Asylum and Immigration (Treatment of Claimants, etc.) Bill

– in the House of Lords at 2:30 pm on 6th July 2004.

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Read a third time.

Clause 4 [Trafficking people for exploitation]:

Photo of Baroness Anelay of St Johns Baroness Anelay of St Johns Shadow Minister, Home, Constitutional & Legal Affairs, Shadow Minister, Home Affairs

moved Amendment No. 1:

Page 5, line 45, at end insert—

"( ) For the purposes of subsection (4)(d), inducement includes situations where the person may not be aware of what he is being encouraged to do."

Photo of Baroness Anelay of St Johns Baroness Anelay of St Johns Shadow Minister, Home, Constitutional & Legal Affairs, Shadow Minister, Home Affairs

My Lords, I have tabled Amendment No. 1 to give the Government the opportunity to put on the record their reconsidered response to earlier amendments that I tabled in Committee and on Report. Those amendments reflected the concern that had been raised with Members of this House by the Refugee Children's Consortium.

The concern can be simply stated. Is Clause 4 sufficiently broad to cover all cases involving children? Does the clause, which deals with trafficking, cover the situation where a request or inducement, force, threat or deception, is made to person A, an adult, but person B, a child, is exploited? Does it cover situations where the child may not be conscious of what is happening to them?

To be guilty of trafficking under this clause, a person must arrange or facilitate the arrival of another person in the United Kingdom and intend to exploit that person, or believe that another person intends to do so. Thus the definition of "exploitation" is central to proving the offence.

I have always accepted that the Government do not intend that there should be any lacuna. We have been working as one on this matter. However, it appeared that the gap was as follows. Children may not be subject to treatment amounting to slavery or forced labour. They could therefore not satisfy the definition of exploitation in Clause 4(4)(a). Children may not be trafficked for their organs; thus they may not satisfy the definition in subsection 4(b). As for subsection 4(c), the threat of violence may not be made to the child: the parent may be told that the child will be harmed. The parent may be asked to agree that the child become involved in an activity, and no one may ask the child anything at all. Thus it would appear that those who traffick in children may escape prosecution under this clause.

Following our debates on Report on 18 May, I understand that the Government have had further discussions behind the scenes with the Refugee Children's Consortium. I understand that the Minister may now be in a position to put on record the Government's further statement on their understanding of the term "inducement" in the context of this clause.

If the Minister is able to do so and can demonstrate that the clause makes it clear that children do not need to be conscious of what is happening to them, then I anticipate that I shall most certainly, and with great pleasure, be able to withdraw this amendment. For the time being, however, I beg to move.

Photo of Lord Rooker Lord Rooker Minister of State (Regeneration and Regional Development), Office of the Deputy Prime Minister, Minister (Office of the Deputy Prime Minister) (Regeneration and Regional Development)

My Lords, I certainly hope that I can satisfy the points made by the noble Baroness. As she said, Amendment No. 1 relates to the circumstances in which a person is exploited for the purposes of Clause 4 and, in particular, the meaning of the words "induced" and "inducement" in subsection (4)(d).

The definition of "exploitation" in subsection (4) is crucial to these offences. We have already had substantial debate on the drafting of this subsection, to ensure that the clause captures all the cases where a person is truly exploited.

The debates have been very useful and constructive. I did not participate in them but, before assisting my noble friend, I was fully updated and briefed on what was happening to the Bill. There is no difference between us that it is important that the offence covers those who prey on the vulnerable. That is why we amended the clause on Report in another place to add subsection (4), which states that a person is exploited if,

"he is requested or induced to undertake any activity, having been chosen as the subject of the request or inducement on the grounds that—

(i) he is mentally or physically ill or disabled, he is young or he has a family relationship with a person, and

(ii) a person without the illness, disability, youth or family relationship would be likely to refuse the request or resist the inducement".

Amendment No. 1 seeks to ensure that the terms "induced" and "inducement" in subsection (4)(d) are broad enough to cover the circumstances where the victim is not aware of what he is being encouraged to do. This is very important in the case of young children, who may not understand what they are being encouraged to do but who may nevertheless be susceptible to persuasion.

