Sitting of 10 October 2002

Preamble
The House met at three of the clock: The CHAIRMAN OF COMMITTEES on the Woolsack.
Prayers—Read by the Lord Bishop of Portsmouth.

Developing Countries: Human Rights
Lord Astor of Hever Lord Astor of Hever asked Her Majesty's Government:
What agreements were reached at the world summit in Johannesburg to improve standards in governance and human rights in the developing world.
The Parliamentary Under-Secretary of State, Foreign and Commonwealth Office (Baroness Amos): My Lords, the Plan of Implementation agreed at the World Summit on Sustainable Development re-affirmed existing agreements on human rights and stressed the importance of good governance in all countries. The Johannesburg summit recognised that good governance within each country and at the international level is essential for sustainable development. It also stressed the importance of peace, stability and respect for human rights and fundamental freedoms.
Lord Astor of Hever: My Lords, I am grateful to the Minister for that reply. Do the Government accept that the framework for promoting good governance has been seriously weakened by Libya's appointment to chair the UN Commission on Human Rights? Did the Government use the opportunity of the world summit to protest against that bizarre and worrying decision?
Baroness Amos: My Lords, noble Lords will be aware that the UN Commission on Human Rights is made up of 54 member states. Votes take place each year so it is difficult for any one country or any group of countries to gain a sense of who will be voted on to the commission. The noble Lord will know that serious lobbying takes place. There is no doubt that the human rights mechanisms of the UN have been weakened by that process. We did not protest at WSSD but we have made our views on human rights and on good governance in Africa absolutely clear. I am sure that the Libyans understand our views.
Lord Judd: My Lords, does my noble friend accept that in the context of Johannesburg there is widespread respect for the commitment and leadership that she and her colleagues have shown? Does she accept that in relation to what she said about good governance internationally, it is essential that we do not fall into the trap of saying, "Do as we say", as distinct from, "Do as we do"? Does she also accept that there is a major issue of credibility in the
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environmental sphere, as the lion's share of pollution is caused by the industrialised, developed world, and that in that context it is absolutely essential to persuade our American friends to come on board in a collective policy?
Baroness Amos: My Lords, I thank my noble friend for his kind remarks. Those who represented the UK Government at the summit did so extremely well. While the results were not all that we would have hoped for, they were certainly much better than we had anticipated following the meeting held in Bali.
I agree that credibility is essential, and that is why the commitment on implementation that came out of WSSD is so important. Noble Lords will be aware that we have been in discussion with our colleagues in the United States. We do not share their concerns, for example, about the Kyoto Protocol. It is important that the United States comes on board in respect of this agenda and we shall continue to do all that we can to work with our American colleagues to enable that to happen.
Lord Shutt of Greetland: My Lords, does the Minister agree that the agreements reached at the world summit need to stick? There is a plan of implementation and it reads like a huge set of exhortations and aspirations. To be certain of delivery, can the Minister indicate how the plan is to be audited, including improvements to governance and human rights?
Baroness Amos: My Lords, I totally agree with the noble Lord that it is important that the commitments stick. That is why the commitment to implementation that came out of WSSD is so important. There will be different mechanisms in terms of monitoring the commitments that have been made. The noble Lord will be aware that the UN has a key role to play, not just through the UN environment programme, but also through the UN Development Programme because the key point about the WSSD summit was that it brought together environment, development and other issues in a concrete way for the first time.

Zimbabwe
3.11 p.m.
Lord Blaker Lord Blaker asked Her Majesty's Government:
What is their present policy towards Zimbabwe.
Baroness Amos: My Lords, we want to see a stable, prosperous and democratic Zimbabwe. There is a strong international consensus behind that. We shall continue to press for regional efforts to restore good governance and the rule of law to Zimbabwe. Our condemnation of the Mugabe regime's policies will remain unequivocal but we shall continue to help those Zimbabweans suffering as a result of economic mismanagement and contempt for the rule of law.
Lord Blaker: My Lords, am I right in believing that member countries of NePAD and the new African

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Union claim that good governance, human rights and the rule of law in African countries are matters for African countries alone but appear to be taking no steps to deal with one of the worst humanitarian catastrophes of the world, that in Zimbabwe? If that situation continues, is there not a danger that NePAD and the African Union will lose all credibility? Will Her Majesty's Government propose to the G8 countries that they suspend aid to African countries until they have taken steps to deal with the restoration of human rights and the rule of law in Zimbabwe?
Baroness Amos: My Lords, the noble Lord is quite right. Central to the principles within NePAD, and within the African Union, are principles associated with human rights and good governance. They are core principles for the NePAD initiatives and for the African Union. I do not think that either organisation stresses that these are for African countries alone. What is important is for there to be a stress within the African Union and within NePAD for African leadership and a key African role in sorting out governance problems on the continent.
We are extremely concerned, as the noble Lord knows, about the situation in Zimbabwe. The noble Lord is quite right. There is a significant humanitarian crisis. As many as 7 million people—more than half the population—will need food aid by the end of the year. So it is important that we continue to work with our African partners and ensure that they understand the magnitude of this crisis.
At the recent SADC meeting Mugabe was scheduled to become the vice-chairman. That did not happen. I was pleased that the President of Tanzania was elected instead.
Lord Watson of Richmond: My Lords, on 22nd July the Minister admitted in this House that only £76,000 worth of assets of Mr Mugabe and his colleagues had been frozen by that stage. Can the Minister tell us whether there has been any progress on that paltry sum? Given the ineffectiveness of that sum as any kind of deterrent to Mr Mugabe, can the Minister say how she and Her Majesty's Government react to the call of the leader of the movement for freedom in Zimbabwe that the moment has now come for United Nations' intervention to be actively considered?
Baroness Amos: My Lords, there has been a slight increase in that sum. It now rests at some £120,000. As to the issue about the asset freeze, we are doing all we can to identify where those assets are. Noble Lords will know that if individuals and institutions want to move money around and to hide that money it is very difficult to find it. But we shall continue to put pressure where we can.
I think that the noble Lord must have been talking about the Movement for Democratic Change led by Morgan Tsvangirai. It is important for us to recognise and remember that the UN is already involved. The
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UN is trying to cope, through the World Food Programme, with the significant humanitarian crisis in Zimbabwe.
The United Nations Development Programmes (UNDPs) has been involved in the land reform process. It ruled earlier this year that that process was unsustainable.
Kofi Annan, the UN Secretary-General, has made some very strong comments already about the situation in Zimbabwe. We shall continue to engage with the UN on these matters.
Baroness Rawlings: My Lords, following the Minister's first Answer to my noble friend Lord Astor on the first Question, and in the light of the Prime Minister's comments last year that he would make Africa a major personal priority and a priority for the Labour Party, can the Minister tell us why he did not raise the issue of Zimbabwe in Johannesburg?
Baroness Amos: My Lords, I presume the noble Baroness refers to my right honourable friend's statement to the World Summit on Sustainable Development. In Johannesburg my right honourable friend had a number of meetings in the margins of the summit meeting at which he discussed a range of issues affecting Africa.
We attended the World Summit on Sustainable Development because we had important things to say about sustainable development and about development and environmental issues.. This was a major UN conference which brought together what had been discussed in Doha, Monterrey and Kananaskis. For us to focus on one country when we had significant things to say about the sustainable development agenda would have reflected very poorly on this country.
Lord Davies of Coity: My Lords, can my noble friend the Minister advise the House how we can expect to solve the economic crisis facing Zimbabwe when the very person who is causing it is still in power?
Baroness Amos: My Lords, my noble friend is absolutely right. Zimbabwe is not a colony of the United Kingdom. It is a sovereign territory. What the Mugabe regime is doing is ruining a country, ruining an economy and paying absolutely no heed to what is happening to its own people. We and the United States are having to put money in and feed people when their government are paying no regard to them. So it is absolutely critical that the Mugabe regime wakes up and recognises what it is doing to its own country and that those countries around Zimbabwe, which are suffering from that economic mismanagement, also play a role.
Lord Mackie of Benshie: My Lords, can the Minister say what the Government are doing about Mugabe's successful use of the old colonial bogey? It is receiving a certain amount of support in neighbouring African

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countries. Are we putting the facts firmly before these countries or are we leaving it for them to assume that Mugabe is right?
Baroness Amos: My Lords, we put the facts before those countries at every conceivable opportunity. I talk about Zimbabwe with my opposite numbers in African countries just about every time I meet them—be that here in the United Kingdom or when I visit their countries. I was recently in New York to attend the United Nations General Assembly and had several meetings with African Foreign Ministers. I have been on talk radio in South Africa discussing the Government's policy on land reform. We leave no stone unturned. However, it is important that we remember that there is a colonial legacy, and a great deal of emotion and resentment connected with it, that is difficult for us to overcome.
Lord Elton: My Lords, can the Minister confirm that the Mugabe regime is preventing the distribution of food aid in areas populated by those who do not support him politically? Is that method of using starvation for political ends something best dealt with by the United Nations, in view of what the Minister said about colonialism? What steps are we taking toward such intervention?
Baroness Amos: My Lords, there are two types of food relief in Zimbabwe. The first is purchased and distributed through ZANU-PF; we and the international community have no control over that. There are credible reports that it is being used as a political weapon. In the recent district council elections, it was reported that people who voted for ZANU-PF were given food.
There is also the international relief effort, to which we have contributed £32 million, which is separate from that. It is supplied directly to the needy on the ground by UN agencies such as the World Food Programme or non-governmental organisations. It does not go through ZANU-PF or state structures. We investigate any allegation that our aid is being diverted. James Morris, head of the World Food Programme, said in July that the UN would be out of the country in a second if it encountered difficulties in delivering food to starving people.

Armed Forces: Non-natural Deaths
3.22 p.m.
Lord Ashley of Stoke Lord Ashley of Stoke asked Her Majesty's Government:
Whether they will take steps to ensure an independent investigation into all non-natural deaths in the Armed Forces.
Baroness Crawley: My Lords, regulations are already in place to ensure that all non-natural deaths of Armed Forces personnel in the United Kingdom are independently investigated. As with the wider civilian
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population, primacy for such investigations lies with the local civilian police force. Cause of death can be concluded only by Her Majesty's Coroner, or in Scotland by the Procurator Fiscal.
Where death occurs overseas, the military authorities act in accordance with local legal requirements. Should the body be repatriated to the United Kingdom, it would become subject to the jurisdiction of Her Majesty's Coroner or the Procurator Fiscal.
Lord Ashley of Stoke: My Lords, I thank my noble friend for her response but, notwithstanding what she said, is she aware that recent events have seriously jeopardised the reputation of the Army for scrutinising unusual and unexpected deaths? Regarding recent cases, the police have said that in no case were investigations carried out comprehensively or properly. They added that they should not have accepted what the Army told them.
Is my noble friend further aware that the bereaved families are angry and resentful at what they see as cover-ups? The best way to resolve such cases is, rather than the rigmarole that she described, to have a proper, independent inquiry. We need someone above board who cannot be challenged, who is with neither the Army nor the police and who can carry out a proper, independent investigation in all cases.
Baroness Crawley: My Lords, perhaps I may begin by expressing my sincere condolences and those of the whole House to the families of all those who have lost loved ones. It must be a difficult time for all of them. I shall be as helpful as possible to my noble friend in answering his supplementary question, but I must say at the outset that I am unable to comment on specific circumstances surrounding any of the deaths at Deepcut while the Surrey police investigations remain ongoing.
Of course, the Army continues to co-operate fully with the police in the course of their inquiries. It has for some time been laid down in Queen's Regulations that primacy in all non-natural deaths in such circumstances lies with the civilian police force. That has been and continues to be the case. The Surrey police took the decision to reopen the case of Private Gray on 30th April following an internal review of their initial investigation. The investigation into the death of Private Collinson was still on-going at that time. The Surrey police took the decision to investigate the deaths of Privates Benton and James following discussion with their families and a subsequent paper review of both cases.
I dispute my noble friend's allegation that there has been any kind of cover-up. The Army are working fully with the police in this matter and will continue to do so.
Lord Ashley of Stoke: My Lords, I said that it was the families, not me, who said it was a cover-up.
Baroness Crawley: My Lords, I appreciate that the family are concerned and I understand that they have

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called for a public inquiry. I must tell the House that the Government do not believe that a public inquiry would be appropriate while the investigation by the local police force continues. I am sure that my noble friend knows, but the House may want to know, that the House of Commons Defence Select Committee will be holding an inquiry. In 1998, the Government introduced a system whereby boards of inquiry by the Army are held and one will be held in this case.
Lord Redesdale: My Lords, will the Ministry of Defence undertake a review of its policy on bullying, because there is a large spate of suicides? Something is going seriously wrong. If bullying is not the cause of those suicides, should not the Ministry of Defence also undertake a review of what emotional support it gives to recruits, because the culture shock of basic training is clearly a considerable cause of stress?
Baroness Crawley: My Lords, bullying and harassment of any kind will not be tolerated in the Army or any of the forces. Any such allegations are always thoroughly investigated and immediate disciplinary action taken against those involved if they are proven. On the wider issue raised by the noble Lord, new improved training initiatives have been taken since 1998. They ensure that instructors who look after young people at a vulnerable time of their lives are given improved training in how to support them, know about equal opportunities and understand the vulnerable nature of recruits.
Earl Attlee: My Lords, I remind the House of my interest. Does the Minister agree that the current Surrey police inquiry is the correct approach and will reveal whether further inquiries are required?
Baroness Crawley: My Lords, I do believe that.
Lord Trefgarne: My Lords, is it not the case that police inquiries into such matters—I have some experience of them—begin only when the facts are reported to them by the military authorities? Is the Minister satisfied that, in the cases that have attracted public attention recently, the military authorities were sufficiently expeditious in reporting the matters to the police?
Baroness Crawley: My Lords, I have every confidence that, in those cases, the military authorities followed the procedure. I cannot go into specific circumstances because of the ongoing investigation.

Iran: Foreign Secretary's Visit
3.30 p.m.
Lord Avebury Lord Avebury asked Her Majesty's Government:
Whom the Foreign Secretary is meeting in Tehran, and what subjects he is discussing with them.
Baroness Amos: My Lords, the Foreign Secretary met President Khatami, the Foreign Minister
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Dr Kharrazi and Mr Hassan Rouhani, the secretary of the Iranian Supreme National Security Council. Discussion focused on regional issues, including the threat posed by Iraq's weapons of mass destruction, which have, in the past, been used against Iran.
Lord Avebury: My Lords, I hope that the Foreign Secretary managed to get a word in edgeways, given the tirade to which, according to various reports of the meeting, he was subjected. Did he raise the possibility, which has been mooted, of a British-Iranian human rights dialogue? Such a dialogue would encompass all the concerns that we have, from time to time, expressed, including, in particular, the crackdown on the free media and the detention and torture of dissidents, such as Manouchehr Mohammadi, the student leader, who was taken into custody and severely mistreated, following the disturbances at the university in 1999.
Did the Foreign Secretary also take up with his counterparts the essential condition that the Iranians should admit the instruments of the Commission on Human Rights, so that they could investigate violations of human rights and report back to the international community? There is a particular need for that to be done at the moment, considering that the human rights commission has discontinued the work of the special rapporteur on Iran.
Baroness Amos: My Lords, the noble Lord, Lord Avebury, will be aware that we raise human rights issues in all our engagements with Iran. There are proposals for an EU-Iran human rights dialogue, and it is likely that that will go ahead. There had been concerns that pre-conditions would be asked for, but no pre-conditions would be made on either side. For example, it would not be ruled out that a resolution might be put before the UN General Assembly.
The Commission on Human Rights is separate from the UN General Assembly. The noble Lord will know that the resolution on Iran was narrowly lost, which is why the rapporteur on Iran was lost. We will have to return to that matter at the next meeting of the commission. Even if a resolution is proposed and passed at the General Assembly, that is not linked with having a rapporteur going into the country.
Baroness Rawlings: My Lords, we welcome the appointment of the new British ambassador to Iran. Iran could be an important ally in the coalition against Saddam's terror and his programme for weapons of mass destruction. At this sensitive time, could the Minister tell the House when the new ambassador will take up his position?
Baroness Amos: My Lords, he accompanied my right honourable friend the Foreign Secretary on his recent visit. He will take up his appointment early next year.
Lord Corbett of Castle Vale: My Lords, I declare an interest as chairman of the British Committee on Iran Freedom. Can the Minister say more about the

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attitude of the United Kingdom Government to the tabling of a resolution at the United Nations condemning the mullahs' regime in Tehran for the brutal acts and the human rights abuses committed against the population? Five young men were hanged in public from the end of cranes the day before a delegation from the European Union arrived in Tehran.
Will the Minister assure the House that, in yesterday's discussions, there was no question of the United Kingdom's biting its lip over those human rights abuses, in exchange for any form of support from that regime for possible action in Iraq?
Baroness Amos: My Lords, I made it clear that, in our discussions with the Iranians, we raised the issue of human rights. We recognise that there has been a recent deterioration in the human rights situation in Iran. As we know, that is partly the result of the political stand-off involving the reformers and their conservative opponents.
We will continue our policy of constructive dialogue with Iran. There have been areas in which Iran has been helpful, but that does not mean that we do not put across tough messages—not just about human rights, but about the Middle East peace process—when we need to do it.
Lord Alton of Liverpool: My Lords, has the Minister seen the information that was published by the Iranian authorities showing that 292 people have already been executed this year in Iran? That is twice as many as the figure for the same period last year. The Minister is right to recognise that there has been a deterioration in the human rights record of that regime. We must keep such things at the heart of our dealings with Iraq.
Will the Minister also tell us why we have come to a different conclusion about the way in which we should deal with the regime from that reached by the American State Department?
Baroness Amos: My Lords, we have a different analysis of the way to encourage change for the better in Iran. Our view on that differs from that of the Americans. We are not reluctant to say that. As noble Lords know, we share many of the United States' concerns about Iran's support for terrorist groups and the reports of its development of weapons of mass destruction.
We will continue to raise those issues. I do not know how I can say that in any other way to the House. Human rights abuses and the support that the Iranian regime gives to certain organisations are the substance of robust discussions between this country and Iran.
Lord Wallace of Saltaire: My Lords—
Baroness Ramsay of Cartvale: My Lords—
The Earl of Onslow: My Lords—
The Lord Privy Seal (Lord Williams of Mostyn): My Lords, it is the turn of the Liberal Democrats.
Lord Wallace of Saltaire: My Lords, the Minister must be aware of conflicting reports about Iran's
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policy towards Afghanistan, both towards Al'Qaeda fugitives and towards the western areas in Afghanistan around Herat. Can the Government enlighten us as to what Iranian policy is?
Baroness Amos: My Lords, it is not for me to enlighten the House as to what Iranian policy is. I am aware that there have been conflicting reports, but we have had good co-operation with Iran on several regional issues, including the transitional government in Afghanistan. That is one of the areas where we have been working with the Iranians over a period of several months.

Enterprise Bill
3.37 p.m.
Lord McIntosh of Haringey: My Lords, I beg to move the Motion standing in the name of my noble friend Lord Sainsbury of Turville on the Order Paper.
Moved, That the amendments for the Report stage be marshalled and considered in the following order:

Clause 1,

Schedule 1,

Clauses 2 to 12,

Schedule 2,

Clause 13,

Schedule 3,

Clauses 14 and 15,

Schedule 4,

Clauses 16 to 20,

Schedule 5,

Clauses 21 to 67,

Schedule 6,

Clauses 68 to 82,

Schedule 7,

Clause 83,

Schedule 8,

Clauses 84 to 87.

Schedule 10,

Clauses 88 to 163,

Schedule 9,

Clauses 164 to 180,

Schedule 11,

Clauses 181 and 182,

Schedule 12,

Clauses 183 to 205,

Schedule 13,

Clauses 206 to 233,

Schedule 14,

Clauses 234 to 236,

Schedule 15,

Clauses 237 to 243,

Schedules 16 and 17,

Clauses 244 and 245,

Schedule 18,

Clause 246 to 251,

Schedule 19,

Clause 252,

Schedules 20 and 21,

Clauses 253 to 259,

Schedule 22,

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Clauses 260 to 264,

Schedule 23,

Clauses 265 to 271,

Schedule 24,

Clauses 272 and 273,

Schedules 25 and 26,

Clauses 274 to 276.—(Lord McIntosh of Haringey.)

On Question, Motion agreed to.

Nationality, Immigration and Asylum Bill
3.38 p.m.
The Parliamentary Under-Secretary of State, Home Office (Lord Filkin): My Lords, I beg to move the Motion standing in my name on the Order Paper.
The effect of the Motion is that, when we have dealt tonight with Amendment No. 78, which is the last amendment to Part 7, we will stop. The Bill will be reprinted tomorrow. The new government amendments to Parts 3, 5 and 8 will be retabled, and amendments in response to them will, no doubt, be tabled. Next Thursday, 17th October, we will go back into Committee on Parts 3, 5 and 8. The Bill will be reprinted again the following day, and further amendments may be tabled to Parts 3, 5 and 8.
The usual channels have agreed that Report stage for Parts 3, 5 and 8 will take place on Thursday 24th October. If there are procedural questions about these arrangements I suggest that they should be directed to the Clerks. I beg to move.
Moved, That, when consideration on Report of Parts 1,2,4,6 and 7 of the Bill has been completed, the Bill be recommitted to a Committee of the Whole House in respect of Parts 3, 5 and 8.—(Lord Filkin.)
Earl Ferrers: My Lords, I must ask the Minister whether that is correct. Should not questions of procedure be addressed to the Front Benches, as opposed to the Clerks?
Lord Filkin: My Lords, I am sure that the noble Earl is, as so often, technically correct. I sought to ensure that we had the quickest way of getting an accurate and detailed answer.
Baroness Anelay of St Johns: My Lords, I thank the Minister for moving the Motion. It shows that the Government listened to the concerns that were expressed in all parts of the House on Monday. I am glad that the Government have decided to do the right thing.
I shall not go into detailed questions—I am invited to direct them elsewhere—but I would like clarification from the Minister on one matter. He referred to the new government amendments being retabled. Before my arrival in the Chamber about 10 minutes ago, I went via the Printed Paper Office and
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discovered that it has no knowledge of the tabling in the first instance of the new government clauses. Will the Minister assist us as to when they will appear?
Lord Filkin: My Lords, my understanding is that all of the substantial government amendments were tabled yesterday. I will double check that. What I was reading out in terms of my speaking note was the process for retabling them because they have gone through a different process of being recommitted. I am advised that they are in the Marshalled List.
Lord Tebbit: My Lords, could the practice of turning questions from Ministers to the Clerks in order to obtain accurate answers be more widely practised?
Lord Filkin: My Lords, I think that is excellent advice.
On Question, Motion agreed to.

Nationality, Immigration and Asylum Bill
3.41 p.m.
Lord Filkin: My Lords, I beg to move that the Bill be now further considered on Report.
Moved, That the Bill be further considered on Report.—(Lord Filkin.)
On Question, Motion agreed to.
Clause 31 [Advisory Groups]:
Baroness Anelay of St Johns Baroness Anelay of St Johns moved Amendment No. 28:
Page 16, line 26, at end insert "including the duty to monitor the legal rights of residents and the laws regarding child protection"
The noble Baroness said: My Lords, in moving Amendment No. 28, I shall speak also to Amendments Nos. 29, 30 and 32.
In Committee, I welcomed the amendments tabled by the Government to set up advisory groups and a monitor. They introduce a limited form of accountability for the running of accommodation centres, which was certainly welcome.
However, I did say that I was concerned that this system of oversight might lack some teeth and that I would consult the expert bodies and consider whether we should do some more probing on the Government's intentions on Report. These amendments have been tabled to reflect some of the concerns expressed to me by organisations such as the UNHCR, the Refugee Children's Consortium and the Immigration Advisory Service over the summer.
I was pleased to hear the Minister yesterday on Report make a clear commitment that there will be a child protection policy in place in the accommodation centres. It was important to have that so clearly on the record. We need to have a clear indication of what the role of the advisory groups will be and what their remit will be in monitoring items such as the child protection policy. Will the advisory groups be able to monitor the

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legal rights of residents of the accommodation centres? If not, why not? Will they be able to monitor the effectiveness of the child protection rights?
Will the monitor also be able to report on the effectiveness of the Criminal Records Bureau checks carried out on staff who work at the accommodation centres, either directly employed or on a voluntary basis? Noble Lords will recall that yesterday we debated an amendment, which unfortunately I lost on a vole, which would have put in place enhanced protection for children in accommodation centres. Now we look at the issue of Criminal Records Bureau checks. Will all the staff be covered by those checks and what level of checks will they be, basic or enhanced? All these amendments are designed to protect those who are living and working in the accommodation centres. I beg to move.
Lord Renton: My Lords, I rise to support these amendments. One question arises out of them, and I may not be in order asking it, but it is so relevant that I dare to put it to the Minister. It seems to me that, bearing in mind the legal problems that are likely to arise, and which will be part of the decisions of the members of the advisory groups, the chairman of each advisory group should be an experienced lawyer. If the Government have that in mind, at the Third Reading an amendment should be tabled in order to ensure it.
Lord Dholakia: My Lords, these amendments have our support on this side of the House. We certainly support the duties placed on members of the advisory groups. The second amendment gives the Secretary of State power to make provisions for the training of members of advisory groups and the third amendment would mean that a requirement to undergo training could be a condition for the person being appointed.
These amendments are in line with similar provisions which have been made for members of various groups working in such situations. I refer here to lay members of the prison boards of visitors and lay members who inspect detention centres. The need for training is a crucial element. It is crucial in this instance because the advisory group members will be looking at whether the rights of individuals are protected. It is important that people are not simply appointed to pay a visit and make a report. They should learn about what are the rights and what is being done to protect them, and what the government and the monitor are doing about them. If they have any doubts whatever, they should bring them to the attention of the appropriate authorities.
The amendment imposes duties on members of the advisory groups, but these are duties they must carry out to fulfil their function. If the Minister contends that they will be lay persons not lawyers, the response is that the lay people are capable of understanding the law. The visitors groups for detention centres have proved it. If the advisory groups do not have a grasp of the legal rights of those in the centres, they are unlikely to be able to know what to look for when they visit a centre and are unlikely to be able to make useful reports. This is not only for the protection of those
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who are in such centres, it is as much for the protection of those who provide a service and for ensuring that accommodation centres are run with no-one's basic rights being impinged upon.
Lord Clinton-Davis: My Lords, is there anything in the amendment which could not be included in regulations? A great deal of common sense has been uttered from both Opposition Benches but I do not think anything is precluded in practice as regards what has been suggested. In other words, does it have to be in primary legislation?
Baroness Carnegy of Lour: My Lords, I should probably have traced the answer through the Bill, but I have not been able to do so in the time available, so can the noble Lord tell us whether these regulations will come to the House by a negative resolution or an affirmative one? This clause was introduced at the Committee stage in this House. It has not therefore been examined by the committee which looks at the powers given in secondary legislation on behalf the House. The questions that are being asked indicate that these regulations will be important and fundamental to the safety of people in the accommodation centres. It would be comforting to know that the regulations will come by affirmative resolution.
Lord Filkin: My Lords, some interesting and important points have been made on these amendments. I will start by making a few general remarks about how we see the role of advisory groups and therefore to what extent we feel they can address the issues raised. I will then speak about other ways in which we believe those issues will be properly addressed in the overall process of control and monitoring.
It is useful to look at what Sir Peter Lloyd, who chaired the review of prison boards of visitors, has said. Clearly accommodation centres are not prisons, but the principles of the prison boards of visitors in terms of having people going in there and trying to be ears and eyes, looking from the perspective of people who are in those places, is the foundation principle.
The report said that the boards of visitors should be concerned with,
"simply what all that is actually meaning to individual prisoners in their experience of prison and their preparation for release".
He went on to say that they should not aspire to be inspectors, auditors, consultants or non-executive directors.
The advisory groups will be listening to the concerns and complaints of individual residents and, more broadly, looking at the effects of the operation of the centres on residents as a whole. It is precisely the commonsense lay perspective that we need to provide reassurance as to the treatment of centre residents.
The advisory groups should be looking at the way the centres operate and the effects on individuals within them, and hearing what those individuals say about it, which may or may not be the totality of the

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truth. They are not there necessarily to make a firm and final judgment, but to convey feelings and concerns.
We want to recruit a wide variety of people as advisory group members. Placing a duty on them simply to focus on legal skills—although that clearly would not be ruled out—would be turning them away from the kind of role that we consider appropriate. It would require a considerable level of expertise in the law for them to be able to do the job of identifying whether, for example, the Legal Services Commission was effectively discharging its functions within an accommodation centre by the provision of legal aid.
However, quite clearly the advisory groups could and should relay concerns if they pick up from residents of accommodation centres that they feel they are not getting adequate legal advice; that they are not getting access to lawyers when they want them; that they are not getting the help and helpfulness they expect from an advocate on important issues. That kind of issue would be four-square within the remit of the advisory groups, which again is consistent with the perspective I have sought to give overall.
Similarly with child protection policies—I shall turn later to the other ways in which we shall seek to ensure the effectiveness of the child protection policies—the advisory groups would be commonsense eyes and ears. They would not quite befriend but would be available to people living in accommodation centres so that any concerns could be relayed to them.
The amendment in regard to the monitor is divided into two parts. I recognise that there are other points to which I must return, but the first part of the amendment would require the monitor to report on the effectiveness of the checks carried out on staff employed at the centres by the Criminal Records Bureau. I understand that the intention behind the amendment is to see whether the employers' checks are effective in precluding unsuitable people from working in accommodation centres. As the House knows, part of the problem with the checks is that if they are carried out well they should be able to pick up people who have records; but we know only too well that they cannot pick up the records of people who have not committed or been convicted of offences. Therefore none of us can feel that the checks are a complete answer.
However, the contractual requirements of the people running the accommodation centres will be such that the Home Office will approve every appointment to the accommodation centres if it is satisfied that the necessary checks have been carried out. The Home Office itself will have a fairly strong control process in that respect.
I can respond much more positively to the second part of the amendment, which requires the monitor to report on the effectiveness of the child protection policy operated by the centres. We intend the contract to specify that each centre must have a child protection policy in line with the local area child protection committee's policy. Although Home Office staff will
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monitor the actual operation of the contract, I agree that assessing the overall appropriateness and suitability of the child protection policy is something that could usefully be done by the monitor.
However, as my noble friend Lord Clinton-Davis said, I do not believe that this needs to be specified in the Bill. Clause 32(2)(c) already requires the monitor to consider the treatment of residents and, in subsection (3), to consult such other persons as he considers appropriate. In this way the monitor can consider the child protection policy in the context of the way residents are treated. He or she would no doubt wish to consider consulting the local authority and local area child protection committee to consider the nature of the accommodation centre's child protection policy in the light, for example, of the guidelines produced. We shall of course make the monitor's terms of reference available in due course.
For the reasons I gave earlier, I hope that the noble Lord, Lord Renton, will understand that while not for a second should a legally qualified chairman be ruled out, the function is not essentially a legal one. However, clearly a lawyer could be so appointed.
As to the levels of checks, I indicated that we would seek to ensure that the highest levels of checks that could be carried out on the relevant levels of staff would be. In short, that means an enhanced disclosure for those regularly engaged in caring, training, supervising or being in sole charge of children; a standard disclosure for those whose duties involve working with children at a lesser level—for example, administrative staff and staff working in the education facility—but who would have contact with children; and a basic disclosure for other staff—for example, cleaners, maintenance workers and administrative staff.
Under Clause 36(4), the regulations in regard to the advisory group will be subject to the negative procedure. I hope that I have now covered all the points raised.
Baroness Carnegy of Lour: My Lords, with the leave of the House, and before the Minister sits down, I would suggest to him that the negative procedure is not adequate in this case. The discussion has been partly about membership and the chairman of the group. We do not know from the Bill anything about what the membership of the group will be under the regulations. Will the Minister look at the issue to see whether it should be decided by the affirmative resolution?
Lord Filkin: My Lords, perhaps the most straightforward answer is yes, we will look at the issue—but I would not want to raise hopes. We will want to assess whether or not it is appropriate. I shall do so and I shall write to the noble Baroness on that point.
Baroness Anelay of St Johns: My Lords, I am grateful to the Minister for that helpful response. It has fleshed out more clearly what the roles of the advisory groups and the monitor will be. I may wish to return at some stage with questions in regard to the levels of

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checks that are to be carried out on the various grades of staff in the accommodation centres. I still have some concerns in that respect. I am grateful to the Minister for his indication that the second part of my Amendment No. 32 will be met and that the monitor will report on the effectiveness of the child protection policy operated by the accommodation centres. That is very good news. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 29 to 30 not moved]
Clause 32 [The Monitor of Accommodation Centres]:
Earl Russell Earl Russell moved Amendment No. 31:
Page 17, line 8, at end insert—
"( ) the matters raised in reports made under section 31(4),"
The noble Earl said: My Lords, in moving Amendment No. 31, which stands in my name and the names of my noble friends Lord Dholakia and Lord Greaves, I should declare a non-pecuniary interest. I am one of the patrons of the Association of Visitors of Immigrants in Detention, an organisation which does a great deal of good. I must confess to having participated in its activities rather less than I would have wished. For many years its annual general meeting has been held in the week of the Liberal Democrat Party conference. As a favour to me, the organisation decided this year to change the date—and found that it had picked the first day in Committee on this Bill. Naturally, it preferred me to be in this Chamber. However, I know enough to say that the organisation does a great deal of good, although in this world—whatever may be the case in the next—the peacemakers are not always blessed.
The effect of the amendment would be to take the powers in Clause 31(4) of the Bill—which allows members of the advisory groups to visit the centres and to visit any resident with his or her consent—and to make those powers a matter which can be a matter of report by the monitor. It is a small provision but it should be genuinely helpful.
Granted that the relationship between visitors, prison authorities and prisoners is essentially a channel of communication, it ought normally to be—and usually is—a peaceful, harmonious one, concerned with the prevention of conflict rather than its creation. But there always are exceptions. I remember one—drawn to the attention of the House by my noble friend Lord Avebury—where communications between the visitors and the governor broke down to such an extent that in due course it involved the attention of the Minister.
Such cases will always be rare. My hope is that the involvement of the monitor will make them even rarer. The monitor will be able to listen to both sides, to abide by the principles of natural justice and to reach a reasonable compromise, thus defusing trouble before it breaks out. That is why I hope that the amendment is uncontroversial. I hope that it may even commend itself to the Minister. I beg to move.
4 p.m.
The Lord Bishop of Portsmouth: My Lords, I support the amendment. All the amendments that we are presently considering are in the interests of greater accountability and of involving as wide a section of the community as possible in observing and "critiquing" the life and work of accommodation centres. I am glad to offer my support.
Lord Bassam of Brighton: My Lords, I am grateful to the noble Earl for moving the amendment. It is helpful in the context of what we are attempting to achieve in the Bill. As he suggested, it would require the monitor of accommodation centres to consider in particular matters raised in reports by accommodation centre advisory groups. That in itself seems a sensible thing. It is what we should expect to happen.
The monitor is required to monitor the operation of Part 2 of the Bill. We have set out on the face of the Bill three aspects that he will need to consider in particular; namely, the quality and effectiveness of accommodation and other facilities provided, the nature and enforcement of conditions of residence and the treatment of residents. In considering these aspects, the monitor will be required to consult the Secretary of State and such other persons as he considers appropriate. We expect that requirement to be fairly widely drawn.
In addressing the amendment, we need to consider what matters might be incorporated in reports made by the advisory groups. We want the advisory groups to visit the centres and listen to the complaints of residents, and to ensure that those complaints are properly addressed. We feel that the advisory groups' reports will, by their very nature, focus on the ways in which individuals feel they are being treated within the centres, on whether any concerns have been acted upon, and on whether residents feel able to express any concerns or know how to do so. They will help us to understand how the residents are affected by the conditions of their residence and whether they feel that the facilities available meet their needs and are open to them. I imagine that they will in particular express views about how usefully their time is occupied and any concerns that they might have about the quality of their accommodation.
So given that the monitor will be looking at these issues as part of his remit, I think it would be impossible for him to ignore the matters that will undoubtedly be raised in any reports from the advisory groups. For that reason, I do not see that the amendment would add to what is already envisaged.
I also emphasise that the monitor will consult such other persons as he considers appropriate. As I said, we should expect that remit to be fairly widely drawn.
It may well be that the point made by the noble Earl in his amendment could be better and more accurately reflected in the terms of reference or the "job description" of the monitor. That would be where it would be better placed, rather than on the face of the Bill. If the noble Earl would see that as a welcome step, we should actively consider it. We believe these matters to be very important.

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In overall terms, we will pay close attention to reports made by both the monitor and the advisory groups. We believe that the existence of these groups will be invaluable and that it will play an important part in establishing an independent view of how the accommodation centres are working. They will, of course, help to form part of the overall evaluation of the trial and during its course enable us to pick up on the areas that are working well. They will help us to learn from the successes and enable us to tackle those areas where the centres are not as effective. I hope that with those assurances, which are genuine ones, the noble Earl will feel able to withdraw his amendment.
Earl Russell: My Lords, I thank the Minister warmly for that reply. He makes a serious case for arguing that the objective of the amendment can be achieved without placing it on the face of the Bill. I am also aware of the points that the noble Lord, Lord Renton, has often made about the danger of cluttering up the face of the Bill with too much detail. Those are serious points. As I think that the Minister is right, and as I am certain that he makes the offers in good faith, I shall beg leave to withdraw the amendment. I hope that we are both right.
Amendment, by leave, withdrawn.
[Amendment No. 32 not moved.]
Baroness Anelay of St Johns Baroness Anelay of St Johns moved Amendment No. 33:
After Clause 32, insert the following new clause—
"ACCOMMODATION CENTRES: ANNUAL REPORT BY THE SECRETARY OF STATE

(1) The Secretary of State shall make an annual report to Parliament detailing the measures taken to establish Accommodation Centres.

(2) The report shall include an impact assessment of each Accommodation Centre upon the locality in which it is sited taking into account its effect upon the local availability of medical, social, and transport services and upon the ecology of the area."

