside the rules and the concessions would be unfair for the reasons I have indicated and in effect could be dealt with by the Secretary of State's discretion; and sub-paragraph (4C) would effectively make the adjudicator a first-instance decision-maker and would severely undermine the one-stop-shop approach, with which I think everyone agrees.
Perhaps I may deal briefly with Amendments Nos. 86 and 89. Both the amendments would negate the purpose of Clause 70(3), which is to prevent late applications delaying appeals and unnecessarily taking up the limited resources of the appellate authority. When a person enters the one-stop system he will be expressly informed of the consequences of not making any relevant claims within the time period allowed. If he makes an asylum or human rights claim outside that period without any reasonable excuse, that claim cannot be taken seriously unless it is based on circumstances of which he was unaware previously. Where human rights and asylum issues are concerned and a person thinks he has grounds for a claim, he can surely be expected to raise them when given the opportunity to do so and when warned that they may be certified if he does not, so that he will not be able to raise them at his appeal. We do not think that adjudicators should be burdened with the task of deciding whether or not such grounds should be considered. The Secretary of State will, of course, consider the late grounds put forward, as he must consider any claim, because even a late claim without reasonable excuse can be successful if it is justified. For those reasons, we reject Amendments Nos. 75, 86 and 89.
The Earl of Sandwich: My Lords, the Government have presented some reassurances. There is a good deal of feeling on this issue. Unfortunately, the hour is so late that I cannot command all the arguments which would sensibly test the feeling of the House. That is really what is required at this point. I am grateful to the noble and learned Lord for the time he has given in replying to the amendments. We shall come back to the matter at a later stage. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Falconer of Thoroton Lord Falconer of Thoroton moved Amendments Nos. 76 and 77:
Page 37, line 32, leave out from ("entitlement") to end of line 33.
Page 37, line 39, leave out from beginning to ("against") and insert ("Section 53 does not entitle a person to appeal").
On Question, amendments agreed to.
Clause 57 [Deportation orders]:
Lord Avebury Lord Avebury moved Amendment No. 78:
Page 39, line 33, after ("3(5)") insert ("or (6)").
The noble Lord said: My Lords, the purpose of this amendment is to provide a right of appeal to an adjudicator in cases where a decision has been made by the Home Secretary to make a deportation order following the recommendation of a criminal court. Up to now, there has been no right of appeal in respect of those decisions made by the Secretary of State. It has long been the view of practitioners in the field that that position is iniquitous. The right of appeal within the criminal appellate system (by way of appeal against sentence) is no substitute for a merits appeal to the immigration appellate authorities.
Furthermore, within the criminal system such right of appeal is seldom exercised, often because of inadequate advice. The reality for persons subject to such recommendations is that the criminal practitioners are not necessarily experienced in immigration law. Indeed, the experience of the immigration practitioners themselves suggests that many criminal practitioners assume that, since the court has only "recommended" deportation, it is by no means certain that such recommendation will be implemented; worse, such criminal practitioners are also unaware of the consequence that deportation decisions in such circumstances are wholly unappealable. There is a separation between the recommendation made by the court and its implementation by the Secretary of State. Frequently, where a person serves a sentence of imprisonment it is not until the end of the sentence that the Secretary of State implements the decision to deport.
Against that background, we welcomed the statement in the Explanatory Notes that, under the Bill, deportation will be reserved for cases where removal is conducive to the public good or recommended by a court, and that such cases will now go to an adjudicator in the first instance, or to the Special Immigration Appeals Commission. The statement was reaffirmed at meetings held by Home Office officials with the Immigration Law Practitioners Association, which briefed us on this amendment.
That was initially achieved in Special Standing Committee in the Commons when Mr O'Brien moved Amendment No. 573. To cut a long story short, when the Bill came before this House on 19th July, an amendment was moved at a late hour by the noble and learned Lord, Lord Falconer—Amendment No. 111C (col. 794)—to restore the position that these particular recommendations were not appealable. There was no discussion of the amendment. The noble and learned Lord did not explain its purpose and, because it was 11.30 at night, it passed on the nod.
That is slightly—I do not know whether one is permitted to say this—"underhand". In view of the history of the amendment, it is odd that the Minister did not deign to explain what he was up to in moving it. It would be useful to know whether he can produce any reasoning this evening. The Government started out with their hearts and minds in the right place. They continued in that frame of mind until in the Special Standing Committee objections were raised to
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the course that they had chosen. As I say, the result of that deliberation did not emerge until a late hour on 19th July. I am alarmed by that U-turn and the lack of any debate on it in this House. The position of principle adopted in the Explanatory Notes, and confirmed by the original amendment, is the correct position. There was no justification whatsoever for the change. I hope that the Government's original position will now be restored. I beg to move.
Lord Falconer of Thoroton: My Lords, Amendment No. 78 would confer on convicted persons who have been given notice of a decision to deport, following the recommendation of a court, an avenue of appeal through the immigration appeals system.
There is currently no such right of appeal, nor is there any good reason to introduce one. Perhaps I may explain why there is no good reason to introduce one. First, the court which made the deportation order will have taken into consideration the convicted person's circumstances before making the recommendation. Secondly, the Secretary of State will reconsider those circumstances, providing in effect a review of the court's recommendation. Thirdly, the convicted person already has a right of appeal against the sentences through the criminal justice system. Fourthly, the court concerned may be the Court of Appeal. To have a Court of Appeal recommendation reviewed and possibly overturned by an adjudicator or even the tribunal would seem inappropriate. Fifthly, no person who has a ground for making a human rights or asylum claim is disadvantaged because such a claim will, if refused, attract a right of appeal under the appropriate clause of this Bill.
For those five reasons, it is inappropriate to give a right of appeal against a recommendation of the court that somebody be deported after being convicted of a criminal offence.
Lord Avebury: My Lords, I asked the noble Lord—but he did not reply—why the Government thought differently when the Bill was first introduced and why the Government continued to think differently during all the consultations with voluntary organisations that took place right up until the Special Standing Committee. I also asked why he did not volunteer an explanation of the Government's change of mind when he moved the amendment at Committee stage, as I described.
Lord Falconer of Thoroton: My Lords, as to why we included the right of appeal in the first place, we have now been persuaded that it is not a good idea. I have given the reasons for that and it would seem to be the nub of the case. I did not deliberately mislead or seek to put the matter through in an underhand way, as the noble Lord suggests. It was something that was dealt with, with proper notice having been given. I apologise if I did not sufficiently bring the matter to the noble Lord's attention at the time. I hope that he will think

