Asylum and Immigration (Treatment of Claimants, etc.) Bill
2:30 pm

Report received.

Clause 2 [Entering United Kingdom without passport, &c.]:

Photo of Lord Bassam of Brighton

Lord Bassam of Brighton (Government Whip (technically a Lord in Waiting, HM Household); Labour)

moved Amendment No. 1:

Page 2, line 20, leave out "to prove"

Photo of Lord Bassam of Brighton

Lord Bassam of Brighton (Government Whip (technically a Lord in Waiting, HM Household); Labour)

My Lords, the amendments will provide two new defences to the offence of being without a valid immigration document at a leave of asylum interview. Amendments Nos. 6 and 12 will do that by adding two new defences to those listed in subsection (4) and by making the defences available in subsection (5) to someone who is charged with the offence in respect of a child.

The first defence ensures that, if a person has no valid immigration document, he has a defence if he can produce a false document and can prove that it is the one that he used for all purposes in connection with his journey to the United Kingdom. As has been stated in this House and in another place, we understand that not everyone will have a valid passport available to them and that they will consequently find other means to travel to the United Kingdom. We want people to be honest about those means and to ensure that those travelling on false passports are upfront about the fact and present them to us. The destruction and disposal of false passports hinders immigration control and fuels the work of facilitators in much the same way as the destruction or disposal of valid passports.

The defence will make clear to an individual travelling on a false passport the advantages of retaining it in order to protect himself from committing an offence. A person who travels on a false passport that he then destroys or disposes of will not be able to rely on that specific defence. He may still seek to rely on the defence of reasonable excuse for not being in possession of a valid document or that of never having had a valid document. In those cases, though, we would expect the person to establish that it was indeed his false and not his valid passport that he destroyed or disposed of and to explain why he disposed of it. Amendment No. 13 provides a definition of the term "false immigration document", which is needed as a consequence of Amendments Nos. 6 and 12, which provide a defence related to the production of such a document.

I hope that the second defence will be welcomed by your Lordships' House. We have listened to and carefully considered the concerns raised in Committee in this House and in another place about when the offence is intended to bite. It has always been clear that the offence is designed to capture the mischief of destroying or disposing of immigration documents en route to the United Kingdom. It will not target those who have never had an immigration document during their journey. In creating the additional defence, we have sought to address those concerns.

The amendments will provide that it is a defence for a person to prove that he never had such a document during his journey to the United Kingdom. That puts beyond doubt our intention to catch only those who have destroyed or disposed of their immigration document, not those who never had one. The other amendments are consequential. I beg to move.

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Baroness Anelay of St Johns (Shadow Minister, Home, Constitutional & Legal Affairs; Conservative)

My Lords, I support the Government's amendments. I welcome the fact that the Government are still trying to provide greater clarity by ensuring that the clause will penalise only those who intentionally destroy or dispose of the immigration document that they have used to travel to the UK, where they then claim asylum or intend merely to disappear into the population at large, as some people do.

The clause was improved considerably in another place, which takes us one step further. While I agree that it is right to ensure that those who are fleeing from persecution or being trafficked illegally should not fall foul of the penalty in this clause, I have one or two questions to ask about the potential impact of the government amendments.

Does the Minister see any potential problem with the provision that perhaps could be seen as acting as a stimulus to the trade in false papers? Does the Minister think that it might act as a signal to people who are economic migrants—not those who are fleeing from persecution, as so many do, to come to these shores—that perhaps there is a way around the penalty if they are able to afford to buy forged or stolen documents? I am sure that the Minister is as concerned as I am about the stories of the problems faced by people who put themselves and their families into hock with the vile people who trade in false papers because of the huge costs involved in buying them and in being transported here.

If people come to these shores, what do they have to prove to the Government to show that they have used those documents throughout? For example, do such people have to prove that they used the documents at all stages of their journey from their country of origin or does it apply only for that leg of the journey where they come into this country? As noble Lords are well aware, people who travel from around the world are taken on goodness knows how many different types of journey before they are finally in safety in this country.

How will those people be able to prove when and where they started to use those particular documents? What kind of proof will the Government accept as valid? I realise that if the Government's experiment with documentation by carriers in Clause 11 is considered by the Government to be successful at some later stage, the Johannesburg experience may spread further but not, I believe, worldwide, as under the Government's current plans.

That causes a problem because some people who are coming here might face questioning about their documents and have to provide for the Government a level of proof about where they got their false documents and how long they have used them, but that might not affect everyone. The difficulty is that the carriers, who are required to follow rules about documentation under Clause 11, are not all the carriers worldwide. They appear to be just those who are providing the carriage of the person from their last port of call, such as Johannesburg to the United Kingdom, whereas we know that many people use other airports as a hub.

I am asking the Government to give the House assurances about the level of proof that people will have to give about when they started using their false documents; that is, whether the proof must be from all around the world or from just before they came into this country. What is the duty placed on that person therefore in garnering and preserving any relevant information?

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Lord Avebury (Shadow Minister, Foreign & Commonwealth Affairs; Liberal Democrat)

My Lords, I entirely agree with the point just made by the noble Baroness, Lady Anelay. At Question Time, the noble Baroness, Lady Amos, told us that there are 2 million Zimbabwean refugees in South Africa. As we know, some of them attempt to come here on false South African passports. But the documents that they use to travel from Zimbabwe to South Africa, if any, would be lost in the mists of history. I agree with the noble Baroness that we need clarification from the Minister about whether the first of the two amendments means that the document at which we are looking is simply the one on which the person travels for the last leg of the journey.

However, I can see that there are problems even with that. How does one actually prove that that was the document used to get on the aeroplane in Johannesburg—or wherever it may be? I should like to know what standard of proof would be expected and what sort of evidence would be used in defence. Obviously, the person responsible at the airline desk in Johannesburg cannot be called to come to this country to say that he saw that someone was in possession of a South African travel document or that he could confirm that that was the document presented on arrival. A person on a travel desk is only verifying that someone has a document to enable him or her to get on the aeroplane.

Much the same questions will apply to the second amendment where a person has to prove that he did not have either a valid or invalid immigration document during the course of his journey to the United Kingdom. As we have said, there are people who travel from one country to another clandestinely. They do so for the very good reason that the people who are persecuting them in their country of origin will not issue them with travel documents so that they can go abroad and tell the world what the regime is like.

Although we welcome any attempt that has been made by the Government to mitigate the difficulties of this offence, which we shall come to in more detail in the next set of amendments, we think that they still need to explain how a person satisfies the court that he has a defence under either of those headings.

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The Bishop of Salisbury (Bishop)

My Lords, I, too, want to press the Minister to be a little more specific about this point. I am thinking of a particular group of people; that is, those in the southern Sudan who, when they leave, will not have anything that any of us would recognise as a travel document. He may have seen, as I have, some of the very flimsy home-made laissez passer documents that the SPLA use and issue to people, particularly to young people. Young boys who are conscripted for fighting from the age of 11 or 12 will have hardly anything in their hands. Some of them may well get stopped on their way. But if any do come here, it is not just a question of whether their documents have been stamped on the way. Often, they will not be stamped because there is hardly anything to stamp. In most cases, they will have just a very small scrap of paper, which will be a pasteboard at best. The whole business of trying to record a passage will be extraordinarily difficult.

I understand that we cannot put into legislation the details of how people coming from particular countries might be able to fulfil that. However, there are those countries in the world where people who have been under duress and are unable to link with the authorised or publicly recognised governments of their countries for many years will just not have any papers that we could possibly call documents.

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Lord Bassam of Brighton (Government Whip (technically a Lord in Waiting, HM Household); Labour)

My Lords, first, I thank the noble Baroness, Lady Anelay, for welcoming the amendments. I am grateful for that. I also thank the noble Lord, Lord Avebury, and the right reverend Prelate for their support. I am also grateful for the recognition that we have gone some way to allaying concerns. I understand and appreciate the points that have been raised and I shall try to answer the questions. But I am not entirely confident that I shall be able to keep everyone happy. I entirely understand the point made by the noble Baroness with regard to stimulating a trade in false papers. In part, the fact that we are encouraging the continued holding of those documents may well aid the law enforcement process, but that is by the by.

Existing legislation for immigration offences that deals with those who have false documents and do not own up to it is there and in place. The amendment does not really encourage the use of false documents or the further production of false documents. However, we think that it may assist us in the processing of detection.

The noble Baroness asked: "What does a person need to show in terms of proof in respect of a false passport?". Whenever a person does not provide a valid document, that person will be asked to explain how he or she managed to arrive in the United Kingdom with no passport or on a false one. We will need to be satisfied, for example, that the quality of the forged passport is such that a person could realistically have got through immigration control. The standard of proof on the defendant, proving that he or she had used a false document, is and will be the balance of probability. A person would need to show that he or she had used a false passport for the whole duration of his or her journey to rely on the new defence. It is also important to note that the defence of "reasonable excuse" for not having a passport remains in the clause.

I take the point made by the right reverend Prelate the Bishop of Salisbury. If a person travels from a country where we know that immigration controls are limited and from where it is possible to leave without a valid passport, we would take that into account when listening to the explanation offered by the applicant for arriving in the United Kingdom without a valid passport. However, each case will have to be considered on the facts and on its own merits. That is by way of qualification, but I hope that I have addressed the issue raised by the right reverend Prelate.

I am grateful for the questions and I hope that these points of explanation have assisted noble Lords. If not, I shall be happy to try to pursue them further by providing additional details.

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The Earl of Sandwich (Crossbench)

My Lords, before the noble Lord sits down, the right reverend Prelate used the phrase, "people travelling under duress". On reading the letter dated 12 May from the noble Baroness, Lady Scotland, to the noble Baroness, Lady Anelay, I see that it states,

"the clause captures the mischief of destroying or disposing of the immigration document".

If you are travelling under some duress, you may be required to destroy that document. Perhaps I have missed something, but has the noble Lord implied that that category of traveller would be helped by these amendments?

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Lord Bassam of Brighton (Government Whip (technically a Lord in Waiting, HM Household); Labour)

My Lords, we would like to think that such travellers would be helped, but we do believe that this is a form of mischief. I take the point made by the noble Earl, but we would expect travellers to continue to hold on to their documents. But of course, as I said earlier, each case will be judged on its merits. Importance will be attached to the explanation given by the applicant and I am sure that that will have a bearing on the judgment made in each case.

On Question, amendment agreed to.

Photo of Lord Bassam of Brighton

Lord Bassam of Brighton (Government Whip (technically a Lord in Waiting, HM Household); Labour)

moved Amendments Nos. 2 to 13:

Page 2, line 22, at beginning insert "to prove"

Page 2, line 23, at beginning insert "to prove"

Page 2, line 25, leave out second "or"

Page 2, line 26, at beginning insert "to prove"

Page 2, line 27, at end insert—

"( ) to produce a false immigration document and to prove that he used that document as an immigration document for all purposes in connection with his journey to the United Kingdom, or ( ) to prove that he travelled to the United Kingdom without, at any stage since he set out on the journey, having possession of an immigration document." Page 2, line 29, leave out "to prove" Page 2, line 30, at beginning insert "to prove" Page 2, line 31, at beginning insert "to prove" Page 2, line 33, leave out second "or" Page 2, line 34, at beginning insert "to prove" Page 2, line 35, at end insert— "( ) to produce a false immigration document and to prove that it was used as an immigration document for all purposes in connection with the child's journey to the United Kingdom, or ( ) to prove that he travelled to the United Kingdom with the child without, at any stage since he set out on the journey, having possession of an immigration document in respect of the child." Page 3, line 47, at end insert— "( ) For the purposes of this section— (a) a document which purports to be, or is designed to look like, an immigration document, is a false immigration document, and (b) an immigration document is a false immigration document if and in so far as it is used— (i) outside the period for which it is expressed to be valid, (ii) contrary to provision for its use made by the person issuing it, or (iii) by or in respect of a person other than the person to or for whom it was issued."

On Question, amendments agreed to.

Photo of Lord Avebury

Lord Avebury (Shadow Minister, Foreign & Commonwealth Affairs; Liberal Democrat)

moved Amendment No. 14:

Page 4, line 11, at end insert—

"(17) The Secretary of State shall, before commencement of this section, and thereafter from time to time as he may decide necessary, publish detailed regulations on the implementation of this section and of section 31 of the Immigration and Asylum Act 1999 (c. 33) (defences based on Article 31(1) of the Refugee Convention). (18) Schedule (Prosecution of documentation offences) shall have effect. (19) Guidance issued under subsection (17) shall not be made unless a draft has been laid before Parliament and approved by a resolution of each House."

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Lord Avebury (Shadow Minister, Foreign & Commonwealth Affairs; Liberal Democrat)

My Lords, we continue to have serious concerns about the offence created by Clause 2 in spite of repeated assurances given by Ministers in both Houses that applicants will be prosecuted only in limited circumstances, by trained officers and with the benefit of clear and publicly available guidance.

The clause as drafted is a wide, catch-all provision, and the limited use that Ministers say will be made of it depends on the restraint of the government of the day. Parliament would not be doing its job if it assumed that Home Office Ministers and the Immigration and Nationality Directorate would always have the compassion and the moderation of the noble Baroness, Lady Scotland, and, of course, of the noble Lord, Lord Bassam. Under this clause there is a real danger that asylum seekers will be prosecuted rather than protected.

So far, we have been unable to budge the Government on the most objectionable features of this clause. They refuse to take children out of the scope of prosecution altogether and to incorporate the appropriate criminal standards and burdens of proof which would safeguard defendants. Instead, the Government have asked us to accept that Clause 2 will be used sparingly and carefully and that the appropriate guidance will be forthcoming. The noble Baroness, Lady Scotland, said:

"We will produce detailed guidance on the offences in the Bill before it is enacted".—[Official Report, 5/4/04; col. 1639.]

She went on to say that much of the detail set out in our amendment tabled in Committee would be found in the guidelines.

On a matter as critical as this, determining whether a person fleeing persecution in his own country may acquire a criminal record at the outset of his life abroad, we have assurances and the promise of detailed guidance before the Bill reaches the statute book, but after it is too late for noble Lords to do anything about it on the face of the Bill if the guidance is unsatisfactory. That does not provide adequate safeguards for refugees in accordance with Article 31 of the refugee convention. The Government have had six months since the Bill was first published to think about this. It is time that Parliament put its foot down against the pernicious custom that has developed of putting the most important parts of legislation into guidance which is produced after any real opportunity for scrutiny has expired.

Failing that, we say that the guidance on this clause should be brought into effect by affirmative resolution and that the prosecution of offences should be conducted within the framework of the new schedule. This would ensure effective parliamentary scrutiny and consistency in the use and understanding of the powers in Clause 2 across agencies and advisers.

We assert that, although, as the noble Baroness, Lady Scotland, said on 5 April, the CPS, the police and the IND now have guidance on how to take account of the Article 31 defence in the prosecution of relevant offences—she has reiterated that in a letter I received from her only this morning—it does not go far enough to protect refugee convention rights and is not properly co-ordinated to ensure that there is consistency across all agencies.

From 1999 until late in 2002, the Home Office relied on guidance issued following the Adimi case, but it was only around October 2002 that asylum policy instructions on Article 31 and immigration offences were first published on the IND website. That guidance was so at odds with the UNHCR's understanding of Article 31 that in March 2003 it published a detailed position statement on APIs, setting out its own expert understanding of Article 31. I can go into more detail about that if the Minister wishes.

New guidelines within the asylum policy instructions were issued in October 2003, and they were certainly an improvement on the earlier edition. However, they were still inconsistent with the proper interpretation of Article 31, according to the Article 31 working group made up of the UNHCR, ILPA and the Asylum Rights Campaign. The Minister may wish to confirm that the UNHCR has written to the IND about these differences.

ILPA and the UNHCR have called for the inter-agency group, previously agreed by IND to establish a memorandum of good practice on these issues, to be reinstated and for individual agency guidance to be consolidated into one integrated and consistent set of guidance. Is that now agreed by the department? The disclosable parts of the Home Office IND operation enforcement manual, such as Section A covering illegal entry, offer no advice or cross-reference to Article 33 of the refugee convention, or to the statutory defences set out in Section 31 of the Immigration and Asylum Act 1999, despite giving enforcement instructions on those specific offences.

Current published CPS immigration offences guidance contains a statement of the defences afforded by Section 31 of the Immigration and Appeals Act 1999, but little on its scope. Internal casework bulletins from 1999 are referred to in the guidance, despite the fact that they are not disclosed and, according to the CPS policy department, some have in fact been superseded. Draft updated guidance was still being finalised when I last checked with the CPS Policy Unit on 10 May and is now about to go out for consultation. Apparently the draft guidance does not include the offences set out in Clause 2 of this Bill.

At the beginning of 2000, a protocol on the joint prosecution of immigration offences between the CPS, the Association of Chief Police Officers and the Immigration Service was produced. That was intended to,

"provide a framework . . . to progress cases . . . more efficiently with defined lines of communication and identified accountability at all stages of the investigation and prosecution process".

However, although the general principles are accepted, we are advised that IND officials told the Article 31 sub-group of the Asylum Rights Campaign at a meeting in February that the agencies were not working under this protocol. Can the Minister please clarify this? The protocol was also said to be a precursor to direct access by the IND to the CPS under Section 164 of the 1999 Act, pending the introduction of the Glidewell/Narey recommendations. What is the current state of play on this, and will the Government ask the CPS to put a progress note on its website if it is not yet in a position to finalise the arrangements?

On 5 April, the noble Baroness said:

"We are not aware of any examples of inappropriate prosecutions where the possible relevance of Section 31 has come up".—[Official Report, 5/4/04; col. 640.]

But whether appropriate or not, Magistrates' Court Sentencing Guidelines provide no advice to magistrates or their court clerks specific to these immigration offences. We are apprehensive that guidance on the new offence in Clause 2 will offer only a narrow legal view, enabling the prosecution of asylum seekers to take place within the Government's own understanding of their obligations while offering completely inadequate safeguards for the vulnerable.

ILPA has given illustrations of current cases where Article 31 and Section 31 issues have been relevant in previous briefings to your Lordships, and the ARC discussed these at the recent meeting with the IND, to which I referred earlier. Evidence available to the immigration and prosecuting authorities in those cases had not, in ILPA's view, been properly or fully considered in accordance with the various agencies' guidance before deciding to prosecute.

Of course, the Government may take an unduly restrictive view of the protection of Article 31 rights and the Section 31 defences to argue that their prosecutions are not inappropriate. The vulnerability of the group of people affected by this issue, the speed of prosecution and the sheer perversity of clogging up our grossly overcrowded prisons with people serving short sentences prior to their removal, means that we have got to be particularly careful.

One recent case about which I should like to inform your Lordships has been drawn to our attention by ILPA as an illustration of the deficiencies in the guidelines. Two Chinese—a man and his pregnant wife—were arrested as they were about to leave for Canada using illegal travel documents. The wife had already made an asylum application in France before she arrived to join the husband who had applied for asylum here, and the couple were arrested at the airport. They were charged with attempting to obtain service by deception contrary to Section 1(1) of the Criminal Attempts Act 1981. They were convicted within 24 hours and each was given a three-month custodial sentence. When they had both completed their sentences action began to remove the wife to France and an emergency injunction had to be obtained when the IND said it had no record of the husband having claimed asylum. The police restricted case summary did record the asylum claim but said that,

"as [he] has not used false instruments he is not covered by Article 31 and therefore would not be afforded any protection under Article 31".