The noble Baroness said: My Lords, during our debates on accommodation centres yesterday, I made it clear that I do not believe that the Government have set about establishing them in a manner which will prove to be fair and effective both to those who are seeking asylum here and to those who live in the local communities near the large accommodation centres.
The Government inserted the new clauses into the Bill in Committee which established the monitoring system for accommodation centres and, of course, we support it. But my reason for tabling this amendment is to point out that the duties of the monitor as set out in Clause 32 are concerned solely with the internal operation of the accommodation centres. One vital element of accountability is missing so far, and the amendment attempts to fill that gap.
I believe that the Secretary of State should be required to make an annual report to Parliament to give the details of the measures that he has taken to establish the accommodation centres, whatever model they might be. This would mean that he would have to explain the steps he had taken to discover what kind of
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accommodation centre was suited to what kind of area and to the people who would live in it. Only on the basis of such a report can we measure whether the Government are approaching the trialing of accommodation centres seriously and competently.
The second part of my amendment places a duty on the Government to carry out an impact assessment showing the effect that an accommodation centre, once built, has had on the local availability of medical, social and transport services. It also requires an assessment of the impact of the centre on the ecology of the area.
Such a provision is vital in ensuring that the Government take all proper factors into account when building centres after the initial three have been launched. We were originally told that that would be in 2003, but rumours are that it will be in 2004—the Minister himself referred to the fact that the date had drifted.
The fact remains that, wherever such centres are built, they will have a significant impact. At present, we do not know whether that will be just as much for the good as for anything else. We have to look at the positive aspect too. It is right that, over time, Parliament should have the opportunity clearly to hold the Government to account on where accommodation centres are sited. I beg to move.
Lord Renton: My Lords, I hope that the Government will accept this amendment. The accommodation centres will be of great public importance. They will cost a great deal of public money. That is one factor to be borne in mind. Another factor is that they will have an effect on asylum seekers and enable the Government to decide whether they are genuine. They will provide a chance for the merits of asylum seekers to be considered one way or the other. If there is no report to Parliament by the Secretary of State, the whole system will have failed to fulfil its public importance.
Lord Judd: My Lords, very much for the reasons referred to by the noble Lord, Lord Renton, I am slightly puzzled by the drafting of this amendment. No one is suggesting that the regular reports, which are a very interesting idea, should not make reference to the impact on the local community and services. I am sure that that would be an important ingredient. However, I am mystified that there is no reference in the amendment to the impact on the residents of the centres, the role that the centres play in helping in a humane way to achieve their purpose and the theory behind their existence, or the fulfilment of government policy as a whole. I suggest that those who moved the amendment take it away and think about that. It would be unfortunate if this House went on record as saying that it was interested only in the impact of the centres on the local community.
Lord Carlisle of Bucklow: My Lords, I support the amendment. This morning, I indulged myself in the pleasant occupation, which is probably much followed and well known to Members of your Lordships'

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House, of looking through yesterday's Hansard to read one's own contributions. When I got to mine, which is at col. 294, I found to my horror that throughout my short intervention I spoke about attendance centres rather than accommodation centres. I wish to correct my mistake and to assure the House that I was well aware that the debate was about accommodation centres and not attendance centres.
I add this one thought: the fact that I made the same mistake five times in a speech of less than one column's length leads me sadly to the conclusion—and I am sure that it is the right one—that since nobody intervened to correct me, nobody thought that anything I said was worth listening to at all.
Lord Dholakia: My Lords, this amendment has our support also. I assure my noble friend Lord Carlisle, with whom I have worked in other capacities, that when he referred to attendance centres we had no doubt whatsoever that he meant accommodation centres. We listen very carefully to what the noble Lord says.
The argument of the noble Lord, Lord Judd, was interesting. However, having looked at Clause 32, it is clear that information on the impact on residents and local services is provided by the advisory groups and the monitor himself. The monitor is expected to report to the Secretary of State, and that information will be laid before Parliament. One has no difficulty with that, because when any such report comes before Parliament, I am sure that I, the noble Lord, and others, will jump to make sure that right and proper services are provided at the accommodation centre.
Interestingly, I see no evidence in that part of the Bill about the obligation of the Secretary of State in relation to the interesting and lengthy debate that we had yesterday about accommodation centres. All Members from all sides of the House expressed serious concern not only about the size and location of centres, but about services and other related elements. It is right and proper that the Secretary of State should be accountable, reporting to Parliament on precisely what is happening and on the impact of the centres. On that basis we will be that much wiser. Reports will be published at some stage to detail the precise effect of the pilot schemes.
Lord Judd: My Lords, I am grateful to the noble Lord for giving way. Is he really suggesting that among busy Ministers and senior administrators a sound evaluation of what is happening will really be helped by a confusion of different reports from different quarters? Surely, the job is to look at the centres to judge their effectiveness and their consequences for both the local community and the inmates.
4.15 p.m.
Lord Dholakia: My Lords, I have no difficulty with what the noble Lord says. Ultimately, we will probably receive a filtered version of what finally emerges. A total picture will be given, but the obligation on the Secretary of State to produce such an impact statement or report is very important, bearing in mind the
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interest shown by your Lordships' House in the discussion on accommodation centres yesterday. We support the amendment.
The Lord Bishop of Portsmouth: My Lords, I am grateful for the opportunity to speak to this amendment. I have much sympathy with what the noble Lord, Lord Judd, has just said. Perhaps the amendment, if passed and recognised, could be extended.
During yesterday's debate the Minister stressed the need to make provision for the future in accommodation centres. Although there is no question of not trusting the Secretary of State, if I, in the diocese of Portsmouth, were running a new initiative, I would expect to be accountable to my diocesan synod. This amendment is highly correct and appropriate, and I hope that it has the support of the House.
Lord Clinton-Davis: My Lords, I do not understand why the second part of the amendment cannot be covered by Questions, oral or written. We do not want to be suffused by a whole plethora of reports. Not for the first time, I agree with my noble friend Lord Judd. Although we should, of course, see what the Government have to say on the matter, I do not think that the amendment is right, particularly subsection (2).
Lord Renton: My Lords, before the noble Lord sits down, I hope that I am in order to say that surely if there is to be a report to Parliament, it must be on the effect on asylum seekers of living in accommodation centres and on the effect on local people. Surely Parliament should not be deprived of either conclusion.
Lord Hylton: My Lords, perhaps I may—
Lord Clinton-Davis: My Lords, I have been asked a question, so I hope that I will be allowed to answer it. If anybody has any reservation about this point, they will let Members of Parliament and noble Lords know. I do not depart from my point about the plethora of information that would come before noble Lords and others which I do not think would be helpful.
Lord Hylton: My Lords, most amendments, like most Bills, are capable of amendment. The noble Lord, Lord Judd, has suggested some minor improvement to the amendment. Nevertheless, the kind of reports called for by the amendment should prove to be a useful tool for post-legislative parliamentary scrutiny, for which so many people have called for so long.
If the accommodation centres come into being, we want to know how effective they are and their impact on the places where they are situated.
Baroness Carnegy of Lour: My Lords, there will be a great need from the start for careful public relations on accommodation centres. The people in the

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neighbourhood will want to know whether it is succeeding in what it is supposed to be doing. If there are good public relations they will be keen to play a part in helping people through their time in the accommodation and probably after in some cases. Such a report, which can be made available in the local community, will be an opportunity for that. To that extent it is a very good idea. I do not know whether my noble friend minds too much about the wording of her amendment. I have not asked her. Her idea leads one to think that the Secretary of State should think about how he will conduct local public relations—he is the one to do it—to make sure that local people understand what is going on. If there is a problem with medicine or the availability of doctors, for example, they will want to know how it is being handled to keep everyone in the area happy.
Lord Desai: My Lords, there is a subtlety here that we have all missed. Yesterday the noble Baroness told us that the Secretary of State should be satisfied that the proposed location is suitable to the needs of the people in the accommodation. That was yesterday. Today he has to be sure to worry about people affected by the location. He will get it wrong either way.
Lord Filkin: My Lords, I am utterly four-square on the importance of the Government being available to give an account to Parliament about the operation of the centres. Before I go into the detail, we heard every word that the noble Lord, Lord Carlisle, said yesterday. We had heard "attendance centres", but we knew exactly what he meant. Perhaps, like me, he finds that Hansard is not very good at capturing what I meant to say, as opposed to what I did say, which is always a difficulty.
On the specifics, perhaps it might help if I say something about how we envisage the evaluation of the trial accommodation centres being undertaken. The White Paper in February set out a series of evaluation criteria against which we would test them. It would be impossible to do this without looking at the associated issues that may contribute to the effect on the locality, either positive or negative—or, given how life is, most likely both positive and negative—and the effect on community relations. It is likely to include matters such as local residents' perceptions of asylum seekers and the impact of their use of local services. There will undeniably be an impact. We hope that it need not be overall a negative one. In fact, we are quite optimistic. We certainly do not expect them to place a burden on local services, given the points that we have emphasised in the Bill about them being designed explicitly in part to avoid that. We shall also evaluate the effect on those areas and compare it, as far as we are able through research methodology, with the alternative of dispersal to make a judgment in the round. We envisage that the evaluation will include a combination of management information and consultation with people and more formal research carried out by independent researchers under contract
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to the Home Office. The Home Secretary is on record as saying that long-term decisions about the mix of facilities will depend on the evidence of what works.
The results of the accommodation centres evaluation will be publicly available and will clearly be made available to Parliament. I shall go further than that. We are happy to provide interim results after the first centre has been in operation for a full year. As a number of speakers have said, over and above that commitment there are many ways in which this House or another place can probe Ministers on the issue, through Starred or Unstarred Questions. We have no trouble with that. Quite the reverse—we would welcome being open about the objective evaluation and scrutiny of the centres. We are committed to putting information about them into the public domain.
I respect the spirit of the amendment, but the problem is that it would require us to make an annual report on the impact of each accommodation centre every year, by definition. While one can understand the eagerness to have early information—I hope that what I have said will help—after a while that would become an enormously burdensome process. We do not require prisons, mental hospitals or immigration detention centres to make similar annual reports.
The monitor will also be able to monitor the operation of Part 2. Clause 32(9) provides that:
"A person who is employed within a government department may not be appointed as Monitor".
The monitor's report will also be laid before Parliament. We expect that monitoring of the operation of Part 2, which the monitor is obliged to do, will include the relationship between the centre and the local community. The monitor is obliged to consult such persons as he or she considers appropriate. We anticipate that that may include police and local authorities, for example, but it could also include local residents or representatives if the monitor judged that that was appropriate.
I have not responded explicitly to every point, but I hope that I have captured the broad thrust of the points made. We welcome an evaluation. We think we can meet the thrust of what the noble Baroness, Lady Anelay, has said in the ways that I have set out.
Baroness Anelay of St Johns: My Lords, I am most grateful to the Minister for that extremely helpful reply. He has met the concerns that led me to table the amendment. I thank those who have participated in this short debate. I say to the noble Lord, Lord Judd, and to the right reverend Prelate the Bishop of Portsmouth that I was simply trying to plug a gap. My understanding before I tabled the amendment was that the concerns that they expressed about the conditions experienced by the residents would be met by other reports. It never occurred to me that they would not. That is why I welcomed the Government's amendments in Committee to Clauses 31 and 32. They provide a welcome monitoring of the conditions to be experienced by asylum seekers in accommodation centres.

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I do not know whether I should remind the Minister of painful events for him yesterday, but I shall bludgeon on. The purpose of my Amendment No. 12 yesterday, which the House carried, was to concentrate on the needs of those who live in accommodation centres. Their needs are very much in my mindset.
I thank the noble Lord, Lord Desai, for thinking that I might be subtle—well, one day, perhaps. I was just trying to be logical and plug that gap. The Minister has provided me with the ideal opportunity to beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 34 [Education: general]:
[Amendment No. 34 not moved.]
Clause 35 [Education: special cases]:
[Amendment No. 35 not moved.]
Lord Filkin Lord Filkin moved Amendment No. 36:
After Clause 35, insert the following new clause—
"LOCAL AUTHORITY

(1) A local authority may in accordance with arrangements made by the Secretary of State—

(a) assist in arranging for the provision of an accommodation centre;

(b) make premises available for an accommodation centre;

(c) provide services in connection with an accommodation centre.

(2) In particular, a local authority may—

(a) incur reasonable expenditure;

(b) provide services outside its area;

(c) provide services jointly with another body;

(d) form a company;

(e) tender for or enter into a contract;

(f) do anything (including anything listed in paragraphs (a) to (e)) for a preparatory purpose.

(3) In this section "local authority" means—

(a) a local authority within the meaning of section 94 of the Immigration and Asylum Act 1999 (c. 33), and

(b) a Northern Ireland authority within the meaning of section 110 of that Act."

The noble Lord said: My Lords, I beg to move.
Baroness Carnegy of Lour: My Lords, I have one question for the noble Lord about the amendment. Due to my own incompetence, I was not in the Chamber when this group of amendments was discussed. Does subsection (3)(a) of the amendment mean that the whole amendment applies to Scotland? I think it does, but I may be wrong. If it does, have the Government considered whether local authorities will be able to provide services across the border? I am sorry not to have warned the noble Lord that I was going to ask this, but it is quite important. The amendment and others in the group suggest that local authorities should be able to provide services widely over many areas and can co-operate. Could that be
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done across the border? It might be quite confusing, because local government is a devolved matter in Scotland.
Lord Filkin: My Lords, if we have not covered all the points we will write.
On Question, amendment agreed to.
Clause 55 [Detention by Secretary of State]:
4.30 p.m.
The Lord Bishop of Portsmouth The Lord Bishop of Portsmouth moved Amendment No. 37:
Page 30, line 30, after "person" insert "over the age of eighteen"
The right reverend Prelate said: My Lords, first I should like clarification that Amendments Nos. 34 and 35 are consequential on yesterday's debate and vote and that Clauses 34 and 35 are therefore omitted. I do not want to rub salt in the wound; I just want to learn the rules. I assume that that is the case.
Amendments Nos. 37, 39 and 40—but not Amendment No. 38—would remove all powers to detain children under 18 and would ensure that children were not detained as the consequence of an adult being detained. The amendments would also ensure that families were not split up by stipulating that no persons should be detained if the result of that detention is the detention of a minor.
The right reverend Prelate the Bishop of Derby moved a similar amendment in Committee on 17th July, when a number of noble Lords expressed concern, including the noble Lords, Lord Avebury and Lord Judd, and the noble Baroness, Lady Anelay. I also recall a debate in this House two and a half years ago during which the right reverend Prelate the Bishop of Southwark, who is next to me now, spoke movingly about the children of asylum seekers.
The amendments have been altered since July to ensure that the detention of children in all circumstances is covered, whether by the Home Secretary or by the Immigration and Nationality Directorate. I am concerned that the United Kingdom detains children and that the Government are now treating it as a positive and seemingly desirable policy. Children seeking asylum are particularly vulnerable and considerations of their best interests should always be our primary concern. They should not be placed in institutionalised settings that may hinder their development and cause them even more psychological harm. I should like to turn first to this question in principle and then to some of the related outworkings.
There is international consensus that children seeking asylum should not be detained. In its preamble, the United Nations High Commissioner for Refugees' Guidelines on Refugee Children states:
"Refugee children are children first and foremost, and as children, they need special attention… It is UNHCR's policy that refugee children should not be detained".
Children who are placed in detention centres have broken no laws, whether criminal or civil, with the exception perhaps of immigration offences. Their only

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crime will be that they and/or their family members have claimed asylum or otherwise sought to remain in the United Kingdom. Apart from children seeking asylum, the only children in the UK who are deprived of their liberty are children convicted of a criminal offence, those subject to a secure accommodation order made by a family court, or those detained under the Mental Health Act 1983. There are statutory criteria that must be fulfilled before detention is permitted in such cases, but that is not the case with the detention of children seeking asylum.
In contrast, children seeking asylum are sometimes not even detained under immigration powers, in cases where no detention orders are served upon them. In other words, they are subject to constructive detention. The question of the detention of the parent is considered first without giving attention to the best interests of the children, and it is then presumed that it is in their best interests to remain with their parents. If the parents are consulted, they are told that the alternative would be the placement of the child in care while they remain in detention. There are no legal safeguards in place to prevent immigration officers acting in an arbitrary manner when making decisions on whether or not to detain families.
I regard that as not only wrong but misguided. The first consideration should be what is best for the child. Is it better that they live with their parents in the community, or better that they are accommodated in a detention centre? If this question were asked, in my view the answer every time would be that it is better for children to live in the community where they can enjoy school and all the rich experiences of childhood that are denied them in detention centres.
I should like now to turn to the Government's thinking, where it is noticeable that there has been a shift in the language they use on the detention of children. Over the past year, policy has moved away from the position in the 1999 asylum White Paper—that detention of families should be strictly limited and for the shortest possible time—to the policy in this year's White Paper, which endorsed the policy of detaining children in asylum-seeking families prior to removal and made a vague and open-ended statement about detention in other circumstances "where necessary".
The amount of accommodation for families within the detention estate is rapidly expanding, and the Government's approach has altered so much that they now do not distinguish between the detention of adults and the detention of families with children. The need for this policy change is unclear, and children's charities such as Save the Children and the NSPCC and refugee organisations also believe that it is unnecessary and undesirable.
Those who work with children in detention have documented the emotional and psychological effect of imprisonment on children. A number of us have had the chance to hear more of what the teachers had to say, at the meeting on Tuesday night, and what the students themselves had to say, at the meeting at lunchtime yesterday. Children report feelings of fear,
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anger and confusion that they are detained without having done anything wrong. They also report problems relating to being incarcerated with adults. We must keep hold of the fact that the average length of time of detention is 11 months; the dream is two months, but that is the reality. Children also report problems relating to the lack of information and inappropriate living conditions. The process of detaining a family can be very distressing and frightening for children. Children in detention centres are often extremely subdued and confused.
The organisation Bail for Immigration Detainees has put together case studies that demonstrate how children in detention suffer disruption to their social life and education with a negative effect on their physical and emotional health. Some of the families that BID spoke to had experienced attempts to remove them that had been stopped. In one case, the pilot refused to fly the family "home", or rather back to where they came from, because of their medical state. The children and parents were terrified both by the process of detention and the level of violence being used in attempts to remove them—violence witnessed by their children. That is one instance. There may be others, or there may be good practice elsewhere.
I should like to tell the House about a family that spent about 60 days in detention. The whole family—mother, father, daughter and son—were detained after more than one and a half years in the UK during which time they had remained in contact with the immigration authorities. Both children were in primary school before they were detained and are now missing school due to ongoing detention. Both parents are suffering from depression and stress. The detention of this family has put the daughter under considerable pressure as she has taken on the responsibility of communicating with third parties on behalf of her parents whenever an interpreter is not available. The family have reported that they experienced violence in the process of being detained and in the airport when unsuccessful attempts were made to remove them. The mother told BID,
"My son he wakes up when the officer comes at night. They open the door with a key and they count us. My son wakes up and is afraid. Because on the [day] when the immigration come to our house, we were sleeping, and they come to my son's room very loudly. He thinks every time it's the police. My son ask me all these questions—'Why police put us here?' My son's school was not finished on that date [when they detained us] and he's very worried about that".
The daughter said,
"My brother was in reception class. He always talks about his friends. He couldn't bring any of his toys from the house and he really misses his toys. And I'm really bored as well, because there's nothing for me to do. In the male section there's an activity room, and there's some computers. But I'm not allowed to go in there. I'm the oldest—there's nobody my age in the family part, and there's nothing for me to do. I was in year seven before… I liked it".
Lord Clinton-Davis: My Lords, why has the right reverend Prelate chosen to introduce the words,
"over the age of eighteen"?

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He has not addressed that issue so far.
The Lord Bishop of Portsmouth: Because, my Lords, many of those whom I met yesterday, for example, were over 18. In my view, they need this safeguard.
That story demonstrates that the well-being and development of the child should be our overriding consideration. In other words, if it is thought that living in certain institutional settings may damage children, then they should not be placed in those settings. This is the policy that the Home Office pursues in respect of the babies of women in prison. The Home Office considers that prison is not the best environment for young children, and babies are therefore taken from their mothers by the age of six months. However, the same government department that believes that prison is not the best environment for children, to the extent that it is preferable to separate them from their mothers, maintains that it is justifiable to place children in detention centres.
Yesterday, when we debated amendments on the education of children of asylum seekers, I mentioned the opposition of the leading children's charities. I should like to add today that, contrary to what the noble Lord, Lord Bassam—undoubtedly with the best of intentions—implied in this House on 17th July, the NSPCC is totally opposed to the detention of children. Yesterday, I also suggested that some would oppose the education of children of asylum seekers in the accommodation centres on grounds of principle or practicality or both. Noble Lords might be tempted to regard the amendments that are before us as being concerned only with principle and not practice. I beg noble Lords to consider that they are about both. Is it right to detain children in these centres and is it desirable to create another tier of services and welfare provision for children?
I conclude by saying that the measure of how we treat children seeking asylum should be whether or not this is the treatment that we would want for our own children. Would we want our own children to spend open-ended periods of time in detention centres? Do we think that detention centres provide an environment conducive to a child's development—an environment in which a child would be most happy? The answer to both those questions is surely no. If it is not good enough for our children, it is not good enough for any child. The Government should end the detention of children and their families as soon as is practically possible. I beg to move.
Lord Mayhew of Twysden: My Lords, I wish to speak to Amendment No. 38 which stands in my name and is grouped with the amendments just spoken to by the right reverend Prelate. It operates on a much lower but none the less important level than those that we have just heard addressed, albeit it is a drafting amendment. It need not take much time to consider. I speak to it in the interests of simplicity and, therefore, in the interests of the reader and the user of the Bill.
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Clause 55 empowers detention of a person on the authority of the Secretary of State in two sets of circumstances, first, in subsection (1)(a), pending,
"a decision by the Secretary of State whether to give directions"
regarding that person's entry or removal, or, secondly, in subsection (1)(b), pending the removal of that person pursuant to such directions. In subsection (1)(b) the reader sees the words "under that paragraph". Back he goes, therefore, to subsection (1)(a) where he sees that there are three paragraphs there specified. So, do the words "that paragraph" in subsection (1)(b) relate to any one in particular? What do they relate to? It would be far simpler to say "the material paragraph". Actually, the phrase "any such paragraph" would have been better but I did not think of that in the somnolent days of summer. It would certainly be much simpler to say "under the material paragraph".
If one takes a tortuous and a painful audit trail through the syntax of the clause as drafted, one can perhaps conclude that the syntax is sound, but it is certainly not simple. Why cannot we be simple? I hope that the Minister will be able to accept this brief and simple amendment.
4.45 p.m.
The Earl of Sandwich: My Lords, returning to the previous amendment, I shall try not to repeat the strong arguments made by the right reverend Prelate as this is a fairly old chestnut. However, like many old chestnuts, it is durable and will return.
The Government recognise that it is wrong to detain children and that we should be talking only about the exceptional circumstances. However, I wish to take up the point made by the noble Lord, Lord Bassam, in Committee about separating the family,
"which is likely to cause the children needless distress".—[Official Report, 17/7/02; col. 1240.]
As the right reverend Prelate has already pointed out, how does the Minister square this with official Home Office policy that even very young children of prisoners—babies over six months old—should not be brought up in prison and must be separated from their mothers? The child has committed no offence and the environment of detention, the lack of facilities and education are incompatible with standards of living which we are normally prepared to guarantee.
I hope that the Minister can say again how the Bill is compatible not only with Article 37 of the United Nations Convention on the Rights of the Child on detention—which is clear—but also with Article 3(1). The best interests of children, as the Children Act intended, are to be considered separately from those of adults and the Government cannot hide behind the notion of separated families. The Joint Committee on Human Rights reminded the Government that the best interests of children are not just an important factor to be considered but are to be,
"treated as a primary consideration"
and therefore "highly important".

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Children in detention have already suffered trauma in some form, as we heard yesterday. Now they have to suffer further disruption and disappointment that we, the UK authorities in whatever form, have let them down. Evidence from case studies—some have been quoted already by the right reverend Prelate—shows that detention has physical as well as psychological effects on children, including stress and sickness leading to loss of weight.
I have two case studies which describe those effects on children in detention but I shall not quote them now as I believe that we have heard enough individual case studies. However, both families suffered some rough handling and even violence at the time of detention. In one of the case studies a family with two children, both aged under seven, was detained when they received a final decision after six years in the UK. In the other case study a family was detained for 81 days before the mother and children aged seven, three and two were finally released. Their father is still being detained.
It is worth noting that in neither of those cases had any member of the family attempted to abscond or failed to comply with the conditions on which they were granted admission. In both cases the power of the authorities to use their "discretion" to detain children for indefinite periods under the same criteria as adults has led to prolonged periods of detention without independent review. We are not just talking of exceptional circumstances for a few days. We must be clear about that. In neither case had alternatives to detention, such as reporting restrictions, been considered.
Just last week concerns about the UK's policy on detention were expressed again by the UN Committee on the Rights of the Child—the committee which oversees implementation of the convention. Reporting on the UK's progress in implementing the convention, the committee recommended that the UK,
"refrain as a matter of policy from detaining unaccompanied minors and ensure the right speedily to challenge the legality of the detention in compliance with article 37 of the Convention. In any case detention must always be a measure of last resort and for the shortest appropriate period of time"
Lord Joffe: My Lords, I, too, support the amendments spoken to by the right reverend Prelate. I shall try to avoid rehearsing the arguments made in Committee.
To some of us it seems self-evident that if we treat children seeking asylum as children above all else, we should not detain them. Detention centres cannot afford any child the care and protection that he needs. They are never the best environment for children and may have serious negative effects on their physical and emotional health and well-being. That principle is clearly acknowledged by the Government in the official guidance given in the Children Act 1989 in relation to the making of secure accommodation orders for children. It states that:
"Restricting the liberty of children is a serious step which must be taken only when there is no genuine alternative which would be appropriate. It must be a 'last resort' in the sense that all else must first have been comprehensively considered and rejected".
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The Minister has not made any case that I am aware of that the intention is that detaining families in detention centres should be used only as a last resort. What this demonstrates is that the Home Office is prepared to apply different standards to children seeking asylum than are applied to other children by other government departments. Such discrimination against a class of children who have committed no offence undermines the integrity of our legal system, which is based on justice for all.
Unlike the noble Earl, Lord Sandwich, I propose to quote from a case study, which deals with the point raised by the noble Lord, Lord Clinton-Davis, who said that the other case study did not refer to young people. This case study illustrates the effect that detention can have on children. It was provided by the mother of two children, one aged six years and the other 18 months, who were detained for 111 days. After being released from detention, the mother said,
"they didn't learn anything, they had a play room. The older one was really upset, she was saying every day, 'I want to go to school, let me out of here'. She had problem with her mouth. They have seen her but they can't do nothing. And she was 30 kilos before detention centre, and when I got out from detention centre she was 21 kilos. Actually she was suffering so much from detention centre".
The family was finally released on adjudicator's bail and has since reported regularly, as required by the court. The elder daughter missed two terms of school and took six months to regain the weight she had lost in detention.
I question whether that is a humane way to treat anyone, adult or child, although our responsibilities towards children are greater. They have not chosen to come here; they are vulnerable and dependent. It is surely consistent with our belief in justice and humanity to ensure that the children of asylum seekers who are waiting for a decision are with their family and in an environment that will in no way harm them; on the contrary, it should help to meet their particular needs and foster their development. A detention centre is no such environment. It should not, therefore, be the home of any child, however temporarily, and no persuasive justification for such detention and such discrimination has been provided by the Government.
Lord Avebury: My Lords, when the right reverend Prelate moved the amendment, he discussed the expansion of the detention estate relating to children. I want to probe the Government in that regard. I believe that there are currently 150 family beds in the detention estate, which contains 2,000 places altogether. The Government propose to expand the total detention estate to 4,000. How many places will be for families in that enhanced total?
I am informed that there are currently five family rooms in Tinsley House with five beds each and 16 in Dungavel with three to four beds each; Harmondsworth makes up the balance of 150 beds for 30 to 40 families. I believe that that information was given in a Written Answer in another place on 17th July.

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What is the purpose of increasing the estate so that we can detain more and more families with children? At the time of the White Paper, detention of families with children was to be done in wholly exceptional circumstances and for the shortest possible period, as the right reverend Prelate reminded us. Suddenly and with no explanation whatever, the policy changed in October 2001 so that families with children could be detained on almost any criteria whatever; that is what we are being asked to accept if the right reverend Prelate's amendment is not agreed to.
The operation enforcement manual allowed the detention of families for only a few days prior to removal. That was the situation until October 2001. Will the Minister explain—if he is able to do so—what changed in October 2001 to make it suddenly necessary to detain? I happen to know that there is no statistical evidence for that whatever in terms of families absconding. When noble Lords and honourable Members tried to obtain figures showing the objective justification for detention, Ministers were not able to answer.
The current situation was described in a letter of 27th September from Simon Barrett of the Detention Services Policy Unit. He confirmed to Bail for Immigration Detainees, to which we are indebted for much research work relating to the amendments, that:
"There are no separate criteria for the detention of families with children".
That is shocking, my Lords. We are proposing to detain children without regard to any of our obligations under, for example, the UN Convention on the Rights of the Child, which has already been mentioned.
I draw the attention of noble Lords to another part of the concluding observations of the report on the United Kingdom and Northern Ireland that was recently published by the Committee on the Rights of the Child. It reiterated its belief that the UK's reservation about the UN Convention on the Rights of the Child in respect of immigration and nationality legislation,
"is against the object and purpose of the Convention".
In other words, it said that that is an illegal reservation. It drew particular attention to the need to end discrimination against children seeking asylum and to establish their best interests as the paramount consideration in cases involving them. Of asylum-seeking and refugee children, the committee said that it was concerned,
"that detention of these children is not compatible with the principles and provisions of the Convention".
Detention of children under immigration legislation powers must stop, full stop.
Lord Corbett of Castle Vale: My Lords, it is right to spend time discussing the detention of children. As a general principle, we would all wish that it could be totally avoided in this circumstance—or in any other, for that matter.
434
As I listened to the moving story told by the right reverend Prelate—I invite my noble friend the Minister to respond to this—I assumed that the family in detention whom he mentioned had had their application for asylum refused, had been through all of the appeal processes and had been told that they had to leave the United Kingdom. I also assumed that a country had been found—presumably the country from where they came—that was willing to take them back. I assumed all of that. In those precise circumstances, a family has exhausted all of the appeals and is told, "Look, we are terribly sorry, but you must leave the United Kingdom by this or that date". Will my noble friend clarify whether the family can then say, "Okay, give us a week"—or a fortnight, a month or whatever—"and we will leave by whatever date"? If so, that disposes of the problem. Alternatively, in circumstances in which it is felt that the family will not voluntarily leave the United Kingdom—or, indeed, they may have said that they will not voluntarily do so and a decision is taken to put them into detention—are the parents in that case given the opportunity to say whether or not they would prefer the children to be taken into detention with them or to have the children separated from them and taken into care?
Many assumptions are being made in this context. As I listened to the contributions of a number of noble Lords, I thought, "What would I do if I were faced with exactly that circumstance?". As a father and grandfather, my strong feeling is that I would want my children with me. That is my view. I do not believe that I should take that decision for other families; that decision belongs to those families. Will the Minister be kind enough to clarify what happens in that situation and whether choice is available for parents who find themselves in that unhappy position?
5 p.m.
Lord Filkin: My Lords, Amendments Nos. 37, 39 and 40 to Clause 55 would prevent the detention of certain persons under the age of 18 who were subject to further examination at a port of entry or who were deemed to be illegal entrants. They would also prevent such persons being granted temporary admission or release. The powers to do so in paragraphs 21 and 22 of Schedule 2 to the 1971 Act flow from the liability to be detained, which would be removed by these amendments. Thus, such people could not be detained, released or temporarily admitted, subject to reporting or residence requirements. They would be in limbo as a result.
Turning from the legalities to the substance of the amendments, our current policy on the detention of minors is clear. It is, of course, regrettable to have to detain those who are under the age of 18. But there are two limited circumstances where we may decide to do so and where, I suggest, it is entirely appropriate that powers should continue to be available to do so.
The first is where it is considered necessary in line with our policy to detain a family with children. In such cases, it is surely better for the children to be detained with their parents rather than to be separated

435
from their families. In that case, to suggest that families should not be detained at all is simply unrealistic in the world in which we live. They may need to be detained while their identities or basis of claim are established because they are unlikely to comply with the terms of temporary admission or release. It may also be necessary in order to effect their removal or as part of the fast-track asylum process at Oakington reception centre. These amendments would either prevent that in all cases or would simply require the separation of parents and children. Neither is desirable.
Secondly, there are exceptional circumstances where it is necessary to detain an unaccompanied minor while alternative care arrangements are made. That would normally occur only overnight and with appropriate care facilities. Our view is that it would be vastly better, wherever possible, to place such children into the care of a responsible adult—a relative—or for social services to take charge of them, as is clearly what would normally happen, the following day. But sometimes people arrive in the middle of the night, and the Government do not accept that it is appropriate to turn them out on to the streets in such a situation.
Therefore, I am afraid that it is simply unrealistic to suggest that families with children should be exempt from detention. That would be a severe hindrance to effective immigration control and, in terms of the asylum process, would prevent families with children passing through the fast-track process at Oakington reception centre. More generally, effectively it would prevent the removal of families with children who have no lawful basis of stay here but who are not prepared to comply voluntarily with the removal directions. In terms of the minds of the traffickers, I invite the House to reflect upon the effect of that with regard to the potential attractiveness of the United Kingdom as a source for asylum claims.
I am not aware of any shift in policy between the 1999 and 2002 White Papers. We want families to spend as short a time as possible in detention centres and for as few families as possible to do so. However, we do see the necessity for the powers. A figure of 11 months was quoted as the average time. I should be pleased to see the basis for that figure. Our figures state that 64 per cent of all detainees should stay for less than two months. But I shall be happy to examine those figures in detail if they are provided.
In terms of the size of the detention estate, there are currently 161 beds. They are normally provided in four-bed family rooms, giving a nominal capacity of that order. The occupancy figures as at 9th October were that the total number of people detained in removal centres was 1,275—that is all people; the number of family members detained was 88, plus 121 in Oakington; and, out of those 88, the number of children was 36.
436
The noble Earl, Lord Sandwich, raised a number of concerns. I shall be most happy to consider them if he will provide them to me. Detention is not prolonged unnecessarily—
Lord Avebury: My Lords, I wonder whether the noble Lord is able to deal with my other questions. I am grateful to him for the figures that he has given, but I asked him what plans the Government have to expand the accommodation for families when total capacity in the detention estate is increased from its present 2,000 to 4,000.
Lord Filkin: My Lords, I had not forgotten the noble Lord's question; it was in the pile of notes that I was coming to, but I shall deal with it now. No firm decisions have been made as to the exact number of family beds that will be provided when we reach the stage of commissioning or putting out a specification for them. Clearly it will be supplied, and I should welcome a question nearer that time if the noble Lord, Lord Avebury, would like to raise it with me. Raising such a question on the back of the generality of the subject of the family detention estate would be perfectly appropriate.
In terms of the question, "why more?", I believe that the House knows the answer. There is a significant increase in the in-flows of asylum claimants to the country. If we are to increase the number of removals of those who have no valid grounds for staying, then it follows as a fact—if an unfortunate one—that there will be a need for an increase in the size of the detention estate.
We believe that the UK's reservation on the rights of the child is lawful and that it does not prevent us from taking into account very seriously the best interests of the child.
I do not pretend that I have answered every question, but I hope that I have cut to the heart of the issue. Essentially, in an ideal world it would be wonderful if one did not have to detain families in this way. In our view, it is better to keep families together rather than to separate the children. Clearly, in an ideal world it will be even better simply to identify rapidly people who have a genuine claim—
Lord Corbett of Castle Vale: My Lords, before the Minister sits down, will he be kind enough to answer the point about the families I described who have to go into detention? Will they have a choice as to whether or not the children go into detention with them?
Lord Filkin: My Lords, the answer is: no. In principle, without going into the hazy detail of my recollection of the child care laws, there are two grounds. I believe that social services would not lightly separate a child from his parents if an alternative provision were available. That seems to be right and proper in child care law. If I am wrong in my recollection of that law, I shall certainly write to my noble friend.

437
For the reasons that I have illustrated, while we wish to minimise the time that children are detained with their families, we believe that it is an unavoidable part of a necessary process of managing the asylum system.
Lord Lea of Crondall: My Lords, before my noble friend sits down, I noticed that the right reverend Prelate asked for clarification on a point which perhaps has been puzzling other noble Lords—that is, the position on Amendments Nos. 34 and 35. Those amendments were debated in a group yesterday and a vote took place. One's usual understanding is that, when a vote takes place after a group of amendments has been moved, there is, for the convenience of the House, only one vote. I believe it is technically the position that Amendments Nos. 34 and 35 were not moved and that therefore Clauses 34 and 35 are still part of the Bill.
However, is it not also the position that the main heat in the debate yesterday was generated by the reference in Clause 34(2) to the fact that an accommodation centre cannot place children in a local authority school? The Government will now be looking at the position on Clauses 34 and 35 in the light of the amendment moved yesterday. Although the right reverend Prelate assumed that he was correct in saying that Clauses 34 and 35 had fallen, that is not the position.
However, in the light of the circumstances, no doubt the whole question of what to do about yesterday's amendments and Clauses 34 and 35 will be considered. I believe that people who are unfamiliar with the proceedings of this House might assume that either the right reverend Prelate should have pressed the matter to a vote after dinner yesterday, which would have been awkward, or that he should have pressed a vote today. Therefore, it might be useful if my noble friend were to respond by saying that his understanding is different from that of the right reverend Prelate but, nevertheless, is along the lines of what I have just described.
Earl Russell: My Lords, the position as explained to me by the noble Lord, Lord Belstead, when he was Leader of this House some time ago, is that an amendment follows on another which has been put to a vote without further ado if it is consequential upon it. As I understand it, the amendment moved last night by the right reverend Prelate the Bishop of Portsmouth was intended to, and had the effect of, placing children of asylum seekers in mainstream schools. Therefore, it was necessarily consequential upon it that Clauses 34 and 35 should fall. However, I understand that that must still be formally moved by the right reverend Prelate. If he wishes to do so, I believe that that would put the matter to rest.
Lord Filkin: My Lords, I am extremely reluctant to speak on this matter but I probably have no choice. The first point is that I have been advised by the Table that we have passed Amendments Nos. 34 and 35 and—for reasons that the House knows better than I—one cannot go backwards in terms of our processes.
438
The second point is that the noble Earl is right and, if I understand the record correctly, Amendments Nos. 34 and 35 were not moved and therefore still stand. I am speaking not as an expert on the process so if that is not the case, we will confer with the usual channels rapidly. This is not an issue on which the Government want in any way to get involved. We will accept whatever procedural ruling the House makes. We do not wish to be caught up in an issue about procedure on a vote on which we have lost the first of the three amendments that were moved together.
I am advised that Amendments Nos. 34 and 35 can be deleted at Third Reading.
Lord Judd: My Lords, does my noble friend the Minister agree that in light of the amendment that was moved and passed last night, if Clauses 34 and 35 remain the Bill is now a nonsense? It would be helpful if my noble friend could indicate what steps the Government will take to make logical a Bill that is, at the moment, illogical.
Lord Filkin: My Lords, if I am right, the House is master of the Bill rather than the Government. I will not comment on whether or not the Bill is a nonsense. I remind the House of how much work we have to do today and how important it is to give attention to these measures. The advice that I have given the Committee is the best and most honest that I can give. It is true advice and we are where we are. This is not an issue on which the Government have a view or in which they wish to get involved.
The Lord Bishop of Portsmouth: My Lords, I apologise for being responsible for this muddle. I returned to the Chamber, leaving my hot dinner in the oven, to move Amendments Nos. 34 and 35 but was told that I did not have to do so. I was not quite quick enough earlier. I am very sorry to have landed the House in this mess, but I hope that it can be picked up.
I would just point out that I heard from BID about the family who had a refusal. They were served with it at home and were immediately detained. They were not given a removal date at that stage. They had always complied and never absconded. If anyone wants to find out more about that family or anything else, I ask them to contact BID.
Turning now to the amendment, I will not detain the House—I have been turbulent enough as it is—but with regard to the 11-month issue, I pass around statistics reluctantly. That is partly because I cannot add up. Maths have never been my strong point. I fully support the two-month dream that the Government have. In every word that I have spoken about asylum seekers in this Chamber since I entered the House, I have supported the Government and encouraged them to grasp the nettle and bring down the appeal time as much as possible.
However, I cannot accept the idea that the amendments are unrealistic. We must hold fast to a vision of what children are and who they are as people. I do not believe that we can sell them cheap because of

439
exceptional circumstances. I am extremely grateful to the noble Lord the Minister for his courtesy but I still want to test the opinion of the House.
Lord Mayhew of Twysden: My Lords, before the Committe—
Noble Lords: Order!
5.15 p.m.
On Question, Whether the said amendment (No. 37) shall be agreed to?
Their Lordships divided: Contents, 64; Not Contents, 109.

Division No. 1

CONTENTS

Addington, L.

Mar and Kellie, E.

Alderdice, L.

Mayhew of Twysden, L.

Alton of Liverpool, L.

Methuen, L.

Avebury, L. [Teller]

Newby, L.

Barker, B.

Northover, B.

Beaumont of Whitley, L.

Oakeshott of Seagrove Bay, L.

Bhatia, L.

Pearson of Rannoch, L.

Carlile of Berriew, L.

Phillips of Sudbury, L.

Chan, L.

Plummer of St. Marylebone, L.

Clement-Jones, L.

Portsmouth, Bp.

Craig of Radley, L.

Razzall, L.

Dholakia, L.

Redesdale, L.

Ezra, L.

Rodgers of Quarry Bank, L.

Falkland, V.

Rogan, L.

Goodhart, L.

Roll of Ipsden, L.

Gray of Contin, L.

Roper, L.

Greaves, L.

Russell, E.

Hamwee, B.

Sandwich, E.

Harris of Richmond, B.

Scott of Needham Market, B.

Hooson, L.

Sharp of Guildford, B.

Howarth of Breckland, B.

Shutt of Greetland, L.

