Nationality, Immigration and Asylum Bill

– in the House of Lords at 5:06 pm on 10th July 2002.

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House again in Committee on Clause 15.

[Amendment No. 107B not moved.]

Photo of Earl Russell Earl Russell Liberal Democrat 5:27 pm, 10th July 2002

moved Amendment No. 108:

Page 9, line 25, leave out paragraph (d).

Photo of Earl Russell Earl Russell Liberal Democrat

During the course of the debate on the Bill I shall talk a good deal about rights. Rights include those of noble Lords to an occasional night's sleep. Therefore, with the leave of the Committee, I propose to group together six of the amendments I have tabled in the hope that one slightly longer speech may take rather less time than six short speeches, and in the hope that it may clarify the issues I want to debate.

The amendments I want to group together are Amendment No. 108, which gives the power to make regulations in which applications for support may not be considered; Amendment No. 110, which would delete a regulation-making power not to consider a person to be destitute; Clause 21 stand part, which involves the requirement to reside in an accommodation centre; Clause 23 stand part, which concerns the right of the Home Secretary to withdraw support; Amendment No. 122, which imposes the power of curfew, and Amendment No. 139A, which allows a restriction of support to those who are in accommodation specified. That does not succeed in covering all the amendments which deal either with the requirement to reside or the right to withhold support. Where possible, I shall try not to spend any time on the others, unless they raise separate issues.

My principal concern is that which was expressed most of the way through yesterday's proceedings by my noble friend Lord Greaves. He was concerned that the power to require people to reside in accommodation centres, combined with the power to withdraw support may have the effect of making the accommodation centres creep inch by inch into the area of detention centres.

There is a grey area between imprisonment and liberty. House arrest is a classic example. It was a clear issue of parliamentary proceedings in 1628. It is difficult to resolve the boundary between imprisonment and unlawful detention. My concern about the amendment is that the two powers taken together shall not be so used as to become unlawful detention. If they do, that would involve not only the misgivings of these Benches and of the Chamber, but it would engage the courts in powers of arbitrary imprisonment, the Human Rights Act and Strasbourg. That might lead the Government into rather deeper waters than those in which they wish to walk.

The Oakington judgment caused a good deal of thought in the Home Office. It created an unresolved dialogue. Clause 22, which we on these Benches welcome, provides a right to give support outside accommodation centres. That is good. But Clause 23 provides the right to withdraw such support. Clearly, a dialogue is still in progress about which of those powers the Government intend to implement. In fact, they have kept their options open.

I shall not be greedy. I shall not try to insist that the Minister accepts all these amendments. But he has a choice to make if he wants to put himself legally in the clear. He must retreat either on the power to make residing in the accommodation centre compulsory or on the power to withhold support. It will be his decision as to which of those he does.

I am not at all sure what he will do about this matter, but he is running himself into some fairly deep legal water. If he goes into a question which might get him into detention, he will have to engage with Article 5.1(f) of the European Convention on Human Rights. I think that he will probably be in the clear where he is dealing with people whose removal has already been decided on. Article 5.1(f) authorises,

"the lawful arrest or detention . . . of a person against whom action is being taken with a view to deportation or extradition".

I do not make an issue of that.

However, we have talked for most of today about the need to detain people who are making an application and still hoping for success. I doubt whether that is covered in the first words of Article 5.1(f), which authorise,

"the . . . detention of a person to prevent his effecting an unauthorised entry into the country".

Under Article 31 of the refugee convention, I hardly think that the people in the accommodation centre, making lawful applications for asylum, should be construed as having made unlawful entry into the country and be detained for that purpose. Therefore, I do not think that the Government can rely on that. If they cannot, they must engage with Article 5.2 of the European Convention on Human Rights. It states:

"Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him".

That applies to detention and will be dealt with in later stages of the Bill. But I do not think that the Government want that to apply to ordinary accommodation centres. They will have to modify their position somewhat if they are to avoid that.

The Government will also, on the withdrawal of support, have to take account of the argument of the Joint Committee on Human Rights—which I read with a great deal of interest—that the withdrawal of support constitutes inhuman or degrading treatment under Article 3 of the convention. I do not know whether there is any case law on that subject. But it is a high-powered committee which would not make such suggestions lightly.

If I were the Government, I would be reluctant to put that particular point to the issue in the courts. For one thing, it would not look particularly good while the debate was in progress. Nor would I be entirely confident of success. I would not be entirely certain of failure. But it is a matter on which one does not particularly want to become a lawyer's "interesting case".

I am also interested in Article 24 of the 1951 Convention relating to the Status of Refugees, which provides that refugees shall be accorded the same treatment as is accorded to nationals in matters of social security.

I know that the Government will say that that does not apply. They will rely on the judgment in 1996 of Lord Justice Simon Brown in ex parte B. He accepted the Treasury's contention that the word "refugee" applies only to those whose claims to asylum have already been accepted.

I believe that it could be argued that, in a judgment which was otherwise extremely critical of the Government, that remark by Lord Justice Simon Brown was obiter. It was a matter which had not been argued before him. It was not material to the resolution of the case and was not supported by any body of argument. It also contradicts the wording of the UNHCR handbook.

In matters of interpreting the UN Convention on refugees, the proper guide to the intention of the legislature is the UNHCR handbook. It is its convention. It also seems to be contrary to the plain words of Article 1, which state that a refugee is any person who is outside the territory of his country with a well-founded fear of persecution and therefore unable or unwilling to avail himself of its protection. There is nothing there whatever about the need to have had one's application accepted.

There is also the authority of the judgment in 1993 of the noble and learned Lord, Lord Nolan in the Khaboka case. He accepted the meaning of the UN convention put forward by UNHCR and regarded the point as "absolutely clear". The Government would be unwise to take it as impossible that any future judge will follow the line taken by the noble and learned Lord, Lord Nolan. It is perfectly possible that they might.

In this context, the power of curfew makes it look even more like a detention, and the power, which I have taken up in Amendment No. 139A, to refuse support to those who do not reside in the accommodation centre looks suspiciously like a penalty. This at least is near cousin to detention. I think that the Government—unless they have more confidence in the courts than the Home Secretary usually appears to show—would be unwise to let these matters be resolved in the courts. I beg to move.

Photo of Lord Avebury Lord Avebury Liberal Democrat

Amendment No. 122, which deals with the power of curfew, is grouped with this set of amendments. When the Minister replies, perhaps he can say a bit more about how the Government intend to apply the power for the Secretary of State to make regulations. Under those regulations he can impose conditions requiring,

"a person not to be absent from the [accommodation] centre during specified hours without the permission of the Secretary of State or the manager".

That sounds as though the Government intend to lock these centres up at a fixed hour in the evening. No one will thereafter be allowed to enter or depart. It is rather like the old days in an Oxford college when the gates were locked—if I remember rightly—at 10 o'clock. My noble friend Lord Russell says that he still bears the scars.

I used to have a room on staircase 14 in Balliol with a drainpipe running up to the window. My sleep was disturbed almost every night with people coming in after the fixed hour.

I do not suppose that there will be drainpipes outside the accommodation centres. But if the noble Lord proposes to impose that kind of restriction on people, then we should know about it at this stage and not wait until the regulations are published.

In any normal society in this country people go about their business in the evening. They go out to the cinema, to the pub and to visit friends. Obliging people in accommodation centres to return at a fixed hour every evening would place an unreasonable restriction on their freedom to do what every other person in this country can easily do without any restriction.

Furthermore, under the provision in the following subsection, if a person breaches that condition, he can immediately be deprived of his right to remain in the accommodation centre. As I understand it, he would be cast into outer darkness without any means of support. What do the Government think will happen in these cases? Let us suppose that the person who inadvertently comes in late one evening has a family. The offence is absolute; there is no qualification. The Bill does not say that he will be subject to the penalty if he has no reasonable grounds for failing to returning by the specified hour. That is why we need the Minister to spell this out in far more detail, so that we can judge whether to give these powers, knowing how they will be exercised.

Photo of Lord Kingsland Lord Kingsland Conservative

The mesmerising oratory of the noble Earl, Lord Russell, has almost expunged from my mind what I had intended to say. He is right, of course, to say that if the restrictions on the activities of someone in an accommodation centre are so severe that they amount in effect to detention, then those restrictions must meet all the legal criteria laid down, both by the convention and by our own courts, in permitting it.

In addition, I suggest that the Minister has to take into account bail criteria. It is not enough to say: "So long as I meet the detention criteria, I can introduce what restrictions I like". I suggest that the Minister must also apply the circumstances in which someone detained in an accommodation centre ought to have been granted bail and, therefore, freedom of movement. So there are two gateways through which these restrictions must pass in order to be valid in law.