That is completely wrong. There is evidently some confusion, not only in the police but also in the CPS, as was shown in the case of Pepushi, which was dealt with by the High Court last week. There Lord Justice Thomas reiterated the principle which has been established in a number of recent cases, such as R v Lyons, that international treaties do not confer rights under our domestic law. But the learned judge went on to add,

"there may be a limitation . . . on the ability of the Executive to act against an individual where that action is in breach of the obligation undertaken by the Executive under international human rights treaties".

This was after the CPS had expressly repudiated the statement in the asylum policy instructions, as regards offences not covered by Section 31 of the 1999 Act, that,

"In relation to these offences, refugees are entitled to Article 31 protection in accordance with legitimate expectations".

The point was not argued in the Pepushi case and so remains unresolved. But Section 31 represents Parliament's interpretation of the United Kingdom's Article 31 obligations only in relation to the specific offences in that particular section. It cannot be used to limit or restrict the application of Article 31 to any other illegal act which a presumptive refugee may commit in his quest for refugee status—subject, of course, to the conditions specified in Article 31 itself. Therefore, in the Pepushi case the court did not overturn the judgment in the Adimi case as it applies to all those other offences. They still have a legitimate expectation that they will not be prosecuted while their application is under consideration or is or may be subject to appeal.

To summarise, the guidance should deal with two classes of offence which a person may commit in relation to his or her entry or stay in the UK: those that are specified in Section 31 of the 1999 Act or in Clause 2 of the Bill, which are entitled only to the limited protection conferred by Section 31 itself; and any other offences, such as obtaining an advantage by deception, where the Adimi judgment still applies and the presumptive refugee should not be prosecuted while his or her application is still in play.

The confusion and inconsistency of current guidance clearly shows that ministerial assurances alone cannot be relied on. We propose that the guidance must be on a statutory basis; that it should be readily available to all those affected by the offences to which the protection of Article 31 could apply; that it should be transparent and consistent in its application to all agencies; and that it should be monitored to ensure understanding and compliance. I beg to move.

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Baroness Anelay of St Johns (Shadow Minister, Home, Constitutional & Legal Affairs; Conservative)

My Lords, the noble Lord, Lord Avebury, was right to draw our attention to the importance of draft guidelines. I have some rare sympathy with the Government on this occasion because I appreciate that Clause 2 has been a moving target, not least because of the requests from these Benches that the Government should refine and clarify the nature of the offence.

I assume that we are now moving towards a final clarification. Unless the Government are minded to make some further alterations at Third Reading, it is right that we should now have an idea of what the guidelines are likely to be. As the noble Lord, Lord Avebury, pointed out, a potentially serious level of imprisonment can be imposed: on indictment, two years, a fine or both; on summary conviction, 12 months. I wish to ask a question on a related issue in regard to the operation of Clause 2. It falls fairly and squarely within the amendment tabled by the noble Lord, Lord Avebury, which requires detailed regulations to be published on the implementation of Clause 2.

After some sideways thinking it has occurred to me that the Government, I am sure, will have applied their mind to the potential impact of the Domestic Violence, Crime and Victims Bill on the application of Clause 2. The Minister has worked with the noble Baroness, Lady Scotland, on these matters and will be aware that the Government went out to consultation at the beginning of the year—it finished in March—as to the future funding of services and compensation for victims of crime in this country. Part of the consultation procedure involved the proposal that in future, in addition to a term of imprisonment—at the moment it is left as to "any" term of imprisonment—and any fine the court may impose, an offender may also have to pay a surcharge of £30 towards the victims fund.

I pass over the basic concern that courts always have that one should not impose financial penalties when one is imposing a term of imprisonment, but they will wish to look closely at the kind of people who will be subject to the term of imprisonment which could follow on from an offence under Clause 2. They are people, surely, who would be the least likely to have the finances to pay the £30 surcharge. What consideration has the Home Office given to the interrelationship between its proposals for compensating victims with the operation of Clause 2? How does that feed into its proposals for producing guidelines? Is the Minister at this stage able to give an assurance on that? Is he able to say that anyone convicted of this particular offence under Clause 2 would not be subject to any surcharge over and above a sentence of imprisonment and a fine imposed by a court?

Photo of Lord Hylton

Lord Hylton (Crossbench)

My Lords, I support Amendment No. 14. I congratulate the noble Lord, Lord Avebury, on the amazing detail that he has managed to work into Amendment No. 53, the proposed new schedule before Schedule 1. I support the amendment because published detailed regulations, approved by Parliament and then made widely known, will be extremely helpful in clearing up all the kinds of uncertainties and difficulties which were referred to from several parts of the House when we were debating the previous group of amendments. I have in mind, for example, stateless people and former residents of unrecognised entities, of which there are several within the boundaries of the old Soviet Union. There may be more in other parts of the world for all I know.

Photo of Lord Bassam of Brighton

Lord Bassam of Brighton (Government Whip (technically a Lord in Waiting, HM Household); Labour)

My Lords, rather like the noble Lord, Lord Hylton, I am always grateful to the noble Lord, Lord Avebury, for the very fine consideration he gives these issues. He never ceases to amaze me with his detailed knowledge of the minutiae of legislation and regulation. He is to be congratulated on this.

These amendments seek to regulate, very specifically, the use of Clause 2 and Section 31 of the Immigration and Asylum Act 1999, in particular in cases where Article 31 may be relevant and other cases where vulnerable individuals may be involved.

I completely agree that those who are investigating offences under Clause 2 will need guidance on how to do so. We have been very open about that and it is fairly obvious. Immigration officers already have instructions about what actions should be taken if they suspect other immigration offences may have been committed, such as obtaining, or seeking to obtain, leave by means which include deception. We will be producing similar guidelines for this offence. We fully expect a first draft of these guidelines to be made available for comment before Third Reading of the Bill in your Lordships' House.

I can assure the noble Lord that much of the detail that he has tabled in the new schedule will be included in those guidelines. It needs to be—I think we are at one about that. That includes assessment of reasonable excuse before proceeding with an investigation or arrest, charge or prosecution and treatment of vulnerable individuals, such as victims of trafficking. Consideration of Article 31 of the refugee convention will also be given specific mention in the guidelines. I know that noble Lords expressed concern in Committee that there was insufficient guidance on this matter. I assure the House that there is a published asylum policy instruction on Article 31/Section 31. In addition, the Crown Prosecution Service is currently reviewing and, importantly, updating its guidance, which we expect to be published shortly, following consultation with the many interested agencies.

Although guidance for the offence provided for by Clause 2 is necessary, to provide for it by statute makes for an overly cumbersome process. It is inevitable that that will be the case. It is the not the way that we deal with other offences, and I do not think that there are special factors that make statutory guidance appropriate here. I do not see any particular and overriding reason for it.

We agree that training is needed with regard to this offence. The guidance we are producing should go a long way towards satisfying that need. We will also be providing seminars and road shows for immigration officers about these offences, as we did for offences brought in by the Nationality, Immigration and Asylum Act 2002. But statutory provision for the training of immigration officers, police officers, prosecutors, legal representatives and the judiciary in working with children is surely not appropriate for a Bill dealing mainly with asylum. If the police and judges need training on working with children, then they need it for all offences, not just for the offences in this Bill.

Other assurances that the schedule seeks to introduce are also unnecessary. For example, subsection (2)(e) would ensure that certain offences will be within the scope of Clause 6—ones about which the Director of Public Prosecutions may advise immigration officers. They are already within the scope of this clause, so nothing further is needed.

The provision stating that no arrest or prosecution shall take place unless a person is reasonably suspected of disposing of or destroying their documentation is similarly unnecessary. The guidance will instruct immigration officers to consider whether a person has a reasonable excuse for having no document. In most cases, a person who does not have a document, for a reason other than destroying or disposing of it, will have a reasonable excuse for that.

There will also be rare circumstances in which, even if the person has destroyed or disposed of their document, they will have a reasonable excuse. Immigration officers will thus need to consider the broader question of whether in the circumstances a person has a reasonable excuse for destroying or disposing of their documents, not solely whether they suspect that they have done so.

As for the provision of statistics regarding prosecutions brought and convictions secured under Clause 2, these will be published, along with all statistics about criminal offences, which are published at least yearly by the Home Office. I therefore see no use or need to govern their publication in this Bill.

The noble Lord, Lord Avebury, and the noble Baroness, Lady Anelay, raised a number of other points on this amendment. The noble Lord asked about the UNHCR position; I will try to deal with that. The published asylum policy instructions are a proper interpretation and explanation of Section 31 of the Immigration and Asylum Act 1999. As he said himself, Section 31 is Parliament's approved interpretation of Article 31 of the refugee convention. It is clearly right that the Home Office asylum policy instructions should reflect the UK's interpretation of that article.

In addition, we discuss these instructions regularly with the UHNCR and other bodies, and incorporate their views where it is right to do so and appropriate in the circumstances. But we are free to disagree with them, and we do not always agree with their views on the subject. I am sure that the noble Lord would recognise that that has to be our prerogative.

The noble Lord, Lord Avebury, also suggested that perhaps we should have a joint protocol. The published asylum policy instructions on Section 31 are followed by the Immigration Service in deciding whether to pass cases to the CPS for possible prosecution. As I explained earlier, and as the noble Lord knows, the CPS has its own guidance on Section 31 and it is being updated. It is not felt that an overarching protocol on Section 31 is right, appropriate or required in the circumstances, and that the existence of instructions and guidance available to the various agencies is sufficient.

The noble Baroness, Lady Anelay, asked about those convicted of an offence under the clause. I am not in a position to give a specific commitment about whether the surcharge the noble Baroness mentioned might ever be levied on a person who is convicted under this offence. I take the point, and it is probably right that I take the issue away; I shall write to the noble Baroness and share that with other Members of your Lordships' House who are understandably concerned about it. It is a good point to raise at this stage.

I hope that I have answered the various questions, and that the noble Lord will withdraw his amendment.

Photo of Lord Avebury

Lord Avebury (Shadow Minister, Foreign & Commonwealth Affairs; Liberal Democrat)

My Lords, I certainly agree with the noble Baroness, Lady Anelay, that it would be absurd to levy fines on somebody who came here as an asylum seeker and has spent the last three months or so in custody, because he will obviously not have any resources out of which he could pay such a levy. I am most grateful to the noble Baroness for her support for the amendment and to the noble Lord, Lord Hylton, for his useful and cogent remarks.

I disclaim any special expertise in these matters. It was kind of the Minister to ascribe that to me, but I rely heavily on the advice of the agencies, particularly the Immigration Law Practitioners' Association, whose briefings have been absolutely splendid, as I am sure all your Lordships who have been depending on them will agree. It has the expertise; it knows where the shoe is pinching. All the matters I have raised come from their experience of asylum cases.

I did not think that the Minister answered my points adequately. He said that the asylum policy instructions applied throughout the whole of the consideration of these cases, but they do not. I quoted an example of when the CPS expressly repudiated the application of asylum policy instructions with regard to a particular offence, which was not dealt with by Section 31 of the 1999 Act. That was an important distinction, on which the Minister did not touch. Nor did he say anything about the lack of any sentencing guidelines for magistrates' courts. I still think that we are making a serious mistake in agreeing this clause, by depending on the guidelines that will ultimately appear and not taking steps to ensure that there will be proper co-ordination between the CPS, the magistrates' courts, the police and the IND.

Before I sit down, I should like to give another example. In Section 173 of the Extradition Act 2003 there is a mandatory code of practice, which is seen as appropriate in that context. I cannot see what is the qualitative difference between codes for extradition in that Act and the offences with which we are dealing in this section. In the few seconds that remain to me, I will not be able to persuade the Minister, so I shall withdraw the amendment for the time being, but without an undertaking that we will not return to the matter at Third Reading. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 4 [Trafficking people for exploitation]:

Photo of Baroness Anelay of St Johns

Baroness Anelay of St Johns (Shadow Minister, Home, Constitutional & Legal Affairs; Conservative)

moved Amendment No. 15:

Page 5, line 15, after "he" insert "or another person"

Photo of Baroness Anelay of St Johns

Baroness Anelay of St Johns (Shadow Minister, Home, Constitutional & Legal Affairs; Conservative)

My Lords, in moving this amendment I shall speak also to Amendments Nos. 16 and 17. I am grateful to the noble Lords, Lord McNally and Lord Avebury, for their support for the amendments, which would ensure that the definition of exploitation is sufficiently broad to cover cases of exploitation of children. It should ensure that, if a request or inducement is made to one person—a parent, for example—but another person—the child, for example—is the one involved in the activity, then the exploiter can be charged with trafficking. I want to ensure that those trafficking in children, especially very small children, cannot escape prosecution.

In Committee, I tabled amendments to probe whether the changes that the Government made at Report in another place had left a loophole—I refer to col. 1642 of Hansard for 5 April. I readily acknowledged then that those amendments were my own very rough stab at providing an opportunity for debate, and not the honed article. I am grateful to the noble Baroness, Lady Scotland, for writing to me following the Committee stage with further clarification of the Government's position. The letter was undated but I received it on 11 May. I decided at that stage that I should take further advice from the Refugee Children's Consortium, whose briefing raised the question in my mind in the first place. After talking to the consortium's representatives, I tabled these amendments which are their drafting and which I fully support.

The consortium warmly welcomes Clause 4, as I do. At Report in another place, the Government amended the clause adding what is now subsection (4)(d) to address concern that the definition of exploitation did not provide sufficient protection for children and that Clause 4 as drafted would allow some people to escape prosecution who, in any normal sense of the word, would be seen as traffickers of children. The consortium, as I do, fully recognises that the Government have been striving throughout to ensure that there is no such loophole. The good will is there: we are trying to use that good will to close the loophole.

The concern can be simply stated—does the clause cover the situation where a request or inducement, force threat or deception is made to person A, but person B is exploited? To be guilty of trafficking under this clause, a person must arrange or facilitate the arrival of another person in UK, and intend to exploit that person, or believe that another person intends to do so. Thus the definition of exploitation is central to proving the offence. I certainly accept that the noble Baroness, Lady Scotland, wanted to close any lacuna. She referred to the Government's interpretation of the Palermo protocol. I examined that in detail and, since it is quoted in her letter at length and that letter is in the Library, I will not try the patience of the House at Report by reading it all out.

As we see it, the lacuna is as follows. Children may not be subject to treatment amounting to slavery or forced labour. They could therefore not satisfy the definition of exploitation in Clause 4(4)(a). Children may not be trafficked for their organs, thus they may not satisfy the definition in subsection (4)(b). As for subsection (4)(c), the threat of violence may not be made to the child; the parent may be told that the child will be harmed. As for subsection (4)(d), not all children who are exploited are deceived; they may not understand what is being done to them. The parent may be asked to agree that the child becomes involved in an activity; no one may ask the child at all. Thus it appears that those who traffic in children may escape prosecution under this clause. In the case of those addressed in subsection (4)(d), it is highly likely that any request or inducement would have been made to a third party, not to the person trafficked.

The noble Baroness, Lady Scotland, said in her letter to me:

"We have sought in subsection (4) to offer victims of trafficking wide protection from the types of exploitation that they may encounter".

That is confusing. The clause is not about defining trafficking for the purposes of protecting its victims. It is about coming up with the definition to ensure that those who exploit others can be prosecuted. In her letter, the noble Baroness, Lady Scotland, went on to say:

"One must be careful not to confuse the initial request/ inducement/ threat made to the parents of the child (which is not strictly relevant to an offence of trafficking a person for exploitation) with any subsequent threat or inducement which may be relevant (if subsection 4 (d) is relied upon) for the purposes of determining whether the child is exploited".

That is also a little confusing, because threats would be more likely to fall within subsection (4)(c) and not subsection (4)(d). However, I do not consider that my amendments fall into that confusion. The amendments are concerned with the definition of exploitation and ensuring that it is broad enough to cover the ways in which children are exploited. The reference to a threat or request being made to a third party is simply a means towards the end of obtaining a satisfactory definition, as was the amendment laid at Committee which introduced the words,

"abuse of power or of a position of vulnerability".

As I said earlier, we are all trying to achieve the same objective. I am trying to take this one step further along that process. I look forward to the Minister's response. I beg to move.

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Lord McNally (Shadow Minister (Broadcasting), Culture, Media & Sport; Liberal Democrat)

My Lords, I, too, look forward to the Minister's response. I hope that it will not be overly defensive because the suggestions of improvement come from the Opposition Front Bench. As the noble Baroness, Lady Anelay, said, we warmly welcome the fact that Clause 4 is there. The attempt of all parts of the House now is to get as good and effective a clause as possible and one that will allow us to get at the traffickers. That is the test. People are genuinely appalled and amazed at revelations in the press of the extent to which people—who can apparently sleep at night—can earn vast amounts of money by the organised crime of people trafficking and, more particularly in terms of what we are trying to deal with here, children trafficking. It is something that unites all sides of the House. The search is on the for a clause as all-encompassing as possible to get at this evil trade. I hope that the Minister responds in that way.

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The Earl of Sandwich (Crossbench)

My Lords, I also support the amendment, partly because I have the greatest admiration for the Refugee Children's Consortium and its many member organisations, which put together such valuable briefing. On this clause in particular, it has been assiduous in its search for the right definition that will best serve children rather than the Government or the public.

I have learnt a lot about trafficked children from a new report by ECPAT UK, which I hope to mention in a later amendment. This research makes it much easier for us to understand the vulnerability of children who are being trafficked.

The nub of this amendment is surely, as the noble Baroness said, that these children are capable of being exploited indirectly—by their parents or another party or both—and that they do not therefore benefit from the clause as it is presently worded. I know that the Government have been accommodating in their efforts to interpret the Palermo protocol as widely as possible, but it may not be too much to expect them to close the gap now and to accept the amendment.

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Lord Bassam of Brighton (Government Whip (technically a Lord in Waiting, HM Household); Labour)

My Lords, I want to reach out to the point made by the noble Lord, Lord McNally, and say first up that I hope that my response will not be read as in any way defensive. In looking at the notes on the amendments and the background correspondence, we share with the noble Baroness, Lady Anelay, and the noble Earl, Lord Sandwich, a comity of view, as my noble friend Lady Scotland might describe it—or a unity of view, as I might call it—to deal with this vexed issue. We are trying to understand the riddle around the definition of exploitation. Therefore, what I say to your Lordships this afternoon is designed to be as helpful as possible and to close the lacuna that the noble Baroness identified.

With regard to Clause 4, we are all determined to ensure that we criminalise all instances of trafficking that should properly be criminalised, including those set out in the protocol to the United Nations Convention against Transnational Organised Crime, which deals with trafficking. In that respect, subsection (4) is crucial, in that it sets out the circumstances in which a person is exploited for the purposes of the offence.

The concept of exploitation is key to the Clause 4 offences, as without it there is only the facilitation of travel, which in itself, in the absence of a breach of the immigration laws, is not morally repugnant or worthy of criminal sanction. In order to secure a conviction under Clause 4, the prosecution will therefore have to prove that the accused arranged or facilitated the travel of his victim, and that he intended to exploit his victim or believed that another person was likely to do so.

Taking the offence in subsection (1) as an example—and echoing the comments of the noble Baroness—a person is guilty of an offence under subsection (1) if he, first, arranges or facilitates the arrival in the United Kingdom of a person—P—and, secondly, intends to exploit P or believes that another person is likely to do so.

Amendments Nos. 15 to 17 seek to amend subsection (4) in two ways. First, Amendment No. 15 seeks to ensure that for the purposes of the offence in Clause 4, a person—P—is exploited if another person is subjected to force, threats or deception designed to induce P to provide services or benefits. Similarly, Amendments Nos. 16 and 17 seek to ensure that, for the purposes of Clause 4, a person—P—is treated as being exploited if a request or inducement is made to another person with the purpose of getting P to undertake an activity.

