This is an important matter so I hope Members of the Committee will understand if I take a little longer than usual in introducing it.
Amendment No. 173 would delete subsection (6) of Clause 57 in which the Government propose to repeal the provisions on routine bail hearings enacted in Part III of the Immigration and Asylum Act 1999. Many outside non- governmental organisations are rightly concerned about this proposal and it is right that today the Government should justify their intention.
"Part III fulfils the commitment in the White Paper to introduce a more extensive judicial element in the detention process. That will be achieved by introducing routine bail hearings for those detained under immigration legislation.".
In this House the noble and learned Lord, Lord Williams of Mostyn, when moving the Second Reading of the same Bill on 29th June 1999, at col. 178, said,
"Part III introduces important new safeguards for immigration detainees. It introduces a more extensive judicial element into the detention process by means of a system of routine bail hearings, but the Government have decided that we should go further. The Government intend to bring forward amendments during the proceedings in this House to provide for a statutory presumption of bail, with exceptions to ensure effective immigration control and enforcement. Part VIII of the Bill provides a proper statutory framework for all aspects of the management and administration of detention centres and for the escort of detainees. Taken together, the provisions regarding bail and detention centres will provide significant additional safeguards for immigration detainees".
I am sure Members of the Committee will recall that the noble and learned Lord moved the amendment of which he spoke at Second Reading on 19th July in Committee when he said,
"I hope that the amendment will meet with the universal acclamation of the Committee".—[Official Report, 19/7/99; col. 725.]
That amendment is now Section 46 of the 1999 Act and it is those very provisions in Part III of the Act, so eloquently spoken to by the noble and learned Lord, Lord Williams, three years ago, which today the Government propose to repeal under Clause 57(6) of this Bill. We acclaimed it; the Government now dispose of it.
There was an extensive debate on this matter in Standing Committee in another place. But the justification given at that time by Miss Angela Eagle was unconvincing. Members of the Committee will note that the provisions have never been brought into force. The Minister said that they were not brought into force because,
"we have been trying since the 1999 Act to work out the frequency and logistical implications of automatic bail hearings for each detainee. We concluded that it would be a logistical nightmare that would divert scarce resources from processing asylum applications . . . Implementing the Part III bail provisions would significantly increase the burden on the Immigration Appellate Authority".—[Official Report, Commons, Standing Committee E, 14/5/02; col.256.]
I cannot believe that the provisions in the 1999 Act which were described as important and significant by the noble and learned Lord, now the Leader of the House, and the implications of which were doubtless considered in detail by the Home Office when the White Paper was drawn up, when the 1999 Bill was drafted and when the amendments were proposed, are now to be dismissed as a logistical nightmare. I cannot believe that the noble and learned Lord, Lord Williams, would have put his name to such a measure and spoken in favour of it if he were not entirely certain that it was eminently workable and its implications had been fully thought through by the time the Act was passed by this House.
One final but important point on Amendment No. 173 is this. In another place my honourable friend Mr Malins moved an amendment which would have brought the provisions of Part III of the 1999 Act into effect. The Minister argued in response that to do so would be administratively unworkable and would cause chaos and catastrophe in the system. Amendment No. 173 meets the Government's point. It would not bring the provisions into effect but it would stop their repeal. The effect of that would be to allow the Government to bring them into force at a time when the administrative concerns which the Minister cited in another place had been allayed.
If the Minister were to resist the amendment, surely he would have to cast aside the mask of administrative unworkability that was taken up in another place and reveal the real policy reasons behind the Government's change of position. I invite him today to give us better justification on this matter than in another place. I beg to move.
Before I spoke to the last amendment I asked the noble Lord on the Government Front Bench to comment on the reports which have been made of remarks by the Home Secretary which appear to be an interference with the arrangement of business in your Lordships' House. I sent the noble Lord, Lord Filkin, a copy of the report by AP which quoted the Secretary of State as saying that he had already made provision for his new Bill to be speeded up, shortcutting the usual procedures so that it could be in place by mid-October. Later he went on to say that,
"if Britain could send 'early signals' to France about the Bill's progress and possible completion in July, London and Paris may be in a position at the September meeting in Frethun to set an early deadline for closure [of the Sangatte centre near Calais]".
The noble Lord owes the House more of an explanation of what happened than simply to tell your Lordships, as he did, that those words were not in the press statement issued by the Home Office. We know that because the press statement is on the Home Office website and can be read by everybody. This is a report by the European editor of a respectable news agency purporting to quote the Home Secretary in direct terms saying that he had already taken steps to intervene in the proceedings of your Lordships' House and to adopt short-cutting procedures which would enable Parliament to complete the passage of the Bill so as to speed up the closure of the Sangatte centre.
I am sure we are all in favour of closing the Sangatte terminal, but not at the expense of proper discussion on this Bill. I hope that the noble Lord, Lord Filkin, will be able to give further assurance either that the Home Secretary did not speak the words attributed to him by the European editor of AP, or that he made a mistake in doing so and that there is no intention by the Government of intervening in the usual channels to irregularly speed up the procedures that we normally adopt in this Chamber.
Turning to Amendment No. 173, which we fully support, we see this as being about the Government reneging on their undertaking to bring in automatic bail hearings for people detained under the Immigration Act which was given at the time of the 1999 Bill. They now say that Part III was not a cynical point to keep Members on these Benches and in another place happy, but it certainly had that effect at the time.
It means that we have to look with scepticism on other apparently liberal and compassionate provisions which come into effect on a date to be determined by the Secretary of State, of which there may be quite a number in this Bill. Only 18 of the 143 clauses before us come into effect on the passing of the Bill. How are we to know, for instance, that in three years' time the Government will not do another U-turn and say that the clauses we are proposing to approve now will no longer be necessary or desirable in the light of changed circumstances?
The noble Baroness, Lady Anelay, made a strong case for saying that if we leave Part III as it is, it can be brought into effect whenever the Government choose and the administrative concerns which now prevent them from doing so may have changed rapidly in a couple of years' time. We certainly hope that in three years the pilot accommodation centres which we have already discussed will be up and running and, if they are the success we hope, there will be little need to detain anybody at the beginning of the asylum process.
The White Paper, Fairer, Faster and Firmer, gave three sets of circumstances where detention would normally be justified. The noble Lord, Lord Bassam, recapitulated on them on the last amendment. They were: where there is a reasonable belief that the individual will fail to keep to the terms of temporary admission or temporary release; initially to clarify a person's identity on the basis of their claim; or, thirdly, where removal is imminent. The third category we have no argument about. We assume that, since the Government's intention is to speed up the removal of people who have exhausted their legal remedies, most of those people will be removed within seven days, or certainly within the 28 days at which the second automatic bail hearing would come into play.
It would be useful if the Minister could give us some idea of the mean time for which people are presently held prior to removal, and the standard deviation from the mean, or what they hope to achieve when the removal centres are fully in operation. That is the key. If no one was held longer than 28 days, the additional 2,000 bail hearings—a figure which I think initially the Minister in another place gave to the House—would no longer be operative. It would be a much smaller figure, which we would need to assess in the light of any figures that the Minister can give us about the length of time people will be detained.
In the vast majority of cases, at the beginning of the process the person's identity and the basis of his claim would be verified at the induction centres. If there are a few where uncertainty still exists, further inquiries can be made after an applicant reaches an accommodation centre. People will have a strong incentive to remain in an accommodation centre. If they leave, not only will they jeopardise the success of their claim, they will lose support and have to fend for themselves.
Therefore, the number of people who need to be detained at the front end of the asylum process could be small. That would bring about the administrative changes which the noble Baroness, Lady Anelay, has spoken of and which would negate the fears expressed by the Minister that we would overwhelm the process with this vast number of applications.
In the meanwhile, there is something to be said for the suggestion made by the honourable Member for Walthamstow in another place, who is also chair of the all-party group on refugees, that at least automatic hearings should be retained and brought into force for asylum seekers whose legal rights have not yet been exhausted. It would be useful to know whether the Government have any views on that because we could think about it between now and the Report stage.
When the honourable Member for Walthamstow made the proposal in another place the Minister ignored his remarks. She rested her case on the statistics that she had given—that bringing Part 3 into force would mean this extra 2,000 caseload a month on top of the 1,000 cases which are already being heard. Those figures appear to indicate that two-thirds of the people detained have no opportunity for a bail hearing. In many cases that is because they have not had access to an experienced immigration law practitioner or because it is impossible to find sureties.
I welcome that detainees are now being notified of their right to apply for bail and are given the telephone numbers of the Refugee Legal Centre and the Immigration Advisory Service on the form which sets out the reasons for their detention. But, as we have already heard, those forms are not translated into the languages normally used by asylum seekers; nor do those agencies take on bail hearings for applicants who are not their own clients. People who go through Oakington have a better chance than others because the IAS and the RLC are on the premises, but the IAS only rarely applies for bail because of the huge pressure of its substantive work. I accept that if automatic bail hearings were to be introduced additional resources would need to be made available to those agencies.
What would probably happen under the present arrangements, if we had automatic bail, is that immigration officers would use detention only where it was strictly necessary. If the Minister says that is already how it works, that they only detain someone where it is strictly necessary to do so, I can give examples from BID's recent cases which appear to show that detention is applied in circumstances where there is no reason to believe that the applicant would abscond or would fail to comply with residence or reporting restrictions.
We have already heard about the examples that BID has sent to your Lordships. I shall just quote one from the set which has emerged since 9th July. That is the case of asylum seeker B who was detained by the Immigration Service despite the fact that he had previously been granted bail and had kept in touch with the authorities by signing on regularly at the police station as instructed. B's legal representatives felt that without at least one surety they could not proceed to a bail application because the chance of success was too low under the terms of the merits test for public funding. So B spent seven-and-a-half months in detention without a bail hearing before one was arranged by BID.
The Immigration Service failed to produce the applicant in court. As a result he spent a further six weeks in detention. At the next hearing B was produced and the application went ahead. It then became clear that an error had been made by the Immigration Service in its case for maintaining detention and it was shown to be effectively without foundation. So B was then granted bail in his own recognisance in the sum of £10 with no sureties required after nine months in detention.
That is what happens when there is no automatic bail hearing. People can languish for months on end in detention without their cases being heard. Therefore, automatic hearings would concentrate the minds of immigration officers, knowing that they would have to respond to challenges before the adjudicators or the magistrates. The fact that clients do much better when they have competent representation proves that the volume of detentions is not a function of the probability that applicants would fail to comply with the conditions, but of the availability of legal assistance and of sureties. Since detention is expensive, it would be in the public interest to make it easier for asylum seekers to apply for bail by expanding the resources of agencies for that purpose and reducing the demands made on sureties.
It would be in the public interest to agree to the amendment because there would be a huge net saving of public expenditure, so I whole-heartedly support the noble Baroness. I hope that the Government will agree to her amendment.
Before the noble Lord sits down, in order to seek to avoid running two debates at once, perhaps I could respond to his further questions about the PA press release. What I said when the noble Lord raised the issue with me earlier today was that I had the Home Office press release before me, I did not have the PA notice. The noble Lord has kindly provided me with the PA notice so I now have it in front of me.
I shall re-emphasise that I would like to check the accuracy of the record and therefore to respond in writing to the noble Lord when I have done so. What I am absolutely certain of is that the Home Secretary thinks that it is important that we make vigorous progress in improving the ability of the country to manage the asylum and immigration challenge that we face. I sense that no one in the House dissents from that challenge.
