HL Deb 02 November 1999 vol 606 cc724-800

3.19 p.m.

The Attorney-General (Lord Williams of Mostyn)

My Lords, I beg to move that the Bill be now read a third time. There is a good deal of further work to be done and I think I serve the House best by being fairly economic in what I say at this stage.

There have been considerable consultations and I am pleased that many of the letters from your Lordships to my noble friend Lord Bassam and myself have acknowledged the fact that we have listened with great care and introduced some helpful amendments to the Bill.

We have a long tradition of giving shelter to those fleeing persecution. We are determined to uphold that tradition. We need to bear in mind, however, that the immigration controls which we inherited are under growing pressure. The number of asylum applications has increased 10-fold over the past 10 years to over 46,000 applications in 1998. Seventy-one per cent of asylum decisions in 1998 were refusals. This year has seen even greater pressures. Over 51,000 applications were made between January and September—

Lord Henley

My Lords, I wonder whether the noble and learned Lord would care to pause for a moment. We have to discuss the amendments before there are speeches on the Motion that the Bill do now pass. I wonder whether the House agrees that it would be a good idea to go through the amendments after which we may hear the noble and learned Lord unless the noble and learned Lord feels that it is necessary to speak at this stage?

Lord Williams of Mostyn

My Lords, I am perfectly happy to do that. I believe that the custom has been to have a short opening speech, to hear the amendments, and thereafter to have the closing speech. I am perfectly happy, indeed, rapturously pleased, to sit down at this stage, my theme, plainly, having already been accepted.

Lord Henley

M y Lords, I have been a Member of the House for a number of years—slightly longer than the noble and learned Lord—and my understanding was that it is usual to take the amendments first. Certainly, my noble friends are looking forward to discussing their amendments and then hearing what the noble and learned Lord will put forward.

Lord Williams of Mostyn

My Lords, it is quite true. The noble Lord has been in this House, to date, a good deal longer than I have.

Moved, That the Bill be now read a third time.—(Lord Williams of, Mostyn)

On Question, Motion agreed to.

Clause 4 [Accommodation for those temporarily admitted or released from detention]:

Lord Avebury moved Amendment No. 1: Page 3, line 39, after ("the") insert ("voluntary").

The noble Lord said: My Lords, with your Lordships' permission, in moving the amendment I shall speak also to a number of other amendments as set out on the Marshalled List. We are considering Clause 4 and Schedule 13. [must begin by saying that we do not like Clause 4. That is why we have tabled an amendment which seeks to delete it. But we have tabled also a number of further amendments which deal with the detail. and the devil in the detail, to be found in Clause 13.

Clause 4 allows the Secretary of State to provide accommodation for persons granted temporary admission, released from detention or released on bail from detention. The new amendment to Schedule 13 tabled by the Government gives the Secretary of State power to impose arty restrictions as to residence that he chooses to prescribe in regulations. There is absolutely no limit on what the Secretary of State can do. There is not even a requirement that the restrictions must be reasonable.

One such restriction specifically foreseen in the government amendment to Schedule 13 is that the person concerned should be required to reside in accommodation provided under Clause 4, and the regulations may prohibit him from being absent from that accommodation except in accordance with the restrictions imposed on him".

What that means has been the subject of a number of conflicting reports. When my noble friend Lady Williams and I first raised the matter on Report, as recently as 18th October, the noble and learned Lord, Lord Falconer, had not the faintest idea as to how Ministers were going to use the dispersal powers in conjunction with temporary admission. He said off the cuff: People will be free to come and go, subject to any other conditions that are imposed".

A moment or two later he received a note from the box, and modified his initial reply by saying, The note that I have says the idea is that those concerned will be required to reside overnight but will be free to come and go during the day".—[Official Report, 18/10/99; col. 753.]

I must ask the Minister who is to reply how it is that the noble and learned Lord, Lord Falconer, was left in the position of having to answer this question when certainly the guts of the press release must have been already available within the department at the time. It is unfair to have put the noble and learned Lord in that position. The press release about Oakington. issued three days later on 21st October, put the matter the other way round: The applicant will be required to reside at Oakington"; and, in certain circumstances applicants would be able, with prior approval, to leave without escort for specific purposes and periods".

The norm, then, is that an applicant must reside constantly in Oakington. He may go out to Tesco's, to the doctor's, or whatever, without an escort only with special permission from Mr Jack Straw. He then has to return within an hour or whatever the time specified in the restrictions. If he misses the curfew, he risks being transferred to prison or to a detention centre. I respectfully suggest that the noble and learned Lord, Lord Falconer, inadvertently misled the House when replying to questions on Report. I do not blame him. The habit of the department has been to produce a blizzard of amendments at the last minute before every stage of this Bill and it is impossible for Ministers, let alone Back Benchers, to know everything that is going on within the department.

According to the Guardian of 22nd October, every asylum applicant arriving at Dover without papers, or at Stansted, regardless of whether he has papers or not, is to be bundled off immediately to Oakington. I ask the Minister to confirm that, and to explain why those arrival points are being singled out for special treatment.

The purpose of the new facility at Oakington, and presumably others which may be constructed in the future, is to facilitate prompt consideration of an asylum claim, as the noble Lord, Lord Bassam. wrote to the noble Lord, Lord Cope, on 29th October. The imposition of other restrictions is now applied only by the government amendment to the schedule to persons sent to institutions such as Oakington. If that was the real intention, the location of the new centres should be convenient for access by the agencies advising asylum seekers, unless, of course, the intention is to reach a first decision without affording the applicant access to legal advice.

I do not believe that that is the case. I spoke to representatives at the Refugee Legal Centre just before entering the Chamber. I was told that the Home Office had asked its representatives to examine ways in which they could provide support facilities for people at Oakington. Their first reaction was that considerable resources would be required, that these were difficult to estimate and that the number of firms capable of dealing with asylum cases in the Cambridge region was very small.

The Refugee Legal Centre faxed me a map showing the location of firms which, I understand, have applied for franchises. There are only two in the immediate neighbourhood of Cambridge. I should like the Minister to explain whether it is the intention that franchised firms, or the Refugee Legal Centre, will send representatives to Oakington, or whether, as another alternative which has been considered by the RLS—although it has not put forward any firm proposals—there will be a permanent RLS office located on the site of Oakington. That seems to me to be the better alternative, because the throughput will be extremely large. There will be a maximum of 400 residents in Oakington at any one time. The Minister has said that, on average, they will be there no longer than seven days. Therefore the rate of processing applications will be extremely intensive and will require a scale of resources which will certainly not be available to the franchised firms in the neighbourhood, even if it were possible for their few representatives to spend all their time on the site.

The press release says that applicants will remain at Oakington for, short periods of about seven days while their claims are being considered".

We all know that the Home Office's perception of time is highly elastic. The second amendment to the schedule gives the Secretary of State power to make an applicant stay in Oakington for up to 10 days, giving a leeway of three days. That is meant to be for discussion purposes only. If the Minister says that under extreme circumstances it might be necessary for a person to be kept there for a couple of weeks then, of course, we could consider the argument. However, I suggest that it is quite unacceptable for there to be a totally open-ended power requiring an applicant to stay in one of those places indefinitely, particularly when one considers how the Home Office uses its existing powers of detention to keep people in prisons and detention centres for months, and in some cases for over a year.

Finally—and I believe that my noble friend will amplify what I have to say on this point—Amendments Nos. 82 and 83 are intended to give effect to the very strong recommendations in the 27th Report of the Select Committee on Delegated Powers and Deregulation. The recommendations include that conditions such as are mentioned in Schedule 13 should be imposed only for prescribed purposes and only where they are reasonably necessary and for the single purpose which has been stated so far in order to avoid public order disturbances. I beg to move.

Baroness Williams of Crosby

My Lords, I also ask a number of questions of the Government. It would be helpful if they could give us a full account of the reasons for deciding to establish a centre at Oakington. Perhaps they can tell us something about the arrangements which they hope to make there for various forms of surveillance and monitoring.

I do not quarrel with the procedures of the House, but I rather regret that the noble and learned Lord was not able to set out in slightly more detail what he wanted to say at the beginning. As he will know, that is highly relevant to this particular new clause. New Clause 4 is a relatively late addition to the Bill. We know that, in the last month for which details were given, there has been a substantial increase in the number of people seeking asylum. We do not know whether Clause 4 is essentially a reaction to that and we are anxious to probe a little further the Government's intentions in that respect.

The central question which concerns us is that we are not sure whether the proposal for the camp at Oakington, which I believe is based at the old RAF base there, is intended to be part of a procedure concerning initial stages of holding people while their first hearing is conducted and is, therefore, a form of limited detention for a short period until the first hearing has been held. That is the purpose of our suggestion that 10 days would be a proper limit. Or is it to be part of the dispersal system? If it is to be part of that system, we are considerably concerned because the Home Office itself has said that dispersal should not take place except to areas which are ethnically mixed and where there is reasonable access to medical and legal services.

The adviser on immigration to the diocese of Ely, in whose area Oakington falls, wrote to the Chief Planning Officer at Cambridgeshire County Council on 23rd October and made the point directly that there is no significantly ethnically-mixed community at Oakington. Indeed, there is virtually no ethnic mix for miles of fields around. She also mentioned that she knows of only one person who knows anything at all about immigration law in the whole surrounding area, and that that person is an immigration adviser at the citizens advice bureau.

Therefore, some of the pledges on dispersal that were given at an earlier stage to the noble Duke, the Duke of Norfolk, among others, have not been able to be met in the case of Oakington. If it is a system of detention, albeit a limited one, then we are concerned on constitutional grounds. As far as we can see from Clause 4, the normal protections that occur in the case of detention—in other words, that there is a relatively close system of monitoring; that there is some structure of accountability, and so forth—are certainly not contained in Clause 4. I shall leave the issue of the Select Committee on Delegated Powers and Deregulation to my noble friend Lord Goodhart. But our legal advice is that this provision is almost certainly incompatible with Article 3 of the European Convention on Human Rights.

We are concerned about Oakington if the detention is to be very short term. I ask the Government to go back to the pledges made by the noble and learned Lord, Lord Falconer. On 18th October I asked him the direct question as to whether the accommodation would be secure. He replied at col. 753 of Hansard that it would not. When asked whether people would be able to move in and out without permission, he replied that they would be free to come and go. It was on the strength of that reply that we did not then raise issues with the Home Office on 21st October when the announcement was made by the Minister of State, Barbara Roche, about the setting up of Oakington. However, we are now profoundly concerned because that does not fit into the answers that were given in the House.

Like my noble friend Lord Avebury, I understand, to some extent at least, the pressures which the Home Office is under. I am not trying to make difficulties for it. However, like my noble friends on these Benches and, I believe, the House generally, I am concerned that in a situation where one detains or, to use the words of the Select Committee, a form of house arrest is introduced, there must be proper safeguards; there must be proper structures of complaint; and there must be proper inspection. At the moment, Clause 4 does not make such provision. I should be most grateful if the nol3le and learned Lord or the noble Lord, Lord Bassam, were to tell us a good deal more about this. I repeat that we are not trying to be obstructive, but we are deeply concerned about the precedent that it establishes.

Lord Goodhart

My Lords, I speak with particular reference to the report of the Select Committee on Delegated Powers and Deregulation. That is in reference to the new powers described by the Select Committee as house arrest powers, contained in government Amedment No. 79.

Clause 168(1) states: Schedule 13 makes minor and consequential amendments". The amendments which are to be inserted into Schedule 13 plainly are neither minor nor consequential. As has been pointed out, under these amendments regulations could be made which authorise defacto detention. As I said, I am particularly concerned that the house arrest provisions tell immigrants living in what I might call Clause 4 accommodation where and when they can come and go. If they are residing in Clause 4 accommodation, why is it necessary to impose a curfew or to tell immigrants that they must stay indoors at certain times of day? If they are not in detention then, prima facie, surely the immigrants should be free to come and go as they please, unless they are absent to such an extent that it gives cause to believe that they are not living in the accommodation. Anything else would be extremely unjustified under the European Convention on Human Rights., and I believe that it would be an arbitrary restriction on liberty.

That provision caused great concern to the Delegated Powers Committee. The Home Office submitted a memorandum to the committee dealing with the Report stage amendments. When we were dealing with what was in fact the original version of this amendment, rather than the slightly revised version which we now have, the only reason suggested in the memorandum for giving a power to tell people to stay indoors at certain times of the day was to avoid public order disturbances. Should anyone wish to see the memorandum, it is printed as an appendix to the Select Committee report.

Disorder is more likely to be directed against the immigrants than instigated by them. They may of course be given warnings and advice as to where they should go and when they should stay in. But surely it is wrong to say that they must stay indoors because it is possible that, if they go out, illegal acts of violence may be committed against them. I appreciate that difficult situations have arisen, particularly in Dover and other Kent ports. However, restrictions of this kind are, frankly, giving way to mob rule.

The Delegated Powers Committee made a number of suggestions, one of which, I am glad to say, has been accepted by the Government. That states that these regulations should be made by the affirmative procedure. Of course, I welcome that. However, the Select Committee also suggested that further restrictions may be inserted into the Bill. One such restriction was that powers under the regulations should be exercisable only so far as reasonably necessary. That is echoed by Amendments Nos. 82 and 83 in the name of my noble friend Lord Avebury. Another suggestion is that house arrest powers should be restricted to cases where they are needed for prevention of public disorder.

It is true, of course, that the regulations can be challenged under the Human Rights Act, but. as the Select Committee said, it is unsatisfactory for asylum seekers to have to rely on a challenge under the Human Rights Act to contest a decision taken by immigration officers under the regulations. It would be much better if the power to make the regulations were restricted so that no regulations could be made that may infringe the Human Rights Act.

Speaking for myself, I believe that the Select Committee on Delegated Powers and Deregulation did not go far enough. I believe that the house arrest powers should be removed from the Bill, as proposed by Amendment No. 80.

I should be extremely interested to hear from the noble and learned Lord, Lord Williams of Mostyn, or the noble Lord, Lord Bassam, why the absolute minimum was done, as suggested by the Select Committee, and why further restrictions, not merely the requirement of affirmative resolutions, were not included in the amendments that are to be put into Schedule 13.

Lord Cope of Berkeley

My Lords, in a previous discussion on this matter I pointed out that powers were being taken to enable these institutions to he little different from prisons. Although your Lordships were reassured at the time—as shown from quotations given—that that was not the idea at all, the press release, to which reference has been made, made it clear that that was extremely near to the idea.

It is interesting that the Bill never uses any particular word to describe such institutions. All sorts of words have been used: house arrest, as the noble Lord, Lord Goodhart, said just now; open prison; detention centre; holding centre; and internment centre. In Northern Ireland internment was described as "administrative detention", and that is not far away from what is happening in this clause.

As a result, it is clear that these institutions, like the one near Cambridge that we have heard about—no doubt there will be others in due course—will be little different from detention centres, except that the safeguards which appear later in the Bill, applying to detention centres, broadly speaking do not apply to these kinds of centres, whatever they are called. That must be a worry to us all. The different stories that have been put out by the Home Office at different stages do not add to confidence in this matter. I hope that the noble and learned Lord in his reply will be able to tell us more about them.

I shall not add to what has been said in that respect, except to draw attention to the fact that the Home Office memorandum to the Select Committee said, among other things, that such accommodation would incorporate interviewing facilities as well as facilities for legal advice. That could simply mean a room or set of rooms in which lawyers could talk to their clients. That would constitute facilities for legal advice. Legal advice is not freely available in the area of Cambridgeshire that we are talking about. Such legal advice would have to come from London, which would be expensive as well as extremely time-consuming and difficult.

Matters will be made even more complicated if the amount of time that people spend in the institutions is short, as we hope it is. If they spend seven days in the institutions, the lawyer to whom they spoke on arrival in the south-east of England—in Dover or London or elsewhere—may not realise that they have gone to Cambridgeshire. The lawyer would have to go to Cambridgeshire to see them a second time, but after seven days they could be somewhere else altogether. The same lawyer may be able to attend to their case, but they could then be in some other part of the country. It does not seem to me that legal advice will be facilitated in the true sense of the word.

Lastly, much of this is left to regulations. We are used to that idea, but one cannot avoid the thought that this is a late addition to the Bill. I believe that institutions of this type are a late thought by the Home Office. The real reason why it is done by regulation is because the Home Office has not thought through the matter. Some points that have come out in this short debate and earlier in discussions on this subject indicate that the Home Office has not thought carefully about what the centres are supposed to be and where they will be. The fact that it has not yet hit on a name for them reinforces that thought in my mind. No doubt the noble and learned Lord will be able to tell us all about them.

3.45 p.m.

The Earl of Sandwich

My Lords, on the last point raised by the noble Lord, Lord Cope, could the noble and learned Lord say which of the refugee organisations have been consulted about Oakington, particularly in relation to its location? I do not believe that noble Lords who have spoken are critical of the location. They have simply tabled a probing amendment to find out more.

The noble Lord, Lord Avebury, spoke about a particular agency, which is one of the most active in helping asylum seekers. If that agency has not been consulted, perhaps the noble and learned Lord can clarify which have been consulted.

Lord Clinton-Davis

My Lords, I rise to express my disquiet about the situation revealed by the Liberal Democrat Benches and by the noble Earl, Lord Sandwich. I do not propose to detain the House for any length of time on this issue because I associate myself closely with the arguments that have been raised.

It is incumbent on my noble and learned friend, if he is to reply to the debate, or on my noble friend Lord Bassam, to take these arguments seriously. There is a real risk of a serious breach of human rights arising on this issue. I am concerned about the opportunities for judicial involvement or oversight in this area. Concerns have been expressed about the availability of legal support, whether through legal aid or privately—most likely it is to be legal aid. If that support is to be seriously jeopardised simply because there will not be the opportunity to provide it on a coherent basis, the situation becomes extremely serious.

Perhaps my noble and learned friend will say where the independent judicial oversight of detention is to be provided. Further, how does what is proposed accord with Article 5 of the European Convention on Human Rights? Those are serious matters. I declare an interest because for several years I was chairman of the Refugee Council. In those days I was involved, with my noble friend Lord Dubs who was executive director, in dealing with those issues on a day-to-day basis. I am deeply concerned. I hope that my noble and learned friend will be able to allay my concerns.

Earl Russell

My Lords, these issues have been before Parliament previously. In the winter of 1627 to 1628 the King released a number of former MPs from detention, subject to restrictions which probed the distinction between dispersal and detention. I believe the object was to prevent their re-election to the other place. Of course, the effect was exactly the opposite. In both Houses the distinctions marking the line between dispersal and detention were very much those spoken of by my noble friend Lady Williams of Crosby and the noble Lord, Lord Goodhart. The legality of the view taken by the Houses was never tested in court because on that occasion the Government backed off. That is a precedent that I would be happy to see followed.

Lord Williams of Mostyn

My Lords, quite a number of serious questions have been raised. Perhaps the House will allow me to answer at greater length than normal at this stage because they are questions which have not been fully dealt with on earlier occasions.

I entirely understand what the noble Lord, Lord Avebury, has explained—that is to say, the object behind the proposal to amend or leave out Clause 4. In this group of amendments we need to bear in mind the proposals in Government Amendment No. 79. The purpose of that amendment is simply to enable the extension of the power to impose residence conditions on those granted temporary admission.

Perhaps I may look at the wider context. As the noble Baroness, Lady Williams of Crosby, indicated, it is notoriously well known that there has been a substantial increase in the number of asylum applications. The average number of applications each month from July to September was nearly 7,000. That is about 60 per cent higher than in 1998. It is not appropriate to have a wide-ranging discussion on the reasons for that. But, plainly, no responsible government can simply shrug their shoulders and do nothing.

The secondary proposition I put forward is simply one of fact. There is no doubt at all that the majority of applicants—about two-thirds—will not qualify either for refugee status or exceptional leave to remain. A number of them will have made claims which are manifestly unfounded. It is not fair to those who have genuine claims, the, taxpayer or the rest of the citizens of this country, that unfounded claims are able to clog up the system and exploit delays. I agree that, as noble Lords on the Benches opposite often say, the system is extremely time-consuming and does not actually deliver just outcomes, if that means an efficient and prompt decision.

I stress that the facility at Oakington is based on existing detention powers. I am responding particularly to the noble Baroness, Lady Williams. I confirm her impression that it is designed to deal with claims where it appears that a rapid decision can be made. The applicants will be required to stay at the centre for a short period of about seven days while their claim is decided. If their case cannot be decided that quickly, or if at the end of the period there has been a refusal and a decision not to return home immediately, then applicants will be granted temporary admission or, if necessary, moved to the conditions under which ordinary detention occurs.

However, I repeat—I hope I am not being tedious—that applicants will be required to stay at Oakington under existing immigration powers to detain. I believe there has been some misunderstanding here. The Oakington arrangements do not depend on the additional powers of temporary admission proposed in government Amendment No. 79. The wider powers contained in that amendment allow us to impose residence conditions on temporary admission. They will allow us to develop quite different reception arrangements, whether at Oakington or elsewhere.