The sort of scenario that the amendments appear to envisage was well described by the noble Baroness. It is when the parents of a child are requested, induced or forced to give up their child and that child is then brought to the United Kingdom with the intention that he should be exploited. As I have explained, the key to the offences in Clause 4 is the intention of the accused to exploit his victim. In a case such as this, Clause 4 as currently drafted would capture the behaviour of the accused. That is the case because the accused has arranged or facilitated the arrival in the United Kingdom of the child and has done so with the intention that he will exploit the child. The fact that an inducement, request or threat may have been made to the child's parents certainly does not prevent the clause operating to catch the behaviour of the accused.

If the amendments were accepted, the offences would be focusing not on the exploitation of the child but on the initial request, inducement or threat made to the parents of the child. While making such a request, inducement or threat may be considered morally repugnant behaviour, and may constitute an offence in the country where it takes place, we do not consider that it is strictly relevant to the question whether the child is in fact exploited. In this respect, one must take care not to confuse the initial request, inducement or threat made to the parents—which, as stated, we do not consider to be strictly relevant to the question of whether the child is in fact exploited—with any subsequent request or inducement which may be made to the child himself, which may be relevant to the issue of whether the child is exploited, if subsection (4)(d) is relied on. The issue of force, threats or deception or of a request or inducement in subsections (4)(c) and (d) respectively is simply a means of determining when a person is exploited.

I appreciate fully that the kinds of cases that the noble Baroness has in mind are those in which there is an inducement or threat to a third party—for example, to a parent to give up a child—and when the intention of the trafficker is to exploit the child. In such circumstances, we all agree that the behaviour should be covered by the clause, and we believe that that is already the case as the clause is drafted.

I hope that that lengthy explanation is intelligible to all. I have tried to set the logic out as clearly as I can. It is for those reasons and no others that we feel unable to accept these amendments. I hope that with the reassurance of our continued determination to tackle this issue, on which we all plainly agree, the noble Baroness will this afternoon feel able to withdraw her amendment. We are grateful for the dialogue that we have had on this matter, and feel that it has been helpful to us in perfecting the offence. I hope that the explanation has been satisfactory to your Lordships' House this afternoon.

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Baroness Anelay of St Johns (Shadow Minister, Home, Constitutional & Legal Affairs; Conservative)

My Lords, I am grateful to the Minister. He has certainly taken us some way forward, although I believe the journey will have to be continued—but not today. As the noble Lord, Lord McNally, said, this is an instance of the House being united against an evil trade. We want to achieve the right definition, but we do not by any means intend to test the opinion of the House today.

As the noble Earl, Lord Sandwich, said, we are seeking to act in the best interests of the child. The difficulty is in trying to marry up the action of the person doing the exploiting, the definition of exploitation and ensuring that that child is protected in all circumstances.

I shall consider the Minister's comments carefully. I should be grateful if he would bear in mind for consideration between now and Third Reading the fact that the core of our concerns is our worry about a situation in which no one has actually made any threat, request or inducement to the child himself. The Minister directed us to subsection (1) and said that if a person intends to traffic, he is done for and that is it—he is caught within the clause. However, if it were as simple as that, most of the rest of the clause would not be necessary; it is a little more difficult than that.

The question is whether a person has the intention of exploiting a child if that person's conduct towards a child does not actually fall within the definition of exploitation. That is what we are trying to move towards. The matter is complicated, and the Minister has begun to take us further forward, so that we can at least see more clearly where there may be a little gap between our positions. It is not a difference—I would not call it that—but it is a gap. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 16 and 17 not moved.]

Photo of Lord Bassam of Brighton

Lord Bassam of Brighton (Government Whip (technically a Lord in Waiting, HM Household); Labour)

moved Amendment No. 18:

After Clause 5, insert the following new clause—

"EMPLOYMENT (1) For section 8(4) of the Asylum and Immigration Act 1996 (c. 49) (employment: penalty) substitute— "(4) A person guilty of an offence under this section shall be liable— (a) on conviction on indictment, to a fine, or (b) on summary conviction, to a fine not exceeding the statutory maximum." (2) Section 8(9) of that Act (extension of time limit for prosecution) shall cease to have effect."

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Lord Bassam of Brighton (Government Whip (technically a Lord in Waiting, HM Household); Labour)

My Lords, the House has previously acknowledged the widespread public concern about the activities of those who use illegal migrant labour, particularly following the recent tragedy at Morecambe Bay. The Government believe that it is essential to take action against unscrupulous employers who profit from the exploitation of illegal workers, and are sometimes found to have links with organised crime.

The effect of our amendments would be to allow for increased fines to be imposed on those who employ illegal workers in the most serious of cases. The purpose is to send a powerful deterrent message to unscrupulous employers who use illegal workers, and to mark our strong disapproval of the practice. These government amendments relate to Section 8 of the Asylum and Immigration Act 1996, which is the main statutory control on illegal working. Section 8 makes it an offence to employ a person subject to immigration control if that person has not been granted leave to enter or remain, or if that person's leave is not valid and subsisting or is subject to a condition precluding him from taking up the employment. The offence is currently triable summarily only and the current maximum penalty is a fine of £5,000 in respect of each person employed illegally.

The proposed amendment would make the Section 8 offence triable either way, which is to say on indictment as well as summarily. The maximum fine on summary conviction would remain £5,000, but in the more serious cases the Immigration Service would be able to pursue a prosecution in the Crown Court, where there is no limit on the level of fine that can be imposed following conviction on indictment.

The amendment also makes a consequential change to the time limit for prosecutions that can be brought under Section 8. The amendment reflects the general legal principle that offences that are triable either way may be prosecuted at any time. This aspect of the amendment would not, however, result in any change to our enforcement practice and we would not expect employers to retain employee records for longer than three years.

We have already taken steps to strengthen the Section 8 regime and improve its enforcement and these amendments must be regarded in that context. We have recently reformed the system of document checks that employers must carry out under the section to help to ensure they do not recruit people who do not have permission to work. The strengthened system of checks will be less vulnerable to false and forged documents and will provide a firmer basis for criminal action against those who flout the law in this area. In parallel, we are increasing the number of illegal working enforcement operations and related prosecutions.

An increase in the deterrent value of the law would in our view complement the work we are doing to combat organised immigration crime through Reflex, a multi-agency taskforce which targets, among others, people trafficking gangs, and through the introduction of a people trafficking offence in this Bill, which covers trafficking for the purposes of labour exploitation. The Serious Organised Crime Agency will also give us further capability to confront the problems of people trafficking and organised immigration crime. I hope that noble Lords will feel able to support the Government's amendments. I beg to move.

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Baroness Anelay of St Johns (Shadow Minister, Home, Constitutional & Legal Affairs; Conservative)

My Lords, let me make it clear that I share the widespread public concern about illegal working to which the Minister referred. He was right to remind us of the tragedy earlier this year at Morecambe Bay. It is right that the Government review the whole issue of the enforcement of existing provisions and question whether new measures are necessary.

I support the amendment but I have questions about the level of enforcement that has operated heretofore under existing powers. The Minister's answers to those questions will demonstrate how far the new provisions are necessary and how far they are part of a greater pattern or jigsaw. Since the questions are rather narrowly based, because this is an offence for employers and away from the general run of the Bill, I have given advance notice to the Minister of all my questions.

I am grateful to the CBI for its briefing on these matters. It kindly sent me a copy of the briefing it produced in response to the Home Office consultation on proposed changes to the law on illegal working. The CBI makes it clear that it condemns illegal working; it states that it is harmful to all parts of the UK economy and that it can give unfair competitive advantage to those companies that are flouting the law. Those who work here illegally are not protected from exploitation or dangerous working conditions and we should have a care for them.

However, the CBI points out that government policy on illegal working should be based on firm evidence—which we do not see—that legislative change is not necessarily the most effective way to change illegal working and that the Government should concentrate further resources on enforcement. All those points seem very sensible. The Minister made passing reference to the fact that the Government have been trying to increase the people available to do the enforcing. Can the Minister tell the House what evidence was presented to the Government that made them certain that these amendments were necessary? What is the scale and the nature of illegal working in the UK? What resources are they directing to enforcement that have not been available in the past? How many prosecutions against employers have been brought over the past three years and how many convictions were achieved?

The CBI states that there is a perception that the lack of experience of the offence among local magistrates could be a factor in low conviction rates as well as in the low levels of fines imposed. Does the Government's experience reinforce that perception? Have they discussed those matters with the Magistrates' Association? I assume that they must have done so before bringing forward these new powers.

The CBI also makes the valid point that the vast majority of employers seek to comply with Section 8 of the Asylum and Immigration Act 1996 but that they need information and advice to do so. Members of the CBI have said that current levels of compliance support for employers from the IND are inadequate. What is the Government's response to that? What measures have they taken over the past year to improve the service to employers? After all, we want to get to the situation where enforcement of these penalties is not necessary because the crime is not being committed. The CBI has recommended that there should be more regular updating of information on the IND website; that photographs of identity documents on the IND website should be clearer; that basic information sheets or user-friendly guidance with clear photographs of all documents should be distributed to employers; that the IND helpline should be improved to ensure that advice is consistent, which it is not at the moment; and that the IND helpline should get information about the immigration status of individuals. Have they taken up all the recommendations of the CBI and, if not, are they willing to undertake to do so? It is right that I should make it clear that members of the CBI have stated that when they have contact with individual members of the Immigration Service they have no complaints to make but they feel that the service is under-resourced.

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Lord McNally (Shadow Minister (Broadcasting), Culture, Media & Sport; Liberal Democrat)

My Lords, I support the Government's desire to try to use the deterrent value of the law. The noble Baroness, Lady Anelay, with her usual thoroughness and courtesy, has provided me with a copy of her brief from the CBI and I will not repeat it to the House. However, it is interesting that we are all in some way complicit as it is only when we have a tragedy at Morecambe Bay or some fruit pickers are killed on a level crossing that we jerk to and acknowledge that there is a black economy using exploited labour. As the noble Baroness, Lady Anelay, indicated, it is almost a package industry. People are charged exorbitant sums to be transported, often illegally, to this country and are then exploited in the kinds of jobs that they are put into by the same organised crime. It is absolutely right that the Government should try to bring in some measures.

Rather as we were saying about child traffickers, the core of this is getting at those people who are making a profit out of ordinary decent human beings and are hurting them. When the Morecambe Bay tragedy broke, I was struck by the humanity of the victims. They were there because of poverty at home and some of them tried to contact their homes by mobile phone as they faced death. They were ordinary working people caught up by this ghastly trade. It is interesting that the CBI's response is to say not that these proposals are wrong and yet another burden on business but that the key to this is enforcement and the resources to make it hurt. It also needs to be recognised that it is not enough to go after the little guys. I know from my home town of Blackpool—and the Minister will know this from Brighton—that often those running very small businesses do not "tick every box" with regard to employing casual workers. However, I do not think that that is what we seek to tackle. I hope that the Government seek to tackle real exploitation.

The whole debate about the exploitation of workers is not just a matter for the CBI. I am not sure whether the TUC has given the Government any evidence on the matter. This is not just a case of tackling certain employers. The exploitation of the workers that we are discussing constitutes an attack on all workers and their conditions. The TUC should adopt a higher profile and be more robust in calling for action on this matter. It has been strangely silent. That will probably result in my receiving a letter and a large bulky document from the TUC within 48 hours.

I give the measure a general welcome. Some of the points that the noble Baroness, Lady Anelay, expressed on behalf of the CBI are valid, not least the one about resources to make the measure bite where it should bite.

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Lord Bassam of Brighton (Government Whip (technically a Lord in Waiting, HM Household); Labour)

My Lords, I thank the noble Baroness for her courtesy in giving advance notice of the detailed questions that she intended to ask. That aids the Minister, as it were, at the Dispatch Box and helps provide better responses but, of course, has the downside of losing the advantage of surprise. I thank the noble Lord, Lord McNally, for his comments.

It is worth discussing the origin of the section that we are discussing. Back in 1996 the then Conservative government engendered a degree of controversy among Members of their own side, and certainly on our side of the House, when they brought the section forward. In retrospect one might say that it was a farsighted provision. They are to be congratulated on having persisted in introducing the section at the time because it has enabled us latterly to begin to capture a particular evil. The comments of the noble Lord, Lord McNally, on that point were well directed. The noble Lord made a very good point about the TUC and unions in general needing to be concerned about the issue. As he says, it is surprising that they have not been at the forefront of arguing the case. No doubt that comment will provoke fury directed at my good self.

This is an important issue. We should place on the record and state publicly here and now that a small minority of employers indulge in the exploitation of the workers that we are discussing and in so doing gain an unfair competitive advantage. They are knowingly negligent in the way in which they employ illegal workers. They do that in the full knowledge that any illegal workers who are taken out of the loop, as it were, can easily be replaced from the ready pool of exploited labour which can be tapped into, even where action has been taken by the Immigration Service. It is an evil business and we should express society's horror and abhorrence of it and do all that we can to attack it and undermine its effects, not least for good labour market reasons.

I turn to the points that the noble Baroness asked. I shall spend some time in responding as these are very important questions. The noble Baroness asked about evidence presented to the Government on the issue. The purpose of the amendment is to provide us with the flexibility to pursue the most serious cases in the Crown Courts, where there is no limit to the level of fines that can be imposed. While the existing penalty is likely to be adequate in most cases, we know from recent successful criminal investigations that the trade in illegal working can be big business and, as I said earlier, has links to organised crime. For example, in March this year, six individuals based in Cambridgeshire were found guilty of money laundering and using false documents and immigration stamps to provide illegal workers to farms and factories. In a separate trial, two people from Norfolk were found guilty of facilitation, fraud and forgery offences in connection with the supply of illegal workers.

As I said earlier, we believe that the proposed penalty increase for Section 8 is necessary to provide a firmer deterrent for those tempted by the profits to be made from illegal labour. However, it must be regarded in the context of a wider programme of measures, including greater enforcement activity, more secure document checks by employers, and the use of the proceeds of crime machinery to attack the profits of illegal working. Of course, we will also consider bringing more serious criminal charges against individuals where appropriate.

The cases that I mentioned are a good example of what we are trying to attack. No doubt there are many others that are equally horrendous. It is our intention to do all that we can to capture them.

The noble Baroness asked understandably what was the scale and nature of illegal working. That is very hard to determine because by its very nature it is a clandestine business and a criminal activity. Those involved in it are hardly going to advertise their activities. We know from the experience of workplace enforcement officers that illegal working is most prevalent in sectors characterised by low-skilled, short-term employment involving chains of subcontractors. We think that the most affected sectors probably include contract cleaning, agriculture and food processing, hospitality and construction. Those are areas that targeted enforcement activity may well benefit from being able to attack with greater vigour.

The noble Baroness asked about the level of resources. In April 2002, there were approximately 1,677 staff involved in in-country enforcement activity nationally. By November 2003, the figure had risen to 2,463. That figure includes operational and case work staff. In 2003, the Immigration Service reported carrying out 446 illegal working enforcement operations, compared with just 301 in 2002. Therefore, we have stepped up the level of activity and it is our intention that that vigorous effort should be maintained and surpassed.

The noble Baroness asked about the number of prosecutions brought over the past three years. Over the past three years for which data are available, 2000–02, there were 17 prosecutions and six convictions. We have now strengthened the security of the document checks that employers must carry out on prospective employees to establish a defence under Section 8. The revised legislation will make it easier for compliant employers to avoid giving work to illegal workers presenting false documents, and easier for us to take action against non-compliant employers who deliberately use illegal workers.

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Lord McNally (Shadow Minister (Broadcasting), Culture, Media & Sport; Liberal Democrat)

My Lords, I am glad that the Minister confirmed those figures because my ever assiduous noble friend Lord Avebury slipped them to me during the course of the debate. However, I was hesitant about using them because I was not sure whether the figure one in the statistics referred to 1,000. However, the Minister has just confirmed that the relevant figures for cases proceeded against are 10, five and two and for those found guilty four, one and one. The Minister referred to industries involving literally hundreds of thousands of organisations, agencies and employers. Therefore, the figures that he mentioned are lamentable. How can we expect to establish any kind of deterrence when the chance of someone being even proceeded against is something like one in 100,000?

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Lord Bassam of Brighton (Government Whip (technically a Lord in Waiting, HM Household); Labour)

Exactly, my Lords. We have strengthened the means of enforcement and tried to increase the rate of enforcement activity. I congratulate the noble Lord, Lord Avebury, on having rapidly reinforced my research with his own.

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Lord McNally (Shadow Minister (Broadcasting), Culture, Media & Sport; Liberal Democrat)

My Lords, the Minister has the Civil Service; I have the noble Lord, Lord Avebury.

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Lord Bassam of Brighton (Government Whip (technically a Lord in Waiting, HM Household); Labour)

That is true, my Lords.

The noble Baroness referred to the position of local magistrates. She was really raising the issue of how experienced they might be, and the relevance of that to the low conviction rates that have been confirmed and that I made clear on the record. She also asked what discussions we had with the Magistrates' Association. The low conviction rate and level of fines are probably a consequence of a number of different factors. The Home Secretary is to write to the Sentencing Guidelines Council about the low fines imposed in recent cases, which greatly concern us.

We have taken action to address the previous frailty of Section 8. As I said, it was very vulnerable to the use of forged documents by illegal workers, and it is important to remember that, in many cases, successful Immigration Service operations against illegal working depend very much on co-operation with, or information received from, employers. I fully acknowledge that dialogue with the Magistrates' Association on the matter is important, but we should use the recently enacted Sentencing Guidelines Council as a means of ensuring greater understanding of the seriousness of the offences and the way in which the Government approach them.

The noble Baroness raised the issue of the CBI. I ought to congratulate the CBI on its help and support as it has been very constructive in its discussions with us. She also asked about the measures taken by government to improve the service to employers. I am happy to respond on both those points. Through the illegal-working steering group, we have been working closely with the CBI—it has a representative on that group—to address compliance support issues. We sent summary guidance on the recent Section 8 changes to 1.4 million employers on the Inland Revenue PAYE register. We have produced more detailed guidance and made it available on the IND website, or on request from the employers' helpline, which includes high-quality photographic images of the documents that employers can check, together with other information.

The Immigration Service continues to make educational visits to employers to raise awareness of their legal obligations. We have also improved the technology supporting the employers' telephone helpline. I am told that the helpline answered a total of 7,515 calls from employers in April this year—many about the recent changes to Section 8. So that service is obviously well used.

The noble Baroness asked about the recommendations made by the CBI and what more we might do. As I said, we welcome the CBI's contribution, and we hope that the five points that it has raised can be addressed as fully as possible. The new material on the IND website includes clear photographic images of identity documents, immigration stamps and vignettes. Staff operating the helpline have been trained on the new legislation, and calls are recorded so that complaints about the quality of service can be investigated and further training needs can be identified if there is a decline in the quality of service.

In regard to the specific suggestion that the helpline should give information about the immigration status of individuals, there are two reasons why it cannot do so. First, there is no current central record of those entitled to work in the United Kingdom. We are taking steps to build the legislative base for such a register, with consultation on the draft identity cards Bill. Secondly, we would be prevented by law on confidence and data protection from disclosing a detail from a person's immigration record to their employer without that person's consent.

Helpline staff, however, provide employers with guidance on what stamps mean in people's passports, and they refer cases to the Immigration Service for investigation where appropriate. That service is obviously very important in determining whether someone's legal status as an employee is correct.