I have a question of my own for the Minister. In circumstances where an asylum seeker breaches restrictions made on him in an accommodation centre before the final decision about his status is determined, would his so-called bad behaviour have any effect on the way in which the ultimate decision was reached?

Photo of Lord Filkin Lord Filkin Parliamentary Under-Secretary, Home Office, The Parliamentary Under-Secretary of State for the Home Department

I acknowledge with some appreciation the grouping that the noble Earl, Lord Russell, has undertaken. It allows for a potentially more efficient consideration of these issues. We need that, given the distance that we have to go in the proper scrutiny of the Bill.

My response at this stage will be the Government's view of these matters, but I do not want to be rapid or rash in my response to the points raised on these clauses by the noble Earl, Lord Russell. On this occasion, it may be useful if I take some time to reflect on them, and either respond or not on or before Report if it would seem wise to do so. I hope that both noble Lords will take this as an interim response pending further reflection.

I shall deal first with some of the specific points raised by the noble Earl, Lord Russell, and the noble Lord, Lord Kingsland, before painting the overall picture of the Government's view on these issues. On the points about Article 5 and the ECHR and preventing a person affecting an unauthorised entry, the meaning of this is subject to the decision of the House of Lords in the Oakington case, which we are still awaiting, as the noble Earl knows. In any event, there is no intention to detain at an accommodation centre. It is not our intention that the conditions set out in Clause 27 will amount to detention or to drift towards that, which was clearly the central thrust of the question.

With regard to withdrawal of support breaches under Article 3, the answer is: we believe not. Simple destitution alone would not in our view meet the minimum level of severity required under Article 3. The withdrawal of support could potentially breach Article 3, but whether it is breached will be a matter of fact in each case. We shall take decisions on withdrawing support on a case by case basis, with a clear awareness of the potential challenge and risk that might be implied by engaging Article 3. We consider that Article 24 of the UN convention on refugees applies only to recognised refugees.

The noble Lord, Lord Kingsland, raised the question of whether bail rights should be considered. We suggest that this is not necessary because this is not detention. Essentially, the noble Lord's challenge was that if it moved towards detention, then bail rights might do so. We shall seek to ensure that it is not detention.

Photo of Lord Kingsland Lord Kingsland Conservative 5:45 pm, 10th July 2002

My point, which I ought to have made more clearly than I did, was that, in looking at the limits to restrictions that can be placed on the freedom of movement of someone in an accommodation centre, the test should be, first, the detention test, providing a kind of floor below which the Secretary of State could not fall. Above that, there should also be the bail test; namely, even if an individual was in detention, given all the circumstances, would a court have granted that person bail? This provides a second gateway through which the Secretary of State has to pass before he can impose a restriction on an individual at an accommodation centre. That was the point that I wanted to make.

Photo of Lord Filkin Lord Filkin Parliamentary Under-Secretary, Home Office, The Parliamentary Under-Secretary of State for the Home Department

As usual, the noble Lord was not unclear. He was explicitly clear on his first point. What was not set out was my response. I am still going to leave that in store. I shall reflect on it and come back to him, if I might.

The noble Lord raised a point about breach of conditions on bad behaviour and whether that would engage the credibility of an asylum case. This is clearly extremely sensitive territory. It is obvious that it does not automatically do so. Perhaps I may give an example that was used in another place. If someone in an accommodation centre was frequently absent without the approval of the centre and without acceptable reasonable grounds, and if he was then found to be working illegally in a job which had been arranged before his arrival in the United Kingdom, such circumstances might be relevant to the credibility of the claim. Clearly, I am choosing my words carefully, but I seek to illustrate a circumstance in which it is possible that a breach of the understanding and expectations in an accommodation centre might engage the credibility of the asylum claim. I preface that with a clear statement that this is not by any means an automatic situation—not for one second—and one has to be extremely careful in these matters that there is a clear relationship between the two or more sets of events.

The noble Lord, Lord Avebury, asked whether coming in late would be a breach of a person's residence conditions. The aim, under the conditions in Clause 27, is that the Secretary of State should act reasonably and that reasonable conditions of residence should be set to try to ensure that a centre is a place where people can live as a community with some reasonable consideration for each other. At the same time, we want to ensure that the person has fulfilled his obligations to be present in an accommodation centre as part of his side of what is effectively an understanding of his receiving the support applied for on the grounds that he has stated that he is destitute and needs help from the state.

The Secretary of State is not obliged to withdraw support for breaches of conditions. Nor would it be right automatically to do so. Each decision to withdraw support would have to be taken individually. It would have to be proportionate and reasonable. In most circumstances, one would expect that it would be taken only after a process of proper warnings and communication. We are talking about human beings. One would seek to draw to the person's attention the fact that there was a breach, to hear any views about the breach, to affirm that the breach was serious if, in the light of that, it was felt to be so, and to point out potential consequences.

Photo of Earl Russell Earl Russell Liberal Democrat

Would the decisions to withdraw support be judicially reviewable?

Photo of Lord Filkin Lord Filkin Parliamentary Under-Secretary, Home Office, The Parliamentary Under-Secretary of State for the Home Department

They would certainly be appealable. Therefore, I expect that they would also be judicially reviewable if there were felt to be a failure of process in the appeal. We shall come to that when I speak more fully in a moment.

Photo of Lord Avebury Lord Avebury Liberal Democrat

I am sorry to pile one interruption upon another, but the Minister has not answered my question. At what time will those restrictions be imposed, bearing in mind that the four centres the Government intend to build are not immediately adjacent to a large town? If someone wants to go out for a drink in the evening or wishes to attend a cinema, he must be allowed reasonable time to do so and to return to the centre. If a restriction were imposed that everyone had to be in by midnight, they could not lead a normal social life and comply with that condition.

Photo of Lord Filkin Lord Filkin Parliamentary Under-Secretary, Home Office, The Parliamentary Under-Secretary of State for the Home Department

The detail of what one might call house rules on considerate behaviour towards other residents will need to be considered by the Government in regulations and by the centre management with regard to how those are developed. For example, speaking loosely, one could envisage that if there were young children it might be unreasonable to come in at two or three o'clock in the morning and start making a lot of noise, because people have a right to their sleep. On the other hand, people are not being detained in accommodation centres. They are also expected to be able to lead a normal life.

The best analogy I can give relates to the block of flats in which I live. I have a certain amount of freedom in what I can do, but I do not have freedom to play my music system after eleven o'clock at night. One seeks to have house rules that reflect other people's needs. In some senses, those are slightly different from the issue of fulfilling residence obligations in the accommodation centre. If a person is in an accommodation centre, the Government—the state—say, "We shall provide you with accommodation and support in what we hope will be a very decent place, but you are expected to give evidence that you are living there rather than living somewhere else without approval". In that area, there have to be some expectations and some warnings were a person repeatedly to breach the expectations of occupation in the centre.

Without getting myself into trouble, let me give an example. If someone wanted to go away for a night or two because there was a family funeral at the other end of the country, one could not imagine that that would not be allowed. But if someone repeatedly wanted to be away for two or three nights a week one would expect the centre manager to inquire why that person was going away for two or three nights, particularly if that were without permission, when they were expected to live in the accommodation centre to receive the support from the state for which they asked.

I leave it at that point. There are two issues: fulfilling the residence requirements and house behaviour. No doubt we can debate those issues further if appropriate.

I now place on the record the Government's general position and explain why we do not think that opposition Amendments Nos. 108, 110, 122 and 139A are appropriate. Equally, we think it important that Clauses 21 and 23 stand part of the Bill.

On Amendment No. 108, Clause 15 sets out a category of persons who can be supported within an accommodation centre: that is, asylum seekers and their dependants who are destitute, or likely to become destitute within a period to be prescribed. It also contains a power to make regulations to set out the particular procedure to be followed in providing such accommodation and gives examples of particular provisions which can be included in such regulations. Amendment No. 108 would prevent the Secretary of State being able to specify in regulations the circumstances in which an application may not be considered.

We need this ability to ensure the process works as smoothly and efficiently as possible. A particular example of the type of circumstance which is likely to be included is that an application may not be considered where the appropriate application form has not been completed. If we are to process applications efficiently it is necessary to make these requirements and ensure that those who are seeking support comply with our procedures for the benefit of all concerned. We believe that Amendment No. 108 would lead to potential delays and confusion in the application process.

On Amendment No. 110, Clause 17 contains a definition of destitution. Subsection (6) allows the Secretary of State to make regulations. Paragraph (a) makes clear that the regulations may include provision for a person not to be treated as destitute in specified circumstances. The amendment would prevent the Secretary of State specifying circumstances in regulations where an application for support in an accommodation centre may not be considered; that is, when a person is not to be treated as destitute.