I turn to Clause 4. It does not contain any power to impose residence conditions on persons granted temporary admission. It is simply to provide a clear power for the Secretary of State to provide accommodation to persons granted temporary admission. Whether or not those who are granted that permission may be required to reside at such accommodation—and if so, subject to what conditions— is the point and purpose of government Amendment No. 79. If I have it right in my own mind, the aim of Amendment No. 1 is to limit the Secretary of State's power to provide accommodation at which persons are prepared to reside voluntarily.

In a sense, of course, all temporary admission is voluntary. It is an alternative to being detained and it will remain so. If someone seeking admission is not prepared to abide by the proposed conditions of temporary admission, the alternatives are either to return to the country of origin or remain here in detention. But if one accepts conditions of temporary admission, it is not unreasonable to he required to abide by them. Breach of the conditions of temporary admission is now an offence under immigration law and it will continue to be so. That is why we believe the word "voluntary" is not appropriate.

Baroness Williams of Crosby

My Lords, I am grateful to the noble and learned Lord for giving way. As regards the specific point of the length of time people may stay at Oakington before being granted leave to enter or moved into detention, and the point raised by the noble Lord, Lord Clinton-Davies, before the Bill goes to another place will the Government consider putting a time limit in the Bill?

Lord Williams of Mostyn

My Lords, perhaps I may come to that in due time. That was a point raised by the noble Lord, Lord Avebury, in his amendment. I believe I paraphrase fairly by saying that he said that if seven days is too short a period, do the Government want to bring forward a period of about two weeks? Perhaps it is more convenient if I deal with that matter a little later. I am conscious of the fact that the House wants a full explanation of all the amendments in this group.

The noble Lord, Lord Avebury, was really suggesting that Clause 4 should be dropped from the Bill altogether. I repeat that that clause makes it plain that the Home Secretary may provide accommodation to persons given temporary admission. That is necessary because of Government Amendment No. 79. If we want that amendment, Clause 4 has to remain.

We discussed Amendment No. 79 briefly at Report stage. The amendment was withdrawn pending consideration by the Select Committee on Delegated Powers and Deregulation. As noble Lords have indicated, there was substantial comment from the committee, and for that I am grateful. We have thought about that in framing the revised amendment. Its purpose is to extend the purposes for which residence conditions may be imposed when those seeking leave to enter or remain are given temporary admission or released from detention on temporary admission while the application is being considered.

There is already power in the Immigration Act 1971 to impose residence restrictions on those given temporary admission. Our advice is that, as currently framed, the restrictions should be those necessary to maintain contact and prevent absconding. We believe that those objectives are important, but they are too narrow. The large influx of asylum seekers to which I referred a moment ago suggests that we may need wider powers not only to maintain contact but also possibly to prevent potential public order problems.

It is a reasonably founded point that it is possibly harsh at first blush to think that one needs these powers to prevent public order problems. The sad truth is that there have been such problems in the past. We wish to be able to protect people by having these powers available. I do not believe that that is unreasonable. In particular we want to avoid pressure on local services. We want to be able to ensure full and rapid consideration of claims.

As I said earlier, it has to be borne in mind that two-thirds of the applications are likely to fail. I put this neutrally: there is every inducement to abscond by those who believe that their applications are likely to fail. I do not believe that any government discharges their duty if they do not contemplate that and take proportionate powers to deal with it.

There are now two particular provisions—

Lord Goodhart

My Lords, I am grateful to the noble and learned Lord for giving way. Can he explain how "effective powers to prevent absconding" can be anything that falls short of actual detention?

4 p.m.

Lord Williams of Mostyn

My Lords, it is probably more helpful to the House for me to develop the themes as I have them in my mind. Of course, one does not have to have full detention in the sense of imprisonment to prevent people absconding. For instance—in giving this example I am going completely outside the scope of this Bill—home detention curfew is a device which stops people absconding. I am sure that most people would not call that detention in the sense that imprisonment is detention. One can be proportionate as long as one has flexible powers and as long as—I shall develop this in deference to my noble friend Lord Clinton-Davis as well as to the noble Lord, Lord Goodhart—one considers the overarch. Let us not forget that we imposed that upon ourselves as a government in bringing into effect the Human Rights Act as early as 2nd October next year. I shall say a few words about the ECHR in a moment.

The provisions we introduced after reflecting on the views of the Select Committee aim to prohibit residence in one or more specific areas. We have seen a substantial increase in the number of people seeking asylum in this country. There has been a growth in tension between the local population and the newcomers in certain areas. In a sense, that is hardly a cause for surprise. We must bear in mind that people like to live in settled communities. It is easy, if one does not live in a disrupted community, to urge fortitude and a philosophic approach on people less fortunate. We must strike a humane, civilised balance between the legitimate needs of those who come to our shores, whether or not they are likely to be found to be genuine applicants, and the legitimate requirements of people who live in various communities.

As we all know in London and the south-east, some people in some parts of the United Kingdom have had to bear a disproportionate burden—I use that phrase deliberately. That helps no one. Indeed, it disturbs and disadvantages a large number of people. There is no one in this House who would do other than condemn racist, xenophobic propaganda. One way of dealing with that is to set our face firmly against it. Another important way of dealing with it is to establish considered dispersal to parts of the country better able to cope.

I hope that does not sound harsh. I believe it to be a civilised approach to a problem which is intractable. We sometimes get sudden influxes or over-concentrations of asylum seekers. Noble Lords on the Liberal Democrat Benches have frequently pointed out the causes for that. The noble Earl, Lord Russell, has indicated quite rightly that if there is a disturbance, let us say, in middle or eastern Europe, one is likely to see a sudden influx of people fleeing those parts of the world; the same can be said of parts of Africa.

We are therefore planning dispersal arrangements under Part VI, with which we have already dealt. In the short term, some asylum seekers who may congregate in specific areas may still be on social security benefit. We want to have this power available. We do not envisage using the power on a routine basis, but only to relieve extreme pressures on specific areas in extreme circumstances.

I turn now to the second element of the amendment; it is not about the use of detention or the regime proposed at Oakington. The point of the amendment is to give greater flexibility in the use of temporary admission. We would then be able to develop reception facilities at which those given temporary admission were required to reside, but were free to come and go during the day if they wished. I return to the question of the noble Lord, Lord Goodhart. That is an important sanction against absconding. It is not 24-hour detention; it is an intermediate stage which your Lordships—I say this respectfully—ought to welcome and not criticise.

We want to be able to ensure that applicants remain at the accommodation overnight—again, I say this without any doubt that it is a proper thing to say—and to be able to say to them, "We require you to be present at this designated accommodation at certain times because that is when your interviews will occur". There is nothing wrong with that. In fact, it is a sensible way to behave. One must apply proportionality in more than one way.

Lord Avebury

My Lords, if the condition of temporary admission is that a person will attend an interview when required by the Immigration and Nationality Directorate, and he is in breach of that condition, sanctions can be brought to bear against him. He could be detained. A person therefore has every incentive to comply with the request to attend an immigration interview without the power in the Bill.

Lord Williams of Mostyn

My Lords, I disagree. Of course, he has an incentive to attend; but he also has an incentive to abscond. We are simply introducing perfectly measured provisions to deal with those circumstances.

Lord Clinton-Davis

My Lords, does not that have to be matched by the availability of access to those who would advise such persons if advice were sought? If the availability of access is extremely limited, that is a serious matter.

Lord Williams of Mostyn

My Lords, not for the first time I entirely agree with what my noble friend says. We are intending to make suitable provision for legal advice to be available. I am dealing particularly with Oakington. The noble Lord, Lord Avebury, was good enough to acknowledge that we are already discussing with the Refugee Council and others the nature of the provision to be made. But I must stress that we are talking about relatively short periods of time and we want to do our best to achieve this proportionate balance.

So, I repeat, residence is for a short time. We are trying to develop—I have no difficulty in putting this proposal forward—a wider menu of options which rely less on detention and which permit, in appropriate cases, the grant of temporary admission, albeit sometimes with restrictions. In that way we have more flexible powers to impose residence conditions on temporary admission which ought to be of practical help in terms of fairer, faster and firmer control. That is the point and purpose of the amendment and I do not apologise for taking a few moments to develop that theme.

We need to go forward by way of a power to make regulations. One of the aspects of our common failure—this is not a party political point; no government have been able to deal with this aspect satisfactorily—is that legislation has been too inflexible and has not been able to deal with changing events and changing pressures; we cannot respond quickly enough. We want to have a flexible system and these amendments contribute to that objective. However, under the Human Rights Act 1998, any regulations will have to comply with convention rights. They would authorise the imposition of additional descriptions of conditions only so far as that could be justified.

I want to spend a few moments on the Select Committee. The committee was quite rightly concerned that there should be some limitations on the scope of the power. We have tried to take that on board by the redrafting. The key point was to adopt the recommendation that the regulation should be made subject to the affirmative procedure. Parliament will have to be satisfied that, whenever the powers are to be used, they are proportionate and necessary to achieve the stated objective.

I promised to deal with ECHR compatibility. We have given further consideration to the earlier recommendation of the Select Committee in relation to the use of ECHR compatibility statements for secondary legislation. We thought about it quite carefully, not least because we had the benefit either of contributions from your Lordships in the Chamber or informed discussions in correspondence and in meetings. Therefore, I am pleased to be able to tell the House that I give the undertaking that, when moving regulations which are subject to the affirmative procedure, Ministers will always inform the House whether they are satisfied that the instrument is compatible with convention rights.

I can say from my own personal experience that that is not something which is done lightly. Indeed, when one signs the certificate, one bears in mind the fact that there is quite a body of informed expertise in this House which is likely to challenge any such certificate if it is wrongly given. That is an extremely important discipline for all departments and all Ministers to be aware of—and I have given this undertaking in unambiguous terms. I do not think that even a lawyer could wriggle out of such an undertaking. I hope that your Lordships will recognise that, even if we do not deliver perfect satisfaction on every occasion, we have listened to the points raised and considered the recommendations of the Select Committee with very great care. Again, I have to say that I believe it was of benefit to all of us that we withdrew from the detailed investigation of some of these points on the proposal that was clearly agreed to by my noble and learned friend Lord Falconer. It was the better way to proceed and has given us all the opportunity for reflection.

I want to go further and adopt the same approach for secondary legislation, subject to the negative resolution procedure, if it amends primary legislation. That will apply to regulations made under all legislation, not just those made under this Bill. I think your Lordships will stand amazed at my moderation. This is a very important step forward. Perhaps I may spend a few moments on the Human Rights Act. When it was introduced, I believe we all thought that it was a landmark piece of legislation intended to be a curb on executive power, especially when it has a tendency to be arbitrary. This is an ample first, or early, demonstration of the continuing power of that great statute.

I turn now to Amendments Nos. 80 to 83, which are amendments to government Amendment No. 79. I have already tried to explain the drafting of the provision of our amendment and I believe I touched on the issues raised by Amendments Nos. 80 to 83. Amendment No. 80 seeks to take out the provision for regulations to prohibit a person being absent from accommodation, except in accordance with restrictions imposed on him. We must have the ability to impose restrictions, such as being present every night. I dealt with this matter in response to the noble Lord, Lord Goodhart, and do not believe that requirement to be onerous. The person has to be present each night, or on particular days, for the purpose of interview. There would not be a significant purpose in requiring residence without that condition.

I promised to return to Amendment No. 81 and do so now because this is the context in which the question was raised by a number of noble Lords, especially the noble Lord, Lord Avebury. The amendment states that a requirement to reside can be imposed only once and for a maximum of 10 days. However, we know perfectly well that some people fail in the first application and then return to try again. In those circumstances, we ought to be able to require further residence at accommodation provided by the Secretary of State if that seems appropriate. It may well be reasonable to require residence for periods longer than 10 days, bearing in mind always the fact that we are talking about temporary admission.

4.15 p.m.

Lord Avebury

My Lords, the noble and learned Lord can extend the 10-day limit on any one occasion. If he has in mind the situation where a person has made an application which fails, has then gone back abroad and ultimately returned to put in a second application, surely the Secretary of State would want the power to put that person back into Oakington for a second time. Let us suppose, then, that we said that the detention should be for a maximum of 10 days on any one occasion.

Lord Williams of Mostyn

My Lords, that could be done if the amendment were differently drafted. However, that is not the case and I am dealing with the amendment as presently drafted.

As I said, we paid careful attention to the recommendations of the Select Committee. We wondered whether we could go further by including a reference to "reasonably necessary", along the lines set out in Amendment No. 82. However, we thought that that would not, in practice, limit the power any further; indeed, that is already achieved by the limitations on secondary legislation. I repeat: these regulations would have to be convention compliant.

I shall conclude by dealing with a number of particular questions which were raised. Most of the pressure recently—certainly in the past months of this year—has been in the South East. Oakington is reasonably convenient in South East terms. If there had been other suitable premises available, we should of course have considered them.

The noble Lord, Lord Cope, and other noble Lords, asked about safeguards. I believe that part of the safeguards lie in the affirmative resolution procedure and the certifying procedure, which I hope I did not refer to at too great a length.

In answer to the noble Lord, Lord Goodhart, I need to reaffirm the difference conceptually, as I see it, between imprisonment detention and the much lighter regime that we are now discussing. As I said earlier, breach of conditions will be an offence; indeed, that was a proposition put forward by one of your Lordships. There will be no security in Section 4 accommodation: there will be no guards or any power to use force to keep people there. I say again—I think, reasonably—that that is not detention in the sense that many of your Lordships have criticised in the past. I have in mind, for example, the conditions at Campsfield House.

As regards location, I can simply say that Oakington is the best option that has been identified. We have not consulted outside organisations about the choice of location. We have had general discussions about the setting up of such a facility. The RLC and the Refugee Council were involved in those discussions. So, in response to the particular question from the noble Earl, Lord Sandwich, I can tell him that that is the nature of the consultation which took place. The answer is yes about the idea, but, as I understand it, not specifically about Oakington.

I hope that I have been able to satisfy your Lordships. I recognise that I have take a little time to do so, but this is too important a topic and group of thoughts and amendments to skate over. I trust that I have been able to satisfy my noble friend Lord Clinton-Davis, in particular as regards his concerns about convention compliance.

Lord Cope of Berkeley

My Lords, is the Minister aware that he has given a most coherent explanation of the purposes of, and the need for, these powers? I hope that the Home Office will be able to stick to the procedures that he has outlined in the use of those powers. Is the noble and learned Lord also aware that I am grateful to him for accepting the affirmative powers, as suggested earlier, and for outlining the human rights points? I am not quite sure that the name he gave to this facility of "Section 4 accommodation" has a very happy ring about, but no doubt it will do to be going on with.

Lord Williams of Mostyn

My Lords, I am grateful to the noble Lord for his extremely generous approach. I can only repeat that I think we were wise to take note of the feeling of the House that some aspects might not have been sufficiently thought through and to decide that it was better to reserve our thoughts and considerations for Third Reading.

Lord Avebury

My Lords, will the Minister kindly deal with Amendment No. 83, which proposes to substitute the word "must" for "may"? I believe I am right in saying that that was the one amendment which the noble and learned Lord did not address directly in his response.

Lord Williams of Mostyn

My Lords, one is back to the usual answer that I know the noble Lord has found unsatisfactory on previous occasions. We believe that this formulation is a better one, rather than using the softer phraseology suggested by the word "may". We have had this debate on a number of previous occasions. I cannot give an answer that will be more satisfactory to the noble Lord than those I have given in the past.

Lord Dholakia

My Lords, perhaps I may just put a question to the Minister. I am sorry that it comes towards the end of the debate. I believe that the noble and learned Lord accepts that there has been a considerable amount of confusion as regards the word "detention". However, now that he has explained precisely what it means, perhaps he can answer this question. The noble and learned Lord placed considerable emphasis on people absconding, yet he explained a very liberal regime—

Lord Carter

M y Lords, we are at the Third Reading stage of the Bill. The only noble Lord who should speak after the Minister is the mover of the amendment, unless short and factual questions arise. I would ask noble Lords not to make speeches.

Lord Dholakia

My Lords, I put a factual question to the Minister. What rights exist within the provisions of the Bill to challenge what we call the "detention" of people at the Oakington centre?

Lord Williams of Mostyn

My Lords, the same rights as presently exist in the 1971 Immigration Act. But I stress that we are talking about two different situations. One of them concerns short-term accommodation for seven days or so. I do not think that it is illiberal to say that we want to provide a regime which is speedy, efficient and fair. To deliver our promise—which is a moral obligation to quite a large number of people: to those who are not genuine asylum seekers as well as to those who are and to people who live in this country and fund all of these systems—I say with great respect to the noble Lord, Lord Dholakia, that it is not unreasonable to say that for a short period of time there will be some limitation on people's freedom of movement while we assess their claims. He and I may disagree fundamentally on that, but I doubt it.

Lord Phillips of Sudbury

My Lords, when the noble and learned Lord the Attorney-General said that there would be no force exercisable to prevent someone leaving one of the intermediate institutions, is that because if such an attempt were made by someone, the powers of detention could then be invoked to keep them there?

Lord Williams of Mostyn

My Lords, as I said earlier—I am sorry to displease the noble Lord, Lord Cope, by using this awful shorthand again—Clause 4 accommodation does not comprise detention. It is a requirement to reside, subject to restrictions of the kind that I mentioned. However, if there is a breach of conditions, an offence is committed. I think that is a better way of dealing with the situation than having security or guards or making use of force to keep people there.

Lord Avebury

My Lords, I am afraid that I can give only qualified thanks to the noble and learned Lord for what he said in reply to this group of amendments. First, I thank him for the assurances that he has given on the incorporation of a compatibility statement in secondary legislation, which I think is an important statement of government policy not just for this Bill but for all future legislation. However, it does not help us with these amendments. With respect, I believe that first the noble and learned Lord tried to pull the wool over our eyes by pretending that what we are discussing today are the dispersal provisions rather than the semi-detention provisions which we have in relation to Oakington.

Everyone recognises that there is a problem in certain places in the south-east. We all know that the London boroughs have suffered a tremendous burden on their resources in trying to cope with large numbers of asylum applicants. However, I was under the impression—there have been several newspaper reports on this recently—that as regards the voluntary arrangements which have been made by the London boroughs and those which have been principally concerned with dealing with large numbers of asylum applicants, there has already been a dispersal to other areas of the country which is working successfully. However, nothing has been said about that. The Minister did not volunteer any information about the extent to which the London boroughs, for instance, have been able, through voluntary arrangements made through the LGA, to persuade other local authorities to take on a fair share of the burden. I believe that that is already well under way and that perhaps the powers in Clause 4 would not have been needed if we had gone down that voluntary route.

However, that is an entirely separate issue from the question of whether or not you force people to reside in a place such as Oakington, and whether in doing so you label them—as I believe we are—as people whose claims are manifestly ill founded. The Minister did not quite go so far as to say that anyone who is put in Oakington is a bogus asylum seeker, but that is how they will be seen. If they are directed to that centre and their claims are disposed of within a week, obviously the implication is that they had to go there because there was no particular merit in their claim which could have justified their being allowed access to proper legal advice in a centre such as London.

With respect, I did not think that the Minister gave a satisfactory answer to my questions about how such people were to be able to access legal advice. If I am correct—the Minister can correct me if I am wrong—the arrangements at Oakington will come into effect on 1st January 2000. The consultations with the RLC and, for all I know, other organisations, are still only at the first stages. As I said, the RLC has told me that the task of providing the resources for legal advice in Oakington will be formidable. I mentioned that it has sent me a map which shows that there are only two qualified centres of legal excellence within the Cambridgeshire area which could give the residents of Oakington proper advice. I do not believe that that system can come into operation by 1st January 2000 and that the people who will be sent to Oakington will therefore have proper access to legal advice in the first phase of the scheme.

Whatever the Minister may say, the European human rights convention states that people who are detained—I know that he said that what we are discussing is not detention—must have both scrutiny and review of their cases. I am not sure whether the European Court would take the view that the Minister has expounded; namely, that this is not detention. At one point he said that Oakington used existing detention powers. How can it use existing detention powers if putting someone in Oakington is not detention? It sounds very like detention to me.

In spite of the Minister's assurances that people will be free to come and go during the day—which is a repetition of what the noble and learned Lord, Lord Falconer, said on a previous occasion—the fact is that the powers that we are granting to the Secretary of State go way beyond that. They would allow the Secretary of State to provide that no one can stir hand or foot outside Oakington except if they have a special grant of permission from the Secretary of State to visit the doctor or to seek legal advice in Cambridge. We are giving a blank cheque to require that someone stay in this place which is miles from anywhere. I do not even know what the public transport provision is like and I am sure that the Minister could not tell us that. I have not the faintest idea how anyone gets from Oakington into Cambridge if it is necessary to do so for any purpose, whether legal, medical or so on.

As my noble friend Lady Williams said, this is not compatible with what has been said about dispersal on previous occasions; namely, that asylum seekers who are sent away from London will be put in places where they can access services and where proper support facilities exist for people in their ethnic or linguistic groups. I know that we shall not win this argument at this stage. Between now and when Amendments Nos. 80 and 83 are put to your Lordships I shall consider whether to press them to a Division. In the meantime, I beg leave to withdraw Amendment No. 1.

Amendment, by leave, withdrawn.

[Amendment No. 2 not moved.]