There is a lot going on. I hope that I have fully answered the points raised. If I have missed something, which is always possible, I shall happily pursue it and ensure that a fuller response is made available.

On Question, amendment agreed to.

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Lord Hylton (Crossbench)

moved Amendment No. 19:

After Clause 5, insert the following new clause—

"INFORMATION AND EVIDENCE AGAINST TRAFFICKERS Notwithstanding the provisions of the immigration rules, the Secretary of State shall have discretion to facilitate the giving of information and evidence against those who have committed offences under section 4, and such facilitation may include providing subsistence and the right to remain in the United Kingdom (including the permanent right to remain) but may not exceed compatibility with the interests of justice."

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Lord Hylton (Crossbench)

My Lords, in moving Amendment No. 19, I shall speak also to Amendment No. 20, both of which are tabled in my name. I warmly welcome the Government's action to make all forms of trafficking for exploitation serious offences. The noble Baroness, Lady Scotland, stated that the Government would continue to do all that they could to end this dreadful practice. I welcome that, but I reply that trafficking will not decrease or be ended unless there are many successful prosecutions. We have a duty to care for and rehabilitate the victims of trafficking, both adults and, especially, children.

Recent trafficking into Britain began to be noticed only in about 1995. Nine years later, we have only a hazy notion of its extent. Reliable Romanian sources, known to me personally, have estimated that 300,000 people per year may be trafficked westwards from or through eastern Europe. If only one in 20 of such people came to Britain, that would be 15,000 people a year. West Africa and Asia are other sources that could easily increase the annual total, as we have sadly seen both at Dover and in Morecambe Bay. It is probably necessary for one criminal to traffic only one woman per year into prostitution in London to gain for himself an easy life.

Apart from reports from UNICEF and the American State Department, I know of only two serious studies into trafficking to this country. Both appeared this year—the first by ECPAT UK and the second by the Poppy Project. The problem seems to affect asylum applicants and other incomers, with more female victims than males. It touches on all ages from about 30 downwards.

African child cases have increased recently. They are often masked by informal, non-registered fostering, which may cover as many as 10,000 children. Faced with the problem, social services do not always realise that they are dealing with victims of organised crime; nor do they always distinguish between smuggling and trafficking. Sometimes they find it difficult to share information among themselves. Quite often, there is still a lack of co-operation between police and social services as regards child protection.

The Kent protocol, involving immigration, police, social services and NGOs, is a model that should be helpful elsewhere. Other good inter-agency work is under way in Sheffield. I ask the Government to promote best practice everywhere, given that the main London airports are now better watched, thus diverting traffickers elsewhere. In that context, I welcome the start last month of a national service for trafficked children, called HM2.

I turn now to adult victims of trafficking. It appears that women who have suffered abuse in their own families are the most likely subject of trafficking. In a small sample, some 50 per cent had been raped before being trafficked, and 77 per cent had been beaten before escaping or being released. As a result, 92 per cent of the sample suffered some form of mental illness or acute distress, while 27 per cent had developed a sexually transmitted disease and 65 per cent had continuing physical problems.

At this point I must ask the Government whether they have studied the co-ordinated approach, adopted in Belgium, to all forms of trafficking for exploitation. That brings together administrative and labour law and the criminal code, together with full victim support. An annual report on trafficking is made to the Belgian Parliament. Grace periods for victims are provided for up to six months. Belgium co-operates with the International Organisation for Migration on voluntary returns or moves to other countries.

The key to the whole system is to be found in the bi-monthly meeting of the anti-trafficking task force, which ensures that all relevant departments really do co-operate and that depersonalised case information is properly shared, with NGOs included in the sharing. If that system has not been studied I urge that it should be done as a matter of urgency, as it shows what is possible in a serious attempt to respond to acute human needs.

I very much hope that the evidence I have provided goes some way to indicate the daunting scale of the problem and the terrible damage that it does to both adults and children. As I said earlier, we have to convict the traffickers and we have to rehabilitate their victims. These are national responsibilities which cannot entirely be passed off to local authorities and voluntary bodies, even though the latter may be best suited to establishing relations of trust with individual victims.

I turn now to the text of my amendments, which I have tried to revise from those that I moved in Committee in a strenuous effort to make them more acceptable to Her Majesty's Government. The first amendment concerns the giving of information and evidence by persons of all ages so as to secure convictions. I have included the words,

"compatibility with the interests of justice",

to avoid suggestions that witnesses have come forward only because of the benefits that they have received. The point is to make it physically possible for evidence to be given and to remove obstacles and impediments that witnesses may encounter.

I realise that the Government may reply that the discretion that I seek for the Secretary of State already exists. I want to make it known as widely as possible that such discretion does exist and to do so by direct mention in the text of the Bill. We all know that the Secretary of State cannot personally exercise discretion in each case. He must act on advice so that the way in which officials in direct contact with cases actually operate is critically important. Do they always know of the existence of reserve and discretionary powers? If they know, do they use those powers? I suggest that they should be sympathetic and use discretion at an early stage, before victims of trafficking have made up their minds in full and have definitely stated, "we will co-operate". This is the whole point of the period of reflection during which relations of trust and confidence can be built up. This is the time when fears, blockages and impediments to the giving of information and evidence can be resolved.

The second amendment uses the language of the Palermo Protocol, which Britain has signed and will soon be able to ratify. The amendment is in two parts. The first deals with children, because of their vulnerability and special needs. That is why the mandatory word "shall" is included. The word "suspects" is important because cases arise where there is a strong probability of trafficking for exploitation, but cannot immediately be proved. The second part of the amendment is permissive, because it deals with adults. I must point out that the Poppy Project, to which the noble Baroness, Lady Scotland, previously referred contains only 25 places funded by the Home Office. This is a useful start, protecting and making possible recovery for some women trafficked for sexual exploitation. It is, however, unique and I understand that all of its places are fully occupied at present. There is now no special provision for when those trafficked for labour or domestic exploitation escape or are freed from their oppressors. My amendment would enable the Secretary of State to make provision for them and I am sure that many housing associations and other voluntary organisations up and down the country would like to be co-operative on this matter.

We understand that enforcement and protection are two of the Government's four prongs in dealing with this difficult subject. The drafting of my amendment may be far from perfect, but I hope that I have said enough to persuade the Government to produce, if they fall out with my wording, their own formula to place in the Bill. I beg to move.

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Lord Avebury (Shadow Minister, Foreign & Commonwealth Affairs; Liberal Democrat)

My Lords, I think that I am correct in saying that a previous study was conducted by the University of London, which was quoted by some of your Lordships in the proceedings on the Immigration and Asylum Act 1999. So, the phenomenon of trafficking women is not new and we were already talking about the nature of providing them with assistance and rehabilitation at that time, when the only local authority that was taking any action at the time was, I think, West Sussex. There were some ball-park figures quoted at that time about the scale of trafficking, which were much larger than the number of people who have come to light.

The noble Lord referred to the Palermo Protocol and his wording is largely drawn from it, as he said. If we have signed that protocol, we should enact it in our own legislation, because it does not become part of our law—as I was reminding your Lordships in my references to the Pepushi case—until relevant legislation is passed by Parliament. If we do not take this opportunity there will be some aspects of the Palermo Protocol that are not implemented in our law, and on the last occasion that we discussed this matter, I quoted some sentences from the protocol about housing and so on, to which the noble Baroness, Lady Scotland, did not have time to reply fully. Unusually, she has not written to me on that subject, as she has done regarding so many of the other points that were raised in Committee.

I would be grateful if the Minister would confirm that it is the intention of the Government to implement fully the obligation of the state under the Palermo Protocol and, if he does not believe that the amendments tabled by the noble Lord, Lord Hylton, are acceptable on this occasion, to say how he will fulfil those obligations.

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Baroness Anelay of St Johns (Shadow Minister, Home, Constitutional & Legal Affairs; Conservative)

My Lords, I am also grateful to the noble Lord, Lord Hylton, for tabling these amendments on which he has worked so assiduously since Committee. He has met almost all of the objections that I, in particular, made in Committee to the drafting. I should make it clear that I support his objective of ensuring that we should consider the disadvantages for people who are trafficked into this country, because they may also be victims of that self-same offence—although I pointed out to the Committee that I could foresee some circumstances where someone who actively seeks to become an economic migrant may be trafficked without being seen as a victim in the normally accepted sense of the word. In particular, I welcome the changes that the noble Lord, Lord Hylton, has made which directly link the amendments with the offence in Clause 4.

Amendment No. 19 addressed the problem that we debated in Committee that we need to enlist the help of those people who have been trafficked in securing the conviction of those who are guilty of the offence of trafficking. I support the intention behind the amendment, but I am not yet convinced that it is necessary.

I recall the words of the Minister, the noble Baroness, Lady Scotland, in Committee. She said:

"There is existing provision within current United Kingdom immigration legislation for the exercise of discretion to hold removal action in abeyance in specific circumstances".—[Official Report, 5/4/04; col. 1662.]

The Minister also told the Committee that there was flexibility in the system to ensure that a person's willingness to co-operate in the prosecution of offenders could be taken into account when assessing any application to enter or remain in the UK.

It is important today for the Minister to point us to the relevant provision which gives the Government that flexibility. If he can do so, I would not then feel myself in a position where I would wish to support the amendment if a Division were called.

As regards Amendment No. 20, the noble Lord, Lord Hylton, is right to highlight the important role that voluntary organisations play in giving assistance to persons who are trafficked. I also agree that it is important for the Government to promote best practice. But I am concerned about one part of the amendment to which he referred; that is, the idea that the Government should be forced—he has used "shall" and not "may"—to make provision in respect of children where a case of trafficking has not been proved. That might take the net very wide indeed.

I look forward to the Minister's response. I hope that he is able to go further than the noble Baroness, Lady Scotland, did in Committee in explaining the steps that the Government intend to take to provide care for those people who have been trafficked for exploitation pending an assessment of whether and when they should be returned to their country of origin.

The noble Lord, Lord Hylton, referred to the Poppy Project, which provides assistance for those who have been trafficked for prostitution. What of those children who have been trafficked with their families for economic exploitation? What happens to them pending their deportation?

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Earl Russell (Liberal Democrat)

My Lords, I, too, support the amendments and I want to congratulate the noble Lord, Lord Hylton, and the noble Earl, Lord Sandwich, on the persistence and care with which they have returned to the subject. But there is one important gap in the amendments which I would like to see filled.

The noble Lord, Lord Hylton, will remember well the case of the Kuwaiti maids—the case of fairly gross ill-treatment which continued for a long time before it came to light. The reason was that they did not dare present themselves to the authority and make their case for fear that they might be sent back to Kuwait where they would not have been well received. The fear of being returned home always deters a traffickee from making any complaint. So until that fear is removed, the traffickee will not complain and therefore the trafficker will not be brought to book.

We need an exception drafted along similar lines as Article 1.1 of the refugee convention. It should state that those who successfully prove that they have been trafficked shall not then be penalised for their illegal presence in the territory—they shall be allowed to remain there—and that those who wish to make a complaint will not be returned home pending the conclusion of proceedings. Obviously, it is not enough in a perfect world, but one must balance right against right and I would not see my way to going any further. But this far we must go.

I also hope that the Minister heard the remarks of my noble friend Lord Avebury about the Palermo convention. It eases proceedings between states if they are able to treat international conventions as common legal language. I do not believe that our diplomats are under-worked—I do not believe that we need to give them a lot of extra work to do—so where we have a perfectly good international convention, let us incorporate it and let us stick to it.

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The Earl of Sandwich (Crossbench)

My Lords, once again, I support my noble friend's amendments and I want to speak in particular to that on children and young people. I know that my noble friend will be grateful for the encouragement he received from the noble Earl and the noble Baroness—although perhaps it does not go quite far enough in the case of the noble Baroness.

Noble Lords may remember that in Committee I raised the question of safe accommodation for adults. I was seeking assurance that the Government see the links between crime prevention and protection and can find ways of extending the scope of the Home Office's present support. I referred in particular to those who are trafficked into domestic service who are not eligible for protection via the Eaves Poppy Project.

My noble friend's amendment refers to child victims of trafficking and this is another vulnerable group slipping through the net. Here I would like to mention in more detail the work of ECPAT UK, the coalition against trafficking which includes Save the Children Fund and Anti-Slavery International of which I am a council member.

As we have heard, only yesterday ECPAT UK published a ground-breaking report, Cause for Concern: London Social Services and Child Trafficking. The report documents recent cases of about 30 trafficked children—only a small sample—living in 17 London boroughs. They are aged mainly between 13 and 17 and are of 16 different nationalities. They have been brought here mainly for prostitution or domestic service, often in appalling conditions. One or two are being used for fraudulent benefit claims. One Ghanaian girl who became pregnant was evicted from her home. A 13 year-old Vietnamese girl broke a window to escape prostitution. Many were sexually abused or assaulted either in the UK or before they came here.

But more seriously, the report found that many other cases remain undocumented and that social services are still largely unaware of the problem. This remains true, despite the publicity given by ECPAT and others to child trafficking since the horrible case of the Nigerian torso found in the Thames. When that case came to court last summer, UNICEF stated that thousands of children could be being trafficked in the London area without the knowledge of social services or the Home Office.

The report contains many valuable recommendations for the need for safe houses on the West Sussex model, specialised training, better co-ordination between agencies and the sharing of information. As my noble friend mentioned that, this is not the time to go into it. But it is obvious that despite the Children Act, well-known cases like that of Victoria Climbié and more recent legislation, not nearly enough is being done for trafficked children. That is partly because they fall into different categories of care, whether as asylum seekers or unaccompanied children.

I have no doubt that social services are doing their best, but the evidence shows that the Home Office needs to catch up with the extent of the problem. And as a matter of urgency, London boroughs and others need to learn from the report what can be done. Many of these young children are suffering injustices every day. Can the Minister explain what is being done for their protection and accommodation or will he assure us that something will be done?

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Lord Bassam of Brighton (Government Whip (technically a Lord in Waiting, HM Household); Labour)

My Lords, I am grateful to all noble Lords who have taken part in the debate. I recognise its importance and the sensitivity of the issues raised. We have rehearsed it on several occasions at Question Time and I understand its seriousness. West Sussex is not far from where I live. I read the local press and I understand the sensitivities surrounding the work that the council has had to undertake. Several noble Lords have drawn to my attention some of the frailties of the evident provisions.

I agreed most with the first point made by the noble Lord, Lord Hylton, on the need for successful prosecutions. We need those high profile prosecutions to make the point that this is not something that we can tolerate and that it will be dealt with very firmly.

I also thought that the reference to the research made by the noble Lord, Lord Hylton, was very useful. Obviously we need at all times to take very careful account of that. It clearly reflects on the experience of victims and gives some very important insights into their treatment and the way they are abused and exploited. I found the statistics particularly depressing.

We have debated the issue over a long period. The noble Lord, Lord Avebury, reminded us that we had an important debate in 1999. I also thought that there was great value in reflecting on the work undertaken by voluntary organisations—a matter referred to by the noble Baroness, Lady Anelay, in her contribution to the discussion.

I want to turn to the amendments as they bear some reflection. The first and most important thing to say—and the noble Lord, Lord Hylton, made the point in his comments—is that Amendment No. 19 does not provide for the Secretary of State to do anything more in relation to traffickers or the victims of trafficking than he is already able to do.

Section 21 of the Immigration and Asylum Act 1999 already allows the Secretary of State to supply information to bodies, such as the police, the National Crime Squad and the National Criminal Intelligence Service (NCIS) where that information is required by those bodies for their particular purposes. For example, information may be passed to the police for the purposes of the prevention, detection, investigation or prosecution of criminal offences. So in those terms the amendment is not really required. It is already there and unnecessary.

It is worth adding that Ministers already enjoy considerable power to exercise discretion much as they see fit with regard to the victims of trafficking. Options can range from holding removal action in abeyance to the granting of leave to remain, even for an indefinite period. Ministers exercise that power on a case-by-case basis.

Similarly, we can, and indeed do through the Home Office funded Poppy Project—Eaves Housing project—make provision for victims to be supported while they remain in the United Kingdom, but again that too has to be determined on a case-by-case basis.

So this clause does not require the Secretary of State to do any more than he is already able to do. The noble Lord, Lord Hylton, not only acknowledged that, but he was trying in a sense to encourage the use of that discretion and to draw attention to it perhaps—and importantly through this debate.

Perhaps I may turn to Amendment No. 20, which has a bearing on the Palermo protocol. Perhaps the first assurance that I need to provide to your Lordships is that we have signed the United Nations protocol on this issue. We will ratify that once domestic legislation provides us with the opportunity. So it is our intention to act on the Palermo protocol. Perhaps it is worth reminding your Lordships of Article 6.3 of the Palermo protocol. It makes clear:

"Each State Party shall consider implementing measures to provide for the physical, psychological and social recovery of victims of trafficking".

That is obviously a laudable objective, which we believe we already undertake. Nevertheless, it is an important statement of principle.

I am satisfied that we are able to provide—and, indeed, do so in many cases—to the victims of trafficking many of the services the noble Lord proposes in his new clause. The Home Office has already recognised that need. We have worked very much in partnership with the voluntary sector—and we are very grateful to it—over the past couple of years in particular to put in place provision for adult victims of trafficking for sexual exploitation. The Poppy Project is currently being evaluated and, based on that information, we shall take decisions on the type and extent of support needed in the future. That evaluation is very important to us. We want to understand the value and worth of developing that service, in particular through the Eaves Housing project.

It is also worth reminding noble Lords that the Children Act 1989 places an important duty on social services departments to safeguard and promote the welfare of children in need. That includes those who have been assessed as victims of trafficking. However, we are reluctant to place a duty on the Secretary of State to provide care where trafficking is merely suspected but not proven. I have no doubt that many social services departments will err on the side of caution—and do err on the side of caution—and will provide active support where there is little evidence of trafficking. But we must avoid providing what could be described in some circumstances as a "perverse incentive" for parents to send their children to the United Kingdom, often in highly dubious and unsafe circumstances, so that they might avail themselves of the provisions of this clause.

However, we recognise and understand the importance of working very closely with social services. We have regular liaison with them and are seeking to encourage and ensure that they are sensitive to the issues trafficking raises. I think that we already do what the amendments propose and valuable work is being undertaken.

The noble Earl, Lord Sandwich, raised the issue of the ECPAT report. Perhaps it is important to say that those who may have to deal with victims of trafficking are aware of the particular issues that it presents. The ECPAT report is extremely valuable. We are grateful to that body for the research that was undertaken. I want to reassure not only the noble Earl but other noble Lords who have participated in the debate that we shall consider the lessons that can be drawn from that report and will see what more needs to be done.

With that, I remain in favour of retaining the current system where the provision of care is based very much upon a careful assessment by local social services because I think they are best placed to provide those services. They are closest to the problem. I hope that the noble Lord, having valuably aired many of the important issues relating to trafficking and the care and support of the victims of trafficking will feel able to withdraw his amendment this evening.

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Earl Russell (Liberal Democrat)

My Lords, I am a little puzzled by the Minister's objections to Amendment No. 19. I see the point he makes well enough, but I am not certain what the logic of his argument is. He is presumably not telling us that every time a Minister has a discretion, which may be exercised in favour of an asylum seeker, that he uses it. He is presumably not telling us either that Ministers object to being given a little gentle encouragement on occasion, which is all the draft of the noble Lord, Lord Hylton, would do.

So, if the noble Lord does not say that a Minister always uses his discretion, and that he does not want a little gentle encouragement, is the noble Lord suggesting that we ought to use a blunter instrument next time? That really would be a rather perverse incentive to give us.