I am also certain that the noble Lord is keen for the Report stage of the Bill to be as early as possible when your Lordships' House reconvenes after the Summer Recess. Therefore, I am certain that that is the kind of issue that he will be seeking to address in his discussions within government, so that we come to Report after the benefit of a good period of consideration early on when we reconvene after the Recess. I shall write to him further on these points.
I thank the Minister for the explanation that he has offered on that part. He noticed our concerns. In the first days he was kind enough to discuss with us the timetable for the Bill. We had no difficulty whatever in agreeing with the amount of days devoted to the Bill. To a great extent, we have not been responsible for the slowness of progress, in the sense that during the past five days of the Bill a number of Statements have been made, which have taken much time out from the Bill. One day there were a number of orders which exceeded their allocated time. So we are literally about four to five hours behind.
I can assure the Minister that there is no intention on our part to delay the Bill before us in Committee. I just say that the fault has not been ours. A statement of this nature reported in the press makes it uncomfortable, particularly for people on these Benches, because we felt that there was a push by the Home Secretary. I hope that the noble Lord will look into it and let us know at the appropriate time what is the correct position.
In relation to the point about Sangatte raised by the noble Lord, Lord Avebury, can the Minister tell us whether negotiations with the French turn on future arrangements to be made with the United Nations High Commissioner for Refugees? If so, can he tell us whether the Home Secretary already has sufficient powers to make more or less whatever arrangements he sees fit with the High Commissioner?
As for routine or automatic bail hearings, I have moved amendments on the subject to previous Bills, so I have a continuing interest. The noble Lord, Lord Avebury, has covered the matter so comprehensively that I have nothing to add. Nevertheless, I look forward to hearing the Minister's response.
Briefly, is the real reason for the provision that the Government will not do what they said in 1999 that they would do—I remember discussion of the subject at the time—because it would be a logistical nightmare?
We should not delay the Bill unduly by our discussion. We are talking much too much, if I may say so, and taking too long to make points. We should make our points more concisely and quickly, because we all want to deal with the problem of asylum. We should not spread out our discussion endlessly until the holiday and continue to spread it out on Report.
But my noble friend has given the Minister a chance to get off the hook. She suggests that the status quo should remain and that, in present circumstances, the provision should be implemented as soon as possible. Will the Minister make plain whether the Government really consider that to be impossible?
It is vital that asylum seekers should receive the correct impression of our justice system, and bail hearings are crucial. It is not a good idea to allow them to think that bail hearings are something that can be used rather casually by immigration officers, mixed up with all the other decisions that they take. The Government should consider my noble friend's amendment.
I strongly support the amendment moved by the noble Baroness and I agree with what the noble Lord, Lord Avebury, said so succinctly. As he said, the need to preserve automatic bail hearings is linked with the necessity for full written reasons. One follows from the other. It is well understood from our earlier debates that removal does not mean exactly what the Government would like it to mean. In many cases, it is a mirage. For most asylum seekers, detention means exactly what it says. The noble Lord, Lord Avebury, mentioned several case studies of bail for immigration detainees, so I shall not cite them, except to remind noble Lords that one case involved an asylum seeker who spent seven-and-a-half months without a hearing and then a further six weeks in detention.
During previous discussion, the Minister admitted that there have been failures in the system with regard to reasons for detention and he has undertaken to consider them before Report. Similarly, as we have heard, errors are occasionally made in the arrangements for bail hearings. The result is that many people with legitimate claims are overlooked and unnecessarily remain in stressful conditions before their claim is heard. The Minister must recognise that those errors would be minimised if there were a proper system for routine hearings.
The noble Lord, Lord Avebury, made some good suggestions. The fact that the presumption of liberty puts too much pressure on the Immigration Appellate Authority or interferes with the streamlining that we all want is neither here nor there. It is a human rights issue, as was plainly stated by the Joint Committee on Human Rights. Under the European Convention on Human Rights, that is justifiable only once a decision has been taken. If the person is not being removed, the requirement remains.
If it is a question of cost, what about the vast cost of detention? As to absconding, as the noble Lord, Lord Avebury, already mentioned in respect of another matter, the Minister in another place, Ms Angela Eagle, never responded to Mr Neil Gerrard when he cited the South Bank University report that more than 90 per cent of those in the sample who were given bail complied with their bail conditions. That was at col. 254 of the proceedings on 14th May.
So, as the noble Baroness, Lady Carnegy, said, if Part 3 of the 1999 Act is still valid but cannot yet be implemented, it should at least remain on the statute book.
Perhaps I may now speak to the amendment, having already responded on a previous matter. First, let me say how delighted I am on behalf of the Liberal Democrat Front Benches to support the noble Baroness, Lady Anelay, and the case made by my noble friend Lord Avebury. I shall be brief and shall make only three points.
First, when the 1999 Act was introduced, we were delighted that, despite some negative aspects, it introduced the concept of automatic bail provision. We genuinely welcomed that. The point is that, after all this time, it has not even been tried. It causes us serious concern about what value we can place on government promises to introduce a measure when that has not even been tried but is now being repealed. That is a matter of grave concern to all those who believe and trust many of the promises that Ministers make in this House.
Secondly, at no stage should we ever consider administrative convenience at the expense of the fairness of our judicial system. Granting of bail is part of that fair system. It is fundamentally wrong that administration costs should take priority over fairness to the individual.
Thirdly, the rest of the world follows many of the good examples and practices that we adopt in this country. It will be a tragedy when they see that we trample on some of the basic rights, such as the right of people who are being removed to ask for bail. What sort of example does that set for the rest of the world?
I hope that, even at this late stage, the Minister will consider taking the issue away and returning to us with some reasonable suggestions as to how we can speedily handle applications for bail from people who are being detained.
This does not seem to be a good week for the Home Secretary. I allude to the events late on Monday mentioned by my noble friend Lady Anelay and those raised by the noble Lord, Lord Avebury. However, the jury is still out on both matters, so we should obviously get on with the rest of our business.
No doubt the Government gained no little credit both inside and outside Parliament for introducing Part 3 of the Immigration and Asylum Act 1999. My late noble kinsman, told me that when he was an undergraduate, there was a club in his college—which is also the college of the noble Lord, Lord Avebury, called the Husteron Proteron Club, taken from the Greek for "later earlier". Every term, the club lived one day backwards. Its members would rise, drink a glass of whisky and play some bridge and end up having porridge late at night.
By introducing Part 3 of the Act into the Bill, the Government appear to be following somewhat the same practice. They appear to have legislated for the provision—as I said, perhaps gaining no little credit for that—and then, as the then Minister, Angela Eagle, told the Committee in the Commons, undertaken considerable research that persuaded them that it would be quite wrong to implement the provision that they had already enacted.
On Monday, I alluded to the fact that during the previous Parliament, through what it would be wrong to call the activity of the Home Office because it was due more to its inactivity, I found myself writing to it 40 times more often than I had done in Parliaments previous to that one. One was prepared to do all that was needed on behalf of one's constituents, but what I found trying was that no Home Office Minister in that Parliament would ever admit to having got anything wrong. That was a little provocative, as it was clear that some of the decisions were going wrong. In the retraction of those provisions, we have an acknowledgement that the decision taken in the previous Parliament was, in the eyes of the Government, wrong. I suppose that that represents some improvement. The Home Office Ministers from the previous Parliament who would not acknowledge that anything was wrong are no longer Ministers. There will be no names and no pack drill.
The fact remains that we are getting an acknowledgement that the Government think that they got it wrong. To their mind, they got it wrong on cost grounds. I must say that, although there may be such costs, there is a greater cost to those for whom the previous provisions were brought in. I join my noble friend on the Front Bench in support of the amendment.
There is, I think, consensus in the Committee that detention, properly managed, is part of a sensible system of asylum and immigration control. There is, at times, a need to use detention powers on entry, although, as has been said, immigration officers will, for obvious reasons, generally seek to minimise the use of the powers. There is also a need to use detention at the end of the process, when people are found to have no further right of residence in Britain either because their asylum claim has not been accepted or because their presence in the country is illegal for another reason.
We all recognise that it is crucial that we should be more successful at removing people who do not have a right of presence in the country. We are not motivated by any sense of punitiveness, but, unless we reduce the success rate of traffickers who charge people money to bring them here, we are likely to see a continuation of such attempts at trafficking. It is crucial, therefore, that removals take place when there is no longer a justification for someone's presence. Detention is a necessary part of ensuring greater success with removals, and the expansion of the detention estate to 4,000 places is, in large part, a product of that objective.
Many members of the Committee have spoken about what the Government did in 1999. I can understand why those points were made. However, we are now three years on in our experience of trying to cope fairly but firmly with asylum and immigration. We now recognise the need for a larger detention estate and more success at removals. Having a detention estate of 4,000 places would, as we said at Second Reading, mean that the implementation of Part III would lead to some 36,000 bail hearings per annum. That is impracticable and would be a significant diversion of immigration officers' time from other crucial duties.
As the noble Lord, Lord Dholakia, said, we cannot plead administrative convenience as the sole justification for an action, although it plays a part. The realities of government mean that one must, sometimes, consider how to manage within available resources. Therefore, it is important to consider how one ensures that people who are necessarily detained can petition effectively for release under bail provisions, should they wish to do so. That is the point to which the debate must return. Given that detention is necessary and that a routine bail process is unrealistic, how do we ensure that people can apply for bail when they wish to do so?
Everybody who is detained—with two exceptions—has a right to apply for bail. One exception relates to those who have been in the country for fewer than seven days. The Committee will realise that that exception allows for the first stage of evidential checking. However, that exception should not cause us great anxiety. The other relates to detention of those due to be deported under Schedule 3 to the Immigration Act 1971 who do not have a pending appeal of the type referred to in paragraph (3) of Schedule (3). Those who have a pending appeal will have a right to apply for bail, but it is common sense that those who have exhausted their appeals and are in the process of being removed should not.
Most people will continue to have the right to apply for bail. The question is whether, in practice, that right can be effectively exercised by people who are detained. As part of my preparation for the Committee stage, I read the notice that is given to detainees setting out the reasons for their detention and their bail rights. Taking cognizance of the wise words of the noble Baroness, Lady Carnegy of Lour, who said that we should get on with things, I shall not read it all out. However, it sets out people's rights in clear, if—how shall I put it?—official language. In practice, it is also translated, so that each person detained is informed orally by a translator of their right to apply for bail.
The charge is sometimes made that people may not, in the heat of the moment, understand what is said to them. I can believe that there will be occasions on which that will be true. However, 85 per cent of detainees are asylum claimants, as we would expect, and most are legally represented. I shall not be flippant about it, but I am less concerned about asylum claimants who have representation; even if they do not understand what is explained to them in their own language, their advocate or representative will. In most cases, excellent advice is given to asylum claimants in this country, and advisers will be able to give advice on the right to apply for bail.
We intend to go further and publish a pamphlet that will be clear but simple and will deal with the entire process of asylum claims. It will be given to every person who claims asylum in this country. It will set out their right to apply for bail clearly and categorically and in language that is as simple and clear as is consistent with the duty to be legally accurate. That pamphlet will be translated into the 30-odd main languages that we come across when dealing with asylum seekers. I would like to give an absolute commitment about when that pamphlet will be available in those 30 languages. I shall do my best to make it highly likely that it will be produced before Royal Assent to the Bill is signified. That is the timetable on which we should operate. The sooner that such advice and information is in people's hands, the better. In a sense, they will have belt and braces—an advocate and a document for themselves that seeks to give an understanding of the process.