We believe that there is nothing sinister in Clause 17(6)(a). The power reflects an existing provision in Schedule 8 to the Immigration and Asylum Act 1999. The asylum support regulations made under that Act specify the circumstances which are likely to be equally applicable for accommodation centres. They include, for example, a person who is eligible for interim support from a local authority under the Asylum Support (Interim Provisions) Regulations 1999 and a person who is eligible for social security benefits. Clearly, people eligible for support under other provisions should not be able to benefit from additional support. The asylum support regulations currently also excluded persons who have not made a claim for asylum. Again, we anticipate following a similar approach for accommodation centres. Naturally, we do not want to support non-asylum seekers under asylum support provisions. It is sensible to spell out these categories in secondary legislation so that the position is clear. Amendment No. 110 would prevent that.

Clause 21 is important because it sets out the relationship between provisions in Part 2 of the Bill and paragraph 21 of Schedule 2 to the 1971 Act, paragraph 2(5) of Schedule 3 to the 1971 Act and Section 4 of the 1999 Act.

A person subject to entry control may be examined by immigration officers to determine whether he is admitted to the UK and, if so, on what terms. Persons in that position are liable to detention but may be temporarily admitted as an alternative to being detained pending examination of their claim. Where they are granted temporary admission, they may be subject to residence and reporting requirements; similarly for people released from detention pending deportation.

Clause 21 makes clear that a residence requirement under paragraph 2(5) of Schedule 3 to the 1971 Act may include a requirement to reside at an accommodation centre in the same way as a person may currently be required to reside at a private address or NASS accommodation. Clause 21 also makes clear that where a person is required to leave the accommodation centre following, for example, a breach of conditions, he is treated as having broken the residence restriction imposed under the Immigration Act 1971. This means that he may be liable for detention under current detention policy in the same way as a person breaching a residence restriction imposed at the present time under the Immigration Act 1971. This is an important part of our approach to honouring our obligations and expecting compliance with our procedures as a result.

Clause 23 deals with the withdrawal of accommodation centre support about which we have spoken. We need some protection against abuse of our asylum support system. The clause sets out that support may be stopped where the Secretary of State suspects that a person or a dependant has committed an offence set out in Clause 30—for example, a person making false representations with a view to obtaining support for himself or any other person or a person making dishonest representations with a view to obtaining any benefit or other payment or advantage for himself or any other person. Support may also be stopped if a person or a dependant of his has failed to comply with any directions as to the time or manner of travel to an accommodation centre.

If support has been stopped under one of those provisions, it is right that we should be able to take account of that if a further application for support is made. We want to make sure that people are aware of the consequences of their actions. If they do not comply, they should not automatically expect to benefit in the same way as those who are fully compliant.

Clause 23(3) also allows the Secretary of State to take into account the fact that support has been withdrawn from a person following a breach of condition at an accommodation centre. Conditions of residence will be set out in regulations made under Clause 27 and will be subject to the affirmative resolution procedure. I hope that that will be helpful.

The provisions are entirely consistent with those in the Asylum Support Regulations 2000. Regulation 20 deals with the suspension or discontinuation of support. Stopping support is a serious matter. We would assess cases on their merits and consider the precise circumstances of each case before taking that option. However, if our systems are to command the confidence of all those here and of the asylum seekers themselves, we must make clear what we expect of those who seek sanctuary and what may happen if our hospitality is abused. Asylum seekers whose support is withdrawn under the provisions of Clause 23 have the safeguard of a right of appeal to the asylum support adjudicator, as I said.

Amendment No. 122 would fundamentally undermine our policy for accommodation centres. We have made it clear that we intend residents to be subject to reporting and residence requirements. That is a crucial part of providing better contact management. If we cannot require accommodation centre residents to be present in the centre at specified times—such as overnight—how can we be sure of their whereabouts? It is a sad fact that some asylum seekers abuse our systems. I shall not go on about that. Our study of what happens in Denmark produced evidence that, in some circumstances, people will live elsewhere, if there is no residence requirement.

It may help if I make clear that, in operating residence conditions under Clause 27, the Secretary of State is obliged to be reasonable. That is an explicit and enforceable principle of administrative law. We will not make asylum seekers subject to unreasonable residence conditions. We want the centres to be self-contained communities in which people can live as normally as possible. As I said, we expect that someone who wanted to visit a relative for a particular reason would be permitted to do so under Clause 27(3).

In short, if people behave reasonably—we have made clear our expectations—and do not abuse our hospitality, they should be able to abide by the residence conditions with minimal fuss and with minimal impact on their daily life. There would also be an understanding that exceptional circumstances would require reasonable consideration.

The Government cannot accept Amendment No. 139A. Taking a power to end the provision of subsistence-only support is wholly consistent with our policy of developing a more managed asylum system and developing ways of keeping better contact with asylum seekers during the asylum process. Given what we have discussed, it is clear that the replacement of the present system of dispersed accommodation with accommodation centres is some time in the future. Indeed, there is no certainty that that will happen; it is equally plausible that we might have a mixed system including some centres and some dispersal. However, if it does happen, we intend to offer support only in those accommodation centres.

Under current arrangements, asylum seekers can stay with friends or relatives and claim support to cover essential living needs. We have no control over where they live, which makes it difficult to maintain contact. As the Committee knows, large numbers of those who take up cash-only support remain in London and the South East. As of December 2001, over 17,000 of the 25,000-plus asylum seekers taking subsistence-only support lived in London. That presents problems and does nothing to help alleviate the pressure on services in the areas that the introduction of the dispersal scheme was designed to help. In deciding whether and when to exercise the power, the Government will take all relevant factors into consideration, including our obligations under the European Convention on Human Rights.

It is anticipated that any increase in accommodation costs will be offset by savings delivered elsewhere in the asylum system as a result of improved contact. I recognise that we are talking about events that are conjectural and some way into the future. However, the power must be there, should we need to cross that bridge.

I hope that the assurances that I have offered—for now, at least—will be sufficient to allow the noble Earl to withdraw the amendment.

Photo of Earl Russell Earl Russell Liberal Democrat 6:00 pm, 10th July 2002

I am grateful to the Minister for the care, courtesy and consideration with which he has handled the amendments. In offering to reflect on them over the summer, he has offered me the central assurance for which I asked.

I am painfully aware that I am not a lawyer. What I said should be regarded as being, largely, in the interrogative mode. If I can be certain that the Government will consult their legal advisers and consider with them whether there is any weight in the questions that I have raised, I will have achieved my main purpose. For that, I thank the Minister warmly.

Some questions remain. I was relieved by what the Minister said about the reasonableness required by Clause 27. I hope that that will meet some of the points raised by my noble friend Lord Avebury. When he spoke on Clause 21, he made clear the element of compulsion in that clause. I happen to know a Kosovar refugee who has settled in London. She would, I think, have come to London in any case because she wanted to be near to be near her sister who lives here. That is not unreasonable. Making it compulsory not to do it would raise questions.

The Minister skilfully and carefully considered the accommodation centres and the withdrawal of support as two separate lines of argument. However, the central point of what I said was that, in such cases, they may need to be taken jointly, not severally. It is the combination of the compulsion to reside with the penalty—we must call it that—of withdrawal of support from someone who breaches it that raises questions in my mind about whether that might amount to a form of detention.

Photo of Lord Filkin Lord Filkin Parliamentary Under-Secretary, Home Office, The Parliamentary Under-Secretary of State for the Home Department

Having said that I would reflect on the points raised, I shall add that point to the pile that the noble Earl has already offered me.

Photo of Earl Russell Earl Russell Liberal Democrat

That is exactly the note on which I was about to conclude my remarks. I thank the Minister. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 15 agreed to.

[Amendment No. 109 not moved.]

Clause 16 agreed to.

Clause 17 [Destitution: definition]:

[Amendment No. 110 not moved.]

Clause 17 agreed to.

Clause 18 [Dependant: definition]:

Photo of Lord Bhatia Lord Bhatia Crossbench

moved Amendment No. 110A:

Page 11, line 9, at end insert—

"( ) is over 18 years of age"

Photo of Lord Bhatia Lord Bhatia Crossbench

I want to raise another issue relating to children in the accommodation centres. Earlier, we debated Amendment No. 107, which dealt with the issue of providing education for children in accommodation centres. My amendment deals with the issue of whether children should be placed in accommodation centres with their families. It would also be useful to consider whether children should be placed in the proposed accommodation centres at all. That issue has not been explored in the Bill's passage to date. but it should be an important consideration for us.