On the subject of the Palermo convention, is there any possibility of its incorporation in the Children Bill at present before this House?

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Lord Bassam of Brighton (Government Whip (technically a Lord in Waiting, HM Household); Labour)

My Lords, I am grateful to the noble Earl for his intervention. It would be wrong of me to assume great powers with regard to the Children Bill. That is not a proper consideration for me to make at the Dispatch Box this evening, although it is an interesting invitation, and one of which I shall certainly take note.

With regard to the noble Earl's earlier comment about giving the Secretary of State a nudge and some gentle encouragement, the amendment simply seeks to do what the Secretary of State already does. It would allow the Secretary of State to provide subsistence and to grant victims of trafficking leave to remain. The Secretary of State can already do that. It would be irrelevant to have an amendment that simply repeated what was already there. I see no good reason for putting this in the statute books. What is proposed is already actively undertaken in respect of traffickers and victims of trafficking. It does nothing more than we can already do. It adds nothing.

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Earl Russell (Liberal Democrat)

My Lords, our parents sometimes used to give us sweets. We sometimes encouraged them to do it a little oftener.

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Lord Hylton (Crossbench)

My Lords, I thank noble Lords who have taken part in this short debate. I am grateful for the fair degree of support from the opposition Benches and to the noble Lord, Lord Bassam, for his generally sympathetic response. I fear that I have not been successful in getting the Government to move forward significantly. I would like to try out some further questions on the noble Lord.

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Lord Williams of Elvel (Labour)

My Lords, I am sorry to interrupt the noble Lord, but we are at the Report stage.

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Lord Hylton (Crossbench)

My Lords, in that case I shall try my best to be brief.

We have been discussing the Palermo protocol. I was under the impression that the Bill gave the Government an opportunity to ratify it. I may be wrong; perhaps the Children Bill would be a more appropriate place for that. One way or another, we would like to know where the Government stand.

Can the Government go further than the noble Baroness, Lady Scotland, did on 5 April, as reported at col. 1663 of Hansard, on the United Kingdom's not opting into the new European Union directive about victims of trafficking for exploitation? If the Government think that their system is superior, have they tried to convince the EU to apply it elsewhere? Has the draft directive been improved and amended since the beginning of April? The course of the research that I mentioned has shown that "hot addresses" crop up in practice, where people who have been either smuggled or trafficked into this country pass through fairly regularly. Will the Government undertake to investigate such addresses and to deal with them?

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Lord Evans of Temple Guiting (Government Whip (technically a Lord in Waiting, HM Household); Labour)

My Lords, I must remind the noble Lord again that we are on Report. The sort of questions that he is asking should be raised in Committee not on Report. I think that the House would wish me to ask the noble Lord to remember what stage we are at and not to treat this as a Committee stage.

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Lord Hylton (Crossbench)

My Lords, the noble Lord will be relieved to hear that I am about to conclude my remarks. Perhaps we should take up the suggestion of the noble Earl, Lord Russell, that Article 31 of the refugee convention may provide a way forward. Failing that, an amendment proposed by the United Nations High Commissioner for Refugees may provide a solution. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 20 not moved.]

Clause 7 [Claimant's credibility]:

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Lord McNally (Shadow Minister (Broadcasting), Culture, Media & Sport; Liberal Democrat)

moved Amendment No. 21:

Page 7, line 23, leave out paragraph (e).

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Lord McNally (Shadow Minister (Broadcasting), Culture, Media & Sport; Liberal Democrat)

My Lords, Clause 7, headed "Claimant's credibility", is in many ways the most subjective clause. Clause 7(2) says:

"This section applies to any behaviour by the claimant that the deciding authority thinks",

and so on. The UNHCR has quite rightly drawn our attention to the fact that what "the deciding authority thinks" can be the most subjective judgment, based as much on the cultural background of the deciding authority as on the cultural background of the person being interviewed. Therefore, it rightly warns us that the kind of considerations spelt out in Clause 7 should be treated with extreme caution.

The UNHCR helpfully provided an article prepared by Professor Audrey Macklin for the Immigration and Refugee Board of Canada. It says:

"Credibility determination is hard. It is frequently difficult to articulate in rational terms why one does, or does not, believe another . . . The stereotype goes something like this: truth-tellers look us in the eye, answer the questions put to them in a straightforward manner, do not hesitate, show an 'appropriate' amount of emotion, are neither too laconic, nor too verbose. Liars do not look us in the eye . . . do not answer the questions put to them . . . say too little . . . say to much . . . are either too demonstrative . . . or lacking in affect . . . Yet as we all know (or should know), culture, gender, class, education, trauma, nervousness and simple variation among humans can all affect how people express themselves. It is dangerous at best, and misleading at worst, to rely on a uniform set of cues as demonstrative of credibility, or lack thereof".

That is the core of the amendment. It would remove only one of the cues under subsection (2) that the determining authority is to treat as,

"designed or likely to conceal information . . . [or] . . . to mislead".

Subsection 3(e) refers to,

"failure without reasonable explanation to answer a question asked by a deciding authority".

In my schooldays, that was called dumb insolence. It is a step too far to imply that silence—whether because of dumb insolence, trauma, cultural misunderstanding or sheer prudence that an answer might cause problems elsewhere—can be used by the deciding authority to imply that the claimant's credibility is at risk. I beg to move.

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The Countess of Mar (Crossbench)

My Lords, I remind noble Lords of my involvement as a member of the Immigration Appeal Tribunal. In all the 19 years that I have done the job, I have never needed to be told how to assess a claimant's credibility. One does it from experience and knowledge of the situation. I find this clause absolutely amazing. I support the noble Lord, Lord McNally, in his amendment.

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Earl Russell (Liberal Democrat)

My Lords, my noble friend reminded me of a passage in Konrad Lorenz's book On Aggression describing introductions between Americans and Japanese. The American looks up, opens his mouth, bares his teeth and extends his hand, and the Japanese takes that as an act of aggression. The Japanese will bow his head, look submissive, remain quiet and give an impression of total subservience. Both impressions are equally wrong. We are hearing of a process very like that. The clause should be entitled, not "Claimant's credibility" but "Credulity of the determinator". Many applicants come from countries in which what is taken for a reasonable explanation is very different from what is taken as one here. I support the amendment warmly.

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Baroness Carnegy of Lour (Conservative)

My Lords, there is a point in this amendment, and I have some sympathy with it. The noble Countess, Lady Mar, said something rather important. She does not think that usually one has to be told how to assess someone's credibility. Anyone who has sat on the Bench will know what she means. If the Government are going to do this, the list of things that are to be included should be carefully looked at. Of paragraphs (a) to (e) in subsection (3), (e) is the one that is, to my mind, the weakest.

If you do not without reasonable explanation produce a passport or a document, or explain why you have destroyed it, that is a concrete matter; but,

"failure without reasonable explanation to answer a question",

is not concrete at all. Even if it said "the manner in which" a person replied or failed to reply, I would be happier. We can all think of the difficulties that someone might have in answering. They might not answer just because they did not understand. This is a great weakness in this clause. I would rather like to think that the Government will look at it again.

Photo of Lord Bassam of Brighton

Lord Bassam of Brighton (Government Whip (technically a Lord in Waiting, HM Household); Labour)

My Lords, the amendment would delete subsection (3)(e), which provides that,

"failure without reasonable explanation to answer a question asked by a deciding authority",

is to be taken as behaviour that damages a person's credibility. Of course, we accept and understand that there are cultural differences. The example given by the noble Earl, Lord Russell, was pertinent and interesting. We accept that some claimants may have some cultural distance from the experience of responding to questions and that some claimants may find it painful to recount the details of their experience. Obviously, it depends very much on the circumstances. It is possible that the circumstances could provide a reasonable explanation for a claimant's earlier reluctance, or reticence, to provide a full story or to be entirely truthful. We fully understand the need for sensitive evaluation to take place—we see that as a requirement. However, only the applicant can know the truth of the claim, and therefore it is right that the general principle must be that it is for the applicant to co-operate fully to establish what the truth is.

It is the Government's view that where a person refuses to co-operate with our procedures by not providing information that is requested in connection with his claim, and which it is in his gift to provide, that is a clear demonstration of non co-operation. It is only right that such failure—unless justified by a reasonable explanation—should be taken into account and an adverse inference be made when assessing the credibility of a person's claim. Of course, we would accept a reasonable explanation.

I am sure that the noble Lord, Lord McNally, will not like that explanation, but it is right and appropriate. I heard what the noble Baroness, Lady Carnegy of Lour, said about this wording. The wording is right—I cannot bend to the suggestions that have been made on this. This is the right way to proceed, and I hope that the noble Lord will feel able to withdraw his amendment. It is an amendment which, if passed, would significantly weaken the position of the determining authorities. That is an important element to be considered.

Photo of Lord McNally

Lord McNally (Shadow Minister (Broadcasting), Culture, Media & Sport; Liberal Democrat)

My Lords, the Minister applied his usual straight bat to the amendment. I was enormously encouraged that I had the support of the noble Countess, Lady Mar, and the noble Baroness, Lady Carnegy, who spoke from considerable experience about what deciding authorities need to be told and what should be left to their experience. I hope that when the Minister has a chance to read Hansard, particularly the interventions, he might consider that subsection (3) (e) being taken out of the Bill would not end civilisation as we know it. In the mean time, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 8 [Failed asylum seekers: withdrawal of support]:

Photo of Lord Avebury

Lord Avebury (Shadow Minister, Foreign & Commonwealth Affairs; Liberal Democrat)

moved Amendment No. 22:

Page 9, line 19, at end insert—

"( ) In Schedule 3 to the Nationality, Immigration and Asylum Act 2002 (c. 41) (withholding and withdrawal of support) after paragraph 3 insert— "3A (1) Support shall not be withdrawn or withheld from a person under the provisions of this Schedule unless the needs of that person and any dependants has been the subject of an individual evaluation. (2) An evaluation for the purposes of this paragraph shall pay special attention to needs arising because the person is— (a) a minor; (b) a person who claimed asylum while still a minor; (c) disabled; (d) elderly; (e) pregnant; (f) a single parent with a minor child; and (g) a survivor of torture, rape or other serious forms of psychological, physical or sexual violence.""

Photo of Lord Avebury

Lord Avebury (Shadow Minister, Foreign & Commonwealth Affairs; Liberal Democrat)

My Lords, we and many others have already explained our objections to Clause 8 in some detail in Committee, and I do not intend to repeat all that here. However, we do not accept that Parliament and the state can abdicate responsibility for the children of failed asylum seekers by saying that, if the parents refuse to depart voluntarily when they get to the end of the appeal process, it is the parents who are putting the children at risk and it is for the local authority to decide how the interests of the child should be protected under existing child protection legislation.

If any local authority should fail to protect the children in that situation, there would be a breach of the UN Convention on the Rights of the Child and of the Human Rights Act. Morally, it would not be only the local authority that was to blame—the Government and your Lordships would share the opprobrium for creating the circumstances in which the violation was likely to occur and failing to build in adequate safeguards to prevent it happening.

The noble Baroness said in Committee that it was not the intention of the Government to separate children unnecessarily from their parents. That means that there will be circumstances in which they think it is necessary to separate children from their parents; otherwise the Minister could have given an unqualified assurance that it would never happen. So far, no Minister, either in another place or here, has explained how this can be achieved without contravening the Children Act and corresponding legislation in Northern Ireland and Scotland. It is not surprising that the British Association of Social Workers has said that to operate this clause risks breaching their members' professional ethics. It will be the Secretary of State who lights the fuse that leads to this explosion of children's rights by certifying that the parents have failed without reasonable excuse to leave the United Kingdom voluntarily.

As the Minister said in Committee on 5 April, the Government mitigated the harshness of this clause by providing a right of appeal to an asylum support adjudicator against the certification and the consequent loss of support. The adjudicator would not be entitled to consider the likelihood that if the certificate was upheld, there would be a breach of the Children Act, the UN Convention on the Rights of the Child or the Human Rights Convention. Again, it comes down to the manner in which the local authority deals with the conundrum that is presented by Clause 8. The Minister can tell the House whether—and, if so, under what conditions—the local authority has to provide accommodation and support to the family. It would be grossly unfair to the hard-pressed local authorities not to spell this out. In particular, do Ministers say that powers to support children in need under Section 17 of the Children Act 1989 can be used?

The assessment of whether a child is in need directs social workers towards promoting the upbringing of the child within the family. If parents are asking for support to keep their families together, and social workers believe that it is in the child's best interests, this is the support that ought to be provided, but as we read it, that is not allowable under Clause 8. If there is only a very limited power and, in practice, the local authority has no option but to take the children into care, leaving the parents on the street, it may be acting unlawfully too. As the Joint Committee on Human Rights put it, and the Minister candidly acknowledged:

"While Clause 7"—

as it was then—

"in itself is compatible with rights under the ECHR and the CRC, we fear that violations could all too easily follow in practice. We draw this to the attention of each House".

The noble Baroness said that the Government had taken that warning into account in providing a right of appeal, but, in effect, that only deferred the moment at which the risk envisaged by the JCHR would arise. The adjudicator has no power over the decisions that are to be made by the local authority. On the basis of those considerations, the only proper response to Clause 8 would be to delete it.

That is not to say that we believe that people who are unsuccessful in making asylum claims should be allowed to stay here indefinitely. We accept the need to remove them compulsorily as a last resort. However, what we find absolutely repulsive is the way in which the Government describe the infliction of destitution on families with children as voluntary departure. We want to know how they intend to apply the provisions of new paragraph 7A of Schedule 3 in the real world. If the parent or parents have no means and no accommodation, does Section 21C of the Children Act 1989 kick in? Are local authorities caught between the Scylla of paragraph 7A and the Charybdis of an expensive court case under the Children Act or the Human Rights Act? If your Lordships have not the faintest idea how the conflict is to be resolved and if Ministers will give us no answers, how can we expect local authorities to make such painful decisions?

We already have some idea of what will happen when Clause 8 comes into effect from the experience of EEA asylum seekers from 1 May onwards. We dealt with the matter on two previous occasions: on 23 April, when your Lordships approved—I use the word tactfully—the accession regulations, and on 26 April, when the Committee heard that news of the three-day concession had not filtered through to NASS officials in Brent and, for all we know, in other parts of the country.

In a letter sent to A8 asylum seekers dated 5 April but, in some cases, received much later than that, NASS said:

"If you are living in accommodation provided or funded by NASS, you will need to vacate it by 1 May"—

that part was in bold—

"as you will no longer have authority to remain there".

The letter said nothing about the safeguards—limited as they may be—in the schedule, nothing about supporting children, and nothing about supporting people when not doing so would be a breach of their human rights, including the right to family life of a child threatened with separation from his or her parents. No evaluations of the likelihood of such breaches were carried out, and NASS made no attempt to assess individual cases to ensure that breaches of human rights did not occur.

Unsurprisingly, the evictions have been challenged. The High Court asked NASS to stay evictions so that the court would not be overwhelmed by applications for relief, as we predicted. NASS agreed to do so, but only if people contacted them, with the result that many people were unaware of the temporary reprieve. Mr Justice Collins granted permission to proceed to a full judicial review, which is now scheduled for 20 May. In that hearing, he said to the Government's representatives:

"You say that, because you have left it to the last moment, nothing can be done, subject to the [human rights] convention . . . That is a recipe for bad administration: leave to the last moment—don't do what you should have done earlier. Then you get away with it. That doesn't sound very attractive. That is the problem I am faced with. I think all the evidence points one way as to whether it was reasonable to expect them suddenly to find work when they had not been able to work".

What is to stop the same appalling situation occurring when Clause 8 comes into effect? The families that are to be deprived of support are not only those who reach the end of the line from now on but all the people who are likely to benefit from the backlog clearance procedure.

I had a letter from Home Office Minister Fiona Mactaggart about one such family. I shall give the reference in case the Minister wants to look it up: A545063. The applicant had arrived here on 6 November 1995 and applied for asylum at the beginning of January the following year. The former Minister, Beverley Hughes, wrote to me on 13 December last year, saying that Mr H would hear from the IND shortly. Four months later, there was still no word, and I wrote again. Ms Mactaggart replied, pleading that, as a result of the reorganisation of the IND, there had been what she described as "occasional delays". She apologised for the distress and inconvenience that it had caused the family. The Minister said that the IND would send Mr H a form in the next two months.

I use that case as an illustration that, if Clause 8 were in effect while the backlog was still being cleared, Mr H and his family would have to live on nothing while the IND got round to sending out the forms. We are suggesting that, as a minimum, procedures should be established to ensure that the modest exceptions in Schedule 3 are identified and honoured. Amendment No. 22 spells out particular groups whose needs must be evaluated before any decision to withdraw support is taken. That list is modelled on the EU reception directive. Although that directive is concerned with the reception of people seeking asylum rather than those who have reached the end of the process, we used it as our source because it provides a definition of "vulnerable persons" agreed by the UK and other member states.

I have just seen a letter from the Treasury Solicitor to an applicant. It says:

"We confirm that those who have indicated their wish for support to continue by their representations to NASS either in writing or on the telephone will be eligible for an assessment".

Over the page, it says:

"We confirm that the assessment will take into account factors relative to whether or not the failure to provide support would result in an ECHR breach".

If that is the case, and the Treasury Solicitor is making the concession, we are almost where we want to be with Amendment No. 22. I hope that the Minister will confirm that the letter from the Treasury Solicitor represents the change in government policy that we are asking for through Amendment No. 22. I beg to move.

Photo of Lord Lester of Herne Hill

Lord Lester of Herne Hill (Liberal Democrat)

My Lords, I wonder whether, when the history of this Government comes to be written, the debate on this clause will not seem significant as a touchstone of what the Government are doing to respect basic human rights and freedoms. I find it dispiriting that such an unsightly clause should ever find its way into a Bill. I cannot believe that a previous Conservative Home Secretary would have given his authority for such a provision.

I speak only as a member of the Joint Committee on Human Rights, which will meet—rather late in the day because of the pressure on us—to consider this clause and others in the Bill. As we are on Report, any report that we publish will be able to be considered only at Third Reading. I shall be brief, and I make it clear that I speak only for myself. However, I am glad to see that the noble Lord, Lord Judd—another powerful member of the Joint Committee—is in his place.

As my noble friend Lord Avebury said, in the fifth report of the Joint Committee on Human Rights, we considered the human rights implications of the proposed withdrawal of various benefits from failed asylum seekers with families who, in the Secretary of State's opinion, had,

"failed without reasonable excuse to take reasonable steps—

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

In the report, we drew attention to the potential state of destitution facing people from whom support was withdrawn. We also drew attention to the fact that the Secretary of State had an obligation to undertake the most careful examination of the likely impact of withdrawing support in each individual case in order to avoid a violation of the right in Article 3 of the European Convention on Human Rights not to be subjected to inhuman or degrading treatment.

I believe the Government's position to be that they have a duty to exercise discretion to avoid a breach of Article 3 of the European convention. That will no doubt be confirmed by the Minister in his reply. However, I also believe that the Government rely on the argument that support will be withdrawn only from failed—I repeat, failed—asylum seekers who have failed to leave the UK voluntarily. The fallacy in that argument is that Article 3 of the European Convention on Human Rights is absolute. There are no exceptions. There is an absolute prohibition against inhuman or degrading treatment, which applies irrespective of the circumstances of the victim.