Clause 5 [Charges]:

Lord Cope of Berkeley

had given notice of his intention to move Amendment No. 3: Page 4, line 16, leave out from ("which") to ("has") in line 17 The noble Lord said: My Lords, Amendment No. 3 was intended to clarify a point that was conceded earlier; namely, that no fee will be payable if asylum is refused. However, I realised a few minutes ago that the amendment as printed does not achieve that objective.

I shall therefore not move it.

[Amendment No. 3 not moved.

4.30 p.m.

The Parliamentary Under-Secretary of State, Home Office (Lord Bassam of Brighton) moved Amendment No. 4: After Clause 7, insert the following new clause—



(" . In the 1971 Act, after section 8A, insert— Persons excluded from the United Kingdom under international obligations.

8B.—(1) An excluded person must be refused—

  1. (a) leave to enter the United Kingdom;
  2. (b) leave to remain in the United Kingdom.

(2) A person's leave to enter or remain in the United Kingdom is cancelled on his becoming an excluded person.

(3) A person's exemption from the provisions of this Act as a result of section 8(1), (2) or (3) ceases on his becoming an excluded person.

(4) "Excluded person" means a person—

  1. (a) named by or under, or
  2. (b) of a description specified in, a designated instrument.

(5) The Secretary of State may by order designate an instrument if it is a resolution of the Security Council of the United Nations or an instrument made by the Council of the European Union and it—

  1. (a) requires that a person is not to be admitted to the United Kingdom (however that requirement is expressed); or
  2. (b) recommends that a person should not be admitted to the United Kingdom (however that recommendation is expressed).

(6) Subsections (1) to (3) are subject to such exceptions (if any) as may be specified in the order designating the instrument in question.

(7) An order under this section must be made by statutory instrument.

(8) Such a statutory instrument shall be laid before Parliament without delay."").

The noble Lord said: My Lords, I rise to speak again to this amendment which was originally tabled on Report and which concerns persons to be excluded from the United Kingdom under our international obligations. During the previous discussion of this amendment, the question was raised of whether the United Kingdom had ever been censured for admitting someone subject to a travel ban that was binding on the United Kingdom. I am pleased to confirm to the House that there is no record of any such occurrence.

During the previous discussion, the noble Lord, Lord Avebury, also asked whether the application of the new clause should be extended to cover travel bans imposed by the Commonwealth. I have given this matter careful consideration. However, the Commonwealth does not take decisions which give rise to binding legal commitments. The Government do not believe, therefore, that it is necessary to include in the new clause a reference to the Commonwealth.

Having looked again at the amendment, we realise that it also requires a minor amendment to ensure that internationally-binding travel restrictions are framed in terms of defined categories of person rather than named individuals, which are also covered by the provisions of the new clause. For example, UN Security Council Resolution 1054, adopted in 1996, requires states to take measures to restrict the entry into their territory of members and officials of the Sudanese Government and members of the Sudanese armed forces. The amendment now takes account of this requirement.

As I explained on Report, the effect of Amendment No. 4 is to insert a new Section 8B into the 1971 Immigration Act. This will provide that certain people who are subject to an EU or UN travel ban have to be refused leave to enter or remain in the United Kingdom. In addition, where a person has leave to enter or remain in the United Kingdom, this leave will be cancelled upon his or her becoming an excluded person. Subsection (4) of the new clause defines an "excluded person" as a person named by or under a designated instrument, or of a category described in a designated instrument.

For the purposes of the clause, the Secretary of State may by order designate an instrument if it is a resolution of the UN Security Council or an instrument made by the Council of the European Union which requires or recommends that the United Kingdom does not or should not admit a person or category of person, however that requirement or recommendation is expressed.

At Report stage, great concern was also expressed about the implementation of travel bans and the great effort that needs to be made to ensure that only individuals who are the intended target of such bans are inconvenienced. I fully understand the concerns and take this opportunity to reassure the House that, in implementing travel bans, officials take great care to ensure that this result is achieved. With far from adequate information being available in respect of some persons, this is often difficult. However, we are determined to ensure that everything possible is done to minimise the possibility of errors. Equally, where there is a possibility that someone wanted in connection with, for example, war crimes might be apprehended, we believe that we should make every effort to ensure the full and proper implementation of our international commitments. I commend the amendment to the House.

Lord Avebury

My Lords, I am grateful to the Minister for writing to me after the previous debate. However, I still have some anxieties.

The provision regarding categories does not wholly alleviate the anxieties I expressed in relation to what happened over UN Security Council Resolution 1132. That plainly applied to travel restrictions on members of the Sierra Leone junta.

The power to impose the restrictions was delegated to a sanctions committee. The committee promulgated a list, which was an exact replica of suggestions made to it by the president of Sierra Leone, President Kabbah, and contained the names of many of his political opponents. When that list was enforced without the knowledge of those named on it—the list was never published—they were subject to travel restrictions in the United Kingdom. It could then have been said that they were part of the category of "named persons" because everybody thought that the persons on the list were members of the Sierra Leone junta despite the fact that many of them were not and the government subsequently agreed that they had been wrongly included in the list.

If we automatically impose travel bans, provided for in the UN resolution, the details of which may be delegated to a subsidiary body which may act at the behest of a government who are ill disposed towards some of its citizens, we are in danger of committing some injustices.

Even in the Sudanese example that the Minister gave in respect of UN Security Council Resolution 1054, is there not a list of members of the Sudanese Government to whom such restrictions apply? How do we know who the members of the Sudanese Government are? How do we know that, in a similar fashion, a list containing the names of individuals who have nothing to do with the NIF regime will not be supplied to immigration officers? I therefore believe that we need certain further safeguards before we allow this provision to take its place on the statute book.

Lord Bassam of Brighton

My Lords, I hear what the noble Lord, Lord Avebury, says. I thought that I had made clear in my response that we felt that we had taken significant cognisance of the points he made at an earlier stage. We believe that we have to approach this matter from the perspective of giving effect to our international obligations. If we are in that position, I believe that we must go along with other UN member states and that we are obliged to exclude. However, we shall take great care in negotiations to ensure that our obligations are appropriate. It is the question of appropriateness on which we must focus our attention.

With the caveats that we have put into place, with the assurance that we shall treat these matters with great care and with the assurance that we shall clearly monitor the situation and continue to keep it under very careful review in ensuring that the legislation is put in place, I invite your Lordships to support this amendment.

Lord Hylton

My Lords, before the noble Lord sits down, can he reassure me about the point I raised at the last stage of this Bill; namely, that when lists are drawn up, they will be published in this country so that everybody may know what the position is?

Lord Bassam of Brighton

My Lords, the noble Lord again raises a very important and valuable point. I can give an assurance that, whenever possible, we will do that. I am quite happy to give that undertaking to the House.

On Question, amendment agreed to.

Clause 8 [Treatment of certain overstayers]:

Lord Phillips of Sudbury moved Amendment No. 5: Page 5, leave out lines 22 and 23 and insert ("not less than three years after the coming into force of this Act.").

The noble Lord said: My Lords, in moving this amendment, I shall speak also to Amendments Nos. 6 and 7. We on these Benches persevere with this set of amendments because many lawyers and voluntary organisations in the area are pressing us so to do. I believe there is an important point of principle to he considered here. The principle is that Parliament should remove or diminish an existing right of appeal only in exceptional circumstances. We do not believe that there are exceptional circumstances warranting the provisions in this case.

When we debated comparable amendments on 18th October, I endeavoured to explain, at col. 763 of Hansard, the history of the right of overstayers to appeal. I do not propose to repeat that. We believe that the structure of the Bill is broadly sound, subject to the points we are discussing tonight. These ensure that, from the coming into force of the Bill, the new time-limited, one-stop appeal system will prevail and will achieve the Government's purposes.

However, the amendment refers to a group of finite individuals who are already here. There is no need for the reduction in their right to appeal under the existing law. That is why we suggest two particular amendments: one amendment to extend the appeal period to three years; and the other to give a right of appeal outside the three-year period where there is "reasonable excuse". That is the language that the Government utilise in Clause 73(3)(b) of the Bill.

When this matter was last debated, the noble Lord, Lord Bassam of Brighton, responded to these concerns by saying that the Government and the officials concerned are getting to grips with the problems. We do not disagree that there are major problems; equally, we are quite sure that the Government and the officials are getting to grips with them. We support those efforts. But that does not address the fact that many individuals will be unjustly dealt with if this clause goes through.

The noble Lord, Lord Bassam, said that there will not really be a problem because there will be considerable advertising of the new arrangements and the new regularisation period. He said that, we intend to use extensively the ethnic minority press. Given the level of interest in the Bill and these particular clauses, I have little doubt that much attention will be drawn to the matter in the press generally".—[Official Report, 18/10/99; col. 765.] That may be right; it may be wrong. But justice must be done in small as well as in large particulars. There is no doubt that many of those who will be unfairly dealt with by these provisions will not see the ethnic minority press. Many have been here for years and will no longer be taking ethnic minority papers, having moved to parts of the United Kingdom where such papers are not available. Advertising in the ethnic minority press is not an answer. That is why we ask the Government to extend the period for appeal and include a reasonable excuse provision.

Perhaps I may read a letter I received this morning from the chief executive of the Immigration Advisory Service on this very point. He said: Only recently, a Turkish family came to see me who had applied for an extension of their leave, had placed their affairs in the hands of someone claiming to be a solicitor, had paid £3,000 on the assurance that their status would be regularised and had discovered that they were overstayers only when the pretended solicitor died—they have still not been able to reclaim their passports and other documents. They are typical— that is the word he uses—and this is the Government's own service— of many persons who come to us who have remained in this country leading economically and socially active lives in the belief that their affairs are in order or are being rendered so but for whom, under the Bill as drafted by the Government, will lose any right of appeal against removal—however long they have been in the UK. Redressing this wrong is not favouring queue-jumpers or illegal entrants but maintaining a route for justice for those who have entered legally but then overstayed, as has been preserved by both previous Governments".

That puts the matter rather well.

There is an important principle here. The issue should not be dealt with by publicity because the information will not reach all the people concerned. The amendments would not give rise to additional cases because they deal with a finite group. They would not give rise to extra administration because the same number of appeals are in prospect either way—indeed, they might actually improve the situation and help officials by spreading appeals. They would involve no extra public expense; they would lead to a just, fair and proportionate response to the difficulty faced; and they would be a great improvement to the legislation. I beg to move.

Lord Dholakia

My Lords, I support the amendments spoken to by my noble friend Lord Phillips of Sudbury, in particular, Amendment No. 7.

My main concern relates to a particular group of people for whom provision should be made with regard to appeals, particularly in cases where those concerned were not aware of their status in this country. For example, youngsters who came here with their parents and whose parents left the country would not know their legal status in this country. They would assume that they were here legally. They would only find out at a later date that they had been overstayers for many years. They would not have had any reason to believe that the publicity about a regularisation period applied to them.

I have been in correspondence with the Home Office about the case of Ben James. He came to this country at a very early age. Now, after about 17 or 18 years—during which time he has been contributing as a businessman in this country—he is subject to deportation because he overstayed here, not realising his status. The amendments suggested by my noble friend Lord Phillips of Sudbury would enable him to have a reasonable excuse. That fact should then be taken into account by the Secretary of State when considering the right of appeal.

4.45 p.m.

Lord Williams of Mostyn

My Lords, I am grateful for the explanation of the amendments given by the noble Lord, Lord Phillips of Sudbury. Perhaps it will assist if I indicate what we have in mind for Clauses 8 and 9. The regularisation period in Clause 8 will end on a prescribed day or the day before Clause 62 comes into force, whichever is the later. Clause 9 comes into force the day after the regularisation period ends; that is to say, either the day after the prescribed day or when Clause 62 comes into force. We are aiming to bring Clause 62 into force when the Human Rights Act comes into force, so the earliest that Clause 9 can come into force is on the same day as the Human Rights Act. We have arrived at the conclusion the noble Lord, Lord Phillips, seeks, but by a different route. I hope that that is sufficient to satisfy the noble Lord on that aspect.

I cannot accept Amendment No. 5. The period would end. not less than three years after the coming into force of this Act". But the various provisions of the Bill come into force in instalments. Some—for instance, those listed in Clause 169—come into force on Royal Assent; others, on such day as the Secretary of State may by order appoint", and, different days may be appointed for different purposes". The amendment would not produce any clarity. It simply is not workable.

The greatest difficulty is that Amendments Nos. 5 and 6 together would allow the regularisation period to continue beyond the point at which the new administrative removal powers in Clause 9 come into force. So if someone was identified as an overstayer and removal directions were given, the person concerned would be able, quite legally, to make an application for leave to remain under Clause 8, and the whole process would grind to a halt. There would be no requirement to apply before a particular date. Indeed, it can be seen that there would be every incentive not to do so.

Amendment No. 7 would extend the protection from removal under Clause 9 powers enjoyed by those who have applied under Clause 8, to include not only those who have applied but those who might have applied but had a reasonable excuse for not doing so. Even if the Secretary of State concluded that the person concerned did not have a reasonable excuse for failing to apply, the person will still not be able to be removed under Clause 9 because the amendment gives a further right of appeal to an adjudicator against the decision that he did not have a reasonable excuse.

I hope my explanation that commencement is to be coincident with the Human Rights Act will satisfy the noble Lord. We are back to our old friend, "endless unjustified delays." I understand the point behind his amendments but I am not able to accept them.

Lord Phillips of Sudbury

My Lords, in the circumstances, I propose to withdraw the amendment. Obviously we on these Benches are not content about the issue of reasonable excuse. I can understand the technical points raised by the noble arid learned Lord the Attorney-General. I am obliged to him for his explanation about the timing and the Human Rights Act.

Amendment, by leave, withdrawn.

[Amendment No. 6 not moved.]

Clause 9 [Removal of certain persons unlawfully in the United Kingdom]:

[Amendment No. 7 not moved.]

Clause 10 [Removal of asylum claimants under standing arrangements with member States]:

Lord Goodhart moved Amendment No. 8: Page 6, line 31, at end insert— ("( ) Subsection (1) above shall not apply when the Member State limits in any way the definition of a refugee in Article 1(A) of the Refugee Convention.").

The noble Lord said: My Lords, on Report we on these Benches moved an amendment to leave out what is now Clause 10. We withdrew the amendment because we agreed to wait and see whether anything would emerge from the special council at Tampere to render the amendment obsolete. It soon became apparent that nothing relevant had materialised at Tampere. However, although we have returned to the battle, we are now moving a more limited amendment.

On Report I explained at length the background to our concerns. I shall not do so again, but merely deal with our position in summary fashion. Article 1 of the Geneva Convention on Refugees, to which the United Kingdom and all other European Union states are parties, defines a refugee as, any person who é owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable, or, owing to such fear, is unwilling to avail himself of the protection of that country".

There is unfortunately a difference of interpretation of this definition among the member states of the European Union. France and Germany say that the convention applies only if persecution is by the state itself or with the complicity of the state. United Kingdom law, as laid down in a landmark decision of the Court of Appeal in July, has said that it is sufficient if the persecution is by a non-state group and the state is unable to prevent it, although I recognise that that appeal decision is itself subject to appeal to the House of Lords. Thus, under the decision of the Court of Appeal, people can be refugees if, for example, they fear persecution by the Tamil Tigers in Sri Lanka or by Islamic militants in Algeria, and the governments of Sri Lanka or Algeria are unable to protect them from that persecution.

The difference of interpretation becomes important because, under the Dublin convention, if an asylum seeker enters the European Union through one country and claims asylum in another, the latter is entitled to return the claimant to the country of first entry to have his or her claim determined by that country under its own laws. In a claim based on non-state persecution, if claimants have entered through France or Germany and we return them to that country after they have applied for asylum here in the United Kingdom, they will be refused asylum, even though the United Kingdom would have allowed that claim. That seems to me to be plainly wrong.

Under Section 2 of the Asylum and Immigration Act 1996, the Home Secretary could remove a claimant to another country only if he could, among other things, certify that the government of that country would not send the claimant to another country otherwise than in accordance with the refugee convention. On judicial review the Court of Appeal said that the Home Secretary could not give such a certificate where he was proposing to send the claimant to France or Germany, and that claimant's claim was based on non-state persecution. That was because the restrictions on the interpretation of the refugee convention in France and Germany meant that those countries might return a refugee to his country of origin.

Clause 10 would overcome this conclusion, which seemed so awkward for the Government. It does so by saying that a European member state, is to be regarded as— (b) a place from which a person will not be sent to another country otherwise than in accordance with the Refugee Convention".

So there is no discretion on the Home Secretary, no certificate for him to sign, and nothing upon which judicial review could bite. The courts are simply required to accept as true something which the Court of Appeal has already decided is not true. That seems to us to be a wholly improper form of legislation.

If the Court of Appeal's interpretation of the refugee convention is right, this clause will involve potential future breaches of United Kingdom obligations under the refugee convention. It is true that the claimant will be able to apply to a court for a declaration under Clause 62 of the Bill, that his or her deportation would be in breach of his or her rights under the Human Rights Act. However, those rights are not as extensive as those outlined in the refugee convention. The Human Rights Act might well regard the threat of a return to the country of origin as a breach of a right to life under Article 3, if that return would create a serious risk to the claimant's life. It is much less likely to be a breach of the Human Rights Act if there is persecution short of the serious threat of death. The right of asylum itself is not a convention right under the Human Rights Act.

For that reason, if one looks back to the situation in the 1930s, one might say that the refugee convention, had it then been in force, would have given Jews the right of asylum in this country if they came from Germany. However, the Human Rights Act would not have done so until they reached a stage considerably later, when it became apparent that it was not only their careers and their property that were under threat, but their very lives.

In the debate on Report the noble and learned Lord, Lord Falconer of Thoroton, said that France and Germany were highly advanced democracies with independent courts and distinguished advocates. So they are. He then went on to say that it was natural that different courts would reach different interpretations of the convention. That is also true. He therefore implied—I hope that the noble and learned Lord will not feel that I am being unfair to him—that differences of interpretation are not of crucial importance; that one interpretation is as valid as another; and that there is therefore no reason why we should not return claimants to France or Germany. He said that France and Germany, even when they refuse asylum in a non-state persecution case, can offer alternative forms of protection. That may well be true. However, if that is the case, the Home Secretary could, under the existing law, properly give a certificate in most, if not all, non-state persecution cases.

However, we cannot support this legislation because it removes any need at all for a certificate from the Home Secretary. The legislation will enable the Home Secretary to act, as we see it, in breach of the refugee convention, as interpreted by our courts, without any form of redress.

This amendment is limited in its effect. It simply excludes Clause 10 from operating where a member state interprets the refugee convention in a more limited way than we do. In that case, the Home Secretary would simply have to fall back on Clause 11, which is basically the old law restated. We believe that the amendment deserves support. I beg to move.

Baroness Williams of Crosby

My Lords, I cannot argue the legal case as has my noble friend Lord Goodhart, and I shall not attempt to do so. However, I should like to bring to the attention of the noble and learned Lord developments that may very much affect the way in which Clause 10 operates. I fully appreciate the point made frequently by the Government Front Bench that other EU fellow states are indeed advanced democracies, as my noble friend has said.

I shall not advance the legal arguments because my noble friend Lord Goodhart has done that most effectively. However, I have one concern in that we are well aware that at Tampere the first steps were taken towards what is likely to be a common asylum and immigration policy. We recognise that the Home Secretary has already indicated that he is prepared to move in that direction, in line with other EU member states. One of the characteristics of such a common policy, as set out in the Tampere summit statement, is that there would be common standards of treatment of refugees and asylum seekers under the refugee convention. That is the point at which my noble friend's distinction between the interpretation of the refugee convention by our own courts and those of other EU courts becomes of significant importance.

I should like to adduce two examples which come very much to mind. First, we have seen a considerable extension of the use of paramilitaries, although responsibility for them is denied by the state under which they appear to operate. A recent example is the denial by the Indonesian Government of any responsibility whatever for what were known as the militias in East Timor. The noble and learned Lord will remember that on many occasions from the Front Bench opposite it was indicated by the Government before there was an intervention in East Timor that they had the difficulty of getting the Indonesian Government to accept any responsibility for the behaviour of the militia and for the fact that they appeared to have access to extremely modern arms.

Paramilitaries have also been used in other states. They have been used in E1 Salvador, Guatemala and several others. In almost every case the government concerned have denied any responsibility for them. One has here a grey area which would certainly put anyone "refouled", for example, to East Timor a couple of months ago in very considerable danger. It is not plain that under Clause 10 that could not happen if they were returned to a country that does not recognise non-state persecution.

The final issue I want to raise concerns the combination of the move towards a common asylum and immigration policy with the enlargement of the European Union. The enlargement of the European Union has among the first group of countries intending to join in the near future the Czech Re public and, in the second group, Romania. In both cases reports are coming out of the treatment of Roma which amounts to extreme persecution. In some cases it is recognised by the state and in other cases it is denied by the state but is conducted by local authorities.

Indeed, I understand from a discussion I had only two days ago that the position of Roma in certain east European and central European states is becoming completely intolerable. They are being persecuted, driven out of the towns in which they live, told that they cannot have any work, told that they cannot send their children to school, and so on. Therefore, in considering a common asylum policy, it is important that the United Kingdom upholds the general principle that refugees should not be "refouled" to a country in which their lives and the lives of their families might be in danger or in which there would be very serious persecution.