We are satisfied that the ordinary meaning of the word "inducement" is such that a person may be induced to do something notwithstanding his not being fully aware of what he is being induced to do. We therefore consider that subsection (4)(d) as drafted can apply in cases involving very young children, who may not be fully aware of the situation, of their actions, and of what it is they are being encouraged to do.

Amendment No. 2 also deals with the rights of victims of trafficking. As we understand it, the concern here is that Clause 4 offences may, as drafted, allow for the prosecution and conviction of the victims of trafficking in cases where a person arrives in the United Kingdom believing that another person will exploit him, but who none the less, in an attempt to escape his own country, agrees to come.

I am aware that there has been some constructive correspondence on this issue between my noble friend Lady Scotland and the noble Lord, Lord Hylton. I am happy to be able to offer the same explanation and reassurances which my noble friend has given in that correspondence.

We are absolutely in agreement that the offence in Clause 4 should not be used to prosecute those who themselves are victims of trafficking. However, we consider it to be implicit in the drafting of Clause 4 that the accused and the victim must be two different people. The wording of Clause 4 is not appropriate to describe arrangements made by oneself for oneself. Further, it should be borne in mind that criminal offences are strictly constructed in the defendant's favour. We therefore consider that the clause as drafted is sufficiently clear to ensure that the victims of trafficking will not be prosecuted for or convicted of the offences in the clause. Consequently, we do not consider that Amendment No. 2 is necessary.

I hope that explanation, together with the correspondence which has passed between the Home Office, the concerned bodies, and noble Lords is sufficient for the noble Baroness to feel that I have met the obligations and that she does not need to proceed with this amendment.

Photo of Baroness Carnegy of Lour Baroness Carnegy of Lour Conservative

My Lords, with the leave of the House, may I ask the noble Lord to enlarge a little on what he said about Amendment No. 1?

He seemed to imply that the word "induced" means that the subsection covers people who do not understand what it is they are being induced to do. I do not understand that. We all know what "induced" means. The grounds on which subsection (4)(i) and (ii) rely do not include what the noble Lord has said. They do not include the possibility that the person does not understand what they are being induced to do. I think that it is stretching language a little far to say that the clause actually says that. Is the noble Lord certain of that? If he is not, will he make certain before the Bill goes back to the House of Commons?

Photo of Earl Attlee Earl Attlee Shadow Minister, Economic Affairs, Deputy Chief Whip, Whips

My Lords, may I take the opportunity to remind the House that we are at Third Reading?

Photo of Lord Rooker Lord Rooker Minister of State (Regeneration and Regional Development), Office of the Deputy Prime Minister, Minister (Office of the Deputy Prime Minister) (Regeneration and Regional Development)

My Lords, I am more than happy to take advice on that. Since the debate started, this matter has been looked at by lawyers. We are satisfied that the ordinary meaning of the word "inducement" is such that a person may be induced to do something, notwithstanding the fact that that person is not fully aware of what it is he is being induced to do.

That may sound convoluted, but that legal jargon—if I may put it that way without being pejorative—would stand up in court in the way I have explained. The Bill will obviously go back to the other place, but this is Third Reading in this House.

Photo of Baroness Anelay of St Johns Baroness Anelay of St Johns Shadow Minister, Home, Constitutional & Legal Affairs, Shadow Minister, Home Affairs

My Lords, I am grateful to the noble Lord. My noble friend Lady Carnegy was right to try to make even clearer the commitment the Government are giving today.

It may look to some outside the House as if this is angels dancing on the head of a pin, but we do need to get the number of angels right. The interpretation of this clause must be robust enough to stand up to legal challenge. I am grateful to the Minister, and I hope that is what he has managed to achieve in his further explanation today.