Children's charities and refugee organisations are concerned that accommodation centres will not afford children the care and protection they need and will not uphold their rights under human rights law. My amendment would ensure that children and their families were not housed in accommodation centres. It would mean that dependants of asylum seekers, as defined in Clause 18, would not include children. There are concerns that because of the repeated reforms of the support arrangements for asylum seekers, children are losing out. We cannot continue to experiment with children's lives by testing policies on them to see whether they are feasible and withdrawing them after some children have been irreparably damaged. If there are genuine fears that living in accommodation centres could do lasting harm to a child's development, the policy should not proceed.

An understanding of the degree of trauma, upheaval and loss that children seeking asylum have suffered should always be uppermost in our minds as we determine policies that impact on them. Their emotional and mental health are likely to be extremely fragile and they will often be disorientated, confused and frightened. They will need specialist, and sensitive care and support.

It is highly unlikely that accommodation centres of the kind proposed will provide the right kind of care and support in the best environment for the child. Moreover, placing children in institutions that are not focused on meeting their individual needs is likely to delay substantially the healing process, if not exacerbate their problems, by adversely affecting their development and well-being.

As we know, the centres will be large, sited in remote places and insular in so far as they will not encourage residents to engage with the local community by providing all services on site. Is that the environment that any of us would wish for our own children? More to the point, should we force such an environment on extremely vulnerable children, many of whom will have acute needs?

The Government have sought to justify their proposals by saying that most asylum seekers who are recognised as refugees will remain in the accommodation centres for only two months, but in Standing Committee in response to calls to have a six-month limit on a stay in an accommodation centre, Angela Eagle said that six months was a "tough call" in terms of processing claims.

The United Nations Convention on the Rights of the Child should provide our guiding principles in all decisions relating to children. The convention provides a critical standard against which our treatment of children seeking asylum can be assessed. In particular, the best interests principle, which is set out in Article 3 of the convention, should be our overriding consideration as we develop policy. Children's charities point out that the Government have failed to demonstrate that placing children and young people in accommodation centres is in the best interests of those children.

The placement of children and their families in accommodation centres also gives rise to serious concerns under other articles of the convention. Under Article 6, there is a duty on the state to ensure to the maximum extent possible the development of the child. Article 15 refers to freedom of association, but living in isolated areas will make it difficult for families to make cultural links and participate in normal community life. The communal experience of accommodation centres may militate against the rights of children to privacy and a family life, to which Articles 16 and 18 refer. Families will be denied a say in the location and type of accommodation that would best meet their needs and the best interests of their children under Articles 5 and 18. The removal of opportunities for children to participate in social, leisure, recreational and cultural activities available to other children in the UK is covered by Article 31. Children will be denied a voice in major decisions that affect them, to which Article 12 refers.

All those concerns were considered by the Joint Committee on Human Rights, which concluded that the most serious concerns were in respect of Articles 3, 12, 15 and 31. In particular, the Committee emphasised that the duty on the Government under Article 3 is to make the best interests of the child the primary consideration in all actions concerning children. In respect of Article 15, which sets out children's rights in relation to freedom of association, the Committee stated:

" . . . in our view, it would be a matter of real concern if life in an accommodation centre for destitute asylum seekers and their dependants were to be regarded as an example of that 'normal community life' with which children are entitled to make cultural links and in which they are entitled to participate. We accept that the Department intends to make efforts to make life in the centres as pleasant as possible, but such a life would be inherently abnormal by most people's standards. It would also be likely to be somewhat cut off from local communities. The proposal to educate most children inside the accommodation centres rather than in local schools . . . would deprive the children of an important opportunity to forge links with the local community, and could delay the process of integrating into the community those who are successful in establishing a right to remain. Making links is likely to be particularly difficult if accommodation centres are located in isolated areas, as seems to be quite possible in many cases. We are concerned that this will make it difficult to meet the requirements of children's rights under CRC Article 15".

If it is in the best interests of children to be housed in accommodation centres, we would expect children seeking asylum to welcome the Government's proposals. However, young people consulted by Save the Children felt that accommodation centres were not a good idea for children and they were particularly concerned about being segregated from local communities. One of the children said:

"Young people need to get out and experience things".

Another said:

"We will not be able to make friends, especially with local people"

A third person said:

"Some people [in accommodation centres] will make trouble and noise and there will be no space to be individual".

What is the alternative to accommodation centres? We should not forget that, while the pilots are taking place, the vast majority of asylum seekers will still be dispersed in the normal way. More importantly, many organisations working with asylum seekers are of the view that dispersal is starting to work much better in some areas. Where the right infrastructure is in place and community partnerships of service providers have been built, there is growing evidence that dispersal placements can be very successful.

The Government's operational review of the dispersal scheme last year, made a series of practical recommendations on how the dispersal system could be further improved. It addressed issues such as clustering, and improving communication between NASS and other local agencies better to prepare communities in dispersal areas and to ensure that there is a better match between children and families and the services that they need. But the Government have given no time for those recommendations to be implemented before coming up with yet another proposal on how to accommodate asylum seekers. That is difficult to understand, particularly given that the emerging evidence on dispersal was increasingly positive.

The priority should be to improve existing services to enable children to access mainstream services and to piece their lives back together in as normal an environment as possible, rather than create new systems that divide, disrupt and exclude. The onus is on the Government to evaluate whether or not, according to objective criteria, it is in children's best interests to be placed in an accommodation centre rather than in their own home with their family in the community.

The Government have failed to demonstrate, or even to argue that it is better for a child seeking asylum to be placed in an accommodation centre than in his own home. It is difficult, therefore, to accept the Government's claim that they treat such children as children first and foremost. Indeed, it seems that the rights and needs of those vulnerable children are being subordinated to the demands of an inflexible, politically driven asylum policy. I beg to move.

Photo of Baroness Carnegy of Lour Baroness Carnegy of Lour Conservative 6:15 pm, 10th July 2002

The Select Committee on Delegated Powers in its 24th report referred to this clause and Clauses 59 and 60. The report stated that the definition of dependant would be prescribed in regulations. However, a Home Office memorandum to the Committee before it considered the Bill suggested that the Government were thinking that they might define what a dependant was and could consequently remove the delegated power. Does the Minister know whether it was the Government's intention to do that? I do not think that an amendment has been tabled to that effect. To leave the definition to delegated legislation is slightly worrying and perhaps some of those worries were encapsulated in the speech of the noble Lord, Lord Bhatia.

Photo of Lord Elton Lord Elton Conservative

Perhaps the Minister could at the same time tell us where to find the definition of "a prescribed class", mentioned in Clause 18. I cannot find it anywhere.

Photo of Baroness Carnegy of Lour Baroness Carnegy of Lour Conservative

I was referring to that issue.

Photo of Lord Renton Lord Renton Conservative

With great respect to the noble Lord, Lord Bhatia, who has taken a great deal of trouble to put his case, I do not see how the Government can accept the amendment. It seems to conflict with Clause 16(1)(a), which states:

"For the purposes of this Part a person is an 'asylum-seeker' if—

(a) he is at least 18 years old".

Here we are dealing with dependants. To provide that no one under the age of 18 can be a dependant could create immense hardship and trouble. I believe that a large proportion of the dependants will be teenagers between the ages of 13 and 17 inclusive. If they are not treated as dependants, with all the rights that the Bill gives to dependants, they could be deprived of accommodation, education and even medical treatment. I am sure that the noble Lord, Lord Bhatia, would not want to see such a situation and therefore I hope and believe that the Government will reject the amendment.

Photo of Lord Filkin Lord Filkin Parliamentary Under-Secretary, Home Office, The Parliamentary Under-Secretary of State for the Home Department

The noble Lord is right. The amendment would prevent our supporting dependent children under the age of 18 in accommodation centres. In effect, it is a repeat of the previous debate. Having spoken rapidly and at, I thought, excessive length, I shall only weary the Committee if I repeat the points I made. In short, they are faster decision-making, the potential for high-quality education and support, and a proper evaluation which will be open for all to see.

I shall not add further to that reply except to refer to why we believe that placing families with children in accommodation centres is in the best interests of the child. If the family is successful in its application, it is likely to happen faster and the family will then be able, at an earlier stage, to integrate into British society. If the family is not successful and is due to be removed, it will not be in the interests of the child for him to be integrated, only then to be removed. There is no reason to suppose that a place in an accommodation centre would breach the rights of the child. On the contrary, it would fully meet his needs at that stage.

As regards the question asked by the noble Baroness, Lady Carnegy, the definition of "dependants" is still under consideration. We intend to have a wider pragmatic definition of "dependant" and may well steer a leaner path to ensure flexibility to react to experience and changing circumstances.

The noble Lord, Lord Elton, asked about the definition of "a prescribed class". Clause 33(1) provides that "prescribed" means prescribed by the Secretary of State by order or regulations. That is one of those delicious circular definitions for these purposes.