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that I have set out the case sufficiently fully. Whether he accepts that or not is entirely a matter for him but we have set out our reasoning in relation to the matter.
Lord Avebury: My Lords, of course, I have no alternative but to withdraw the amendment and I do so with the greatest reluctance. I shall return to the matter on Third Reading.
Amendment, by leave, withdrawn.
Clause 59 [Acts made unlawful by section 6(1) of the Human Rights Act 1998]:
Lord Falconer of Thoroton Lord Falconer of Thoroton moved Amendments Nos. 79 and 80:
Page 40, line 38, at end insert ("unless he has grounds for bringing an appeal against the decision under the Special Immigration Appeals Commission Act 1997").
Page 41, line 5, at end insert—
("( ) No appeal may be brought under this section by any person in respect of a decision if—

(a) that decision is already the subject of an appeal brought by him under the Special Immigration Appeals Commission Act 1997; and

(b) the appeal under that Act has not been determined.").

On Question, amendments agreed to.
Clause 63 [Claims for asylum]:
Lord Graham of Edmonton Lord Graham of Edmonton moved Amendment No. 81:
Page 42, line 42, at end insert (", which include recognition of rape as persecution and therefore grounds for asylum").
The noble Lord said: My Lords, the purpose of Amendment No. 81 is to make explicit the recognition of rape as persecution and therefore grounds for asylum. It is mostly ignored. I shall explain what I mean by that.
Women making asylum claims are usually disadvantaged because being persecuted as a woman is not explicitly recognised by the United Nations convention on refugees which is binding on governments. Despite national and international legal precedents recognising gender-based persecution, women still face enormous obstacles in getting recognition of their claims. Although rape is officially recognised as a war crime, many women who are raped by police or soldiers are not in officially recognised war zones. With no statutory obligation to consider rape and other sexual violence in the context of the LTN convention, officials ignore or override ways in which particular cases might fit with precedents which have been established. In addition, lawyers representing women do not necessarily know what the precedents are or see how precedents apply to a particular case, further disadvantaging women.
Additionally and crucially, because women may not be able to speak about what has happened and are not asked about rape, full details of the persecution they have suffered may not emerge immediately or for some time. Given the power of the Home Office to fast-track cases which they decide do not fit within the convention, there is even less time for a full case to be made.
Women interviewed have been raped and assaulted by government agents in order to stop or punish their political activities against military dictatorships. The noble Baroness, Lady Williams, and others will recall the situation in Croatia and Kosovo. it is quite clear that in those areas rape on the scale witnessed and validated was organised to a far greater extent than anyone could have expected.
Sexism is also responsible for the fact that rape is still not officially recognised as an instrument of political repression, even though it is the weapon used most commonly against women. Some countries, including Canada and Australia, as well as the United Nations High Commission for Refugees, recognise rape as persecution and therefore as grounds for asylum. For all these reasons, there is an urgent need for a statutory obligation on the Home Office to recognise rape as persecution and, therefore, as grounds for asylum. At the UN Conference on Women in Beijing in 1995, governments agreed that this would be the international policy.
I am informed that Mrs B and her family were political activists opposed to the military dictatorship in Uganda. She was detained and raped after she publicly denounced the soldiers who killed her brother. The Home Office turned down her claim, saying that since the solders who raped her were after her brother the rape and torture that she suffered had not been political persecution. She finally succeeded in winning a judicial review which referred her case back to the immigration tribunal. She was granted refugee status six years after her initial claim. Although one may say that that is anecdotal, the evidence is there to validate it.