It may be that the noble and learned Lord or his colleague will be able to say a little more about that. It is one of the reasons why we have been quite tedious about this clause. We recognise that it could be a building block for a future European common asylum and immigration policy.

5 p.m.

Earl Russell

My Lords, I should like to help to clarify the situation by giving an example of the concept of non-state persecution. It comes from our own territory. I say this without wishing to make the least criticism of the actions of Her Majesty's Government in this context. It concerns those two teenagers who were expelled from the town of Dungannon on the instructions of the IRA. Two masked men visited their parish priest and told him that for the teenagers' own safety they should leave Northern Ireland immediately. One might perhaps think that those words gave them a well founded fear of persecution. They were, by reason of such fear, unwilling to avail themselves of the protection of the British Government, which I am sure would have been extended to them to the limits of the British Government's power in the town of Dungannon—that limit being a real one. Under the circumstances, they chose to leave. In most countries that should have given them a claim to refugee status under the UN convention. But had they made that claim in France or Germany, because France and Germany do not recognise the concept of non-state persecution, they would have been severely at risk of finding themselves shipped back, if not directly to Dungannon then a t least to Belfast. In circumstances such as those, lives may very well be at risk.

The point at issue has applied in the past, particularly clearly to Somalia. For a while Somalia has been an area where in effect there is no state. Departments of strategic studies, including the one in which my son was recently a student, used Somalia as a classic illustration of the state of war in which there was no state. Therefore, if one applies the French and German interpretation of the UN convention, no one from Somalia, however great the danger to his life, can possibly be a refugee. The effects of such a doctrine are clearly unfortunate. So there are practical matters at stake in whether we return refugees to France or Germany under the safe third-country rule.

It is not the only point, either, where differences in the interpretation of the UN convention may create very serious risks to people returned to a safe third-country. The point about a safe third country is not whether it is a country with liberty, rule of law and democracy. We on these Benches would not for one moment wish to dispute what the noble and learned Lord, Lord Falconer of Thoroton, said about France and Germany in this context. The point about a safe third country is whether it is safe for that person.

During the proceedings on the Asylum and Immigration Act 1996 we heard of a case of someone who was to be returned to Belgium under the safe third-country rule but had been illegally present in Belgium because, as is common with refugees, he had achieved an illegal entry. Under Belgian practice he would therefore, for reasons directly contrary to the judgment of Lord Justice Simon Brown in the Adimi case, have been returned to Zaire, clearly at some risk to his life. In that case the Court of Appeal overrode the return to the safe third country with no criticism intended of the general safety of the third country.

There is one further question on which I should like to hear the noble and learned Lord's opinion. I refer to the interpretation by the judges of international treaties to which this country is party. Those treaties clearly have a meaning. The judges clearly have to interpret it. The question I want to ask is whether, how far, or in what circumstances Parliament can direct the judges to interpret international agreements to mean things other than they appear to the judges to mean. This is a quite delicate area of relations between Parliament and the judiciary. I am delighted that we have the noble and learned Lord the Attorney-General on the Front Bench to consider it because it is a question which is very proper to his post. I await his answer to this question with considerable curiosity.

Lord Avebury

My Lords, perhaps I may give example with regard to which I have been in correspondence with the Home Office. It concerns an Algerian who was resident in France but was convicted there of an offence of conspiracy to commit acts of terrorism—in a special court which the French have for dealing with that category of offences, criticism of which has been made by many distinguished British lawyers. This Algerian was convicted and sentenced to four years' imprisonment, at the end of which he was served with a notice of exclusion from France stating that he would commit a criminal offence if he set foot on French soil within the next 10 years. The Algerian got on a Eurostar train and arrived in Waterloo. We immediately put him in Belmarsh. He was there until I interceded on his behalf, pleading that he did not constitute a threat to the security of Great Britain and that he was not likely to commit any offence if he was released. In due course he was granted temporary admission while the authorities decided what to do with him. Under the Dublin convention, ostensibly they could have sent him back to France, but if they had done that he would have been subject to severe penalties for infringing the exclusion order which had been served on him.

The situation is not quite as clear cut as we find in the Bill. It is not always the correct thing to do to send people back to European countries simply because on the whole they have a similar attitude to ours on the process of asylum. There are particular circumstances—the question of Algerians in France is one of them—where such a very different view is taken of those people and of their right to asylum that it would not be correct or consonant with our view of human rights to send people back to those countries.

Lord Cope of Berkeley

My Lords, this is Third Reading, and we have been over this ground. I am intrigued that on this occasion noble Lords on the Liberal Democrat Benches are emphasising the differences between the United Kingdom and other EU states and are arguing in their amendment for a type of opt-out. It indicates the importance of our remaining in control of our own immigration policy. It also indicates the desirability of achieving agreement, as far as possible, between ourselves and other countries on the interpretation of treaties and immigration control generally. The debate has also shown that there will be plenty of opportunities for lawyers arising out of this legislation, although one of the Bill's purposes was supposed to be to speed up procedures and provide fewer opportunities for what the noble and learned Lord the Attorney-General referred to earlier as "lawyers wriggling". On this occasion it provides opportunity for exactly that.

Lord Williams of Mostyn

My Lords, I do not believe that the amendment achieves the effect that the noble Lord desires. The amendment seeks to exclude from the provisions of Clause 10 any member state which "limits in any way" the definition of a refugee in Article 1A. Therefore, although some of the questions and examples are of deep interest, they do not go to the point of the amendment.

As I read the amendment, it would bite only where the member state deliberately acts in breach of the convention by not accepting any aspect of the definition in Article 1A. Would a member state with a "limited" view of Article 1A be excluded from Clause 10 even in those cases to which that "limited" view was not relevant? Therefore, simply on those drafting points, I am not able to accept the amendment.

However, we have a more fundamental disagreement. A number of references have been made to the recent decision of the Court of Appeal. I shall be sparing in my observations and simply respond to the points made. As we understand the judgment, it is clear that the Court of Appeal did not necessarily find that individual applicants would fail to receive in France and Germany protection as required by the refugee convention. The court did not consider whether particular applicants might have had access to necessary protection. It was not a live issue, as my right honourable friend had agreed to consider the cases substantively. However, the court did accept that other forms of protection could satisfy the requirement in Article 33 of the convention.

My noble and learned friend Lord Falconer made comments regarding France and Germany, and I shall not repeat them. I merely point out that France, besides the 1951 convention, has territorial asylum, constitutional asylum and a specific prohibition on removal where that would be contrary to Article 3 of the European Convention on Human Rights. Germany has protective powers under both Section 53 and Section 54 of its Aliens Law. It seems to us that the amendment would allow any claimant to say that in his or her individual circumstances there was an argument on Article 1A. That takes matters back to the possibility of continuing and considerable delay and we believe that the provision would simply not be workable.

Three particular questions were raised. First, the noble Earl, Lord Russell, raised the interrelationship between international treaty obligations, the courts and Parliament. The noble Earl will find a useful review and exposition of that in the case of Factortame, which was decided judicially by this House last week. It was held that claims might be sustainable against the United Kingdom Government, as a result of the introduction—I have to say, by the previous government—of various statutory regimes relating to what has been referred to in the popular prints as quota-hopping by Spanish fishermen. So there is an interesting exposition there. It is far more learned and lengthy than your Lordships are entitled to receive from me this evening.

The noble Earl also raised the question of Somalia. My understanding is that no European Union state returns anyone routinely to Somalia. It is my understanding that France and Germany do not do so at all.

The noble Baroness asked about the Czech Republic. She knows better than I that the conditions for joining the European Union are extremely stringent. They require various, quite heavy obligations on candidate members to demonstrate that the candidate state is equipped to apply the various relevant instruments appropriately.

I take the point made by the noble Lord, Lord Cope, that we discussed this matter at some length earlier. I shall therefore turn to the government amendments. On Report, I indicated during our discussion on Clause 13 that there would be some relatively minor consequential amendments. These are those amendments.

Clauses 10 and 11 refer to Section 6 of the Asylum and Immigration Appeals Act 1993. By the time the clauses are brought into force, Section 6 will have been replaced by Clause 13 of this Bill. Clause 13 will come into force on Royal Assent. Clauses 10 and 11 will be brought into force later. Amendments Nos. 9, 10 and 11 will therefore replace the references to Section 6 with appropriate references. Clause 13 applies with retrospective effect. It will be as if Clause 13 had always applied and Section 6 had never existed. The final amendment in the group is designed to tidy up those drafting amendments. When in due course we come to the amendments, I shall seek to move them.

5.15 p.m.

Lord Goodhart

My Lords, I am grateful for the noble and learned Lord's reply. However, to reply in one sentence, I do not believe that it is proper to require, by statute, a court to assume as a fact something that may or may not be true. That is a wholly improper form of legislation. It appears to have been done, so far as we can see, merely as a device in order to obviate the possibility of a certificate from the Home Secretary being the subject of judicial review. That said, we do not believe it appropriate to press the matter to a Division. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Williams of Mostynmoved Amendment No. 9: Page 6, line 32, leave out from ("section") to ("prevents") in line 33 and insert (" 13").

On Question, amendment agreed to.

Clause 11 [Removal of asylum claimants in other circumstances]:

Lord Williams of Mostynmoved Amendments Nos. 10 and 11: Page 7, line 12, leave out from ("section") to ("prevents") in line 13 and insert (" 13"). Page 7, line 28, leave out from ("section") to ("prevents") in line 29 and insert (" 13").

On Question, amendments agreed to.

Lord Bassam of Brightonmoved Amendment No. 12: After Clause 12, insert the following new clause—


(" .—(1) Directions for, or requiring arrangements to be made for, the removal of a person from the United Kingdom may include, or be amended to include, provision for the person who is to be removed to be accompanied by an escort consisting of one or more persons specified in the directions.

(2) The Secretary of State may by regulations make further provision supplementing subsection (1).

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

  1. (a) requiring the person to whom the directions are given to provide for the return of the escort to the United Kingdom;
  2. (b) requiring him to bear such costs in connection with the escort (including, in particular, remuneration) as may be prescribed;
  3. (c) as to the cases in which the Secretary of State is to bear those costs;
  4. (d) prescribing the, kinds of expenditure which are to count in calculating the costs incurred in connection with escorts.").

The noble Lord said: My Lords, noble Lords who were present during the discussion at Report stage will be aware that when someone is removed from the United Kingdom the costs of removal are borne either by the carrying company or by the Secretary of State depending on the particular circumstances.

Although it does not happen all that frequently, occasionally the necessity arises for removals to be escorted. That may be on medical grounds, where the person being removed has a medical condition which does not in itself prevent that person from travelling but which may require treatment during travel. More often, it will be because the person being removed has behaved in a disruptive manner, or has attempted or threatened violence either to himself or others.

Most carrying companies accept that escorts are part and parcel of the removal of particular individuals. Indeed, they have duties as to the safety of their other passengers and the crew. However, some argue that the power to give directions for someone's removal is limited to the individual concerned and either refuse point blank to provide for, and pay for, escorts or try to avoid having to pay after the event.

I believe that most people would accept that, where an escort is required, it is a necessary part of the cost of removing the person concerned. As I said, many carriers already accept that that is the case. The law is clear that in certain circumstances the removal costs are to be borne by the carrier who brought the person concerned to this country. Amendment No. 12 makes clear that, where an escort is needed in order to remove someone, the removal directions extend to cover that. The amendment puts the matter beyond doubt and will ensure a consistency of approach between carriers.

The amendment also allows the Secretary of State to make regulations relating to the provision of escorts. The regulations will cover such matters as arranging for the return of the escorts to the United Kingdom and the circumstances in which, and the extent to which, the costs of the escort are payable by the carrier. They will be subject to the negative resolution procedure which the Select Committee on Delegated Powers and Deregulation has concluded is appropriate in these circumstances.

In view of some of the concerns expressed when we debated this matter on Report, I should make it clear that the need for escorts is the exception rather than the rule. If a carrier believes that an escort is not necessary in a particular case, we shall be happy to discuss it and to explain our reasons. If the carrier continues to be aggrieved, he can, as my noble and learned friend the Attorney-General said, challenge the decision by way of judicial review. But there are important considerations of safety here: the safety of the person being removed, of other passengers, and possibly even of the aircraft itself. If our honest assessment was that a particular person required an escort, it would be worse than irresponsible, if not foolish, to fail to make provision for it.

This amendment does not alter the present balance between those cases where the cost of removal falls on the carrier and those where the removal is at public expense. We propose that a carrier should pay for an escort only where he is required to pay for the removal itself. However, at the risk of stating the obvious, where someone is to be removed, there are only two possible ways in which this can be paid for: either the carrier meets the removal costs or the taxpayer must foot the bill. We provide training to carriers about the documentary requirements, but ultimately there is a risk that a particular individual will be refused entry and the carrier will be required to remove him. That is a commercial risk and I do not accept that the taxpayer should be expected to underwrite it.

Finally, in the debate on Report the noble Lord, Lord Dholakia, asked what would be the legal position of an escort if the person removed were to be summarily executed on his arrival at the airport. The noble Lord, Lord Hylton, asked whether the passenger manifest would allow someone who was being deported to be identified. Again at the risk of stating the obvious, if someone is to be hauled off and shot the moment he arrives in a particular country, we should not remove the individual to that country in the first place, with or without an escort. However, were it to happen, I do not see how the escort, or escorts, could be held in any way responsible.

The marking of passenger manifests is a matter for the carrying companies. I understand that in practice most companies denote enforced removals in some way, but not necessarily the reason for the removal. The carrier will not necessarily be aware of the reason. Although I acknowledge the risk which prompted the noble Lord, Lord Hylton, to raise this matter, the real point is that if someone would be in danger, we should not remove him or her in the first place.

The designation "enforced removal" (or whatever term the company chooses to use) on the passenger manifest may result from a range of reasons and cover all the circumstances in which someone may be removed from this country. It will cover much more than political dissidents and opponents of the regime. If they would be genuinely at risk, such people should not be on the manifest in the first place because they should not be removed. I hope that this clarification is helpful to noble Lords who asked questions earlier. I beg to move.

Lord Avebury moved, as an amendment to Amendment No. 12, Amendment No. 13: Line 6, at end insert— ("( ) If the person to whom directions are given objects to the directions, the Secretary of State may, with the agreement of that person, appoint an arbitrator who shall review the directions and make recommendations and the directions shall be amended to give effect to these recommendations.").

The noble Lord said: My Lords, I am glad to remind noble Lords that on the previous occasion when we debated this matter the noble and learned Lord, Lord Williams, said that all of the points that we then raised were reasonable. However, he did not deal with them in any detail because at that stage the clause was being withdrawn as one of those matters to be referred to the Select Committee on Delegated Powers and Deregulation. We have since heard from British Airways in particular that it knows nothing about these provisions. One takes a dim view of that, given that the Government have introduced new rules relating to charges to be imposed on carriers. Presumably, if they did not tell British Airways none of the other airlines knew either. Perhaps the noble Lord will agree when he replies that it is a little off the mark to impose important new financial burdens on airlines without taking the trouble to inform them and give them the opportunity to raise any points that they see fit.

The noble Lord is probably aware that British Airways already pays for escorts on a per diem basis although, as he implied in moving his amendment, some other airlines have challenged those arrangements. That is probably why we need this fresh legislation. British Airways says, I believe reasonably, that it should not have to bear such costs where the passenger's documentation is in order but he is refused admission for some other reason which cannot have been within its knowledge. What is the response of the Government?

The noble Lord said that only two parties could pay these costs: the airline or the Government. It is a matter of natural justice that the airline should not have to pay the costs when it has been through all the procedures suggested to it by the Government. The Minister said that the Government provided training on the requirements. One assumes, as inevitably must happen, that in particular cases the airline has followed all the recommendations of the Government but an individual with good documentation is nevertheless stopped at Heathrow and sent back. Why should the airline have to foot the bill?

British Airways is anxious about the wording of the provisions for several reasons, some of which we debated on a previous occasion. If the reason for the clause is to plug loopholes which allow some carriers to evade the obligations which BA voluntarily assumes the airlines should be told, what are those loopholes? As we noted on the previous occasion, the phrase "one or more" in relation to the escorts means that in theory a direction can specify an unnecessarily large number of escorts, and no mechanism is provided to challenge that decision. We also need to know what is meant by, such costs … as may be prescribed", given that the remuneration of escorts is already mentioned on the face of the Bill.

We need to be assured that these powers are to be used sparingly and modestly. Yet I suggest to the Minister that it would be unnecessarily cumbersome if every time an airline objected, it had to seek judicial review. The Minister referred to listening to protests from airlines in particular cases, but I want to formalise that process. For that reason, my amendment provides for an arbitration procedure which is a simple mechanism to allow a carrier to appeal against a direction. If the arbitrator upholds the objection, that direction can be amended. I hope that the noble Lord agrees that this is a reasonable and modest amendment. I beg to move.

Earl Bathurst

My Lords, on a number of occasions the Minister referred, obviously, to airports and airlines, as did the noble Lord, Lord Avebury, when moving his amendment. Would Clause 12 and the amendments moved by the Minister and the noble Lord, Lord Avebury, if accepted, cover the Channel tunnel and Euros tar?

Lord Dholakia

My Lords, I support the amendment moved by my noble friend Lord Avebury. There is a need occasionally to be a little fairer in proposing legislation. In this particular case, the noble Lord spoke about the extent to which the Home Office was involved in the training of carriers with regard to the documentation of passengers brought to this country. I am well aware of this. As one who holds a British passport, at various posts abroad I must still undergo rigorous checks about the validity of my passport.

However, putting that aside, if the airlines follow precisely the instructions and training given by the Home Office and the passenger destroys the documentation after landing in this country, we cannot hold the airlines responsible for such action. It is right and proper that in such cases the Home Office should look at other means of recovering the costs rather than asking the airlines to pay.

What consultation on the clause has taken place with airlines and other forms of transport which bring people to this country?

5.30 p.m.

Lord Hacking

My Lords, I have no personal criticism of the Ministers on the Front Bench. However, little or no notice has been given of this new clause of the Bill. As the noble Lord, Lord Cope, correctly cited, this amendment—my noble and learned friend withdrew it after discussion on Report—was tabled only on the Thursday before the Report stage of the Bill on the Monday.

I have consulted two important members of the industry: first, the Board of Airline Representatives (UK)—BAR(UK)—represents a large number of the overseas carriers who bring millions of passengers to this country; and, secondly, British Airways. Both have told me that not only were there no consultations, they did not even k now the clause had been tabled until they read Hansard the next day. It is, therefore, not surprising that the air carriers have some concerns.

The noble Lord, Lord Avebury, identified their concern on whether they are expected to pick up the costs of taking passengers back under escort to the country of origin when, for example, the airlines have not been at fault. Noble Lords will remember that under Clause 37 (as it now is) there is release from the provisions in this clause when passengers arrive without proper documents. Specifically, Clause 37(4) states that no charge is payable when the airline operator can show that the passenger in question produced the proper documentation at the place of embarkation. The question raised by the airline industry is that if that concession is given—I suggest, correctly given—under the provisions of Clause 37, can they also be given it under the provisions of the new Clause 12?

The airline industry is also anxious to know 'what tests are to be applied as regards the number of escorts. One would think that two escorts would be sufficient with the passenger being handcuffed on both sides. After all, unless he is a very peculiar passenger, he will have only two arms. But there has been a suggestion that there may be need of medical escorts—a doctor, nurse and so forth—and the airline industry, which is having to pay for the escorting of that passenger to the country of origin, and then for the escorts to return here, wish to know what criteria are to be applied on the number of escorts.

There is also the issue of costs. Subsection (3)(b) of the new clause states that the Secretary of State may introduce regulations requiring the airline to bear such costs in connection with the escort, in particular the remuneration of those who are carrying out the escort duties. Again, that is an area over which the airline industry is reasonably concerned.

Finally, on the adjudication of any dispute between an airline and the Secretary of State, the noble Lord, Lord Avebury, introduced a sensible amendment. In the timetable to which we are working, it may not be possible for my noble friends on the Front Bench to accept that amendment as drafted. For example, it leaves open whether or not the arbitration is to be binding. If it were to be binding it may give some concern to my noble friends on the Front Bench. I ask, therefore, whether my noble friends can accept the spirit of the amendment tabled by the noble Lord, Lord Avebury, and agree that there should be some form of dispute resolution process.

On Report my noble and learned friend Lord Williams referred to judicial review as a means of dispute resolution. But as my noble and learned friend and I know—from his days at the Bar, and from my days at the Bar and as a solicitor—the system of judicial review is hardly geared to deciding such issues as costs, the number of escorts and so on. Under our process of judicial review, the courts rightly will not intervene unless a manifestly wrong decision has been made. It takes a great deal of time to prepare the papers for judicial review. A single judge has to give leave. If the single judge does not give leave, one goes to open court. Even if one could get the case into the courts, having gained the requisite leave for it, the matter could take up to 12 months. That is ridiculous when dealing with an issue which could fall under the new Clause 12. Clearly, there should be a dispute resolution process which can work under a tight timetable. I suggest that it should be non-binding. An arbitrator could give a recommendation to the Secretary of State and he could then make a decision.