Having made those points, I invite the noble Lord, Lord Bhatia, to withdraw his amendment.

Photo of Earl Russell Earl Russell Liberal Democrat

On the point of definition of "dependant", could a person be taken to be a dependant because he was too old to be self-sufficient? As the Minister was speaking, I suddenly had a picture if Eneas emerging from the flames of Troy bearing his father on his shoulders.

Photo of Lord Filkin Lord Filkin Parliamentary Under-Secretary, Home Office, The Parliamentary Under-Secretary of State for the Home Department

Certainly in the common-sense understanding of the word, but I would need to reflect on whether that is the meaning we will want to give it in the regulations. The expectation was that we would be looking at children as dependants rather than older people. But we will reflect on the point.

Photo of Lord Elton Lord Elton Conservative

Perhaps the noble Lord will confirm that he referred to Clause 32(1). If so, the definition still eludes me.

Photo of Lord Filkin Lord Filkin Parliamentary Under-Secretary, Home Office, The Parliamentary Under-Secretary of State for the Home Department

If I said Clause 32(1) I was wrong. I should have said Clause 33(1), which is a repetition of the problem we had earlier.

Photo of Lord Brooke of Sutton Mandeville Lord Brooke of Sutton Mandeville Conservative

I shall be brief. I wholly agree with the Minister that a debate on this issue would simply be a re-run of the debate on Amendment No. 107A. On the other hand, the debate in the Commons on the same amendment lasted 70 minutes. Until the Minister spoke, four Labour MPs representing London constituencies took part. I took the trouble to read the whole of that 70-minute debate comprising the views of Labour MPs. It reinforces powerfully the view of my noble and learned friend Lord Mayhew, in the debate on Amendment No. 107A, that flexibility is immensely desirable. If trialing can include some of the points made in the debate in the Commons, so much the better.

Photo of The Bishop of Hereford The Bishop of Hereford Bishop

We are in the sphere of speculation and conjecture, and I do not want to weary the Committee by prolonging the debate. However, some of the points made by the noble Lord, Lord Bhatia, about what life might be like in an accommodation centre need to be taken seriously. There is the strange paradox that it would deny families the kind of privacy in which they are entitled to expect to live. Accommodation centres will be unnatural communities, probably intimidatory from time to time. At the same time, Article 15 on the rights of the child and freedom of association is breached. Confining families in accommodation centres, even with the theoretical possibility of going out and about, will not enable the children to experience any kind of normal life.

It may be that the alternative is even worse. I know of many scandalous cases of immoral and irresponsible private landlords making life extremely unpleasant for asylum-seeking families. If that were the case and nothing could be done about it, life in accommodation centres would be less bad. It would certainly not be good. The best solution would be the better running of the dispersal system with better support for those dispersed into the community.

Will the Minister reassure the Committee that real efforts are being made to support families who are dispersed so that they are not intimidated and that in the creation of communities in accommodation centres there will be both concentration on privacy and the possibility of the children being able to engage with community life more widely?

Photo of Lord Filkin Lord Filkin Parliamentary Under-Secretary, Home Office, The Parliamentary Under-Secretary of State for the Home Department

What the right reverend Prelate says about children having association while in accommodation centres is right. We will seek to foster that in their development. Seeking to make dispersal work better will be an objective of government policy, come what may, because on any conjecture of how quickly we move forward on accommodation centres, dispersal will be with us for some years. Therefore, the right reverend Prelate is right to mark it and we are signalling that we must seek to improve.

Photo of Lord Joffe Lord Joffe Crossbench

I support the amendment, which is different from Amendment No. 107A. That amendment dealt solely with the education of children in accommodation centres. This amendment proposes that children should never be placed in accommodation centres.

I want to raise only one point in addition to those mentioned by my noble friend Lord Bhatia. There is much concern among children's charities about the child protection framework in accommodation centres. The information that has emerged through responses to questions in the other place raises serious concerns about the inferior level of protection that will be afforded children in accommodation centres and, indeed, whether the Government have properly thought through this aspect of their policy.

It is disturbing that in an answer to a question raised in the other place on 10th June, the Government stated that accommodation centres will not have a statutory duty to have a policy on child protection but that such matters will be left to individual contractual arrangements. The Government have also stated that accommodation centres will not be required to register under the Care Standards Act 2000, even though they meet the criteria for a requirement to register as set out in that Act. I would be grateful if the Minister could advise us on whether all the relevant provisions of the Children Act 1989 will apply to children in accommodation centres.

Children seeking asylum are particularly vulnerable. It is unjustifiable to place them in an institutional setting that has inferior child protection and welfare frameworks compared with those that must be in place by law for other children.

Photo of Lord Filkin Lord Filkin Parliamentary Under-Secretary, Home Office, The Parliamentary Under-Secretary of State for the Home Department 6:30 pm, 10th July 2002

For the record, although the Committee may weary of hearing this, we do not accept the suggestion that life for families in accommodation centres will be poor. The centres will not be camps; they will be more akin to self-contained villages with all the facilities needed to enable people and their children to lead decent lives without fear.

The categorical answer to the noble Lord's specific question whether the provisions of the Children Act 1989 will apply to children in accommodation centres is yes. Section 47 of the Act places a duty on local authorities to respond if they have reasonable cause to suspect that a child living in their area is suffering or is likely to suffer significant harm.

Photo of Lord Bhatia Lord Bhatia Crossbench

I am grateful to the Minister for his views on the amendment. All Members of both Houses of Parliament must think first about the needs of children and secondly about the asylum process. Children are vulnerable. In many cases they will be isolated. Often they will be bewildered and confused. The best solution would be not to place such children in accommodation centres. Perhaps an element of flexibility should be introduced whereby families with young children seeking asylum should be allowed to live in the community from the start. However, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 18 agreed to.

Clause 19 [Sections 15 to 18: supplementary]:

Photo of Viscount Allenby of Megiddo Viscount Allenby of Megiddo Crossbench

I cannot call Amendment No. 111 because it has already been debated.

Photo of Earl Russell Earl Russell Liberal Democrat

I do not think that it has been debated. Does the Minister have an opinion on that?

Photo of Lord Bassam of Brighton Lord Bassam of Brighton Government Whip, Government Whip

Perhaps I may offer some clarification. We have a white sheet and a green sheet for the amendments. I think there is an error on the white sheet. That error has been corrected on the green sheet.

While I have no great desire to ask for an extra debate, in all honesty and fairness I should point that out.

Photo of Viscount Allenby of Megiddo Viscount Allenby of Megiddo Crossbench

I must apologise to the Committee. I am not in possession of the green sheet; I have the white sheet, which contains the error. Perhaps we may revert to Amendment No. 111.

Photo of Earl Russell Earl Russell Liberal Democrat

moved Amendment No. 111:

Page 11, line 12, after "Secretary of State" insert ", after appropriate medical advice,"

Photo of Earl Russell Earl Russell Liberal Democrat

I am most grateful to the Minister and to the Deputy Chairman of Committees. I shall not take long over the amendment, which concerns proof of age. In societies that have not been through the transition from memory to written record, sometimes proof of age can be difficult.

Some hilarious proceedings have been recorded in medieval and Tudor English jurisprudence in which every villager recollected that the birth of a child happened in the year when he broke his leg or when the church steeple was struck by lightning. These dates demonstrate many of the difficulties presented by the dates at the beginning of St. Luke's Gospel.

Occasionally decisions by immigration officers are based purely on appearance at first sight, without making allowance for the very different rates and ways in which groups of people develop. The Bill provides that,

"The Secretary of State may inquire into and decide a person's age".

The amendment would insert the words, "after appropriate medical advice". That would not remove the possibility of error, but it would greatly lessen it. I beg to move.

Photo of Lord Bassam of Brighton Lord Bassam of Brighton Government Whip, Government Whip

As ever I am grateful to the noble Earl for his discourse into history. Dates of birth are important in modern society. I recall being very excited when my son was born, but I am still unclear as to whether he was born five minutes before or five minutes after midnight. We settled on five minutes after the hour.

The Government's position on this matter is simple and straightforward. It is necessary to be accurate and certain about a person's age. For that reason, the Secretary of State will need to establish age, because with it comes eligibility for different kinds of support. The principal issue here is that of single adults claiming to be unaccompanied minors. That is due to the perceived benefit of remaining within the area of the local authority providing support, which is often London or the South East.

We believe that the amendment is unnecessary as all those claiming to be unaccompanied minors are referred to social services for an assessment before the Secretary of State makes a decision on their age. That decision will determine whether the applicant will be supported by the local authority or whether they would be eligible to be supported by the Secretary of State in an accommodation centre. Those aged 18 will fall to be supported by the Secretary of State. For that reason, the Secretary of State needs to have the power to determine age in order to minimise disputes.