I shall turn to some of the questions—not all—that were raised. The noble Lord, Lord Avebury, asked important questions about the average time spent in detention. There are no figures for that, but I can say that over 55 per cent of those detained, excluding those at Oakington, spend less than two months in detention.
I am interested in knowing about the 55 per cent of people who spend less than two months in detention. Quite a proportion of those would therefore spend less than 28 days in detention. The Minister earlier referred to the number of places occupied by people who are detained for less than a week, so from a number which is much smaller than 4,000 how does he arrive at the vast figure of 36,000 bail applications? Many of those people in detention will not have time to apply for one of the automatic bail hearings, let alone for both of them.
I shall enjoy exploring and debating the statistics with the noble Lord, Lord Avebury, in detail subsequently rather than at this point in time. However, the position stands that an expansion of a detention estate to 4,000 would very considerably expand the number of hearings. Currently, we are dealing with a smaller number, but I shall be pleased to exchange correspondence with the noble Lord on that matter if it would be of interest to him.
The noble Lord, Lord Avebury, and the noble Earl, Lord Sandwich, gave examples of cases which had gone wrong, perhaps even seriously wrong. I invite noble Lords to bring such cases to my attention. I do not say that by doing so they will for one second reverse a wrong that may have happened, but it will inform me and add weight to their challenge about the importance of ensuring that people should know that they have a right to apply for bail in law. I should therefore be grateful if both noble Lords would provide me with that information. I give an undertaking to examine it and investigate such cases and to reflect on any implications for the Bill.
The noble Earl, Lord Sandwich, mentioned the ECHR. Article 5.4 does not require a right to apply for bail. The requirements of Article 5 are satisfied by the ability of a detainee to apply for judicial review, or habeas corpus, to challenge the lawfulness of his detention. Notwithstanding that, I do not dilute in any way what I have been saying about the importance of allowing people to have access to bail if they so wish.
I hope that that is helpful to the Committee in terms of setting out the Government's thinking. We recognise the challenge of the noble Lord, Lord Brooke, that at times governments have to make changes in policy or process because their perception or scale of the problem changes. This is one such example.
I welcome the idea of producing a leaflet to be given to people setting out their rights in terms of bail. However, perhaps I may make a plea. Will the Minister ensure that all the non-governmental organisations working in the immigration field are consulted on that leaflet and that it will be in simple language which people can understand? Many people coming to this country will not understand the bail provisions in their own home country, and ours must be explained in simple language rather than in the legal jargon which often accompanies such statements.
I thank all Members of the Committee who have spoken on this complex issue and I welcome the Minister's statement that the Government are planning to publish a leaflet giving proper information. We hope that we may be able to see that before we come to later stages of the Bill.
This is a complex issue. I shall look carefully at what the Minister said in Hansard. I believe that he has taken us further forward than his colleague in another place. However, I bear in mind what my noble friend Lady Carnegy of Lour said. It is important that people who come to this country seeking asylum gain the right impression of our justice system. At this stage, I beg leave to withdraw the amendment.
In rising to move Amendment No. 173A, I shall speak also to Amendment No. 174 standing in my name. Clause 58 provides that the Secretary of State may meet the reasonable travelling costs of those supported asylum seekers who are required to travel as directed under the power given to the Secretary of State in Clause 44. That clause provides a power for the Secretary of State to link the provision of support with the requirement to report to the police or to an immigration officer.
If the power were not given to the Secretary of State, the asylum seeker would have to meet the travel expenses out of his existing subsistence payments. Clearly, that would be wrong. I cannot understand why the power has been made permissive rather than a duty. It is the Secretary of State who places a requirement upon the asylum seeker to travel, so surely it is only appropriate that those reasonable travel expenses should be met by the Secretary of State. After all, the asylum seeker is not left with any option to report; he must do so.
My amendment will ensure that the Secretary of State "shall" meet the reasonable travelling expenses in those circumstances. That appears to be common sense. If the Government say that the requirement is too harsh on the Secretary of State, they must reflect upon the fact that we are talking about only reasonable travelling expenses. That will be for the Secretary of State to determine, so the asylum seeker is hardly likely to have a chance to exploit those expenses for his own purposes.
Amendment No. 174 is a probing amendment. Its purpose is to require the Secretary of State to pay the travelling expenses of an asylum seeker within a reasonable period. I have tabled the amendment to ask the Government what they believe good practice will be. How long do they expect asylum seekers to wait before the payments are made? I beg to move.
I support both amendments. The so-called probing amendment appears to be just as important as the amendment moved. The amendments relate to reporting restrictions and therefore may provide the Minister with an opportunity to respond to my earlier suggestion that daily reporting by parents, who with their children would otherwise be detained, needs urgent consideration.
I understand the concerns of the noble Baroness and those noble Lords who have added their names to the amendment. Until recently, those required to report were in the main expected to attend their local police station but—and I am sure that all noble Lords involved in the Bill will acknowledge this—it was recognised that such reporting does not come within the core work expected of police officers. The Government felt it appropriate to put in place alternative arrangements so that the reporting obligation could be taken away from the police and focused on the Immigration Service. It makes more sense for those required to report to be seen by an immigration official rather than a police officer. That is why we are establishing a network of reporting centres.
The opening of reporting centres has meant that, in some cases, people have to travel a far longer distance in order to report—there are fewer reporting centres than police stations. To address the concerns that some of those required to report, such as supported asylum seekers, would be unable to meet the costs of travel, we are proposing that the Secretary of State may meet the reasonable costs of travel. It is the word "may" which is causing some difficulty.
We see no reason to meet the costs of travel in every case where a person is required to report. Perhaps it is that which separates the two sides of the argument. However, we have argued on previous occasions that some asylum seekers—not all by any means—will be able to fund the cost of travel themselves, while others will be required to report to a centre within reasonable walking distance of their home. Thus it will not be the case that in every instance an asylum seeker will incur costs or be without the means to pay the reasonable costs of travel.
For that reason, the term "may" has been used in the Bill. We wish to retain a measure of flexibility so that we do not have to refund every claim for travel costs. Not in every case will costs be incurred.
I hope that I shall also be able to reassure the Committee that Amendment No. 174 is unnecessary, although I accept that it is a probing amendment. While the Immigration and Nationality Directorate has yet to issue precise instructions, it seems likely that when asylum seekers leave the induction centre, they will be issued with a warrant to enable them to travel to the reporting centre when required. When asylum seekers comply with this requirement, they will be given a further date for attendance and at the same time issued with a warrant to enable them to travel to the centre.
I accept that some of those required to report will not have been required to go through the induction process. In those cases I am sure that arrangements can be put in place to enable the costs of travel to be reimbursed. Once the first visit has been made, they will be given a further date for attendance and at that stage can be given a warrant to enable them to travel.
For those reasons I hope that the noble Baroness will feel able to withdraw her amendment.
I am grateful to the Minister for his response to Amendment No. 174, which I shall read carefully. I am also grateful to the noble Lords, Lord Dholakia and Lord Hylton, for their support. We have just debated a complicated legal issue on bail and now we have moved on to a point of practice and common sense. However, for those involved it is an important matter of detail. It affects only a limited number of people, but of course it is vital to them.
I should remind the Minister that I made it clear that, in this case, the Secretary of State has imposed a duty on a person to travel; it is not their choice. I noted the Minister's response to the effect that, if a person lives within reasonable walking distance, then there would be no costs. However, there would be no claim. I do not believe that he has been able to overcome my objections in that respect.
While listening to the Minister's remarks, I was reminded of a comment made recently by my noble friend Lord Brooke; namely, that this provision reflects an Alice in Wonderland existence. We are considering people who will be living on very low incomes indeed. They will not have the money available to meet these travel expenses. As a matter of principle I believe that, on this occasion, I should test the opinion of the Committee.
The amendment, the effect of which would be to require the imposition of residence requirements without regard to personal circumstances, has been tabled to probe the issue of whether the "may" in subsection (1) in practice will indeed be "shall" so that requirements will be routinely imposed without regard to personal circumstances. I beg to move.
Amendment No. 175A concerns the same issue. We take the view that the Secretary of State should have regard to the personal circumstances of an asylum seeker before deciding to place that person in an accommodation centre. We believe that it is too extreme to provide that every single individual who applies for asylum must necessarily go through an accommodation centre.
We believe that age, in particular, is a relevant factor, a point made to us by ILPA. That body states that putting children into the induction centres may not meet their needs. It could expose them, as could detention in other places, to possible danger or abuse from traumatised adult asylum seekers, or from employees of the induction centres who have not been trained as childcare workers. The very fact that their freedom of movement is restricted may have an adverse effect on children who, as stated many times during these proceedings, may be extremely disturbed by their experiences in their country of origin and during their flight to this country.
This concerns the very start of the asylum process. A person goes into an induction centre immediately after their arrival from their country of origin when the stress on their psyche is at its most extreme.
Amendment No. 175B seeks to reduce the number of days a person can be made to stay in an induction centre from 14 to seven. This is in pursuance of an earlier discussion when the Minister told the Committee that the policy would be to keep someone in an induction centre only for two or three days before moving on to an accommodation centre. We therefore wonder why such an extreme margin beyond the time it is intended to keep someone in an induction centre is needed in the Bill. Surely seven days would be perfectly adequate if it is not intended to keep someone there for longer than two or three days.
The amendments are concerned with the operation of the induction process. The induction programme is an important element in the new procedures we are putting in place for the consideration of asylum claims.
Normally, the induction process will take place at the outset of a person's claim. During this induction asylum seekers and their dependants will be advised of their rights and responsibilities and provided with an explanation of what will happen to them during and after the consideration of their claim. Providing information of this kind is, in our view, the foundation of an effective asylum system. It will ensure that everyone knows where they stand so that future stages in the process can operate smoothly.
The purpose of Clause 59 is to enable a residence restriction to be imposed so that a person is required to reside at, or at least near, a place where induction is to take place for a limited period of up to 14 days. This residence restriction does not have to be imposed in all cases, but where it is decided that it should be imposed the clause provides that this may be done "without regard to personal circumstances". The clause as drafted therefore provides all the power needed.
Since we believe that the current wording is appropriate for our intentions as regards the induction process, we are happy with it as it is. Amendment No. 175 would seem to be designed to make it a requirement that a residence restriction be imposed where the conditions of subsection (1) are met. It will indeed be the case that the great majority of asylum applicants and their dependants will go through an induction programme, but there will be occasions where this does not happen. It is conceivable, for example, that an unexpectedly high volume of applications may mean that not everyone can go through an induction centre at the time we would wish.
Furthermore, there may be some people who, although they will be inducted, will not go through a standard programme. Examples would be unaccompanied asylum seekers and applicants who are detained. The provisions in Clause 59 are not really applicable to them.
To the extent that Amendment No. 175 has an effect, it seems to be to remove some helpful flexibility in the current wording, without adding anything further to it. I give way to the noble Lord.
That is the whole point of the amendment. The noble Lord says that it removes "some helpful flexibility" without adding anything. If it adds nothing, that proves the objective that the amendment sought to prove; namely, if "shall" adds nothing to "may", "may" in the Government's mind, in practice, will always be "shall".