For all those reasons, I hope that my noble friends on the Front Bench will be able to help.

Lord Cope of Berkeley

My Lords, it has become clear again, as it became clear in our earlier debates, that the way the Bill has been thrown together has made it difficult for British Airways and others to keep up with what is happening and to make valid points to your Lordships. It is not a satisfactory way to put together legislation with, in this case, considerable effects on airlines and other people. I almost said "cobbled" together but I thought that that might be unfair to shoemakers, whose art is important to me at the moment.

On a similar point, when we dealt with the facilities to be provided free to the immigration authorities at airports by airport authorities, the Government were urged to provide for arbitration. Instead, they decided to build in a system of independent advice to be given to the Secretary of State in case of dispute. I should have thought that that was quite a good way to deal with this question rather than the more formal arbitration suggested in the amendment.

I suspect that the answer to my noble friend Lord Bathurst is yes. I believe that these provisions apply to Eurostar and the Channel Tunnel and to all other carriers, not just the airlines although we have concentrated on them in this debate.

Lord Bassam of Brighton

My Lords, I am grateful to noble Lords who have asked questions and opened up the debate. It has been helpful and constructive.

The noble Lord, Lord Avebury, did not think that BA was consulted. I can confirm that, in absolute terms, that is the case although we announced at, I think, Second Reading that we would be introducing these provisions. BA is somewhat on the side of the angels in this issue. It meets the costs reasonably charged and asked for in these cases. Having heard what was said by the noble Lord, Lord Dholakia, and my noble friend Lord Hacking about consultation, it is clear that we ought to talk more with the aviation companies. I can undertake to do so in order that they are fully aware of the effect of the provisions we intend to introduce.

I can tell the noble Earl, Lord Bathurst, that the measures may well apply to Eurostar and the Channel tunnel. That enables us to extend the provisions to Eurostar and we may well wish to look at them in the future.

It is important to keep a sense of proportion about what we are trying to achieve. I assure the House that we shall be proportionate and reasonable in the way in which we seek to introduce these measures.

I turn to some of the points raised by the noble Lord, Lord Avebury, in moving his amendment. He seeks to address in a slightly different way the issue of possible disputes about the need for an escort. At first, I thought that his amendment was being extremely generous to my right honourable friend the Secretary of State. First, the terms of the amendment are discretionary, not mandatory. He may appoint an arbitrator, but he does not have to do so. Secondly, according to the noble Lord's amendment, the Secretary of State is a party to the disagreement, but can appoint the arbitrator. That is another generous move.

However, the terms of the amendment do not make it clear whether the carrier has to agree to a case being referred to an arbitrator in the first place or whether the carrier has a right of veto over the choice of arbitrator as well.

On closer inspection, perhaps the proposals are not so generous. First, the arbitrator's recommendations are binding only on the Secretary of State. He has to amend the recommendations if the arbitrator says so, but there is nothing that compels the carrier to accept them. It is even possible, although unlikely, that the initial directions would stipulate an escort of two people and the arbitrator could increase that to three or four. Presumably, the carrier would object even more strongly to that number of escorts, but the Secretary of State would be obliged to insist on that number even though he considered it excessive.

Secondly, and more importantly, the amendment would apply to an objection to any part of the directions and could apply to the fact that the person was being required to remove someone rather than the fact that the person would be escorted. There are no arbitration arrangements for the majority of removals and I see no reason to introduce such arrangements piecemeal, as would the noble Lord's amendment.

Thirdly, the arbitration system could presumably be invoked to cover cases where the cost of the removal and escort were being met by the Secretary of State. Presumably, the Secretary of State would be required to meet the costs of arbitration and in some circumstances might find it cheaper to arrange for removal at public expense, even though in all fairness it would be reasonable to expect the carrier to meet the costs in that case. I assure your Lordships that it is not our intention to be unreasonable in the application of costs for escorts.

Finally, the carrier would still be able to apply for judicial review of the arbitrator's conclusions. I can understand why the noble Lord has tabled the amendment, but I have to say that in my view it is a detour, a diversion, rather than a solution to the problem. I hope that in the light of that explanation he will not seek to press the amendment.

Lord Dholakia

My Lords, before the Minister sits down, he mentioned that there had not been adequate consultation with the airlines and the carriers. Will the consultation take place before the matter is considered by the Commons when the Bill returns to them and, if an amendment is necessary, will the Government consider it?

Lord Bassam of Brighton

My Lords, I could not possibly give an absolute confirmation that that would be the case. However, I am prepared to say that we shall discuss these matters as appropriate with British Airways and other airlines and shall seek to take their views on board as far as we can. We are content with what we are proposing. We believe that it is reasonable in the circumstances. After all, airlines operate for commercial gain and carry passengers for that very purpose. They accept in general terms and in most cases that this is not an unreasonable charge on their commercial activities. I trust that your Lordships will accept that argument.

5.45 p.m.

Lord Avebury

My Lords, I am surprised to hear the Minister say that there are arbitration arrangements for the majority of removals. That was not the impression I gained from British Airways. The company expressed anxiety about parts of the new clause which appear to be open-ended. The number of escorts was an important point, but anxiety was expressed about the subsection referred to by the noble Lord, Lord Hacking, which states: requiring him to bear such costs in connection with the escort … as may be prescribed". That is totally open-ended.

We do not have the faintest idea what the Government have in mind and what kind of costs are involved. Will they include the escort's drink on board the aircraft? Will he stay in a five-star hotel in Tangier? What kind of costs might the Secretary of State prescribe in connection with subsection (3)(b)? What kinds of expenditure will count in calculating costs incurred in connection with escorts?

The open-ended nature of the provisions in the new clause worries the airlines and I seriously believe that there is a necessity for urgent consultation with British Airways and all the other carriers. I wish that the Minister had been able to give the House an assurance that if the consultations disclosed a serious gap, and the arbitration arrangements which he says already exist do not cover any of the provision of the subsection, the matter will be dealt with when the Bill returns to another place.

That is one of the disadvantages of such an issue being raised at the 59th minute of the 11th hour. There is no time for consultations to take place, for your Lordships to consider them, or even for Members of another place to take them into account. We must accept the Minister's assurances that in applying these powers, it is not the intention to be unreasonable.

I hate to rely on such an assurance given across the Floor of the House because, as has been said on many previous occasions, although one may be certain that assurances given by the noble Lord, Lord Bassam, and the noble and learned Lord, Lord Williams of Mostyn, will be honoured, we are legislating for other circumstances and future governments who may not be quite so scrupulous. Therefore, it is with the greatest reluctance that I beg leave to withdraw the amendment.

Amendment N o. 13, as an amendment to Amendment No. 12, by leave, withdrawn.

On Question, Amendment No. 12 agreed to.

Clause 13 [Protection of claimants from removal or deportation]:

Lord Cope of Berkeley moved Amendment No. 14: Page 8, line 29, leave out ("during that period") and insert ("at the same time as, or after, notice of the decision on the claim is given to him").

The noble Lord said: My Lords, the amendment refers to Clause 13, which is surprisingly entitled "Protection of claimants from removal or deportation", but which actually relates to the arrangements for the removal or deportation of people whose claim for asylum has failed.

The point addressed by the amendment is small., but when we discussed it earlier there seemed to be some sympathy for it. A notice of removal or a deportation order should be able to be served at the same time as, but not before, the notice of the decision to refuse asylum.

I acknowledge that often it will be desirable that the notice of the decision to refuse should be accompanied by the arrangements for the removal and the notice of removal or the deportation order. It is not right that those documents should be served on someone before he has been told that his asylum claim has been refused. That is the purpose of the amendment. I beg to move.

Viscount Brentford

My Lords, I rise to support the amendment and to make two points. I noticed that in a previous debate on this issue, the noble and learned Lord said: The directions will not be served until there is a decision on the claim".—[Official Report, 18/10/99; col. 785.] In the wording of Clause 13, on whom are the directions for his removal to be served? What concerns me is that, whether or not a decision on a claim has been made, if it were to be served on the individual before he had been notified of that decision, it would be emotionally a tough moment for him. I suggest that that would be wrong. Surely it must be right for the notice to be served on him at the same time as the directions? That would seem to me absolutely logical.

Lord Williams of Mostyn

My Lords, I must reply to that last observation because I believe that we are in general agreement. We discussed this matter on Report. The present Section 6 of the 1993 Act prevents what the noble Viscount believed was sensible—the simultaneous service by post of the asylum decision and removal directions. I entirely agree with what the noble Viscount said. That is a sensible and humane way of dealing with the notification, but at present under Section 6 the removal directions cannot be given until the applicant has been notified. He is notified only when he receives the letter. We want to be able to provide the removal directions at the same time as the letter. Most people would believe it sensible for both to arrive in one envelope, and that is what we want.

I understand that there was trouble in people's minds about whether or not something improper might happen in the sequence of decision and notification, or rather, notification and decision. I make it clear—as I believe that this is the purpose of the amendments tabled and of the noble Viscount's observations—that where someone has applied for asylum, a deportation order will not be signed, let alone served, unless and until we have concluded that the person concerned is not a refugee.

Similarly, where an illegal entrant has claimed asylum, removal directions will not be set until the application has been considered and we have decided that he should be removed. We will not set removal directions first and ask questions afterwards. It would be irrational, and I do not believe that such a system would survive the scrutiny of the courts. Therefore, what we want—and I believe that this is common to all three of us—is the sensible opportunity to provide both documents in one envelope, so that there is a degree of security from the public point of view and an absence of a feeling of unfairness from the point of view of the individual concerned. I hope that that assurance, which I have given in as clear terms as I possibly can, will satisfy both the noble Lord, Lord Cope, and the noble Viscount.

Lord Cope of Berkeley

My Lords, in the light of that assurance I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 15 not moved.]

Clause 18 [Supply of information to Secretary of State]:

The Earl of Sandwich moved Amendment No. 16: Page 12, line 13, after ("means") insert ("for the purposes of subsection (1)(e), the provision of support for asylum-seekers and their dependants under Part VI and for the purposes of subsections (1)(a) to (d) and (f)").

The noble Earl said: My Lords, the amendment should refer to new subsection (1)(e) and not (d) as printed on the Marshalled List, which relates to support providers under Section 93. I apologise to the House for the error in drafting, which I noticed only at the last minute.

The amendment concerns information given to the Secretary of State for immigration purposes by those providing support. The amendment would limit the effect of the new government amendment to this clause which could otherwise override or conflict with their contractual obligations.

Your Lordships will remember that I moved an amendment on Report warning of the possible consequences of the Bill for non-governmental organisations working with asylum seekers, who might be assumed, especially if they were Home Office funded or contracted, to be subject to the same legislation as the Home Office and government institutions. I still believe that there is a grave risk of compromising the work of those organisations.

The new amendment seeks to address the remaining concern of many voluntary agencies about the possible conflict of interest and breach of confidentiality which might arise for support providers under Sections 93 or 97. They argue that the new amendment is necessary following the new government amendment which inserts subsection (1)(e) into Clause 18. It is designed to avoid any clash between their charitable duties and their obligations, which are fully understood, under the rest of the clause. If that is not done, what guarantee of confidentiality could they give to their clients, and what relationship of trust would remain if they knew that they might, at any time, be required to disclose information on matters unrelated to their professional work? I beg to move.

Lord Hylton

My Lords, as a person connected with a good many voluntary organisations, I can well understand the point that my noble friend has just made about a potential conflict of duties. It is one which I hope that the Government will take most seriously.

Lord Bassam of Brighton

My Lords, this amendment relates to the new subsection which we introduced into Clause 18 on Report. The intention of paragraph (e) of subsection (1) of the clause is to ensure that a contractor with whom we have made arrangements to provide support is able to pass on information which he might gain to the Secretary of State. That might be information about the circumstances of the asylum seeker and his need for support. It might cover such matters as whether the composition of the asylum seeker's household, and therefore his need for accommodation of a particular character, had changed. It might highlight other additional needs the asylum seeker had. It might also reveal that the asylum seeker was in fact engaged in employment when he was debarred from doing so. I believe that it is legitimate that the Secretary of State should have access to such information from a contractor.

We should see information passed under the provisions of this subsection as being primarily concerned with the support of asylum seekers, but we would not want to limit it entirely to that context. There will be circumstances, which we hope will be few and far between, where an asylum seeker engages in some sort of unlawful activity. I have already mentioned illegal working, but another example would be facilitating the entry of other persons who were here unlawfully.

It is legitimate that a contractor should be able to pass on such information to the Secretary of State. Contractors are not generally in the business of monitoring an asylum seeker's behaviour; for example, his continued involvement in political activities. There is no power under Clause 18 for contractors to pass such information to the Home Secretary or to any other agency. But we do need to ensure that immigration law is properly observed, and we consider it essential that contractors should assist us in that task.

We do not see this issue as primarily concerning the voluntary sector. It concerns private sector contractors and local authorities with which the Secretary of State contracts. As far as we can see, there would be no requirement for voluntary organisations to, as it were, "spy" on asylum seekers. What information they provide to the Secretary of State will be a matter of contract concerning the management of accommodation and such matters. I therefore ask the noble Earl not to press this amendment.

The Earl of Sandwich

My Lords, I fully understand the intentions of the clause and the obligations which voluntary organisations have. Nevertheless, there is a risk of a conflict of interest and it remains a grey area. I wanted only to draw attention to it today. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Hyltonmoved Amendment No. 17: After Clause 19, insert the following new clause—


(" .—(1) The Secretary of State has a duty to ensure that information is provided to asylum-seekers detained under the Immigration Acts and whose cases have yet to be determined on the probable length of their detention.

(2) The information in subsection (1) above may be given orally or otherwise, but shall not form the basis for any subsequent legal or other proceedings.").

The noble Lord said: My Lords. in moving the amendment I shall speak also to Amendment No. 59 in my name and that of my noble friend Lord Sandwich. I begin by reminding your Lordships that at 30th September this year, more than half of the 985 people detained under the Immigration Act were held in prisons and not in detention centres. I have that information from a government Written Answer in another place.

At earlier stages of the Bill, much concern was expressed about the arbitrary nature of detention in cases which have yet to be decided and its uncertain length. The visitors to detention centres are unhappy about this and point out the damaging effect of the uncertainty on the mental health of detainees. I quoted from the only medical study on this subject which confirmed the ill effects.

The UNHCR's London office is also concerned. It points out that under the Bill, no routine bail hearings are foreseen after the 36th day of detention, ignoring the fact that the longer detention lasts, the more pressing is the need for judicial scrutiny". It states also that bail hearings held in prisons or detention centres will not be open to the public or in generally accessible public places, and therefore will not be perceived as impartial or independent. In my view, Her Majesty's Government would not be right to rely too heavily on bail hearings as an all-purpose remedy in cases of detention.

I was grateful to the noble Lord, Lord Bassam of Brighton, for undertaking, at col. 1259 of the Official Report of 20th October, to consider the giving to detainees of indications of the likely length of their detention. However, it was disappointing when, in a letter dated 27th October which has been circulated to a number of noble Lords, the noble Lord wrote that such indications would be likely to arouse false expectations. However, he went on to state that detainees are informed monthly of the progress of their cases. When the Minister replies, will he please say how this system works; who does the informing; and whether it is always done in a language understood by the detainee? Is the connection between progress of the case and continued detention properly explained?

If there is a system and if it is working well, that seems to make it fairly easy for the Government to accept my first amendment. It merely puts on the face of the Bill the substance, as I understand it, of the present system. I observe that it is also narrowly drawn because it refers only to asylum seekers whose cases have yet to be determined. Subsection (2) provides that information may be given either orally or in writing and shall not become the basis for subsequent proceedings.

The second amendment, Amendment No. 59, which stands in my name and that of my noble friend Lord Sandwich, is slightly wider in that it could cover all Immigration Act detainees. However, it is less demanding in that it requires the Secretary of State only to publish guidance about the maximum length of detention in individual cases.

Therefore, the Government have a choice set out before them as between the two amendments. This evening I should most like to hear an explanation of the present or proposed arrangements for informing detainees not only why they are being held, but also how long it is expected to continue. Detention may be a necessary evil, but its bad effects should be mitigated as much as possible. Uncertainty is certainly one of those bad effects. I beg to move.

6 P.m.

Lord Clinton-Davis

My Lords, I understand the motivation behind this amendment. However, with respect, I believe that in certain respects it is impractical. If the amendment had been to the effect that if, after a period of time—say, three months—the asylum seeker remained in custody, certain information should be given to him then, and perhaps periodically after that, I should have had much more sympathy with it. However, that may be difficult to do in the initial period, as seems borne out by experience. Perhaps I should have attempted to amend the amendment and I was derelict in my duty in that regard. I wish to make that point to the noble Lord.

Perhaps in any event it is a matter which can be dealt with informally. It is a matter of practice and procedure which does not have to be embodied in the Bill. When my noble friend replies to this debate, perhaps he will give some indication of the practice which I believe, as a matter of natural justice, should be followed in dealing with such a situation.

Such people are not detained as a result of having committed criminal offences. It is quite a different situation for them. However, when it comes to someone who is still waiting—and there are many instances of people waiting a long period of time for information about when their case will finally be dealt with—I believe that some provision ought to be made.

I believe that the noble Lord, Lord Hylton, has done the House a service by raising this issue at this stage of the Bill. Perhaps it is a pity that when these matters were last discussed I was delayed at the Council of Europe. However, I believe it is important that my noble friend the Minister should take this extremely seriously.

Baroness Williams of Crosby

My Lords, if the noble Lord, Lord Clinton-Davis, feels, for reasons he has eloquently given, that Amendment No. 17 would not meet the problems to which he has adverted, perhaps I may recommend that he looks at Amendment No. 59, also in the names of the noble Lord, Lord Hylton, and the noble Earl, Lord Sandwich, as that amendment refers specifically to guidance on the length of detention.

I believe that all your Lordships are concerned about what may give the impression of an unlimited power to detain. Certainly, those of us who have met the remarkable members of the voluntary groups who try to visit detention centres are very much aware of the concern expressed by them about the mental effects on people of not knowing—or, indeed, of not having any idea—of the length of time for which they might be detained. At the heart of this group of amendments lies concern about detainees not being given regular information on how long their detention will continue despite the fact that, as the noble Lord, Lord Clinton-Davis, has said, they have committed no crime, have been charged with no offence and have been found guilty of no offence of any kind. I give way to the noble Lord.

Lord Clinton-Davis

My Lords, I thank the noble Baroness. One appealing facet of Amendment No. 17 is subsection (2). As far as I can see, there is no provision on whether the guidance becomes justiciable in Amendment No. 59. I believe that that would be unfortunate because such cases sometimes become protracted and difficult. I should not wish to see the guidance become justiciable.

Baroness Williams of Crosby

My Lords, I hope that the noble Earl, Lord Sandwich, will address that issue. My impression was that it would not become a justiciable matter, but the noble Earl will no doubt say whether or not that is correct. I believe that the word "guidance" would not normally carry the implication of being justiciable, but I may be wrong.

In this group of amendments, I should like to refer also to Amendment No. 60 which stands in my name. That amendment limits to 72 hours the period that a detainee can spend in prison. Again, in that regard, I advert to the fact that those who deal with detainees are particularly concerned about their being sent to prison. Obviously, many of our prisons have no adequate resources for dealing with detainees, especially those who may be going through a period of extreme nervous strain; who may in fact be the victims of torture; and so on. As many of our prisons are, in any case, over-crowded, they are the last places to which detainees should be sent.

Rather than suggest that there should be no admission to prison at all, we included a limit of 72 hours because we recognise that there may be immediate situations that cannot be dealt with by a detention centre. Certainly, it would be extremely encouraging if the Government could give us some indication that, wherever possible, they will avoid sending to prison an asylum seeker or refugee and that, where that is absolutely unavoidable, it will be made clear that it must be for the minimum possible time.

To save time perhaps I may also refer to Amendment No. 28, which is an amendment in the name of the noble Earl, Lord Sandwich, to which he will no doubt speak. In the Committee and the Report stages of the Bill I was particularly concerned about the history of torture. I believe that the noble Earl, Lord Sandwich, will remember that I tabled an amendment on this issue at an earlier stage.

The Government have been responsive on issues of torture. Indeed, I received a letter from the noble and learned Lord, Lord Falconer of Thoroton, on the subject. He said that the Government recognised that wherever possible those who had been victims of torture should not be detained. That is on the face of the letter.

However, when one looks at the material that has just been supplied to us, and at the section entitled, Reasons for Detention and Bail Rights", which was not available for the Committee stage, it is plain from the list of reasons given for detention and the list of factors on which the decision has been made that there is absolutely no reference whatsoever in the entire document to situations where as far as possible detention should be avoided.

Some noble Lords may have seen this document which indicates the reasons why people should remain in detention. There are examples such as likely to abscond; insufficient reliable information; release is not considered conducive to the public good, and so on. They are all reasons why someone should be detained. Then there is a list of the facts that have to be taken into account in deciding on detention, such as having previously absconded, or attempted to use deception, or failed to give satisfactory answers to an immigration officer's questions. They are all reasons why someone should be detained.