An equivalent provision enabling the Secretary of State to inquire into and decide a person's age for the purpose of provision of support through NASS is contained in Section 94(7) of the 1999 Act. That does not refer to medical advice.

We are grateful to the noble Earl for the amendment, but we think that it is unnecessary and that the provisions in place will work well enough.

Photo of Lord Avebury Lord Avebury Liberal Democrat

For the avoidance of any doubt, can the Minister confirm that X-rays are not used for age determination purposes? The matter was raised not long ago in this House. It was not apparent to some noble Lords, including noble Lords who are medically qualified, that in 1982 when the then Secretary of State went into the matter in some detail, it was decided that, on the benefit of medical advice—including advice from the British Medical Association—it was inappropriate to use X-rays for the purpose of age determination. The decision was reached because of the possible effects on the health of the child.

Whatever advice and whatever inquiries the Secretary of State may pursue on determining the age of an applicant, I should be grateful for the Minister's assurance that X-rays will not be used.

Photo of Earl Russell Earl Russell Liberal Democrat

I was well aware that this provision was not included in the 1999 Act because I moved the same amendment at the time and received the same response.

I do not think that social services are necessarily competent to take this decision. It is an expert medical matter. Rates of development can be very different. In the days when it was still open, I would regularly pass by St. George's School, Westminster. I would see members of the same class coming out of school. It was an inter-racial group. Young people who were clearly from the same class, obviously friends and contemporaries, looked to the casual observer as if in age they might differ by as much as five years. I do not believe that everyone in social services is competent to deal with that. It is a reasonably expert area of medicine.

I hope that the Minister will think further on the matter, but I shall not pursue it this evening. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 19 agreed to.

Clause 20 [Immigration and Asylum Act 1999, s. 5]:

[Amendment No. 111A not moved.]

Clause 20 agreed to.

Clause 21 [Person subject to United Kingdom entrance control]:

[Amendment No. 111B not moved.]

Clause 21 agreed to.

Clause 22 [Provisional assistance]:

[Amendments Nos. 112 to 114 not moved.]

Clause 22 agreed to.

Photo of Lord Filkin Lord Filkin Parliamentary Under-Secretary, Home Office, The Parliamentary Under-Secretary of State for the Home Department

moved Amendment No. 114A:

After Clause 22, insert the following new clause—

"LENGTH OF STAY: FAMILY WITH CHILDREN

(1) The Secretary of State may make regulations requiring him to consider whether accommodation should be provided for a person and his dependants outside an accommodation centre under a provision of the Immigration and Asylum Act 1999 (c. 33) where—

(a) they have been residents of an accommodation centre for a continuous period of time specified in the regulations, and

(b) at least one of the dependants is under 17.

(2) The Secretary of State may make regulations requiring him to provide accommodation for a person and his dependants outside an accommodation centre under a provision of the Immigration and Asylum Act 1999 (c. 33) where—

(a) they have been residents of an accommodation centre for a continuous period of time specified in the regulations,

(b) at least one of the dependants is under 17, and

(c) the person requests that he and his dependants be provided with accommodation outside an accommodation centre.

(3) Regulations under subsection (1) must provide that where paragraphs (a) and (b) of that subsection apply to a person and his dependants, the Secretary of State must consult the person in the course of the consideration required by that subsection.

(4) Regulations under subsection (2) must provide that where paragraphs (a) and (b) of that subsection apply to a person and his dependants, the Secretary of State must give the person an opportunity to make a request of the kind referred to in paragraph (c).

(5) Where the Secretary of State provides accommodation outside an accommodation centre in pursuance of regulations under this section he shall take any necessary steps to ensure that residence in the accommodation provided does not breach a residence restriction within the meaning of section 21.

(6) The Secretary of State may inquire into and decide a person's age for the purpose of regulations under this section.

(7) Section 45 is subject to regulations under this section."

Photo of Lord Filkin Lord Filkin Parliamentary Under-Secretary, Home Office, The Parliamentary Under-Secretary of State for the Home Department

As I said previously, we wish to bring forward an amendment at this stage of the Committee proceedings following the Home Secretary's announcements on Report in another place.

We have listened carefully to the concerns expressed by organisations such as Save the Children and the Refugee Council about the length of time children may spend in accommodation centres. We recognise that a few months may seem much longer in the lives of younger children. We can also see the need to consider whether what one might call a more normal social setting outside an accommodation centre would be appropriate for children at a particular stage having regard to their developmental needs.

The amendment therefore allows the Secretary of State to make regulations requiring him to consider a case after a period of time to be specified in regulations. I want to make it clear that we currently intend this period to be six months. At that stage the Secretary of State will consider whether a family should continue to be supported in an accommodation centre or whether support should be provided in a dispersal area. A number of relevant factors will be looked at—for example, the stage the asylum claim has reached and how soon a final determination will be reached.

We also envisage the education provider at the accommodation centre producing a report or an assessment in which any particular developmental needs of the child could be raised. This clause makes it absolutely clear that the parents must be consulted.

If the Secretary of State decides at the end of this six-month period that the family should remain in the accommodation centre, subsection (2) allows him to make regulations which would require him to provide accommodation to the family if they wish to leave after a period of time, which again will be specified in regulations. I want to make it clear that we currently intend this period to be nine months—that is, three months after the Secretary of State would have been required to consider the case.

At that stage the parents must be given an opportunity to request that they be supported outside the accommodation centre. If they wish to move to a dispersal area at that point they will be able to. The only way they will remain in the accommodation centre is if they themselves wish to. There will be no power for the Secretary of State to require their further stay for any other reason.

Government Amendment No. 134A is consequential and sets out that regulations made under this clause will be subject to the negative resolution procedure.

So we have listened and responded accordingly. However, I want to emphasis some important points in general. Accommodation centres are designed to provide a supportive environment for asylum seekers. Those who have come seeking refuge will have a roof over their heads, adequate food, activities to occupy their time, interpretation facilities and will be in contact with many other residents who speak the same language. They will also be in a centre which is designed to keep them informed about the progress of their case so that they are not left bewildered and understand fully what we expect of them in return. I beg to move.

Photo of Lord Renton Lord Renton Conservative

The Minister is well justified in moving this new clause. However there is one item in it that he should reconsider. Subsection (1)(b) of the proposed new clause states:

"at least one of the dependants is under 17".

Surely that should be "under 18". Elsewhere in the Bill the age of 18 is regarded as the age of maturity. To choose 17 creates a rather unusual situation. I do not expect the Minister to reply at once, but I suggest that on Report he should consider amending it to 18 rather than 17.

Photo of Lord Dholakia Lord Dholakia Party Chair, Liberal Democrats

I welcome the amendment. We discussed yesterday the role of the visiting committees and the monitor. It would be very helpful if information of this nature was examined very thoroughly in order that no pressure is put on a family to stay in an accommodation centre. There should be an independent assessment of people's needs and there should be no pressure put upon them to stay there.

Photo of Baroness Whitaker Baroness Whitaker Labour 6:45 pm, 10th July 2002

I warmly support my noble friend's amendment. He knows that I believe six months is a rather long time for a child. I hope to press him to reduce the period.

My question relates to subsection (3) which states that,

"the Secretary of State must consult the person"— by which he means, I think, the parents. I remind him that the Joint Committee on Human Rights complained that the department—that is, the Home Office—appeared to envisage the children's parents acting as the main channel for children's views. I draw to his attention that the UN Convention on the Rights of the Child requires due weight to be given to the views of children—all children—particularly in any judicial or administrative proceedings affecting them. That appears under Articles 12(1) and 12(2). Perhaps my noble friend will confirm that he envisages the children themselves being consulted under the amendment.

Photo of Earl Russell Earl Russell Liberal Democrat

This amendment also has been moved in response to representations from my honourable friend Mr Hughes. It is one of considerable importance to these Benches and to our attitude to other parts of the Bill. I am extremely grateful to the Minister for the care and trouble he has taken with it and for his serious efforts to be helpful.

He is of course handicapped by the extremely wide, permissive language in which regulations are now normally drafted. The amendment refers to,

"a continuous period of time specified in the regulations".

Like the Minister, we shall need to reflect and consult during the Summer Recess. Is there any chance whatever of our seeing the draft regulations during the Recess? This would materially assist us in regard to matters to do with Clause 31.

Is the Minister saying that it will always be the case that people will need to be held in the centre during the six plus three period while their appeals are being considered, or will there be some cases where after the six months they may be allowed out? Will the Government allow flexibility in such cases or not? Anything the Minister can say to help us on this matter will be taken very seriously and discussed very carefully.