Howe of Idlicote, B.

Smith of Clifton, L.

Hylton, L.

Southwark, Bp. [Teller]

Jacobs, L.

Taverne, L.

Joffe, L.

Thomson of Monifieth, L.

Lester of Herne Hill, L.

Wallace of Saltaire, L.

Linklater of Butterstone, B.

Walmsley, B.

Livsey of Talgarth, L.

Watson of Richmond, L.

Mackie of Benshie, L.

Weatherill, L.

Maclennan of Rogart, L.

Wigoder, L.

McNally, L.

Wilberforce, L.

Maddock, B.

Williams of Crosby, B.

NOT-CONTENTS

Acton, L.

Burlison, L.

Alli, L.

Campbell-Savours, L.

Amos, B.

Carter, L.

Andrews, B.

Christopher, L.

Archer of Sandwell, L.

Clarke of Hampstead, L.

Bassam of Brighton, L.

Clinton-Davis, L.

Berkeley, L.

Cohen of Pimlico, B.

Bernstein of Craigweil, L.

Corbett of Castle Vale, L.

Billingham, B.

Crawley, B.

Blackstone, B.

Darcy de Knayth, B.

Blease, L.

Davies of Coity, L.

Blood, B.

Davies of Oldham, L.

Borrie, L.

Desai, L.

Brennan, L.

Donoughue, L.

Brett, L.

Dormand of Easington, L.

Brooke of Alverthorpe, L.

Dubs, L.

Brookman, L.

Eatwell, L.

440

Elder, L.

Massey of Darwen, B.

Evans of Parkside, L.

Merlyn-Rees, L.

Evans of Temple Guiting, L.

Milner of Leeds, L.

Farrington of Ribbleton, B.

Mishcon, L.

Faulkner of Worcester, L.

Mitchell, L.

Filkin, L.

Monson, L.

Fyfe of Fairfield, L.

Morgan, L.

Gale, B.

Morgan of Huyton, B.

Gavron, L.

Morris of Aberavon, L.

Gibson of Market Rasen, B.

Morris of Manchester, L.

Golding, B.

Nicol, B.

Goudie, B.

Pendry, L.

Gould of Potternewton, B.

Prys-Davies, L.

Graham of Edmonton, L.

Ramsay of Cartvale, B.

Grenfell, L.

Rendell of Babergh, B.

Grocott, L. [Teller]

Rooker, L.

Harrison, L.

Sawyer, L.

Haskel, L.

Scotland of Asthal, B.

Hayman, B.

Sheldon, L.

Hilton of Eggardon, B.

Simon, V.

Hollis of Heigham, B.

Slim, V.

Howells of St. Davids, B.

Smith of Gilmorehill, B.

Howie of Troon, L.

Stewartby, L.

Hoyle, L.

Stone of Blackheath, L.

Hughes of Woodside, L.

Strabolgi, L.

Hunt of Chesterton, L.

Taylor of Blackburn, L.

Janner of Braunstone, L.

Temple-Morris, L.

Jay of Paddington, B.

Thornton, B.

Jones, L.

Tomlinson, L.

Jordan, L.

Turnberg, L.

Judd, L.

Turner of Camden, B.

Kilclooney, L.

Walker of Doncaster, L.

Kirkhill, L.

Whitty, L.

Lea of Crondall, L.

Williams of Elvel, L.

Macdonald of Tradeston, L.

Williams of Mostyn, L. (Lord Privy Seal)

McIntosh of Haringey, L. [Teller]

Williamson of Horton, L.

MacKenzie of Culkein, L.

Winston, L.

Woolmer of Leeds, L.

Resolved in the negative, and amendment disagreed to accordingly.
5.25 p.m.
Lord Mayhew of Twysden Lord Mayhew of Twysden moved Amendment No. 38:
Page 30, line 36, leave out "that" and insert "the material"
The noble and learned Lord said: My Lords, in order to give the Minister an opportunity—or, perhaps, a further opportunity—to reply to it, I am prepared to move this amendment if that is what is required. It is a small thing; but very much my own. I beg to move.
Lord Filkin: My Lords, in the flurry of excitement about some of the previous procedures, I omitted to say that we would be happy to look at the noble and learned Lord' s suggestion, which sounds as if it is very close to getting two hits on two consecutive days.
Lord Mayhew of Twysden: My Lords, I beg leave to withdraw the amendment. I do so with much gratitude to the Minister for his encouraging words.
Amendment, by leave, withdrawn.
[Amendments Nos. 39 and 40 not moved.]
Lord Bassam of Brighton Lord Bassam of Brighton moved Amendment No. 41:
Page 32, line 2, at end insert—
"( ) In the Mental Health (Northern Ireland) Order 1986 (S.I. 1986/595 (N.I. 4))—

(a) at the end of Article 54(2)(d) (detained persons susceptible to transfer for mental treatment: immigration) there shall be added "or under section 55 of the Nationality, Immigration and Asylum Act 2002 (detention by Secretary of State)", and

(b) in the heading of Article 59 (supplemental provision) the reference to the Immigration Act 1971 becomes a reference to the Immigration Acts."

The noble Lord said: My Lords, in moving this amendment, I shall speak also to Amendment No. 42. In the interests of brevity, all I wish to say about these amendments is that they are minor, technical and consequential. I hope that noble Lords will not press me too much on them. I beg to move.
On Question, amendment agreed to.
Lord Bassam of Brighton Lord Bassam of Brighton moved Amendment No. 42:
Page 32, line 8, at end inset—
"( ) In section 147 of that Act (detention centres: interpretation) at the end of the definition of "detained persons" there shall be inserted "or under section 55 of the Nationality, Immigration and Asylum Act 2002 (detention by Secretary of State);"."
On Question, amendment agreed to.
Lord Avebury Lord Avebury moved Amendment No. 43:
After Clause 55, insert the following new clause—
"REASONS FOR DETENTION

(1) A person detained by the Secretary of State under section 55 of this Act or by an immigration officer or the Secretary of State under the Immigration Act 1971 shall be provided with full written reasons for his detention in a language which he fully understands.

(2) Such reasons shall be provided within 24 hours of his initial detention and shall give a full justification for the need to detain him at that time.

(3) Further written reasons shall be given at the end of each period of 28 days or more during which he continues to be detained and shall give a full justification for the continuing need to detain him in particular.

(4) The completion of a pro-forma sheet listing general reasons for detention will not be sufficient to meet the requirements of this section."

The noble Lord said: My Lords, I do not move this amendment with the expectation that we shall achieve any advance on what the Minister said in Committee. He told us then that the amendment was unnecessary because the Government always provide written reasons for detention, and monthly reviews of detention are notified in writing. However, as the Minister will be well aware, the practitioners say that the so-called "reasons" given do not amount to proper reasons. They are dissatisfied with the manner in which they are conveyed.
Perhaps I may draw the attention of the House to a survey that was conducted by Bail for Immigration Detainees, which was mentioned in a previous debate. The reasons for detention given in some 90-odd cases that were dealt with in April 2001 and July 2002 were
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studied. There is not much difference between the two, so I shall amalgamate the figures rather than refer to them separately. It was found that the average length of detention at the time of review in those two periods was four months. Perhaps I may give some examples from the survey of the reasons given for detention, so that the Minister can see what we mean when we say that they are inadequate. I begin with: "Awaiting initial decision", which amounted to 2 per cent, but that is not a reason for detention.
Further examples were:
"Awaiting outcome of appeal against initial refusal",
which showed a figure of 42 percent. Again, that is not a reason for detention. And:
"Appeal lodged awaiting hearing date",
which amounted to 6.5 per cent. I shall not go through the whole list of the reasons, but I am sure that the Minister can understand why we are anxious about this and why we believe that the assurances so far given are inadequate. That is why we seek to insert into the Bill the words set out in the amendment. We need to be certain not only that the assurances are carried out but also that they are on the face of the Bill and, therefore, irrevocable. In that way, people will be able to draw attention to the wording if they believe that the assurances are not being put into practice. I beg to move.
5.30 p.m.
Earl Russell: My Lords, it has been English law since the 17th century, and some would say since the 14th century—I incline myself towards the latter view—that one cannot arrest and detain a person unless he has been proved guilty of an offence or one wants immediately to charge him with an offence and bring him to a trial at which the charge may be answered. Clearly, that has been English law for a long time. The question is how far that law applies to foreign citizens in this country.
In the early 1990s I used to say that we were the only party prepared to come into office willing to limit our own power. During the passage of the Human Rights Act, my noble friend Lord Lester of Herne Hill pointed out that the Government were also able to claim the credit for that principle. They were prepared to come into office ready to limit their own power. That was an accurate statement and I do them honour for it. But the process is one that necessarily hurts and when we were in office we found that it hurt. Measures such as the Official Secrets Act 1911 are not among the great glories of my party.
However, this Government have to accept that they cannot detain people simply because they believe that it would be more convenient to do so. They must be able to charge people with an offence and to give them written reasons, to which they may make a reply and to which they may make a defence. The incorporation of the European convention applies what used to be described exclusively as the liberties of Englishmen, not to mention Scotsmen, to other people from other

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countries. That was a great leap forward and one must not stop half-way through a great leap forward or one suffers a terrible splash.
The Earl of Sandwich: My Lords, the noble Earl has spoken with authority, but I confess to a degree of exasperation. During previous stages I expressed disappointment with the repeal of Part 3 and the lack of proper procedures for explaining to detainees the reasons for their detention. The Minister has offered us a pamphlet advertising the right to bail, which is welcome, but it is not a substitute for a proper judicial process.
Lord Filkin: My Lords, we are not, as yet, debating Part 3 bail.
The Earl of Sandwich: My Lords, that is right, but I cannot help but make the point that the two matters are connected although not grouped together. I am concerned with the lack of proper procedures for explaining to detainees the reasons for their detention as I have mentioned before. I feel strongly that the checklist known as form IS91R should and could be improved at least to allow space to record the detainee's individual circumstances. The present form is contrary to UN guidance, as presented in evidence three years ago to the Select Committee, which said:
"Individualised written reasons, as opposed to repetition of generic formulae, for detention should be given to detainees at the time of arrest".
The improved form, besides fulfilling the UN criteria, could also become the basis for information prepared for bail hearings. I believe that there is new ground for debate on this matter. Therefore, it links directly with the arguments being made for automatic or regular bail hearings. Bail summaries should be available in advance of hearings to enable the detainee to prepare. That will save the time of the court.
A number of points arise from the Minister's recent conversations with the noble Lord, Lord Avebury, as already mentioned. I hope, for example, that we shall hear clearly from the Minister on the critical question of how the effects of torture and other medical information are recorded in the case of individual detainees. It is precisely because of the need for that information to be properly noted that we were arguing for an improved version of the written reasons. Many of us remained wholly unsatisfied with the present situation as the bail for immigration detainees case studies show. We remain of the view that assurances clearly given in 1999 by the noble and learned Lords, Lord Williams of Mostyn and Lord Falconer, have not been honoured. The Home Office still needs to put the matter right. I support the amendment.
Lord Kingsland: My Lords, will the Minister kindly tell the House why he believes that Clause 55 of the Bill conforms to the European Convention on Human Rights? The Government have certified that that is so, but I, for one, would welcome an explanation.
Lord Filkin: My Lords, the Detention Centre Rules 2001 require every detained person to be provided with
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written reasons for detention at the time of his initial detention and monthly thereafter. The notice must be explained to the detainee, using an interpreter if necessary, and must be certified by an immigration officer.
It is not the case that the current notice provides only generalised reasons for detention. It sets out the specific power of detention used and specifies the particular reasons and factors that apply to the decision to detain in the individual case concerned. The powers, reasons and factors that may be indicated on the notice are the only ones that can apply in any case.
Our view is that an individual letter would cite exactly the same information, so a letter or other document drawn up for each individual case, as required by this new clause, would provide no information that is not already given in the notice.
To strengthen the monthly review process we have recently set up a central unit to manage detained cases. The unit is responsible for reviewing continuing detention in all cases and will also track detained cases through the asylum and appeals process. In addition to regular monthly reviews, the unit will also conduct event-driven reviews at other times, thus ensuring that the matter of continuing detention is considered even more frequently. It will also continue to be the case that detention will be reviewed at a local level on a weekly basis.
As part of the changes to the system of monthly reviews of detention, we shall also be reviewing the notice given to detainees to let them know the outcome of the detention review. It may be that the notice should be revised to improve the way in which it provides reasons for continuing detention. We have not closed our eyes to such a need.
On the question from the noble Earl, Lord Russell, and the noble Lord, Lord Kingsland, on the powers, detention for immigration purposes is expressly authorised by Article 5.1(f) of the ECHR, which permits the lawful arrest or detention of a person to prevent his effecting unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.
Earl Russell: My Lords, the Minister has just invoked Article 5.1(f) of the convention, but surely once a claim for asylum has been lodged, which must necessarily be true of all people under consideration now, that is overridden by Clause 31(1) of the 1951 Convention on Refugees. The matter came before Lord Justice Simon Brown judicially in a recent case and was determined without any ambiguity.
Lord Filkin: My Lords, as discussed in Committee and in the Home Office's response to the Joint Committee on Human Rights, we fully accept the implied limitations on the power to detain for a reasonable time for the purpose allowed by the power and the detaining authority acting with reasonable expedition. I shall consider the point raised by the noble Earl, Lord Russell. Without the clauses in front of me it would be flippant to dismiss it. However, I do

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not want to imply that we consider, for a second, that we are not operating fully within the power of the law. In support of that I would advance that clearly any person who is detained has a right of challenge to the courts either under judicial review or under habeas corpus for their removal. Therefore, I would have expected that in that case, were there to be such a flaw, it would already have been found out. I am further advised that Article 31.1 of the 1951 convention refers to penalties. Immigration detention is not a penalty for these purposes.
I indicated earlier, in what I said in terms of monthly reviews, that our minds are not closed as to whether improvements can be made with regard to the notification of initial decisions. The form is kept under review. We shall consider improvements. But currently we remain satisfied that the form is a right and appropriate way of giving the information that we are obliged to give. I should welcome receiving any representations made by your Lordships or other organisations if there are points that they want to bring to my attention.
Lord Avebury: My Lords, that is fairly helpful. I welcome what the Minister has said about the central unit, which is to review cases in detention and to conduct its own written reviews, which seems a good idea to me. It is also, most importantly from the point of view of this amendment, to look again at notices which are given to detainees. I am grateful to the Minister for his kind assurance that he will consult us and any of the agencies that are concerned in these matters, in order to see what they think should be done to improve the way that the forms are worded.
To the best of my knowledge, the noble Earl, Lord Sandwich, was correct that both the IS 91, which is given to a person on his initial detention, and the IS 151, given on the renewal of his detention, contain a checklist. That is what we consider to be inadequate. If a detainee receives a piece of paper which has been mechanically ticked and states, "You are likely to abscond if given temporary admission or release", we would consider that to be inadequate. A detainee is entitled to an explanation as to why an immigration officer takes the view that he is likely to abscond if he is given temporary release.
These are matters that we could discuss in detail. Therefore, I shall take up the Minister's invitation. I shall bring the experience of the organisation BID to that discussion and perhaps we may jointly have a meeting with it. Therefore, its input can be listened to by the Home Office officials. I am most grateful to the Minister. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Dholakia Lord Dholakia moved Amendment No. 44:
Leave out Clause 57.
The noble Lord said: My Lords, noble Lords will be aware that we raised this matter in Committee. We return to the same point because it seems that there were some discrepancies in our information at that stage. That is why we suggest that Clause 57 should not
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stand as part of the Bill, a view very much supported by the voluntary immigration agencies that we have consulted.
Paragraph 17 of Schedule 2 to the Immigration Act 1971 permits an immigration officer or a police officer to enter premises to search for a person who is liable to be detained pending examination or removal under paragraph 16 of the same schedule. Before they do so, however, they must have obtained prior approval and a warrant from a justice of the peace to enter those premises to search for and to arrest that person.
If a police officer arrests a suspect he will then be able to conduct a search of that person's pockets and outer garments in order to ensure that he is not in possession of anything that could assist his escape from custody, be used to harm himself or others or which could be used in evidence relating to the offence for which he was arrested. The power to search is conferred by Section 32 of the Police and Criminal Evidence Act 1984. An immigration officer has similar powers which derive from Section 28G of the Immigration Act 1971.
When exercising those powers a police officer will be required to act in accordance with the codes of practice attached to the Police and Criminal Evidence Act. If he acts in breach of such codes he will be liable to police disciplinary procedures and possibly subject to an investigation by the Police Complaints Authority, or he may face civil action in the courts.
An immigration officer will also be subject to the codes of practice, as adopted by immigration officers for use in connection with the exercise of a policing role, by Section 145 of the Immigration and Asylum Act 1999 and the Immigration (PACE Codes of Practice) Direction 2000.
Clause 57 proposes to change that situation. If enacted, it will mean that detainee custody officers, who are not public employees and are not directly accountable for their actions to any public service disciplinary process or any complaints procedure, will be able to enter premises and search the detainee without being subject to any code of practice or specific disciplinary procedure. This is the information that we had when we last discussed this matter.
It is also unclear to what extent their entry will be regulated by any warrant. In Committee, I asked, the noble Lord, Lord Bassam, whether it was correct that the custody officer needed a warrant. He stated:
"I think not; I think that the power is limited and that it can be exercised only when escorts are accompanying immigration or police officers to premises for which a warrant has been issued".—[Official Report, 15/7/02; col. 1077.]
If the immigration or police officer is a part of the particular body of people investigating the matter, why do we need such powers for the custody officer? If the custody officer is to have that power, why is it not possible for him to be regulated by the issue of the warrant as are immigration and police officers?
It is for those reasons that we feel that there are these discrepancies in this clause. Therefore, it should not form part of the Bill. I beg to move.
5.45 p.m.
Earl Russell: My Lords, I should like to say a few words in support of Amendment No. 54A. This concerns the revoking of exceptional leave to remain. The Home Secretary has in the past week been giving out slightly contradictory messages. On the one hand he has been urging immigrants to integrate, with perhaps extreme zeal in the matter of language. There is nothing wrong with the urge to integrate. But at the same time he made remarks in the paper at the end of last week appearing to threaten large-scale revocation of ELR already granted to people in this country for perfectly good reasons.
Can the Minister confirm that the Government do not intend any substantial revocation of exceptional leave to remain already granted, except for the reasons contained in this clause? I declare an interest in that I am asking this question on behalf of someone whose future I view with some concern.
Lord Filkin: My Lords, I am not certain that I caught every word of what the noble Earl, Lord Russell, was saying. I was conferring with the Table about where we were. I heard the noble Earl say that he was speaking to Amendment No. 54A. We are dealing with Amendment No. 44. I should be happy to return to his point when we reach Amendment No. 54A.
Clause 57 gives detainee custody officers acting under escort a limited power of entry to private premises in order to search detained persons prior to escorting them to a place of detention. The persons being taken to a place of detention must be searched before they are transported; most obviously to ensure that they are not carrying weapons or dangerous items. The search is to ensure the safety and security of the escort, the public and the detained person, including other detainees who may be in the escort vehicle. I should not have thought that that issue was in contention. The power to do so is given under paragraph 2 of Schedule 13 to the Immigration and Asylum Act 1999.
At present escorting officers cannot enter premises other than by consent. Where such consent is not given, the detained person is taken to the nearest police station to be searched. As we said in Committee, that can be embarrassing and laborious for the detained person. There are therefore real problems that the clause is an attempt to address in a limited, practical and reasonable way by ensuring that the escort can carry out the necessary search of detainees at the address at which they have been detained.
I stress that the power of entry under the clause is limited. It can be exercised only when the escort is accompanied by police or immigration officers who have a warrant to enter the premises where the person has been detained—where the escort will not be acting alone and the address will have already been entered. We took note of concerns expressed earlier about the consequential power of escorts to use force in exercising the principal power to enter an address. As a result, the provision regarding the use of force is now explicitly qualified to state that only reasonable force
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may be used. That places a greater burden of responsibility on the official. However, the provisions of Clause 57 are a necessary remedy to a situation that is causing problems.
On the question of how complaints against escorts are handled, the initial complaints will be directed to the Immigration Service's escort contract monitor, but under Schedule 13(1), the monitor is required to investigate and report to the Secretary of State on any allegations made against an escorting officer in respect of any act or failure to act while escorting a detained person. The detainee custody officer certificate may be suspended during such a process and may subsequently be revoked. So there are clear sanctions—also, of course, escorts are ultimately answerable in law for any action.
On the other question of why escorts are not subject to the Police and Criminal Evidence Act 1984 code of practice, certain provisions of the PACE codes apply to the search of persons arrested by immigration officers. However, in relation to escorts' entry to premises, it will be the police and the immigration officers who will effect the entry to premises, with the escort following.
Having made those points and given my explanation of why the provision is necessary, what are the safeguards and what is the complaints procedure for redress, I hope that the noble Lord will not be minded to press the amendment.
Lord Dholakia: My Lords, I thank the Minister for his explanation. I apologise for any confusion about Amendment No. 44, which my noble friend mistook. Will the Minister confirm that he said that a custody officer would not have power on his own to enter premises, he would be accompanied by police or an immigration officer in possession of a warrant who could do so?
Lord Filkin: My Lords, that is absolutely correct.
Lord Dholakia: My Lords, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Filkin Lord Filkin moved Amendment No. 45:
After Clause 59, insert the following new clause—
"LIABILITY TO DETENTION: INTERPRETATION

(1) This section applies to the construction of a reference (in any terms) to a person who is liable to detention under a provision of the Immigration Acts.

(2) The reference shall be taken to include a person if the only reason why he cannot be detained under the provision is that—

(a) he cannot presently be removed from the United Kingdom, because of a legal impediment connected with the United Kingdom's obligations under an international agreement,

(b) practical difficulties are impeding or delaying the making of arrangements for his removal from the United Kingdom, or

(c) practical difficulties, or demands on administrative resources, are impeding or delaying the taking of a decision in respect of him.

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(3) This section shall be treated as always having had effect."

The noble Lord said: The amendment arises from the judgment of Mr. Justice Crane in two judicial review applications brought by Mr. Hwez and Mr. Khadir, given shortly after the Bill completed Committee stage. Not to detain the House excessively, clearly there are problems as a consequence of the application of that judgment for the effective application of the asylum and immigration control processes. The judgment of the House of Lords is not expected before July, so the Government seek through the Bill to take power to put the issue beyond doubt and peradventure. I beg to move.
Lord Renton of Mount Harry: My Lords, for the Minister to say that the Government want to put the issue beyond doubt and peradventure because of one case—one judgment—is the most marvellous way to describe building a mountain out of a rather small molehill. It is extraordinary that the new clause, which, as the Minister will accept, immensely broadens the Secretary of State's powers to detain people under the immigration Acts, should come before Parliament at this late stage, when the Bill has been discussed in another place since May and we are on the second day of Report in this House. There has therefore been no opportunity for widespread reflection or consultation on what I think that the Minister would concede is a remarkable new clause.
It is remarkable, first, for its extraordinary drafting. I walk on thin ice here; I am not a lawyer. During all the years when I was an immigration Minister, I never became an expert immigration lawyer. But during 23 years in the House of Commons, I had to read an awful lot of Bills. The new clause states:
"This section applies to the construction of a reference (in any terms) to a person".
What on earth does that mean? Does it just mean that the draftsman could not be bothered to go through all the immigration Acts to which that may refer, and so simply said, "It will refer to everything that is possibly involved"? I have never seen such terms before. On first reading the new clause, I did not pick up just how serious that was and to what extent it increases the detention powers of the Secretary of State.
The new clause concludes:
"This section shall be treated as always having had effect".
That is the most marvellous example of retrospection that I have ever read.
I understand what the Minister said: there is one case about which the Government are worried so they needed to table a new clause. Obviously, there will be an opportunity for it to be debated at greater length on Thursday in two weeks' time—I think that that is what the Minister said. Is that correct?
A Noble Lord: No, my Lords.
Lord Renton of Mount Harry: Oh, this is once and for all.
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In fairness, other noble Lords on the Government Benches, such as the noble Lord, Lord Judd, may want to ask some of the same questions as me. Roughly translated, the clause appears to mean, "We are not very good at removals. We do not anticipate getting any better. Nor do we anticipate committing the expertise and resources to the area that would make us better. So we shall take power to continue to detain people without judicial oversight, limit of time and, what is more, we shall make that power wholly retrospective". That is amazing.
Either the Government intend to take powers that will put them in breach of their obligations under Article 5 of the European Convention on Human Rights or lazy drafting has resulted in a provision that will have that effect. The advice given to me by the Immigration Advisory Service, to which I am grateful for bringing the matter to my attention, is that the decision appears to pre-empt the judgment in an important case—the Oakington case—in which the judgment of the House of Lords is currently awaited. I understand that the issue before the House of Lords is whether locking up asylum seekers to facilitate the process of administering their claims to asylum amounts to a deprivation of liberty and is unjustified under Article 5(1)(c) of the European Convention on Human Rights.
The Court of Appeal reversed the decision of the High Court, which the Joint Committee on Human Rights summarised as being that,
"it is lawful to detain a person in a detention centre while the application is considered, provided that there are suitable safeguards… With regard to the length of detention, the question is whether it is disproportionate to the purpose of detention having regard to the conditions of detention and any special circumstances affecting the individual. The Court of Appeal appeared to hold that detention of asylum-seekers which satisfied those tests did not amount to a deprivation of liberty under Article 5(1)."
It must be said that the JCHR's words, "appeared to hold", may be read as an indication that the decision in the House of Lords in this case is far from a foregone conclusion—which, I understand, is also the view of other commentators.
I do not want to take up your Lordships' attention for too long on the matter, but on the question of lazy drafting, will the Minister clarify the meaning of the word "decision" in new subsection (2)(c)? It appears to be without restriction. Moreover, what is meant by the reference in subsection (2)(a) to legal impediments due to international obligations? If a person cannot be removed because of the United Kingdom's obligations under the 1951 refugee convention or under Article 3 of the ECHR, is that reason enough to detain the person, none the less? From the way that the clause is worded, it appears to be. The legitimation of detention of a person who cannot be removed from the UK because of a legal impediment is worded so as to shroud the actual meaning.
I shall give an example in layman's language. Subsection (2)(a) would refer to groups such as Zimbabweans. The Minister knows that, when the Government decided earlier this year that it would be impossible, impractical and wrong to continue to

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deport Zimbabweans to Zimbabwe, the Zimbabweans who were in detention were immediately released. Under this clause, as I understand it, such people would not be released. Is that what the Government intend, or is it a case of lazy, hasty drafting designed to deal with a particular case and done without anyone thinking through the serious consequences that would flow from such a clause?
6 p.m.
Lord Lester of Herne Hill: My Lords, optimist that I am, I hope to persuade the Minister that the right procedure would be not to move the amendment today but bring it back at Third Reading. I shall explain why.
I echo what was said by the noble Lord, Lord Renton of Mount Harry. There is a serious danger that, if Parliament were to accept the new clause, it would authorise breaches of the right to liberty in Article 5 of the European Convention on Human Rights. I shall come to the strange wording, of which I seek clarification, in a moment.
The first thing that I must say is that, unfortunately, the Joint Select Committee on Human Rights, of which I am a member, is taking evidence in the Antipodes and is, therefore, not available to give advice to the House about its views of the compatibility or otherwise of the clause with the European convention. The committee's legal adviser, Professor David Feldman, is in this country, and I would like to have time to consult him and, if authorised, present his view to the House before we take this step.
In a commendably brief speech in favour of the amendment, the Minister did not explain to the House—certainly not to me—the reasoning behind the High Court judgment, why it creates difficulties and whether it relates to human rights issues. I know nothing of the particular case. However, I do know that it is unusual, to say the least, for Parliament to be asked to give the Minister powers that will nullify a future decision of the House of Lords in a pending case. That applies not only to the case to which the Minister referred but to the Oakington case, which is pending before the House of Lords as well. The noble Lord, Lord Renton of Mount Harry, referred to that. Parliament has no access to independent legal advice on such matters, other than through the Joint Select Committee on Human Rights. Given that the committee cannot give that advice at the moment, for the reason that I have given, where is the Minister's explanation of his presumed view that the amendment is compatible with Article 5?
If the Committee were in the country, the procedure would be different. We would identify a problem—as in Amendment No. 45—and ask the Minister to give us his reasons, in writing or orally, why he considered that the provision is compatible. We would then comment on the Minister's views and refer them for the attention of both Houses. That procedure could not be followed in this case, and the Minister has not given the House the benefit of his considered views and
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those of his legal advisers—without going into questions of legal professional privilege, which I do not seek to do—on compatibility.
We should consider what the clause says. It is bizarre and curious. It is headed, "Liability to detention: interpretation". It is a general clause, which purports to widen the Home Office's powers of detention. It states:
"This section applies to the construction of a reference (in any terms) to a person who is liable to detention under a provision of the Immigration Acts".
That is as broad as could be. Then, it states:
"The reference shall be taken to include a person"—
to be detained—
"if the only reason why he cannot be detained under the provision is that—
(a) he cannot presently be removed from the United Kingdom because of a legal impediment connected with the United Kingdom's obligations under an international agreement".
The two most relevant international agreements are the European Convention on Human Rights and the refugee convention.
Let us consider a case that arose last year with the anti-terrorism law and a suspected terrorist who had to be detained because, if he were sent to another country, he would face the death penalty or torture, in breach of Article 2 or 3 of the European convention. The Government rightly took the view that holding someone in those circumstances would be in breach of Article 5 of the European Convention on Human Rights, unless there were a derogation. So, a derogation was made. There was a huge debate about it in both Houses, and its compatibility is now being tested in the courts. However, the Government did, at least, seek a derogation for a suspected terrorist in those circumstances.
However, this provision does not apply only to a suspected terrorist, a case that the present derogation would cover. It covers anybody who is liable to be detained but,
"cannot presently be removed from the United Kingdom, because of a legal impediment"—
whatever that means—
"connected with"—
whatever that means—
"the United Kingdom's obligations"
under the European Convention on Human Rights or the refugee convention. In other words, as I read it—I am sure that I will be corrected if I am wrong—it authorises the detention of someone who cannot be removed from this country to face the death penalty or torture but who is not a suspected terrorist and has not been convicted, or is not suspected, of a serious criminal offence.
If I have got that right—and I ask the Minister to make quite clear to the House his understanding of the full scope of the power and his reasons for believing the powers sought to be compatible with Article 5, notwithstanding the absence of derogation—I must protest with as much eloquence as I can muster. It is entirely wrong that powers of this magnitude should

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be sought, after the enormous controversy that we had over the terrorism legislation—a much more serious situation—a year ago, in the guise of putting right a High Court decision that might be affirmed by the Law Lords next July and causes administrative inconvenience.
I cannot expect the Minister to give a full explanation to the House today, without notice, of his reasons for considering the provision to be compatible with the convention. I cannot expect him to set out the whole High Court decision to which he refers—it would be boring if he had to do so—and I cannot expect him to explain why it is right prospectively to make the rulings of the Law Lords irrelevant to the law of this country. However, given that the Joint Select Committee on Human Rights is not here to do its job and that Parliament has no access to independent legal advice, I respectfully suggest, in deference to our accountability to Parliament as law makers, that we should postpone consideration of the amendment until the House has had the benefit of a full explanation and can consider it at Third Reading.
Lord Filkin: My Lords, it might help the House if I spoke more fully at this point, so that I can put into the discussion more of the argumentation. As several noble Lords have said, it is important to understand it. With the leave of the House, I will do that, as it may focus the discussion. Perhaps I left too much for my closing speech and should have put more into my opening speech. If the noble and learned Lord, Lord Mayhew of Twysden, will bear with me on that I think it would help the discussion, leaving open for a second the procedural issue raised by the noble Lord, Lord Lester.
First, we accept that this is only one case.
Lord Dholakia: My Lords, will the Minister confirm that there will be an opportunity for other Members to speak and that this is not his closing speech?
Lord Filkin: My Lords, I am advised by the Table that the way that I have phrased it makes it clear that other Members can speak after me because I am giving information to the House, rather than making my closing speech.
We certainly accept that this is only one case, but it has significant ramifications. It is fundamental to the discussion that the clause does not authorise detention. For that reason we believe it is compatible with ECHR because we will not detain anyone as a result of the clause. No one will be detained but the power relates to the ability to grant temporary admission to people who are not detained. The judgment of the High Court is that one cannot detain someone if at that precise moment he cannot be granted temporary admission either. We want to be able to grant temporary admission and because there is no detention we believe there is no issue of incompatibility with Article 5. The judgment held that temporary admission is not available when the power to detain no longer exists.
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Paragraph 16 of Schedule 2 to the Immigration Act 1971 allows certain categories of people to be detained pending a decision whether or not to give directions for their removal. I regret to say to the House that this statement will take some time because it is highly technical and highly legal material and I need to put it into the record in full. Where removal directions are given, they may then be detained pending removal. Paragraph 21 of that schedule provides that where a person is liable to detention or who is actually detained under paragraph 16 he can be admitted or released temporarily. This temporary admission or release can be subject to conditions requiring the person to live at a particular address and to report at specified times.
As noble Lords will be aware, there is no set time limit to the power to detain but for the detention to be lawful it has to be for the reasons stated and may go on for no longer than is reasonable in order to achieve the objective for which it is authorised. For example, if removal cannot be reasonably said to be pending, in the sense that it is not going to be possible to remove the person within a reasonable time, the person concerned cannot be detained. When this point is reached, the normal practice is to grant temporary release under paragraph 21. This will generally be subject to conditions of the kind I have described.
However, in the case I mentioned, Hwez and Khadir, Mr Justice Crane held that the term "liable to be detained" did not refer to the category of person, but in effect means the same as "could lawfully be detained at that moment". In other words, if the point is reached where someone can no longer be lawfully detained, the alternative of granting temporary release on conditions is not available. We may not detain, yet we may not impose restrictions on them (via the authorisation of temporary admission) while they remain in the United Kingdom. This is so even where it is our firm intention to remove the person concerned as soon as it is possible to do so.
Similarly, if a person is on temporary admission, and a point is reached where his removal cannot be described as pending, the temporary admission ceases to be valid. Although the point made in Hwez and Khadir related specifically to powers under Schedule 2 which apply to arriving passengers, illegal entrants and overstayers, it would apply equally to someone who is the subject of deportation action under Schedule 3.
Take the case of a person who has committed a serious offence and whom we wish to deport, possibly someone who has been recommended by a court for deportation. The 1971 Act allows that person to be detained after he has completed his sentence pending his deportation from the UK, but this is again subject to a test of what is reasonable in all the circumstances. Normally if such a person cannot lawfully be detained, he will be released subject to restrictions requiring him to live at a particular place and report on a regular basis. That way, the Immigration Service is able to keep in contact with the person concerned. Following the decision in Hwez and Khadir, there is no legal basis for imposing such requirements.

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The ability to require someone who is physically present in the UK but does not have leave to reside at a particular address and to report to the police or Immigration Service on a regular basis is crucial if we are to stand any chance of being able to keep track of him. We believe the judge's interpretation is wrong, as we have indicated, and we have been granted leave to appeal to the Court of Appeal. However, the point is unlikely to be finally settled in the near future. Of course, we do not know what the eventual outcome will be.
As I say, the ability to be able to require people to live at a particular address or to report regularly are key to the concept of contact management. We fully accept that there are implied limitations on the power to detain. But we cannot have a position where those people subject to immigration control who do not have leave to be here and whom we may not lawfully detain are able to remain in the UK pending the next stage of the immigration process—for example, removal—without us being able to impose any sort of restrictions on them, such as residence or reporting restrictions.
To deal with the effect of the judgment, subsection (2) of the proposed clause therefore makes it clear that a reference to being liable to detention includes cases where for one reason or another a decision or removal is not pending. I should stress that we are not saying that such persons may lawfully be detained. All we are trying to do is to ensure that where the ability to impose restrictions on a person subject to immigration control rests on that person being liable to be detained—paragraph 21 of Schedule 2 to the Immigration Act 1971 and paragraph 2(5) and (6) of Schedule 3 to that Act—we can do so even where we may not lawfully detain the person concerned.
The clause will come into force on Royal Assent and is to be taken as having always applied. This will make it clear beyond question that a person is in one of the categories concerned to be given temporary admission even when he cannot be—or can no longer be—lawfully detained.
I should make it clear that this does not alter the position as regards the lawfulness of a person's detention. What it does is restore the option of granting release on conditions where detention is no longer possible which was generally believed to be the position before this judgment.
Lord Renton of Mount Harry: My Lords, I thank the Minister for giving way. Can he point out to me, as a non-lawyer, just where that point is made clear in this clause?
Lord Filkin: My Lords, let me receive that point, but I believe that I should finish what I have to say because some of it is so technical that it is only fair to the House to put it on the record. I will then seek to come back to answer that question.
Subsection (3) of the clause has the effect of—
Lord Mayhew of Twysden: My Lords, my noble friend Lord Renton of Mount Harry has asked a very
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relevant question. I understood the Minister to say that the new clause does not make lawful continued detention. Is that what he intended to say? Is that what he believes to be the case? Certainly in the brief time one has had available to examine the Bill, that does not appear upon the face of the new clause.
Lord Filkin: My Lords, what I believe I said was that the clause does not authorise detention.
Lord Mayhew of Twysden: My Lords, how can that be justified? It does authorise continued detention. That is its whole purpose.
Lord Filkin: My Lords, before we go further perhaps I may deal with my response to the suggestion made by the noble Lord, Lord Lester of Herne Hill. What I am reading into the record now is of great complexity and there is clearly, as there should be, interest and concern in the House to look at it. I would not feel happy if we had a Division on an issue when it was almost impossible for people to be certain that they were in favour of dividing one way or another. Therefore I intend to read into the record of Hansard the full reasons for the Government's position on the matter, and do not intend to force the amendment today. That will allow the House the opportunity to consider the amendment. I should stress that this is to allow the House the opportunity to consider it before Third Reading because we wish to make progress at Third Reading. I hope that that is acceptable. Even though it is not the most attractive course of action, I feel that it is only fair to the House.
Lord Lester of Herne Hill: My Lords, that would meet my concern. It would give the House the opportunity to understand the proposed new clause—which, on its face, is not very clear—and it would give us time to think about it before we decide whether to make it a part of the law of the land.
Lord Carlisle of Bucklow: My Lords, in a Bill of this nature, normally the department is good enough to supply explanatory notes. It would be helpful if an explanatory note on the effect of the clause could be provided in the mean time.
Lord Filkin: My Lords, that is a further good suggestion. We shall do that. It will enable us to amplify any points which are not covered by what I am now reading into the record. It may also pick up some of the other questions raised. I hope that that is acceptable.
Lord Renton of Mount Harry: My Lords, other noble colleagues may wish to ask further questions—that I well understand—but any approval of this clause should be suspended until Third Reading. There should be an explanatory note so that we can all

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understand what the Government are intending to cover in the new clause, which is not at all clear at the moment. That would be a very satisfactory solution.
Lord Filkin: My Lords, that is what we shall do. Perhaps I may continue. It will, I am afraid, be tedious, but it is essential that I continue the exposition in order to have on the record the finality of it.
Subsection (3) has the effect of giving the clause retrospective effect. This means that an argument by persons who, in the light of the judgment of Mr Justice Crane, might seek to say that the restrictions which had been imposed on them under paragraph 21 of Schedule 2 or paragraph 2(5) of Schedule 3 to the Immigration Act 1971 were or had become invalid, would fail. Subsection (3) has the effect of validating the authorisation of temporary admission and restrictions imposed.
The reason for the retrospective effect of the clause is that it is simply not possible for the Immigration Service to identify all of those persons who, in the light of Mr Justice Crane's judgment, may not be subject to any valid restrictions, and to re-authorise temporary admission to such persons, and re-impose fresh restrictions on them on commencement of this clause on Royal Assent. The retrospective effect of the clause avoids the need for the immigration authorities to do this.
There may be some concern about the retrospective nature of this clause given that it is a criminal offence under Section 24(1)(e) of the Immigration Act 1971 to breach restrictions imposed under Schedules 2 or 3 to the 1971 Act without reasonable excuse. As the law stands at the moment in the light of Mr Justice Crane's judgment, and should Mr Justice Crane's judgment be upheld on appeal, there may well be people who can say that in the light of that interpretation of the power to authorise temporary admission and impose restrictions on them, the restrictions imposed on them had not been validly imposed and therefore they had no reason to comply with them whether or not they had a reasonable excuse.
As I have explained, the effect of subsection (3) of the clause will be to validate those restrictions. I have explained the reasons for needing to validate those restrictions, but I must make it very clear that it is the Government's intention that the retrospective effect of the provision will not operate so as to create any criminal liability under Section 24(1)(e) of the Immigration Act 1971 for breach of restrictions validated by it in respect of the period prior to its enactment. The intention is that subsection (3) would not operate so as to impose criminal liability on persons who had breached restrictions imposed on them under paragraph 21 of Schedule 2 or paragraph 2(5) of Schedule 3 to the 1971 Act before this clause comes into effect to the extent that the courts find that those restrictions, but for the retrospective effect of this clause, had not been validly imposed at the time when the restrictions were breached.
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Criminal liability would, however, arise if a person whose restrictions had been validated by this clause failed to comply with such restrictions without a reasonable excuse after the clause comes into force.
And, of course, where restrictions have been validly imposed before this provision comes into force and no question as to their validity is raised as a result of Mr Justice Crane's judgment, or any future judgment on appeal of that decision, then a person may face prosecution now and after commencement of this provision, as before, if they have breached those restrictions without reasonable excuse. Nothing in this clause affects the position of such persons.
I am conscious of how highly technical this is. I repeat the assurance that I gave to the House: we do not intend to move the amendment. That will give the House an opportunity to consider the proposed new clause and its explanatory note. I hope that that will expedite business, both today and at Third Reading.
Lord Mayhew of Twysden: My Lords, I am afraid that I shall not be as kind about this proposed new clause as my noble friend Lord Renton of Mount Harry.
I wish to begin my short contribution by a word of kindness, or at least consideration, towards the parliamentary draftsman. It is unduly harsh to refer to this as lazy draftmanship. When I had some responsibility for the parliamentary draftsmen, the very last quality I would associate with any one of them was that of laziness. The fault with this clause—and it is an enormous fault—lies not with the draftsman, whom I am sure was told to construct a scattergun or blunderbuss clause—which is exactly what has been constructed—but with those who gave the instructions.
The new clause deals with the power of the state to detain people—that is to say, to deprive them of their liberty. As we all know, in the context of immigration law, this power has been dealt with by successive immigration Acts. Those Acts have imposed, very properly, at the instance of Parliament, strict limitations on the powers they confer to detain, to deprive people of their liberty. In the new clause, those provisions apply to people "who are liable to detention". Very properly, those powers are limited. In other words, it is only in very carefully defined and strictly limited circumstances that a person may be liable to have his liberty curtailed. That is absolutely right and four-square with our traditions in this country.
Now, as we have heard from the Minister—for whom I feel I must express deep sympathy at being handed such a brief—the Government are faced with the judgment of which we have heard. He will forgive me if I do not follow him in the technical explanation that he has given, which extended over four or five closely typed pages. The Government have responded to the judgment about which we have been informed by blandly referring to obligations, entered into freely by this country, in international law as an impediment to the removal of a person.