We believe that that should be balanced by reasons why, in certain cases, as far as possible detention should be avoided. That is why, throughout these proceedings, we have argued that a history of torture should be seen as a ground why someone should not be detained unless there are exceptional circumstances. We may add to those reasons one or two other reasons such as the existence of a serious medical condition or the existence of dependants outside the detention centre. We believe that the Home Office immigration officers should reach balanced decisions on whether or not to detain someone.

Perhaps I may put in brackets that I believe that this country has the highest proportion, by a substantial margin, of asylum seekers in detention of any country in the European Union. We want to avoid detention because it is expensive as well as extremely hard in terms of its psychological impact. Perhaps I may suggest to the Home Office that they add another section to, Reasons for Detention and Bail Rights". I applaud them on the section on bail rights, which is excellent, but perhaps there could be a section that deals with reasons why, in certain instances, there should be only very exceptional reasons why such a person should be detained. Again I underline the incidence of a history of torture, as the noble Earl does in his amendment. I believe that is a humane argument and one that has the support of people on all sides of the House. I beg the Government to consider this matter, given that they have already given assurances to see whether that may be done.

Lord Renton

My Lords, although one sympathises with the motive of the noble Lord, Lord Hylton, in moving the amendment, it seems to me that the Government cannot possibly answer the questions that he asked. Net long ago it was announced in the press that there were 100,000 cases of asylum seekers whose cases had not been dealt with. The facilities available until now for dealing with such cases have been so limited that the number has grown steadily over the past two years. As a result, the Government will not be able to tell for a while how those facilities can be improved and increased. Until there is an improvement in the system and the facilities have increased, it will be impossible for the Government to answer the question.

Lord Hylton

My Lords, before the noble Lord sits down, will he accept that while the backlog is still growing, the numbers detained on any particular day is under 1,000?

Lord Renton

My Lords, yes, but we have to bear in mind also that there will be further applications from time to time. The Government cannot possibly anticipate how many applications there will be.

6.15 p.m.

Lord Avebury

My Lords, I point out to the noble Lord, Lord Renton, that one reason for the huge backlog is the failure of the Government's computer system, which the other day was mentioned, yet again, in the press. I telephoned Siemens to ask how they were getting on with the trials and I was told that it was none of my business. I explained to them that I was a Member of this Parliament and that I was to take part in the debate on the Immigration and Asylum Bill and they told me to "get lost" in an extremely contemptuous manner.

When a company that is employed by the public sector to implement a system that is supposed to improve the casework performance of the Home Office replies in that way one should have great anxiety about its performance. We know that the system was handed over for trials in June but we do not have the faintest idea how those trials are progressing or whether the roll-out will take place next spring as promised. Perhaps the noble Lord who is to reply could say something about the state of play on that computer system, which may help to alleviate the anxieties expressed also by the noble Lord, Lord Renton—justifiably so.

I want to speak to Amendments Nos. 26 and 27. In this group we have a rather heterogeneous collection of amendments. These two amendments ensure that the Secretary of State cannot deny an applicant a routine bail hearing by regulation. The amendments preserve the power to adjourn hearings, but remove the power to take away rights to a second hearing. They amend provisions added to the Bill by government amendments tabled on Report.

The subsections in question provide for the Secretary of State to make provision modifying the application of Clause 41 in cases where a routine bail hearing is adjourned to enable medical reports to be obtained or "for any other reason". It states that the regulations may in particular provide for there not to be a second routine bail hearing in such circumstances.

I take issue with the Government on that because we believe that there always should be a second bail hearing within 30 days. The reasons for that were demonstrated by the discussion we had on Report. The noble and learned Lord, Lord Falconer, suggested that an adjournment would last for only a minimum of 21 days. However, he also indicated that it would be possible to continue an adjournment from time to time to await medical reports. As the Bill stands, there is a real prospect of such detainees not having two hearings within 21 days and possibly having to wait for several months for a second consideration of their detention by a magistrate or an adjudicator. The prospect of cases in such circumstances having to be adjourned continually appears to disadvantage those identified by the Government in the White Paper as those whom they were especially reluctant to detain. such as those with evidence of torture or physical or mental illness.

The noble Lord, Lord Bassam of Brighton, has written to the Medical Foundation for the care of Victims of Torture. In that he said, we cannot give an undertaking that nobody who claims to have been the victim of torture will be detained. In all cases we must be satisfied that the person will comply with any conditions attached to the grant of temporary admission or release or bail. Where there are substantial grounds for believing that a person would not comply we must reserve the right to detain". He continues: However, inevitably there will be circumstances, for example where the resumed first routine bail hearing is heard at the same time as the second hearing would be due to be heard. It is obvious that in these limited circumstances a second reference would be a waste of time and resources. It seems sensible for the regulations to make provision for this". That is precisely the point at issue. We say that there should always be the right to a second bail hearing and that if a medical report cannot be obtained within 21 days, that is an additional ground why a person should be released on temporary admission. We object fundamentally to the idea that a person claiming to be a victim of torture and who is nevertheless detained on arrival has to experience several adjourned hearings because medical reports are not available expeditiously.

We urge the Government that they retain the second bail hearing or provide that in circumstances of this kind the applicant is invariably released. I hope that with these arguments the noble Lord will reconsider what he said to the medical foundation and make provision for an invariable second bail hearing.

The Earl of Sandwich

My Lords, the noble Baroness has already given me a cue as regards my Amendment No. 28 which is concerned with written reasons. I hope not to repeat the arguments which she has already made or provoke the intervention of the noble Lord, Lord Renton, who has great wisdom in these matters.

The issue of written reasons has caused great concern since it is so central to this Government's human rights policy. However, I believe that they have taken seriously what was said on Report and at previous stages of the Bill as regards the rights of detainees. They have tried to improve the Bill, notably with the presumption of liberty through the general right to be released.

This amendment was tabled at Report stage. The noble and learned Lord, Lord Falconer, while sympathising with it, said that it was unnecessary. However, at that time we did not have the benefit of the new forms and procedures published by the Immigration Service and referred to by the Minister on the last occasion. That is why we have to look at the matter again. My amendment refers to, making specific reference to the person who is the subject of the hearing". The explanation on page one of the new instructions reads, It makes our decisions on detention more open and should help us to identify when detention is appropriate and when it is not". The instructions would appear to be exhaustive. In Annexe 6 there are lengthy guidance notes, as the noble Baroness, Lady Williams, has said. The actual form, IS 91R, is very simple. It is little more than a checklist or a list of tick boxes described earlier in the Bill. In other words, there is nowhere which allows for a specific reference to the individual, which is what this amendment is about.

The noble and learned Lord, Lord Falconer, at Report stage said, that detailed check-list will be tailored to individual circumstances and to relevant exceptions".;—[Official Report, 20/10/99; col. 897.] He said that he could see the argument about torture and would look at it again but without assurances.

It is worth revisiting the White Paper at paragraph 12.4 on page 53. It states: The Government also recognises the need to exercise particular care in the consideration of physical and mental health when deciding to detain. Evidence of a history of torture should weigh strongly in favour of temporary admission or temporary release whilst an individual's asylum claim is being considered". I have also seen the letter from the noble Lord, Lord Bassam, of 26th October. Paragraph 36 gives further reassurance although I believe that in that case the written reasons at the outset of the hearing are not giving the detainee any opportunity in advance.

I have looked carefully at the form again and the medical and special needs section of the instructions. They appear to be more about risks to the public than defining the needs of individuals. Will the Minister accept that we have always argued consistently for full written reasons, particular to the individual, which seemed to be accepted on Report? Does he agree even at this stage that providing some space on the form for individual circumstances would not be asking a great deal? It will not require a great deal of intelligence to adapt the present form and include a new section for this important change. In speaking to my Amendment No. 28, I support my noble friend in Amendment No. 59 about guidance and guide times.

Lord Sheppard of Liverpool

My Lords, I believe that it is good for voices from these Benches to support what the noble Earl, Lord Sandwich, said about the form. I hope that the Minister may be able to give some assurance about the form being redesigned. It appears very bureaucratic with the inhuman ticking of little boxes. It concerns the removal of a person's freedom. The form does not indicate that any of the person's very significant circumstances have been heard. I hope that there may be a re-design of the form.

Lord Alton of Liverpool

My Lords, I shall not detain the House for very long. I speak in support of my noble friends Lord Hylton and Lord Sandwich. In particular I would like to make some reference to Amendment No. 28 and the provision on the form for the details of a person's age, the background and whether there is some history of torture. I echo what the noble Lord, Lord Sheppard of Liverpool, said about the reasonableness of my noble friend's amendment. The concluding lines of the amendment state that the information should be provided, as soon as is reasonably practicable after detention". It is a moderate amendment, which is not making unfair demands on bureaucracy, administration or local government. It is something we should readily accept.

It is worth recalling the kind of people we are dealing with. It is easy to become bogged down in discussions about bureaucracy or long waiting lists. The Medical Foundation for the Care of Victims of Torture has alerted many Members of your Lordships' House to some of the individual problems that detainees are already experiencing. Perhaps I may mention one or two of them. An Algerian is awaiting an initial decision. He has been waiting for over a year. He was detained for two years prior to that in Algeria in a desert camp where he was tortured. An Afghan has been awaiting a final decision for five months. No decision has been made in his case. He was used as a slave by the Taliban. He was tortured and his fingers were broken. Another Afghan has been awaiting a decision for over a year. He was detained and made to do forced labour. He was tortured. He was aged 16 and imprisoned with 40 others in a container, which was then set alight. His sister and brother were burnt to death in front of him. He was badly burned and continues to suffer.

Surely we can do better for people who have come from such horrendous situations in prisons or comparable circumstances. It is the mark of a civilised society how we treat such people. My noble friend's amendment provides for a much more civilised formula than has been offered in the Bill so far.

Lord Cope of Berkeley

My Lords, I agree that it is the mark of a civilised society that we treat properly and well people with the ghastly histories which the noble Lord, Lord Alton, outlined. At the same time I do not believe that it would be right for the Government to say that anyone who claims to have been tortured should be immune from detention. That would be going too far. It would inevitably mean that anyone who wished to avoid detention would produce a story of torture which might not be true. In the meantime they might avoid detention and abscond.

I appreciate the reasons for Amendment No. 17. Like my noble friend Lord Renton, I believe that it is extremely difficult, if not impossible, for the Government to even anticipate with any accuracy the length of detention at the beginning of that period or to place limits on it.

It was said that these individuals have committed no crime. Of course it is true that they have not been convicted; but some of them may have committed a crime. They are in a similar position to those who are remanded in custody. They are not proved to have committed a crime, but a court decides that, for various reasons, they should be detained until it is decided whether or not they have committed a crime.

6.30 p.m.

Lord Hylton

My Lords, will the noble Lord give way? Surely, there is a marked difference between the immigration detainee and the prisoner on remand who has been charged with a specific offence in this country.

Lord Cope of Berkeley

My Lords, of course there is a difference. I do not say that they are in exactly the same position but they are in an analogous position; that is, it has to be decided what should happen to them. Part of what has to be decided is whether or not their claim is fraudulent. That is part of the decision that has to be made in some cases.

The noble Lord, Lord Hylton, rightly drew attention to the fact that proportionately very few in that situation are detained. I am not sure how the proportions compare and it will not be particularly helpful to draw a comparison between those on remand and detention of this kind. However, it is a small proportion. Sometimes, we must remember, the detainees themselves wish to spin out the discussions and the legal complications of their cases. That would make it even more difficult for the authorities to anticipate the length of detention that might result.

Lord Simon of Glaisdale

My Lords, my noble friend's amendment merely asks that the "probable" length shall be vouchsafed. If the detainee chooses to spin it out, then it is his business but it has nothing to do with the amendment.

Lord Cope of Berkeley

My Lords, with respect to the noble and learned Lord, it has a little to do with the amendment. At the same time, it is one indication of why it is extremely difficult for the authorities to anticipate the length of detention at the start. Therefore I am not sympathetic to Amendment No. 17.

Lord Clinton-Davis

My Lords, I am obliged to the noble Lord for giving way. I put forward a different proposition. My proposition was that perhaps after the first three months in detention some information should be provided. I do not suggest that it should be justiciable. But surely somebody facing the purgatory of detention should be given some information as to how long it is going to last.

Lord Cope of Berkeley

My Lords, I am sympathetic to that proposal. The way the noble Lord, Lord Clinton-Davis, puts it is more acceptable than the way it is expressed in the amendment, and more feasible. All these things are acceptable, but his proposal is more feasible than the way expressed in the amendment.

However, I am sympathetic with Amendment No. 28 tabled by the noble Earl, Lord Sandwich, in relation to written reasons. I shall not go into details because several other noble Lords have already done so. For what it is worth, I also agree with the Government in their Amendment No. 29.

Lord Williams of Mostyn

My Lords, the noble Lord, Lord Avebury, said that this was a disparate group of amendments. But they have a common underpinning. When we discussed this matter on Report the noble Lord, Lord Hylton, raised the question in relation to likely length of detention. We said that we would look on that as favourably as we could and reflect on it. One of the problems was that identified by the noble Lord, Lord Renton; that is, that it is not a question capable of being answered. In any event, legitimate expectations would be raised. The noble Lord, Lord Hylton, recognised that and sought to address it in the second part of Amendment No. 17. He said also that his amendment provided alternatives for the Government to consider.

Perhaps I can deal with one or two specific questions first. The noble Lord, Lord Avebury, dealt with the implementation programme. The testing of the system by IND staff began in October. It is being carried out on dummy cases for the time being. It will continue at least until the end of the year when there will he piloting on real cases and a progressive roll-out during the year 2000. If there was any discourtesy to the noble Lord, I regret it. I do not believe he can accuse either my noble friend Lord Bassam or I of discourtesy. If he requires further information, he might receive a more informative response—he would certainly receive a more courteous response—if he were to write to us. I never trust the telephone and prefer always to conduct my business in correspondence where the opportunity for rudeness and ducking the issue does not offer itself as readily.

I can go on to the question of giving information. A number of noble Lords raised this point and I recognise the anxieties. The current system is that we inform detainees monthly of the progress of their case. That is a proper first strand of the approach because, by means of the Bill—this should not be overlooked—the second strand is the supplementation by a statutory presumption in favour of bail and the system of routine bail hearings. I do not overlook the problems raised by the noble Lord, Lord Hylton, my noble friends Lord Clinton-Davis and Lord Sheppard, the noble Earl, Lord Sandwich, and the noble Lord, Lord Alton, on these matters.

The noble Lord, Lord Hylton, was pressing on the sort of information to be given. Would it be oral or in writing? Would it be informative? I have taken on board his points. The best thing I can do is to obtain a sample of actual notifications, where necessary blanking out private material such as names or particulars, and send some of them to noble Lords and provide the same sample to the Library. If there are then further troublesome questions, at least we shall know what sort of information is given out. It may be that it will be satisfactory to the House; it may be that we could do better. The best course is to be as open and candid as possible.

Amendment No. 26 would not work. Other parts of Clause 41 would require modification; in particular the duty in subsection (5) to make a second reference on a specified timetable. The second reference point is one that the noble Lord, Lord Avebury, developed. One could have examples; for instance, first routine bail hearing held, say, on 13th day following detention; proper adjournment for 21 days for medical reports in the interests of those who have proper complaints that they have been tortured, either mentally or physically; the hearing would then resume on the 35th day. That is still one day within the limit. In those circumstances there seems little purpose in having a second reference and we simply want the flexibility not to have a second reference where it does not serve any useful purpose.

I want to spend a little time on Amendment No. 28. This was dealt with by my noble and learned friend Lord Falconer saying that when a person's age was in dispute there would be close contact between the immigration officer and the detainee as to the evidence available to substantiate the correct age. Information about physical or mental health or torture would be provided by the detainee or the representative of the detainee. Where concerns in relation to a person's physical or mental health form part of the decision to detain, that information will be included on the written reasons for detention form.

Many of the points raised by the noble Lords I identified by name are properly raised. It is a great pity that the need to give this information was not included in the instructions to immigration officers requiring that written reasons for detention be given in each case. In response in particular to my noble friend Lord Sheppard, officials are due to review both the instructions and the written reasons for detention form early in the new year, and I hope that if possible the form will be amended to include any information known which supports a history of torture. On behalf of my noble friend Lord Bassam and myself, the thrust of what was said found immediate favour with us. We cannot bind ourselves to the content of the form, but the points seemed to both of us to be well made and we have the opportunity of reviewing the instructions and written reasons. I have to say that the immediate feeling of both of us is that the more information that can sensibly and helpfully be given, the better. I do not think that I can make our position plainer than that and I trust that it accords with your Lordships' views.

I turn now to the question about Scotland, with which I shall deal quickly. This will be the first time in your Lordships' House that a question relating to Scotland has ever been dealt with quickly. Therefore, I hope that there are no Scottish Peers present in the Chamber. Amendment No. 29 requires the Lord Chancellor to obtain the consent of Scottish Ministers before he gives his approval to any regulations which would extend to the Sheriff Court or the Court of Session jurisdiction to hear applications for bail under Clause 50. That is a necessary consequence of the devolution machinery.

Amendment No. 59 sets out the alternative which the noble Lord, Lord Hylton, and others have put forward. I believe that we all share the same aim in this respect. We certainly want to have minimal use of detention. In some circumstances, there will be requirements for detention for a longer period than we would wish. I do not think that we can issue guidance on the maximum period for detention. I reiterate what the noble Lord, Lord Cope, said; namely, that it is the maximum that is set down, not the probable. I do not believe that this provision would be workable. We would still be back to legitimate expectation and people would try and make this justiciable. I am not sure that one can come to a sensible conclusion in every case.

Amendment No. 60 would put a maximum of 72 hours on the time that a person could be detained before being moved into a detention centre. This simply is not practicable. On occasions, we have to use prisons and other short-term holding facilities. We do not want to use prison, but sometimes we shall simply have to do so. That could be for reasons of geography. There are some cases—quite few in number, but we must take them into account—where, for reasons of security or control, we must detain persons in prison. If those persons are violent, the public are entitled to look for protection. Similarly, if there have been abscondings in the past or attempted abscondings, such persons may need to be housed more securely than would be the case in a detention centre.

Amendment No. 61 is consequential on Amendment No., 60. Detention in the circumstances anticipated in the amendment is normally for a few days, although it may have to be slightly longer. I do not believe that we ought to accept these amendments. I hope that I have satisfied your Lordships that we have not been unsympathetic as regards the deeper thrust of the amendments and that we have not been unresponsive.

Lord Avebury

My Lords, can the Minister say something about the position of persons who may be liable to be sectioned under the mental health Acts? If someone who is in detention exhibits violent tendencies and is found to be mentally ill, which turns out to be the reason for his behaviour, would he not in any case be transferred to a psychiatric hospital? Therefore, in such a case, the person would not need to be detained in the manner that the Bill describes.

Lord Williams of Mostyn

My Lords, that is not always the case. There are, rightly, quite strict civil liberty circumscriptions around sectioning. Not everyone who has to be detained needs to be detained in the circumstances of incarceration in a psychiatric institution. Indeed. doctors do not care for it without plain evidence, and I think that they are right. What the noble Lord has said is a part, but not the whole, answer to the problem that I have identified.

Lord Hylton

My Lords, I am extremely grateful to all noble Lords who have spoken to my amendment and to the others in this group. I should like to express my gratitude to the noble Lord, Lord Clinton-Davis, for what he said about information being given after three months' detention. I look forward to hearing from the noble and learned Lord the Attorney-General further details about the kind of information that will, I hope, be supplied monthly to detainees regarding the progress of their cases and any likely length of continuing detention. Having said that, I beg leave to withdraw my amendment.

Amendment, by leave, withdrawn.

6.45 p.m.

Clause 22 [Duty to report suspicious marriages]:

Lord Bassam of Brighton moved Amendment No. 18: Page 15, line 40, leave out from ("the") to end of line 42 and insert ("Secretary of State after consulting the Registrar General of Births, Deaths and Marriages for Scotland;").

The noble Lord said: My Lords, I hesitate to say this about any amendment for which I have responsibility, but this amendment and Amendment No. 19 are minor technical amendments. They will allow the regulations provided for in Clause 22 of the Bill, as they relate to the reporting of suspicious marriages in Scotland and Northern Ireland, to be made by the Secretary of State only after consultation with the Registrars General for Scotland and Northern Ireland respectively.

The amendments reflect the fact that, although immigration policy is reserved to the UK Parliament, it is appropriate for regulations that will affect registrars in Scotland and Northern Ireland to be consulted on with the Registrars General of those countries. Consequently, I am happy to commend these amendments to the House. I beg to move.

On Question, amendment agreed to.

Lord Bassam of Brighton moved Amendment No. 19: Page 15, line 43, at end insert ("after consulting the Registrar General in Northern Ireland").

On Question, amendment agreed to.

Clause 23 [Provision of facilities for immigration control at ports]:

Lord Bassam of Brighton moved Amendment No. 20: Page 16, line 8, at end insert ("there").

The noble Lord said: My Lords, this will not win the prize for the shortest amendment in parliamentary history; indeed, I believe that prize probably went to the noble Earl, Lord Ferrers. However, I am grateful to the noble Viscount, Lord Brentford, and the noble Lord, Lord Cope of Berkeley, for drawing my attention to this matter.