I would argue the opposite case. "May" is a much more flexible word to use in the context of the clause than "shall", which is far more definite.
We could argue the point for a long time. I do not believe that it is illusory. I believe that the word is there for a good reason. I know that Members of the Committee find this hard to accept, but the flexibility is important. I cannot see that "shall" adds anything to it. If the noble Lord wants to reflect further on the point, I shall reflect further on our position.
Amendment No. 175A would reduce the effectiveness of the current wording by removing the reference to the power being imposed,
"without regard to his personal circumstances".
It is important that we have the power to require all asylum seekers to reside near a programme of induction. That will ensure that everyone is able to understand his or her rights and responsibilities within the asylum process. It is for this reason that Clause 59 makes it clear that a residence restriction may be imposed "without regard" to a person's personal circumstances.
If, for example, an asylum seeker has accommodation available to him but that accommodation is not near a place where an induction programme is run, we want to be able to have the person residing, for a short period, not at that accommodation but at a place which is more convenient. Otherwise, individuals may find themselves missing important parts of the briefing because of delays in getting to the place where information is being given out. That is a sensible requirement which will enable the induction process to be run effectively and efficiently.
I should like to make two additional points. First, there will be cases where we would not expect to exercise the power in Clause 59. For example, it is not the intention to have unaccompanied asylum seeking children going through the same programme of induction as is given to others, although they will have an equivalent programme. In addition, there may be individual cases where it would be inappropriate for a person to go through the normal induction programme. We shall of course deal with such cases in an appropriate manner, tailored to the person's particular needs—nothing in the clause as drafted would prevent us from doing so.
Secondly, where people had accommodation available to them, they would not be seeking NASS support. The period of time they would spend going through the induction programme would therefore be short—probably no more than a single night. So the requirement to reside away from their accommodation would not be long-lasting—a residence restriction would not last longer than necessary.
That leads me to Amendment No. 175B. This would reduce the maximum period for which a person could be required to stay near a place where an induction programme was being run from 14 days to seven days.
The period of time a person will spend going through the programme will depend on his or her circumstances. As I mentioned, someone who has acceptable accommodation available to him or her—for example, through family or friends—should be through the process in about a day. For those going to accommodation centres, the process might take two or three days. For those seeking NASS support but not going to an accommodation centre, the process will often last slightly longer because of the need to find suitable accommodation.
We would expect that for people in this last category the process would last no more than about seven days, but there will always be some cases—as indeed there have been recently at Dover—where matters take slightly longer than that. It is for this reason that the Bill provides for a maximum of 14 days. We can understand the desire to constrain the time period, but there will be occasions when we need slightly longer because of individual circumstances.
The restriction will be in place for only so long as it is required. So where a person has accommodation and the process is completed, we shall not require that person to continue to reside near the induction programme location. As for asylum seekers who have no support available to them and for whom the government are in the process of finding support, there will be no hardship for them to be required to stay in accommodation near the induction programme location—rather, in our view, it will reduce uncertainties and upheavals that they might face.
The noble Lord and I have disagreed about the flexibility required. However, I have given an explanation as to why we believe that the restrictions that we are placing on people in these circumstances are reasonable. I suggest that these amendments are not necessary.
Before the noble Lord sits down, perhaps I may suggest that he re-examines the drafting. The clause is ambiguous. The requirement could be put much more clearly. I am not sure whether my noble friend has found the solution, but the noble Lord ought to look at it again. It is quite incomprehensible.
I am always happy to agree to re-examine wording. Like the noble Baroness, I am happy to see us bring legislative language into an up-to-date format that we can all understand. So we will try to bring some further clarity to the wording.
Before my noble friend sits down, it would be immensely helpful if he could give a specific assurance that it is the intention of himself and his colleagues that valid compassionate grounds should always be taken into account.
I am more than happy to give that assurance. We want to exercise the process in an entirely compassionate way. It will be tailored to individual needs. That is why we need the flexibility to which I have referred.
I shall not press the point that lies behind the amendment again. I simply ask the noble Lord whether, during the summer adjournment, he might reflect on our exchanges. I shall table the amendment again at Report stage and we can debate it further. Meanwhile, I beg leave to withdraw the amendment.
We remain disturbed at the Government's failure to appreciate the need for early access to legal advice for all asylum seekers, and especially for those who are under a disability, such as unaccompanied minors and persons who have no command of the English language.
It is surely in the interests of the Government, as well as of asylum seekers, to secure decisions as quickly and fairly as possible. Legal advice at the initial stage can help to elicit all the information on which a Home Office caseworker can make a fully informed decision.
Despite the provision of statement of evidence forms in languages other than English, these complicated documents still have to be completed in English. There is a paucity of free interpretation and translation services available to asylum seekers, especially in areas of dispersal.
Whatever the individual circumstances of asylum seekers, they all share the desire to know what their status is likely to be. They all want their claim to be fully articulated. That can be done only with the assistance of qualified, competent and free advice.
There is no commitment to enable those in induction centres to have access to legal advice, even though some will be there for several days. On leaving an induction centre, an asylum seeker will be dispersed and given a date for the interview and a travel warrant to get there. They have little or no chance of arranging for legal advice and representation in the area of dispersal, unless that has been arranged while they stayed in the induction centre. I beg to move.
I support Amendment No. 176. All of us who are in any way involved with asylum seekers know how vital it is that they get proper, accurate legal advice as early as possible in the process. A large number of the difficulties that asylum seekers encounter, including their failure to present a full and adequate case at the initial interview and therefore to get a proper decision early in the proceedings, come from their inability in different ways to access competent legal advice that gives them sufficient time to prepare their case and obtain all the necessary documentation. The noble Lord, Lord Kingsland, has made an important point and we support it.
It is a probing amendment on the Government's intentions. What will happen if it is necessary to make residence restrictions on the parents of a minor when the reason for doing so is in the interests of the child, who is being assessed by a local authority? It would be ludicrous for the parents to be able to remove a child to another part of the country while a local authority was assessing the needs of that child, which might be acute. We look forward to hearing the Minister's reply.
I fully agree with both previous speakers about the importance of early legal advice and the crucial importance of interpretation and translation. However, I would not be dogmatic about whether that happens in an induction centre, in an accommodation centre or at the beginning of dispersal. The vital thing is that the applicant gets it. That is in the interests of the quality of first decisions and the avoidance of further appeals and judicial reviews. I very much look forward to the Minister's reply.
I support Amendment No. 176 for several reasons in addition to those that my noble friend has mentioned. I find the drafting of the whole clause unsatisfactory. Unless legal advice is given about the effect of the cross-references to the 1971 Act, they will create appalling obscurity for asylum seekers. After all, 1971 is 30 years ago.
There is a further problem. At the top of page 33, "programme of induction" is defined as:
"education about the nature of the asylum process",
From a legal point of view, I have never come across that definition. I warmly support my noble friend's amendment. The Government should also carefully consider accepting Amendment No. 177.
Even if those amendments are agreed, I can save the Committee my making another speech later by saying that the whole clause is unsatisfactory from the point of view of drafting and cross-references and because it will place asylum seekers at an appalling disadvantage. There we are. Whatever the decision on the amendments, I hope that the Government will look at the clause again.
The Committee seems pretty well unanimous in favour of Amendment No. 176. However, it is not the only amendment in the group. I shall follow up what my noble friend Lord Greaves has said on Amendment No. 177.
Children seeking asylum in this country tend to arrive in a state of trauma. One who is known to me had come from Kosovo, where she had seen her grandparents shot by Serbs in her presence. She did not speak for three months after that. I am happy to say that she is now doing fine and is a strong justification for educating asylum seekers in the normal school system, where she is thriving.
Not everybody in that situation recovers as quickly. Very often, the speed with which help is given to people in that situation makes an enormous difference to how effective it is. For a child in particular, to be able to say what has happened to them to somebody who is capable of understanding their words and the emotional significance of them can be extraordinarily valuable.
I would understate the case if I said that in this case a stitch in time saves nine. It may save 999. The care process is very expensive. Even from a Treasury point of view, one does not want to involve people in it more than necessary.
I also support Amendment No. 177ZA, which says:
"Victims of torture, including rape, whose trauma is likely to be compounded by being detained in conditions which may be reminiscent of the detention they fled, will be exempt".
We believed we had achieved that on, I think, the 1996 Bill, when we saw a powerful coalition of my noble friend Lady Williams of Crosby, the right reverend Prelate the Bishop of Liverpool as he then was—now the noble and right reverend Lord, Lord Sheppard—the noble Duke, the Duke of Norfolk and the noble Lord, Lord Alton of Liverpool.
We believed then that we had been given adequate undertakings that victims of torture would not be detained. It has not proved to be the case. As far as I can see, the selection of people for detention is entirely random. Victims of torture seem still to be detained in just about the same proportion as everyone else.
These are not merely people who have done nothing wrong. They are not merely people who are not even accused of doing anything wrong. They are people to whom very great wrong has been done. To detain them without cause shown and without charge gives a very literal meaning to words that are normally used metaphorically: compounding a felony.
I hope that the Minister will feel able to give us again the undertaking that we were given in 1996, and that, if so, the Government are able to take control of the administrative process which leads to detention sufficiently thoroughly to be able, as I am sure they wish to do, to make that undertaking good. It will be a difficult struggle. I wish them luck with it.
I should like to start by saying something positive about these amendments. It is this. I can well sense the feeling and mood of the House, and I support and encourage the sympathy that has been expressed for those who come here after very traumatic circumstances and have to undergo a process. I also think that the debate about asylum seekers has usefully moved on. I am hearing a much more positive attitude and approach to asylum seekers, and I think that that is all to the good. However, that does not mean that we do not have to have in place a set of very proper, very rigorous, but, as I said before, occasionally uncomfortable processes of bureaucracy which can occasionally seem insensitive. However, if we are to have a proper programme of managed migration, it is in everyone's interest that those rigorous processes are in place.
These amendments again pick away at and examine the operation of the induction process. I think that we have established that the induction programme is an important element in the new procedures and that it is right that we have included them. We have discussed this programme and these procedures on quite a few occasions in our debates.
Amendments Nos. 176 and 177A deal with access to legal advice. In discussing this issue within the context of Clause 59, we really do need to be clearer about the nature and purpose of the induction programme. I think that this is an iterative process; we are all beginning to learn what that process entails.
The Government's position on legal advice was set out quite clearly in the White Paper. Paragraph 4.36 states:
"While access to legal advice is not a pre-requisite to initial decision making, and should not hold up the decision-making process, the Government is committed to ensuring access to quality legal advice at that, and all later stages, for all asylum seekers whether or not they are in an Accommodation Centre".
The induction programme is not, however, part of the decision-making process. I think that that is probably the dividing line in this debate on this issue. We are not considering the merits of an individual's asylum claim. Rather, we are giving asylum seekers information about the overall process and their rights and responsibilities within that process. There is therefore no need for legal advisers to be present while such information is being provided.
I think that we need to pause and think about what that means. What we are saying is this. At that very early stage, we are describing a process; we are advising people and helping them to understand when they can make best use of quality legal advice. That is what it is about.