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It is an impediment indeed. I have always understood that this Government took great credit for upholding international law, but in recognising that there are circumstances where international law imposes an impediment on removal, they recognise, as I understand it, that the person concerned can no longer be regarded as liable to detention. So what do the Government do? They introduce, by a blunderbuss clause, provisions which make people who are no longer liable to detention, liable to detention. That is the effect of the clause. It is intended to be the effect of the clause.
Whether or not it is intended to have that effect, that is the effect that it has. I respectfully suggest that when the Minister began his explanation, he was not justified in saying that the clause does not authorise detention. It does. It authorises detention where continued detention has been found to be unlawful by reason of an impediment imposed by international law.
And it does so by the use of language which should find no place whatever in our statute book, at least in the context of deprivation of liberty—that is, the extraordinary provision that,
"This section shall be treated as always having had effect".
Perhaps the Minister will take instructions as to whether such a provision has ever found place in the statute book, certainly in connection with the deprivation of liberty. I regard it as almost literally breathtaking.
We now find the Minister saying that, although punitive penal provisions in the legislation would technically be engaged, it is not the Government's intention that the new clause should operate to impose criminal sanctions. But that is exactly what the new clause does. One could continue to an extent that would weary the heavens, let alone this House, about the iniquities of this new clause. It really must not happen.
Yesterday, much concern was expressed and we heard reassurances from the Government that children, for example, would not remain in detention for long, and therefore the concerns expressed by the right reverend Prelate the Bishop of Portsmouth would not be met with in fact. Now, apparently, they are to be capable of being detained for an indefinite period, even though the Government say that that is not the intention.
Retrospective legislation is anathema to the rule of law. If there are specific cases which the Government feel must be dealt with, that must be done by specifically targeted legislation and not by this iniquitous blunderbuss.
6.30 p.m.
Baroness Carnegy of Lour: My Lords, to my simple mind, not understanding all the issues involved, it seems to me that what the Government are trying to do is to frustrate the immediate effect of a recent court
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decision, and to do it by retrospective legislation. Am I correct; and if so, do the Government really think that that is the correct thing to do?
Lord Kingsland: My Lords, I, too, should like to ask the Government about the constitutional propriety of what they are doing. As I understand it, the case of Hwez and Khadir was decided by Mr Justice Crane, among other things, on a human rights issue. I am assuming that that is so. If it is the case, there must be a chance that the Judicial Committee of this House will confirm that judgment.
If the Government proceed with this amendment, therefore, there will be a clear incompatibility between statute law and the European Convention on Human Rights. If this legislation is on the statute book by the time the Judicial Committee takes its decision, that incompatibility will have to be declared by the committee. Yet the Government have already certified the Bill as being compatible with the European convention.
The Government know all of that in advance. Surely the Government must accept that, in the light of that knowledge, it would be wholly inappropriate to pursue this amendment.
Earl Russell: My Lords, the noble and learned Lord, Lord Mayhew, issued us with an historical challenge: to find anything similar providing that a restriction on liberty should always have had effect. Before visiting the Library, I cannot confirm it, but I believe that there is one precedent; namely, the replies to the questions of Richard II to the judges in 1386. Within 18 months, those judges had been impeached—and I do not need to tell your Lordships what happened to Richard II.
Lord Lester of Herne Hill: My Lords, before the Minister replies, since I raised the matter in what he may regard as high-falutin terms, perhaps I may respond to the information that he has given. I have listened carefully to him and in so far as I understand the technicality of what he is saying—I shall certainly want to read his remarks in Hansard—the position is this. This provision, although its rubric is,
"Liability to detention: interpretation",
has nothing to do with liability to detention. Therefore, the rubric is misleading. As I understand the Minister's remarks, it relates to a liability to have conditions imposed on someone who cannot be detained, but as regards residence, reporting and matters of that kind. If that is the position, I respectfully suggest that it should not be beyond the wit of Parliamentary Counsel to draft a narrower, carefully tailored amendment that would deal with that. It would then seem to me to be entirely unobjectionable to fill that gap, notwithstanding one's normal horror at retrospective legislation. But, on the face of it, the provision as drafted seems to go much wider than that. If that could be done, I am sure that it would meet my concerns and those of other noble Lords.
Lord Filkin: I thank the noble Lord, Lord Lester, for his thoughtful suggestion. I shall consider it and see

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whether a redrafting of the amendment would aid clarification and might aid the appearance of better law-making.
I shall not respond in detail. It has been helpful to hear the challenges. We shall examine this issue in detail and publish Explanatory Notes. That will give the House a proper opportunity to see, with the benefit of those notes and some time, on the record, whether there are grounds for the concerns raised.
The timing of the introduction of this new clause, on Report, is unavoidable in that the judgment did not take place until 29th July. For the reasons I have indicated, we feel that there are pressing issues. Exactly as the noble Lord, Lord Lester, said, we are talking essentially about the power to grant temporary admission, not the interpretation of the power to detain. However, I shall not press that point at this stage. Let the record be inspected; let us put out Explanatory Notes; and, if it would help the House, let us offer bilateral discussions between now and Third Reading, so that one can try to ensure that there are no misinterpretations. For the avoidance of doubt, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 60 [Bail]:
[Amendment No. 46 not moved.]
Lord Avebury Lord Avebury moved Amendment No. 47:
After Clause 60, insert the following new clause—
"BAIL HEARINGS: SURETIES

(1) This section applies in a case where the Secretary of State, an immigration officer, an adjudicator or the Tribunal has power to release on bail.

(2) Sureties may only be imposed where absolutely necessary to secure compliance with any conditions of bail, taking into account the personal circumstances of the detainee.

If sureties are imposed the amount, if any, in which such a surety shall be bound shall be reasonable."

The noble Lord said: My Lords, we return to a point that we raised in Committee. It relates to the fact that, in the past, adjudicators have demanded two sureties. That has created enormous difficulties where the sureties are put up in one part of the country, the adjudicator is hearing the case in another, and the lawyers come from a third. Enormous efforts have to be made by organisations such as BID to provide the necessary amounts for the sureties demanded.
We have consistently demanded that the adjudicator should have power not to demand any sureties, or to demand one surety or two sureties if that is what he thinks proper. There must be very few cases where the requirement for two sureties, which has been regularly observed in the past, is really necessary from the point of view of ensuring that a person responds to bail.
We held discussions with the Minister during the summer and he gave us an assurance that the adjudicators were already complying with what we are demanding; namely, that they should have power in suitable cases not to demand any sureties. I am sorry to tell the Minister that only this afternoon I was
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handed a summary of a bail application made as recently as 3rd October in which the reasons for opposing bail included the fact that,
"Rule 34 of the Immigration and Asylum Procedures Rules requires a written application for bail to provide two sureties. No sureties have been offered in this case".
So adjudicators are continuing to observe that provision in the rules and nothing has been done to draw their attention to the fact that they are no longer required to do so.
I hope that the Minister will take this opportunity to set out the position clearly on the record. I hope, further, that the rules can be amended, if that has not already been done, so as to put the matter beyond doubt. It is a burdensome requirement and it is not necessary. I beg to move.
Lord Hylton: My Lords, the present situation is that asylum seekers and other immigration cases are being detained for up to 11 months. A small sample survey that was quoted in your Lordships' House earlier today showed that there was a four-month average. That is a very unsatisfactory state of affairs that we thought had been remedied by the 1999 Act, which provided for automatic bail hearings. Regrettably, that part of the Act was never brought into force, and, today, Amendment No. 46, which would have revived it, was not even moved.
Therefore, we urgently need some form of automatic bail hearing, reasonable conditions of bail—not demands of £1,500 a head on people who arrived in this country almost penniless—and written reasons for the detention, so that the adjudicator or the magistrate can consider the matter properly I hope that the Government will take this amendment rather more seriously than they look the previous one.
The Lord Bishop of Portsmouth: My Lords, I wish to follow the noble Lords, Lord Hylton and Lord Avebury, in speaking to this amendment. It is yet one more example of how the Bill can be made more comprehensive, accountable and—in the best sense of the word, because I know that it has a sentimental sense also—compassionate. Given my own experience of meeting those involved in bail hearings and in dealing with asylum seekers, I hope that the amendment is given a sympathetic hearing.
Lord Borrie: My Lords, I have some queries. The amendment seems extremely restrictive in its statement that,
"Sureties may only be imposed where absolutely necessary".
I am unsure of the current position; it is probably that sureties are asked for when deemed necessary or appropriate. It is an established tradition of all bail law that those in the position to grant or refuse bail have an option to seek sureties. To suggest that they should be sought only where absolutely necessary is extremely strong and perhaps too heavy a hobbling condition precedent to be justified. The last part of the amendment states that if sureties are imposed the amount should be reasonable. That is the present position, so I am not sure why the provision needs to

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be there and I am not bothered by it, one way or the other. However, I am bothered by the provision that requires sureties to be requested only when absolutely necessary.
Lord Dubs: My Lords, I did not intend to intervene in this debate but I must take issue with my noble friend Lord Borrie. Essentially, we are talking about innocent people who have not been charged with a criminal offence. Normally, bail is granted when dealing with criminal offences. These are innocent people, so the concept of surety should hardly apply. From my knowledge of asylum seekers, I find it difficult to believe that any of them would have the money to provide any surety unless they had friends here who could do it for them. I find it difficult to envisage circumstances where it is necessary to detain people but where a surety would make it OK to let them out. I do not understand what the Government fear those people might get up to in respect of which a sum of money would make the activity all right. I am puzzled; I would have thought that if it is inappropriate to detain people, one does not need a surety and they should just be released. Perhaps my noble friend could clarify the matter.
6.45 p.m.
Lord Filkin: My Lords, I shall seek to do my best. The option to seek sureties when granting bail, as the House knows, is an established part of the bail process. The purpose of requiring individuals to stand as surety is to try to ensure that the person bailed appears as required at the end of the bail period. That is a sensible measure.
Under the bail arrangements for immigration detainees, an applicant for bail is required, when he applies to an adjudicator for bail, to put forward the names of two persons who would be willing and able to act as sureties in the event that bail is granted. As the noble Lord, Lord Avebury, will know, planned changes to the procedure rules will replace this requirement so that any person may act as a surety. This will be put into effect when new procedure rules are issued following the enactment of the Bill. We wrote to him on 3rd September setting that out.
However, even at present, there is no statutory requirement on an adjudicator to require that sureties stand in every case. An adjudicator may not always consider it necessary or appropriate to require persons to act as sureties before granting bail. However, where they do, it is rightly for them to judge that this is the case and to judge the amount of recognizance in which the sureties should stand. These decisions are already taken in the light of the circumstances of the detainee and of the persons acting as sureties.
The current legislation, we believe, provides a satisfactory framework in which these matters of judgment may be exercised. It is already the position that sureties will not be needed in every case. It is the judgment of the adjudicator as to whether to impose them, and we believe that adjudicators and immigration officers recognise this fact. It must be
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remembered that a person applying for bail is in lawful detention and, in many cases, will be considered unlikely to comply with any reporting restrictions. If that was not the case, he would no doubt have been granted temporary admission or release. When it comes to granting bail, it is quite proper that there will be cases where there should be some significant financial incentive—the amount will be judged by the adjudicator—on the detainee directly or on his sureties to comply with the terms of the bail granted. This is reasonable, sensible, and in accordance with long-standing practice. It is worth remembering that the detainee or his sureties will not lose their money provided the person on bail abides by the terms.
Baroness Williams of Crosby: My Lords, I have listened carefully to what the noble Lord said. Will he consider further the point raised by the noble Lord, Lord Dubs? In the experience of many of us over the years, it is precisely the person who gets here through having been able to pay a substantial sum to somebody who can bring him who is most likely to be able to get people to put up a surety. It is the absolutely genuine asylum seeker, sometimes fleeing for his life and liberty, who will have neither money nor, in many cases, associates in this country. Indeed, in many ways, this is an instance in which he can show how genuine a refugee he is.
Lord Filkin: My Lords, I take that point and I understand it. However, there is a problem. If, in the judgment of the adjudicator—who, as the House well knows, is well distanced from and no part of the Home Office—there is a risk that the person, if bailed, would not present himself at the appropriate time, the adjudicator is entitled to require sureties and recognisances. If those cannot be provided and it is considered that there is a risk of non-presentation, the adjudicator will make the judgment in the light of those circumstances. I cannot see that the adjudicator can do much else in that situation.
I shall give a few figures that may help. On average, 84 per cent of bail grants were subject to surety conditions. It is not without conjecture that people are granted bail without any surety conditions.
In the light of what I have said and the discussions that I have had with the noble Lord, Lord Avebury, I hope that he feels able to withdraw the amendment.
Lord Avebury: My Lords, I was hoping to get on the record precisely what the Minister has said, which, as he mentioned, he embodied in a letter to me, which may have been placed in the Library of your Lordships' House, but which might not have reached a wider audience if he had not made the speech to which we have just listened.
The noble Lord, Lord Borrie, may be interested to know that on one occasion when I offered to stand bail for an asylum seeker—he happened to be one of those who sought refuge here after the Afghan aircraft hijack—the adjudicator asked for £11,000. He also

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wanted it in cash; he did not like the cheque that I sent in. I do not think that that was reasonable. Some adjudicators have laid it on pretty thick.
The Minister has made it clear that there are planned changes to the procedure rules. I hope that they can be carried out as quickly as possible. It was clear from the note that I read out that in the minds of some practitioners and adjudicators there was still a requirement that two sureties should be imposed and that that was what Rule 34 said. Perhaps if there was wider knowledge of the freedom of adjudicators not to ask for any sureties, the percentage would go up from the current 16 per cent mentioned by the Minister to something much higher. I agree with the noble Lord, Lord Dubs, that adjudicators ought to be able to decide on the merits of the case whether a person is likely to comply with reporting conditions.
I can see that we are not going to make any further progress on the subject this evening. I should like the Minister to confirm—as he has done in conversations with me—that when he uses the word "any" it means that the adjudicator can refrain from asking for any sureties. He can ask for no sureties or one or two. The Minister is nodding. I mention that as a means of getting on the record the fact that he agrees with what I have just said. I hope this will encourage adjudicators not to demand sureties in many more cases and that we can get on with the changes in the procedure rules. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 62 [Induction]:
Lord Dholakia Lord Dholakia moved Amendment No. 48:
Page 35, line 21, at end insert ", which programme shall include full access to independent advice"
The noble Lord said: My Lords, the purpose of the amendment is to ensure that induction centres have access to independent advice. The matter was debated in Committee, when the Opposition tabled an amendment with the same words, except that it referred to legal advice. The Government argued that no steps would be taken in an asylum case that required legal advice at that stage. The noble Lord, Lord Kingsland, was rightly dissatisfied with that answer, because early access to legal advice can only facilitate the subsequent stages of the process. The amendment went to a vote and was lost.
This is a modest amendment. It is an attempt to find a position that would be in accord with what the Minister said in Committee. It also picks up on a suggestion made by the noble Lord, Lord Dubs, in a debate on access to legal advice in accommodation centres that people would also benefit from other types of advice.
The noble Lord, Lord Bassam, claimed at that stage:
"The induction programme is not, however, part of the decision-making process".
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He said that how the decision-making process will work would be properly explained to people,
"so that they can get access to good-quality legal advice before decisions are made. The induction programme opens up the system for them so that legal advice is available to them before a decision is made".
He also said:
"I am sure that the induction process will be properly thought through and carefully designed and that people who are part of that process will be properly trained. Of course, it is not a question of applying pressure on people; it is about helping them through a process and ensuring that they understand it".—[Official Report, 17/7/02; cols. 1281–90.]
Those objectives can best be achieved by ensuring access to independent advice. The amendment would ensure that the induction process was fair. The independent advisor could advise on children's needs, make health referrals, explain the system, discuss doubts and fears and help the person find legal advice. The independent advice could be provided in the centre or near enough in the locality.
I hope the Minister will accept that this is a modest amendment. It is compatible with what the noble Lord, Lord Bassam, said in Committee. I hope that he has not changed his mind. The amendment is not much to ask. I beg to move.
Lord Hylton: My Lords, the amendment gives me the opportunity to ask the Government how many induction centres they foresee having and where they will be located. Will they be in accommodation centres? If they are not on the same site, will they at least be quite close? I look forward to the Minister's reply.
Lord Judd: My Lords, I support the amendment. If these unfortunate people are denied independent advice at any stage while they are in the United Kingdom before they are granted asylum—if they are to be granted asylum—we must ask why. I am sure that the Minister intends that everything should be above board—I genuinely mean that. If that is the case, it is logical that at any point in the proceedings, wherever they are and whatever is happening, they should be able to have access to that advice. For that reason it is very important that my noble friend the Minister takes the point seriously.
Lord Clinton-Davis: My Lords, I support the idea in principle, but I do not think that it ought to be included in the Bill. I do not know what the Minister has in mind in this regard. I hope that in practice, where it is suitable, such independent legal advice will be given. However, I cannot see that it has any part to play in the Bill.
Baroness Anelay of St Johns: My Lords, I shall briefly but firmly support the amendment. The noble Lord, Lord Dholakia, has described it as modest. He is being modest. It is certainly practical, pragmatic and important. I echo the noble Lord, Lord Judd, in asking

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what on earth would be gained by refusing a requirement that people must have access to independent advice.
Lord Bassam of Brighton: My Lords, it is pleasant to have one's words quoted back at one. I am grateful to the noble Lord, Lord Dholakia, for rehearsing part of my argument from Committee. I want to make it plain that the Government have no intention of frustrating or preventing those seeking asylum from seeking independent legal advice. I pointed out in Committee that that is made clear in the White Paper in paragraph 4.36, which says:
"While access to legal advice is not a pre-requisite to initial decision making, and should not hold up the decision-making process, the Government is committed to ensuring access to quality legal advice at that, and all later stages, for all asylum seekers whether or not they are in an Accommodation Centre".
I remind the House what happens in the induction programme. It is not part of the decision-making process. Let us be clear about that. At that stage no consideration will be given to the merits of an individual's asylum claim. The induction programme and process is aimed at giving asylum seekers information about the overall process and about their rights and responsibilities within that process. Our case is that at that stage there will be no need for legal advisers to be present when such information is being provided.
Information about legal advice will form an important part of the induction programme. Those seeking asylum will be advised on how they can best access legal advice and where it will be available. Before a person leaves the induction centre they will, for example, be given information about how they can access legal advice in the area in which they are likely to be living. They will also be given a date for when the interview on the substance of their asylum claim will be held. That will normally be two to three weeks from the date on which they leave the induction programme.
All asylum seekers will have the opportunity to discuss their claim before that interview if they wish. Applicants who spend longer in the induction centre will not be at a disadvantage compared with others since the timing of the substantive interview depends on when the person leaves the centre, not on when he or she arrives.
I entirely agree with the point made by the noble Lord, Lord Clinton-Davis, that there is little point in imposing a requirement that legal advice be provided at that stage.
7 p.m.
Earl Russell: My Lords, when the Minister talks about legal advice being a cause of delay, will he remember that the desire to avoid delay—
Lord Bassam of Brighton: My Lords, the noble Earl may have misheard me; I did not say that legal advice might be the cause of delay.
Earl Russell: My Lords, I am extremely glad to hear it, and I am sorry if I misheard the Minister.
Lord Bassam of Brighton: My Lords, we do not think that there would be anything to gain by including the proposed requirement in the Bill. This point was raised in an earlier debate.
Lord Judd: My Lords, what is so often the problem, as those of us who work with people in these types of situation realise, is that there is a very long line between the policy and the intention of Ministers who head up that policy and what actually happens at the point of action. Consequently, if people feel that they need independent advice because the system is not operating as it should, they should be able to have access to that advice.
Lord Bassam of Brighton: My Lords, as I said, it is not our intention to deprive, to deny or to obstruct the provision of independent legal advice. I quite understand my noble friend's point.
Lord Dholakia: My Lords, the Minister keeps using the phrase "legal advice", but we are talking about independent advice. The word "legal" appears nowhere in our amendment.
Lord Bassam of Brighton: My Lords, I accept that; I may have been thinking back to the first time that we discussed the issue, when the words "legal advice" were, I think, used. I understand exactly the point that the noble Lord, Lord Dholakia, has made, but other noble Lords have mentioned the need to ensure that legal advice is available at this stage. We are saying that access to advice—legal advice and other forms of advice such as healthcare advice—will be made available through the induction programme process. This amendment is the wrong way to achieve that objective. We are arguing quite firmly that it is unnecessary to impose this obligation at this stage.
The induction programme is very much separate from that process. The induction programme is meant to open up and provide access to all the other services, including advice, that we feel that asylum seekers will need, so that they can be assisted as they go towards the decision-making process. I hope that I have persuaded your Lordships that it is unnecessary to pursue the amendment at this stage.
Lord Lester of Herne Hill: My Lords, as I am sure the Minister remembers, the Joint Select Committee on Human Rights drew particular attention to the importance of access to legal advice for very

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vulnerable people who are under the control of the state. In our 17th report, we said that it was particularly important not only that the Government tell Parliament exactly how the advice will be provided, but that they carefully monitor whether access to advice is available. I appreciate that it may not be necessary to encumber the Bill with specific duties, but can the Minister give the House an assurance that this will be very carefully monitored, and that we will be able to get information from the Government about how access to advice is being given in practice to this highly vulnerable group of people?
Lord Bassam of Brighton: My Lords, the point is that this is a highly vulnerable group of people. Consequently, we want to have a thorough and rigorous induction programme so that asylum seekers have access not only to legal advice but to healthcare advice and support and so on. We recognise that those are a fundamental part of human rights, and I am sure that that view is shared on all sides of the House. I am therefore happy to give an assurance that we will monitor and keep under very careful scrutiny the issue of access to legal advice. Our stated aim in the White Paper, as I read out earlier, is to ensure that that happens.
The noble Lord, Lord Hylton, asked how many centres will carry out the induction programme. Our best estimate is that we may eventually need approximately 10 centres across the UK. It is to be a thorough and national programme. We will be providing very good facilities at the induction centres and programmes that will enable people to understand exactly how the process will work, their part in it, and how they will be able to access advice and services such as healthcare.
Lord Hylton: My Lords, will the induction centres be separate from the accommodation centres?
Lord Bassam of Brighton: Yes, my Lords, they will be separate from the induction centres; very much so.
Lord Dholakia: My Lords, I am very conscious of the time. The Minister was unable to convince either side of the Chamber in Committee, and he has been unable to convince either side today. I should have hoped that he would be able to accept this very straightforward amendment. As he has not done so, I think that he can take it from me that we shall return to the issue at Third Reading, when we might seek the opinion of the House. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 49 not moved.]
Lord Filkin Lord Filkin moved Amendment No. 50:
Page 35, line 37, at end insert—
"(5) Subsection (6) applies where the Secretary of State arranges for the provision of a programme of induction (whether or not he also provides other facilities to persons attending the programme and whether or not all the persons attending the programme are subject to residence restrictions).
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(6) A local authority may arrange for or participate in the provision of the programme or other facilities.
(7) In particular, a local authority may—

(a) incur reasonable expenditure;

(b) provide services outside its area;

(c) provide services jointly with another body;

(d) form a company;

(e) tender for or enter into a contract;

(f) do anything (including anything listed in paragraphs (a) to (e)) for a preparatory purpose.

(8) In this section "local authority" means—

(a) a local authority within the meaning of section 94 of the Immigration and Asylum Act 1999 (c. 33), and

(b) a Northern Ireland authority within the meaning of section 110 of that Act."

On Question, amendment agreed to.
Clause 64 [Serious criminal]:
Lord Kingsland Lord Kingsland moved Amendment No. 51:
Page 36, line 31, leave out paragraph (b) and insert—
"(b) the offence is one for which the maximum period of imprisonment is ten years or more"
The noble Lord said: My Lords, Amendments Nos. 51 and 52 arise from the debate on this clause in Committee on 17th July. Under the terms of Article 33 of the refugee convention, a person who is defined as a "serious criminal" may be returned to another country even where he is at risk of persecution on the ground that he constitutes a danger to the community of the country which is hosting him.
Clause 64 seeks to introduce a statutory presumption into the United Kingdom's domestic law that a person is a serious criminal for the purposes of the refugee convention if he has been sentenced, either in the United Kingdom or abroad, to a period of two years' unsuspended imprisonment. The presumption can be rebutted; but the burden of proof would be reversed.
I shall not detain your Lordships by repeating the detail of the arguments that I advanced in Committee on 17th July, at col. 1297 of the Official Report, as to why the approach taken by the Government in Clause 64 may be flawed. In brief, what I said on that occasion was, first, that the Government's approach differs from the text of the refugee convention in that the presumption in the clause arises in relation to the punishment imposed rather than the crime committed; secondly, that the inflexible criterion of two years' imprisonment would not cover a situation where someone was convicted of a particularly serious crime, such as dealing in child pornography or drugs, but was sentenced to perhaps 14 or 18 months, perhaps with a substantial discount for an early plea of guilty; and, thirdly, that the proposal in the clause that relates to the sentences imposed for crimes committed abroad takes no account of the sentencing policies or the applicability of the rule of law in foreign countries.
Under the clause as it stands, someone sentenced to two years or more in Iraq or North Korea, for example, would be considered a serious criminal for the purposes of our domestic law irrespective of the crime they had committed, even if it was merely speaking out against the regime.
This was a point, as I recall, supported by the noble Earl, Lord Russell, who raised the interesting question of whether the definition of "serious criminal" would have applied to several past Commonwealth Prime Ministers who had been imprisoned by British colonial governments. I see that the noble Earl's Question for Written Answer on this issue was answered by the noble Baroness, Lady Amos, on 24th September with the noble Baroness saying that the information was not available and that the necessary research would involve disproportionate cost. I look forward to hearing what the noble Earl has to say on the point a little later on today.
These amendments, which are identical to the ones that I tabled in Committee, would change the test so that a person would be presumed to be a serious criminal if he had been convicted of a crime which carries a maximum penalty of 10 years' imprisonment or more—rather than using the criterion of the length of sentence imposed. This would include such offences as trafficking in child pornography, robbery, homicide offences and serious sexual offences. As I explained in Committee, this is also by no means a perfect solution. It would not, for example, cover crimes such as the possession of child pornography, dealing in Class C drugs or racially aggravated assault.
The noble Lord, Lord Filkin, undertook to reflect on the points that were made in that debate. In particular, I remember inviting the noble Lord to consider whether it would be more appropriate to list the specific offences to which the definition of "serious criminal" would apply in a schedule to the Bill, as the Government did in the Criminal Justice and Courts Services Act 2000, for the definition of "offences against a child".
I see from the Marshalled List that no government amendments have been forthcoming as a result of that reflection. I have, therefore, tabled these amendments in order to allow the noble Lord, Lord Filkin, the opportunity to explain to your Lordships why the Government have decided to reject the arguments advanced in the Committee debate. I beg to move.
Lord Goodhart: My Lords, Amendment No. 53 in the names of my noble friends Lord Dholakia and Lord Avebury has been grouped with the two amendments just spoken to by the noble Lord, Lord Kingsland. However, Amendment No. 53 goes a good deal further in proposing the removal of the whole of Clause 64.
The relevant article of the Geneva Convention on asylum seekers states:

"1. No Contracting State shall expel or return (refouler) 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.

2. The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country".

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It is plain on the face of that article that the question of whether any particular crime that has been committed is particularly serious and whether the criminal constitutes a danger to the community must, under Article 33(2), be decided on a case by case basis. Article 33 is, of course, binding on the United Kingdom as a matter of treaty law. Indeed, the United Kingdom law goes further than that in providing that an asylum seeker cannot be removed in breach of the United Kingdom's treaty obligations.
Clause 64 applies a new meaning to Article 33(2). In other words, it applies a new and wider right of what is known as refoulement—a right of return. It therefore rewrites the Geneva Convention. That is plainly a breach of the treaty obligations of the United Kingdom. Clause 64 provides that a sentence of two years or more creates an irrebuttable presumption that the crime is a particularly serious crime and a rebuttable presumption that the perpetrator constitutes a danger to the community. The presumption that any crime resulting in a two-year sentence is particularly serious is, in my view, inappropriate whether that presumption is rebuttable or irrebuttable. Many sentences of two years are based not on the particular seriousness of the crime involved but on the previous record of the accused. The crime may in itself be quite a trivial one committed by someone with a long record.
I believe that no presumption is justified, let alone an irrebuttable one. As a matter of common sense, a long sentence of, say, seven years or more may well be evidence that the offence is serious. One does not need a legal presumption to enable one to adduce that. As for the danger posed to the community by the criminal concerned, why do we need a presumption? Some crimes, of course, speak for themselves. Someone who has been convicted of a serious rape, for example, is plainly a danger to the community. That crime speaks for itself and it should be left to do so. Let us take the example of the noble Lord, Lord Archer of Weston-Super-Mare, who has been sentenced to a period of four years. I believe that there should not be even a rebuttable presumption that someone of that kind is a danger to the community. I suggest that the noble Lord clearly is not.
Plainly, the Government are rewriting the Geneva Convention to make it easier to return people to a place where they face prosecution. That is in breach of treaty obligations and international law. The Geneva tests should be applied as they stand. Clause 64 is an unacceptable gloss and I believe that it should be deleted from the Bill.
7.15 p.m.
Earl Russell: My Lords, I am sorry to disappoint the noble Lord, Lord Kingsland, as I shall not comment on the Written Answer of the noble Baroness, Lady Amos, on Commonwealth Prime Ministers because, in the literal truth of those overworked words, "words fail me". A good many of those who subsequently became Commonwealth Prime Ministers were friends of my parents and a good many of them suffered sentences of imprisonment. The test in the UN

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convention is whether these people are a danger to this country. I can say, in some cases from personal memory, that in most of those cases they were not.
My main objection to the use of the test by the number of years is that it is a purely relative test. In our own history, a number of crimes would be regarded as serious in the 17th century, very serious in the 18th century, perhaps not serious in the 19th century, not serious in the early 20th century but becoming serious again in the 1990s. This movable definition of a "serious crime" is rather curious, especially when we apply it to the question of whether refugees are a danger to this country because it is clear under this test that the countries most liable to produce genuine refugees are also the most likely to produce people who fall foul of this test.
I have accepted the recommendation of the noble and learned Lord, Lord Williams of Mostyn, to read the chapter in the dossier on human rights in Iraq. To have received a sentence of two years' imprisonment in Iraq you do not actually need to have committed any crime whatsoever, you merely need Saddam Hussein to think that you might in the future possibly do so—that you are, as they used to put it in the case of Roman Catholics in this country, vehemently suspected. That means that the more dangerous a country is for potential refugees, the more people are liable to be returned there.
The other really serious point about the clause is that it reverses the burden of proof. Under the convention, it is incumbent on the state that wants to refuse a refugee to prove that he is a danger to the community in which he intends to live. One has to prove not that he has been a danger to what may have been the tyrannical regime under which he once lived but that he is a danger to us.
If that is the presumption, the refugee from a genuinely dangerous country will have a good deal of difficulty finding witnesses, collecting evidence and securing the production of documents. If I were an Iraqi refugee, I should not like to have to write to Baghdad and ask my friends to turn up here to testify that I was not likely to be a danger to the British state. If my friends obliged me in that regard, I should probably be passing a death sentence on them, and it would not be my wish to do that.
The more dangerous it is to live in a particular country, the harder it will be to rebut the presumption. In really tyrannical states, it will be impossible, in middling ones it will be difficult and it will be easy only if one comes from a state that is perfectly safe. That is rather like the test of ducking witches. The guilty witch floated and was safe and the innocent witch sank and was drowned. I do not believe that that is the way in which we should administer justice.
Lord Lester of Herne Hill: My Lords, Clause 64 was inserted into the Bill after the Joint Committee on Human Rights had scrutinised the Bill and therefore it is not part of our 17th report. I shall not repeat anything that other noble Lords have already said, all of which I agree with, but I want to make one or two
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additional criticisms, which I believe would exercise the Joint Committee if it were in this country and able to do the scrutiny now. I should be grateful if the Minister would deal with my points tonight or, if we can postpone consideration of this matter as well, at Third Reading.
Apart from the inflexibility of the irrebuttable part of the presumption and apart from the lack of proportionality built into Clause 64—my noble friend Lord Goodhart referred to that—we should consider what the effect of the provision will be in relation to appeal rights. Clause 64(7) states:
"Subsection (8) applies where…a person appeals under",
various provisions of this legislation or the Special Immigration Appeals Commission Act. It also applies where,
"the Secretary of State issues a certificate that presumptions under subsection (2) or (3) apply to the person (subject to rebuttal)".
The words, "subject to rebuttal" are inaccurate because the presumption of serious crime is not subject to rebuttal. That part of the clause is wrongly drafted.
Perhaps more importantly, Clause 64(8) states:
"The adjudicator, Tribunal or Commission hearing the appeal—

(a) must begin substantive deliberation on the appeal by considering the certificate, and

(b) if in agreement that presumptions…apply (having given…an opportunity for rebuttal) must dismiss the appeal in so far as it relies on the ground specified in section 75(1)(g)".

We therefore need to find out what "section 75(1)(g)" means. It involves an appeal on the ground,
"that the removal of the appellant from the United Kingdom in consequence of the immigration decision would breach the United Kingdom's obligations under the Refugee Convention or would be unlawful under section 6 of the Human Rights Act 1998 as being incompatible with the appellant's Convention rights".
In other words, the serious consequence of accepting Clause 64 as it stands is that it will obliterate rights of appeal in relation either to the refugee convention or the European Convention on Human Rights unless the presumptions can be rebutted. That seems to be a draconian consequence of statutory presumptions based on conviction by a foreign court leading to a sentence of imprisonment of only two years. For that additional reason, if the Joint Committee were available to give advice, we should have drawn those implications to the attention of the House.
Lord Hylton: My Lords, I support all the amendments in this group. I want to raise another reason why Clause 64 is objectionable.
Subsection (9) includes the phrase "a hospital". The London office of the UN High Commissioner for Refugees wrote to me about this matter. I cannot put the point better than he does. He said:
"The broad nature of this provision would cover those individuals detained under the Mental Health Act 1983 and who have been neither convicted of a particularly serious crime nor even been tried in relation to a charge of such a crime. In addition, and more disturbingly, it would apply to individuals who are placed in such institutions because of the potential harm they might inflict on themselves and who do not pose, nor have ever posed, a risk to society. It is quite possible that survivors of torture who are suffering from trauma could fall into such groups".

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I ask the Government whether they have discussed this aspect of the clause with the UNHCR and, if so, with what result; and if they have not, will they please do so without delay?
Lord Avebury: My Lords, I shall detain the House for one minute. I point out to the noble Lord, Lord Filkin, that yesterday evening we discussed the situation in Belarus. I mentioned during that debate that two journalists had been convicted of insulting President Lukashenko and were sentenced to two and a half years' hard labour. If either of those people wished to come here and seek asylum, they would be barred by Clause 64.
Another case, which I mentioned this afternoon at Question Time, is that of Mr Manouchehr Mohammadi, the leader of the students in Tehran. I asked whether Mr Straw would raise his case with the Foreign Minister, Mr Kharrazi, during his visit today to Tehran; I know that he has done so previously. We are in an absurd situation. The British Government—the Foreign Secretary—are interceding on behalf of this man, who is a student leader and who was imprisoned after the student unrest in 1999 and has been in Evin prison ever since, where he has been tortured. However, if he came to the United Kingdom and sought asylum, he would be absolutely barred by the provisions of Clause 64. That does not make any sense.
Lord Joffe: My Lords, the provisions in the Bill relating to presumptions arising out of sentences imposed by governments in countries overseas are particularly dangerous. Almost by definition, people seeking political asylum in this country have been opposed to the regimes of the countries from which they come and have in the process subjected themselves to the draconian laws that are often prevalent in those countries. I quote from my South African experience. In South Africa under the sabotage legislation there was a minimum sentence of five years for the most innocuous offences. I recall that one offence was that of throwing a brick through a window with political intent and a conviction of six or seven years obtained. There are countless other examples. I support both amendments.
7.30 p.m.
Lord Filkin: My Lords, I propose to respond, first, to Amendment No. 53 and to explain why the Government are clear that this is an important element within their overall policy of meeting fully their obligations towards refugees and asylum seekers who genuinely need protection. I also want to explain why they are stepping up their efforts to spotlight and remove those who do not need such protection and who have no valid claim to remain in this country.
In legislating in this respect, we want it to be known by the refugee and asylum-seeker community, and by the public at large, that refugee status should not be
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taken for granted, particularly, as the House will be well aware, as there is substantial trafficking in illegal migration into Europe and into Britain itself.
Clause 64 defines the term "particularly serious crime" in Article 33(2) of the refugee convention as any offence for which a sentence of at least two years' imprisonment has been imposed. We decided on that yardstick in order to make it clear that high standards of conduct are expected from refugees who have the privilege and advantages of residence here. As has been pointed out, the very small minority who commit serious offences will be expected to argue their case for remaining here by seeking to rebut the presumption that they are a danger to the community. I should of course point out that at that stage they will have been convicted of the criminal offence, which carries a sentence of two years. At present, with no formal definition—
Lord Lester of Herne Hill: My Lords, I am sorry to interrupt so early in the Minister's reply. However, when he talks of a "serious offence" in answer to the point raised by the noble Lord, Lord Joffe, does he also mean political offences, as classified by critics of foreign governments, for example—those who oppose them and are convicted of political offences abroad? Are those, too, to be regarded under this provision as "serious offences" for this purpose and for the purpose of the presumption?
Lord Filkin: My Lords, if the noble Lord, Lord Lester, will bear with me for a while, I shall be pleased to come later to the point about sentences imposed abroad. At this point, I am keeping matters relatively simple and am focusing on sentences imposed in this country where we consider a two-year sentence to be a reasonable definition of serious criminality. Given the two-year sentence, a person will have, by the judgment of a court, committed a felony, and a serious one at that.
At present, with no formal definition of "particularly serious crime" in Article 33(2), it is too easy for refugees to rely on the protection of the refugee convention in order to secure their stay. The UK would not be the only country where an "actual sentence" criterion was used. In Germany, it is three years or more; in the USA, it is one year or more.
Therefore, we do not think it unreasonable to put those who fall within the scope of Article 33(2), due to criminal behaviour, in a position where they have to defend their right to remain here. The courts, not the Home Secretary, will always be the final arbiter in this matter. If people in that category are genuinely not a danger to the community, as judged by the court, and their rebuttal of the presumption is backed up by the independent appellate authorities, they need have no cause for concern. As I believe we said in Committee, in those circumstances it is almost inconceivable that a person would not apply a challenge to the court and that he would not receive the benefit of legal aid if needed.