The Minister has referred to Home Office letters which have been whizzing round. They did not whiz round the ordinary Post Office system because some have still not arrived. However, with the good will of the Bill team, they have certainly been whizzing their way round the electronic systems by email. Perhaps I may put on record my thanks to the Bill team for doing that over the weekend. It has meant that we have been able to foreshorten proceedings today. Yesterday I was able to withdraw two of my amendments that otherwise might have taken some considerable time in a list that is already rather long for today. So, with that explanation, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 2 not moved.]

Photo of Lord McNally Lord McNally Shadow Minister (Broadcasting), Culture, Media & Sport, Deputy Leader, House of Lords

moved Amendment No. 3:

After Clause 8, insert the following new clause—

"IMMIGRATION DECISION PROCEDURE

(1) An independent inspector shall be appointed after consultation with relevant organisations—

(a) to report annually on the quality of decision-making in asylum cases;

(b) to lay that report before Parliament.

(2) Section 26 shall not be enacted until and unless the independent inspector is satisfied that the quality of initial decision-making has been improved."

Photo of Lord McNally Lord McNally Shadow Minister (Broadcasting), Culture, Media & Sport, Deputy Leader, House of Lords

My Lords, if the Government were to accept this amendment, it would mean an extraordinary change of heart and philosophy on their part. The amendment seeks to draw attention to what we have criticised throughout the passage of the Bill as the basic error in its philosophy; namely, that the Government seem to think they can best improve the immigration system by a sanction here and a withdrawal of benefit or of the right to appeal there, and a toughening up further down the process. We on these Benches have continually drawn attention to the quite extraordinary failure at the first stage that has produced these large numbers of often successful appeals.

In the past we have drawn attention to examples such as Canada, where the issue is approached differently, and there is much better first testing of cases, so that that the subsequent problems that apply in our case do not apply in theirs. We have referred to the junior quality of some of the Home Office officials who appear at first stage, and to the astonishing fact that sometimes there are no such officials at all. We do not have the highest expectations, but we do hope the Minister will use this opportunity to say that the Government recognise that the first stage of asylum applications is a substantial part of the problem this Bill is trying to address. With this amendment we are trying to introduce a suggestion for quality control, which would ensure that the first stage was treated efficiently and properly, and dealt with by a high quality person. We believe if we did, and if we set that as a mark, some of the other measures in this Bill would simply prove unnecessary because the right decisions would be made first time. I beg to move.

Photo of Earl Ferrers Earl Ferrers Conservative

My Lords, the only observation I was going to make was that my noble friend Lord Attlee reminded us that we are on Third Reading. It would be appropriate to remind your Lordships that the amendment has not actually been moved.

Photo of Lord McNally Lord McNally Shadow Minister (Broadcasting), Culture, Media & Sport, Deputy Leader, House of Lords

My Lords, I wonder if we are in the throes of a coup. The Conservatives seem to be intent on running business today. Perhaps the mood will pass eventually, as it may be several decades before they have the opportunity to do so again.

Photo of Lord Hylton Lord Hylton Crossbench

My Lords, I apologise for having been half a minute too late to move Amendment No. 2. However, I had been satisfied by correspondence with the noble Baroness, Lady Scotland, and I would only have moved it formally.

I wholeheartedly support Amendment No. 3, because throughout the whole of the proceedings on the previous Bill, at the Second Reading of this one, and at one or two stages since then, I have tried to stress the vital importance of the quality of the first decision in all refugee and asylum cases. If this amendment were approved it would be a mechanism for ensuring that we get a better quality of such decisions.

Photo of The Bishop of Portsmouth The Bishop of Portsmouth Bishop

My Lords, I thank the noble Earl, Lord Attlee, for reminding the House that at Third Reading a "Thought for the Day" rather than a sermon is appropriate at this stage. However, I think the atmosphere this afternoon indicates a certain amount of creative agnosticism about the details of much of this Bill and whether it is actually necessary. I know that feeling is not shared by the Government, but none the less it resonates in this House. I hope that the Minister will look sympathetically on the spirit of the amendment, even if we cannot vote on it. The amendment will send out a signal that there is a safeguard and that the Government are not appearing to be too heavy-handed, especially as some of us think that reducing the number of asylum seekers worldwide is not as necessary as people sometimes make it out to be.