I recall, for example, that in the Chahal case—the case of a Sikh suspected terrorist facing extradition or deportation to India—the European Court made it crystal clear that Chahal was entitled to be protected absolutely against the inhuman or degrading treatment that he risked if he were sent to India, although one could say that he brought the situation on himself. The question that the Joint Committee on Human Rights will have to ask and answer is whether we still think, as we did in our previous report, that the Secretary of State must recognise and must give serious consideration in each individual case to the potential state of destitution that follows the withdrawal of benefits. I submit that the Government cannot treat an asylum seeker's failure to leave the UK voluntarily as in any way relieving them of their obligations under Article 3 of the European convention to secure, in practice, that there will be no violation of Article 3.

If that is right, although the amendment does not write that in as a specific obligation, it would require an individualised evaluation of the particular circumstances rather than a per se assumption that because the failed asylum seeker is failed and because the failed asylum seeker has not voluntarily left the UK, he and his family must have the benefits withdrawn.

As I said before—I am using my language moderately here—this is a most unsightly provision to find its way into any Bill of a Government whom I, as a Liberal Democrat, looked forward to seeing in power in the hope that they would respect the basic principles of liberty and equality. I am deeply disappointed to find that provision in the Bill. The amendment would have the great benefit of ameliorating but not curing the position. It allows the Government still to have their policy of withdrawing support, but it means that the process by which it is done makes it more likely that there will not be a violation of Article 3.

I simply say that if the amendment is not accepted, I predict that there will be litigation under the Human Rights Act, which would not be to anyone's benefit. It would be much better if we write adequate safeguards against abuse into the Bill. Frankly, I can see no good reason why the Home Secretary should not be compelled to have regard to individual circumstances and ensure that there will not be breaches of the guarantees in Article 3 of the European Convention on Human Rights. I therefore strongly support my noble friend's amendment.

Photo of Lord Judd

Lord Judd (Labour)

My Lords, the noble Lord, Lord Lester, has said that he speaks for himself alone, although, not for the first time, I find myself in agreement with much of his sentiment. He has also drawn attention to the meeting tomorrow of the Joint Committee on Human Rights where we shall be considering the issue. This places those of us who are members of that committee in some difficulty. Obviously, we are influenced by the discussion with our colleagues. Therefore, it is important not to prejudge the outcome of those deliberations in the Joint Committee.

However, there are a couple of observations that I should like to make. First, I think that by any reading of the convention, there are certain absolute, unqualified obligations on government. We need to hear my noble friend's response on that point. Secondly, I take as seriously as any other member of that Joint Committee or indeed, I am sure, any other Member of this House, our obligations under the convention. But I think that it is sometimes a pity that we assess those matters and discuss them simply in terms of obligations under a convention. Of course, that is crucially important.

However, I should have thought that in this House we would want to take seriously the issue of law that is administered with compassion and feeling. We have got to do some joined-up thinking about the different issues that confront us at the moment. We are tremendously preoccupied with the issues of global terrorism and the alienation that feeds global terrorism. In that context, it is crucial not only that justice is done but also that justice is seen to be done. It is also crucial that in all that we do we are living evidence of the values which we say are the basis of our society that we are trying to protect.

Those are points that intellectually it is quite easy to make, but the crunch comes when we come down to the practicalities of public administration. My own view therefore is that the amendment put forward is really quite a moderate and modest checklist of the responsibilities of compassion and of considering the position of the people who may be about to have their benefits withdrawn.

Before I conclude, I should like to put one point to my noble friend the Minister, to which I hope that he will feel able to respond. Would he, as a member of the Government, be happy that support had been withdrawn from a minor because a rule made that possible, rather than because a rule established the possibility of doing that and the case had been very carefully considered? Would he feel happy that it was done just because it was a possibility and therefore had been seized as a possibility for any of the other categories listed in the amendment?

I know my noble friend well. I have a great affection for him. I believe that he is a very sensitive and caring person. I do not believe that he would be happy. Therefore, in that context, the amendment helps us to establish the responsibilities of those administering the law to pause and consider the implications of what they are doing and to go through rather carefully what the consequences will be.

Photo of The Earl of Listowel

The Earl of Listowel (Crossbench)

My Lords, in speaking to Amendment No. 22, I shall speak also to Amendment No. 24, both of which stand in my name. I support all that the noble Lord, Lord Avebury, said. I declare an interest and remind your Lordships that in 2002 UNICEF sponsored a few other parliamentarians and me on a visit to Angola to see where the journey of the refugee child begins. We are currently working on the Children Bill, which we hope will ensure that many more children have a decent start in life. My deep concern is that as a result of this clause some children will have a poor start in life.

Will the Minister pass on my thanks to the noble Baroness, Lady Scotland, for the helpful meeting she arranged? It was useful to have the Government's position set out with more clarity.

I support this amendment because it serves as a means of clearly evaluating these families before their housing and benefits are removed and they are made destitute. I listened with great interest to the noble Lord, Lord Avebury, when he spoke of the recent débacle of asylum seekers under the accession arrangements. It is clear that this sort of protection is necessary in that context.

Whatever the parents may do, we must remain interested in the well-being of their children. Recently I visited some families at the Medical Foundation for the Care of Victims of Torture. Among them I met a mother whose children had seen a report of an event on television. Noble Lords may be aware of the story. Two or three months ago, back in Kosovo, three children were playing on Serbian ground. The local Serbian people set their dogs on the children, who were not of their ethnic group. The children were driven into a lake, where they drowned. In the ensuing struggle, 30 people were killed. The mother told me how her children had watched the reportage of this incident.

Some families have had their homes burnt out and they cannot return to their villages because they have fallen under the control of another ethnic group. Many of them will have been through the judicial process, which is thorough and effective. However, they will still be traumatised by the extreme experiences they have suffered in their home countries. Nevertheless, the process will decree that now that the situation in their home country has stabilised, they are no longer in fear of persecution. Objectively that may be true, but for the families who have lived through such terrible experiences—we all recognise those events—subjectively they may not consider it safe to return. When faced with the choice either to return or be made destitute, some of those families may well choose destitution.

I welcome the assurance of the noble Baroness, Lady Scotland, in Committee. She said that it is not the aim of the Government to put families on the edge. The Government want to avoid putting parents in a position where they have to make decisions that go against the best interests of their children. Given that, I hope that the Government will regard this as a helpful amendment, one that would protect the standards about which they are concerned.

I move on to the debate on whether the clause should stand part of the Bill. As I have said, I consider this provision to be one that poses a very real threat to the well-being of the children of these families. Her Majesty's Government deserve many congratulations on the steps they have taken to improve the asylum process over recent years: investing in the Immigration and Nationality Directorate; reducing asylum claims by half; speeding up the decision process to two months; and doubling the number of removals. In that context, is this draconian proposal, one that would make families destitute, really necessary?

Although the Government have not argued it, there must be a concern that if this clause is not as firm as it is, more families will be encouraged to claim asylum in this country. I draw the attention of noble Lords to a recent House of Lords committee report entitled Handling EU asylum claims: new approaches examined. On page 11 it states:

"Research carried out for the Home Office shows that asylum seekers may know little about the United Kingdom before they arrive here. It also suggests that changes to benefit regulations in different European countries have had little effect on the numbers of asylum seekers coming to the United Kingdom, whose numbers continued to rise . . . despite a decade of increasing restrictions on the availability of welfare benefits for asylum seekers".

Noble Lords may also care to peruse the evidence on asylum applications given by Dr Deborah Crawley in the second report of the House of Commons Home Affairs Committee in Session 2003–04. It provides more insight into that research. Dr Crawley was responsible for researching the reasons why people come to this country.

I am sorry to speak at such length and trespass on the time of the House, but I am very concerned about this issue. The danger is that we do not know enough about what may happen as a result of this provision, particularly about the numbers it will affect. I should be grateful if the Minister could give us more information, in as much detail as possible, on the number of families likely to be affected. However, I suspect that he may not be able to be very helpful.

On the first night I visited a Centrepoint hostel, I met two homeless 16 year-old girls. One said that her stepfather had pushed her out of the home. An African cook, a young woman, sat at our table and said, "You know, if I had a place to stay, all my family would be welcome. There is no way that my family would not provide me with a place to live if I was stuck".

Many people currently in the care of the National Asylum Support Service will be caught by this clause. Many are now dispersed to areas under less pressure. What may happen as a result of all support for these families being removed is that they will move to the nearest place where there is a large number of those from their own ethnic group. That may be London or Manchester, if that city is closer. Such movements will put increased pressure on already very burdened settings. It will not be good for them and it will not be good for our people.

Often these families function reasonably well. Unlike many of the families that I meet, the parents are not addicted. They have not lived in deep poverty for a long time and they have not both had to go out to work, resulting in neglect of the children. However, I am concerned that these families will be put into a situation where they have to take on illegal work, because that is all they can get, and they have to live in the worst conditions. Although we have stopped local authorities placing families in bed and breakfast accommodation, NASS still puts some asylum seeking families into such housing. I have seen some appalling private accommodation. Once I saw a lavatory that doubled up as a shower. The lavatory and shower were sited together in one cubicle. We may drive these families into conditions like those.

In conclusion, I strongly commend the Government on their investment in processing asylum claims and I do not underestimate the difficulty of the job in hand. The noble Lord has a background in social work and I am sure that that will help him to understand our concerns. I look forward very much to his response, and the possibility that he may be able to suggest that the Government might just begin to think again about this highly controversial clause.

Photo of Earl Russell

Earl Russell (Liberal Democrat)

My Lords, my noble friend Lord Lester of Herne Hill rightly stressed that in the European convention some rights are absolute; they are not contingent. It is the same in life, which I why I was proud to be in this House when it made legal history by ratifying the protocol of the European Convention on Human Rights which bans the death penalty.

I feel exactly the same about any measure which takes away from people the right to food and shelter. I may be right or I may be wrong in that. It depends very heavily on the evidence, on what it actually does to people. I have been trying to get that evidence for 15 years with a singular lack of success. Only once have the Government agreed to collect it; that was in the pilot studies on the effect of deprivation of benefits on those who are guilty of breaches of community service orders. I referred to that evidence in Committee on the Bill. The noble Baroness, Lady Scotland, said, "Oh, but those are quite untypical; they are some of the worst behaved people in the country". It may be that I am cynical but the thought went through my mind, "Perhaps that is why they allowed that particular evidence to be collected".

Amendment No. 22 is vital because it contains a requirement for evaluation. That will fill in exactly the gap between two imagined pictures of deprivation of benefit which has never been closed in 15 years to date.

We should remember also that not all failed asylum seekers are rightly so described. I remember corresponding with Lord Williams of Mostyn about someone who would certainly have been subject to this clause. This person was within three days of removal. Once Lord Williams applied his gift for evidence to the case, he decided that the man's case was justified and he was granted asylum. I do not know how many more innocent people we will catch in the web.

It is vital that victims of rape and torture should be allowed support. I am told that a brief from Women Against Rape has been chasing me around the House but has not yet reached me. I imagine that it might possibly say that women who have been victims of rape, or people of either sex who have been victims of torture, may be very reluctant to come forward in public, especially in a mixed sex environment. So we may catch in our great net a large number of people who have been victims of rape and torture.

In Committee, the Government relied very heavily on one single defence: that they did not wish to separate parents and children. I do not think that carries quite the weight they put on it. When we say, "If you do this you will be imprisoned", we do not want to imprison people; but we do take it for granted that some people will be imprisoned or the deterrent will not work. The Government are prepared to do this but, when I consider all the implications, I am not.

Photo of Lord Elton

Lord Elton (Conservative)

My Lords, I apologise for intervening, if briefly, on this single group of amendments but I should like the Government to clear up some points that I wish to make.

As I understand it, new paragraph 7A is designed to deal with people at the absolute final end of the processing of asylum applications. That process will have shown that they have no shadow of a right to remain in this country. If the process was working smoothly, was adequately staffed and not overloaded, one might accept that this was a good, final judgment that should be executed without undue clemency, shall we say, to those upon whom the execution takes place.

My first anxiety is that, as I understand it, the process is exceedingly overloaded. The provision will increase the load and make shaky decisions more likely. I therefore welcome Amendment No. 22, which at least directs the attention of officials and, as it were, the process itself to those who would be in the gravest danger if they were deprived of all the support listed in the first paragraph.

I am also puzzled by the fact that, as I understand it, these are people whom the Government are afraid will continue to be living out of the public purse, as it were, although they have no right to be here. But the Government will have a duty to remove them from the country at that point. The very fact that they come to collect the money from the public purse means that they will be available for deportation. It seems to me that their eligibility for social security and so on is a means of making the method of deportation more certain.

Those two matters seem to require some answer. Without such an answer, I shall be very much in favour of Amendment No. 24.

Photo of Baroness Anelay of St Johns

Baroness Anelay of St Johns (Shadow Minister, Home, Constitutional & Legal Affairs; Conservative)

My Lords, these are sensitive and serious issues. If one puts aside for the moment the issues surrounding Clause 14 on appeals, certainly they are the most intractable problems that face us today.

This debate concerns the well-being of children. The noble Earl, Lord Listowel, reminded us of his day-to-day experiences and the depth of his experience. He had no reason to excuse the length of his contribution; it was very valuable. He referred to a meeting that he set up for noble Lords which was attended by the Medical Foundation and, most importantly, by people who had themselves suffered through the system. It is important that we should put on record our tribute to the courage of those people who came to meet noble Lords that day. To come to a political institution when you have been the victim of persecution by other political institutions takes tremendous courage.

I have had the opportunity, both at Second Reading and in Committee, to speak at length on these issues. I shall therefore not abuse the rules on Report by repeating everything that I said at those earlier stages. I can summarise our response by saying that we on these Benches had initially severe reservations about Clause 8 because of the publicity given to the Government's alleged intentions prior to the publication of the Bill itself. When the Bill was published, we found that the worst of the abuses we thought were going to be in Clause 8 were not included.

As a result of that, we then sought a series of assurances in another place from the Government. These were given to my honourable and right honourable colleagues by Beverley Hughes, the then Immigration Minister. I thought it right in Committee and in this House to seek as full—and, indeed, fuller—assurances from the Minister, the noble Baroness, Lady Scotland. I asked particularly about pregnant women. The noble Earl, Lord Russell, referred to the brief today from Women Against Rape. I am grateful to that organisation for referring in the briefing to one of the questions I asked. To all the questions I posed, the Minister gave both full responses and full assurances. I stated on that occasion that I accepted those assurances; I still do.

I appreciate that in this House it is quite common for noble Lords to make up their own minds on such issues. My noble friend Lord Elton will always make up his own mind. I admire him for it. I know that I will be somewhat teased if there is a Division because of the fact that in another place the Conservative Party voted with the Government against amendments designed to damage—and, indeed, to withdraw—Clause 8. I have to make it clear that today I shall be abstaining on this issue and I invite noble Lords who have not been present for the debate to abstain. But, as ever, I invite my noble friends who are present and who have taken part in the debate to make up their own very considerable minds.

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Lord Bassam of Brighton (Government Whip (technically a Lord in Waiting, HM Household); Labour)

My Lords, it has been a long and valuable debate in which important points have been made. I am impressed by the compassion and humanity that has been expressed throughout and the recognition that this is a difficult issue. It is attendant on many other difficult and related issues and the answers are not necessarily easy, simplistic or straightforward.

I was very much taken by the comments of my noble friend Lord Judd and his appeal to my sense of compassion. The noble Earl, Lord Listowel, made reference to my social worker past and it was nice of him to think of my first choice of career. I am grateful to him for that. However, I was more impressed by his reflection that, in reality, the Government have taken many important steps to improve the quality and range of services provided to those who seek refuge in our country, who have fled here and seek asylum status. We have invested very heavily in that; we have also invested in ensuring that our processes are robust, that they comply with human rights considerations and that they take account of the world as we see it. This debate and the amendments reflect on those issues and concerns. I have a great deal of respect for those who will differ from the Government's position on this. It is a very difficult and, ultimately, a quite tough and hard line position. We do not apologise for it—we think it is right.

Amendment No. 24 would delete Clause 8 in its entirety and mean that support could not be withdrawn from a failed asylum-seeking family unless they failed to comply with the removal direction. The amendment would mean that an individual evaluation must be carried out before support could be withdrawn or withheld. It lists a number of particular aspects to which special attention must be paid. It would apply to all classes of person listed in Schedule 3 to the Nationality, Immigration and Asylum Act 2002, and not just the cases affected by Clause 8.

As I have said, there has been a lot of discussion and debate about Clause 8. The Government recognise that this is a highly sensitive issue, and we have had to make very difficult choices and tough decisions. Where children are involved, none of those decisions can be taken lightly, and we as a Government do not take them lightly.

However, we face a situation in which families whose asylum claims have been rejected and who have exhausted their rights of appeal do not leave the country voluntarily and frustrate our attempts to enforce removal by not complying with redocumentation. At present, those families are entitled to be supported at the taxpayers' expense. This cannot in the end be right. It undermines the asylum system—it boils down to families being able to disregard our laws completely when they have had a fair decision that an independent appeals process has upheld.

I fully understand the concerns that families may have about returning, but they will not be returning to face persecution. The fair hearing of their asylum claim will ensure exactly that. If we are to maintain a credible immigration and asylum system, there has to come a point where we say enough is enough.

We are not seeking to make families destitute, but we are making it clear that families do not have the option of remaining here indefinitely. It is very important that those opposed to the clause—and I understand the reasons for that opposition—do not inadvertently lead families to think that that is an option. It would be wrong of them to do so.

There is concern that local authorities will be forced to act in a way which is inconsistent with other legislative provisions, such as those contained in the Children Act 1989. First, it needs to be understood that our whole aim is to avoid this becoming an issue. With the family co-operating and leaving voluntarily, that issue simply will not arise.

We cannot have a situation in which central government decide that support for the family as a whole should cease, only for that support to be provided by the local authority. That, in our view, would be no incentive for people to co-operate.

Schedule 3 does not exclude the possibility of support being provided to the child under Section 17, nor does it prevent the use of Section 20 of the Children Act. We know that in both cases this requires the consent of the parents. We do not underestimate the challenges that this may pose in practice. It is why we want to continue well informed discussions with the Local Government Association on the way in which responsibilities towards children might be exercised.

However, we must all face up to the reality of the family's position in the country. This is not about making social workers into immigration officials, but we must all recognise that the family is in the country illegally and will not be given permission to stay. We simply do not believe it is in the child's best interests to remain for long periods in a country where they have no prospect of being allowed to stay permanently.

Amendment No. 22 is concerned with the way the clause will work in practice. I think that the amendment is unnecessary. We have made it clear that before a decision is made to withdraw support, the family will be offered an interview. This is where the family can explain why they have not yet left the country and what steps they are taking to do so. If there are particular reasons why they have not taken steps to leave, then they have the opportunity to inform and advise us of those. So the case will be assessed on its individual merits—precisely what the amendment argues for.

It is worth clarifying this: where people are co-operating, support will not be withdrawn. We are after co-operation—that is what we are trying to achieve. If they have a reasonable excuse for not having taken reasonable steps to leave, then, equally, support will not be withdrawn. The interview will not be an opportunity for people to reopen their asylum claim, and it is important that we are clear about that.

Schedule 3 already makes it clear that support is not to be withdrawn where to do so would breach a person's convention rights. The process we have outlined makes it clear that cases will be decided on their individual merits. Part of that assessment has to include ECHR considerations. We will of course assess whether needs arising, because the person is, for example, a single parent with a minor child, give grounds for believing that withdrawing support would breach our ECHR obligations.

I would have concerns about including an amendment which refers to an individual evaluation without seeking to define what that evaluation might be. That gives rise to greater scope for doubt and increases the likelihood of legal challenge. Given our ECHR obligations, I believe it to be unnecessary.