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In our view, one essential element of the definition is a reference to the actual sentence—
Earl Russell: My Lords, is there any provision for up-rating the limits of years in proportion to inflation of sentencing?
Lord Filkin: My Lords, I believe that, unless it is something that one experiences as one goes by, time does not have an inflationary consequence. We are talking about the length of time, not a financial sentence.
Our approach is also simple and practical. It will immediately be clear from the legislation when Article 33(2) applies without any need for a specific list of offences. The noble Lord, Lord Kingsland, was quite right. We had a thoughtful discussion in Committee and we reflected on the matter considerably over the summer. We wrote to the noble Lord, Lord Kingsland, explaining—I apologise; I shall check my records—
Lord Kingsland: My Lords, I was not suggesting that the noble Lord did not write to me; I simply do not recall receiving the letter.
Lord Filkin: My Lords, I have been given an extract from a letter without the name of the person to whom it was addressed. Clearly we wrote to someone. That is not a very satisfactory response. Whomever we wrote to, I shall ensure that the noble Lord, Lord Kingsland, receives a copy or, indeed, a further copy if, in fact, we had sent one in the first place.
In essence, we did not depart from the arguments that we advanced when we considered the matter in Committee; that is, that the benefit of the actual sentence is that a court takes into account the offence and the circumstances of the individual at the same time. We considered that, if one is seeking to identify a measure, that, in our judgment, is more likely to be a fair measure than the alternative.
In Committee, we also reinforced our view, having considered it over the summer, of the position in Scotland. The noble Lord, Lord Kingsland, will recall that Scotland does not have anything like the same level of offences with prescribed maximum offences, and therefore some difficulty would arise in that respect.
Perhaps I may also illustrate that by referring to some of the cases which would not be caught in these circumstances. If the definition were limited to offences with a maximum term of imprisonment of 10 years, then offences carrying a maximum sentence of seven years or less would be omitted from the scope of Article 33(2). For example, a refugee sentenced to a maximum of seven years for child abduction would evade the application of Article 33(2).
Other offences with a seven-year maximum sentence are theft and the placing or dispatching of articles to cause a bomb hoax. The five-year maximum sentence level includes the production, supply or importation of class C drugs and aggravated vehicle-taking where a
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death occurs. We do not believe that it would be reasonable to omit serious offences of that kind from the scope of the article.
All the offences that I have mentioned are those in respect of which a court, following a conviction, might choose to make a recommendation for deportation. That, in itself, is an important indicator of seriousness. Previous cases in which Article 33(2) has applied have often involved a court recommendation for deportation.
I turn to the matter of a child pornography offence which carries a sentence of less than two years. In a sense, that provides us with an argument for having a threshold of less than two years. However, on balance, we feel that that would be too low.
With regard to crimes abroad, the clause does not apply where an offence committed abroad could not attract a sentence of at least two years if committed In the United Kingdom. Therefore, offences of the type described in Iraq would not meet the definition as one would not be sentenced at all—let alone for two years or more—in the United Kingdom. I hope that that is of comfort.
Lord Lester of Herne Hill: My Lords, I am grateful to the noble Lord for giving way. Is that really correct? There are still offences in this country—sedition-related offences—which may seem archaic, and offences in relation to public order, which, if one looked at the nature of the offence, would match a political offence committed in another country. The fact that the conduct relied upon in Iraq would not in fact have led to a conviction is not the way that the Bill is formulated. Therefore, one cannot simply say that there is no double criminality involved and that therefore there is protection in that way because that is not how the clause has been formulated.
Lord Filkin: My Lords, perhaps I may reflect on that and return it to later. The noble Earl, Lord Russell, talked about different offences being seen differently over time. He is right. I do not believe that any government can do anything about that. Governments and society operate with the values, judgments and priorities that are in force at the present time. I simply mark the point that I made previously; that is, having already proven criminality, one can avoid that by showing that a person is not a danger to the community. Again, that is a further defence of the type that we have just discussed. If a person who had been convicted could demonstrate that he was not a danger to the community, he would be at no risk of deportation in that respect.
Lord Lawson of Blaby: My Lords, a moment ago, the noble Lord kindly said that he would reflect further on the important point made by the noble Lord, Lord Lester. However, when he reflects on it, will he also reflect that it is not simply a matter of the nature of the offence; it is also a matter of the nature of the conviction. In some countries, the rule of law as we know it does not run. A conviction may be totally outrageous and, perhaps for the reasons given by the

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noble Earl, Russell, it will be very difficult, if not impossible, to find the rebuttal evidence which is required.
Lord Filkin: My Lords, I take the point and I shall respond to it immediately. In the circumstances advanced by the noble Lord, I should have thought that an individual, or his advocate, would have a relatively easy case to make before the adjudicator. It would be that although his behaviour may have incurred a sentence in a foreign court, by no British values or standards of behaviour could the person possibly be seen as a threat to the community, so he would not be at risk.
I will speak further about the foreign issue because it is complicated. It is worth emphasising that Clause 64 will apply to overseas crimes only in rare circumstances. The only way it could happen is where the person is first recognised as a refugee in the United Kingdom, leaves the UK and commits a crime abroad—that is unlikely to be the case in Iraq since the person has a fear of persecution there—and returns to the United Kingdom. The further protections and tests that are advanced would also apply. Clearly, the offence would have to be recognised in Britain and the person would have to be seen as a danger to the community in Britain—not as seen abroad.
Lord Lester of Herne Hill: My Lords, I am grateful to the Minister but let us suppose that the noble Lord, Lord Joffe, had come to this country as a refugee from South Africa during the apartheid years, then returned to South Africa—perhaps in a clandestine way—still during apartheid. I hope that noble Lord does not mind my using him as a hypothetical example. Say he threw a brick through Dr. Verwoerd's window to make a political protest and was sentenced to two years' imprisonment for maliciously damaging property with political intent.
On his return to this country, why should the noble Lord have an irrebuttable presumption against him that he was guilty of a serious crime in apartheid South Africa, then have to discharge the burden of showing that he is not a danger to the community as a result of his conduct? Why should the noble Lord have to go through all that? How can that possibly be compatible with our obligations under the refugee convention?
Lord Filkin: My Lords, on the wing, in the hypothetical circumstances of the noble Lord, Lord Joffe—whom we are delighted to welcome to the United Kingdom, brick throwing or not—he would not receive a two-year custodial sentence in the United Kingdom for throwing a brick. He might well be fined. Therefore, he would not be at risk.
I should like to reflect further on the point of whether the Secretary of State has a power of discretion in such circumstances, as to whether or not to press the point. I will return to that matter later.
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As to the noble Lord's points about the UK's obligations under the ECHR, it is correct that the current wording in subsections (7) and (8) has an impact on ECHR appeals but that is a mistake, caused by an amendment to the appeals provisions. In the next group of amendments, we are correcting the wording of those subsections, so that the actual references are to the refugee convention only, not to the ECHR. The UK will of course continue to take full account of ECHR issues in cases where Clause 64 applies—as will the courts. It has been a good afternoon for complexities of that sort.
On the reverse burden of proof, other countries—such as the United States and Germany—have introduced subsequent provisions. Nothing in the convention prohibits the introduction of this provision. Clearly it is crucial that there is an independent appeal to the adjudicator, who can make a judgment as to whether or not it is a rebuttable presumption.
We are not rewriting the convention. It is open to states to decide within reasonable limits what amounts to particularly serious crime—as has been done.
On the points raised by the noble Lord, Lord Hylton, we have not discussed the issue with the UNHCR but would be perfectly happy to do so. On mental health cases, we have to provide in Clause 64 if a refugee convicted of an offence is to be detained under the Mental Health Act. We expect few cases of that kind but such people could be a danger to the community when released. The Home Office would take great care in deciding whether or not to apply Article 33.2 in a mental health case. That clearly implies the answer to my previous reflection—that there is discretion by the Home Secretary in the application of this as well, which, it is to be hoped, would free the noble Lord, Lord Joffe, from the burden of having to rebut any assumption about his behaviour in South Africa.
I recognise that the issues are complex. I hope that I have, at least in part, put the mind of the House to rest. There are good reasons for this provision. It will be used appropriately. The Home Secretary will exercise a discretion—and there are protections through a person's right of appeal to the adjudicator.
Lord Kingsland: My Lords, the Minister has been typically careful and full in his reply—and as courteous as he always is. However, his statement that the Government are not seeking to rewrite the convention cannot be sustained in light of all the interventions made in your Lordships' House. It is clear that the presumption in the clause arises in relation to the punishment imposed, not the crime committed. That is a blatant contravention and for that reason, I should like to test the opinion of the House.
7.46 p.m.
On Question, Whether the said amendment (No. 51) shall be agreed to?
Their Lordships divided: Contents, 77; Not-Contents,71.

Division No. 2

CONTENTS

Addington, L.

Mackie of Benshie, L.

Alderdice, L.

Maclennan of Rogart, L.

Alton of Liverpool, L.

McNally, L.

Anelay of St Johns, B.

Maddock, B.

Attlee, E.

Mancroft, L.

Avebury, L.

Mar and kellie, E.

Barker, B.

Mayhew of Twysden, L.

Blatch, B.

Newby, L.

Bridgeman, V.

Nicholson of Winterbourne, B.

Brooke of Sutton Mandeville, L.

Northesk, E.

Brougham and Vaux, L.

Northover, B.

Buscombe, B.

O'Neill of Bengarve, B.

Carlisle of Bucklow, L.

Oakeshott of Seagrove Bay, L.

Carnegy of Lour, B.

Park of Monmouth, B.

Cope of Berkeley, L. [Teller]

Phillips of Sudbury, L.

Darcy de Knayth, B.

Razzall, L.

Dholakia, L.

Redesdale, L.

Elton, L.

Renfrew of Kaimsthorn, L.

Falkland, V.

Renton, L.

Ferrers, E.

Rodgers of Quarry Bank, L.

Fookes, B.

Rogan, L.

Freeman, L.

Roper, L.

Freyberg, L.

Russell, E.[Teller]

Geddes, L.

St.John of Bletso, L.

Goodhart, L.

St John of Fawsley, L.

Gray of Contin, L.

Scott of Needham Market, B.

Greaves, L.

Seccombe, B.

Hamwee, B.

Shutt of Greetland, L.

Howe of Aberavon, L.

Skelmersdale, L.

Howe of Idlicote, B.

Smith of Clifton, L.

Hylton, L.

Taverne, L.

Jacobs, L.

Tebbit, L.

Joffe, L.

Thomas of Gwydir, L.

Kingsland, L.

Thomson of Monifieth, L.

Lawson of Blaby, L.

Trumpington, B.

Lester of Herne Hill, L.

Waddington, L.

Luke, L.

Wallace of Saltaire, L.

Lyell, L.

Watson of Richmond, L.

Williams of Crosby, B.

NOT-CONTENTS

Acton, L.

Gould of Potternewton, B.

Amos, B.

Graham of Edmonton, L.

Andrews, B.

Grenfell, L.

Archer of Sandwell, L.

Grocott, L. [Teller]

Bassam of Brighton, L.

Harris of Haringey, L.

Berkeley, L.

Harrison, L.

Bernstein of Craigweil, L.

Haskel, L.

Blackstone, B.

Hayman, B.

Borrie, L.

Hilton of Eggardon, B.

Brookman, L.

Hollis of Heigham, B.

Burlison, L.

Howells of St. Davids, B.

Carter, L.

Hoyle, L.

Clarke of Hampstead, L.

Hughes of Woodside, L.

Clinton-Davis, L.

Hunt of Kings Heath, L.

Cohen of Pimlico, B.

Janner of Braunstone, L.

Corbett of Castle Vale, L.

Judd, L.

Crawley, B.

Kilclooney, L.

Davies of Coity, L.

Kirkhill, L.

Davies of Oldham, L.

Lea of Crondall, L.

Dormand of Easington, L.

McIntosh of Haringey, L. [Teller]

Dubs, L.

Elder, L.

MacKenzie of Culkein, L.

Evans of Parkside, L.

Massey of Darwen, B.

Evans of Temple Guiting, L.

Milner of Leeds, L.

Falconer of Thoroton, L.

Morgan, L.

Farrington of Ribbleton, B.

Morris of Aberavon, L.

Faulkner of Worcester, L.

Morris of Manchester, L.

Filkin, L.

Pendry, L.

Gale, B.

Prys-Davies, L.

Gibson of Market Rasen, B.

Ramsay of Cartvale, B.

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Rendell of Babergh, B.

Thornton, B.

Rooker, L.

Tomlinson, L.

Sawyer, L.

Walker of Doncaster, L.

Scotland of Asthal, B.

Whitty, L.

Simon, V.

Williams of Mostyn, L. (Lord Privy Seal)

Stone of Blackheath, L.

Woolmer of Leeds, L.

Resolved in the affirmative, and amendment agreed to accordingly.
7.56 p.m.
Lord Kingsland Lord Kingsland moved Amendment No. 52:
Page 36, line 36, leave out paragraphs (b) and (c) and insert—
"(b) the offence is one for which the maximum period of imprisonment is ten years or more"
The noble Lord said: My Lords, I beg to move this amendment formally.
On Question, amendment agreed to.
Lord Bassam of Brighton:My Lords, I beg to move that further consideration on Report be now adjourned. In moving the Motion, I suggest that the Report stage begin again no later than 8.57 p.m.
Moved accordingly, and, on Question, Motion agreed to.

Northern Ireland Act 1998 (Modification of Enactments) Order 2002
7.57 p.m.
The Lord Privy Seal (Lord Williams of Mostyn)The Lord Privy Seal (Lord Williams of Mostyn) rose to move, That the draft order laid before the House on 18th July be approved [37th Report from the Joint Committee]
The noble and learned Lord said: My Lords, I beg to move the approval of this order, which transfers functions relating to agriculture and finance from the Secretary of State for Northern Ireland to the Department of Agriculture and Rural Development and the Department of Finance and Personnel in Northern Ireland. There was an earlier order, the Northern Ireland (Modification of Enactments—No. 1) Order 1999. Subsequent to that, a trawl was carried out to see whether there were any further appropriate candidates for a modification of enactments order.
Articles 2 to 9 set out in detail how these enactments are to be amended, and the powers transferred from the Secretary of State for Northern Ireland—and, in one case, the Lord Chancellor—to the departments to which I referred. I stress that this is a purely technical provision transferring functions so far as they relate to certain financial and agricultural matters.
Moved, That the draft order laid before the House on 18th July be approved [37th Report from the Joint Committee]—(Lord Williams of Mostyn.)
Lord Kilclooney: My Lords, this is an interesting time in Northern Ireland. The order now before the House is, of course, relevant to the whole principle of devolution—the transfer of powers from central

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government to the devolved institution. Can the noble and learned Lord confirm that in three days' time it will be transferred back?
Lord Williams of Mostyn: No.
Lord Glentoran: My Lords, I thank the noble and learned Lord for moving the order. As he says, it is purely a technical amendment designed to tidy up some bits and pieces that were missed earlier on in life. I have no difficulty in supporting the Motion.
On Question, Motion agreed to.

Local Elections (Northern Ireland) (Amendment) Order 2002
8 p.m.
Lord Williams of Mostyn Lord Williams of Mostyn rose to move, That the draft order laid before the House on 11th July be approved [36th Report from the Joint Committee]
The noble and learned Lord said: My Lords, the Electoral Fraud (Northern Ireland) Act 2002 was subject to significant debate in this House. I believe that all would agree that we introduced improvements to the original Bill as it arrived in this Chamber from the Commons.
This order brings the relevant rules for local elections into line with those made for parliamentary elections by the Act to which I referred. The amendments to the rules for local elections will allow staff at polling stations to request the date of birth from the elector and to check that the details are correct. They add the electoral identity card, which was of great significance in this House, to the list of specified documents that may be presented at a polling station in order to receive a ballot paper.
Amendments have also been made so that the returning officer can check the details relating to absent voting. Applications for the absent vote will require a signature, date of birth and national insurance number—another matter that achieved great importance in our earlier debates on electoral rules in general elections—or a signed statement saying that the applicant does not have one. We are entitled to congratulate ourselves on the fact that we improved the Bill and this order provides almost a mirror reflection for local elections which require the same protections. I beg to move.
Moved, That the draft order laid before the House on 11th July be approved [36th Report from the Joint Committee]—(Lord Williams of Mostyn.)
Lord Rogan: My Lords, I enthusiastically support the order. In doing so I venture to say that over the years, in successive elections, both nationally and locally, no part of the Kingdom has suffered more from electoral malpractice and fraud than Northern Ireland. Recently, that was graphically evidenced during the previous general election when in the constituency of Fermanagh and South Tyrone election
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stations and boxes were physically forced to be reopened by a baying mob who intimidated the election staff. The judge's comments during the ensuing court case that resulted from that malpractice made interesting and telling reading.
If the measures contained in the order in any way strengthen the powers, as they undoubtedly do, of the staff of local polling stations to verify the identity and right to vote of individuals, and if the rule for obtaining absent votes are strengthened, that can only be beneficial for local democracy in Northern Ireland. As such, they should demand, and I hope will receive, the universal support of your Lordships.
Baroness Park of Monmouth: My Lords, I too welcome the order, which introduces some necessary tidying up. As it refers to elections, I hope that the noble and learned Lord will forgive me if I take my only opportunity to make the following suggestion: should there be included, among the choices of action now facing the Prime Minister and the Taoiseach in Northern Ireland, any proposal to bring the assembly elections forward, I hope that they may not be tempted to do so to avoid a vacuum. To do so would benefit only Sinn Fein and the DUP.
There is in any case a practical and vital reason, discussed in this House when we considered the Bill, for waiting at least until May. As the Government acknowledged when we legislated earlier, it will be touch and go whether the new electronic system, so carefully designed to prevent extensive fraud on the scale practised hitherto by Sinn Fein, will be ready and operating by then. Unless a miracle takes place, it certainly will not be ready before then. I hope that that point will be taken into consideration.
If the Government wish to be seen to hold Sinn Fein/IRA to account, I hope that they will consider requiring them to end the violence on the streets. That would send a better signal than any other to the people that the situation is being taken seriously. Were that violence to end—they have shown before that they are able to turn off the tap—the loyalist violence, inevitably, would be exposed, which hopefully would also end.
In the many possible answers that are being considered—perhaps they have been decided—I hope that one of the main messages that both Houses will send to the people is that they are holding the IRA to account for the violence that at the time of the Belfast agreement we were promised would not take place. I also hope that it will lead them to abandon the proposal for bringing back the "On the Runs".
Lord Kilclooney: My Lords, I shall not refer to the imminent collapse of devolution in Northern Ireland, but to the Electoral Fraud (Northern Ireland) Act that we supported. Electoral registration forms are now being delivered to homes in Northern Ireland and my fear is that because of the questions involved—namely, about the date of birth and the national insurance number—thousands upon thousands of potential electors in Northern Ireland will fail to return the forms. Next year we shall have an almighty row when

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so many people turn up to vote and find that they are not on the electoral register. That needs to be addressed. It may be necessary to extend the period during which people should return the registration forms.
I want to refer to one particular aspect of the order. At a polling station an elector will have to state his date of birth, but what will happen if he fails to give the date of birth that the presiding officer in the polling station has down for that elector? In those circumstances this order provides that the voter will be able to fill in a tendered ballot paper because he has failed to give the correct date of birth. Can the Minister tell the House how that vote will eventually be taken into consideration at the count? Will the voter have to turn up with his birth certificate to prove that he was correct and that what was on the electoral register was wrong? What other means will be used at the count to accept or to reject a particular tendered ballot paper?
Lord Glentoran: My Lords, we have heard interesting contributions. I join the noble and learned Lord in believing that the passage of the Bill through your Lordships' House was an excellent example of the value of considered thought and judgment. Although it is not my place to answer directly the concerns of the noble Lord in relation to the filling in of the form, he is right to some extent. The form is somewhat formidable. During my time at home in the Summer Recess two or three people mentioned to me that it would cause some problems.
I believe that some public assistance is necessary. I would certainly ask the Government to give that consideration fairly soon. Information could be put on the television or there could be headlines because there is an apathy among electors in Northern Ireland. That apathy is largely among those whom most noble Lords would want to see going to the polls; that is to say the moderates of a number of shades of opinion. We must make it easy for them. I am also aware—I have voiced this point elsewhere—that the people who will have no problem in filling in this slightly complex form are those living in Sinn Fein territory. Sinn Fein has such a highly-paid machine and so many people working for it that the party members will knock on doors asking people whether they need help to fill in the new electoral form. Sinn Fein may even have found some way around the form to suit themselves anyway. But it will certainly do the democratic job, as it sees it—and indeed it is—of helping its potential voters fill in the form.
Unfortunately, the other parties in Northern Ireland are not as sophisticated and certainly not as well funded to do that. Perhaps the noble and learned Lord can give some consideration as to how the population can be helped. The form is straightforward, but people are not used to it and may need some help.
I also sincerely hope that the Government will not bring forward any potential elections. To follow on from, and to support, what my noble friend Lady Park said, we know that there is a tight timetable for putting the technology in place. The noble and learned Lord
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was honest in the debate in saying that. I should hate to see an election as important and critical as the next one undoubtedly will be happening before the various measures that have been legislated for in this Act are fully up and running. However, I support the order wholeheartedly.
Lord Smith of Clifton: My Lords, I find the matter somewhat surprising. I thought that there was a broad degree of consensus in the House that we should tighten provisions to prevent fraud. We now learn from certain quarters that they are too tight because people cannot fill in the various forms. It would have been useful to have had that information during the passage of the Bill. I find the matter somewhat ironic.
We welcome the order because it reflects what we were trying to do in the Bill. I thank the Lord Privy Seal for proposing the order.
I have several questions. First, how are the provisions being received in Northern Ireland? That relates to the technical difficulties that have already been alluded to; people cannot actually fill in the forms. Secondly, how is the public awareness campaign on the change in the election laws going? Thirdly, can the Government give any indication as to the take up rate for the electoral identity card? Finally, can the Government assure the House that it is still their intention to remove the non-photographic forms of identification from the list of specified documents?
We support the order.
Lord Williams of Mostyn: My Lords, I am very grateful for the general support given to the order, because it is, as I said earlier, the mirror of the general election arrangements that were improved and approved by the House.
The noble Lord, Lord Kilclooney, pointed out—and his remarks were echoed by the noble Lords, Lord Glentoran and Lord Smith—that there had been a certain amount of confusion about the fact that these were new arrangements. I recognise those as legitimate points. The noble Lord, Lord Smith, put the matter slightly differently; he asked how the provisions have been received. I believe that there has been some confusion. I am happy to be able to tell your Lordships that the Chief Electoral Officer is aware of those problems which have been identified. He proposes to contact those people who have completed the forms wrongly to see how he can assist them and identify the problems so that the forms can be properly filled out.
Lord Kilclooney: My Lords, I thank the Lord Privy Seal for that very welcome news. But there is a second problem; that is the people who have not even returned the forms. It is good to know that those who have returned incorrectly completed forms will be contacted. But I fear that there are many thousands who will not have returned them. As the House will be aware, originally there was only one form for each household. Now there is one for each elector. Many

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are not returning the forms. That will be the interesting question: how many have been returned on this particular occasion.
Lord Williams of Mostyn: My Lords, I do not have up-to-date figures on that. I recognise the problem. The electoral officer has been imaginative and flexible in dealing with the problem identified by the noble Lord. Voter education—this matter arises from the question of the noble Lord, Lord Kilclooney, and the specific question of the noble Lord, Lord Smith—is now the responsibility of the electoral commission. It has committed £0.5 million of funding to the registration campaign. That included television advertising, an information leaflet delivered with each electoral registration form and posters around Northern Ireland.
I agree with the subpoint of the noble Lord, Lord Kilclooney, that it is important that people who may be a little uncertain and perhaps a little bewildered should be encouraged to fill up their forms. However—manifold as my responsibilities are—I do not think that they include making sure that everyone who should fill in a form has done so.
I am grateful for the general support. I cannot deal with the take up rate. If I receive further details I shall write to all noble Lords who have contributed today. In particular, I thank the noble Lord, Lord Rogan, for his comments.
I remind the noble Baroness, Lady Park of Monmouth, that this is a local election order. I know that the normal parameters of relevance do not pertain to debates in Northern Ireland—never should that change. I take her points on electronic voting and on violence, from whichever side. If we have the best electoral arrangements that we can achieve—and we have made significant steps in this House—there is no conceivable excuse for violence, whoever perpetrates it.
On Question, Motion agreed to.

Treasure (Designation) Order 2002
8.16 p.m.
The Minister of State, Department for Culture, Media and Sport (Baroness Blackstone)The Minister of State, Department for Culture, Media and Sport (Baroness Blackstone) rose to move, That the draft order laid before the House on 3rd July be approved [35th Report from the Joint Committee].
The noble Baroness said: I beg to move that the draft Treasure (Designation) Order 2002 be approved. I shall speak also to the draft Treasure Act 1996 Code of Practice (Revised) (England and Wales) 2002. The orders were debated in committee in another place on 16th July 2002.I am satisfied that the two instruments are compatible with Convention rights.
Two closely connected instruments are before the House today. I begin by describing what the first does. The Treasure (Designation) Order extends the definition of "treasure" in Section 1 of the Treasure Act 1996 by designating, under Section 2(1) of the Act,
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two classes of objects as being of outstanding historical, archaeological or cultural importance. The order applies to England, Wales and Northern Ireland only. I can confirm that it has approval from the devolved administrations.
The first class of object is one of at least two base metal objects from the same find—other than coins—which are of prehistoric date. The second class of object is any object of prehistoric date—other than a coin—any part of which is gold or silver.
A new order extending the definition of treasure forms one of the principal recommendations of the report on the operation of the Treasure Act 1996, published in November 2001. The Government's commitment to the new designations was expressed most recently in The Historic Environment: Force for Our Future, published by my department in December last year.
The widening of the definition of treasure in this way—to include deposits of prehistoric base metal objects—will extend protection to an important class of finds not currently covered by the law. We are advised by the archaeological community that there may be up to 50 potential finds in this category a year. This change should ensure they are reported and properly recorded. The new order is designed to catch nationally important finds, such as the Bronze Age metalsmith's hoard found near Salisbury a few years ago, which would otherwise go out of the public domain unrecorded.
The Treasure Act came into force in September 1997. It was the first ever reform of the law of treasure trove in England and Wales. It is extraordinary to remember now that the common law it replaced had essentially remained unchanged for over 700 years. The main aim of the Treasure Act was to introduce a new objective test of what is treasure, while at the same time making the law enforceable.
The reporting and the preservation of treasure is vital to the understanding of our shared past. As the recently published Annual Treasure Report (2000) clearly shows, the Treasure Act has certainly succeeded in its primary aim of ensuring that more finds of archaeological importance are offered to museums for public education and enjoyment than was true before. In addition, there has been a substantial gain in our knowledge of different artefacts and their distribution since the introduction of the Act—knowledge that would otherwise be lost. As a measure of success, for the third year running the number of finds reported as potential treasure has continued to increase: from 205 in the first year, to 223 in the second year and 265 in the third year.
However, the substantial increase in the caseload borne by the many different parties concerned with the operation of the Act has, from time to time, placed strains upon the system, leading to delays. For this reason, in September 2000, my department commissioned a review of the Act, as required by the code of practice. The review focused on two issues: the definition of treasure and the system of administration. A consultation paper was issued in

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December 2000 and a report on the operation of the Act was published last November. Both documents were widely circulated.
Turning to the second instrument, the draft revised code of practice laid before your Lordships represents the final outcome of that consultation exercise. The existing code has been revised to take account of the order, and several other changes designed to improve its operation have been made in the light of four years' experience. The new code sets out policy on the payment of rewards, arrangements for the acquisition of objects and the valuation of treasure by the Treasure Valuation Committee. The code, which has effect in England and Wales, also provides improved guidance for finders, museums, coroners and others concerned with treasure. There is a separate code of practice for Northern Ireland, which is being revised on similar lines.
In particular, the new code contains guidance designed to speed up target times, so that finders and landowners are not inconvenienced more than necessary. The Government recognise that the code needs to be distributed as widely as possible to all interested parties—especially to metal detectorists, landowners, archaeologists, museums, the antiquities trade, coroners and the police. My department will also distribute additional guidance summarising the main requirements of the Act.
In recognition of the problem of delays to the administration of treasure cases, extra resources have been made available. To complement an existing post devoted full-time to treasure, two new posts have been created. I also greatly welcome the decision of the British Museum to create a new post for a treasure registrar from last October. The treasure registrar is responsible for the co-ordination of all treasure cases from England until inquest; after that, responsibility passes to the treasure team in my department. The establishment of that post was another of the key recommendations of the review. Early indications are that the treasure registrar is already having a substantial impact on the administration of treasure cases before inquest.
Although it is unnecessary to have separate registrar posts in Wales or Northern Ireland, where the volume of finds is lower, I also acknowledge the valuable role of the National Museums and Galleries of Wales, the Environment and Heritage Agency and the National Museums and Galleries of Northern Ireland in dealing with treasure cases in their countries.
My department is also anxious to work with other bodies that have responsibilities for treasure, especially the Coroners' Service, which has a central role. My department, with the British Museum, will be holding a seminar for coroners on new developments in treasure in December. At the same time, we have been co-operating with the fundamental review of coroners being carried out by my right honourable friend the Home Secretary.
The network of regional museum curators and local governmet archaeological officers who have agreed to act as local reporting centres has also played an
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important part in the process. The 12 finds liaison officers established under the portable antiquities scheme have played an often crucial role in helping finders to report their finds and ensuring the smooth running of the system. Thanks to the liaison officers, it is already obvious that a significant number of finds have been reported as treasure that would not otherwise have been.
I should explain that, despite the increase in cases of treasure since the Act came into force, the great majority of archaeological finds still fall outside the scope of the Act. The aim of the portable antiquities scheme is to record for public benefit all archaeological objects reported by members of the public on a voluntary basis. Those objects may not be so glamorous as the treasure finds but, from the point of view of understanding our past, they can be just as, if not more, important.
I am delighted to report that in May the Heritage Lottery Fund agreed to fund in full a bid from Resource for an expansion of the portable antiquities scheme for three years from next April. From late 2003, there will be a national network of 36 finds liaison officers across England and Wales, as well as four supporting finds specialist posts and a central support team of five—45 posts in all. That means that we can be confident that there will be the staff to ensure that finds are dealt with as they should be.
The Act, with the support of the portable antiquities scheme, has achieved considerable success in mapping, protecting and bringing the general public closer to the more sensitive parts of our archaeological heritage, which would otherwise be lost. I commend the instruments to the House. I beg to move.
Moved, That the draft order laid before the House on 3rd July be approved.—(Baroness Blackstone.)
Baroness Trumpington: My Lords, I listened to the Minister's words with great interest, especially as this is the first time that matters pertaining to treasure have been debated in the House since our debates on Lord Perth's Treasure Bill in 1994 and 1996. As the then government spokesman on such matters, perhaps I may say how delighted I am at the success of the Treasure Act 1996 since it came into force. I think that I can see some old, familiar friends sitting in the far corner who helped me no end at the time. I should add that when Lord Perth's Bill became a government Bill, my noble friend Lord Inglewood was in the hot seat occupied by the noble Baroness today.
The Minister touched on the fact that the Treasure Act 1996 has resulted in a tenfold increase in finds reported as treasure—from 25 to 250 a year—that have been offered to museums for them to acquire for public benefit. We hope that the order before us will bring in another 50 cases a year. I am therefore wholly in favour of the order and revised code of practice and should merely like to ask the Minister a few questions of which I have given her notice.
In view of the Government's decision to extend the Act, do they accept the need to provide long-term stable funding for a nationwide network of finds

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liaison officers to make it work? Secondly, the Minister will realise that the Act has placed considerable extra burdens on other bodies such as the British Museum, which has the main responsibility for examining and reporting on treasure finds from England. No additional funding has been provided by the Government for the 10 extra posts involved in that work. Indeed, the museum now faces a funding crisis involving a £6.5 million deficit. What assurance can the Minister give that the additional burdens imposed by the order will be funded by government?
While the Act has led to a great increase in finds offered to museums for acquisition, museums must raise the money to pay the rewards for those finds from their own resources. They are finding that increasingly difficult because of budget cuts. As a result, treasure finds are being returned to finders because museums have been unable to raise the money.
Your Lordships will appreciate that if museums cannot acquire treasure finds when they want to, the Act is failing in its purpose. What is the Minister's solution to that problem? Would the Government agree to inaugurate a joint dedicated funding stream from the Heritage Lottery Fund and the Resource/V&A purchase grant fund for treasure finds? There should also be greater help for small museums on how to apply for funding and an urgent review of museum collecting areas.
The Act contains a criminal offence of failing to report treasure. Although that has helped to ensure a high rate of reporting, there are still cases of unreported finds coming onto the market. I understand that, at present, it is difficult to invoke the law in such cases. Can the Minister confirm that the Government have accepted the case for introducing a new criminal offence? If they have, it is essential that the new offence be included in a criminal justice Bill in the next Session. I look forward to the Minister's reply.
8.30 p.m.
Lord Freyberg: My Lords, I, too, should like to make a few comments on the order and the effect that it has had on the British Museum.
First, I welcome the opportunity that the Treasure Act 1996 provided for the British Museum to see and record a much higher number of finds and, in particular, for the museum to work very closely with regional museums in England, providing advice on the importance of finds and supporting their efforts to raise money to acquire them. However, like the noble Baroness, Lady Trumpington, I would like to highlight the additional financial burden that that has placed on the museum.
Because the Treasure Act has attracted such an enormous response, there has been a correspondingly high—and unexpected—burden on the museum's human and financial resources. As the noble Baroness said, in less than five years, the British Museum has had to increase the number of staff who deal with treasures from the equivalent of three to around 13 full-time posts, at an additional cost of £500,000 per
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annum to deal with the near tenfold increase in treasure trove cases. As the level of response was not anticipated, the Government provided no additional funding. However, that has now become imperative. There is no sign that the increased workload will dry up, and valuable and historically significant objects continue to come to light.
The museum's staff are supportive of the Act's aims, but it seems unreasonable to expect a museum already under financial strain to absorb so large a sum. The Government will be aware that this comes at a time when the museum's grant-in-aid has been steadily decreasing in real terms. In order to bring the 2003–04 grant on to a par with the 1994–95 grant, it would need to be increased by 30 per cent, or £10 million in current terms. Therefore, I ask the Government to consider allocating a special sum to cover the important work that is being carried out. I ask them to be mindful of the obligations placed on the treasure and portable antiquities department by the Act. The museum's other work should not be penalised because of it.
I have heard rumours that the department does not look sympathetically at this plea for additional funding, believing that the museum is sufficiently compensated by now being able to claim back VAT on its activities. However, I would respectfully remind the department that the purpose of reclaiming VAT is to benefit the entire museum and not to subsidise the additional activities of a particular department. I hope that the Minister will take a further look at the request.
Lord Renfrew of Kaimsthorn: My Lords, like my noble friend Lady Trumpington, I welcome both the designation order and the revised code of practice. My noble friend was, of course, a key figure in the passing of the Treasure Act 1996, which, as she said, owed so much to the earlier efforts of the Earl of Perth.
The designation order is a major step forward. As we heard, it establishes as treasure hoards of prehistoric objects made of base metal. In recent years, our heritage has suffered dreadfully from the looting of such finds or, indeed, in many cases the legal excavation of such finds as they were not designated as treasure, and their export overseas.
One terrible episode, which I recall, was the story of the Salisbury hoard. It may not be the same as the noble Baroness's Salisbury hoard; my Salisbury hoard was of Iron Age date and was, perhaps, a votive deposit, not scrap metal. However, the main point is that it was looted at night by "nighthawks"—illegal metal detectorists—who went onto the landowner's land. When the case came to court, as a result of some rather good detective work at the British Museum, there was only one minor conviction with a short sentence, and several others were not convicted. Of course, at that time, the activities in question, although they were illegal because they took place on private land, did not relate to treasure. It is very welcome news that such activities are to be covered by the Treasure Act and will be dealt with more severely. That is a success.