Photo of Lord Filkin Lord Filkin Parliamentary Under-Secretary, Home Office, The Parliamentary Under-Secretary of State for the Home Department

As to the good question of the noble Lord, Lord Renton, about why not under 18, let me give him the Government's response. This will give him two or three months to reflect on the matter before we come back on Report.

We have made it under 17 because we believe that the situation is different for those of compulsory school age and below. Young people aged 18 and over will be able to seek, for example, voluntary activities in the local community or attend further education outside the accommodation centre, subject to meeting the requirements of colleges. So there is more opportunity for people of that age to address any concerns about developmental needs.

The noble Lord, Lord Dholakia, made good points in regard to visiting committees and the monitor. One would expect that these are the kind of issues that could well be within their purview to ensure that people and families were being treated appropriately in the centre.

As to the points raised by my noble friend Lady Whitaker, she will not be surprised to hear—I said this a few minutes ago—that there is no change in our position in regard to six months. It is right that parents or the person in the parental role should be consulted. When conducting his consideration, there is nothing to prevent the Secretary of State taking into account the views of the child. We shall consider slightly more positively how best to do this.

I am absolutely certain that it will come as no shock to the noble Earl, Lord Russell, that it is unlikely that draft regulations will be available during the Summer Recess. However, we could have further discussions on these issues in order to focus down on areas of particular concern. I should be delighted to do so if that would be helpful.

On Question, amendment agreed to.

Clauses 23 to 25 agreed to.

Photo of Baroness Anelay of St Johns Baroness Anelay of St Johns Conservative

moved Amendment No. 115:

After Clause 25, insert the following new clause—

"PROHIBITION OF PERSONS DISQUALIFIED FROM WORKING WITH CHILDREN FROM WORKING IN ACCOMMODATION CENTRES: AMENDMENT OF SECTION 36 OF THE CRIMINAL JUSTICE AND COURT SERVICES ACT 2000 (C. 43)

There shall be inserted after section 36(2)(a) of the Criminal Justice and Court Services Act 2000 (c. 43) (meaning of "regulated position")—

"(aa) an accommodation centre provided under section 14 of the Nationality, Immigration and Asylum Act 2002,""

Photo of Baroness Anelay of St Johns Baroness Anelay of St Johns Conservative

This amendment, by which I hope to remedy a perhaps unintended loophole left by the Government, is essential for the welfare of children who will reside in accommodation centres. The amendment adds to the meaning of "regulated position" in Section 36 of the Criminal Justice and Court Services Act 2000 and "accommodation centre" created by this Bill.

The noble Lord, Lord Joffe—I am disappointed that he is not in his place—raised in his earlier amendment the much wider question of child welfare. I focus on the much narrower and, I hope, resolvable issue of accommodation centres. The Refugee Children's Consortium, for whose briefing last week I am grateful, made it clear that it is important that such centres, whether or not they have a statutory duty to provide a child protection policy, should have designated staff to deal with child protection issues and that children must not be at risk.

My concern is that the Bill as drafted could place children at risk because sex offenders would not be covered by the regulations contained in the Criminal Justice and Court Services Act 2000 if they sought work in a voluntary or employed capacity in an accommodation centre. My amendment is therefore very tightly drawn to solve a single problem. It fairly and squarely ensures that sex offenders could not be engaged in employment or voluntary work in accommodation centres where, I believe, they would put children at risk. I hope that the Minister will feel able to accept this amendment or that he can draw to my attention other legislation which ensures that such people would be prevented from accepting such positions in accommodation centres. I beg to move.

Photo of Lord Dholakia Lord Dholakia Party Chair, Liberal Democrats

The amendment tabled by the noble Baroness, Lady Anelay, which we support, has some substance. I therefore hope that the Minister will give it further serious consideration.

Photo of Lord Hylton Lord Hylton Crossbench

In view of the scandals that have plagued a number of children's homes in a variety of English and Welsh counties, it is very important to prevent, by whatever means possible, similar occurrences in accommodation centres. Should they happen, the whole concept of accommodation centres would be brought into grave disrepute.

Photo of Lord Filkin Lord Filkin Parliamentary Under-Secretary, Home Office, The Parliamentary Under-Secretary of State for the Home Department

I thank the noble Baroness for tabling this amendment, which deals with the important issues to which the noble Lords, Lord Dholakia and Lord Hylton, have referred.

We agree that the safeguarding of children in accommodation centres is of paramount importance. In accommodation centres, they will be with their families. Therefore, the situation is not identical to that in other establishments, such as children's homes or local authority secure accommodation, which are for the exclusive use of children not accompanied by their families. Nevertheless, concern for their protection still prevails. That does not remove the need to ensure that people working in accommodation centres are properly vetted and suitable to be working there.

The existing statutory framework will apply, including the child welfare provisions in the Children Act 1989. It is also the case that those disqualified from working with children are already prohibited from employment in those positions that meet the definition of "regulated position" within the scope of the Criminal Justice and Court Services Act 2000.

The Criminal Justice and Court Services Act uses the concept of regulated positions and provides that it is a criminal offence for an individual who is disqualified from working with children to apply for, offer to do, accept or undertake any work in a regulated position. It is also an offence for an employer knowingly to offer work to or employ such a disqualified person. A regulated position is so defined that it can relate both to type of establishment and type of work. Thus, for certain types of listed establishments—children's homes, children's hospitals and the like—all employees are considered to be in a regulated position. Noble Lords opposite seek to add accommodation centres to that list.

However, in addition, a person is considered to be in a regulated position if he undertakes work of a type listed in Section 36 of the Criminal Justice and Court Services Act. Therefore, accommodation centre staff would be in a regulated position if their normal duties involved caring for, training, supervising or being in sole charge of children. Thus, accommodation centre teachers, creche workers and the like will be caught by the legislation. We need to consider more fully the position of ancillary staff.

We shall ensure that any contract with an accommodation centre provider enables the Home Office to approve staff before they start work at the centre. We shall also require the contractor to undertake the highest possible level of criminal records check for each member of staff. Our initial view is that those contractual requirements, together with the existing statutory protection, are sufficient. However, in the light of this amendment, we shall consider whether there is merit in providing some additional statutory protection.

We should like time to consider in more detail the legal position and the extent to which accommodation centres are already covered or not. We should therefore be grateful for an opportunity to reflect on this amendment. Should we conclude that it is necessary, we shall look forward to tabling a suitable amendment at Report stage.

Photo of Baroness Anelay of St Johns Baroness Anelay of St Johns Conservative

I am half grateful for the Minister's response. My amendment is certainly intended to raise a serious issue. I am grateful for the Minister's explanation of the differences in the Criminal Justice and Court Services Act between the definition of categories of places of employment and listing work of a type. My concern is that volunteers involved in the activities of an accommodation centre, or volunteer members of a visiting advisory group who are not doing remunerative work, may not be caught by the definition of "work of a type". However, I am grateful for the Minister's concession that, having taken the initial view that the Government always regard themselves as right about such matters and do not want anyone to touch their beautiful baby Bill, on this occasion they consider that if they pay attention to my amendment, the baby could grow a little healthier.

The Minister said that he looks forward to returning to the matter on Report. I should say that he will definitely look forward to it because, of course, I shall have an opportunity to consider what he has said and will naturally table an amendment in anticipation of the noble Lord tabling his own. At this stage, however, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 26 [Facilities]:

Photo of Baroness Anelay of St Johns Baroness Anelay of St Johns Conservative

moved Amendment No. 116:

Page 13, line 6, leave out "may" and insert "shall"

Photo of Baroness Anelay of St Johns Baroness Anelay of St Johns Conservative

Clause 26 sets out a list of the facilities and services that can be made available at accommodation centres. Our debates over the past few days have strayed very much into the nature of those services. As presently drafted, the clause simply states that the Secretary of State "may" provide those facilities. As the Immigration Advisory Service has pointed out to me, the Secretary of State should not have a discretion to make arrangements for food and other essential items and services for people who are forced to take up residence in accommodation centres. We believe that there should be a duty on the Secretary of State to provide those services.

People who take up residence in accommodation centres will often have arrived there following long and hazardous journeys. As we have heard over the past two days, they face stays of up to six months or perhaps longer. The services provided by the accommodation centres will be their lifelines and should give them the fairest opportunity properly to present their cases to be allowed to remain here. The services listed in Clause 26 should not be regarded, either in whole or in part, as pick-and-mix options.