Because the noble Lord, Lord Avebury, raised this, I know that the amendment has, in part, been prompted by concern at the position of accession state nationals who cease to be eligible for support from 1 May unless a failure to provide support would breach ECHR considerations. I do not think that it is helpful to conflate the very specific situation that applies to those persons with what will happen in the case of those affected by Clause 8. The National Asylum Support Service has said that it will listen to any representations from people affected and will not seek to terminate support until those have been considered. This has been, and is, a very difficult area. I fully understand and respect the important and powerful views that have been expressed in regard to it.

A number of questions were raised in the debate and I will work through some of them. The noble Lord, Lord Avebury, spoke about how local authorities can exercise their duties. They can use Section 17, as I said earlier, but only to support the child, and not the family as a whole. They can, as I also said earlier, use Section 20 of the Children Act. So options might include the child being looked after by a family friend or relative, or the use of foster arrangements. We want to continue the dialogue with the Local Government Association on the workability issues arising from this legislation, and we will consider how best guidance could be given to local authorities.

The noble Lord, Lord Avebury, raised issues relating to European accession states letters. As I said, it would be wrong to conflate the issues; however, the noble Lord raised precise questions about the Treasury Solicitor's letter. That letter was agreed with claimants in the judicial review cases, which were adjourned generally. Among other things, it was proposed that individual assessments would be carried out. That was why it was included at an important point in the correspondence.

As one would expect, the noble Lord, Lord Lester, raised concerns about breaches of Article 3. The saving provision in Article 3 states that support will not be withdrawn when to do so would be in breach of the Human Rights Act 1998, which effectively works within Article 3. The fact that a person is a failed asylum seeker does not have a bearing on a breach of Article 3. I said earlier that we need to address the issue with compassion.

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Lord Lester of Herne Hill (Liberal Democrat)

My Lords, the Minister has just given an important reply, which I am sure will be considered. I wish to make it clear beyond doubt that the Government are saying that there is an absolute duty under the European convention, even to a failed asylum seeker who has not been co-operating and who has no reasonable excuse for being here. It is an absolute duty as part of the state's positive duty not to withdraw support if to do so would expose that person or his family to inhuman or degrading treatment. In other words, that is expressly said in Clause 8 or the schedule. Is that the Government's position?

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Lord Elton (Conservative)

My Lords, while the Minister is thinking about that, could he also help me with a small point? Earlier on he said—and invited us to weigh this in our decision—that NASS said that it would not withhold support under certain circumstances. However, as I read it, paragraph 1 is triggered by circumstances, not by a decision of NASS. Does that mean that the Secretary of State will be advised not to issue a certificate under new paragraph 7A (1)(b) of Clause 8? Otherwise, how does NASS have the right to continue support when the person is disqualified?

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Lord Bassam of Brighton (Government Whip (technically a Lord in Waiting, HM Household); Labour)

My Lords, I am grateful to the noble Lord, Lord Lester, for his question, to which the Box is giving careful consideration. I can confirm that the situation described by the noble Lord to your Lordships' House is government policy.

Other points were made by the noble Earl, Lord Listowel, with which I have dealt. However, it is important that parents of failed asylum seekers accept their responsibilities. They do not have a right to remain here. At that late stage, their applications have failed and they should properly consider their positions. We do not want to give false hope or encouragement to families. They need to act responsibly. It is in parents' interests and those of their children that they do so. We are trying to encourage voluntary departure. The noble Earl asked how many families would be affected. I cannot give a precise estimate, because it depends very much on the individual actions of those involved. However, I cannot believe that we are anticipating large numbers. Obviously, a degree of co-operation will minimise the numbers involved.

If there is co-operation, the situation is much relieved and it is much easier for us to assist. If families do co-operate, they will receive support. If they do not co-operate, documents cannot be obtained, which makes it extremely hard for us to act effectively and much easier for them to stay here in breach of what has been a thorough process of determining their eligibility for asylum status.

The noble Lord, Lord Elton, asked about the triggering of paragraph 1. He is right to say that a person is rendered—I am finding this brief hard to read—ineligible for support. Prior to that happening, the Secretary of State has to make his certification. In that respect, the new class operates slightly differently to existing classes. I hope that that clarifies the point. If it does not, I shall reflect further on the noble Lord's question and respond to him by letter.

We believe that we have adopted the right approach. There are adequate safeguards in place and the mix of encouragement and inducement should work to everyone's benefit. We accept that there are hard cases. This is a hard case to resolve. However, we think that we have drawn the position as fairly as we possibly can and that it is in nobody's interests for us to provide inducements to carry on in breach of the quite proper findings of the appeal process. For that reason we have designed the clause in this way. I do not believe that the amendments would best serve those affected and I hope that the noble Lords who tabled them will feel persuaded by what I have said and withdraw their amendments.

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Lord Avebury (Shadow Minister, Foreign & Commonwealth Affairs; Liberal Democrat)

My Lords, it was useful to have the exchange between my noble friend and the Minister towards the end of the Minister's speech because my noble friend elicited the fact that the Government would never take any steps with regard to this clause that would result in a violation of Article 3 of the ECHR. That leads me to make one point in conclusion. I cannot understand why the Minister resists an amendment that would enable the Government to form a judgment on whether, in the particular circumstances of the individual case, there was a danger that Article 3 would be violated. First, the Minister said that there would be no assessment. Then, in response to the point that I made about the Treasury Solicitor's letter, he said that in those particular circumstances there would be an individual assessment. That is all that we are calling for in Amendment No. 22. We are trying to facilitate the Government in the performance of their duties in ensuring that no breach of Article 3 occurs. This is such an important matter, that I must test the opinion of the House.

On Question, Whether the said amendment (No. 22) shall be agreed to?

Their Lordships divided: Contents, 55; Not-Contents, 110.

Division number 1

See full list of votes (From The Public Whip)

Resolved in the negative, and amendment disagreed to accordingly.

6:37 pm
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Baroness Park of Monmouth (Conservative)

moved Amendment No. 23:

Page 9, line 19, at end insert—

"( ) In Schedule 3 to the Nationality, Immigration and Asylum Act 2002 (c. 41) (withholding and withdrawal of support) after paragraph 3 insert— "3A Support shall not be withdrawn or withheld from a person who is a citizen of Zimbabwe under the provisions of this Schedule.""

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Baroness Park of Monmouth (Conservative)

My Lords, I am a tirer in these matters—that is, in Divisions—and I hope that I may crave the indulgence of the House.

In March 2002, the Secretary of State said that no Zimbabwean asylum seeker would be forcibly returned. He also instituted a visa regime that severely limited access to the country for would-be asylum seekers from Zimbabwe. In May last year, those whose appeals had failed received a letter saying that NASS support, accommodation and subsistence was withdrawn and that they should apply to the voluntary repatriation scheme. The letter said that the Home Office deemed Zimbabwe to be a safe country. That view was entirely arbitrary and took no account of the Foreign Office country reports, nor of the assessment by the UNHCR that Zimbabwe was not a safe country. Representations were made and the letter was withdrawn.

Since December 2003, however, failed asylum seekers, many of whom would have failed through inadequate legal support and flawed and hurried assessments, have been told that they must move out of their accommodation, their benefit would be stopped and they should apply to the VARP—the Voluntary Assisted Returns Programme. They were told categorically that they must leave the country. That happened at the very moment when Zimbabwe was expelled from the Commonwealth and denounced as a regime in which the rule of law had collapsed and human rights had ceased to exist.

The Home Office Committee, considering the problem of failed asylum seekers who were unable to return to their country because of the human rights situation, recommended that in the case of such people Her Majesty's Government should make appropriate use of the power to grant a temporary right to remain in the UK. It is in the power of the Secretary of State to grant the failed Zimbabwe asylum seekers support, either by granting them humanitarian protection or discretional relief—but he does not do so. That condemns them to destitution since they are not allowed to work. There is surely a parallel between their situation and that of asylum seekers from northern Iraq. But in that case, one of the NASS criteria was that hard case support would be granted to any asylum seeker from northern Iraq who was unable to return while no safe return route existed.

I urge the Minister to give serious consideration to this amendment on the grounds that the Home Office is breaching the human rights of these people by trying to force them to return, as has already been said very eloquently in the debate on the previous clause, and in effect giving them no choice but destitution here. It is particularly ironic that these are people who want to work rather than to be dependent on the state and who are in many cases professionals—teachers, computer operators, nurses, mechanical engineers—whom we need and whose skills we ought to be preserving against their eventual return to Zimbabwe. It is also entirely consonant with HMG's policies both on human rights and as a way of helping Zimbabwe to help them to continue to keep their skills. It is one of the few ways open to us to demonstrate any support for that country.

Surely it is indefensible to drive them into destitution because they are not allowed to work. If the Secretary of State would treat them as a special case, as my amendment proposes, and use his power to apply the classification of humanitarian protection or discretional relief, the problem could be solved. Or it could be solved by a version of the special scheme that applies to all refugees from Kosovo who were admitted on the understanding that they signed up to say that they would return to their country when it was safe to do so.

As recently as March this year, the Home Office conceded that,

"although it would be safe for failed asylum seekers to return to Zimbabwe our view at present is that in the widest context of the government's position on Zimbabwe it would be inappropriate forcibly to return them at this time".

I am sure that destitution was not intended to be the alternative to forcible return. We are speaking about a maximum of only about 6,000 people, and thanks only too often to flawed and ill informed interviews and tribunal procedures, many of those were refused probably on the basis of poor decision making and should perhaps not have been refused.

The commitment, if the Secretary of State would accept it, is strictly limited. The visa regime has effectively taken applications down to a trickle. So we are not looking at opening the door to an immense influx of people. I suggested to the Home Office last year that it might consider the special evacuation scheme from Kosovo, but I was told that it was not applicable. I suggest, however, that something must be done to remedy the intolerable treatment that we have meted out to valuable and decent human beings such as the air force sergeant who, observing that ZANU/PF had emptied out and destroyed the contents of the ballot boxes in the March 2002 election, was honest enough to report it to the police. He was promptly arrested and tortured and escaped from Zimbabwe only with very great difficulty.

I shall read to the House one example of another asylum seeker. NASS has stopped this woman's income support. She writes:

"They stopped the vouchers around the 14th of October 2002 up to now I have nothing. It was only at one occasion when my case worker brought me some tinned food. She had been given the money to buy the food by the British Red Cross. Last week but one a close friend of mine John Magasu"—

another asylum seeker—

"brought me some food and gave me £3 from his own pocket. I went to our drop in centre to tell them that I no longer have enough food but they said at the moment I can't access any support from them since my case has been refused and I should be expected to leave the accommodation".

That is one example. There are very many others.

So I very strongly hope that, particularly in view of the strong and excellent arguments that have been advanced on human rights grounds by the noble Lord, Lord Avebury, and others, that the Government will consider this very small but practical amendment. We are destroying decent and useful citizens who have a natural expectation of help from this country and who have no choice between a recognised danger and destitution. I beg to move.

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Lord Elton (Conservative)

My Lords, I do not detect much prospect of this amendment being accepted by Her Majesty's Government. I got to my feet only to ask whether, in lieu of accepting it, they would not want to consider an undertaking to use the power in paragraph 2(2) of Schedule 3 to the 2002 Act, which states:

"Regulations under sub-paragraph (1)(d) may confer a discretion on the Secretary of State".

It seems to me that the citizens of Zimbabwe would qualify admirably for the use of such a discretion.

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Lord Avebury (Shadow Minister, Foreign & Commonwealth Affairs; Liberal Democrat)

My Lords, I want to say only one word about this amendment. I did take the trouble to investigate how many people had availed themselves of the assistance of the IOM to return voluntarily to Zimbabwe during 2003. I think that the noble Baroness, Lady Park, knows what the results were, because I believe that I gave her the figures. Of the several thousand people who failed to get asylum in 2001–03, and who therefore remain in the United Kingdom working illegally or living on the charity of friends and neighbours, only 47 have actually returned at the expense of the IOM. I asked whether the IOM had any knowledge of those who had gone back, bearing in mind that, as the noble Baroness says, we do not believe that all those failed asylum seekers had been properly refused considering the dire circumstances that we face in Zimbabwe today.

The IOM said that it could give information only about those who had approached it for assistance in rehabilitating themselves in Zimbabwe by entering into occupations or professions. It said that some had done so, but that in the cases where people had asked it for assistance, it was able to assure us that no victimisation had taken place as a result of their claims for asylum in the United Kingdom. But of the others, the ones who had not approached it, it could not say anything at all. So for all we knew, those people could have become the victims of ZANUPF and been imprisoned on their return.

It would be useful if the Government, having created this situation, would make inquiries as to what does happen to those who go back. On the one hand, if they can prove that everyone re-entered their professions or occupations or were re-employed by the Zimbabwe Government in whatever capacity they had worked prior to their departure, then of course that would encourage people to accept voluntary departure. But, on the other hand, if the Government undertake the necessary research and find, as we fear, that some of those who "disappeared" on their return—and I use that word not in the sort of Argentine sense of having been taken into custody and then liquidated, but only in the sense that the IOM had no knowledge of what happened to them—then it might have been a different kettle of fish and we could have been able to persuade more people who are at present very reluctant to go back to do so. However, I do not believe that the research would have shown such a favourable situation. In the absence of the information, I think that the noble Baroness has a very good point.

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Baroness Anelay of St Johns (Shadow Minister, Home, Constitutional & Legal Affairs; Conservative)

My Lords, I am very grateful to my noble friend Lady Park for raising this particular issue. I know that it was one that was of concern to my honourable and right honourable friends in another place. They had a very short debate in Committee there.

My noble friend was right to start by talking about the problem of defining what is a safe country and the contradiction there can be between government departments about a definition of "safe country", and also perhaps a contradiction between a government definition of "safe country" and that commonly accepted by others outside government. I am reminded very much of our debates during the passage of the 2002 asylum Act when I moved an amendment at both Committee and Report stages requesting that there should be an independent documentation centre to inject into the decision-making system about what is a safe country an element of independence outwith the political party system.

During the passage of that Bill, I was persuaded by the Government only at the very last minute to drop that amendment on the basis of assurances that another equally good system should be put in place. I fell for it that time; I will not do so again. I certainly have not been over-impressed by some of the decisions made subsequently about what may be a safe country. However, I appreciate that it is always a very delicate and difficult decision to make.

My noble friend was also right to point out that there have been cases where citizens of countries other than Zimbabwe—she mentioned Kosovo—have been given "special treatment". That is the only way one can refer to it. They have been given the opportunity to remain here until it really is safe to return to their place of origin. My noble friend Lord Elton made a very interesting contribution in pointing out where government discretion could come into play. However, I suppose that Zimbabweans would say that they wanted not discretion on a case-by-case basis but certainty about their situation.

My noble friend is right to raise this issue. It is a very difficult problem. As she said, these people from Zimbabwe are coming to this country having suffered sometimes almost unimaginable persecution, as have so many from other countries who seek asylum in this country. These people come here with a willingness and an ability to work. The last thing they want to be is destitute. They do not wish to be a drain on the taxpayer or be destitute. However, they find themselves accused of being one or the other. I hope that the Minister is able to respond positively to the arguments put by my noble friend and is able to offer some reassurance that the Government will consider them when considering the treatment of people who come from Zimbabwe.

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Lord Hylton (Crossbench)

My Lords, the whole House will be very well aware from discussions during numerous Questions and debates of the barbaric and quite unacceptable situation that prevails within Zimbabwe. Therefore, when the noble Lord replies for the Government, will he say whether consideration will be given to allowing those people from Zimbabwe who are here and who cannot safely return, to work here given the labour shortages of various kinds from which we now suffer? I should have thought that that would solve a great number of problems. It would be a fitting move for people from a country that was originally a Crown colony, then a member of the Commonwealth and is now, for reasons that we all know, an expelled member of the Commonwealth.

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Lord Bassam of Brighton (Government Whip (technically a Lord in Waiting, HM Household); Labour)

My Lords, I am grateful to the noble Baroness, Lady Park of Monmouth, for tabling her amendment which has enabled us to have a short debate on the issue and to reflect on the position in Zimbabwe, to which the noble Lord, Lord Hylton, accurately referred. As we know from discussion on many Questions at Question Time, there is great concern in your Lordships' House about the Zimbabwean regime and the works of its government.

This amendment would mean that support under Schedule 3 could not be withdrawn from citizens of Zimbabwe. It would apply to all the classes of ineligible persons listed in the schedule and not just those affected by Clause 8.

In respect of Zimbabwe, the Government are not currently enforcing the return of failed asylum seekers other than for people with serious criminal convictions and those whose presence is not otherwise conducive to the public good. I am sure that the noble Baroness would accept that those exceptions are right.

The suspension of removals of failed asylum seekers to Zimbabwe announced in January 2002 was in response to concerns about the serious deterioration in the situation in Zimbabwe in the build-up to the presidential election held in March that year. We did not at that time regard it as unsafe to return failed asylum seekers to Zimbabwe, but in view of the rapidly changing conditions we considered that it would be appropriate not to enforce returns.

The Government's position is, as it has been since January 2002, that each asylum and human rights claim made by a Zimbabwean national will be considered on its individual merits in accordance with our obligations under the 1951 UN Refugee Convention and the European Convention on Human Rights. Each application is considered against the background of the latest available country information, including that obtained from and through the Foreign and Commonwealth Office.

We do, of course, recognise that conditions in Zimbabwe are such that there are individuals who are able to demonstrate a need for international protection. Where they meet the definition of a refugee in the 1951 convention, asylum is granted. There may also be individuals whose circumstances make them particularly vulnerable—the noble Baroness described some of those circumstances—and who would engage our obligations under the ECHR. Where this is the case, these individuals will be granted humanitarian protection or discretionary leave.

If an application is refused, there will be a right of appeal to the independent appellate authorities against that decision. Should a claim be refused and any appeal be unsuccessful, that means that, for that individual, return to Zimbabwe would be safe. That is why we consider it reasonable to expect an individual in that position to leave voluntarily instead of being supported indefinitely at the taxpayer's expense.

I draw noble Lords' attention in particular to the Voluntary Assisted Returns and Reintegration Programme operated by the International Organisation for Migration, to which the noble Lord, Lord Avebury, referred. It is open to all failed asylum-seeking families to apply to the IOM to take part in this programme and we would expect families to take up this opportunity to make a dignified return home. Returnees are also offered reintegration assistance. An application to the IOM would clearly be a practical way for a family to demonstrate that they were seeking to leave voluntarily. Zimbabwean nationals are in fact leaving voluntarily under the programme run by the International Organisation for Migration, as I think has been acknowledged.

We already promote the assisted returns programme through a variety of means and discuss this with non-governmental organisations such as the Refugee Council as well as the IOM. Information is available at reporting centres, for example, and in letters sent at various stages of the asylum process.

In summary, our view remains that, although it would be safe for failed asylum seekers to return voluntarily to Zimbabwe, in the wider context of the Government's position on Zimbabwe, it would be inappropriate forcibly to return them at this time.

Some issues were raised during the debate. The noble Lord, Lord Elton, raised the issue of discretion and the use of the regulation-making power in Schedule 3. We do not see the need for any measures of that kind. People can leave voluntarily. Those who demonstrate that they have a well established fear of persecution will, of course, be granted asylum. Decisions on asylum claims will have been made by what I believe is universally recognised as being a genuinely independent process.