I do not believe that this matter can be too strongly impressed on the Minister or the Home Office. They are well aware of the extent of the horror that is visited upon women in these unfortunate situations. If it is within their power to say something about this matter tonight or to indicate that, following discussion with the people affected, they will be able to improve the procedures, I shall be happy subsequently to withdraw the amendment. For the moment, I beg to move.
Lord Falconer of Thoroton: My Lords, this covers ground that we went over to some extent earlier this evening in the course of our proceedings. I repeat that the Government accept that rape or other serious sexual violence could amount to a human rights violation which in turn could amount to persecution. That is stated in our instructions to staff who deal with asylum claims which are publicly disclosable and have been placed on the Internet. There is, therefore, no doubt that rape and all other serious sexual violence may provide the basis for a successful claim for asylum.
It is important to reiterate that women who make claims to that effect need to be handled with considerable sensitivity. We have agreed to update and revise our guidance in order to take better account of the particular needs and concerns of women asylum applicants. We have discussed with the Refugee Women's Legal Group, which has produced its own

923
gender guidelines, how best to do this. Our instructions to staff are not set in stone, and the Secretary of State is willing to discuss their content with outside organisations. We are prepared to be flexible where that is desirable and have already agreed to adopt a number of the recommendations made by the Refugee Women's Legal Group.
While we fully intend to continue to take the views of external organisations into account, a final decision on the content of our guidance will need to be taken when a variety of approaches is advanced. I suggest that the Secretary of State is best placed to make this decision, taking into account the advice of his legal advisers. I very much hope that that provides the reassurance that my noble friend seeks.
Lord Graham of Edmonton: My Lords, I am grateful to the Minister. I hope he agrees that to have this matter twice on the record today is valuable to those outside the House. It provides me with a great deal of reassurance. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Williams of Crosby Baroness Williams of Crosby moved Amendment No. 82:
After Clause 66, insert the following new clause—
ADDITIONAL PROVISIONS FOR ASYLUM DETERMINATION
(" . The Secretary of State shall, in consultation with appropriate organisations, develop and adopt guidelines for dealing appropriately with—

(a) women; and

(b) children

in the determination of asylum claims.").
The noble Baroness said: My Lords, I wish to put on record my thanks to the Minister for his favourable and generous response to the amendment about gender guidelines. He has given a reassuring answer.
One of the persistent problems in dealing with cases of rape as a basis for seeking asylum is the production of conclusive evidence. The use of the words that there is no conclusive evidence in rejection of such claims, as, for example, in the case of Mrs L, brought to his attention by asylum A, indicates how difficult the situation is if there is not a relatively sensitive handling of the case and someone of the same gender to consider the evidence raised by the person seeking asylum on these grounds. I beg to move.
Lord Falconer of Thoroton: My Lords, the point is noted.
Baroness Williams of Crosby: My Lords, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 67 [Limitation on further appeals]:
Lord Bassam of Brighton Lord Bassam of Brighton moved Amendments Nos. 83 to 85:
Page 44, line 22, leave out ("this Part") and insert ("the Special Immigration Appeals Commission Act 1997 or this Act").
924
Page 44, line 32, leave out ("the sole") and insert ("one").
Page 44, line 34, at end insert ("; and

(c) the appellant had no other legitimate purpose for making the claim").

On Question, amendments agreed to.
[Amendment No. 86 not moved.]
Lord Falconer of Thoroton Lord Falconer of Thoroton moved Amendments Nos. 87 and 88:
Page 45, line 5, leave out from ("that") to end of line 7 and insert ("in his opinion—

(a) one purpose of making the application was to delay the removal from the United Kingdom of the appellant or any member of his family; and

(b) the appellant had no other legitimate purpose for making the application.").