I am putting forward this amendment in response to their valued comments on Report. I trust that I made it sufficiently clear at that stage that there was no question, in relation to Clause 23, that we were seeking to transfer headquarter operations to ports as a means of reallocating costs.

Similarly, it was never our intention— that a port operator should be required to provide facilities without charge for the operation of immigration control, other than those which relate to the port in question. That being the case, I am content to put forward this small amendment to Clause 23 in the interests of clarity and I invite noble Lords to give it their full support. I beg to move.

Lord Cadman

My Lords, I should like briefly to express my appreciation to the Government for this simple amendment which will, I agree, localise the requirements of the Secretary of State in the provision of facilities at ports and airports. This should go a long way to relieve the concerns of the operators of these facilities, as negotiations regarding the provision of immigration facilities can be kept much more site specific and there will be much less generalisation. Thus any disputes should be more easily overcome and the offer of some independent scrutiny, as mentioned at an earlier stage of the Bill, will be made much more achievable. It is to be hoped that there will also be improvements in cost and practicality.

Lord Cope of Berkeley

My Lords, this is an excellent amendment, both in its content—which, as the Minister said, takes up a point that I and my noble friend raised on Report—and in its form. Indeed, as one of those who has occasionally criticised the parliamentary draftsmen, I should also like to take this opportunity to say that this amendment is a model of their art.

On Question, amendment agreed to.

Lord Williams of Mostyn moved Amendment No. 21: After Clause 28, insert the following new clause—


(" . —(1) It is a defence for a refugee charged with an offence to which this section applies to show that, having come to the United Kingdom directly from a country where his life or freedom was threatened (within the meaning of the Refugee Convention) he—

  1. (a) presented himself to the authorities in the United Kingdom without delay;
  2. (b) showed good cause for his illegal entry or presence; and
  3. (c) made a claim for asylum as soon as was reasonably practicable after his arrival in the United Kingdom.

(2) If, in coming from the country where his life or freedom was threatened, the refugee stopped in another country outside the United Kingdom, subsection (1) applies only if he shows that he could not reasonably have expected to be given protection under the Refugee Convention in that other country.

(3) In England and Wales and Northern Ireland, the offences to which this section applies are any offence, and any attempt to commit an offence, under—

  1. (a) Part I of the Forgery and Counterfeiting Act 1981 (forgery and connected offences);
  2. (b) section 24A of the 1971 Act (deception); or
  3. (c) section 26(1)(d) of the 1971 Act (falsification of documents).

(4) In Scotland, the offences to which this section applies are those—

  1. (a) of fraud,
  2. (b) of uttering a forged document,
  3. (c) under section 24A of the 1971 Act (deception), or
  4. (d) under section 26(1)(d) of the 1971 Act (falsification of documents),
and any attempt to commit any of those offences.

(5) A refugee who has made a claim for asylum is not entitled to the defence provided by subsection (1) in relation to any offence committed by him after making that claim.

(6) "Refugee" has the same meaning as it has for the purposes of the Refugee Convention.

(7) If the Secretary of State has refused to grant a claim for asylum made by a person who claims that he has a defence under subsection (1), that person is to be taken not to be a refugee unless he shows that he is.

(8) A person who—

  1. (a) was convicted in England and Wales or Northern Ireland of an offence to which this section applies before the commencement of this section, but
  2. (b) at no time during the proceedings for that offence argued that he had a defence based on Article 31(1),
may apply to the Criminal Cases Review Commission with a view to his case being referred to the Court of Appeal by the Commission on the ground that he would have had a defence under this section had it been in force at the material time.

(9) A person who—

  1. (a) was convicted in Scotland of an offence to which this section applies before the commencement of this section, but
  2. (b) at no time during the proceedings for that offence argued that he had a defence based on Article 31(1),
may apply to the Scottish Criminal Cases Review Commission with a view to his case being referred to the High Court of Justiciary by the Commission on the ground that he would have had a defence under this section had it been in force at the material time.

(10) The Secretary of State may by order amend—

  1. (a) subsection (3), or
  2. (b) subsection (4),
by adding offences to, or removing offences from, those for the time being listed there.

(11) Before making an order under subsection (10)(b), the Secretary of State must consult the Scottish ministers.").

The noble and learned Lord said: My Lords, in this group we also find Amendments Nos. 22, 62, 63, 66 and 67. Perhaps I may try to deal with them compendiously. Amendment No. 21 was tabled in response to the judgment in the case of Adimi and others which was handed down the day after the Committee stage of the Bill had been completed in this House. It was tabled for discussion but not moved on Report. We have taken the opportunity to consider the comments of the Select Committee and have made some drafting changes.

The purpose of the amendment is to ensure that someone who comes within Article 31(1) of the United Nations convention of 1951 is properly protected and does not have a penalty imposed on him on account of his illegal entry or presence. As I told your Lordships on an earlier occasion, we have already put in place administrative procedures to identify at an early stage Article 31(1) issues. Ideally, therefore, in relevant cases the matter would never come to court. Sometimes these arrangements will fail. They will fail to identify someone who comes within Article 31(1) and this amendment is therefore a further safeguard. I told your Lordships on Report that subsection (1) draws on the terms of the article itself. There is one addition, which is the requirement for anyone claiming the protection provided by this subsection to have applied for asylum as soon as is reasonably practicable. I think that that is a fair addition.

Subsection (2) limits the application of the defence created by subsection (1) where the refugee stopped in another country outside the United Kingdom. In such cases the defence applies only if the refugee shows that he could not reasonably have been expected to be given protection under the convention in that other country. This is—I recognise the force of what the noble Lord, Lord Avebury, said—a narrower definition than that which was adopted by the Divisional Court. I think that we are entitled to take our view, having considered the views of the court, and we have taken a different view.

The purpose of the convention is to enable people to escape from persecution. There is no obligation to facilitate the passage of a refugee to a country of his or her choosing. This does not mean that every refugee who passes through a third country be prosecuted; that does not happen at the moment and it will not happen in the future. I think that we are entitled to place a limit on what is called "forum shopping", deciding that one will accept an offer of safety in country B or C, but not in country A. As I said earlier on Report, the definition of "coming directly" was a generous one. There must come a time when an individual has stopped running away—that is the Article 31 situation—and has started travelling towards a preferred destination. We have tried to define this in subsection (2).

The offences for which the new defence will be available are listed in subsections (3) and (4). I believe that we have it right. There is quite a degree of conformity between this list and the offences listed in the amendment tabled by the right reverend Prelate the Bishop of Southwark at Report. If the list needs to be added to, this can be done by order, subject to affirmative resolution, by virtue of government Amendment No. 62, if that commends itself to your Lordships. The Select Committee on Delegated Powers and Deregulation suggested that removing offences from the list, and therefore removing the defence, was a more serious matter and should be a matter for primary legislation. We are happy to accept that suggestion and, in consequence, opposition Amendment No. 22 which stands in the names of the noble Lords, Lord Cope of Berkeley and Lord Goodhart, and the noble Viscount, Lord Astor.

I wish to deal briefly with those convicted of these offences in the past. I mentioned at Report that there is no central database which would enable us to identify those who have been convicted of one of the relevant offences who would not have been found guilty—and indeed probably would not even have been prosecuted— had a defence of the sort that we propose been available at the time. Subsections (8) and (9) permit anyone who has been convicted of a relevant offence in England, Wales, Northern Ireland or Scotland to apply to the relevant criminal cases review commission on the grounds that he would have had a defence had it been in force at the time. Cases where Article 31 has already been raised are excluded because the matter has already been addressed. It is plainly desirable—I think that your Lordships are all of this view—for the process, in other words, the protection provided by the clause, to start as soon as possible. If accepted, this amendment would come into force on Royal Assent by means of Amendment No. 66. Amendments Nos. 63 and 67 simply replace consequential amendments. I beg to move.

Lord Cope of Berkeley moved, as an amendment to Amendment No. 21, Amendment No. 22: Line 60, leave out (", Dr removing offences from,").

The noble Lord said: My Lords, I have no need to describe what this amendment does because the noble and learned Lord the Attorney-General has already explained its origins. I have no need to commend it to your Lordships because the noble and learned Lord the Attorney-General has already done so and mentioned his acceptance of it. I beg to move, as an amendment to Amendment No. 21, Amendment No. 22.

Lord Renton

My Lords, I support what my noble friend Lord Cope of Berkeley has said and I add briefly to that. We find in subsection (10) of the proposed new clause that, The Secretary of State may by order do various things. In our legislation we occasionally allow that to happen, but mostly to deal with administrative matters. However, here it is suggested that criminal offences can be removed merely by order. That, I think, is unusual and unacceptable. Therefore I think that the amendment which my noble friend has moved, and which is supported by the noble Lord, Lord Goodhart, is an important one.

Lord Goodhart

My Lords, I am most grateful to the noble and learned Lord the Attorney-General for that concession. I am sure that the Delegated Powers and Deregulation Committee will be as well.

Lord Hylton

My Lords, I think that this is a welcome amendment. But when the noble and learned Lord speaks further on it, will he say whether he expects that even a few prisoners now serving sentences will be released as a consequence?

Baroness Williams of Crosby

My Lords—

Lord Williams of Mostyn

My Lords, I reply to that point immediately because the noble Lord, Lord Avebury, raised this question on a previous occasion. My answer remains the same; namely, that given the time sequence and the likely sentences to have been imposed—the noble Lord discussed this and explained it—it is unlikely that anyone is still serving a sentence of imprisonment. However, I mentioned—I repeat this—that if any particulars were brought either to the attention of the noble Lord, Lord Bassam, or to myself, we would look into them immediately. As far as I am aware, no such particulars have been brought to our attention.

Baroness Williams of Crosby

My Lords, I revert for a moment to Amendment No. 21 and to what the noble and learned Lord the Attorney-General said about stopping in a country. For the moment I do not want to pursue the matter of people stopping somewhere on their way to this country. Rather, I ask the following question. Do the administrative instructions, which I understand are given to the Crown Prosecution Service—we are grateful for the information that was provided by the Home Office on this matter—extend to people who are travelling through Heathrow with the purpose, for example, of going to a destination in Canada? There have been. a number of cases of people who have been on their way to Canada to join other members of their family who have been prosecuted under the earlier procedures, the counterfeit Act and so on. Can the Minister tell us whether as a result of Clause 28 it is now unlikely that such people will be prosecuted but rather permitted to continue on their journey and be dealt with by the Canadian authorities?

Lord Williams of Mostyn

My Lords, I think that the best course is for me to procure the guidelines to the Crown Prosecution Service, provide a copy to the noble Baroness, and, as always, lodge a copy in the Library.

On Question, Amendment No. 22, as an amendment to Amendment No. 21, agreed to.

On Question, Amendment No. 21, as amended, agreed to.

Clause 30 [Code of practice]:

Lord Bassam of Brighton moved Amendment No. 23: Page 20, line 1, after ("must") insert (";—

  1. (a) consult such persons as he considers appropriate; and
  2. (b)")

The noble Lord said: My Lords, under Clause 30 the Secretary of State must issue a code of practice to be followed by any person operating a system for preventing the carriage of clandestine entrants. The effect of Amendment No. 23 would be to make it mandatory for the Secretary of State to consult such persons as he considers appropriate before laying the code of practice before Parliament. The noble Lord, Lord Berkeley, raised this issue at Report stage and the noble and learned Lord, Lord Falconer of Thoroton, undertook at that time to table a government amendment covering this point.

The Government are fully committed to consultation and dialogue with industry representatives in the development of the code of practice and Amendment No. 23 seeks to reflect this commitment. Amendment No. 24 makes it clear that any consultation that the Government have undertaken prior to the coming into force of the Act will count towards the Secretary of State's obligations to consult before issuing a code of practice.

The Government have been in consultation for some time with the road haulage industry about the contents of the code of practice for road freight and we think it only right that the amendment to the Bill should provide for this consultation to be taken into account in respect of the Secretary of State's obligations. I commend these amendments to the House. I beg to move.

7 p.m.

Viscount Astor

My Lords, I do not know whether the Minister wishes at this stage to deal with Amendment No. 25 standing in my name, which is grouped with this amendment, or whether it is intended that it should be degrouped and dealt with at another stage.

Lord Bassam of Brighton

My Lords, I am quite happy for the noble Earl to speak to his amendment now, following which I will respond.

Viscount Astor

My Lords, we discussed Amendment No. 25 at an earlier stage. It puts in a defence for a carrier if that carrier can show that the entrant was subsequently admitted to this country and granted protection under the refugee convention or the Human Rights Act. This amendment not only gives some protection to carriers but also eradicates an anomaly that we feel is apparent in the Bill.

Perhaps I could at this stage ask the Minister about the code of practice. I understand that since Report stage not much progress has been made in regard to the consultations. I note that the Minister will be seeking expert advice. Can he confirm that there are two different codes for road and rail and that the advice will include those two different codes? It would be helpful if the Minister could at this stage say what progress has been made on the code of practice.

Baroness Williams of Crosby

My Lords, I briefly address Amendment No. 25. As the Ministers will know, we have on a number of occasions reverted to the issue of what would happen if a clandestine entrant made himself known immediately as an asylum seeker or was proved later to be one. It has always seemed to us profoundly unfair that those who carry, without any intention of doing so, people who later turn out to be genuine asylum seekers should be treated on all-fours with those who deliberately bring in people intending to be in breach of our immigration laws and indeed intending to be illegal entrants. At present the Bill makes no such distinction between the two categories.

Amendment No. 25 is very cautiously worded. It makes plain that the carrier would not receive any form of protection from penalties if he, either knowingly or unknowingly, brought in somebody who intended to come to this country without declaring himself to be an asylum seeker, or if that person was not subsequently granted asylum. It is, therefore, a very narrowly and cautiously drawn amendment. It makes clear that what is proposed will only hold in the case of somebody who is subsequently admitted to the United Kingdom, and that in that event, and only in that event, the fine which would otherwise be payable would retrospectively be returned.

The amendment is designed very carefully within the context of the refugee convention or the Human Rights Act 1998. Very strict penalties would fall upon harbingers who brought in a clandestine entrant other than on the strongest possible grounds under the provisions. They would be penalised very heavily; they might even put their lorries or other forms of transport at risk.

In the circumstances, we believe that this is a modest request for a reasonable level of refund to those who would otherwise he penalised for bringing in somebody who turned out to be a genuine asylum seeker, genuinely accepted in this country. The amendment should commend itself to Ministers.

Lord Bassam of Brighton

My Lords, we have for some time considered Amendment No. 25. It seeks to introduce an additional defence against the civil penalty where the carrier can show that the clandestine entrant has been granted refugee status or protection under the European Convention on Human Rights.

As we have said on a number of occasions during our discussions on the civil penalty, the Government understand the genuine and sincere concerns which underlie such amendments as this. However, I believe that the amendment would damage the effectiveness of the civil penalty in combating the problem of clandestine illegal entry and would not benefit genuine asylum seekers.

This Government have a strong and honourable human rights record and remain fully committed to honouring their obligations under the 1951 convention as and when refugees reach the UK. However, there is no obligation on the United Kingdom, or on any other government, to facilitate the travel here of persons who propose to claim asylum under the 1951 convention or ECHR protection under Article 3.

The civil penalty is intended to address the large and increasing problem of clandestine illegal entrants. Many of these clandestine entrants subsequently claim asylum and indeed travel here with that intention. However, only a very small proportion have their claims accepted. Other provisions in the Bill are intended to deter the increasing number of persons who are travelling to the United Kingdom with the intention of using a claim for asylum as a means of establishing themselves for economic betterment rather than genuinely fleeing persecution. At the moment, such persons increasingly use clandestine illegal entry.

The Government do not believe that the deterrent effect of the civil penalty can be diluted in this way. Nor can we dilute the message to drivers, owners and operators of vehicles about the security measures they must take which the civil penalty is intended clearly and in a very straightforward way to encourage.

Lord Cope of Berkeley

My Lords, I apologise for interrupting the Minister. He has spoken of deterring those who may abuse the system who are not genuine asylum seekers. However, it also deters genuine asylum seekers. We are absolutely at one in relation to deterring those who would abuse the system. This amendment does nothing to weaken the deterrent in that sense. It only weakens the deterrent on genuine asylum seekers where they are carried. However, it is also extremely unfair on the lorry driver or the carrier concerned if he actually turns out to have carried a genuine asylum seeker.

Lord Bassam of Brighton

My Lords, I have listened with interest to what the noble Lord has said. However, I return to the point that we believe that this amendment would significantly weaken our defences. We cannot do anything that would give encouragement to clandestine entrants and to drivers or owners or operators of vehicles to lower the level of security measures which they must take and which the civil penalty is intended to encourage.

In the context of the need to take those security measures and to make appropriate checks, the question of whether any concealed individual might or could make a successful asylum claim or a claim for protection under the ECHR is simply irrelevant. The checks are designed to ensure that no one is concealed; no one should be there. If the checks locate any concealed person, given that the person concealed will already be in a country of safety, they will have no need to travel to the UK to make a claim. We do not accept that there is an obligation to facilitate the travel here of persons who propose to claim asylum under the 1951 convention or protection under Article 3 of the ECHR.

In relation to clandestine entrants, we do not accept that the ECHR would require us to refund penalties even if the clandestine entrant eventually obtains Article 3 protection. The fact that a person, once here, has a right not to be removed is irrelevant to the question of whether the person responsible took proper precautions to prevent their carrying clandestine entrants generally. If they are faced with a person who wishes the driver to take them concealed into the United Kingdom, they should refuse. There is no reason for anyone to come to the United Kingdom concealed, as opposed to coming openly. Moreover, in most cases, the clandestine entrant will attempt to enter the United Kingdom from other member states of the EU who have a strong commitment to considering claims for protection. Such states are likely to be responsible under the terms of the Dublin Convention.

It is true that there is provision for carriers' liability charges to he refunded where an asylum application is successful. However, the circumstances are very different. There is a great degree of control over fare-paying passengers entering aircraft and ferries, so the scope for illicit travel is low.

The purpose of the penalty is to ensure security and to ensure that clandestine entrants are properly regulated and checked before they have an opportunity to enter the United Kingdom. We believe that the amendment would encourage drivers to take risks by not bothering to make proper checks.

I turn to the question raised by the noble Viscount, Viscount Astor, as to the level of consultation. We have consulted very carefully over the codes or practice. Indeed, we have had a good deal of discussion and consultation with the industries that are affected—the FTA, RHA, Eurolines, International Transport Union and the EWS for rail. I am happy to give a commitment that this is a continuing process. We wish to continue the helpful discussions and negotiations about the content of the draft code of practice.

I return to my earlier point. The civil penalty is aimed at a much less secure situation. It is designed to encourage checks by drivers to prevent generally the carriage of clandestine entrants. This is of paramount importance. The motives of individuals who may be concealed are irrelevant to our consideration of this part of the legislation.

I urge your Lordships to assist us in strengthening our position in terms of protecting against clandestines, and to reject the amendment.

Lord Dholakia

My Lords, before the Minister sits down, he mentioned that there had been a number of consultations with the firms involved. Can he give some indication of their reaction and the outcome of the consultation with the Home Office?

Lord Bassam of Brighton

My Lords, it is always difficult to summarise and I should hate to get it wrong. There is an appreciation and an understanding of the scope of the problem. I accept fully that our proposals will not satisfy and meet the concerns of all of those with whom we have consulted. But in terms of drawing up a code of practice and making that code of practice effective—and making the legislation effective—there is an understanding. As I said, we are more than happy to continue those consultations so that we can better perfect the code of practice.

On Question, amendment agreed to.

Lord Bassam of Brightonmoved Amendment No. 24: Page 20, line 2, at end insert— ("( ) The requirement of subsection (2)(a) may be satisfied by consultation before the passing of this Act.").

On Question, amendment agreed to.

Clause 31 [Defences to claim that penalty is due under section 29]:

Viscount Astor moved Amendment No. 25: Page 20, line 13, at end insert— ("() It is also a defence for the carrier to show that the clandestine entrant was subsequently admitted to the United Kingdom and granted protection under the Refugee Convention or the Human Rights Act 1998.").

The noble Viscount said: My Lords, everything that the Minister said improved our argument, not his. The amendment is carefully drafted; it does not encourage bogus asylum seekers; it removes an anomaly from the Bill that the Minister admitted exists at the moment; it protects genuine asylum seekers; and it protects drivers and carriers. I should like to seek the opinion of the House. I beg to move.

7.12 p.m.

On Question, Whether the said amendment (No. 25) shall be agreed to?

Their Lordships divided: Contents, 117; Not-Contents, 121.