Information about legal advice will form part of the induction programme. So before a person leaves, they will, for example, be given information about how they can obtain access to legal advice in the area in which they will be living. They will also be given a date for when the interview on the substance of their asylum claim will be held. This will normally be 2 or 3 weeks from the date they leave the induction programme. So all asylum seekers will, if they wish, have the opportunity to discuss their claim in advance of the interview.
I think that these arrangements are right and set things in the right order, and that there is no basis for imposing the requirement in this amendment that legal advice be provided at the induction programme stage. The induction programme will explain the virtue, value and necessity of good legal advice. It will not in itself be a part of the process of providing that legal advice.
I turn to Amendment No. 177. Although I fully understand why the amendment has been tabled, I do not think that it is necessary or, in the circumstances, appropriate. The policy intention is that children who are dependants of their asylum-seeking parents will accompany them to an induction centre. That is beneficial to all concerned, and I cannot see any reason to prefer that the children be separated at that stage.
Unaccompanied asylum-seeking children will also receive induction. It is as important for them that they understand what is going on as it is for adults. They may come here in a very confused state. They may not understand at all our language and culture. The induction programme is an enabling and helpful tool to take them through that process. It is expected that such induction will happen probably at separate locations from where programmes for adults are run. They will need, of course, to be of a different nature.
The provision in the Children Act 1989 to which the amendment refers enables a local authority to carry out an assessment of a child's needs where it appears to such an authority that a child within their area is in need. My understanding is that in very few cases would a local authority carry out such an assessment in respect of a child who was here as a dependant. In most cases, no particular needs would exist which would merit an assessment being made.
Consequently, it would clearly be inappropriate for such an assessment to be made a requirement in relation to a dependent child going to an induction centre. Adequate arrangements will exist to cater for children during their short stay at or near an induction programme, and it makes no sense to impose the condition set out in the amendment. The amendment would impose such a condition. It would either place an unacceptable and perhaps even unnecessary burden on local authorities to carry out assessments where there was no justification; or it would prevent dependent children going to induction centres since such assessments may not be carried out.
I should add that a core assessment can take up to 35 days. If the intention of this amendment is to hold up the asylum process for this period, then I think that it is very misguided indeed. No one would gain from such delay in the system. Where there are cases that merit an assessment of a child by a local authority, the Children Act 1989 enables that to be done. So no specific provision is needed in relation to a clause on induction centres.
We contend that very few cases are likely to arise where it would be harmful to a dependent child for it to reside near a programme centre. However, should such a case arise, there is no requirement in the Bill as drafted that a child must reside in such a place. As noted earlier, the clause provides a power that may be exercised, but does not have to be exercised in every case.
I turn finally to Amendment No. 178A, which would prevent a person being moved out of their accommodation near an induction programme site until the Secretary of State had satisfied himself that access to legal advice would be available in the area to which the asylum applicant was to be sent. As I said earlier, applicants who go through the programme will be given information before they leave about how they can obtain access to legal advice in the area where they will be living. If a person is going to an accommodation centre, there will be access to legal advice; it will be there on location. Moreover, if a person is dispersed to part of the NASS estate, he will be able to obtain legal advice. The whereabouts of that advice will be made plain and clear to him.
It will be for applicants who make their own accommodation arrangements to decide how they will access legal advice and support. However, as I explained earlier, they will be given information on legal advice in their area during the course of the induction programme. We shall do everything we can to ensure that that occurs. It is in the interests of the state to provide that legal advice as it will help individuals to help the state reach a proper decision and will ensure that people's rights are fully understood. Those rights are important and we need to protect them.
I am satisfied that applicants will gain sufficient information from the induction programmes to seek legal advice. That is our aim and objective. I referred to the Government's commitment in the White Paper to asylum seekers having that advice. Arrangements will be in place to enable that to happen. Therefore, I can see no reason for adopting the proposed amendment. I hope that the noble Lord will feel able to withdraw the amendment.
The assessment proposed in the amendment would not necessarily be in the best interests of a child, particularly of a child who is with his family in an induction centre. To put such a child through a social services assessment at that stage might be completely unnecessary. There will, of course, need to be flexibility. The system is now somewhat more geared to the needs of the individual and where it is appropriate such an assessment could be made. The power exists for it to be made.
The Minister made a couple of remarks that worried me a little. First, he described this as part of a process of managed migration. That rather strengthens me in the opinion that I expressed on Monday; namely, that asylum and immigration ought to be seen as two different subjects. They ought to be managed by two different divisions of the Home Office and included in two different Bills. As soon as the thinking of one subject overflows into the other, mistakes occur. It was clear from the report, Deciding to Detain, which I quoted on Monday, that immigration officers live by the creed of A P Herbert's epitaph on an archbishop:
"My predecessors fighting sin
Did their best to bring men in
But I was best without a doubt
At keeping the unworthy out
So when I died the Church was one and that was me".
That is not the spirit in which asylum law should be administered.
The other thing that worried me a little was when the Minister said that it was the duty of the induction centres to give information to asylum seekers about the process of asylum. However, he did not say anything at all about receiving information from asylum seekers. But if the process is to be at all useful, it needs to be a two-way process. I should like to know from when the asylum claim starts to run. When does the clock start ticking? Does it start ticking after they have come out of the induction centre, when they have access to legal advice, or does it start ticking the minute they go into the induction centre before they have had any access to legal advice? If it were the second, it would be of some concern to me.
I appreciate the point that the Minister made about the difficulty of getting a social services assessment of a traumatised child. The BMA brief on the Bill is full of such cases. However, that is precisely why it is necessary to have a duty placed on the local authority. It is an argument that I have heard repeated over and over again by those who have taken part in the Grand Committee on the Adoption and Children Bill. It is an argument which has some place here.
It is also important that advice should be in many contexts impartial. Suppose, for example, that advice is given on repatriation. It may not be the intention of the present Government, but I am perfectly able to envisage a future government who might give such advice. It would be vitally important that that advice should be given by someone impartial.
Recently I came across a rather useful and interesting quotation in Sir William Wade's book on administrative law from the committee on Ministers' powers in 1932 which pointed out that a cynical and lazy Minister may much more often be able to give an impartial ruling on a judicial matter than one who is more zealous in his particular duty. The committee stated:
"An easygoing and cynical Minister rather bored with his office and sceptical of the value of his department, would find it far easier to apply a judicial mind to a purely judicial problem connected with the department's administration than a Minister whose head and heart were in his work. Parliament should be chary of imposing on Ministers the ungrateful task of giving judicial decisions in matters in which their very zeal for the public service can scarcely fail to unbalance their unconscious".
I do not think that I would describe the Home Secretary as an easygoing and cynical Minister. So the Home Secretary equipped with those powers might well apply them in a spirit in which zeal was more obvious than impartiality. Even if he did not do so, he might very well be unjustly accused of having done so. It is a suspicion from which, if I were Home Secretary, I would rather like to protect myself.
These amendments could be in the Home Secretary's personal interest quite as much as they are in the interests of asylum seekers.
I shall respond to a couple of the points made by the noble Earl, Lord Russell. The noble Earl, as ever, entertains the Committee with an historical discourse. I was interested in his description of Ministers. The Home Secretary does an extremely good job in difficult circumstances. I am grateful that the noble Earl does not think that he is a cynic; he certainly is not. The Bill is testament to that. We are trying hard to get it right in everyone's interests so that the process is not seen as cynical but one that works for those who are caught up in the asylum process.
I shall not enter into a long debate about asylum being mixed up with managed migration as I do not believe that that would take us much further in considering the amendments. We are trying to ensure that there is no confusion between asylum and managed migration. The asylum process should not be abused. It is in everyone's best interest that it should be used properly.
I am conscious that I did not respond to an issue that the noble Earl raised earlier. I believe that he referred to Amendment No. 177ZA when he said that victims of torture should not be sent to induction centres. However, induction centres are not detention centres. We are not sending people to detention centres. The atmosphere in an induction centre is very different.
I understand that they will not. Induction centres do not resemble detention centres in any way.
The noble Earl asked whether, if there were special circumstances which justified a person not going to an induction centre, the Secretary of State need not send him or her there. I refer to the case of someone who has self-evidently suffered torture and discomfort before arriving in this country to seek asylum. Flexibility is available in the matter. We should celebrate the fact that that flexibility exists.
The noble Earl, Lord Russell, asked when an asylum claim starts. Our understanding is that it starts from the moment at which it is recorded. That happens before the induction centre stage. That is when the clock starts to tick.
I hope that I have responded fairly to the points that the noble Earl raised.
I thank the Minister for his reply. In his response to my amendment, he drew to the attention of Members of the Committee the Government's White Paper, Secure Borders, Safe Haven, which was published in February 2002. In particular he drew to our attention paragraph 4.36 in support of the proposition that he sought to sustain. I remind him of the words that he quoted just a few minutes ago. That paragraph states:
"While access to legal advice is not a pre-requisite to initial decision making, and should not hold up the decision making process, the Government is committed to ensuring access to quality legal advice at that, and all later stages, for all asylum seekers whether or not they are in an Accommodation Centre".
First, I want to dispose of the statement that,
"the Government is committed to ensuring access to quality legal advice".
That commitment does not appear anywhere in the Bill. Earlier in the Bill there is a commitment to provide the facilities for the provision of legal advice. When the relevant amendment was debated, the understanding of Members of the Committee was that legal advice would be financed by the Legal Services Commission. We all know that the Legal Services Commission deals with legal aid in the context of civil matters and that it applies a fairly stiff test before it is disposed to provide legal aid for asylum cases. There is no guarantee in the Bill for quality legal advice. However, it appears that paragraph 4.36 of the White Paper requires that. I hope that between now and Report, the Minister will see that the Bill is amended to that effect.
That is not, however, germane to the amendment. What is germane to the amendment is the fact that paragraph 4.36, in my submission, achieves the opposite to what the Minister said, in response to my opening statement, it would achieve. My understanding of the paragraph, which I have just quoted, is that it contains a clear commitment to provide legal advice at the induction stage. All the later stages—
I read that paragraph differently. My reading of it is that the legal advice will be there from the point at which an initial decision is made. Legal advice will be necessary at that point, not at the point of induction. The induction process, which, as I described, may be quite short or perhaps up to two weeks, will involve facilitating people's access at a later stage so that the legal advice is there to enable representations to be made at the decision-making stage.
The commitment here is to give legal advice at the initial decision-making stage and at "all later stages". However, the "later stages" in the paragraph are the accommodation or dispersal stages. So far as I am aware, there is no intervening stage between induction and accommodation or dispersal. So how can the Minister's interpretation possibly be correct?
I think that my understanding is the right one; I am confident that it is. However, we will reflect on the noble Lord's words. I believe that the reference to the accommodation centre is something of a red herring. That is simply a matter of where people are living. The important point is that we ensure that throughout the decision-making stages, there is good legal advice.
I re-emphasise that the induction centre is not part of the decision-making process but that it is part of the asylum process. That needs to be understood. Paragraph 4.36 of the White Paper supports the contention that legal advice is available before a decision is taken. That, surely, is the important point.
I hope that the noble Lord, Lord Kingsland, will forgive me; I beg his pardon.
Asylum seekers will be put at a more serious disadvantage if they are not able to get legal advice in induction centres and if there is no duty to provide it. The medical foundation is aware of—
Why is that the case? Some of those people attending the induction process—we should be honest about this—may not have more than a rudimentary understanding of the English language. During the induction process, it may well be the case that they will benefit from having some interpretation facility so that it can be properly explained to them how the decision-making process will work and so that they can get access to good-quality legal advice before decisions are made. The induction programme opens up the system for them so that legal advice is available to them before a decision is made.