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I also salute the work of the portable antiquities scheme initiated by the department. It is splendid news that the number of liaison officers will increase from the pilot scheme number—12—to 36, to cover the whole of England and Wales. The department has been fortunate and, perhaps, skilful in arranging things so that the Heritage Lottery Fund is covering the expense of the enterprise for three years. However, as my noble friend said, there are anxieties about what will follow. I understand that the Heritage Lottery Fund people have said privately that they do not intend to pay for the work for any further period. I ask the Minister for an assurance that her department is examining ways in which the scheme will continue to be funded after April 2006. It is a national responsibility, and I hope for some encouragement from the Minister that the department regards it as such.
In the debate in the House of Commons Standing Committee on Delegated Legislation, Mr Richard Caborn said that liaison officers played,
"an often crucial role in helping finders report their finds and in ensuring the smooth running of the system. Thanks to the liaison officers, it is already obvious that a significant number of finds have been reported as treasure that would otherwise not have been".—[Official Report, Commons Standing Committee on Delegated Legislation, 16/7/02; col. 5.]
It was encouraging to hear the Minister speak in similar terms a moment ago.
The noble Lord, Lord Freyberg, dealt fully with another issue. How do museums acquire the treasures, which must be paid for at full market rates? I echo the point made by the noble Lord about the burden that falls on the British Museum. It is wonderful to have a person entitled the treasure registrar, and if I were younger, I would love to apply for the post. There are several such persons in the British Museum now, and I am told that the number of people working on treasure has gone up from three to 13. As the noble Lord, Lord Freyberg, said, those posts must be paid for.
Thirdly, I welcome the announcement made by the Government in July that we would accede to the 1970 UNESCO convention. However, I remind the House that the ministerial panel on illicit traffic in antiquities, chaired by Professor Norman Palmer and on which I have the honour of sitting, made the important recommendation that there should be a new criminal offence of possessing or dealing in cultural property that has been stolen or illicitly removed. That has been accepted as government policy. Although the motivation for creating that offence was, in large measure, to clamp down on the international trade in illicit antiquities, as covered by the Government's accession to the UNESCO convention, the law applies with equal force in the case of antiquities looted or illicitly handled in this country. It will be a useful adjunct and support to existing treasure legislation.
The Minister has already been generous in assuring the archaeological community of the Government's good intentions. Will she repeat the assurance that, at the next appropriate legislative opportunity—the next
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criminal justice Bill, for instance—the Government will ensure that such a measure is put on the statute book?
Lord Redesdale: My Lords, these are uncontroversial orders and we fully support them. I had laid out a detailed speech, but I will bin it because all the points have been covered. I have no questions to ask the Minister. Indeed, I have something which is unusual; that is, a note of gratitude to direct at her personally. She has done her utmost to ensure that the portable antiquities scheme will survive in its present form and will be allowed to continue until the start of the Heritage Lottery Fund, which is welcome and will give the scheme another three years.
However, that will lead to a big problem in three years' time because representatives of the Heritage Lottery Fund, in giving evidence to the All-Party Archaeological Group, have categorically stated that they will not fund the scheme past that three-year limit. That will lead to further debate in the House and to further careful appraisal of how the Government should finance the scheme.
It is only right that today we give thanks not only to the Minister but also to those who work with the portable antiquities scheme. The treasure officers do such good work in liaising with the metal detectorists. Many metal detectorists do sterling work, not to make financial profit but to protect the historic heritage. That heritage is put at serious risk by the increased industrialisation of farming.
Baroness Buscombe: My Lords, we, too, support the order and the revised code of practice. Although I reiterate what the Minister said about the extension of the definition of "treasure" and the improved administration in the practice of reporting, there is concern about funding. It is good that an improved system will be put in place which will speed up reporting. However, as was said by my noble friends Lady Trumpington and Lord Renfrew and the noble Lord, Lord Freyberg, that cannot happen in practice unless there is funding to support the initiatives.
As the noble Lord, Lord Redesdale, said, it is otiose to repeat what has already been asked of the Minister and we look forward to her reply. However, I want to reiterate the concern about long-term funding. It must be made possible to have a sustainable nation-wide network of find liaison officers to support compliance with the Act. A considerable burden has been placed on bodies such as the British Museum, which is responsible for examining and reporting on treasure finds, because no additional funding has been provided in that regard.
Most importantly, the museums must raise the money to pay for the rewards. If they cannot do that, the Act is failing. The Act is being compromised if it is unable successfully to ensure the reporting of treasure. Will the Minister respond to the questions already asked of her and say whether there may be room for consideration in the forthcoming review of the criminal justice system? Will measures be introduced in the next Session to improve the position as regards

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the legality or otherwise of reporting finds and the illicit removal of wonderful treasures? As the Minister said, reporting is vital in the understanding of our past.
Baroness Blackstone: My Lords, I am grateful for the general welcome that has been given to the provisions. I am especially grateful to the noble Lord, Lord Redesdale, for deciding to bin his speech, given that all his points had been made and his questions asked by others. I acknowledge the excellent work done by the noble Baroness, Lady Trumpington, on the Treasure Act, but like the noble Lord, Lord Redesdale, I should like to acknowledge the work of all those involved in what for some people is an esoteric area but which I regard as most important.
I was asked about the portable antiquities scheme and whether I can given an assurance that it will receive long-term funding. Like other speakers, I was delighted to know that the Heritage Lottery Fund was able to support the scheme. That funding will expire in April 2006. In the mean time, I will give the reassurance that has been requested today: that the DCMS will give active thought to the question of the long-term sustainability of the scheme.
The noble Baronesses, Lady Trumpington and Lady Buscombe, and the noble Lords, Lord Renfrew and Lord Freyberg, asked whether there would be sufficient resources to take on the additional burdens imposed by the order. I have already mentioned the additional posts that have been created in my department and the fact that the British Museum has created the post of treasure registrar. It is up to the British Museum to allocate adequate resources to fulfil its obligations under the Act.
Grant in aid to the museum has increased in real terms since this Government came into power. Therefore, I correct what was implied by the noble Lord, Lord Freyberg. Indeed, there has been an increase in real terms of 17 per cent in grant in aid across the board to our DCMS-sponsored museums since 1997. The British Museum raises a great deal of additional income from various other sources. Furthermore, the VAT concession the Government were able to give it is alone worth more than £750,000 a year. That is above what is estimated to be the cost of managing the treasure reporting process.
As regards the other museums, I remind the House that there has not been central funding to allow museums to acquire objects for more than 70 years and that the Treasure Act has not changed that position. Sponsored museums and galleries will be receiving additional funds following the spending review, although they will not be hypothecated specifically to treasure acquisitions—nor do I believe that they should be and nor do I believe that that would be welcomed by them. However, I can pledge today that there will be an increase in funding for museums.
Museums will have to find money for reward payments out of that increase and the grant in aid that they already have. Indeed, they are successful at doing that because they are raising approximately £1 million
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a year towards the funding of treasure acquisitions. That is a demonstration of the success of the process. Furthermore, we are not aware that any important treasure finds have not been acquired for lack of funding. However, if the noble Baroness is aware of such finds, I should be most interested to know. Of course not all finds are wanted by museums. Almost half are disclaimed and returned to their finders. The increase in the reporting of treasure finds simply highlights the need for prioritisation as regards museum collecting.
I turn to the final question on the action the Government intend to take to prohibit the looting of archaeological sites in this country. We are committed to introducing a new criminal offence. I cannot give a guarantee that it will be possible to include that in the forthcoming criminal justice Bill, but I can give an assurance that the offence (with a proposed maximum penalty of seven years' imprisonment) would send out a strong signal to those who may be tempted to deal illegally in removed antiquities. It should also help in dealing with looting. We will do our best to try to find a route for bringing that on to the statute book at the earliest possible moment. I commend the order to the House.
On Question, Motion agreed to.

Treasure Act 1996 Code of Practice (Revised) (England and Wales) 2002
8.50 p.m.
Baroness Blackstone: My Lords, I beg to move.
Moved, that the draft code of practice laid before the House on 3rd July be approved [35th Report from the Joint Committee].—(Baroness Blackstone.)
On Question, Motion agreed to.

Scotland Act 1998 (Cross-Border Public Authorities) (Adaptation of Functions etc.) (Amendment) Order 2002
The Parliamentary Under-Secretary of State, Department for Environment, Food and Rural Affairs (Lord Whitty)The Parliamentary Under-Secretary of State, Department for Environment, Food and Rural Affairs (Lord Whitty) rose to move, That the draft order laid before the House on 27th June be approved [34th Report from the Joint Committee].
The noble Lord said: My Lords, the order concerns the functions of the Meat and Livestock Commission. The MLC was established by the Agriculture Act 1967 with the general aim of promoting the efficiency of the livestock industry in Great Britain. As a consequence of devolution, however, provision must be made to allow the development of regionally appropriate strategies in the red meat sector. The red meat sector is important to Scotland as it accounts for 42 per cent of the value of Scottish primary agricultural production and has an annual output value of £770 million. Furthermore, Scotland has 29 per cent of UK beef

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cattle and 21 per cent of the UK sheep flock. These forms of agriculture account for more than 10 per cent of GDP in some areas of Scotland.
Quality Meat Scotland (QMS) was established in 1999 to support the red meat industry, primarily by promoting Scottish red meat. It was formed by the MLC with the National Farmers' Union for Scotland and the Scottish Association of Meat Wholesalers.
QMS derives its functions and a large part of its funding from the MLC. The MLC has the statutory responsibility to promote greater efficiency in the livestock industry in Great Britain. To this end, the MLC collects general and promotional levies on slaughtered or exported cattle, sheep and pigs. The promotional levy is used for promotion or undertaking arrangements for advertising the merits and increasing the species promotion sales, in GB or elsewhere, of livestock and livestock products.
QMS funding is currently based on the Scottish promotional levy. The Scottish general levy is currently retained by the MLC, which takes responsibility for functions such as collection of market information, research and product development, livestock improvement, training and health education.
Devolution has highlighted the need for a distinctive and locally appropriate strategy for each part of Great Britain and for new accountability arrangements between the MLC and Scottish Ministers. The Scottish executive undertook a consultation exercise to gauge industry views on strengthening the role of QMS. The consultation was based on four core proposals: that QMS became responsible, on behalf of MLC, for all MLC functions in Scotland; that QMS be given the autonomy to develop a strategy for Scotland focused on Scottish red meat development and promotional priorities; that QMS receives the full Scottish general and promotional levies to address Scottish priorities for red meat; and, that QMS continues to invest in GB level MLC services where this confers benefits on the Scottish industry.
Respondents to the consultation included all of the key stakeholder groups in the Scottish red meat sector. They indicated a high level of support for the proposals. The Meat and Livestock Commission has also been consulted on the terms of the order, as is required by Section 89 of the Scotland Act.
Respondents to the consultation expressed a view that continued links with the MLC were important—links that would prevent duplication of effort, ensure the retention of valued services, protect core expertise and maintain the integrity of GB programmes, while at the same time securing best value for the Scottish red meat sector.
The order before us today makes provisions in relation to the financial arrangements, control and accountability of the MLC. It will transfer to Scottish Executive Ministers the function of giving general directions to the MLC in relation to the use of the Scottish levy. To achieve this, the order will require the agriculture Ministers—that is, the Secretary of State for Environment, Food and Rural Affairs, Scottish
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Executive Ministers and the Welsh Assembly Government Minister for Agriculture and Rural Development—acting jointly to make a determination to define the basis for the Scottish levy.
Conversely, it will also require that the function of giving directions in relation to the use of the levy for England and Wales will cease to be exercisable by Scottish Ministers.
The order will also require the MLC to prepare for Scottish Ministers an annual report on the discharge of its functions. This will be an important part of strengthening accountability to Scottish Ministers.
The order will not, however, change the arrangements for the setting of the Scottish levy or the collection of the levy and it will not affect the MLCs status as a Great Britain body.
The delegation from MLC to QMS of functions in Scotland will be achieved through a joint ministerial direction. This will be made under the provisions of the Agriculture Act 1967 subsequent to the making of this order. I commend the order to the House. I beg to move.
Moved, That the draft order laid before the House on 27th June be approved [34th Report from the Joint Committee].—(Lord Whitty.)
The Earl of Mar and Killie: My Lords, it is always good to have the opportunity to debate matters in Scotland. However, I promise not to make a meal of it.
The order can be welcomed on several grounds, instinctively because it is devolutionary in character, although I acknowledge that the MLC will remain the cross-border authority. It also meets the aspirations of the Scottish livestock industry and enables the Scottish Executive to achieve its strategic aims. It establishes a Scottish levy, determined by the Secretary of State, the National Assembly and Scottish Ministers. It requires Quality Meat Scotland to report annually to the Scottish Parliament, thereby enabling scrutiny. It confirms the autonomy of QMS, but not the divorce of QMS from the Meat and Livestock Commission. It also identifies the use by QMS of the core services maintained by the MLC.
Understanding the order was made easier than usual by the extensive explanatory memorandum attached to it. The Scotland Office is to be congratulated on its preparation. However, the arrangements are somewhat convoluted in character. However, this is not a simple devolutionary transfer of powers but the alteration of cross-border arrangements.
I have four questions. First, will the Scottish levy be made up of those levies collected in Scotland or will it be an arbitrary amount collected in Great Britain and decided upon by the various Ministers? Secondly, is there scope for Barnett-formula style additional funds, recognising the greater strategic importance of the livestock industry in Scotland as opposed to in England? Thirdly, does the order signal the end of any semblance of a brand called "British meat"? Fourthly, I can see the brand advantage of Scottish and Welsh

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meat—"Happy animals reared among sensational scenery"—but what will be the consequence for the branding of English meat?
Lord Glentoran: My Lords, I thank the Minister for bringing forward the order. I have not changed allegiance across the water to north of the Border. My noble friend the Duke of Montrose, who would be here, is sick. However, I am assured by those whose advice I have taken that this order is all in the best interests of Scotland. On that basis, I support the Motion.
Lord Whitty: My Lords, I thank the noble Earl, Lord Mar and Kellie, and the noble Lord, Lord Glentoran, for their support. It has been a convoluted discussion but it has ended up with the best solution in slightly complex circumstances.
To answer the noble Earl's questions, the Scottish levy will be the levy raised in Scotland. Therefore the issue of the Barnett formula does not arise because the levy relates to the number of animals which are slaughtered or exported from Scotland relative to England rather than any artificial formula.
Is it the end of British beef? I do not think so. I think that the brand of British meat may well still be promoted, but the special brand of quality Scottish meat is also important, as in some circumstances is that of Welsh meat.
As to whether this formula will be detrimental to England, I believe that it will be beneficial to everyone. I would certainly argue that English meat is equally well reared in equally beautiful surroundings, albeit different ones, and will equally meet the tastes not only of British consumers but of consumers around the world. The MLC will contribute to that in its new guise. I commend the order to the House.
On Question, Motion agreed to.

Nationality, Immigration and Asylum Bill
Further consideration of amendments on Report resumed on Clause 64.
9 p.m.
Lord Bassam of Brighton Lord Bassam of Brighton moved Amendment No. 52A:
Page 37, line 11, leave out "specified in section 75(1)(g)," and insert "that to remove him from or to require him to leave the United Kingdom would breach the United Kingdom's obligations under the Refugee Convention,"
The noble Lord said: My Lords, the rationale for Clause 64 is the need to take firmer action, where appropriate, when refugees and asylum seekers commit serious offences. I would stress that it is only a small minority who act in this way, but the Government are rightly not prepared to tolerate such behaviour. It is an abuse of this country's hospitality and of the privileges afforded by refugee status. It can give the refugee community a bad name and cause tension and prejudice within the wider community.
Together with the Home Secretary and other Ministers, I want it to be understood that our aim is to deny the protection of the 1951 Refugee Convention to refugees and asylum seekers who commit serious crimes here and abroad. Article 33(2) of the convention is the provision which enables protection to be withdrawn or withheld from such persons. It permits the expulsion or return of, inter alia, a person,
"who, having been convicted by a final judgement of a particularly serious crime, constitutes a danger to the community of [the]…country [in which he is]".
Clause 64 sets out a specific framework for interpreting and applying Article 33(2). Defining the term "particularly serious crime"—a debate that we have already had in part—using a tough two-year yardstick, in combination with a rebuttable presumption of "danger to the community", will make it more difficult for refugees to be shielded from removal by virtue of their refugee status.
We are not the only country to have defined the term "particularly serious crime" in domestic legislation. Australia, Canada, the USA and Germany are others. The United States uses a one-year actual sentence criterion.
The two amendments before the House are of a minor nature. At present, subsections (7)(a) and (8)(b) of Clause 64, in referring to an appeal by a person subject to Clause 64, contain references to,
"the [appeal] ground specified in section 75(1)(g)".
The reference to "section 75(1)(g)" is incorrect because that part of the Bill, after a change was made, now provides for a human rights appeal as well as an appeal ground relating to the Refugee Convention. However, a certificate issued by the Secretary of State under Clause 64 will not have any bearing on a human rights appeal, but will only impact upon an appeal based on the Refugee Convention. Therefore, the two references to "section 75(1)(g)" need to be removed and replaced with an express reference to an appeal ground relating to the Refugee Convention. I beg to move.
On Question, amendment agreed to.
Lord Bassam of Brighton Lord Bassam of Brighton moved Amendment No. 52B:
Page 37, line 19, leave out "section 75(1)(g)" and insert "subsection (7)(a)"
On Question, amendment agreed to.
[Amendment No. 53 not moved.]
Clause 68 [Revocation of leave to enter or remain]:
Lord Kingsland Lord Kingsland moved Amendment No. 54:
Page 39, line 6, leave out subsection (2).
The noble Lord said: My Lords, this amendment seeks to highlight a point that was raised in the debate on this clause in Committee. Both in another place and in Committee in this place, the Government have been asked what the legal effect of the revocation of a person's indefinite leave to enter or remain would be if that person could not be deported from the United Kingdom for legal or practical reasons. The Bill is silent on this point. In Committee, the noble Lord, Lord Filkin, said:

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"once indefinite leave has been revoked it is likely to be replaced with short periods of limited leave—for example, six months at a time",—[Official Report, 17/7/02; col. 1330.]
I should like to press the Minister on his use of the word "likely". Did he in fact mean that once indefinite leave is revoked it will always be replaced with short periods of limited leave if the person cannot be deported? If that is the case, why does it not say so on the face of the Bill?
Or do the Government envisage situations in which that will not happen, and, if so, can the Minister tell the House what the legal status of such a person would be if no limited period of leave was substituted? He would presumably have no leave to enter or remain in the United Kingdom once indefinite leave was revoked. On what basis, therefore, would he be present in this country? Would he be here simply at the pleasure of the Secretary of State? Or would he be in the country illegally—as he would presumably not have any right to be here under the Immigration Acts?
I hope that the Minister will be able to clarify the point. I beg to move.
Earl Russell: My Lords, perhaps I may first repeat the apologies offered on my behalf by my noble friend Lord Dholakia for making points about this clause on the wrong amendment. I am sorry for it, and I am sorry to have discomposed the proceedings of the House. But I have a real question which I am asking with real people in mind, because they desperately want to know the answer.
The Secretary of State is giving out mixed messages to those who have come here as refugees and hope to settle here. On the one hand, he presses strongly for them to integrate themselves into the British community. Occasionally he is over-zealous, but there is nothing wrong with the idea that they should integrate, especially if there is nothing that they would like better. However, at the same time, the Secretary of State in his article in The Times at the end of last week cast much doubt on the future of the status of exceptional leave to remain.
The Minister in his letter to me of 7th October, for which I thank him, said that the amendment that we were to be offered would refer only to exceptional leave to remain granted in future. I have no objection to any of the grounds for withdrawing exceptional leave stated in Clause 68. I ask the Minister for assurance that those who are already here with exceptional leave, and who wish to settle and integrate, will not find their leave arbitrarily revoked simply because the Secretary of State wants to get rid of them. Many people's ability to integrate depends on the answer to this question. I would be much obliged if the Minister would answer it.
Lord Filkin: My Lords, I will seek to keep my comments succinct. I will take first Amendment No. 54. Our starting point, as I am sure the House knows from the Committee stage, is that firm action needs to be taken against those shown to have obtained leave, including indefinite leave, by deception. The normal
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response in such situations would be to remove the person from the United Kingdom, and powers to do this already exist in legislation.
There will be occasions when the removal of someone who has obtained leave by deception is prevented by other factors. There may be legal restrictions; for example, it might be contrary to the ECHR to remove someone for the time being. There could be practical matters; for example, a lack of appropriate documentation might mean that the person's home country would not accept them back.
Where removal is impossible we have concluded that it would not be right simply to do nothing. It is not an acceptable option to show that a person has obtained indefinite leave by deception and then to let matters rest. Subsection (2) provides a response; it enables a person's indefinite leave to be revoked, and such a response would not be an empty gesture. First, it would underline the determination to crack down on those who gain leave by deception, and, secondly, it would send a message to individuals that, although their removal may not be possible at that time, their long-term presence in the country is far from guaranteed. Once the conditions change so that removal becomes possible, the fact that the person has lost his indefinite leave and is liable to be removed when circumstances permit should ease removal when the time comes. Thirdly, pending removal, the revocation of indefinite leave will enable certain benefits associated with such leave, such as family reunion, to be denied to the individual.
The noble Lord, Lord Kingsland, asked what is the status of a person once his leave has been removed, and whether indefinite leave would always be replaced with short periods of leave. The answer is no, it would not always be replaced with short periods of leave. There could be circumstances, for example, where the Government and the Home Secretary judge that it was likely that the impediments to the return of the person to his country of origin were likely to change in the near future, and, therefore, they might not be granted a further period of leave in the expectation that their return to their country of origin would be possible. The House can envisage the circumstances in which one might consider that a change of regime has made it no longer an impediment to do so.
In Committee I referred to the tautological situation—I still believe that there is no better word to describe it—that if someone has no leave they effectively have no status. Someone without status under the immigration legislation would be expected to leave when it was possible. It would be wrong to require the Government to replace that on the face of the Bill with a six-month period when practical circumstances can change so quickly. In any event, there is always the duty on the Secretary of State to act reasonably.
In a sense, talking about ELR presages discussions that we shall have next Thursday. I should much prefer to wait until we can discuss those issues and the House has had the benefit of seeing the amendments. ELR will not be taken away arbitrarily. We cannot give a

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commitment that someone with ELR will always be able to stay permanently in the United Kingdom. The reason is clear, just as we are not saying that somebody with indefinite leave to remain will always be given a guarantee to remain perpetually in the country. That is what we are discussing on this clause. I am not seeking to avoid the question, but it would be better if we deferred discussion on these issues until we had the opportunity to consider the Government's amendments and any opposition amendments.
Earl Russell: My Lords, in saying that ELR will not be arbitrarily taken away the Minister has given me all that I asked for and I thank him.
Lord Avebury: My Lords, before the noble Lord sits down, do the remarks that he has just made about deferring discussion on this amendment apply to Amendments Nos. 54A, 54B and 54C as well? I was proposing to deal with them separately from the amendment now under discussion, with the leave of your Lordships.
Lord Filkin: No, my Lords, I was not suggesting that we deferred discussion on Amendments Nos. 54A, 54B and 54C. I was suggesting that we should not have much discussion on the Home Secretary's article in The Times on Monday, because that refers to the issues that we shall debate on the recommitment next week. The business before us now is Amendments Nos. 54A, 54B and 54C. I suggest that we continue discussion on those but do not discuss the content of the article in The Times, which will no doubt be the subject of good discussion next week. I hope that that clarifies.
9.15 p.m.
Lord Avebury: My Lords, I hope that the Minister is happy with our decision not to group Amendments Nos. 54A, 54B and 54C with Amendment No. 54.
Lord Filkin: My Lords, I have not yet spoken to Amendments Nos. 54A, 54B and 54C. Let me do so briefly.
Lord Avebury: No, my Lords, the Minister should not do that.
Lord Filkin: My Lords, I am sorry, I did not hear what the noble Lord said.
Lord Avebury: My Lords, I was asking the Minister if it was acceptable to him if we dealt with Amendments Nos. 54A, 54B and 54C separately from Amendment No. 54.
Lord Filkin: My Lords, I shall be guided by the House as to whether we can ungroup the amendments. If the House is so content, we shall so do.
Baroness Carnegy of Lour: My Lords, have we not already debated those amendments in Committee?
Lord Filkin: My Lords, we may well have done so, but they have been tabled again on Report, so it is
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perfectly valid to consider them again. I understand that the noble Lord, Lord Avebury, wishes to ungroup Amendments Nos. 54A, 54B and 54C from Amendment No. 54. If the House is content with that, it is not in my wish or power to impede that. I have nothing further to say in response to Amendment No. 54. I invite the noble Lord, Lord Kingsland, to withdraw it.
Lord Kingsland: My Lords, I thank the Minister for his response. I shall not press the amendment to a vote this evening but I may well return to it on Third Reading. I understand the nature of the Government's difficulties here. However, while some people who are given a series of short permissions to stay may find, quite quickly thereafter, that circumstances change so that they can leave this country, others may find that this series of short steps goes on for years—because the situation at Year 1 remains the same at Year 10 or Year 15—and they are still in this country with an uncertain status.
In those circumstances I suggest that, on humanitarian grounds, consideration ought to be given to the fact that the person has lived in this country for such a long time. After all, a person needs to be in this country for only five years to be able to apply for naturalisation. If somebody has to undergo a series of short-term leaves for 10 years or more, there ought to be a duty to give consideration to permanent permission to stay.
I understand the difficulties that the Minister might have in putting that on the face of the Bill, but might not that be the subject of a guideline? We can speculate on which would be the most appropriate clause under which it should be issued. There is no power to issue guidelines in this clause.
I am not asking for a clear response at this juncture because the point has not been raised before; but will the noble Lord consider that possibility? In addition to everything else that I have said, there is also the desirability of some legal certainty for individuals in this situation. While they are here we have responsibilities towards them.
I am not insisting on an immediate response and the Minister may well want to sit tight having heard that. I shall be inclined to raise the issue again on Third Reading. Perhaps the Minister might like to reflect before then on what I have said.
Lord Filkin: My Lords, I shall be happy to study with care and thought what the noble Lord has said when I read Hansard.
Lord Kingsland: My Lords, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Avebury Lord Avebury moved Amendment No. 54A:
Page 39, line 11, leave out subsection (3).
The noble Lord said: My Lords, I am most grateful to the House for agreeing to consider Amendments Nos. 54A, 54B and 54C separately from Amendment

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No. 54. I think that the matter dealt with in these amendments is rather different from that in the latter amendment. The matter has already been dealt with in Committee, but it is vitally important. Someone who is deprived of indefinite leave to remain would be faced with a very difficult situation. Such a power would create an uncertainty among those who already have this status that it may be taken from them at some point in the future. I suggest that knowing that the power exists to revoke this status would put in their minds a feeling of insecurity, and it would make a mockery of the Government's stated aim of integrating these people into our society.
In Committee in the other place, concern was expressed about the effect that this clause will have on refugees who might wish to make exploratory visits back to their country with a view to a possible permanent re-entry into the society of their origin. Although the Minister indicated that they were not the intended targets of this clause, its effect is to put them in uncertainty and to make it possible for the Secretary of State to exercise these powers against them.
I should like to give the Minister a recent, very practical example. As he may know, the situation has improved considerably in Bahrain in that, some time after he came to power, the new Emir let out all the political prisoners, permitted political exiles to return and abolished the state security courts which by common agreement had been the instrument of unfair trials against those who disagreed with the regime. Faced with that situation and the government of Bahrain's stated intention to introduce a form of democracy—which may not be perfect but is certainly better than anything that they have had there before—many Bahraini exiles in this country wanted to go back there and spend a few weeks talking to friends and colleagues to ascertain whether the conditions had sufficiently changed to justify their permanent return.
They sought to obtain assurances from the Home Office that if they did that it would be possible for them to return to this country before finally making up their minds. It was not possible for the Home Office to give them that assurance. I should have thought that the Government would want to encourage that type of behaviour when the political situation in the countries of origin had changed.
Another recent case that I had was that of an Iraqi who had been granted indefinite leave to remain in France but returned to his home country to explore the possibility of reaching a political solution with the regime at the highest level. While there, but after several visits to France, he was able to discuss matters with ministers. When the French authorities discovered that he had made these visits back to his country of origin, they revoked his leave to remain in France. He is now in this country seeking asylum here. After judicial proceedings, it has been agreed by the courts that he should have the facility to present an application for asylum in this country.
If the powers in this clause are given to the Secretary of State, the same thing might happen to refugees in this country as we see occurring across the Channel in
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France. People who for perfectly bona fide reasons seek to test the temperature in their countries of origin could be given their congé and told by the Secretary of State to get out. I think that we did not sufficiently explore this matter in Committee, and it would be useful if we could hear from the Minister about how those cases are going to be dealt with.
As for the issue of voluntarily re-establishing oneself in the country from which one was a refugee, I think that it all turns on how long one returns for. It would be useful if the Minister could give an assurance that nothing in this clause is intended to have the effect of preventing people from behaving in the manner that I have suggested, which is obviously common sense. It would be in the interests of this country to encourage that. We are starting to commend people from Afghanistan, Kosovo and other parts of the world where the situation was much worse in the past to go back to those countries to try to re-establish themselves. Is it really the Government's policy to discourage that kind of behaviour? I do not think so. I beg to move.
Lord Hylton: My Lords, the important point that has just been raised by the noble Lord, Lord Avebury, brings me to another aspect of the exceptional leave to remain and indefinite leave to remain question. I refer to travel documents, particularly as regards those individuals who either do not have a valid passport of their own or perhaps have an expired one. I understand that the Home Office is willing to provide them with some kind of travel document but it is not always acceptable to all other countries to which they may wish to travel. For example, it may prevent people who are employed in this country from taking a holiday on the Continent of Europe or, as the noble Lord, Lord Avebury, indicated, it may prevent people from revisiting their country of origin to see whether conditions are suitable for them to return. They may easily not be. I hope that the Home Office will address this matter thoroughly and take it on board.
Lord Filkin: My Lords, the 1951 convention envisages that refugee status and its accompanying protections can come to an end in certain circumstances. It is therefore legitimate for the United Kingdom to end protection when those circumstances arise. I shall explain how we see that discretion being applied.
That power will apply only where a person ceases to be a refugee by virtue of their own actions and excludes situations where the circumstances in connection with which the person was recognised as a refugee cease to exist. Where a person was granted ILR because he or she had been tortured in their country of origin and the regime changed, we would not envisage that they would be required to return to their country of origin. We do not consider it appropriate to take away indefinite leave as a result of circumstances beyond the control of the individual. However, where a person voluntarily reavails himself or herself of the protection of their country of nationality, they will have indicated that they no longer require the protection of the

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United Kingdom. There have been a number of examples—I do not know how apocryphal—of people being granted asylum in a country and then popping back for regular holidays and social contacts to their country of origin where they were allegedly tortured or where it was allegedly impossible for them to live. The matter would depend on the facts and the evidence in the relevant case. But clearly in the case that I have illustrated, the evidence would be that the person had obtained leave by deception and there would no longer be a need for them to remain in the United Kingdom.
Refugees are granted leave specifically for the purpose of protection and if they behave in a manner which clearly suggests that they no longer need it it is legitimate to expect that the person concerned should leave the United Kingdom. I make those two clear distinctions. No doubt, as always, there may be circumstances which fall into greyer areas. However, the law would not permit the Secretary of State to exercise this power in an unreasonable manner and there will be circumstances where it will not be appropriate to revoke leave. I believe that in Committee we discussed compassionate factors such as the need to travel home to visit a sick or dying relative. Those factors would be taken into consideration. If the Home Secretary judged that the circumstances were genuine and valid, leave would not automatically be revoked.
Furthermore, the Secretary of State would not act in breach of his international legal obligations, so that removal could not take place when the individuals concerned have built sufficient ties to the United Kingdom for that to be in breach of Article 8 of the ECHR. In part, that touches on the question raised by the noble Lord, Lord Kingsland, in relation to Amendment No. 54.
This is not a power to keep refugees permanently on their toes and for ever uncertain; rather, it is a prudent measure to enable former refugees to be removed in circumstances in which it is clear from their actions that they no longer need protection. Those circumstances are set out so as to mirror provisions in the refugee convention which spell out when a refugee ceases to be a refugee. With those comments, I hope that I have done at least something to put the minds of noble Lords at rest in this regard.
Moreover, the Home Office is continually pressing for greater international recognition of the certificate of identity. The noble Lord, Lord Hylton, raised that point. That document is issued to those who are not refugees but who have ELR. It is therefore not a matter to which this clause directly relates. However, I take the noble Lord's point. The greater the international recognition of that, the better. Refugees are entitled under the convention to a refugee travel document which is recognised for travel purposes.
9.30 p.m.
Lord Hylton: My Lords, which other countries will accept the Home Office's travel document?
Lord Filkin: My Lords, I do not know. I will investigate and write to the noble Lord, Lord Hylton.
Lord Avebury: My Lords, the Minister said that it would be clear from people's actions that they no longer needed protection. I gave examples of people who were not absolutely clear about whether they needed protection and who wished to ascertain, by visits to the country of origin, whether it was safe for them to return permanently. The Minister did not deal with that point at all.
Lord Filkin: My Lords, the noble Lord is correct; and my apologies for interrupting him. I should have referred to that matter. The thrust of my remarks is that these issues are not black and white. There will be circumstances in which individuals wish to test the situation. They are entitled to a response—either yes or no—with, we hope, reasons from the Home Office. If the noble Lord has examples in which that does not appear to be happening, please may we have sight of them? I shall take them up.
Lord Avebury: My Lords, it is too late now because these people all had to exercise their own judgment about whether or not—
Lord Filkin: My Lords, I regret that but there is little I can do about it. However, I can certainly establish whether there is a fault of practice in the department and seek to rectify that.
Lord Avebury: My Lords, I can only say to the noble Lord the Minister that I know several of these particular Bahraini exiles who asked the Home Office whether they would forfeit their status by going back to their country of origin for a few weeks to ascertain whether the political temperature had changed sufficiently for them to be able to return home safely with their families and take up residence again in their country of origin. That uncertainty remains.
It is all very well saying that in future if such a case occurs I could come to the Minister. I am sure that I should get a very good reception from the noble Lord, Lord Filkin, if I took up individual cases with him. That situation is likely to recur in future. The clause as it is drafted will land all of those people in a position of uncertainty.
I point out, with great respect, that the Minister has used on a number of occasions—he did so again tonight—the refrain that the law will not permit the Secretary of State to exercise his power in an unreasonable manner. He suggested that if we got it wrong, it would be open to the person aggrieved to bring proceedings to judicial review. To me, it is unsatisfactory that policing at the edges of power by the judiciary should be regarded as an effective substitute for good, clearly drafted legislation. We should provide the Secretary of State with powers that

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are limited to those that are necessary to discharge his functions in relation to immigration control rather than give him a sledgehammer, as does the clause, and entrust to the courts the duty of ensuring that he does not use it as a nutcracker.
I know that we will not make any progress in this regard at this point. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 54B and 54C not moved.]
Clause 69 [No removal while claim for asylum pending]:
[Amendment No. 55 had been withdrawn from the Marshalled List.]
Lord Dholakia Lord Dholakia moved Amendment No. 55A:
Page 40, line 20, at end insert—
"( ) In this section "other interim or preparatory action" shall not include any action which may prejudice the safety of a person who has made a claim for asylum or that of his family members and shall preclude any contact with the authorities in or from his country of origin and any requirement to apply for a travel document in his country of origin."
The noble Lord said: My Lords, the purpose of the amendment is to prevent the Secretary of State or an immigration officer taking action which might prejudice the safety or anonymity of an asylum seeker whose claim for asylum is pending. In meetings over the summer during the course of the Committee stage, the noble Lord, Lord Filkin, indicated that he believed he might be able to give a more satisfactory reply on this point. This amendment gives him an opportunity to do so.
Briefly, the existing provisions of Section 15 of the 1999 Act protect an asylum applicant from removal, pending the determination of his claim. Clause 69 repeats that protection. However, Clause 69(4)(c) introduces a new provision which permits the Secretary of State or an immigration officer to take steps to prepare for the removal of an asylum applicant in the future; for example, by making inquiries with an embassy as to the availability of travel documentation.
It is paramount that the UK authorities take whatever steps are necessary to ensure the safety of an asylum applicant and to engender absolute trust in the asylum system. That trust and safety may be compromised by the UK authorities taking certain steps to prepare for removal or by forcing the asylum applicant himself to make inquiries; for example, by applying for a travel document before the asylum claim has been finally determined.
Evidence has obviously been identified previously by a number of colleagues; for example, the Zimbabwean Government seek any information that they can about their citizens who may have claimed asylum in foreign countries. I believe that my noble friend Lord Avebury has already cited the example of the Belarusian authorities, who refuse to re-admit anyone whom they perceive as having claimed asylum abroad.
In Committee, the Government accepted the need to be discreet but suggested that not disclosing the reason for making the inquiry would be an adequate safeguard. However, they fail to appreciate that suspicious authorities—particularly those that have persecuted an individual in the past—will not need to be told why the inquiry is being made in order to jump to a conclusion about their citizen. That conclusion may not simply be a suspicion that the individual has claimed asylum; it is possible that he will be suspected of a criminal activity. The result may be that the individual or his family will be subjected to questioning, harassment or further persecution.
Having promised that he would look into the matter, this is an opportunity for the noble Lord, Lord Filkin, to see whether further progress has been made. I beg to move.
Lord Judd: My Lords, I support the noble Lord, Lord Dholakia, in asking the Minister to clarify the situation. In the context of our deliberations here, we must never lose sight of the fact that we may literally be dealing with life and death situations.
Lord Brooke of Sutton Mandeville: My Lords, I shall make a very brief speech in support of the amendment in the names of the noble Lords, Lord Dholakia and Lord Judd Common sense obviously suggests that the Home Office would not do the things against which the amendment warns. However, the circumstances of the last Parliament, to which I have alluded on previous occasions and which I shall certainly not rehearse again except to state them, create a situation where silence on the part of the Home Office worries one. One is concerned as to whether actions of which a constituent and, indeed, his Member of Parliament are totally in ignorance may be going awry. I allude to the period when Ministers asked Members of Parliament to communicate with officials rather than with themselves. We then had very long periods of silence when we heard nothing at all from officials.
I mention one particular case because it involved the noble Lord, Lord Filkin. He may conceivably just remember it. On 4th September last year—in other words, 13 months ago—I wrote to the noble Lord, Lord Rooker, the then Minister, about 19 cases which had been outstanding when I left the House of Commons on 14th May and on which I had heard nothing from the Home Office between 14th May and 4th September. I give credit to the noble Lord, Lord Rooker, for the replies that I received over a period of months thereafter. One of the 19—I have not checked whether any others are outstanding—was from the noble Lord, Lord Filkin, in August, during the Recess, in which he courteously apologised for the time that it had taken the Home Office to reply. By then, it was 11 months since I had written, which is an example of how files get lost and are not dealt with or followed up.
If a constituent is worried about just the things that are contained in the amendments, his anxieties and those of the Member of Parliament representing him are dramatically enhanced when nothing comes out of

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the Home Office. Since those circumstances can be repeated, the discipline that is inherent in the amendment is an extremely good safeguard.
Lord Bassam of Brighton: My Lords, I would not take issue with the spirit behind the amendment. In Committee, I said that the Government were unable to accept the amendment—something that I have to repeat this evening.
The noble Lord, Lord Brooke, gave a good example of how failures sometime occur in the Home Office letters system. For my sins, I was once the better letters Minister. I do not know whether or not I improved them but I certainly tried hard. But one should not necessarily read across from that.
I want to give the assurance, and have it clearly on the record, that the spirit of the Home Office—for all its, errors and ills at different times—would never seek to do anything that jeopardised the safety of an asylum seeker or, perhaps more importantly in the context of some of the cases to which some noble Lords have referred, any family member in the country of origin.
We cannot accept a complete prohibition on making any inquiries of the authorities in the country concerned where that can be done in such a way that does not place the applicant or their family at risk. In Committee, I gave the example of someone who submitted a birth certificate as evidence of identity and of alleged arrest warrants or police reports submitted by applicants from the Indian sub-continent. The noble Earl, Lord Russell, suggested that it would be sufficient to check the format of the document to establish its authenticity—a very proper point. Sometimes we do exactly that but some forgeries are of a high standard. I know from the evidence of my own eyes that passports can be forged to a very high standard. The only way that one can authenticate, or otherwise, the story told to officials and whether or not a document is genuine is to make some inquiries locally.
Clearly that has to be done with great care. Experience has shown that inquiries can be made without endangering an applicant or their family because such has been the practice in the past and it has worked well. I have to concede that many documents prove not to be genuine—a police report's serial number does not exist or turns out to relate to someone other than the applicant. In circumstances where there is nothing to link the applicant to a genuine police report or warrant, our inquiries cannot pose any risk to the applicant or their family.
Even in cases where we have found a warrant to be genuine, we are not aware of instances where harm has resulted from our inquiries. If it had, it is by the nature of things inconceivable that we would not have been made aware. It is precisely because forged documents are so realistic that we need to preserve the right to check information, to preserve the integrity of the asylum system.
I know that this is a serious subject. I should like, therefore, to give noble Lords a few further examples. Let us take the case where an asylum applicant claims
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to have been detained and ill-treated, and to have received medical treatment from a particular hospital. We make inquiries of the authorities and establish that, at the time that the applicant says he was being treated, the hospital was either closed or, perhaps, had not even been built.
Alternatively, we could take the case of an asylum applicant who has deserted from the armed forces and claims that the law in his country allows deserters to be sentenced to a lengthy spell of imprisonment. Deserters are not normally entitled to the protection of the refugee convention, but they may be if any penalty is disproportionately severe. The only way to establish the truth of what has been claimed is to make inquiries of the authorities in the country in question.
As I say, we recognise the need to exercise extreme caution when making inquiries of a delicate nature like those that I have described. If we do not believe that it can be done in a way that does not put the applicant, or his family, at risk, we will not do it. But we cannot accept that we should never make inquiries of the authorities in the country concerned.
Provided that the applicant or appellant concerned is not removed, which is the effect of the clauses as presently drafted, there is no good reason why preparatory measures should not be taken; indeed, if that reduces delays at a later stage, it seems to us to be entirely reasonable to do so. The wording of the clauses is clear; namely, that removal under the immigration Acts is not permitted while an asylum application, or appeal, is pending. In our view, that is, and should be, a sufficient safeguard.
We accept that we have an absolute duty not to endanger the applicant or his relatives. I have already said that we would never knowingly do so. But the prohibition on any contact with the authorities of the country concerned is an unacceptable impediment to establishing the truth. The prohibition on asking an applicant to complete a travel document application is an unnecessary delay to removal if the application is subsequently refused. For those reasons, which I have spelt out as plainly as I can, I invite the noble Lord to withdraw the amendment.
9.45 p.m.
Lord Dholakia: My Lords, I thank the Minister. I believe that he used the same argument when he spoke on the matter in Committee. One of the difficulties that we always have in such a situation is the extent to which the Home Office requires documentation. In many cases, such documentation is not available and people will go to all sorts of lengths to try to produce something that may not necessarily be relevant to its authenticity. I do not dispute that, but it is the extent to which people are put under pressure because of these requirements.
I had expected the noble Lord, Lord Bassam, to give some assurance that people would at least be informed before inquiries are made, so that they can contest that particular decision. Alternatively, as a fall-back position, individuals should be notified that full inquiries have been made so that they are aware of the

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danger that they may face. This is not actually about authenticating documentation; it is about taking preparatory action for removal before the case has been decided.
I have a suggestion that I should like the Minister to take into account. Rather than being so negative about the whole issue, perhaps he would consider the fact that there are other agencies available in countries abroad that can be sympathetic to an individual's case. They can actually authenticate documentation, or at least assist in the identification process of the documentation about which inquiries are being made. Therefore, instead of consulting some of the governments who can be very hostile, some of these agencies could assist the Home Office while not putting the individuals concerned in any particular danger.
It does not seem to me that we shall make any further progress at this late hour. In the circumstances, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 70 [No removal while appeal pending]:
[Amendment No. 56 had been withdrawn from the Marshalled List.]
[Amendment No. 56A not moved.]
Lord Bassam of Brighton Lord Bassam of Brighton moved Amendment No. 56B:
After Clause 70, insert the following new clause—
"DEPORTATION ORDER: APPEAL

(1) A deportation order made in respect of a person shall not have effect while an appeal under section 73(1) against the decision to make the order—

(a) could be brought (ignoring any possibility of an appeal out of time with permission), or

(b) is pending.