Division No. 1
Addington, L. Limerick, E.
Aldington, L. Lindsey and Abingdon, E.
Alexander of Tunis, E. Linklater of Butterstone, B.
Alton of Liverpool, L. Lucas of Chilworth, L.
Annaly, L. Luke, L.
Astor, V. Lyell, L.
Avebury, L. Mackie of Benshie, L.
Barker, B. McNair, L.
Belstead, L. Maddock, B.
Brabazon of Tara, L. Mar and Kellie, E.
Brentford, V. Massereene and Ferrard, V.
Bridgeman, V. Mayhew of Twysden, L.
Burnham, L. [Teller] Miller of Chilthorne Domer, B.
Byford, B. Monk Bretton, L.
Carlisle, E. Montrose, D.
Carnegy of Lour, B. Morris, L.
Carnock, L. Mountevans, L.
Clancarty, E. Moynihan, L.
Clement-Jones, L. Napier and Ettrick, L.
Cochrane of Cults, L. Newby, L.
Colwyn, L. Northbrook, L.
Cope of Berkeley, L. Northesk, E.
Courtown, E. Norton, L.
Craigmyle, L. Norton of Louth, L.
Cross, V. Onslow, E.
Darcy de Knayth, B. Oxfuird, V.
Denham, L. Palmer, L.
Dholakia, L. Park of Monmouth, B.
Dixon-Smith, L. Pearson of Rannoch, L.
Ellenborough, L. Razzall, L.
Fairfax of Cameron, L. Redesdale, L.
Falkland, V. Rennard, L
Fookes, B. Renton, L.
Gardner of Parkes, B. Roberts of Conwy, L.
Rodgers of Quarry Bank, L.
Geraint, L. Rowallan, L.
Gisborough, L. Russell, E.
Gladwyn, L. St.John of Bletso, L.
Goodhart, L. St. John of Fawsley, L.
Greenway, L. Sharp of Guildford, B.
Grey, E. Sharples, B.
Hamwee, B. Shaw of Northstead, L.
Harmar-Nicholls, L. Skidelsky, L.
Harris of Greenwich, L. Stodart of Leaston, L.
Harris of Richmond, B. Swinfen, L.
Henley, L. [Teller] Taverne, L.
HolmPatrick, L, Teviot, L.
Hood, V. Teynham, L.
Hooper, B. Thomas of Gwydir, L.
Hooson, L. Thomas of Walliswood, B.
Hylton,L. Thurso, V.
Jacobs, L. Tope, L.
Kimball, L. Wallace of Saltaire, L.
Kingsland, L. Watson of Richmond, L.
Kinnoull, E. Wilcox, B.
Laird, L. Williams of Crosby, B.
Lawrence, L. Wise, L.
Leigh, L. Wynford, L.
Lester of Herne Hill, L. Young, B.
Acton, L. Blease, L.
Ahmed, L. Borrie, L.
Alli, L. Bragg, L.
Amos, B. Brett, L.
Archer of Sandwell, L. Brooke of Alverthorpe, L.
Ashton of Upholland, B. Brookman, L.
Bach, L. Brooks of Tremorfa, L.
Barnett, L. Burlison, L.
Bassam of Brighton, L, Carmichael of Kelvingrove, L.
Blackstone, B. Carter, L. [Teller]
Chandos, V. King of West Bromwich, L.
Clarke of Hampstead, L. Kirkhill, L.
Cledwyn of Penrhos, L. Lea of Crondall, L.
Clinton-Davis, L. Lipsey, L.
Cocks of Hartcliffe, L. Lockwood, B.
Crawley, B. Lofthouse of Pontefract, L.
David, B. Longford, E.
Davies of Coity, L. Macdonald of Tradeston, L.
Davies of Oldham, L. McIntosh of Haringey, L.
Dean of Thornton-le-Fylde, B. [Teller]
Desai, L. McIntosh of Hudnall, B.
Dixon, L. Mackenzie of Framwellgate, L.
Donoughue, L. Mallalieu, B.
Dormand of Easington, L. Massey of Darwen, B.
Dubs, L. Merlyn-Rees, L.
Elder, L. Milner of Leeds, L.
Evans of Parkside, L. Molloy, L.
Evans of Watford, L. Monkswell, L.
Ewing of Kirkford, L. Montague of Oxford, L.
Falconer of Thoroton, L. Morris of Manchester, L.
Farrington of Ribbleton, B. Orme, L.
Faulkner of Worcester, L. Paul, L.
Filkin, L. Pitkeathley, B
Gainsborough, E. Plant of Highfield, L.
Gale, B. Ponsonby of Shulbrede, L.
Gilbert, L. Prys-Davies, L
Goldsmith, L. Puttnam, L.
Goudie, B. Ramsay of Cartvale, B.
Gould of Potternewton, B. Randall of St. Budeaux, L.
Grabiner, L. Rendell of Babergh, B.
Graham of Edmonton, L. Sainsbury of Turville, L.
Grantchester, L. Scotland of Asthal, B.
Grenfell, L. Sefton of Garston, L.
Hacking, L. Serota, B.
Hardy of Wath, L. Shepherd, L.
Harris of Haringey, L. Sheppard of Liverpool, L.
Harrison, L. Shore of Stepney, L.
Hayman, B. Simon, V.
Hilton of Eggardon, B. Stoddart of Swindon, L.
Hollis of Heigham, B. Strabolgi, L.
Howells of St. Davids, B. Symons of Vernham Dean, B.
Hoyle, L. Taylor of Blackburn, L.
Hughes of Woodside, L. Thornton, B.
Hunt of Kings Heath, L. Uddin, B.
Irvine of Lairg, L. (Lord Varley, L.
Chancellor) Warner, L.
Islwyn, L. Warwick of Undercliffe, B.
Jay of Paddington, B. (Lord Whitty, L.
Privy Seal) Wilkins, B.
Jenkins of Putney, L. Williams of Mostyn, L.
Kennedy of The Shaws, B Woolmer of Leeds, L.
Kennet, L. Young of Old Scone, B.

Resolved in the negative, and amendment disagreed to accordingly.

7.23 p.m.

Clause 41 [Bail hearings for detained persons]:

[Amendments Nos. 26 and 27 not moved.]

Clause 48 [Procedure]:

The Deputy Speaker (The Viscount of Oxfuird)

My Lords, call Amendment No. 28.

Lord Hylton

My Lords, on behalf of my noble friend Lord Sandwich, I thank the noble and learned Lord the Attorney-General for his helpful comments on the amendment, and in particular his remarks reflecting the Government's overall acceptance of the thrust of the amendment. With that, I shall not move Amendment No. 28,

[Amendment No. 28 not moved.]

Clause 50 [Applications for bail in immigration cases]:

Lord Bassam of Brighton moved Amendment No. 29: Page 37, line 43, at end insert;— ("( ) In so far as regulations under this section relate to the sheriff or the Court of Session, the Lord Chancellor must obtain the consent of the Scottish Ministers before giving his approval.").

On Question, amendment agreed to.

Clause 60 [Deportation orders]:

Lord Avebury moved Amendment No. 30: Page 41, line 39, after ("3(5)") insert ("or (6)").

The noble Lord said: My Lords, on the last occasion that we considered this matter, the noble and learned Lord, Lord Falconer of Thoroton, said: the court which made the deportation order will have taken into consideration the convicted person's circumstances before making the recommendation". —[Official Report, 18/10/99; col. 920.] That was the first of four reasons that he gave for rejecting the amendment, which I am moving again today. It provides for a right of appeal to an adjudicator in cases where a decision is made by the Home Secretary to make a deportation order following a recommendation of a criminal court.

With respect, a criminal court is not the forum in which to deal with immigration matters. Factors that need to be considered when arriving at a decision to deport may only be put before the court to the extent that they are covered by evidence given in connection with the offence on which the person is being tried. Those working in the criminal justice system are not familiar with immigration law. Most do not have any expertise in the field. Indeed, Part V of the Bill before us is predicated on the assumption that we need to identify solicitors who have the capacity to engage in immigration casework.

Unfortunately, not only criminal practitioners have little experience of immigration cases. That observation applies also to judges when passing sentences in the criminal courts. I refer noble Lords to Regina v. Rodney [1998] INLR 118 in the Court of Appeal when the court considered an appeal against the making of a recommendation. In that case, counsel for the Crown stated as follows: Mr. Van De Bijl, who has helped the court, from the Crown's point of view, says that in his experience judges frequently tack on a recommendation for deportation to a sentence of imprisonment without giving some reasons because it is a subsidiary matter". It is a not a matter that receives proper consideration by the criminal court. It is often thought that, on completion of the sentence, the matter will fall to be determined by the Secretary of State.

The noble and learned Lord, Lord Falconer of Thoroton, when stating his reasons for rejecting the amendment on Report, elided these matters. He said: To have a Court of Appeal recommendation reviewed and possibly overturned by an adjudicator or even a tribunal would seem inappropriate". —[Official Report, 18/10/99; col. 920.] However, that is not the recommendation which would be overturned by the adjudicator. If Amendment No. 30 is accepted, the court will pass sentence and if that sentence includes a recommendation for deportation, the person serves the sentence of imprisonment and then, at the end of the sentence, the Secretary of State shall consider whether to accept the recommendation for deportation. The reason why he does that only at the end of the sentence is of course because the circumstances may have changed. The person may have been in prison for two years. His family circumstances and the conditions in his country of origin may have changed, and therefore a decision on whether to deport is not the same as a decision on whether to recommend deportation. I believe that that point was overlooked by the noble and learned Lord, Lord Falconer of Thoroton, when replying on the last occasion.

If we accept that it is right that there should always be an appeal against a recommendation to deport, then the amendment should be inserted into the Bill. It provides that when a person reaches the end of a prison sentence, the Secretary of State shall consider the new circumstances that then obtain. If he makes a decision to deport a person, that person has the same right to appeal against it as anyone else. I beg to move.

7.30 p.m.

Lord Cope of Berkeley

My Lords, when we started this process following the White Paper—it seems like a very long time ago—there was a proposal for a one-stop appeal. I thought that that was a good proposal. It seemed to be a good idea that all the matters in dispute should be taken into account in a single appeal, both to ensure that everything was considered in the round as opposed to individual pieces being taken in different tribunals at different times and because that would speed up the process. An important aim of the White Paper was to speed up the process. However, as we have gone through all the various details of the Bill, it seems to me that the one-stop appeal has frayed at the edges. I shall not say that it has disappeared altogether, but it is fraying. These amendments would help to boost the idea of a one-stop appeal with everything being considered at the same appeal. For that reason, I have some sympathy with the spirit that lies behind the amendments.

Baroness Williams of Crosby

My Lords, I am grateful to the noble Lord, Lord Cope, for those words. I should like to revert to the amendments and ask the Government to explain to the House why they believe that their amendments assist us in achieving a one-stop appeal. We have always understood the Government's purpose in seeking a one-stop appeal to be the avoidance of the need for a series of separate appeals of the kind that has plagued them for several years and indeed plagued their predecessors. If there is to be a one-stop appeal—we have always supported that idea—that appeal, as the noble Lord, Lord Cope, pointed out, has to be able to consider all the circumstances. To limit it simply to looking at the technical correctness of a decision made by the Secretary of State will not adequately address the question of the removal of the asylum seeker or his ability to stay in this country.

In the period between the first hearing and the process of appeal some circumstances may have changed. Perhaps I may give two obvious examples. In the case of two Commonwealth countries, Pakistan and Nigeria, over a short period one of those countries has moved from being a democracy to being a dictatorship and the other has moved from being a dictatorship to being a democracy. Therefore, the relevant considerations as to whether someone seeking asylum should be deported have changed totally in a short period. Those are the kinds of issues, as well as personal issues—someone getting married or having a child—that should be considered at the final process of appeal so that there cannot be further reversions to judicial review or other appeals, with the process thereby being extended as it has been so often in the past.

We should strongly support that, but only if the adjudicator is able to look at all the considerations that arise; for example, compassionate circumstances, the situation in the country to which the person concerned would otherwise be returned, and so on. We think that only if all the matters relevant to the question of whether the person should remain in the UK can be considered by that appeal can it be genuinely described as meeting the promise of the White Paper.

The White Paper referred to the new appeal as "comprehensive". It said that there would be a single comprehensive right of appeal and that that should lead to finality. We find all of that very attractive. What we are troubled by is what the Government themselves seem to be doing in somewhat weakening the process of the one-stop appeal—trying to limit it, trying to constrain it and trying to limit what the adjudicator can actually consider. Therefore, we should like to know why the Government do not seem willing to support the point of view that we are expressing in these amendments—the three amendments in my name and the other amendments—which is that the one-stop appeal should have complete scope to deal with all considerations: both the past technical correctness of the Secretary of State's decision and the circumstances that affect the asylum seeker at the moment the appeal is being considered. If that happened, we believe that the ideal of a one-stop appeal could be met and the Government would avoid a great many of the problems which they have had to encounter in the past. We should like to inquire why the Government have not been able to embrace these amendments.

Lord Williams of Mostyn

My Lords, whatever result this clutch of amendments, if passed, might bring about, a one-stop appeal is certainly not one of them.

I shall deal, first, with Amendment No. 30, which was moved by the noble Lord, Lord Avebury. The government amendments are Amendments Nos. 31, 32, 33 and 34. The noble Baroness, Lady Williams of Crosby, spoke to Amendments Nos. 35, 36, 37 and 71. I am speaking on the basis that no other noble Lord wishes to intervene.

Far from providing a one-stop appeal, the amendment of the noble Lord, Lord Avebury, would do completely the opposite. The noble Lord's amendment would confer a further avenue of appeal on convicted persons who have been given notice of a decision to deport following the recommendation of a court. There is no such right in the 1971 legislation and I cannot find any good reason for introducing one. In the situation of which the noble Lord spoke, the sentencing court—this is not someone who has come here applying for asylum but someone with a criminal conviction—considers the circumstances and makes a recommendation for deportation. The Secretary of State then reconsiders the circumstances in full, providing his review. If his review is not fair, it can be overturned at judicial review. The convicted person—someone convicted of a crime—has a right of appeal against the sentence itself through the criminal justice system; that is, the Court of Appeal Criminal Division. Furthermore, no person who has a ground for making a human rights or asylum claim is disadvantaged because such a claim will, if refused, attract a separate right of appeal under the appropriate clause of the Bill. Whatever else the amendment does, I say again—I hope courteously—it does not produce a one-stop appeal.

Amendments Nos. 35 and 36, in the name of the noble Baroness, Lady Williams, would enable immigration appellants to bypass the one-stop system by making fresh applications direct to an adjudicator. The purpose of Clauses 74(3) and 74(4) is to set out the distinction which exists in case law, but is not apparent from the 1971 legislation, between immigration appeals and asylum appeals. The point of an immigration appeal is to review the decision which has been taken. The evidence to be considered must relate to that specific decision. The adjudicator has no part in considering what amounts to a fresh application which has not been considered by the Secretary of State. In any event, the appellant will have had the opportunity to raise further matters for the Secretary of State's consideration when invited to do so.

The Court of Appeal has ruled that asylum cases are different. For the purposes of this clause, we have included claims under Article 3 of the convention on human rights. The basis of an asylum appeal is that removal pursuant to the decision on the claim would be contrary to the 1951 convention, not that the Secretary of State's decision was wrong. In these cases, which look forward to an event in the future, it has been held that the adjudicator must consider all the evidence available to him. In asylum cases, the situation in the country of origin is generally the main element of the evidence. That situation may change between decision and appeal. The Home Office constantly monitors general situations in countries of origin and is therefore able to submit the latest information without delay.

We have looked before at a variant of Amendment No. 71. Sub-paragraph (4A), taken with subparagraph (4B), would require an adjudicator to allow an appeal in the case of a published concession as if that concession was in the Immigration Rules. We have been considering the question of concessions for some time, as was explained earlier, and we have stated that we shall give adjudicators the power that the amendment proposes. But we plan to do that by reviewing, updating and rationalising the concessions and then incorporating them in the Immigration Rules. That has the benefit of empowering adjudicators to consider the matters now covered by concessions, and of empowering Parliament with some control over those concessions. After all, the point of the Immigration Rules is to set out, the practice to be followed in the administration of the Immigration Acts regulating entry into and stay of persons in the United Kingdom". Sub-paragraph (4C) would in effect make the adjudicator a first-instance decision-maker. We do not think that that can be right.

I now turn to government Amendments Nos. 31 to 34. Amendments Nos. 31 to 33 are drafting improvements to Clause 70 and have no effect on the meaning. They transfer the phrase, "could reasonably", from the first line of Clause 70(2)(a) to the beginning of each of the two options that follow. Amendment No. 34 is a correction consequential upon a government amendment agreed by this House on Report: we combined two clauses into what is now Clause 74.

Lord Avebury

My Lords, the Minister said that he could see no good reason for including this amendment in the Bill. Why then did the Government see fit to include the provision in the first instance? I often think that governments include provisions in Bills for which there is no good reason, but this is the first time I have heard a plain admission from a Minister on the Floor of the House that they have actually done so. The Minister has argued that the provision was not in the 1971 Act. I seem to remember, when I first came to this House, speaking and voting against a great many of the provisions in the 1971 Act. That does not seem a very good argument either.

On Report, the noble and learned Lord, Lord Falconer of Thoroton, did not explain, when I asked him to do so, why the Government, who in their wisdom included this provision in the Bill in the first instance and kept it there throughout the discussions they had with the agencies, subsequently withdrew it. The reasons given by the noble and learned Lord were wholly spurious. He did not attempt to address my argument that the criminal system had no competence to deal with immigration matters, and that criminal lawyers and judges were wholly ignorant of the immigration system—

Lord Williams of Mostyn

My Lords, perhaps I may respond. It is not right to suggest that sentencing judges are wholly ignorant of their powers. What they are doing is, I repeat, sentencing someone following a criminal conviction. That is a different kind of exercise to the one we have been considering throughout most of the passage of the Bill.

Lord Avebury

My Lords, perhaps I may refer the noble and learned Lord to the remarks of Lord Justice Simon Brown in the Adimi case. The noble Lord has heard these quotations many times and is probably familiar with the judgment. Lord Justice Simon Brown said that it was a "striking fact", acknowledged by the respondents, that, until the challenges were brought, no arm of the State, neither the Secretary of State, the DPP, nor anyone else, had apparently given the least thought to the United Kingdom's obligations under Article 31"— something he described as, plainly a most unsatisfactory state of affairs". If refugees can be so let down by the criminal justice system, what chance has anyone else who is liable to immigration control?

There is good reason for including the amendment in the Bill. Sentencing courts may well be able to consider the circumstances of the defendant at the time. But, as I explained in moving the amendment, we are talking about two different events. We are talking about what happens in the criminal court when a person is sentenced, and the position, possibly several years afterwards, when the Secretary of State comes to consider that recommendation.

Many criminal practitioners are totally unaware of the fact that there is no appeal against the decision and that the Secretary of State almost automatically upholds the recommendations made by the criminal court. The last chance that a person has is to appeal against the sentence, which is by no means the same as appealing against a decision to deport when the circumstances may be wholly different. My noble friend Lady Williams of Crosby pointed to the situation in two countries where conditions changed overnight. That might well make a great deal of difference to a person from one of those countries who has been sentenced by a court of law. By the time the Secretary of State comes to examine the recommendation to deport, the government in a country of origin may have wholly changed. In one case cited it was for the better; and in the other it was for the worse.

I can see that it is impossible for me to make any impression on the noble and learned Lord. Therefore, again with the greatest reluctance, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 70 [Limitation on further appeals]:

Lord Williams of Mostyn moved Amendments Nos. 31 to 33: Page 46. line 43, leave out ("could reasonably"). Page 46. line 44, at beginning insert ("could reasonably"). Page 47. line 1. at beginning insert ("could reasonably").

On Question, amendments agreed to.

Clause 72 [Duty to disclose grounds for entering etc the United Kingdom]:

Lord Williams of Mostyn moved Amendment No. 34: Page 49, line 12, leave out (", 74 or ("one-stop" appeals: other cases)") and insert ("or 74").

On Question, amendment agreed to.

Clause 74 ["One-stop" appeals]:

The Deputy Speaker

My Lords, I must advise the House that, should Amendment No. 35 be agreed to, I cannot call Amendment No. 36 due to pre-emption.

Baroness Williams of Crosby moved Amendment No. 35: Page 50, leave out lines 17 to 20.

The noble Baroness said: My lords, I wish to press further the issues raised by the noble and learned Lord the Attorney-General. I remain puzzled. He said that the Home Office kept abreast of changes in countries to which an asylum seeker or immigrant might be returned. I do not doubt that. The noble and learned Lord also recognised that circumstances could change. However, it remains unclear to me how, without amendments along the lines of mine, it would be possible for an adjudicator to consider issues that had arisen after the Secretary of State's first decision and before the decision to deport or return the immigrant to the country from which he came. I do not refer to ECHR cases or cases under the refugee convention.

It may be that the Home Office has the information that is needed. However, I am still not clear what happens if the compassionate factors that exist in cases where the White Paper promised that they would be taken into account can be taken into account unless, at the appeal, such matters can be part of the general consideration given to the case that has been made. Given the basis of the legislation, including the Minister's amendment, I do not understand how it would be possible to do that. That seems to me to force people into claiming asylum or claiming ECHR status when they have no entitlement to it because there seems to be no other way in which compassionate factors or changes in the country or origin can be fully taken into account. Perhaps the noble and learned Lord can reassure me. So far, he has not done so. I beg to move.

On Question, amendment negatived.

[Amendments Nos. 36 and 37 not moved.]

Lord Bach

My Lords, I beg to move that proceedings after Third Reading be now adjourned. In moving this Motion, I suggest that proceedings be resumed not before 8.50 p.m.

Moved accordingly, and, on Question, Motion agreed to.