I was about to answer the Minister's point in my next sentence.
The medical foundation knows that a good many people are leaving induction centres and going to London to get legal advice, thereby putting themselves in breach of their legal residence requirement. The Minister probably remembers the days when he used to wait for exam results. It was an anxious period. If one could get the information sooner, one was rather keen to do so. That anxiety is nothing compared with the anxiety about the determination of one's asylum claim. If people can get legal advice sooner by going to London—resident requirement or not—they will do so. It would be elementary to let them have the facilities on the spot so that they could take advantage of them at once. That would save a great deal of time spent hunting for people who have gone looking for legal advice elsewhere. That would be to the Minister's convenience as well as a kindness to the asylum seeker.
The noble Earl is making a very good point but it is different from the one which I was seeking to make. My point was about the proper construction and language of paragraph 4.36 of the White Paper. It is clear that its language envisages that a decision-making process takes place before the movement either to accommodation centre or dispersal. That is clear from the language of that paragraph. The only stage before the move to the accommodation centre is the induction centre. It must follow then, as night follows day, that the initial decision-making process takes place at the induction centre. If so, there is a clear commitment by the Government to give legal advice at that stage. This is not a question of the Minister reflecting on my words; it is a question of the Minister reflecting on his Government's own White Paper and the commitment that it contains.
We are going to have to disagree on the construction of the contents of the White Paper. The induction programme, as I said, is not part of the decision-making process. Decisions come later. Whether or not someone is in an accommodation centre is in a sense somewhat irrelevant. When they are in the accommodation centre, they will be getting legal advice on site, but that may well be at the dispersal stage or in other arrangements.
We are saying—this is where the debate comes to a point—that we do not believe that legal advice during the induction programme is the right place for such advice; we believe that legal advice should come later. We are trying to use the induction programme so that people can have access to good quality legal advice and can know what sort of legal advice they require and where to get it. I make that point because I believe that it is germane and important.
I can understand the anxiety that the noble Earl, Lord Russell, suggests some asylum seekers may experience. It is an anxious time in their lives—there is no doubt about that. But it may not be the best time for them to seek legal advice. We are trying to be a helpful facilitator. We are trying to ensure that asylum seekers receive good quality advice and not unhelpful advice because some people in the business are less than scrupulous.
We are endeavouring to ensure that they receive good quality advice. That is why the commitment is there and in the White Paper.
I pick up the point about accommodation centres made by the noble Lord, Lord Kingsland. The wording of paragraph 4.36 does, indeed, include a specific reference to accommodation centres. It appears in the section on accommodation centres. Paragraph 4.36 means that people in accommodation centres, in other NASS accommodation or elsewhere will all have access to legal advice. All those stages occur after a stay in an induction centre. That is the point that I have been making.
I thank the Minister for giving way. Does he understand that asylum seekers may want independent advice on some of the information, instructions or whatever they are given in induction centres? They may want independent advice on the information that they are given about the process that they will go through and about the way that they will be treated, and so on. It is not a question of being given advice on their claims but on the way that they are treated.
While I am on my feet, I wonder whether the Minister will give us an assurance that induction centres are not, and will not, be used in any way to persuade an asylum seeker to withdraw his claim and go home. Will he give an assurance that no such inducements or advice will be given once the asylum claim has been made? If that were to happen, it would certainly be a matter on which people would require legal advice.
In a sense, the noble Lord is being helpful in relation to the point that I am trying to make. Is it not better that the legal advice is not given at the induction stage in the induction centre? If it is given off the premises, then surely the trust that a person going through the process has will be that much greater. There will be a degree of independence to the advice. It will be separate from a process which simply explains and provides information to people.
Will my noble friend give way? I have been listening to this exchange with great interest. Does he agree that one of the basic realities of political life is that a perception becomes a political reality? In that context, my noble friend—I say this with some humility—is perhaps not taking sufficiently seriously the political fact that there is a perception that the induction process will be used as a means of conditioning people and that it will be used as part of a negative-inspired policy instead of a justice-inspired policy. It is in that context that some reassurance is required that people can continue to receive legal advice.
The noble Lord makes an important point. In a sense, it picks up the point made by the noble Lord, Lord Greaves, that a degree of cynicism may exist. We are trying to produce a clear process that people can understand so that they can move on. For that reason, I should have thought that it would not necessarily be best to place legal advice in the middle of the induction centre programme.
The purpose of that programme is to make clear to people what will happen to them and what the process involves and to avail them of the opportunity at a later stage to obtain legal advice before decisions are made. That is what we set out in the White Paper and that is what we are seeking to achieve.
This has been a long debate and I am not sure that more is to be gained from it. We shall take away and reflect upon all the comments made by Members of the Committee who have been involved in the debate because they need to be reflected upon. I hope that noble Lords will also reflect upon the points that we have been making as part of this argument and discussion.
Before the noble Lord sits down, perhaps I may remind him that on Monday I referred to the case of the Ariana Airlines jet which was hijacked and came down at Stansted and from which all the passengers were removed to the Fire Service College in Worcestershire. They were kept there over the weekend and severe pressure was brought upon them to persuade them to return to Afghanistan. It is episodes of that nature that make us anxious that the induction process will not purely impart information to the asylum seekers but will exert indirect, or even direct, pressures on them to withdraw their claims or to vary them for the convenience of the Home Office.
Therefore, I ask the noble Lord who will be in the business of imparting information to those people? If it is the Immigration Service, the suspicion will always be aroused that the service will be able to exert improper influence on asylum seekers. If the induction centres are to be manned by people who do not belong to the Immigration and Nationality Directorate, perhaps that will give Members of the Committee some reassurance.
I am sure that the induction programme will be properly thought through and carefully designed and that people who are part of that process will be properly trained. Of course, it is not a question of applying pressure on people; it is about helping them through a process and ensuring that they understand it. We want people to be able to exercise their rights properly and to understand what will happen to them.
I have been advised that support for the programme is being provided by the Migrant Helpline, which is not a government body. Organisations such as that can help greatly in ensuring that the induction programmes are perceived as helpful, useful and valuable to those who go through them.
I want to help the Minister here because I do not want this amendment to end up in a confrontation, although it may have to. The Minister is confident about the meaning of the words in paragraph 4.36. Therefore, will he undertake to place those words on the face of the Bill? He is so confident of his own interpretation that surely he must say that he will. Will he do that—or will he place words on the face of the Bill that reflect exactly the words in paragraph 4.36?
Yes, I am confident of the interpretation that I have given. I am prepared, as I said a few moments ago, to reflect long and hard on what has been said in the debate. I shall not give a cast-iron commitment across the Dispatch Box and I do not believe that the noble Lord would expect me to do so. That would be wrong. But I am happy to give very careful consideration to what the noble Lord said and to reflect further on it. I recognise the importance and validity of this debate. It is important because it gets to the heart of ensuring that people properly access their legal rights and properly understand what will happen to them and what the process entails.
In moving Amendment No. 178, I shall speak also to Amendment No. 180. The amendments would mean that regulations made under Clauses 59 and 60 would be made by affirmative rather than negative resolution. The purpose of the amendment is to probe the following matter. Regulations made under Clauses 59 and 60 can be made only in respect of the definition of "dependant" in each clause. For what reason will "dependant" be defined under separate regulations in each clause? What difference do the Government have in mind?
Furthermore, why will there be a different definition of "dependant" in Clause 59 and in Clause 60 from that in Clause 18 where "dependant" is defined for the purposes of accommodation centres? Shall we end up with three different definitions of "dependant": one for Clause 59, one for Clause 60 and one for Clause 18? If so, what are the reasons behind that? Even if there are good reasons, have the Government considered whether that will be confusing for asylum seekers and their dependants, as well as for everyone else? I beg to move.
This is an occasion when what I am about to say may find favour with the noble Lord. I am sure that he will be pleased about that, although we have had some good discussions. Upon reflection we have concluded that it would be better to define the term "dependant" on the face of the Bill rather than leave it to subordinate legislation. We alerted the Committee on Delegated Powers and Regulatory Reform to that intention, which it welcomed. We shall bring forward amendments on Report along the lines indicated to the committee.
Two factors will determine whether someone is treated as a dependant—a person's treatment is the important factor—for the purpose of Clauses 59 and 60. The first, and prior, matter is whether a person wishes to be treated as a dependant. If a family member is not seeking to enter or to remain on the basis of their relationship with the principal applicant, they will not be seeking to stay as a "dependant" and will thus not come within the scope of the clause, unless they are an asylum seeker in their own right. It is important to remember that no one will be forced to be a dependant.
The second factor is whether we consider that a person qualifies to be treated as a dependant. It is the need to cater for that factor which led us to thinking that a regulation-making power would be desirable. But we have now concluded that a definition on the face of the Bill would be as effective.
The starting point is that the spouse and dependent children under 18 of a principal application would normally be treated as a dependent if they so wished. Other family members would not normally qualify as dependants, but our policy is to treat people outside the main definition as dependants where special circumstances justify it. For example, an elderly relative or a relative with a disability might be included in certain cases.
The amendments we plan to table on Report will, we think, deal with those two factors to the Committee's satisfaction. With the definition placed on the face of the Bill, the question of the appropriate order-making procedure falls away. I hope that that satisfies the noble Lord and that he will feel able to withdraw his amendment. We expect the same definition will appear in Clauses 59 and 60. I hope that clarifies that point.
Clause 60 deals with persons who apply for asylum while still within their permitted leave to remain in another capacity; for example, a visitor or a student. The Explanatory Notes say that there are very few people in that category and it would be useful if the Minister could be more precise and tell us how many people have applied for asylum when they still had leave to remain in some other capacity. How many people would have been covered by the provisions of Clause 60 if it had been in operation for the whole of 2001 or, even better, for the first half of 2002?
As I understand it, until this clause is passed the Secretary of State has no power to impose residence or reporting restrictions on those persons under paragraph 21 of Schedule 2 to the 1971 Act. Can the Minister tell the Committee what the practice was with those persons? Were they asked to comply voluntarily with the suggestions made by the Secretary of State as to reporting or residence, or were they left alone until their permitted leave to remain expired? Has any record been kept of whether people in that category kept in contact with the IND to pursue their claims? If they had always intended to remain here illegally, they might as well simply have gone to ground at the end of their permitted stay rather than applying for asylum at the end of that stay. So it can be assumed that most of the people concerned had a genuine case and intended to pursue it in the normal way.
What happened when they reached the end of their six months as visitors or as students? Did the power to impose restrictions then kick in? Paragraph 21 refers to a person liable to be detained under Clause 16, which in turn refers to a person who may be required to submit to an examination under Clause 2 which is concerned only with persons arriving at a port of entry. There seem to be no equivalent powers relating to a person already in the country whose leave to remain would have expired but for the fact that they had applied for variation of that leave while it was still current. If the Minister will explain what the procedures are under the current legislation and what difficulties have been experienced in practice, it would help the Committee to understand the necessity for the clause. I can see the logic in applying the same restrictions to all asylum seekers whatever their immigration status before they made their claim. But unless the absence of these powers can be shown to have caused problems, the case has not been made out.