(2) In this section "pending" has the meaning given by section 95."

The noble Lord said: My Lords, this clause follows previous legislation in providing that where an appeal may be lodged in the United Kingdom against the making of a deportation order, as set out in Clause 70(3), the appellant cannot be deported while that appeal is pending. Unlike removal directions, a deportation order specifically requires a person to leave the United Kingdom immediately.
This amendment suspends that requirement during the period of time when an appeal can be brought against it, or while an appeal is pending. An appeal remains pending from the time when it is instituted until it is finally determined, withdrawn or abandoned. That is set out in Clause 95. That clause also prevents deportation during the statutory time limit for lodging an appeal for leave to appeal against the making of the deportation order. I beg to move.
On Question, amendment agreed to.
Clause 71 [Removal of asylum-seeker to third country]:
Lord Goodhart Lord Goodhart moved Amendment No. 57:
Page 41, line 34, leave out "two or more" and insert "all"
The noble Lord said: My Lords, Clause 71 substitutes a new Section 11 into the Immigration Act 1999 and describes standing arrangements as,
"arrangements in force between two or more member States"—
that is member states of the European Union. Section 11 of the 1999 Act in its existing form appears to be limited to agreements that are entered into under the third pillar and cover the whole of the European Union, such as the Dublin convention. The proposed new Section 11 plainly includes bilateral agreements. At present no bilateral agreements are currently in force between the United Kingdom and the other member states. There is only the Dublin convention.
The important difference is that the proposed new Section 11 will allow the Secretary of State to enter into a bilateral agreement with other states concerning the responsibility for determining asylum claims. In some circumstances that would allow the Secretary of State to remove a person to that state without an appeal. The European Union level agreements have scrutiny from the institutions of the European Union, in particular the European Parliament, although as third pillar agreements they do not formally involve co-decision, but bilateral agreements will not necessarily have any similar degree of scrutiny. We believe that that is a significant distinction between them.
Scrutiny is essential to ensure full compliance with international standards and to ensure that both Parliament and the public are aware of the nature of the proposed agreements and have an opportunity to comment on them properly. In this House we have a well established procedure for scrutinising third pillar documents or draft third pillar documents before they are finally adopted by the Council of Ministers, but we have no similar procedure for the scrutiny of bilateral agreements. That is a well known subject of complaint and one of the issues that is being raised in the course of discussing the future of your Lordships' House.
The new Section 11 will provide much less scrutiny for bilateral agreements than is presently provided, or would be provided in the future for EU-wide agreements. There is a real risk that bilateral agreements may seek to side-step any safeguards introduced by the Dublin convention or that have arisen as a result of case law. The United Kingdom courts have acknowledged that there is a wide variation in degrees of protection offered by other member states.
The report of the Joint Committee on Human Rights has said in response to the removal of persons under the manifestly unfounded certificate provisions that:
"In our view, it should not be possible to remove a person before he or she has had the opportunity to challenge, before an independent and impartial tribunal, the Secretary of State's certificate asserting that the person's claim to have had a Convention right violated is clearly unfounded. Removing a person in such circumstances might sometimes give rise to a violation of ECHR Article 13… We draw this matter to the attention of each House".
When the matter was being discussed in the committee, the noble Lord, Lord Filkin, said:

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"A person may be deprived of a direct appeal to an adjudicator on human rights' grounds before removal by a one-stop certificate (clause 84) or a clearly-unfounded certificate (clauses 82 and 101) or by a third-country certificate (clause 81). They may apply for judicial review of the certificate.
The current policy in relation to judicial review applications is subject of a concordat with the High Court. Any person who is detained or has directions set for an imminent removal and who indicates a wish to apply for judicial review is given three working days to lodge an application with the High Court… We—and the High Court—consider that this provides adequate opportunity to seek the court's assistance".
Our main objection is to the possible existence of bilateral agreements at all. We should be somewhat comforted if the noble Lord, Lord Filkin, would be prepared to indicate that that statement of principle, which he expressed in Committee, will also apply in the case of a proposed removal under a bilateral agreement, consequent upon the new Section 11.
The concordat will assist only where a person has indicated a wish to apply for judicial review. Only then can the three working days period be called upon. Under the current procedures there is the risk of an applicant not learning of the judicial review option before it is too late, or not managing to instruct a representative who can take the necessary steps.
The concordat is very much, therefore, an unsatisfactory alternative. All I can say is that it is better than nothing. If the noble Lord, Lord Filkin, can give us some undertaking that that will apply to bilateral agreements, that would at least be of some help.
Lord Bassam of Brighton: My Lords, the amendment would make any arrangement made with another EU member state for the return of asylum seekers subject to the approval of each House of Parliament. I am not sure that that is necessarily the most efficient and effective way to achieve an objective.
We do not agree that standing arrangements that we might make with any member state or states should require the approval of both Houses of Parliament. That seems to be a rather cumbersome approach.
The standing arrangements referred to in the new section apply specifically when the member state, with which an arrangement has been made, has accepted that it is the responsible state in relation to the claimant's claim for asylum. No arrangement under the clause can be entered into unless that condition has been fulfilled. I do not think that it is necessary to seek the approval of Parliament, therefore, for arrangements to carry out such removals to safe third countries.
Given the level of protection of fundamental rights and freedoms by the member states of the European Union, member states can be regarded in our view as constituting safe countries for all legal and practical purposes in relation to asylum matters. Any such standing arrangements should therefore benefit from the automatic safe third country provisions envisaged in new Section 11 of the 1999 Act. I understand why the noble Lord is concerned about that, but we think
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that the arrangements that we have in place and the concordat provide adequate protection. I hope that the noble Lord will feel able to withdraw the amendment.
10 p.m.
Lord Goodhart: My Lords, I must say that I am somewhat disappointed by that response. It is not enough to say that those are all safe countries, because, as is well known, the House of Lords has held that, in certain circumstances, Germany and France are not necessarily safe third countries for return. That is likely to become a much more serious problem if, as now seems highly probable, 10 further candidate states are admitted to the European Union at the end of this year or shortly thereafter. Any bilateral agreement should receive the same sort of scrutiny as would a third pillar agreement that covers the whole of the European Union.
On the concordat, we are grateful at least for small mercies. At this time of night, I shall not seek to divide the House, so I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 58 not moved.]
Clause 109 [Fee for work permit, &c.]:
Baroness Anelay of St Johns Baroness Anelay of St Johns moved Amendment No. 59:
Page 57, line 32, at end insert ", but no fee shall be payable by non-profit organisations"
The noble Baroness said: The amendment would ensure that non-profit-making organisations would not be subject to charges for the consideration of applications for immigration employment documents. I raised the issue in Committee, when the Minister was asked about the consultation that was under way, and he told me that it would progress during the summer. Indeed, this week, on 7th October, I received a letter from the Minister in another place, Ms Hughes, to say that the analysis of the consultation had been in the Library since 27th September. So it has made it into the public domain. I am grateful to the Government for sending me a copy of the document although it reached me only last night while we were in the Chamber, so I cannot say that I have completely digested the results.
What is the Government's response to the analysis? One page of the document describes the overview, but following the analysis of the consultation, can the Government assure the House that no fees will levied on not-for-profit organisations? I beg to move.
Lord Bassam of Brighton: My Lords, the noble Baroness raised the issue of the outcome of the consultation. The Home Secretary fully and carefully considered the analysis of the findings and decided that there was no evidence to support a wide-ranging exemption for not-for-profit organisations from the planned charge for the consideration of work permit applications.
Because of their provisions, we propose to exempt prospective employers of nationals of countries that have signed and ratified the Council of Europe charter

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or the European Social Charter in its revised state. That does not include nationals of member states of the EU, who are not subject to the work permit regime. Currently, those signatory countries make up approximately 5.5 per cent of all work permit applications received. A list of those countries is available. We do not propose to exempt any other applications at this stage. Although we are not planning to exempt non-profit making organisations at this point, the clause allows us the flexibility to introduce exemptions in the future, if they are required or desirable. A view has been fixed now, but it may not persist for ever.
The clause allows for exemptions to be included in regulations enacted by statutory instrument. By allowing amendments to secondary legislation, rather than in primary legislation, we will be better placed to deal with changes in the labour market. It gives us greater flexibility to respond to circumstances that may make certain exemptions from fees desirable from time to time.
I am sure that the noble Baroness will not be entirely happy with what she has heard this evening across the Dispatch Box. However, that is the conclusion that we have reached. We have the flexibility to issue exemptions in future, so I suggest that the noble Baroness might like to withdraw the amendment.
Baroness Anelay of St Johns: My Lords, I must, of course, say that I thank the Minister for his response, although I cannot say that I am too surprised. Even a cursory glance at some of the responses here would reveal why the Home Secretary might have reached that decision at this time.
I take a tiny crumb of comfort from the fact that the Minister recognises that times may change. I accept that the Bill provides the opportunity to make exemptions in the future. I hope, however, that the situation will be monitored. After the Bill has gone through both Houses, I shall contact the organisations that expressed concern to see whether there have been any adverse consequences of the lack of a wide-ranging exemption. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 11l [Authority to carry]:
Lord Avebury Lord Avebury moved Amendment No. 60:
Leave out Clause 111.
The noble Lord said: My Lords, we are worried about the clause. There is a mismatch between what the Government say they aim to do and what one sees in the clause. The clause deals with groups of people who have never been to the United Kingdom before. For example, it would cover people with a Czech passport or Tamils from Sri Lanka. Although the scheme is, no doubt, subject to affirmative resolution, the powers in the clause are unfettered. The UNHCR said that it was concerned that the ATC law,
"may effectively obstruct admission to the asylum determination system. The practical impact of this scheme may be such as to undermine the spirit of the refugee convention".
The clause allows the Secretary of State to penalise airlines and other carriers who do not obtain the authority to carry a person where an authority to carry scheme has been imposed. The clause is broadly drafted and suggests that the Secretary of State might introduce different schemes for different classes of passenger and different classes of carrier. The clause allows the Secretary of State to make whatever regulations he requires to operate the schemes.
The Government suggested that they were introducing the authority to carry scheme because it was worth exploring the use of such powers. In other words, they were not prepared to tell us how the regulations would be drafted. Indeed, the Minister said on a previous occasion that we were a long way from a scheme that could be presented to the House for affirmative resolution. We find that wholly objectionable. It gives the Secretary of State the power to impose schemes similar to visa regimes without any of the safeguards that apply to those schemes, such as the duty to give reasons in accordance with the immigration rules and rights of appeal against refusal. We are also concerned that, despite the Minister's assurances, the basis of the scheme can be so wide that the type of information that will be available will not be statutorily based.
At one point, the Minister envisaged that carriers would be given a simple "Yes" or "No" for each passenger by e-mail or some such means, after the Immigration Service had checked the name against a warnings index that included known immigration offenders, individuals named in travel bans and details of passports that had been listed as stolen or lost.
During our debate on 17th July, the Minister said that ATC schemes,
"would not normally identify a person who had not previously been in the UK".—[Official Report, 17/7/02; col. 1353.]
The word "normally" worries me. The Minister did not inform your Lordships, and I do not believe that he could have done so, that they would have needed such wide powers in the clause if they were not sometimes to identify persons in that class.
We are also concerned that the refusal of an authority to carry without any explanation could put someone at risk if it is suspected that he is refused because of reasons of national security. It puts the passenger in the invidious position of not knowing why he has been refused and the carrier, which may be linked to or owned by national authorities, will know that a particular passenger has been refused permission to board the plane. That information in the wrong hands could put a person at risk with his state authorities. The Government have not explained why they need such broad powers, nor have they acknowledged the potential risks I have identified which are created by the scheme.
The Government have suggested that the potential benefits for individuals are that they will know if they will be refused entry to the United Kingdom before they travel. But the potential risk to the individual is that he might be prevented from boarding a plane or other form of transport in the country of origin and

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neither the passenger nor the carrier would be provided with a reason why he was not allowed to board the aircraft or other means of transport.
The carrier could make a number of assumptions about why the person was being refused permission to travel, including that the passenger was undesirable or that he could represent a security threat. Furthermore, carriers might be owned by the national authorities. In Zimbabwe, for example, if a member of the opposition party tried to leave his country in order to seek safety, and he was refused authority to carry because the UK Government had in place an authority to carry scheme on Zimbabwe airlines which is owned by the Zimbabwe Government, that information could be passed to the state authority concerned and he would immediately be stopped, questioned and accused of trying to leave the country in order to tarnish Zimbabwe's reputation. We heard in an earlier debate that the Zimbabwe authorities seek information about people attempting to leave the country and settle in the United Kingdom or elsewhere.
Therefore, the potential for mistakes being made is high, with the possibilities for redress remote. If a carrier were to put a person's name on a computer, it then generates a decision of authority to carry, but there will be no information as to why that authority to carry has been denied. The person may share the same name as some other person on the warnings index. The person may have been mistakenly identified as a security risk, but he will simply be denied permission to travel and will miss his flight. While the Government have suggested that an appeal system might be available, the passenger will have missed his flight and potentially the reason for the travel negated; for instance, he might have been attending a family funeral or wedding.
The carrier will not be able to override the system, take into account the circumstances, or indeed give the passenger any further information about the decision. The carrier will simply be the messenger of an immigration decision made elsewhere. We consider that it is wholly inappropriate for carriers to deliver immigration decisions in this way and unacceptable that the passenger will have no immediate redress or possibility of travelling to discuss his circumstances with the person authorised to overturn the negative decision. I beg to move
10.15 p.m.
Lord Filkin: My Lords, I fear that it will be difficult to add much more to what I have been able to say in the several meetings and letters in which we engaged during the summer. That is not out of lack of will but, as the noble Lord, Lord Avebury, rightly says, because the schemes are at an early stage of development. We can put certain principles on the record in Hansard, but there is not a scheme which is ready to come before the House immediately.
Nevertheless, the powers in the clause are utterly right and proper for two reasons. First, if memory serves me right, we get about 90,000 entries into
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Britain every year, and undoubtedly—without reminding the House of what is stated in the airport White Paper—that figure is likely to increase enormously over the next 10 or 15 years. The current system whereby one walks up to a wooden box and throws a piece of paper to someone in a large queue is clearly incapable of providing effective clearance or pre-clearance for the long term. It neither provides security, robustness nor speed. So it would be mad if the Government were not exploring technological means of improving the current system, which is clearly the best we have got but is somewhat antiquated.
The second reason I believe that there is an urgency so to do is to see whether it can help to reduce threats to security or to immigration penetration for no good reasons. The authority to carry would allow for the details of passengers to be passed to the Home Office to be checked against data held by IND to see whether they posed any known security or immigration threat. This would not involve any decision as to whether they met the requirements of the Immigration Rules or the transfer of any data to the employees of carriers. Nor would those employees be called upon to make any decision, but simply to act upon the grant or refusal of authority to carry.
If we come to make regulations, as I have indicated, they would be subject to the affirmative procedure and parliamentary scrutiny, and they would be transparent. They would provide sufficient remedy also for any passenger refused under the scheme to either challenge that decision or the data on which the decision was based. For example, we have reflected on the idea of a 24-hour telephone hotline which anyone who had been refused could contact to inquire whether, for example, it was not him but someone else, and to at least engage in a dialogue.
If the numbers rise as I have indicated, we would be negligent if we did not seek to investigate these issues at this point in time for those two reasons. However, I can assure the noble Lord, Lord Avebury, and your Lordships that if we devise a scheme it will be brought before the House for debate on an affirmative resolution, or a wider debate if the House feels that is necessary.
Lord Avebury: My Lords, I did not expect very much from the Minister and I did not get a great deal. He did not say how these decisions can be challenged by the hypothetical person I mentioned who has a time-limited reason for his travel which would not be maintained while the appeal procedures to which the Minister referred were being processed. If the person was attending, for example, a funeral or a wedding, it would not be deferred pending the exercise of his rights to appeal, and the whole purpose of the visit will have been destroyed.
The Minister did not say anything at all about how the scheme is seen by the carriers themselves. It is something we have not discussed—I should have mentioned it earlier—but I cannot imagine that the

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carriers will welcome having to go through these procedures for an unknown number of passengers and keeping tabs on the classes mentioned in the clause.
Lord Filkin: My Lords, I should have referred to that point. The reason we have not consulted with carriers at present is that we have no scheme on which to consult them. It would therefore be premature to do so.
However, I can envisage one circumstance where they might welcome it. Clearly if they could identify people who, if they were to transport them, would be denied entry because they had no legal right of entry into Britain—for example, they may have been here previously and denied entry status—they would thereby avoid the carrier's liability penalty. So there could be benefits to the carriers, as well as potential benefits to the person because he would not have an aborted trip. But I speculate at this stage because there is not an immediate scheme on which to consult.
Lord Avebury: My Lords, the Minister has put his finger on another anxiety—that is that, at the moment, there is a carrier's liability penalty on people who bring passengers into the United Kingdom from visa countries when they have not obtained proper documentation. We are talking about people who are not covered by those restrictions but who will be subject to new schemes which have yet to be thought of.
The Minister has not got even as far as consulting the carriers and yet he expects us to give him a blank cheque. That is not the way in which legislation should be conducted. I am very sorry that we have come to this important clause at such a late hour, otherwise I would have tested the opinion of the House. In the circumstances, I can say only that I am not satisfied with the Minister's reply and that I will come back to the matter on another occasion. In the mean time, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 61 not moved.]
Schedule 8 [Carriers' Liability]:
Lord Freeman Lord Freeman moved Amendment No. 62:
Page 101, line 22, at end insert—
"(3B) Where the transporter is a vehicle, it is also a defence for the carrier to show that—

(a) on the occasion in question prescribed measures were taken to identify if a clandestine entrant was concealed in the vehicle and the measures did not identify that a person was so concealed,

(b) the measures were taken by an approved person in a secure area of the port of embarkation, and

(c) after the measures were taken the vehicle remained in the secure area until it boarded a ship, aircraft or train to the United Kingdom.""

The noble Lord said: My Lords, this amendment stands also in the name of my noble friend Lord Attlee.
The text of the amendment is identical to that of Amendment No. 228, which was debated and withdrawn in Committee. We now have an opportunity to return to these issues. The amendment
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provides a defence against penalties for a carrier if proper checks have been made by an approved person in a secure area—for example, a port ferry terminal—and if as a result of the checks being made no concealed persons have been found.
I declare an interest as the immediate past honorary president of the British International Freight Association. The association remains concerned about the provision in the Bill as it stands and wishes its concerns to be drawn to the attention of this House.
Since 17th July, when we last debated this issue, as the Minister very properly and very kindly promised, there has been a meeting on the matter at the Home Office. I apologise that I was engaged with my bucket and spade at the time. The meeting was arranged so quickly that I had departed on holiday. The trade associations are grateful to the Minister for honouring that promise.
On 4th October, the director-general of the British International Freight Association received a letter from the Home Office referring to proposed changes to the draft code of practice for determining the level of penalty. Those further changes are welcome.
We have also had clear progress during the Summer Recess as regards the Tunnel and security for the assembly of freight trains to pass through it. In my judgment, however, the improvements in security at Frethun will only transfer the problems to ports in France, and indeed in other countries, where the pressure for those seeking entry into this country will only increase.
The Minister will not be surprised to learn that there is a belief on the part of freight operators that they are being asked to bear an unfair proportion of responsibility in terms of making themselves liable to penalty for undetected concealed persons coming into this country in freight vehicles.
The code of practice contains guidance on determining the penalties that should be levied on the drivers and the owners of vehicles. However, the House will be aware that under the terms of the Bill as drafted the Secretary of State has only to have regard to the code. The code provides guidance, but no secure defences are provided on the face of the Bill.
The amendment seeks to reassure the freight industry, which, unless further ameliorations are provided, is in danger of withdrawing some of the services because of the penalties it may face, in some cases unjustly. The amendment provides that if in a secure part of the port of embarkation a search has been conducted by an approved person—for the purposes of this illustration that means the operator, the driver—under supervision, a prescribed search method has been used, nothing is found and the vehicle stays in a secure area of the port until boarding, that is a secure defence against penalty.
On 17th July, the Minister made clear the Government's belief that no search mechanism—no technology—is foolproof. Although I understand that argument, it could, and should, be equally available to the driver of the freight vehicle and its owner. If the

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available technology, which is improving constantly, is used with care and deliberate intention, that should be a fair defence against an unfair penalty.
The noble Earl, Lord Russell, who is not in his place, put his finger on the issue very well. His point is reported at col. 1361 of the report on our Committee debate of 17th July. He referred not only to the general point that I have been making but more specifically to the fact that when a freight vehicle boards a ferry, the driver's liability continues despite the fact that he is not normally allowed to remain in the vehicle. Normally he must leave the lorry unattended on a freight deck while he seeks refreshment. On Monday, I crossed the Channel from Calais on a vessel carrying many freight vehicles. I witnessed the fact that there was no proper security on any of the freight decks, which is perhaps not unreasonable given that the doors are not locked for security reasons. The drivers quite naturally left their vehicles in order to refresh themselves and have a meal. The noble Earl, Lord Russell said:
"My second cause for concern is that it is always unjust to punish people for things that are not under their control."—[Official Report, 17/7/02; col. 1361.]
There are certain circumstances in which someone seeking entry to this country could conceal himself in a freight wagon or container on board ship, let alone in the secure area of a port.
Some gesture is needed to reassure the industry. One way of doing that is to accept this amendment, which provides a secure defence, with reasonable cause. I beg to move.
Lord Waddington: My Lords, I do not know what my noble friend has done to deserve his youthful looks. However, he is not so young as to be unable to remember that not so many years ago this country's system of immigration control was generally recognised as being firm and fair. He must be as unhappy as I am at the chaos into which our system of immigration control has descended in recent years. We are led to believe that the Home Secretary is greatly concerned, and rightly so, about the very large number of illegal immigrants flowing into this country. Many have commented that it is strange that the Bill has so little to do with that problem. Nobody can seriously suggest that carriers' liability has nothing to do with the problem. Whatever criticism may be levelled against the Home Secretary in other directions, one can point to that part of the Bill and say that nobody could seriously deny that carriers' liability has made a very real contribution to the combating of illegal immigration over the years. That is why I am anxious not to support any amendment that would weaken carriers' liability, after the contribution that it has made.
Over the years the most ridiculous arguments have been advanced against carriers' liability. I have been in on the debate from the beginning. I remember British Airways arguing back in 1987 that it was wrong in principle to require its staff to examine passports to see whether they contained visas. The company's staff were so incompetent that they could not be expected to recognise a visa when they saw one.
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I have refreshed my recollection of a debate in this place on 22nd October 1991, when the then chairman of British Airways said at col. 1640 that airline staff were being asked to make judgments about the intentions of passengers and whether they were likely to destroy documents and seek asylum, which was absolute nonsense. Some of the arguments advanced by the Freight Transport Association are equally nonsensical. It says that the transport industry is the victim of organised crime and that the current system of fining drivers is unjust, unfair and ineffective. The point is that provided that reasonable care is taken, there is little reason for drivers to be victims of anyone. Of course they did not create the problem of illegal immigrants, but that does not absolve them from all responsibility and a duty to see that they are not used by the evil criminals operating this cruel traffic in people.
There is not the slightest chance of there ever being a system in which every vehicle is officially examined immediately before it is taken on to a ship. Whatever steps are taken by an approved person in a secure area of the port of embarkation, it is not too much to expect the driver to check his vehicle immediately before taking it on to the ship. Surely if a driver acts sensibly and diligently he is not at risk. If he goes through the motions—if he opens and shuts a door, but does not search—he is at risk and I think that he should be. I cannot support the amendment.
10.30 p.m.
Earl Russell: My Lords, does the noble Lord understand that an illegal immigrant may nevertheless be a legal asylum seeker?
Lord Waddington: My Lords, as the noble Earl knows, that is not the point I am dealing with. I am saying that if there is a system of carriers' liability, it cannot reasonably be argued that the burden put on carriers is unreasonable. If a man is driving a lorry and he is charged with the duty of looking in his lorry before he takes it on a ship, most people would say that that is not a cruel burden to impose on him. That is my simple point.
Earl Attlee: My Lords, can my noble friend explain how the lorry driver is supposed to look into his vehicle when it is travelling under Customs seal?
Lord Waddington: My Lords, I am not asking the driver to do that. The argument in the amendment, as I understand it, is that the last check made on the vehicle must be made by some authorised person before the lorry is taken on to the ship. That is thoroughly unrealistic. If it is said that some authorised person can check before the lorry is taken on to the ship, surely the lorry driver can do so. It is as simple as that.
I cannot support the arguments advanced. They are thoroughly unrealistic. They are the sort of arguments that were advanced against the principles of carriers' liability way back in 1987. I am perfectly prepared to argue the toss with people about whether carriers' liability is right or wrong, but that is not the issue

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tonight. The issue is whether it is unrealistic to expect lorry drivers to look in their lorries before they drive them on to ships.
Lord Berkeley: My Lords, I declare an interest as chairman of the Rail Freight Group, which is not directly interested in the amendment. However, I am interested in cross-Channel transport. There has been a year of a severe problems with rail freight-thankfully now resolved, we hope.
I, too, had a useful meeting in the summer with my honourable friend the Minister responsible for immigration, together with people working with the noble Lord, Lord Freeman. We had a useful exchange of views.
One result of all these discussions, I think, is that the Government now clearly accept that, if they want to keep people out, it is the duty of government to control frontiers. It is also clear that the industry must help. However, I think it wrong to put responsibilities and duties on the industry that it cannot discharge. I do not know when the noble Lord, Lord Waddington, last saw the conditions that truckers face in Calais, but the fact is that they are threatened there. They even find it difficult to fill up with fuel anywhere near Calais. While they fill up their lorries with fuel—which they have to do themselves—or feed and wash themselves, it is possible for people to climb in on the other side of the lorry. Moreover, as the noble Lord, Lord Freeman, said, and as we discussed in Committee, if people are able to get on a ferry, they can move from one lorry to another.
It seems that the purpose of this amendment is to set a boundary to the carriers' liability. I believe that the arrangements must be fair. Drivers should be punished if they have not properly done the checks, but they should not be fined up to £4,000 per person if they have done the checks and people still get through.
It would be quite easy for the Government to prescribe particular search methods for vehicles, and those methods will undoubtedly improve over time. The Government could also prescribe where checks are made, such as in ports. Responsibility should not rest solely with drivers. Drivers need, for example, a secure environment in which to make checks, and the responsibility to provide that environment should rest with parties such as the ports and the Channel Tunnel.
I am not arguing against the principle of carrier liability. However, if drivers follow the rules meant to tighten up security and search methods, they should not be penalised if people still get in. There are circumstances beyond their control.
What incentive do carriers have to hand over the immigrants once they are in this country? I believe that, in an off-moment, one organisation suggested that, once they were in the UK, the best thing for drivers to do would be to park in the nearest lay-by and have a smoke. If people got off the back of the lorry, the driver would not know about it. Of course that is illegal, but there is a tremendous incentive. A similar situation could have emerged in relation to the rail freight industry. If 10 people are found in the back of
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a lorry, there could be a £40,000 fine. A driver could go bust with such a fine. It would be unfair for that to happen simply because it was not possible to find a structured way of enabling responsible drivers—and most of them are responsible—to comply without fear.
In the past year, because of the blockade on rail freight, the European Commission has started proceedings against the French Government for preventing the free movement of passengers and freight through the Channel Tunnel. There may come a time when, if we make it so difficult for truckers to come through legally and without too much fear, the Commission will consider taking action against the British Government. Such arrangements could be considered a constraint on the free movement of goods. There is a Sword of Damocles hanging over drivers' heads. Even if a driver took all reasonable precaution, he could never be certain that he would not face a fine of £40,000 or so. That could force him into liquidation.
I hope that my noble friend the Minister can give some comfort to the industry by telling us that the Government will consider a more structured approach. Those who comply with the latest rules, which can occasionally be updated, should have the comfort of knowing that they will not have an enormous fine hanging over their heads.
Earl Attlee: My Lords, I support my noble friend Lord Freeman. The amendment we are discussing stands also in my name. I declare an interest as president of the Heavy Transport Association.
I have no enemies in your Lordships' House, only friends. However, I thought that my only opponents would be seated on the Government Front Bench, but I was wrong about that! My noble friend Lord Waddington is right in many ways, but my amendment is designed to reinforce the regime of civil penalties to ensure that no clandestines can get on the ferry in the first place. I do not agree that it is impractical to check every vehicle. Some vehicles will require detailed checks but others will require a cursory check of the type described by my noble friend.
In Committee I felt that the Minister could not advance one good argument against my amendment. I doubt whether he can tonight; my noble friend Lord Waddington has tried hard. However, there is a danger of draconian penalties being imposed without criminal prosecutions. Decent, law-abiding operators will leave continental work alone or will have to charge much more. Only cowboys and those who are much worse will be left. There will be a large increase in the cost of freight and that will reduce European competition. It will also exacerbate the current shortage of HGV drivers prepared to be away from home for long periods of time.
My noble friend Lord Freeman touched on the nature of the tests in the amendment. In Committee the Minister said:
"Thus no single type of detection technology can produce conclusive results in all circumstances".—[Official Report, 17/7/02; col. 1369.]

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Of course, the Minister is quite right but the tests could comprise one or more of CO2 tests, heartbeat detector tests, tests using x-ray equipment, the use of dogs, and physical examination of the vehicle as mentioned by my noble friend Lord Waddington. But of course the only technology available to the driver is the mark one eyeball for examining the vehicle. If the vehicle is travelling under Customs seal, the driver cannot look in the load compartment; all he can do is check that the seal has not been tampered with. Unfortunately, the people we are discussing are extremely skilled at tampering with seals.
Lord Berkeley: My Lords, will the noble Earl explain how a driver inspects the roof of his lorry?
Earl Attlee: My Lords, with great difficulty. It is not a practical proposition. The only thing a driver could possibly do is park his lorry underneath a flyover, climb on to the flyover, examine the roof of the lorry and then get down. The only snag is that he would leave the lorry unattended while he did so. As I say, there is no practical way to examine the roof of a lorry, especially immediately before embarkation on to a ferry. My noble friend Lord Waddington referred to a quick check before embarkation on to a ferry. However, it is impractical to do a quick check of the roof of a lorry while marshals are telling the driver to board the ferry immediately.
In Committee the Minister said:
"It is essential therefore that hauliers continue to ensure that their vehicles are adequately secured physically throughout their journey".—[Official Report, 17/7/02; col. 1369.]
However, that is impractical. How is a driver able to do that and have a decent meal or perform his ablutions, as mentioned by the noble Lord, Lord Berkeley? The noble Lord, Lord Berkeley, also referred to threats of violence. Drivers are frequently threatened with violence, usually in the form of robbery. They can also be forced to carry clandestine entrants. This amendment would make that impractical as the clandestine entrants would be detected before the vehicle went on the ferry.
We need to think about the later stages. I urge the Minister to accept the amendment now. If it is not accepted tonight, at a later stage we shall have to return with other amendments to determine how we can solve the problem.
Earl Russell: My Lords, with respect to the noble Lord, Lord Waddington, my intervention about a person being an illegal immigrant but a legal asylum seeker is entirely relevant to the argument he was developing. He was putting up an argument for keeping out all illegal immigrants. He will, I believe, confirm that that is what he was arguing. In the process, he would keep out a number of people who are attempting to exercise a right, which they enjoy under international law, to seek asylum. Because of the carriers' liability imposed on the main routes of transport—British airlines, railways and so on—people are left in a position in which they can exercise
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a legal right, on which their lives may depend, only by the illegal means that the noble Earl, Lord Attlee, and the noble Lord, Lord Berkeley, have described. Those people are being put under a very heavy pressure indeed to do what they are doing.
Many people have concealed themselves on the outside of aircraft, which they occasionally fall off as the aircraft passes over Richmond. That is not a pretty business for any of those concerned.
We have heard throughout our debate on this matter that the major difficulty is the poor quality of initial decision-making. The carrier is being put in a stage before the initial decision-making. In effect, he is being made the initial decision-maker himself. He is put in a situation in which he is under an overwhelming financial pressure to decide the issue against the person concerned absolutely regardless of the evidence. I hardly regard that as justice or as efficiency.
On the practicalities of the matter, I am entirely in agreement with the noble Earl, Lord Attlee, and the noble Lord, Lord Berkeley, in relation to the difficulty of keeping a constant watch. If people can climb on to the undercarriages of aircraft and fly at supersonic speeds at 30,000 feet for a good many hundred miles before they fall off, they must be capable of the much easier task of stowing away inside a lorry or on its roof—that was suggested by the noble Lord, Lord Berkeley—or on the undercarriage of a train. It really is not possible for the carrier to meet all of those dangers at once.
As for the system being a shambles, as the noble Lord, Lord Waddington, said; yes, it is. It is a shambles because, since 1996 at least, it has been attempting to do the impossible. It has been attempting to deter people from entering this country by the unpleasant treatment of those who arrive here. There simply is not a network for the distribution of news to make that effective, if it were possible for it to be so. Moreover, it rests on an a priori assumption—I stress that it is only an a priori assumption—that those concerned are economic migrants, who are capable of making economic choices, rather than genuine refugees, who do what they do in order to preserve their lives. A study of countries of origin suggests that they come from places with poor human rights records rather than those with specific problems of poverty.
The Bill will fail, just as all previous legislation has failed. We will continue with what I have described as a legislative stammer—
10.45 p.m.
Lord Judd: My Lords, I am grateful to the noble Earl for giving way—he was being powerful and eloquent as usual, and very persuasive, and I hate to interrupt. However, he is in danger of making the mistake that is made over and over again by suggesting that on the one hand we have economic migrants, who are acting rationally and making decisions on economic criteria, and that, on the other hand, we have

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people who are fleeing for their lives. The truth is that many of those economic migrants feel themselves to be fleeing for their lives.
Earl Russell: My Lords, that is a fair point, which I take on board. Flight may—I concede this to the noble Lord, Lord Judd—be as urgent in some of the economic cases as it is in some of the other cases. That is why we on these Benches are firmly committed to raising overseas aid to the target of 0.7 per cent of GDP, which—God knows—is not a particularly generous target. I thank the noble Lord for his intervention and I take his point.
The point that the Bill will fail, as all previous Bills have failed, is certain. We shall have another in about three years' time and probably one more after that. And, after that, just possibly the Home Office might think of a different approach. These legislative stammers do come to an end sometimes, thank God.
Baroness Anelay of St Johns: My Lords, tonight I have had the interesting experience of enjoying the stereophonic sound of the debate from behind me—something that, on this Bill, the Minister has experienced rather more often than I have.
Of course, maintaining a balance between the fight against illegal immigration and ensuring that one is fair to the diligent and honest haulier is a serious matter. After all, the haulier makes a substantial contribution to the economy of this country.
I have one or two questions for the Minister. One arises from a point made by my noble friend Lord Freeman, who referred to the increased security introduced by the Calais Chamber of Commerce. I saw it reported on television last month. My noble friend made the point that the difficulty there is that, by increasing security in one port, one merely drives the problem elsewhere. What representations have the Government made to the French Government over the past few months with regard to security at ports? Is it a matter that they have discussed or do they have it on the agenda?
My second question relates to another comment made by my noble friend Lord Freeman with regard to the guidelines on the mitigation of offence. I should be grateful if the Minister could flesh out some details on those guidelines.
Lord Filkin: My Lords, at this time of night I am reluctant to join in what has felt at times like a good Second Reading debate. But I believe that I should place on the record how the Government view some of the questions that have been addressed to me.
We believe that entry control is an unavoidable and essential part of a sensible immigration and asylum policy. The implication of some of the speeches in this House has been that something is wrong with the entry control measures. I find that almost incomprehensible.
The question was asked: what should an asylum seeker do if he wishes to obtain asylum but cannot physically enter a country? The answer is that he should apply at the first safe country that he comes to.
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Most asylum seekers do not come from France or Ireland; they come from very much further away. Why are so many of them attracted to Britain? We could speculate about the reasons now but it would not be wise to do so. Clearly noble Lords will know the figures relating to the numbers of those who, at the end of our exhaustive legal process, are found to have refugee convention status and those who are not found to have such entry clearance. Therefore, entry controls must be part of any sane world which tries to manage this situation.
Earl Russell: My Lords, of course I agree with the Minister that there must be entry controls. But is he aware that Britain is attracting fewer immigrants per hundred thousand of population than the majority of countries in the European Union?
Lord Filkin: My Lords, on the latest figures, my recollection is that Britain attracts more asylum seekers than any other country in the European Union. I do not believe that, in making their judgment on which country to go to, asylum seekers make a decision according to the ratio of asylum seekers per head of population in the target country; they make it on the relative attractiveness of the country to which they are going.
The question that we must also ask ourselves is why so many seem to come here when there are plenty of other places to which they could go. That is undoubtedly in part because of the decency of this country in terms of its welfare and legal support and the difficulties of returning people. Therefore, there must be a system of controlling entry into this country and some reflections on the wider thrust of the policy.
The other point that I would make—this is not the time to go into it in detail—is that in most of Europe the current system is clearly in an appalling mess. Governments are struggling to identify genuine asylum seekers because they are utterly confused by people who, for understandable reasons, are economic migrants with varying degrees of personal tragedy, distress or ambition. The concern that we all have is that, if that persists, the consensus that has largely prevailed in this and some other countries to open a hand of friendship to asylum seekers will be in danger of collapse. We are concerned about the situation because it is not easy to maintain consensus that this country should be generous towards people from abroad.
The measures announced by my right honourable friend the Home Secretary contained a gleam of the direction for the future—a move more towards a system of managed migration combined with resettlement, whereby in respect of people who cannot pay traffickers, as most do, but who need refugee status and are currently completely denied it, we open our doors to quotas of resettlement through UNHCR.
My right honourable friends the Prime Minister and Home Secretary think that approach is right in principle but in the current situation—with so many

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people seeking asylum who are in practice substantially economic migrants—it is not possible to pursue it with any reality.
The noble Lord, Lord Waddington, referred to the contribution made by carriers liability and I agree. Such systems must be part of a process of proper management. The automatic defence advanced by the noble Earl, Lord Attlee, and the noble Lord, Lord Freeman, would undermine the deterrent effect that forms the basis of the regime and which has proved successful in reducing the number of clandestines.
I maintain—and the figures substantiate this—that detection technology has not reached a sufficient level of effectiveness. I will not go into detail now.
Earl Attlee: My Lords, if detection technology does not work, how is the lorry driver supposed to make sure that he is not carrying a clandestine entrant?
Lord Filkin: My Lords, by inspecting his own vehicle and trying to ensure that it is secure.
Earl Attlee: My Lords—
Lord Filkin: My Lords, perhaps the noble Earl would be gracious enough to allow me to complete my speech. Then if I have not answered questions, by all means he may take a further pop at me.
We hope that detection technology will get better. We will invest substantial amounts of money because it is in everybody's interest to improve its success rate. We would not be making that investment unless the technology had some success rate but it is not foolproof.
The amendment is about detection; the civil penalty is about prevention. We assert that drivers must not be able to turn a blind eye to security throughout their journey in the safe knowledge that any clandestines they carry will be detected in Calais. Transporting them to northern France only exacerbates the build-up there. Not all ports with traffic to the UK have the level of detection technology that has been provided to Calais.
I hoped that we had made good progress in what we felt were very positive discussions with the freight industry during the summer, particularly focused on the code of practice. We thought that was a good start. There has been a good dialogue with the industry and long may such dialogues continue.
Where liability does arise, the code of practice for determining the level of penalty has been amended—taking account of comments received during the summer—to make it explicit that where third-party detection technology has been used to identify clandestines, the level of penalty will generally be reduced. It reflects the realities.
Clearly there is a defence under duress. The new code of practice penalties to which the noble Lord, Lord Freeman, referred does not replace the current code, which provides hauliers with a defence against the imposition of penalties. Those who comply with
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the current code will not be penalised. Where the current code is not complied with, the new code will be used for determining the amount of penalty imposed. Any other relevant factors that may not be in the new code will be taken into account when determining the penalty.
As to the free movement of goods to which the noble Lord, Lord Berkeley, referred, the Court of Appeal found in the Roth case that there had been no breach of European laws in respect of the free movement of goods in operating a penalty regime.
It is late and I regret that I cannot go further. We feel that the consultations and discussions have been good. We wish to continue those dialogues with the freight transport industry and acknowledge its contribution. On the other hand, we are aware also that is not true of all lorry drivers. Only about half of them appear to comply well, so we urge the others to do the same.
11 p.m.
Earl Russell: My Lords, before the Minister concludes, will he agree to read the Home Office research published last week that found his final point to be entirely untrue?
Lord Filkin: My Lords, I shall do so with pleasure. However, this is not the place for a Second Reading debate. There are many factors that attract people to this country. We still have to find answers to the question as to why so many people come to Britain when it is so difficult to do so. Nevertheless, we are top of the league.
Lord Freeman: My Lords, I am grateful to the Minister for outlining very clearly the reasons why he feels unable to accept the amendment. I believe that his response will encourage both my noble friend Lord Attlee and myself to reflect further, together with the associations involved. The hour is late and I have but two very brief points to make in response to remarks made in this thought-provoking debate.
First, my noble friend Lord Waddington argued the case for absolute carriers' liability. In fact, there is no such thing as absolute liability; indeed, the Bill rightly provides grounds of defence for proper precautions taken. Our amendment simply seeks to put on the face of the Bill, and thereby secure, a defence in specific circumstances.
Secondly, my noble friend Lord Waddington may have misheard me, or perhaps I did not explain myself clearly—which is probably the case. I should tell him that I was not seeking to argue that others should necessarily be examining the freight vehicle in the secure area of the port; I meant the driver. If it were not the driver, the driver would have to assist. The carrier must always have that liability of continuing to supervise, where practical, the security of the vehicle.
On that basis, my noble friend Lord Attlee and I will reflect further on the matter, along with the trade associations. I am grateful to the Minister for indicating that at least his department might be open

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to any further sensible representations. In the circumstances, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Bassam of Brighton Lord Bassam of Brighton moved Amendment No. 63:
Page 104, line 11, leave out paragraph (b) and insert—
"(b) was an employee of the owner or hirer of the vehicle when the penalty notice was issued."
The noble Lord said: My Lords, these are minor and technical amendments designed to ensure consistency and clarity. I shall simply describe the purpose of the three amendments.
Amendment No. 58 ensures that there is no need to issue new codes of practice for the prevention of clandestine entrants under Section 33 of the Immigration and Asylum Act 1999, as a result of incorporating rail penalty provisions into primary legislation. Amendment No. 59 clarifies the legal position to ensure that we cannot detain a vehicle belonging to someone who was not the employer of the vehicle driver at the time the driver was issued with a penalty. Amendment No. 60 clarifies that the right of appeal to a court is available at any point following the decision to charge an owner in respect of a passenger without proper documents regardless of whether a written objection has been made. This mirrors provisions relating to the civil penalty regime. I beg to move.
On Question, amendment agreed to.
The Deputy Speaker (Lord Skelmersdale): My Lords, I assume that Amendments Nos. 64 and 65 were spoken to by the noble Lord. In which case the Question is that Amendments Nos. 64 and 65 be agreed to.
Lord Bassam of Brighton Lord Bassam of Brighton moved Amendments Nos. 64 and 65:
Page 107, line 19, at end insert—
"(5) An appeal may be brought by a person under this section against a decision to charge him whether or not he has given notice of objection under section 40A(3)."
Page 108, line 18, at end insert—

"(1) This paragraph applies to a code of practice which—

(a) has effect, before the coming into force of paragraph 12 of this Schedule, by virtue of sections 33 and 39 of the Immigration and Asylum Act 1999 (c. 33) (power to apply provisions about carriers' liability to rail freight), and

(b) could be issued under section 33 of that Act after the coming into force of paragraph 2 of this Schedule.