The noble Lord, Lord Hylton, asked about the ability to work on the part of those who remain here who are not granted asylum status. We do not allow failed asylum seekers to work. I believe that we are right to do so. As I said, they can, after all, return voluntarily. They are assisted in that process, as I described. Obviously, that rule is there for a very good purpose. We do not think that it would be right to alter it specifically for Zimbabwean nationals.

I fully understand the arguments that were put forward very sympathetically by the noble Baroness, Lady Park, but I do not think that we can agree to what would in effect be an exemption specifically for Zimbabwean nationals.

The noble Baroness, Lady Anelay, raised concerns about the quality of information. I well remember the debates to which she referred. Partly in response to that, we have redoubled our efforts to improve the quality of country information, and to ensure that it is objective. We recently established the independent Advisory Panel on Country Information to make recommendations on the quality of such information produced by the Home Office and to ensure that it is accurate, balanced and impartial. The panel set up is chaired by the well respected Professor Stephen Castles of Oxford University.

We announced on 30 April that, following feedback from the advisory panel, the Home Office is to take a number of steps to raise the standard of country information, including providing revised instructions for staff on how to compile the reports. Those steps reflect comments received during the consultation exercise. There will be amendments to reports where appropriate, and we will strengthen and formalise the quality control procedures, including a revised management structure for the country information and policy unit. I am advised that our steps to improve the quality of country information are proving very fruitful.

I certainly understand some of the force of the noble Baroness's argument, but I hope that, having heard what I have said, she will feel able to withdraw her amendment.

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Baroness Park of Monmouth (Conservative)

My Lords, I thank the Minister for that very detailed and positive reply. I also thank all noble Lords who supported me, particularly the noble Baroness, Lady Anelay of St Johns. However, I want to make two very quick points. First, the country reports from the FCO have consistently said that the country is not safe, so it is curious that the Government apparently rely on them to make the decision that it is safe.

Secondly, I find it very difficult to understand how it can be voluntary for someone to choose to go to a country that is too dangerous for them, or to stay and starve. That does not strike me as a normal definition of "voluntary". Although I fully understand the Government's many difficulties and their wish not to create precedents, I therefore think that Zimbabwe is a special case. After all, we have Secretaries of State to make special cases sometimes. When he was Secretary of State for Education, the Foreign Secretary said that he desperately wanted to do something about black boys in inner-city schools who were deserting to the gangs. Black teachers from Zimbabwe, educated in our system, accustomed to discipline and longing to work, would have been a wonderful answer.

All that said, I thank noble Lords for the patience with which they have listened. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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Lord McNally (Shadow Minister (Broadcasting), Culture, Media & Sport; Liberal Democrat)

moved Amendment No. 24:

Leave out Clause 8.

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Lord McNally (Shadow Minister (Broadcasting), Culture, Media & Sport; Liberal Democrat)

My Lords, Amendment No. 24 was grouped with Amendment No. 22, although it was in fact the counterpoint to it. As the Minister will recall, Amendment No. 22 was an attempt to be constructive and helpful about Clause 8, and we saw the response that we got to that. Amendment No. 24 is more draconian in that it seeks to delete Clause 8. The only person who spoke to the equivalent amendment in the previous debate was the noble Earl, Lord Listowel.

We had hoped that the House would recognise that Clause 8 imposed sanctions on children to try to enforce asylum policy. We still believe that. We had hoped that the Conservatives would stick with Michael Howard's original condemnation of the proposal. I am sure that people at the other end of the Corridor will read with great interest the ringing endorsement by the noble Baroness, Lady Anelay, of their new and courageous abstention. However, I do not need the noble Lord, Lord Graham, to help me to add up the numbers.

At this stage, but with no promises for Third Reading, when—who knows?—the Conservatives might even have had third thoughts on the matter, I shall withdraw the amendment.

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Lord Ampthill (Crossbench)

My Lords, if I may be so bold, as the noble Lord has spoken for a moment or two on the amendment, I should allow the Minister to respond to it, if he cares to do so.

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Lord Bassam of Brighton (Government Whip (technically a Lord in Waiting, HM Household); Labour)

My Lords, most of the points were covered in the earlier debate, and I thank the noble Lord for the graciousness with which he stated his intention to withdraw the amendment.

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Lord McNally (Shadow Minister (Broadcasting), Culture, Media & Sport; Liberal Democrat)

My Lords, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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Lord Phillips of Sudbury (Liberal Democrat)

moved Amendment No. 25:

After Clause 8, insert the following new clause—

"LEGAL AID FOR ASYLUM INTERVIEWS The Lord Chancellor shall make a direction under section 6(8) of the Access to Justice Act 1999 (c. 22) (services which may be funded) to require the funding of attendances by solicitors (and other non-solicitor suppliers accredited for the purpose by the legal services commission) and independent interpreters at interviews conducted on behalf of the Secretary of State with a view to his reaching a decision on a claim for asylum (as defined by section 167(1) of the Immigration and Asylum Act 1999 (c. 33) (interpretation)) in the circumstances where the supplier has certified that he has a reasonable belief that the asylum applicant to be interviewed— (a) is a torture or rape victim; (b) has had inflicted on him serious physical harm; or (c) has a reasonable fear of being tortured, raped or so harmed if returned to his country of origin."

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Lord Phillips of Sudbury (Liberal Democrat)

My Lords, although the Marshalled List does not say so, Amendment No. 25 should appear after line 25 on page 10 of the Bill. It would insert a new clause after Clause 8.

The history behind the amendment is simple. On 31 March this year, the Community Legal Services (Scope) Regulations came before the House. Their effect was to remove legal aid for initial asylum interviews, bar the two exceptional categories of minors and persons with mental incapacity. For all other cases, the situation that prevailed up to 31 March was withdrawn; legal aid was no longer available.

On 27 April in this House, I moved an amendment—it can be found at col. 750 of Hansard—that sought to undo the Community Legal Services (Scope) Regulations altogether and simply restore the state of affairs vis-à-vis legal aid that existed prior to 31 March. That was not put to a vote. In the interim, in an endeavour to reach a compromise that will appeal to both the Government and the House, I tabled—after a great deal of consultation with ILPA, the refugee legal service and others—Amendment No. 25. It would extend the exceptional categories in which legal aid was available for the initial asylum interview to three other groups; namely, torture and rape victims, applicants who have had inflicted on them "serious physical harm", and those who have,

"a reasonable fear of being tortured, raped or so harmed if returned to",

their country of origin.

There is no dispute between those who support the amendment and the Government on the benefit of lawyers in the immigration and asylum process. The noble and learned Lord, Lord Falconer, has said:

"I am wholly committed to keeping good lawyers within the legal aid scheme . . . We recognise that these lawyers provide value for money to the Government and the taxpayer . . . They deal with difficult cases, often in difficult conditions".—[Hansard, 4/5/04; col. 998.]

That very precisely sums up the role of the lawyer in an initial asylum interview.

I also call in aid the noble Baroness, Lady Scotland, who said when we debated the matter:

"We recognise that there are important exceptions where it is right that an applicant has his or her representative at the interview".

She went on at some length to say that the Government, far from wanting to see lawyers removed from the asylum interview process, sought to improve the standard of legal advice and assistance at those interviews. She called it "targeting excellence", and said that my amendment was,

"undesirable as the regulations have removed attendance in unnecessary cases and will help ensure quality representation in the exceptional cases".—[Hansard, 27/4/04; cols. 755–56.]

Therefore, I want to turn to the issue of exceptional cases. I have sought to demonstrate that the Government maintain not that lawyers are unnecessary but that they are needed only in exceptional cases.

I corresponded with the Minister in the other place, David Lammy. His view on exceptional cases was contained in a letter that he kindly wrote to me on 23 April from which I quote:

"In relation to further categories of exceptions"—

that is, exceptions to the "no legal aid" rule—

"such as rape or torture victims, at present, neither the DCA nor the Home Office are persuaded that victims of rape or torture (however defined) should be regarded as being in a category of vulnerable people".

That is a statement that many find extremely difficult to understand and impossible to agree with. The noble Baroness, Lady Scotland, when summarising the position of the Government on 27 April, said:

"The noble Lord, Lord Phillips, raised the issue of rape and torture victims not being included in the exceptions. That is not necessarily incompatible with presenting their cases. If they can show that they are suffering from a mental incapacity as a result of torture or rape, the interview will be permitted".—[Hansard, 27/4/04; col. 756.]

That is covered by legal aid. I believe that most noble Lords would consider that to allow legal aid only for initial asylum interviews of those who have been raped or tortured but who also suffer mental incapacity—but not for those who do not suffer mental incapacity—is bizarre and wholly untenable.

I add this point. The Government laid some stress—this was discussed in the debate on 27 April—on the new induction procedures that the Home Office is pursuing vis-à-vis asylum seekers. It maintains that the induction process has largely done away with the need for legal advice in these crucial early stages. In writing to me, David Lammy made that point.

The DVD that will provide asylum seekers with information on the induction process—it is an entirely automatic process—states: "You"—that is, the asylum seeker—

"can seek legal advice if you want it; but the Home Office do not believe that you need legal advice to tell Asylum Casework about your reasons for claiming asylum. They will not postpone interviews with you so you can get legal advice or be represented".

That is not a fair or an adequate explanation of the state of affairs confronted by asylum seekers when they arrive here. Later the same DVD states:

"It is vital you give the interviewing officer all the information you want to be considered and it is also your opportunity to provide evidence or papers to do with your application, for example—medical certificates".

Given that that is a single sentence flashed across a screen before an audience of asylum seekers, it might just about be understood by someone who speaks English fluently, is in command of their faculties, understands the culture in this country, has a little knowledge about the workings of the law and preferably some knowledge of the workings of the asylum system and is middle class and well educated.

I put it to the House that the process that now prevails makes the need for legal representation in this crucial initial interview absolutely essential for anyone in the three extra categories that are set out in Amendment No. 25. Today I shall not go into detail, as I did on 31 March and 27 April, on how crucial that first interview is. Everyone agrees that that is the rock upon which the whole process is built. I quote briefly from the noble Lord, Lord Filkin, when he summed up on 31 March:

"I also agree with the noble Lord, Lord Phillips, that the first interview with an immigration officer is a crucial factual ground. It is fundamentally important to have the facts of the applicant's case clearly set out and established as early as possible in the process".—[Hansard, 31/3/04; col. 1424.]

I try not to engage in unnecessary rhetoric, but I end with this point: as a very long-in-the-tooth lawyer, I find the state of affairs as presented by the Government to this House on two occasions, vis-à-vis torture and rape victims, simply unacceptable in a civilised society. It makes me wonder what the good Lord Atkin must be thinking in his grave in the sky: the judge who, in the middle of a war when we were fighting for our very survival, expressed sentiments vis-à-vis the oppressed, the weak, the unpowerful and the unpopular in Liversedge v Anderson. In denying legal aid to such cases, I believe that the Government are not living up to their own standards and their own aspirations.

The basest of arguments is that this proposal is a waste of money. It is said that this piece of cheese paring will save £12 million to £15 million. It will cost far more than that due to the increased number of appeals that will necessarily result from lawyers—my amendment talks of solicitors and other accredited legal personnel, not the outdoor clerks who the Government spoke of at previous stages of the Bill. We are ensuring quality. Without question, the Government will save not lose money by agreeing to this class of exceptional cases.

I have consulted adjudicators who tell me, unequivocally, that the length of appeals coming to them is by a very considerable margin added to by a bad initial interview and by a bad initial adjudication based on that initial interview. With those few words, I beg to move.

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Lord Avebury (Shadow Minister, Foreign & Commonwealth Affairs; Liberal Democrat)

My Lords, my noble friend referred to the remarks of the noble and learned Lord, Lord Falconer, who said that he is committed to keeping good lawyers within the system. But we know that that is already being contradicted by the experience of good lawyers, such as my noble friend's firm which has left the system because of the legal aid restrictions and because it is not possible to represent clients properly with the inadequate number of hours that are now allowed. One example of that is that no representations are permitted at the initial interview, other than for the categories mentioned by my noble friend, plus applicants going through fast-track initial decision processes.

My view is that my noble friend's amendment is too restrictive. I would rather see the categories to which assistance is being given at this stage of the process extended to all those who are considered to be vulnerable by the EU reception directive. That means minors and unaccompanied minors, disabled people, elderly people, pregnant women, single parents with minors and, as my noble friend suggested, persons who have been subjected to torture, rape or other forms of psychological, physical or sexual violence.

I agree wholeheartedly with my noble friend that this will cause unnecessary expense at later stages in the process. If such vulnerable people are not taken care of at the start of the process, inevitably there will be further complications when cases come to the adjudicator stage or, until it is abolished, to the tribunal.

Every noble Lord who has spoken in previous debates on the Bill has pointed to the fact that the initial stages in decision making are always key to getting asylum right. Skimping and trying to economise at the initial interview, especially with such vulnerable people, will be to the detriment of the asylum process as a whole. I hope that the Minister will view the amendment sympathetically. Although he is not prepared to restore legal aid to the whole of the interview process, as my noble friend requested in Committee, I hope that this rather modest suggestion will be more acceptable to the Government.

7:30 pm
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Lord Hylton (Crossbench)

My Lords, I am happy to support the amendment. We all know that rape has been used as a form of torture in countries as widely separated as Bosnia and Turkey—and in Darfur—to name just a few. We also know perfectly well that torture and rape victims are extremely reluctant to speak about their own experiences until such time as a relationship of trust has been established with the interviewer.

It is highly probable that, acknowledging that reluctance, those people may be willing to tell their proper legal representative what they have been through and he or she can put it on their behalf. I urge the Government to accept the amendment because it will improve the quality of first decisions. That was a point I tried to make throughout every stage of the previous Bill on the subject.

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Lord Bassam of Brighton (Government Whip (technically a Lord in Waiting, HM Household); Labour)

My Lords, I am grateful to the noble Lord, Lord Phillips, for bringing forward what he sees as a compromise. I do not quite see it that way. It is important that we understand what that compromise might look like and what it is part of in terms of "the process". I hope that in putting the Government's case for resisting the amendment, that will become clearer. However, I acknowledge one point made by the noble Lord, Lord Phillips, and supported by others; that initial stages in the process are important and have a bearing on the outcome for applicants.

As the noble Lord explained, Amendment No. 25 seeks to exclude victims of rape or torture in the exceptions listed in the accompanying direction to the Community Legal Service (Scope) Regulations 2004 so that funding for the attendance of a representative at a substantive IND asylum interview is available in these cases. Those regulations are made under Section 6(7) of the Access to Justice Act 1999. This enables the Secretary of State to make regulations to amend Schedule 2 to the Act in order to exclude specified services from the scope of the community legal service.

These regulations remove funding for the attendance of a representative at the majority of substantive IND asylum interviews from 1 April this year. In all but the exceptional cases detailed in the accompanying direction to the regulations, funding for the attendance of a representative at the substantive asylum interview is now not authorised.

I want to explain why we introduced the regulations. Previously, funding was available for a representative and, despite what the noble Lord said, usually it was for an agent or outdoor clerk working for a legally aided organisation representing an asylum seeker to attend the substantive interview with the Home Office. However, the Government believe that in the majority of cases this is unnecessary, of little or no benefit to the client and a waste of public funds. It does not merit the expenditure.

I know that the noble Lord rejects that explanation, but I want him to hear the explanation we are giving.

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Lord Phillips of Sudbury (Liberal Democrat)

My Lords, I am grateful to the noble Lord for giving way. I do not reject that as an explanation, but it is just no longer relevant. My amendment gets beyond that and confines the right to legal aid to the three exceptional cases to solicitors and other accredited legal personnel.

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Lord Bassam of Brighton (Government Whip (technically a Lord in Waiting, HM Household); Labour)

My Lords, I take the noble Lord's point. However, in reality, in most cases the role played by the person accompanying the asylum seeker was simply that of a note-taker as he was not meant to intervene during the interview. In addition, the interviews are non-adversarial. They are fact-finding and are there to elicit the basis of the application. They are part of that process. And there are remedies available to the client to deal with any discrepancies or disputes which may arise after the interview.

We recognised that there are important exceptions to this where it is right that an applicant has his or her representative at the interview—

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Lord Avebury (Shadow Minister, Foreign & Commonwealth Affairs; Liberal Democrat)

My Lords, I thank the Minister for allowing me to intervene. How would the victim of rape or torture know that he is suffering from a mental incapacity within the meaning of that phrase in English legislation if he has no advice on it?

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Lord Bassam of Brighton (Government Whip (technically a Lord in Waiting, HM Household); Labour)

My Lords, I am assuming that at some point in the process leading up to the interview he would have sought advice and had some support. I am sure that he would not be unsupported.

Unaccompanied minors; applicants going through the fast-track initial decision process; those suffering from a recognised and verifiable mental incapacity which makes it impractical to undergo an interview without support; applicants being interviewed at a police station or under the Police and Criminal Evidence Act 1984; or applicants alleged to pose a threat to national security should have an adviser at the interview if they so wish.

The Government are not persuaded that the victims of rape or torture or of other serious physical harm could be regarded as exceptions for this purpose for the following reasons. Under the Access to Justice Act 1999, the Legal Services Commission is under a statutory duty to provide access only to legal services. While some applicants may be entitled to specialist services in the United Kingdom, such as medical or social care, this does not fall within the remit of legal services.

All issues relating to an applicant's medical condition, vulnerability, ability to answer questions or otherwise can and should be dealt with by way of written representations with supporting medical evidence. We believe that this provides a much more effective legal service than attendance at interview.

It may be desirable for some clients to bring a companion to the interview for medical or emotional support, but again this does not fall within the remit of legal services. Furthermore, it is difficult to understand what added value a legal representative can add when an asylum applicant is giving an account of any persecution he claims to have suffered. The IND interview is an opportunity for an asylum applicant to tell his story in his own words and his own terms. It may be of interest to note that when the Medical Foundation interviews alleged victims of torture, it insists that a legal representative is not present.

The Government believe that this amendment is undesirable and that the preparation of a good statement and material evidence in support of an asylum claim is a more effective legal service than attendance by a legal representative at an interview.

The Government also believe that there is enough flexibility in the system, both at the initial stage of the process and at appeal, to allow a client's representative to address a client's vulnerability or illness, including his ability to answer questions at the Home Office interview. For those reasons, we continue to resist the amendment.

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Lord Phillips of Sudbury (Liberal Democrat)

My Lords, I thank the Minister for that explanation. It seems to me to be a justification that could be advanced only by someone who had absolutely no idea of what goes on at these initial interviews. He can have no idea of the degree of trauma, confusion and fear which can exist in the minds of asylum seekers newly arrived in this country. He can have no idea of the nature of these initial interviews, conducted as they often are by junior Home Office staff. He can have no idea of the complexity of translation; of the need to clarify the questions being asked; of the need to ensure that the relevant questions are being asked; or of the need to ensure that the record of the interview is fair. Without legal advice in these hugely important cases—rape, torture and physical harm—there is a high prospect of the initial process being faulty and inadequate, leading to a faulty and inadequate decision by the senior immigration officer, leading to an appeal.

The noble Lord, Lord Filkin, and the noble Baroness, Lady Scotland, made no attempt to answer the point I and other noble Lords have now made three times; that the so-called saving in depriving this narrow class of applicants of legal representations will be swept away and overborne by the increase in the number of appeals and in their length.

I am deeply disappointed by the Government's response. I do not believe that this House would be doing its due and proper duty as a revising Chamber if it did not attempt to amend this aspect of the Bill at the next stage. At this stage, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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Baroness Crawley (Baronesses in Waiting, HM Household; Labour)

My Lords, I beg to move that consideration on Report be now adjourned. In moving the Motion I suggest that the Report stage begin again not before 8.40 p.m.

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