Page 45, line 8, leave out ("this Part") and insert ("the Special Immigration Appeals Commission Act 1997 or this Act").
On Question, amendments agreed to.
Clause 70 [Result of failure to comply with section 68]:
[Amendment No. 89 not moved.]
Lord Falconer of Thoroton Lord Falconer of Thoroton moved Amendments Nos. 90 and 91:
Page 47, line 15, leave out ("the claim for asylum was made solely for the purpose of delaying") and insert ("—

(a) one purpose of making the claim for asylum was to delay").

Page 47, line 17, at end insert (";and

(b) the applicant had no other legitimate purpose for making the application.").

On Question, amendments agreed to.
Clause 71 ["One-stop" appeals: asylum claims]:
Lord Falconer of Thoroton Lord Falconer of Thoroton moved Amendments 92 to 98:
Page 47, line 20, at end insert—
("(b) any other appeal against a decision—

(i) to refuse an application for leave to enter or remain in the United Kingdom;

(ii) to vary, or to refuse to vary, any limited leave to enter or remain in the United Kingdom, which has the result mentioned in section 68(2)(a); or

(iii) to make a deportation order against a person under section 5(1) of the 1971 Act as a result of his liability to deportation under section 3(5) of that Act.").

Page 47, leave out lines 21 and 22 and insert—
("(2) Subject to section 66(2), the appellant is to be treated as also appealing on any additional grounds").
Page 47, line 23, leave out ("the appellant") and insert ("he").
Page 47, line 25, leave out ("Part") and insert ("Act").
Page 47, line 28, leave out subsection (3) and insert—
("( ) In considering—

(a) any ground mentioned in section 63, or

(b) any question relating to the appellant's rights under Article 3 of the Human Rights Convention,

the appellate authority may take into account any evidence which it considers to be relevant to the appeal (including evidence about matters arising after the date on which the decision appealed against was taken).

925
( ) In considering any other ground, the appellate authority may take into account only evidence—

(a) which was available to the Secretary of State at the time when the decision appealed against was taken; or

(b) which relates to relevant facts as at that date.").

Page 47, line 32, leave out subsection (4).
Page 47, line 37, at end insert—
("( ) "Appellate authority" means an adjudicator, the Tribunal or the Special Immigration Appeals Commission.").
On Question, amendments agreed to.
Clause 72 ["One-stop" appeals: other cases]:
Lord Falconer of Thoroton Lord Falconer of Thoroton moved Amendment No. 99:
Leave out Clause 72.
On Question, amendment agreed to.
Clause 73 [Transfer of appellate proceedings]:
Lord Falconer of Thoroton Lord Falconer of Thoroton moved Amendment No. 100:
Page 48, line 14, leave out subsection (1) and insert—
("(1) Subsection (2) applies if—

(a) a person who has brought an appeal under this Part has been notified of the Secretary of State's decision to make a deportation order against him; and

(b) as a result of section 58(1), he is not entitled to appeal against that decision under section 57.

(1A) Subsection (2) also applies if—

(a) a person who has brought an appeal under this Part has been notified of the Secretary of State's decision to refuse to revoke a deportation order made against him; and

(b) as a result of section 58(2), he is not entitled to appeal against that refusal under section 57.").

On Question, amendment agreed to.
Clause 75 [EEA nationals]:
Lord Falconer of Thoroton Lord Falconer of Thoroton moved Amendment No. 101:
Page 49, line 13, leave out from ("any") to (" entitlement") in line 14 and insert ("immigration decision in relation to—

(a) an EEA national;

(b) a member of the family of an EEA national;

(c) a member of the family of a United Kingdom national who is neither such a national nor an EEA national.