(2) A code of practice to which this paragraph applies—

(a) shall continue to have effect after the coming into force of paragraph 12 of this Schedule, and

(b) shall be treated after that time as if made and brought into operation under section 33 alone."

On Question, amendments agreed to.
Clause 113 [Physical data: compulsory provision]:
Lord Dholakia Lord Dholakia moved Amendment No. 66:
Page 60, line 28, leave out paragraph (g).
The noble Lord said: My Lords, in moving this amendment, I shall speak also to Amendment No. 67. I shall be very brief. The purpose of the amendment is to prevent the physical data collected being used for any other purpose than immigration matters. The amendment has the support of a number of immigration advisory bodies, which find it objectionable that physical data collected about an individual under the compulsory scheme may be used for purposes that do not relate to immigration. This power is far too wide and ambiguous. The Secretary of State has been unable to justify such wide powers, which have serious implication for data protection. That is why we suggest the deletion of subsection (4)(g) of Clause 113.
Amendment No. 67 is designed to ensure that information supplied by a local authority is dealt with through a specified and qualified person. Again, the amendment has the support of a number of immigration advisory bodies. In order to avoid abuse and errors being made safeguards must be put in place against all these provisions to ensure confidentiality of information, and that only persons qualified to give, or receive, information are able to do so. Furthermore, it is essential that the individuals concerned are informed when information relating to them is being disclosed and that they should have the opportunity to challenge the accuracy of the information. We are concerned that information should be provided only by an officer qualified to provide it. There are serious data protection issues in that data may be inappropriately disclosed and there may be a risk that information will be inaccurate or misinterpreted.
For those reasons and for reasons of fairness we believe that information supplied by a local authority is supplied through a specified and qualified person. I beg to move.
Lord Judd: My Lords, we live in a time when the grim challenges that face us put human rights under greater stress than perhaps many of us can remember. I realistically recognise that perhaps that is inevitable. I believe that in the context of that reality we must be careful that we do not slip into a kind of psychological outlook where administrative convenience is the priority and human rights become eroded stage by stage. Reading this not as a lawyer, but as an ordinary citizen, I cannot believe that this clause is warranted in its present form in terms of what must remain a real commitment to human rights. I ask the Government to consider this clause carefully.
Lord Filkin: My Lords, Amendment No. 66 would delete Clause 113(4)(g) and remove specific reference to the inclusion in any regulations made under this clause of provision for the use and retention of information collected under it. The clause, as drafted, clarifies that the regulations may provide for the use and retention of information under those regulations. We believe that it is quite proper that information may be used for purposes other than immigration. That may well include the prevention and detection of crime, but it may also be used in the proper exercise of

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other government functions. At this time we simply do not know what wider uses may properly be made of the data, or for that matter that any uses other than those relating to immigration control will be appropriate. But to limit our ability to make proper use of the data would be inappropriate and not in the best interests potentially of society.
However, any provisions allowing for use of information, other than for immigration purposes, would be set out in regulations which would be subject to the affirmative procedure, and so be transparent and open to parliamentary scrutiny. I am sure that the House will accept that that is a necessary process of security.
Additionally, any exchange or use of data collected under the powers would be subject to the safeguards of the Data Protection Act. Therefore the Government's views remain unchanged and the purpose, as it stands, is to make it compulsory for local authorities to comply with requests. It provides a new legal obligation on them to do so, as many, but not all, have usually done. The proposed amendment would require such disclosure to be made through a named officer. The Government's view is that it remains the local authority's legal duty to comply. If it wishes to nominate a named officer to respond, that is its choice, but we believe that it should be left the freedom of action in that respect. Clearly, local authorities, like the Secretary of State, are required to comply with the Data Protection Act. For those reasons we trust that the amendment will not be pressed. I hope that in part I have given some assurances.
Lord Dholakia: My Lords, I am grateful to the Minister for the assurances given. Due to the lateness of the hour, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 116 [Local authority]:
[Amendment No. 67 not moved.]
Clause 120 [Medical inspectors]:
Lord Bassam of Brighton Lord Bassam of Brighton moved Amendment No. 68:
Page 64, line 36, at end insert—
"(ii) a National Health Service Trust established under section 5 of the National Health Service and Community Care Act 1990 (c. 19),
(iii) a Strategic Health Authority established under section 8 of the National Health Service Act 1977 (c. 49),
(iv) a Special Health Authority established under section 11 of that Act, or
(v) the Public Health Laboratory Service Board,"
The noble Lord said: My Lords, this group of amendments revises the definitions of "health service body" in England, Wales, Scotland and Northern Ireland to which port medical inspectors and their staff may disclose information where necessary for specified medical purposes under Clause 120.
The amendments would enable port medical inspectors to disclose information to a wider range of health service bodies than previously provided for in Clause 120(4).
The definitions of "health service body" already provided in Clause 120 are too narrow, although they do reflect the bodies to which port medical inspectors currently disclose information. Further discussion with the Department of Health and, importantly, the devolved administrations has revealed that the current configuration of health service provision may be subject to some non-statutory change in the future, such that PMIs will require the flexibility to disclose information to the wider range of bodies listed in the amendment.
Adopting the broader definitions provided in the amendment will save parliamentary time by reducing the possible need to amend Clause 120 subsequently unless required by the creation of new statutory health bodies. The amendments reflect the wishes of the Department of Health and the devolved administrations. That explanation covers Amendments Nos. 68 to 74. I beg to move.
On Question, amendment agreed to.
Lord Filkin Lord Filkin moved Amendments Nos. 69 to 74:
Page 64, line 38, after "under" insert "section 8 or 16BA of"
Page 64, line 38, at end insert—
"(ii) a National Health Service Trust established under section 5 of the National Health Service and Community Care Act 1990 (c. 19), or
(iii) the Public Health Laboratory Service Board."
Page 64, line 40, after "under" insert "section 2 or 12A of"
Page 64, line 41, after "(c. 29)," insert "or
(ii) the Common Services Agency for the Scottish Health Service established under section 10 of that Act,"
Page 64, line 42, at beginning insert—
"in relation to Northern Ireland—
(i) "
Page 64, line 46, at end insert ", or
(iii) the Department of Health, Social Services and Public Safety."
On Question, amendments agreed to.
Lord Filkin Lord Filkin moved Amendment No. 75:
After Clause 127, insert the following new clause—
"EEA PORTS: JUXTAPOSED CONTROLS
(1) The Secretary of State may by order make provision for the purpose of giving effect to an international agreement which concerns immigration control at an EEA port (whether or not it also concerns other aspects of frontier control at the port).
(2) An order under this section may make any provision which appears to the Secretary of State—

(a) likely to facilitate implementation of the international agreement (including those aspects of the agreement which relate to frontier control other than immigration control), or

(b) appropriate as a consequence of provision made for the purpose of facilitating implementation of the agreement.

(3) In particular, an order under this section may—

(a) provide for a law of England and Wales to have effect, with or without modification, in relation to a person in a specified area or anything done in a specified area;

(b) provide for a law of England and Wales not to have effect in relation to a person in a specified area or anything done in a specified area;

537

(c) provide for a law of England and Wales to be modified in its effect in relation to a person in a specified area or anything done in a specified area;

(d) disapply or modify an enactment in relation to a person who has undergone a process in a specified area;

(e) disapply or modify an enactment otherwise than under paragraph (b), (c) or (d);

(f) make provision conferring a function (which may include—

(i) provision conferring a discretionary function;

(ii) provision conferring a function on a servant or agent of the government of a State other than the United Kingdom);

(g) create or extend the application of an offence;

(h) impose or permit the imposition of a penalty;

(i) require the payment of, or enable a person to require the payment of, a charge or fee;

(j) make provision about enforcement (which may include—

(i) provision conferring a power of arrest, detention or removal from or to any place;

(ii) provision for the purpose of enforcing the law of a State other than the United Kingdom);

(k) confer jurisdiction on a court or tribunal;

(l) confer immunity or provide for indemnity;

(m) make provision about compensation;

(n) impose a requirement, or enable a requirement to be imposed, for a person t o co-operate with or to provide facilities for the use of another person who is performing a function under the order or under the international agreement (which may include a requirement to provide facilities without charge);

(o) make provision about the disclosure of information.

(4) An order under this section may—

(a) make provision which applies generally or only in specified circumstances;

(b) make different provision for different circumstances;

(c) amend an enactment.

(5) An order under this section—

(a) must be made by statutory instrument,

(b) may not be made unless the Secretary of State has consulted with such persons as appear to him to be appropriate, and

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

(6) In this section—
"EEA port" means a port in an EEA State from which passengers are commonly carried by sea to or from the United Kingdom,
"EEA State" means a State which is a contracting party to the Agreement on the European Economic Area signed at Oporto on 2nd May 1992 (as it has effect from time to time),
"frontier control" means the enforcement of law which relates to, or in so far as it relates to, the movement of persons or goods into or out of the United Kingdom or another State,
"immigration control" means arrangements made in connection with the movement of persons into or out of the United Kingdom or another State,
"international agreement" means an agreement made between Her Majesty's Government and the government of another State, and
"specified area" means an area (whether of the United Kingdom or of another State) specified in an international agreement."
The noble Lord said; My Lords, in an earlier debate we touched on the importance of effective entry controls. In recent months we have had some very positive discussions with the French. I apologise to the noble Baroness, Lady Anelay, for not answering her previous question. I shall perhaps try to do so later. The French have agreed to co-operate with us on establishing juxtaposed controls.
We found, to our surprise, that we did not have the power to implement them, because the powers that established the existing juxtaposed controls were in the Channel Tunnel Act, and since we have only one Channel Tunnel we could not apply them to other ports. Therefore, this clause is necessary.
We intend to make sensible use of these powers in co-operation with the French and perhaps with the Belgians also. I beg to move.
On Question, amendment agreed to.
Clause 128 [Assisting unlawful immigration, &c.]:
Lord Dholakia Lord Dholakia moved Amendment No. 75A:
Page 68, line 3, after "act" insert "for gain"
The noble Lord said: My Lords, again I shall be brief. We pursued these matters in Committee. The amendment is supported by a number of immigration agencies. Its purpose is to ensure that persons are guilty of the offence of assisting unlawful immigration only if they do so for gain.
We are concerned that there is no requirement in the provision to show that the act must have been committed for gain. If the provision were amended to include a necessity to show that the offence was committed for gain, inadvertent breaches as well as benevolent assistance would not be penalised. However, it is important that a distinction is made between those who facilitate the entry of another person for gain and those who do so for other reasons, such as humanitarian reasons, or who perhaps do so inadvertently.
In Committee, the noble Lord, Lord Filkin, gave the example of a woman who arrived in Italy with her boyfriend in her suitcase, claiming that she was transporting a pile of ornamental bricks. I assume that that comes under seeking to break the immigration rules for love rather than for financial gain. Nevertheless, it is an offence.
The Government's example does not grapple with the fact that a person might be facilitating the entry of a person into the UK for humanitarian reasons. Furthermore, this does not reflect Article 27 of the convention implementing the Schengen agreement, which clearly states that the penalties should be imposed on persons who assist unlawful entry,
"for the purposes of gain".
There is also the problem of proving an offence. In the Commons the Government suggested that magistrates would obtain a certificate from a court in the relevant member state in order to determine whether a breach of immigration law has occurred. In Committee, the Government suggested that the certificate would be issued by the government of the

539
member state in question. Have the Government any further thoughts on the question of the certificate? I beg to move.
11.15 p.m.
Lord Filkin: My Lords, again, I regret that we cannot accept the amendment. There is a significant difference between the Government and other noble Lords on the issue. It is an offence for a person subject to immigration control to enter the country illegally. It is also an offence to remain after one's leave has expired or to use deception to obtain further leave. That is a fact. It is currently an offence to be knowingly concerned in making or carrying out arrangements or securing or facilitating either offence, whether or not that is done for gain. That should continue to be the case: where someone knowingly assists another person to commit an offence, the first person should be liable to prosecution.
I entirely accept that where the motive for assisting someone to commit a breach of immigration law is a reason other than for gain—for example, the person with her boyfriend in a suitcase—a penalty of 14 years may be inappropriate. But 14 years is a maximum penalty and the Government are not in favour of using maximum penalties in the legislation as triggers for other penalties. It is not a mandatory penalty; the penalty is for the courts to decide, having regard to all the circumstances of the case.
Where someone has deliberately helped another person to enter the country illegally for reasons of family loyalty or because they object in principle to the concept of immigration control, it will be for the courts, not the Government, to decide what penalty is appropriate. But I do not accept that such conduct should not be an offence in the first place. We can envisage what might result were that to be the case.
It is true that the "for gain" limitation applies to the offence of helping an asylum seeker to arrive in the United Kingdom, but it was pointed out in Committee that an asylum seeker can arrive in the UK and claim asylum without breaking any law. In the circumstances, the "for gain" limitation is a necessary safeguard to protect those motivated by humanitarian considerations, while allowing us to act against people who are involved in trafficking, as we clearly want. However, I must tell the House that the need to demonstrate that someone has acted for gain has frequently proved an obstacle to bringing a prosecution when we believe that one should have been brought.
I should also point out that, were the amendment to be carried, we should not be able to comply with our obligations under the European directive on the facilitation of unauthorised entry, transit and residence or the associated framework decision. It is true that paragraph 27 of the Schengen agreement is limited to action for gain, but that paragraph is set to be replaced by the directive, Article 1 of which requires each member state to adopt appropriate sanctions on any person who intentionally assists any person who is
540
not a national of a member state to enter or transit across the territory of a member state in breach of the laws of the state concerned. That is an absolute requirement; it is not limited to cases in which that is done for gain.
It is late; I invite the noble Lord to consider whether he wants to press his amendment.
Lord Dholakia: My Lords, I thank the Minister and beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 76 not moved.]
Lord Avebury Lord Avebury moved Amendment No. 77:
After Clause 130, insert the following new clause—
"PROTECTION OF VICTIMS' RIGHTS

(1) For the purposes of this section a "victim of trafficking" is a person described in section 130 as the "passenger", irrespective as to whether a person is charged with an offence under section 130 or at all.

(2) A victim of trafficking shall be granted a reflection period of 3 months in the case of adults and 6 months in the case of minors, in which to make an informed decision as to whether to cooperate with the authorities, and during this time they will be given access to suitable accommodation, medical, psychological and material assistance and information regarding their legal rights in a language they can understand.

(3) Where there is a reasonable likelihood that, if removed from the United Kingdom, a victim of trafficking will be subjected to treatment contrary to Article 2, 3. 4 or 5 of the European Convention on Human Rights, the Secretary of State shall grant that individual exceptional or indefinite leave to remain."

The noble Lord said: My Lords, it is unfortunate that we reach the question of trafficking in persons at such a late hour, when it deserves the full attention of your Lordships' House, not just that of the few Members who remain. The offence of trafficking in persons has received the attention of the United Nations. As the Minister will know, there is a definition in the UN protocols to prevent, suppress and punish trafficking in persons, especially women and children. That definition has been endorsed by the European Union framework decision on combating trafficking in human beings.
First, we seek to import that definition into the Bill. Although Clause 130 is a stop-gap measure, we do not see why the opportunity should not be taken to align the definition in our statutes with what has been universally accepted by international authorities—especially when the Government have assured Anti-Slavery International in a letter of 1st May that they are:
"keen to ensure that the same definition of trafficking is used domestically and internationally".
The opportunity is also taken to remove the words "for purposes of gain". That would mean that a trafficker could be prosecuted if the police could prove that he had coerced or deceived somebody into prostitution, regardless of whether it was possible to establish that the person concerned had done so for his direct benefit. Having to prove that a person who used force or coercion also materially benefited from doing so would be a significant obstacle to achieving a successful prosecution.
Our second amendment in this group relates to the protection of victims' rights, a matter that we discussed in Committee. I think that we agreed that, if a person did not have a period of reflection, the police would have great difficulty in securing the witnesses needed for prosecutions. More fundamentally, the traumatised victims who might be sent back to their country of origin would not have the benefit of the services of specialised agencies. They would not have the opportunity to recover from their experiences and receive advice and support in making an informed decision about whether to co-operate in the police investigation of the offence. Given the risk to the lives of victims and their families in their country of origin, that is of fundamental importance.
A specialised agency could provide support services, including secure accommodation, information in a language that they can understand, medical and/or psychological assistance, legal assistance and training opportunities. Such measures would be in line with Article 6 of the UN protocol on trafficking.
If there is no period of reflection, the victims of trafficking will face immediate deportation. That is not in the interest of the victim, who may be trafficked for a second time, or of the police, who would lose the opportunity of discovering valuable information about the multi-billion dollar international trafficking enterprise. The amendment takes into account a point made by the noble Countess, Lady Mar, in Committee. She said that the wording of the amendment then was completely open-ended. We have since put in a time limit and specified that the reflection period would be three months for adults and six months for children.
The final amendment suggests a victims of trafficking fund. This is an essential component of the armour against trafficking. The Home Office found that up to 1,420 women were trafficked into the United Kingdom in 1998. There is little doubt that the problem has become worse since then. Despite that, there is only one agency, as far as we are aware, that offers specialised services to adult victims of trafficking. It is not funded to do so and can assist only if it has free bed spaces.
The UK is a signatory to the UN protocol on trafficking, Article 6 of which calls for states to provide support for victims. Such services are not available in the UK to trafficked women, and we think that it is essential that we have a fund of the kind specified in the amendment. We hope that the Minister can agree to these modest amendments. I beg to move.
The Deputy Speaker (Lord Skelmersdale): My Lords, I have some difficulty in calling the amendment. Will the noble Lord, Lord Avebury, please tell me to which amendment he spoke?
Lord Avebury: My Lords, I hope that I spoke to Amendments Nos. 76, 77 and 78.
The Deputy Speaker: I see. In fact, we have already passed Amendment No. 76, so I shall call Amendment No. 77.
Lord Judd: My Lords, I would not like the noble Lord, Lord Avebury, to feel that he was on his own in
542
this concern. We are dealing with an issue of deep human anguish and suffering. It is an incredible trauma for the people involved. One has only to read today's Evening Standard to see another example of what we are talking about.
Not for the first time, the noble Lord has put forward a humane, sensible and rational approach to how the matter should be handled. He has suggested how we can fulfil our responsibilities, first, in order to be able to obtain convictions without unnecessary obstacles in the way; secondly, to ensure that people have an opportunity to sort themselves out in the middle of the incredibly disturbed situation in which they find themselves psychologically; and, thirdly, that the organisations which do so much work on our behalf to preserve the values we love to talk about in this House and which get down to the nitty-gritty of making the proposals work should receive the practical support they deserve in their front-line activities.
Lord Alton of Liverpool: My Lords, I support the remarks made by the noble Lords, Lord Judd and Lord Avebury. I believe that Amendments Nos. 76, 77 and 78 are needed in legislation and this is the moment when we should act.
This morning I had the opportunity to address a conference of young people—the Inter-schools Human Rights Conference which was held in north London. It was organised by school children from Haringey and Tottenham and it was attended by about 150 children. It was interesting to note that the issue they had chosen to debate and to turn into their campaign was that of human trafficking. I understand that they are to send postcards and letters to Ministers, which is a good exercise because it shows young people how they can help to make a difference. It is therefore a real and live issue in the minds of many people. I want to pay tribute to the Government for the way in which they have responded to the matter during the past year.
In March I had the fortune to have a balloted debate and chose to raise the issue of human trafficking. Noble Lords from all sides of the House took part. I recall in particular the intervention of the noble Baroness, Lady Howells of St Davids, and the moving intervention of my noble friend Lord Wilberforce in supporting the proposition that changes should be made to the law.
Subsequently, I had the opportunity to see the noble Lord, Lord Rooker, at the Home Office and was extremely pleased by the positive reaction that he gave to me and Mike Kaye who represented Anti-Slavery International during our meeting. The noble Lord, Lord Bassam of Brighton, who is in his seat, will also recall the response that he gave during the Proceeds of Crime Bill when I moved an amendment that a fund should be set up, like that which we used to confiscate assets from drug dealers, to confiscate the assets of people involved in human trafficking and to use it to help the victims. Although the Government said that they were unable to support and accept the amendment, the noble Lord, Lord Bassam, promised

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that they would keep the issue under review in order to see whether those funds might be used in due course. They could be used to do what was outlined in the fund, which would be entirely reliant on the Treasury but which is proposed in the amendment tabled by the noble Lord, Lord Avebury, today.
The Government have also indicated that they intend to legislate. Although they cannot tell us what will be in the Queen's Speech, it is nevertheless clear that the Government have this matter as a high priority. When such legislation comes before the House, it is legitimate and reasonable for noble Lords to keep the Government on their toes and to continue to press for the changes that are needed. I refer, for instance, to the reflection period, which is a reality in Holland and Belgium. Holland has precisely the formula referred to by the noble Lord, Lord Avebury, of a six-month period for children and a three-month period for adults.
The fact that we need to take this action was recently brought home to me in a graphic way. Two weeks ago I had a harrowing experience when I travelled to the war-torn area of southern Sudan. As the noble Baroness, Lady Cox, reminded the House in a debate on Monday, 2 million people have died there in the past 20 years. She also made the point that some 4 million people have been displaced during that conflict and that slaving and trading has become part of it. Many people are trafficked and sold on into various forms of human slavery.
In northern Kenya, an area that is not affected by warfare, the same phenomenon of slaving and trading is occurring. Indeed, with a massive exponential increase in the numbers of AIDS victims, children are being orphaned at an extraordinary rate. When I met UNICEF representatives during my visit there, they told me that there are already 1 million orphaned children in that part of the world and that they expect that number to rise to about 13 million by 2010. World-wide, they say that by the same year the number of orphans in the world will have risen to about 106 million children. These children are, of course, extraordinarily vulnerable to issues such as trafficking, being sold on into exploitation, into sexual slavery and into all the other things that we in this House are all too well aware of.
People from ANPPCAN, one of the local organisations in Kenya fighting against trafficking, told me that frequently children are being exploited and driven into sex slavery and prostitution. They said that they are handed over to bogus employment bureaux run by racketeers and that it is not long before they become prostitutes and become HIV/AIDS positive themselves. Often these youngsters are sold on to other countries too, as we are well aware in the UK.
Dr Radhika Coomaraswarmy, who is the UN's special rapporteur on violence against women, told me when I met her a few months ago that traffickers are,
"fishing in the stream of migration".
As we all know, that flow of migrants has been rising inexorably. Research by ECPAT, the End Child Prostitution, Pornography and Trafficking
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organisation—an excellent organisation—and research by the North London University for the Home Office shows that, as an absolute minimum, hundreds of women and children are being trafficked into the UK each year.
Earlier this year, the Financial Times stated that, according to the UN's drug control and crime prevention agency in Vienna, human trafficking has become the fastest growing facet of organised crime. It is extraordinarily lucrative. Powerful criminal organisations are estimated to earn about £4.3 billion a year from economic and sexual slavery. The trafficking of people is considered to be the third largest source of profits for organised crime after the trafficking of drugs and firearms.
The noble Lord, Lord Judd, referred to a story in today's London Evening Standard written by Sally Smith. It graphically illustrates the need for the amendments before the House. The article concerns a young Romanian girl, Natasha, aged 18, who,
"wound up here in London—penniless, confused, sexually abused and terrified for her life. The victim of human traffickers, and of one particularly brutal man"—
a British national called Alex—
"Natasha found herself imprisoned in a house in north London and threatened with enforced prostitution".
I shall not read the entire article—it is a very good article and I recommend that noble Lords study it—but perhaps I may read one or two further extracts. Natasha continues:
"I know he"—
this man Alex—
"will follow me and hunt me down…He is angry with me and has threatened my friends and my parents back in Romania. He says the Russians"—
who are also involved in the underworld business of this trafficking—
"will kill me".
The article states:
"It's a highly lucrative business for the violent men who 'own' them. Traded at between £5,000 and £10,000 each"—
that is here in London, in this city—
"women turning 10 'tricks' a day at the bottom end of the market bring around £100,000 a year for their pimps. 'You don't have to go very far upmarket from that to realise why this is such big business', says Chief Superintendent Simon Humphrey, head of Scotland Yard's vice squad. 'In Soho, where there are about 70 brothels, each woman will generate more than double that figure'".
I shall read one other extract. Chief Superintendent Humphrey said:
"If we don't get our politicians to act against this trade, it's going to radically alter our whole society and continue to wreck lives".
About nine months ago, Simon Humphrey also said,
"Quite frankly we are getting our priorities wrong in this country. We care more about catching car criminals and people involved in consumer crime but we are doing nothing to help children who are being sexually exploited".
These amendments seek to address the issues that Superintendent Humphrey has raised. They would strengthen the ability of the police to prosecute and

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they would protect someone like Natasha, the subject of the article. They would provide a support fund to help victims and they would deal with the issue of a reflection period and the question of definition. For all those reasons I support the amendments.
I have one question for the Minister. When the Proceeds of Crime Bill was before the House, I asked the noble Lord, Lord Bassam, about the 60 young people who had been victims of trafficking and had been placed in the care of West Sussex social services. All of those children subsequently disappeared from care. The noble Lord will recall that when he looked into the figures another handful had disappeared, even after the issue had been raised in this House.
I do not expect an answer from the Minister this evening, but for the record will the noble Lord tell us in due course whether more children have disappeared from our care, those rescued from trafficking and in the hands of social services; and whether we have any idea what has now happened to any of those children who disappeared into the ether. Their stories alone are enough to impel us into ensuring that urgent legislation is enacted on this subject.
Lord Hylton: My Lords, I add my support to the amendments. I regret that Amendment No. 76 was not moved formally so as to give us a chance to discuss it. The language used in that amendment is stronger, better and clearer than the language in the Bill as drafted.
Turning to Amendment No. 77, the noble Lord, Lord Avebury, was right to insist on an explanation of what a "reflection period" means and of what it would consist. What is proposed in Clause 77(3) is the precise equivalent of the principle of non-refoulement in refugee matters—not sending people back to places where their lives will be at serious risk.
As to Amendment No. 78, it was stated earlier that in the whole of London there is only one specialist agency and it has only three beds. What is that number of beds among the 1,400 cases that were known to exist in 1998 and which have presumably increased since then.
I suggest that what is required is a small number of housing associations that will specialise in the task of providing safe houses. With the housing provision will have to go the provision of the specialised help, protection and assistance mentioned in Amendment No. 77. Specialist staff will be required for that purpose, so it will be quite a costly operation. Will the Government consult both the National Housing Federation and the Housing Corporation? I myself have already started that ball rolling by being in touch with the present chairman of the Housing Corporation. It is a question of precisely the kind of specialist allocation, both of capital and of income, that the Housing Corporation has achieved in other
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fairly comparable cases. These are three extremely important amendments and I am sure that we shall return to them at Third Reading.
Earl Russell: My Lords, I shall not detain the House long. Between a trafficker and his victim there is a gross inequality of power. That inequality often leads to an Actonian absolute corruption.
I recall a case reported in the Observer of a trafficker who sent his victim out to work as a prostitute off the Edgware Road. When she felt that she had had enough for the day, she was driven back to work by the use of a red hot iron. Such inequality of power is the sort of thing that we have a state to redress. But there can be no effective prosecution unless the victim will give evidence. The victim will not give evidence if she will simply be sent back, in disgrace at best and possibly in a worse situation, to the place whence she came. Unless the victim is given immunity from prosecution for any breach of immigration law, of which both she and the trafficker are probably guilty, there will not be evidence.
My noble friend Lady Seear used to say that politics is a matter of choosing the lesser of two evils. Is it the lesser of two evils to allow an occasional person to be in this country when he or she has not entered legally, or to allow this sort of abuse and cruelty to continue? That is our choice. I do not think that it is a very difficult one.
Lord Filkin: My Lords, I shall seek to speak briefly on Amendments Nos. 76, 77 and 78, responding to noble Lords in no particular order.
I thank the noble Lord, Lord Hylton, for his comments. As he well knows, we have further to go on this matter. I will ask my private office to investigate, as far as we are able to do so, his question about the people who disappeared from West Sussex. I ask that the interesting observations by the noble Lord, Lord Hylton, about specialist housing associations and health provision be reflected upon.
As was indicated, the provisions are intended as a stopgap, pending a more thorough reform of sexual offences legislation. I can well believe that many in the House hope that such legislation will come before us sooner rather than later. I can give no comment on that at this stage. However, pending this comprehensive reform, it will be more straightforward to rely on the existing formulation. Therefore, Clause 130 is deliberately based on the existing offences of profiting from and controlling a person in prostitution, which are well understood by the courts and enforcement agencies. The definition of control in the clause is directed at criminalising the exploitation of the sexual services. The offence does not depend on the involvement of abuse behaviour. We do not think it adds any substance to the offence as it stands. Indeed, by limiting it to certain types of abusive behaviour its scope is restricted.
The mischief that the offence tackles relates to the movement of people to exploit their sexual services. It does not require the additional elements of abusive

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behaviour specified in the UN protocol. It is open, however, for the courts to take into account evidence that coercion, threats or other aggravating factors have been used when determining what sentence to pass on convicted traffickers. However, they are not necessary elements of the definition of control. The existing formulation is well understood by courts and law enforcement agencies, and it was adopted for that reason. We are committed to implementing the UN protocol and the EU framework decision. These will require more far-reaching legislation than is possible through the NIA Bill. Again, we intend to do that when parliamentary time permits.
The formulation of the offence to include "for purposes of gain" is based on existing prostitution offences. It is central to the law on commercial sexual exploitation, and its removal would require an overhaul of this law that would fall outside the scope of this Bill.
On Amendment No. 77, trafficking for the purposes of commercial sexual exploitation is, of course, totally unacceptable. Existing law already covers this to some extent, but it is out of date, and the penalties are generally low. We intend to introduce the comprehensive legislation as soon as we can, and the provision is short term. Where someone is a victim of trafficking, we shall offer them support to escape their circumstances. Where they are willing to come forward to assist, we shall, if necessary, make arrangements for their protection. If we conclude that they would be at risk in their country of origin, we recognise that it may be appropriate to allow them to remain in the UK.
We have said that we will work with the voluntary sector to put the necessary support arrangements in place. Any initiative will be on a trial basis for six months in the first instance. It is already possible to allow a reflection period if that is considered appropriate. It is also possible to grant leave to remain on an exceptional basis for a limited or indefinite period. Each case should be considered on its merits. An automatic reflection period could undermine immigration control, hold up criminal proceedings and provide an incentive for people to come to be trafficked in the UK. In any event, three months is a rather long period. We have therefore decided not to opt into the European directive, which would provide a 30-day reflection period for victims of trafficking, in the sense of this clause, and illegal entrants. That decision was based largely on the fact that the reflection period would also apply to illegal entrants.
Amendment No. 78 would establish a specific fund for the victims of trafficking and redress for victims who have been working in the UK to obtain compensation and recover earnings. We do not believe that a specific fund for the victims of trafficking is the way forward. It would create a precedent for victims of other forms of crime to seek specific support. We also believe that it could be a pull factor in encouraging people to claim to have been trafficked or to put themselves into the hands of traffickers.
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We are committed to supporting victims and have set out a range of support measures in the White Paper, which we shall establish on a pilot basis next year. This will enable us to assess the demand for these services, as there is no reliable information about the scale of the trafficking problem in the UK—that is relevant to the point raised by the noble Lord, Lord Hylton—although many of us fear that it is substantially greater even than some of the current estimates.
Compensation for victims is essentially a civil matter. Victims seeking compensation for loss or damage are expected to seek redress in the civil courts. If earnings were the result of illegal working, they would be forfeited.
Victims of violent crime can get compensation through the criminal injuries compensation scheme. That includes the victims of trafficking. We do not believe that there is a case for treating victims of trafficking any more or less favourably than other victims of crime, even while respecting the seriousness of the offence committed against them. There is accordingly no case for making special arrangements or financial provision.
Legislation is necessary. There is clearly a need for action by law enforcement agencies. The recent operation by the police and immigration services resulted in two dozen prostitutes being apprehended. All had been trafficked. All were interviewed and said they wanted to return home to Thailand. Arrangements were made for them to return. On their return there were arrangements for them to be met by local welfare organisations that assist prostitutes and trafficked women to resettle into the community.
I have spoken briefly, but I hope that I have put some issues on the record in ways that are helpful.
Lord Avebury: My Lords, I am most grateful to all those who have spoken in the debate. The noble Lord, Lord Judd, is always active in defence of human rights. The noble Lords, Lord Alton and Lord Hylton, have also spoken frequently on this subject and actively pursued the need for legislation. I also thank my noble friend Lord Russell.
I also thank the Minister, who was as accommodating as he could be. While we recognise that he is not able to anticipate the Queen's Speech, I took down the words, "as soon as we can", which gave me some reason to hope that the legislation could see the light of day a few weeks from now.
The Minister made some helpful comments about the possibility of granting ex gratia leave to remain if it is necessary for a victim of trafficking to be given those assurances to enable that person to co-operate with the police. I shall consult the police. I have spoken to Inspector Holmes—I am sure that the noble Lord, Lord Alton, must have discussed these matters with him as well—to see whether it would be possible for the police to come forward and give the Home Office individual instances in which they think that somebody might co-operate in a prosecution if they were granted the exceptional leave to remain for the six months that the Minister mentioned. That could be

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extremely helpful in enabling the police to take out prosecutions against the traffickers. The Minster's example of the Thai prostitutes shows what currently happens. They went back to their country of origin and no doubt there were rehabilitative services there. I am sure that Thailand looks after the victims of trafficking as well as it can. However, that would not enable the police to bring proceedings against the evil men who were responsible for bringing them here and forcing them into prostitution.
On money, the example of West Sussex shows that there is a gap that needs to be filled even in the interim period. It will take time to set up mechanisms such as the noble Lord, Lord Hylton, mentioned for looking after these people in housing and providing them with support services. The lone efforts of West Sussex should not be criticised, because it was not responsible for the disappearance of those children into the community; it was doing its best to plug a gap which existed in the armoury of our ways of dealing with these victims.
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So what I should really like is for the Minister to agree that we can have further discussions on how local authorities and the housing associations might be assisted in the meanwhile before there is an elaborate mechanism for coping with the whole subject of sexual exploitation and trafficking. If the Minister were able to say that there is some money available for that purpose—I do not expect him to do so this evening, but perhaps he will do it in subsequent discussions which we will have with him after this Bill is passed—it would be an enormous advance on what we have now. There is currently no way at all in which the local authorities or the housing associations can be assisted in what is obviously an essential task.
Again, I am most grateful to everyone who has taken part. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 78 not moved.]
House adjourned at ten minutes before midnight.

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