Photo of Baroness Anelay of St Johns Baroness Anelay of St Johns Shadow Minister, Home, Constitutional & Legal Affairs, Shadow Minister, Home Affairs

My Lords, I shall be brief. Of course, like all noble Lords around the House, we have also been concerned about the problem of too low a quality of decision making at first instance. I include the Government in that, because we have all been trying to take the quality further forward; that serves everybody well, and nobody benefits if things go wrong and the whole system gets clogged up as it has done. I was intrigued when I saw the amendment of the noble Lord, Lord McNally, appear yesterday and the approach that it takes. I reflected on our Amendment No. 35, which was published last week and will be moved by my noble friend Lord Kingsland later—I am tempted to say rather much later—today. That amendment adopts a different approach, but with the same objective of trying to ensure that the Home Office is held to account to improve both decision making and the timeframe within which the decisions are made. I am going to reserve our firepower until we get to our preferred mode of approach at Amendment No. 35.

Photo of Lord Rooker Lord Rooker Minister of State (Regeneration and Regional Development), Office of the Deputy Prime Minister, Minister (Office of the Deputy Prime Minister) (Regeneration and Regional Development)

My Lords, I am not the bringer of joy and good tidings. I was not here before 2001, but I often wonder what the debates were like when I was struggling with my constituency before 1997, when there was no decision at all, let alone a high or low quality decision, and the system was in chaos. I sometimes think there is an underlying resentment of the fact that these days almost 80 per cent of first decisions are made within two months. To have no decision, or to have them dragged out for months and years, served the racketeers and vested interests out there that ran the industry. There has been a dramatic change in the past few years in getting speedy decisions for people. They are not all perfect; nobody denies that. Nor do we resent the fact—indeed, we are quite happy—that at various stages we have external monitors.

I can go through the training programmes of the people making the decisions, if need be. We do not take them off the streets and put them to work making decisions straightaway; far from it. However, we are making decisions. It serves the interests of justice, and of the whole asylum system, to have speedy decisions. In some ways, that little catalogue read out at the beginning by the noble Lord, Lord McNally—"a bit of this, a bit of that"—yes; collectively, that approach has halved asylum applications. I am not saying that is a very sophisticated answer, but the fact of the matter is that it has sent the right signal, the various changes reacting proportionately to events as we found them.

This is not the first time the matter of decision making has been raised, and I am certainly not claiming that all decisions are perfect. Clearly, the appeals process shows they are not. In terms of seeking the appointment of an independent inspector to assess the quality of initial decision making, I assure the House that we are committed to making high quality decisions.

We have introduced a range of measures to improve further the quality of the decisions we take. These cover, for example, work on identifying the right candidates for asylum casework—we do not take anyone—looking at additional ways of strengthening our training and development of caseworkers, having samples of asylum decisions quality assured by senior caseworkers and external assessors, extending the feedback we obtain from appeal decisions and doing further work on the country information products and instructions that we issue.

While we consider the quality of initial decisions to be good, we accept that more could be done and we are taking active steps in this area. In taking forward this work, we are keen to involve outside help as appropriate, as we are doing, for example, with the United Nations High Commissioner for Refugees. In some fields of immigration work we have seen the merits of having an independent body or person appointed to provide recommendations to the Secretary of State. For example, we have a monitor for entry clearance work and we recently appointed an independent monitor to see how the non-suspensive appeal powers in the 2002 Act are being used. We have also established the independent Advisory Panel on Country Information to help us to ensure that we produce information of the highest standard about various countries.

So where appropriate, we will consider appointing external people to oversee that work in the Home Office. On the wider issue of quality decision making, we consider that the work we have in hand to build on the existing good level of decision making is the right way forward. We do not think it necessary or desirable to appoint an inspector as proposed in this amendment.