As currently worded, the clause would allow the Government to choose to provide perhaps only one or some of all the services listed in Clause 26. That would not be good enough. If the Government are determined to keep the word "may", will the Minister tell the Committee which services the Government "may" at some stage decide not to provide? Will they decline to provide food, money, education and training, health, religious observance? Perhaps the Minister will say which of those facilities the Government may in the future decide are unnecessary? I beg to move.

Photo of Earl Russell Earl Russell Liberal Democrat 7:00 pm, 10th July 2002

Noble Lords on this side of the Committee agree with the amendment and are happy to support it. I alluded a short time ago to the extremeley wide flexibility that the wording of regulations allows the Secretary of State. The Secretary of State "may" simply means that he might do this, he might do that, or, indeed, he might do something else. It is not really the imposition of an obligation. In fact, I once described it as an approach that is flexible to the point of contortionism.

The Government talk a great deal about rights and responsibilities, but responsibilities rest on government and well as on others. Those responsibilities involve their admitting occasionally that they actually place a duty on the Secretary of State. To say that the Secretary of State "may" provide food and other essential items is simply not good enough. We support the amendment.

Photo of Baroness Carnegy of Lour Baroness Carnegy of Lour Conservative

I am not sure that these requirements are covered by regulations under subsection (1). It seems to me that regulations come under subsection (2) of the clause. I believe that my noble friend's amendment has one flaw. I would not have thought that the Secretary of State could be forced to provide anything that he thinks is necessary because of exceptional circumstances. I am not sure, but that seems to me to be a slight flaw. However, the gist of the amendment is extremely important. If the Minister does not like it, I hope that we shall ensure that it happens at some point.

Photo of Lord Filkin Lord Filkin Parliamentary Under-Secretary, Home Office, The Parliamentary Under-Secretary of State for the Home Department

The Government understand the objectives advanced for the amendment but believe the proposition placing a duty on us to provide all the facilities listed in Clause 26 to residents of accommodation centres to be flawed. As drafted, the wording of Clause 26(1) reflects the equivalent wording in Sections 95 and 96 of the Immigration and Asylum Act 1999. In principle, it would be illogical to have a duty to provide particular types of support to residents of accommodation centres, but not in respect of Section 96, which sets out what may be provided by way of asylum support under the 1999 Act.

We are committed to supporting destitute asylum seekers. We are also committed to providing an appropriate range of services to residents of accommodation centres. However, as we discussed yesterday, we are trialling the centres and we do not know what the future will bring. We do not want to tie our hands with a specific duty rather than a more flexible power.

A genuine trial means that we should not have a fixed concept about what might work. One has to start with a clear hypothesis about what one believes would work while being guided by both evidence and experience. We have already said that we are prepared to consider a different configuration of accommodation centres in response to concerns raised about 750 beds. A smaller centre might impact on the types of service that it is practical or necessary for the Home Office to provide. For example, with a smaller centre it may become less likely that there is need to provide transport to and from the centre because residents may be more easily assimilated on local public transport. It is prudent to be prepared for all eventualities. We would not want a provision on the face of the Bill placing an obligation on the Home Office to arrange for the provision of something that it was not sensible for us to provide.

Further, irrespective of the trial, some of the facilities listed in Clause 26 may not be necessary for the Secretary of State to provide in all circumstances. It is arguable whether it would always be necessary for the Home Office to provide religious facilities to all asylum seekers in every accommodation centre. If, for example, there is a convenient local church, or mosque, say, it might be sensible to make use of that rather than go to the expense of providing dedicated on-site facilities for those particular denominations. However, as I indicated yesterday—I hope, clearly—we will provide on-site facilities in the trial centres.

The use of the word "may" does not mean that we have any intention of ducking out of our responsibilities towards destitute asylum seekers. As a matter of policy, we will provide the following facilities in the trial centres: basic living needs; education for children on site; primary healthcare; purposeful activities for adults, including English language training; facilities for religious observance; interpretation facilities; assistance with travel to appeal hearings and asylum interviews, in the event that these do not take place on site, and the initial journey to the centre; and access to legal advice.

In the light of the assurances that I have given about what will happen in the trial centres and the argumentation for why we need to keep an open mind about how best to support asylum seekers, I hope that the noble Baroness will agree to withdraw the amendment.

Photo of Lord Lucas Lord Lucas Conservative

Is not the solution to the problem simply to take my noble friend's amendment and perhaps add some wording to it so that, for example, it would read:

"The Secretary of State shall arrange for such facilities as he considers reasonable to be provided"?

That would have the effect of putting a duty on the Secretary of State to provide such facilities if it was reasonable for them to be provided. There may be another more appropriate set of words, but, at present, the Secretary of State can fail to provide the listed facilities in the clause and there is no comeback against him. However, if, as I suggest, the word "shall" was included, alongside a duty, there would be a comeback against the Secretary of State if he was manifestly unreasonable in not making such provision. That would be a better state of affairs.

Photo of Lord Avebury Lord Avebury Liberal Democrat

When outlining the list of facilities to be provided in the four pilot centres, the Minister made no mention of means of communication with the applicants' legal advisers. Does the noble Lord recall that some difficulties arose in Yarl's Wood because faxes that went to and fro between the residents in the centre and their legal advisers were occasionally passed through the Immigration Service and were thereby delayed for periods of up to 36 hours? Can the Minister confirm that proper and sufficient facilities will be provided at these centres to enable residents to communicate with their legal advisers by fax, telephone, or e-mail, so that they will not have to wait hours in a queue in order to use them?

Photo of Lord Clinton-Davis Lord Clinton-Davis Labour

Although I support the views expressed by the noble Lord, is he not anticipating a later debate?

Photo of Lord Filkin Lord Filkin Parliamentary Under-Secretary, Home Office, The Parliamentary Under-Secretary of State for the Home Department

I take the point made by the noble Lord, Lord Avebury. I am certain that such access will be in place. Indeed, in common sense and practicality, it needs to be in place to enable people to communicate with their advisers.

I should like to reflect upon the suggestion made by the noble Lord, Lord Lucas, although I wonder whether it actually takes us back to the point at which we started. However, the Government are not prepared to move from what I said in my initial response to the noble Baroness, Lady Anelay. There is always a duty on the Secretary of State to act reasonably. Therefore, as Members of the Committee know that it is already clearly implied, it is not essential to put such a provision in the Bill.

Photo of Baroness Anelay of St Johns Baroness Anelay of St Johns Conservative

I cannot help but say that I am disappointed by the noble Lord's response. Although these centres are being set up as trials, what goes to the heart of the issue is the fact that such centres are the only place in which 3,000 people will live every six months. It is important for us to get this right from the first instance. My noble friend Lord Lucas was trying to provide some way out of the impasse and helpfully suggested the idea of some reasonableness as a test. Unfortunately, as the Minister observed, that brings us back to where we started. We return to the subjective test of the Secretary of State. From what the Government have said so far, I do not see enough evidence to suggest that I should trust that test.

The good will of the Minister is beyond reproach, but I must take into account what we have been told throughout the previous three days of debate. Despite the fact that the Bill has passed through the other place, we have not been promised any sight of the regulations, or any information about what will really happen in these accommodation centres, before we reach the Report stage.

Moreover, notwithstanding the Minister's assurances—and however well-meaning he may be—I am reminded that behind any government Minister there looms the brooding presence of the Treasury. I should not rely on any civil servants in the Treasury, any more than I would on the Ministers in that department. But I wonder at the back of my mind what would happen if, during a future spending round, the Chancellor of the Exchequer decided that the money given to service supply at accommodation centres should not be increased, or even that it should be reduced. What would a future Home Secretary have to do to decide which of the services should be pruned? Might he decide that some services are not appropriate? Might he decide that it is all right if a church is available within one or 10 miles, whereas a disabled person might need on-site services?

I do not intend to draw out the argument, but I am deeply disappointed. There are times when it is important to provide a clear picture of what shall be provided for those whose lives will be in these centres. I feel that, on this occasion, I must test the opinion of the Committee.

On Question, Whether the said amendment (No. 116) shall be agreed to?

Their Lordships divided: Contents, 81; Not-Contents, 94.

Division number 1 Nationality, Immigration and Asylum Bill — Government must make food and other services available to people living in accommodation centres — rejected

Aye: 78 Members of the House of Lords

No: 91 Members of the House of Lords

Ayes: A-Z by last name

Tellers

Nos: A-Z by last name

Tellers

Absent: 530 Members of the House of Lords

Absents: A-Z by last name

Resolved in the negative, and amendment disagreed to accordingly.

Photo of Lord Davies of Oldham Lord Davies of Oldham Government Whip, Lords in Waiting (Whips)

My Lords, I beg to move that the House be now resumed. In moving the Motion, perhaps I may suggest that the Committee stage be resumed not before 8.21 p.m.

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

House resumed.