In any case, ILPA says that children should not be subject to reporting restrictions and the penalties which can be awarded for non-compliance with such restrictions—I suppose they are referring to unaccompanied children. There can only be a small number of children admitted in some other capacity who apply for asylum after entry, though one could imagine how it might occur in theory.
For example, a child may have been sent to boarding school in this country by the leader of the opposition in Ruritania and following a military coup the parents are thrown into prison. However, they manage to get a message to the child in boarding school that he or she is to apply for asylum half-way through the academic year when the child is still within the permitted leave to remain period as a student. No doubt in those circumstances the child would remain voluntarily at the school. The school could make arrangements for the holidays and the social workers would look after the interests of the child if the parents were not able to appoint a guardian. Presumably the IND would then be able to deal with whoever was in loco parentis.
If the child is a member of a family, and the head of the family applies for asylum after entering in some other capacity, then, if the Minister can satisfy us that the restrictions of paragraph 21 should be capable of imposition on the parents, obviously the child should reside at the same address and comply with the same restrictions. I beg to move.
My Lords, Clause 60 is concerned with residence and reporting restrictions which may be imposed on an asylum seeker who has leave to enter or remain in the United Kingdom at the time of their application, or who is the dependant of such a person. It needs to be explained that this category of asylum seeker is presently a small one in percentage terms.
The noble Lord asked for some figures. There are no hard statistics but the number will be low. There are few country asylum seekers in any event. But, as I speak today, we do not have data. We will carry out some checks and see what figures we can put together. But it is unlikely that we have hard and fast records covering that point. So I cannot satisfy the noble Lord.
The great majority of asylum seekers have no leave when they apply because they have applied on arrival or they are illegal entrants or overstayers. Those relatively few asylum seekers who do have leave are not subject to any reporting or residence restrictions. Clause 60 changes that by extending existing powers in relation to those without leave to asylum seekers with leave and to their dependants. We think it is important for the fairness and efficiency of the new asylum processes that asylum applicants are treated the same, whatever their circumstances before they applied.
Amendment No. 179 would take away the purpose of the clause by omitting subsection (2). That is the subsection which provides that restrictions may be imposed on asylum seekers with extant leave in a similar way that they may be imposed on those without such leave, in accordance with paragraph 21 of Schedule 2 to the 1971 Act. The noble Lord appreciates that point. I am sure that he also appreciates that removing that subsection would take all meaning away from the clause. It is for that reason that we cannot accept it.
I want this to be understood. We want to make plain that Clause 60 should not be seen as a blank cheque to impose restrictions on asylum seekers with extant leave. That is not what we seek to achieve. The power it confers, of course, will need to be exercised reasonably in all circumstances. I also want to make clear to the noble Lord that individual circumstances will be taken into account when deciding on appropriate reporting restrictions. So the circumstances of each case will be very carefully weighed up. Such restrictions will not be unnecessarily onerous or imposed without good reason. If, for example, an asylum seeker cannot report on a particular day because of ill health he will be able to contact us to make alternative arrangements.
The noble Lord asked a few pertinent points. He asked whether reporting requirements were voluntary before this legislation. No voluntary reporting requirements were imposed. He also asked whether they kept in contact. No figures as to how many did not keep in contact are available. The noble Lord also asked what problems from absence of powers exist in Clause 60. We are introducing a new asylum process with the emphasis on greater contact for good reason, so that we understand the nature of what we are dealing with through the asylum process and also greatly to the benefit of asylum seekers.
When such a system is put in place it will become more important that all asylum seekers are subject to it. So there is a universality to it. We consider that the power in Clause 60 is important, whatever has happened in past practice.
The noble Lord also made the point that children should not be subject to reporting restrictions. The power to require all asylum seekers, including children, to report is needed. But I can give this clear assurance: it will be sensitively, sensibly and—I think importantly—compassionately applied, and not as a matter of simple routine where the need to maintain contact is less evident; for example—the example that the noble Lord gave—they are at boarding school. It would seem unreasonable and lacking in sensitivity to try to set out a rigorous reporting regime in those circumstances. There will be flexibility. We shall take careful account of the circumstances of the individuals involved. I hope with that that the noble Lord will feel able to withdraw his amendment.
I had hoped for rather more information than the noble Lord has been able to give. Even though the number, he says, is extremely small, he is not aware of what the practice has been, except to say that the voluntary restrictions have not been imposed on someone who applies for asylum with only a limited leave to remain for some other purposes.
Furthermore, he is not able to say what has been the experience of the IND with regard to the reliability of those persons in continuing their applications and maintaining contact with the IND. I am surprised because, if the number is as minute as he told the Committee, surely it would have been easy enough for the Minister to come along and give that information.
Nor has he told me—which is even more important—what has been the practice when someone gets to the end of a limited leave to remain in some other capacity; for example, as a student or in any short-term capacity. It might be a visitor with six months leave to remain. He comes to the end of that period. Is there then power under Schedule 2 to impose reporting or residence requirements on him? Or, because he applied within an existing limited leave to remain, is the Secretary of State deprived of ever being able to exercise any restrictions on that person from the time of his application until it is completed?
Curiously, it would appear that the Secretary of State has power to persuade that person to go into an induction centre because the induction centre process is not dependent on Schedule 2 to the 1971 Act. We need to explore that curious anomaly in further detail. Perhaps I may leave these rather complicated questions for a discussion which I hope to have in due course with the noble Lord, Lord Bassam, or with the noble Lord, Lord Filkin, about some other left-over matters from earlier Committee sittings. Meanwhile, I beg leave to withdraw the amendment.
In moving Amendment No. 180, I shall speak also to Amendments Nos. 182 to 184. They seek to amend the proposed criteria by which a person may be regarded under United Kingdom law as a serious criminal for the purposes of Article 33(2) of the refugee convention.
Article 33 of the convention prohibits the return of refugees to territories where their life or freedom would be threatened on account of the well-known convention reasons—namely, race, religion, nationality, membership of a particular social group or possession of a particular political opinion.
The article contains an exception in its second paragraph which allows this provision to be disapplied in respect of any refugee who may reasonably be regarded as a danger to the security of the country in which he is, or a refugee who, having been finally convicted of a particularly serious crime, constitutes a danger to the community of that country.
The amendments relate to the statutory definition that the Government propose in Clause 61, which will be a definition for the purposes of our domestic law of a serious criminal. Clause 61(2) provides that a person shall be presumed to have fulfilled the test laid down in Article 33(2) of the convention if he is convicted of a crime in the United Kingdom and sentenced to at least two years imprisonment. Alternatively, subsection (3) provides that a person is to be presumed to have fulfilled the test if he is convicted and sentenced to two years imprisonment outside the United Kingdom and he could have been sentenced to such a term in the United Kingdom for a similar offence.
The four amendments present two pairs of alternatives that would change those tests so that a person would be presumed to be a serious criminal if he had been convicted in this country of an offence for which the maximum term of imprisonment is either 10 years or more or 14 years or more; or if he was convicted abroad of an offence which, in the United Kingdom, would carry the same level of maximum punishment of at least either 10 or 14 years.
First, it is important to remember that Article 33 of the convention refers to a serious criminal as someone who has been convicted of a particularly serious crime. The definition that the Government propose relates not to the crime that the person has committed but only to the punishment that he has received. Have the Government satisfied themselves that the test that they propose, which turns on punishment rather than crime, is consistent with the provisions of the convention?
Secondly, will the inflexible criteria of two years imprisonment proposed by the Government cover all the circumstances in which someone, who is a danger to the community in the United Kingdom, is convicted of a particularly serious crime? To give an example, under the clause as drafted, someone sentenced to two years, after a trial on a plea of not guilty for assault occasioning actual bodily harm for which the maximum term is five years, will be presumed to be a serious criminal for the purposes of the convention. Yet someone sentenced to 18 months—perhaps including a substantial discount for a guilty plea—for child pornography offences, for which the maximum sentence is 10 years, or drug dealing, for which the maximum sentence in respect of class A drugs is life imprisonment, would not be presumed to be a serious criminal.
Everything would hang on whether the person in question had been sentenced to two years imprisonment or more. If he had been sentenced to 18, 21 or even 23 months in prison, he would not be presumed to be a serious criminal. If another person had been sentenced to two years for the same offence, he would be presumed to be a serious criminal.
To reiterate an example that I gave earlier, dealing in drugs is certainly a serious crime and drug dealers are certainly a danger to the community. Yet sentences of less than two years are not unheard of, especially on a guilty plea. It is by no means guaranteed that, in all cases, someone who commits a serious crime and may be regarded as a serious criminal will receive a sentence of at least two years unsuspended imprisonment.
A further problem with a rigid two-year imprisonment test relates to crimes committed abroad. How can the Government say, with any certainty, that someone who should be regarded as a serious criminal for the purposes of the convention will always be sentenced to at least two years by the courts in all foreign jurisdictions? The amendments would again cure that problem by referring to the seriousness of the comparable crime in the United Kingdom, rather than the actual sentence received abroad.
Perhaps the Minister will also take this opportunity to tell us whether convictions abroad in countries such as Iraq and North Korea—perhaps, indeed, the very country from which a refugee had fled—leading to the imposition of two years imprisonment in that country, would mean that a person would be presumed to be a serious criminal under the clause? As I read the clause, that is the case.
Is that what the Government really intend? Will the nature of the country's judicial system and its adherence to the rule of law be taken into account in allowing the presumption to be rebutted? I hope that the Minister will be able to clarify that question as well.
Returning to the amendments, I recognise that there may well be some problems with the tests that we propose. For example, to set the test of when someone is to be regarded as a serious criminal at conviction for a crime for which the maximum sentence is 14 years would exclude all child pornography offences, the maximum sentence for which is currently 10 years.
Perhaps a better approach might be to refer not to the maximum term of imprisonment that might be imposed, as do the amendments, or to the length of the sentence, as does the Bill, but to list, in the clause or in a schedule, all of the qualifying offences, as the Government did in the Criminal Justice and Court Services Act 2000, for the detailed definition of the term, "offence against a child". Her Majesty's loyal Opposition, with our limited resources, have been unable to undertake that considerable task, but it may prove a better way forward and is certainly not beyond the resources of the Government.
To conclude, for those reasons—namely, that the Government's proposals in the clause focus on the nature of the punishment imposed rather than the seriousness of the crime committed; that the level of two years imprisonment may in some circumstances be too high and inflexible; and that the sentencing practices of courts in foreign jurisdictions may well be different from ours, producing unforeseen results—I earnestly hope that the Minister will undertake to reconsider the wording of the clause. I beg to move.
I congratulate the noble Lord, Lord Kingsland, on spotting that point. When I used to have immigration questions to raise in that jurisdiction, I had a New York attorney who rejoiced in having obtained an immigration permit for Mr John Lennon, in spite of his having had a conviction for possession of cannabis, which was an absolute offence. The attorney told me that in order to achieve that, he had used a provision in law that had never previously been used by the United States courts, except against Communist countries. He was really rather pleased with himself.
What is the present penalty for sodomy in Zimbabwe? Also—the Minister may not know the answer to this so I shall table it as a Written Question and the noble Lord, Lord Kingsland, may receive the Answer before Report—how many Commonwealth Prime Ministers since the war have served sentences of more than two years imprisonment imposed upon them by the British authorities?