( ) "Immigration decision" means a decision concerning a person's removal from the United Kingdom or his").
The noble and learned Lord said: My Lords, Amendments Nos. 101 to 105 all apply to Clause 75, which provides for regulations to be made giving discrete rights of appeal against adverse decisions relating to EEA nationals.
Amendment No. 101 has two effects. It adds a further category to those covered by the clause, in order to comply with a European Court of Justice interpretation of Article 52 of the Treaty: we are in effect also required to treat as an EEA national a member of a United Kingdom national's family in certain limited circumstances. The amendment also ensures that decisions covered by the clause include decisions to make a deportation order on public order grounds and decisions to remove a person under Section 15(2) of the EEA Order.
Amendment No. 103 is necessary to define the term "United Kingdom national", which Amendment No. 101 introduced; the definition used is from the British Nationality Act 1981. And Amendment No. 101 also results in a need to prescribe what persons are to be treated as family members of a United Kingdom national: that is what Amendments Nos. 104 and 105 achieve.
Amendment No. 102 is a simple correction. At the end of Clause 75(1)(b) the word "and" should of course be "or". I commend these uncontroversial and necessary amendments to your Lordships.
Amendment 291 rewrites paragraph 3 of Schedule 4 to the 1971 Act. In the case of Rogue v Lieutenant Governor of Jersey, the European Court of Justice held that Protocol M to the EC Treaty could not be interpreted in such a way that a deportation order made by the Jersey authorities against a national of a member state other than the United Kingdom would have the effect of prohibiting that person's entry to and residence in the territory of the United Kingdom for reasons and consideration other than those for which the United Kingdom authorities might otherwise restrict the free movement of persons under Community law.
The effect of this is that paragraph 3(1) of Schedule 4 to the 1971 Act should not apply to an EEA national or the family member of an EEA national unless the Secretary of State otherwise directs. This will mean that an inadvertent breach of the principle in the Rogue case will be less likely since EEA nationals will be excluded from the United Kingdom only where the Secretary of State has considered the case and decided that it is appropriate having regard to the principles of the 1971 Act.
I commend these necessary amendments to your Lordships.
Before I sit down, perhaps I may mention a matter lo which I should have referred previously. I inadvertently told the House that I had spoken to Amendments Nos. 79 and 80 when I had not. They have been passed by your Lordships without my speaking to them. They are uncontroversial and the most appropriate course is for me briefly to explain them. If there are any problems we will try to unscramble them.
The purpose of these amendments is first to repair a gap in the scheme for dealing with appeals to the Special Immigration Appeals Commission and, secondly, to ensure that the general appeals provisions are also reflected, where appropriate, in the provision for appeals to the commission.
The general scheme of the Bill is that, wherever possible, if a person has an appeal before the Special Immigration Appeals Commission, or has grounds to appeal to the commission, the commission should be solely responsible for considering all appealable aspects of the case. That, of course, is consistent with the wider aim of our appeals reform.
As the Bill stands, however, there is a gap in the scheme. In theory an applicant can appeal to the adjudicator on human rights grounds in parallel to an

927
appeal to the Special Immigration Appeals Commission. Since, under the Bill, the commission will have jurisdiction to consider human rights issues, this would just be a source of confusion and a waste of time and money. Amendments Nos. 79 and 80 put this right.
The amendments to Clause 67 are linked. They apply to cases in which an appeal has been heard by the SIAC the same restrictions on further appeals as are applied by the Bill to human rights appeals generally. Amendment No. 98 to Clause 71 ensures that SIAC appeals are fully covered by the one stop scheme. Likewise, Amendments Nos. 285 and 307 to Schedule 13 ensure that changes in the Bill to the general appeals provision are carried through to the SIAC legislation.
These are sensible amendments. Two have already been passed and the others I shall commend to the House when we reach them on Wednesday.
1.30 a.m.
Lord Avebury: My Lords, will the Minister explain why it is not possible to specify who are the members of the family? Why does that have to be dealt with by means of regulation? Surely, one knows in advance who are members of the family.
Lord Falconer of Thoroton: My Lords, the amendments refer to a member of the family. They contain no definition, but they contain no provision for regulations to define it. I assume that if I look through the Act I shall find a definition for the words "a member of the family". I am not sure what point the
928
noble Lord is making. Where in the amendment does it state that the matter will be dealt with by another instrument?
Lord Avebury: My Lords, it does not. Clause 75(12) states:
"The regulations may prescribe the persons who, in relation to an EEA national, are the members of his family".
I was asking the Minister why we do not know who these members are and why we have to prescribe them by regulations.
Lord Falconer of Thoroton: My Lords, perhaps I may write to the noble Lord in relation to that. I apologise for not having answered.
On Question, amendment agreed to.
Lord Falconer of Thoroton Lord Falconer of Thoroton moved Amendments Nos. 102 to 105:
Page 49, line 16, leave out ("and") and insert ("or").
Page 49, line 41, at end insert—
("( ) "United Kingdom national" means a person who falls to be treated as a national of the United Kingdom for the purposes of the Community Treaties.").
Page 50, line 9, leave out ("in relation to an EEA national") and insert ("for the purposes of this section").
Page 50, line 10, leave out ("his") and insert ("a person's").
On Question, amendments agreed to.
Lord Bach: My Lords, I beg to move that consideration on Report be now adjourned.
Moved accordingly, and, on Question, Motion agreed to.
House adjourned at twenty-five minutes before two o'clock.

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