This is a Greek chorus-type remark. As ever, I have promised, through a self-denying ordinance, not to mention it more than once on any Bill. The clause that we are discussing, the very title of which demonstrates that it concerns a serious matter, was the 11th of 11 new clauses attached to the Bill by the Government in Committee in another place. The Government allowed 32½ hours for debate of this Bill in Committee. Within the past month, I have described the passage 20 years ago of the Wildlife and Countryside Bill which received 125 hours of debate.
The noble Lord, Lord Graham of Edmonton, was the Opposition Whip. Those 135 hours did the Bill much good and it has stood the test of time for 20 years. The fact that the Government regard 32½ hours as being enough time in Committee means that we must debate 11 new clauses—of which this is the last—that have not been put under any scrutiny. On the whole, that must act against the proper working of Parliament.
The principle behind the amendments is good. We must consider the way in which sentencing policy changes, particularly as some judges regard the prisons as being overcrowded. We cannot be certain that judges will impose the sentences that we might expect. This is not the correct measure of the seriousness of a crime.
The UNHCR handbook relating to Article 33(2) refers to crimes against the principles of the United Nations or crimes against humanity. It was never intended that the provisions of Article 33(2) should apply to relatively minor crimes such as might attract a sentence of two years. I am attracted by the idea advanced by the noble Lord, Lord Kingsland, that, instead of considering the sentence or the period of imprisonment, we should list qualifying offences in a schedule, as has been done in other cases. If we did that, we could cover domestic crimes and crimes committed in a foreign jurisdiction at the same time.
I have one other point to make about crimes committed in a foreign jurisdiction. How do the Government intend to treat offences of a political character or offences for which someone is tried in absentia? We all know of people who have been convicted and given serious sentences in foreign jurisdictions, without their being present in the court. There is no provision in the clause that would allow the Government to exclude such offences from consideration. The clause needs further examination. It would be useful if the Government would undertake to consider the suggestion made by the noble Lord, Lord Kingsland, so that they can satisfy both sides of the Committee.
It would be a good idea to consult Nelson Mandela. Perhaps, we should also consult the Movement for Democratic Change, in view of what my noble friend said about the offence of sodomy in Zimbabwe, where it attracts a sentence of more than two years. Under Clause 61, the Government could expel people accused of those offences in Zimbabwe. We could find many similar examples. In the political field, there is endless scope for finding examples of people whom we would not want to see covered by the Bill.
It has been an interesting and important debate. I cannot give a full response to the noble Lord, Lord Brooke of Sutton Mandeville, about proceedings in another place, but I shall make the oblique point that the happenstance that we will have a pause of two and a half months between Committee and Report gives the Government a good opportunity to reflect on the richness and variety of our debate on this and other points. We will do so without commitment, but it will not be a frivolous process. That may not be a full answer, but it may be a crumb of comfort.
Clause 61 defines the phrase "particularly serious crime", as used in Article 33(2) of the refugee convention, as meaning any offence for which a sentence of at least two years' imprisonment has been imposed. A person whose offence falls within that definition is presumed to constitute a danger to the community. However, the presumption is rebuttable. I shall return to that matter.
We decided on a tough yardstick in order to make it clear that high standards of conduct were expected from refugees who have the privilege and advantages of residence here. The small minority of refugees who commit serious offences—I have no exact figures, but it is about 100 a year—will be expected to argue their case for remaining here by seeking to rebut the presumption that they are a danger to the community. At present, with no formal definition of particularly serious crime in Article 33(2), it is too easy for refugees to rely on the protection of the refugee convention in order to secure their stay.
Amendments Nos. 181 to 184 suggest alternative definitions of particularly serious crime and would reduce significantly the scope for applying Article 33(2) to refugees who are convicted of criminal offences. Amendments Nos. 181 and 184 would do that by relating the phrase "particularly serious" to any offence for which the maximum period of imprisonment was 14 years or more. Amendments Nos. 182 and 183 would do so by relating the phrase to any offence for which the maximum period of imprisonment was 10 years or more. The Government do not agree that particularly serious offences are limited to those for which the maximum term is either 14 or 10 years. The adoption of 14 years as the definition would mean the exclusion of all offences with a 10-year maximum period. Those include sexual offences and indecent assault, offences against children, making threats to kill and damage or destruction of property.
The adoption of a 14-year or 10-year criterion would exclude offences carrying a maximum sentence of seven years or less. Examples include theft, child abduction and placing or dispatching of articles to cause a bomb hoax. At the five-year maximum sentence level are offences such as assault causing actual bodily harm—the example given by the noble Lord, Lord Kingsland—violent disorder, the production, supply or importation of class C drugs and aggravated vehicle taking where a death occurs. All the offences that I quoted are ones in respect of which a court, following a conviction, might choose to make a recommendation for deportation. That, in itself, is an important indicator of seriousness. Previous cases in which Article 33(2) has been applied have often involved a court recommendation for deportation.
When deciding to opt for the two-year actual sentence criterion, we also had to take into account the different criminal justice system in Scotland, of which the noble Baroness, Lady Carnegy of Lour, will remind us. In Scotland there is a wider range of common-law offences for which, if trial is on indictment, there is no maximum sentence. Thus, a criterion that stipulated a maximum penalty of x years could be satisfied in Scotland in cases in which it would not be satisfied elsewhere in the UK.
Another difficulty with using a criterion stipulating a maximum penalty of x years is that it would require a reference in legislation to a specific list of offences. In part, that is what the noble Lord, Lord Kingsland, recommended that we consider. It may work in England, where most offences are defined, relatively narrowly, by statute; it would work less well in Scotland, where most serious offences are widely defined common-law offences and where nomen juris does not matter.
I shall turn to some of the specific questions raised. I accept the argument put forward by the noble Lord, Lord Kingsland, that someone could easily be sentenced to two years for causing actual bodily harm. He is right about that. In such circumstances, our presumption would be that the person had a case to answer. There would not be an automatic decision to remove, but the person would certainly have a case to answer. I am not an expert, but I can say that a two-year custodial sentence for ABH is a serious sentence for that offence, and we would expect to find a context in which there was at least some previous criminality.
Arguing against the Government's view, the noble Lord, Lord Kingsland, also gave the example of a sentence of 18 months for child pornography offences. Yes, on first reflection, we would expect that in the light of such behaviour those given the benefit of refugee protection would not be entitled to continuing protection. At the least, we will reflect on that matter, as he suggested.
Moreover, we are satisfied that the wording is consistent with Article 33 in that the sentence imposed is, in general terms, most likely accurately to reflect the severity of the crime and that it has taken into account not only the offence but the context in which it was committed. That is what the judge is doing when he determines the level within the discretion that he has.
If my noble friend meant that were the Bill to be passed in its present form would we envisage a continuing discussion with the judiciary about the matter, the answer, in short, is "no". The legislation would cover that, but I shall turn to some of the relevant protections in a moment.
As regards the schedule, for the reasons that I gave in terms of Scottish law, we have doubts about it. Nevertheless, on both sides of the Dispatch Box we recognise the difficulties. He argues cases of difficulty and definition; we see difficulties with his form of definition. It is good that we reflect on both those positions and see whether the differences can be squared. I repeat the undertaking to examine that.
As regards punishment in Iraq, the person would not automatically be covered by Clause 61. First, the crime for which the person was convicted would need to carry a possible sentence of at least two years. Secondly, the Secretary of State would not be obliged to seek to remove someone where he did not consider that the person should be so removed; for example, because he had no faith in the sentence passed in Iraq. I wanted to emphasise the point that there is the presumption to disprove by the trigger of statute. Then the Secretary of State must make a judgment which, because he is always open to judicial review challenge, must be a judgment in the round as to whether in the light of all the circumstances it appears reasonable so to do. Thirdly, in such cases it is inconceivable that people under the threat of a deportation order would not exercise their right to go to court to challenge that, and legal aid would be available to them.
The noble Earl, Lord Russell, challenged me to nominate the penalty for sodomy in Zimbabwe. I was aware of the repressive approach of the Zimbabwe Government in that respect, but I do not know the level of the sentence. Of course, the clause applies to crimes committed overseas only if those crimes, if committed in the UK, would carry a sentence of more than two years. Therefore, an automatic protection exists because sodomy does not carry a criminal sentence in this country—nor should it. That provides a safeguard when actions which are considered serious crimes abroad are not considered serious crimes in the United Kingdom. I repeat that the Secretary of State also has the discretion not to seek to remove someone and must exercise that discretion after thought and consideration rather than blindly.
There is an absolute discretion in the Secretary of State's hands to decide that a particular jurisdiction—for example, Iraq and Zimbabwe—do not give people a fair trial. Does not that put too much on to the shoulders of the Secretary of State to decide in which particular foreign jurisdictions he will disregard such convictions?
First, we do not believe that he will be challenged by the volume of cases—not many cases of this type will come before him. Secondly, I do not believe that the provision is too big a burden. I believe that properly advised on the facts that he should bear in mind, he will be able to make such a judgment and will be well advised about our knowledge of the criminal law system in those countries. Were he thought to be wrong, clearly there is the possibility of an adjudicator or an IAT overturning his decision in such cases.
I want to reflect on some of the points made. We stand firm to the importance of seeking, with the protections that the clause allows, to remove people who have committed serious offences, but we will reflect on the points made in the debate.
Once again, I declare my interest as a member of an immigration appeals tribunal. I have listened most carefully to what the Minister and other noble Lords have said but know that we on the tribunal are already dealing with such cases reasonably satisfactorily. We are not given details of what is a serious crime and how long a sentence to consider, but we are asked to use our judgment as citizens of the United Kingdom. I have not yet been responsible for a case that has gone to judicial review.
I wonder why the Government believe it necessary to draft the clause in these terms. Perhaps the Minister could explain that.
I shall seek to be brief. The Government believe that there is no adequate definition in statute of what are serious crimes and that it is beneficial to provide one. In order to be part of the process of marking the seriousness of the matter, we expect people who have the protection of this country to behave responsibly and to make it clear that there are circumstances in which we would act to remove. We believe that it is necessary to do so.
I thank the Minister for his response. He accepts, as do I, that there are imperfections in the solutions offered by the Bill and by my amendments. There are advantages and disadvantages in both. I have not undertaken a systematic analysis of the number of offences showing how, as regards a particular offence, each of the two systems would impinge.
The noble Lord is accurate in his recollection of what I said, but he would be wrong to infer that I thought the listing was automatically perfect. I gave an undertaking to consider the pros and cons of the listing and the alternatives.
I hear what the Minister says. If he can find no criticism, when on his feet giving a reply on behalf of the Government to the solution of listing, in contrast to the criticisms he made of the other two systems before him, there must be a presumption—and I allocate no degree of strength—that that is the best solution of the three. Accordingly, the Government, unless they have good arguments to the contrary, ought to adopt it. Of course I accept that that might mean a separate approach in Scotland from England and Wales, but that is not beyond the scope of the Bill.
It might be that uncharacteristically and unusually the noble Lord is trying to take advantage of my attempt to be brief and my genuine commitment to examine the issues. I repeat for the third time that we will examine the matter without a presumption either way.
I am aware that we are long past the accorded time for the evening adjournment. I shall not therefore press further what I regard as an extremely strong argument on my behalf.
I thank the Minister for agreeing to consider it. We have two-and-a-half months between now and our return in October. I hope that the degree of serious consideration by the Minister will be proportionate to the length of the break. In that spirit, I beg leave to withdraw the amendment.