I happily re-state the Government's commitment to high quality decision making. It does not serve anyone if there is poor quality decision making by people who are untrained, unskilled and whose work is not even quality assessed—and that is not the case. The existence of published targets on producing "fully effective" decision letters and the involvement of outside bodies to aid our training programmes and assist in the assessment of our performance shows that we are not afraid to have an external light shone on what we do. But in this case we do not see that an independent monitor would add any value.

The second part of the amendment is misconceived—first, because we are satisfied that the quality of decision making is of a good standard already, although it is capable of improvement; and, secondly, because the new appeal structure set out in the Bill will provide an independent robust means for challenging adverse decisions. The implication seems to be that the appeal structure provided for in the Bill will not be suitable for dealing with the current portfolio of asylum appeals coming its way. There is no basis for that implication and it is not one we can accept.

We have travelled an enormous distance in the past few years in improving the quality of both the people working on asylum casework and the speed of the decisions. That is important. However, they have to be fair and good decisions. Speed is not the over-riding factor, but it was the case when no decisions were being taken. I used to say to my constituents, "Don't ask me to chase them up. Let sleeping dogs lie". They could continue for three or four years. The system was in absolute chaos. That is no way to run a fair system and it was exploited and abused, certainly by advisers who had a vested interest in spinning things out. So improving the speed is fine. We can certainly improve the quality, but at this point in time we do not need an external independent assessor on this part of the process. However, I accept that there is independent monitoring in other parts of the immigration and asylum process, so we are not opposed to that per se.

Photo of Lord McNally Lord McNally Shadow Minister (Broadcasting), Culture, Media & Sport, Deputy Leader, House of Lords

My Lords, it is always a delight to hear a Rooker reply because it is always in three movements. The noble Lord comes out swinging punches at anyone who is available. Then he attacks the Tories. After that the noble Lord feels much better and then gives us some facts to chew over. That response was a perfect example.

I have watched the progress of this issue since I entered the House nearly 10 years ago and I have seen Ministers from both sides trying to grapple with the Rubic cube that is immigration and asylum policy. I am sure that when the day comes—which is perhaps not far off—that a Liberal Democrat is at that Dispatch Box, he or she will be agonising over the same problem. The main point is that whatever has happened in the past the message is that we must do better: we must raise quality and look at best practice in other countries; for example, if the Canadians have a system that seems to work better than ours, we should have a look at it to see if could be applied here.

However, I appreciate the constructive nature of the Minister's third movement and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Lord Phillips of Sudbury Lord Phillips of Sudbury Liberal Democrat 3:45 pm, 6th July 2004

moved Amendment No. 4:

After Clause 8, insert the following new clause—

"LEGAL AID FOR ASYLUM INTERVIEWS

The Lord Chancellor shall make a direction under section 6(8) of the Access to Justice Act 1999 (c. 22) (services which may be funded) to require the funding of attendances by solicitors (and other non-solicitor suppliers accredited for the purpose by the legal services commission) and independent interpreters at interviews conducted on behalf of the Secretary of State with a view to his reaching a decision on a claim for asylum (as defined by section 167(1) of the Immigration and Asylum Act 1999 (c. 33) (interpretation)) in the circumstances where the supplier has certified that he has a reasonable belief that the asylum applicant to be interviewed—

(a) is a torture or rape victim;

(b) has had inflicted on him serious physical harm; or

(c) has a reasonable fear of being tortured, raped or so harmed if returned to his country of origin."

Photo of Lord Phillips of Sudbury Lord Phillips of Sudbury Liberal Democrat

My Lords, I am moving again the amendment which was moved at previous stages of the Bill and hope that on this occasion the Government will have reflected on the need, in terms of justice, effectiveness and efficiency, of allowing the extra categories to be added to those already entitled to legal aid at substantive first interviews. The three extra categories are torture or rape victims, people who have had serious physical harm inflicted on them, or people with,

"a reasonable fear of being tortured, raped or so harmed if returned to . . . [their] country of origin".

One has to return to the untenable position of the Government that those categories are not especially vulnerable. I read before and must read again a letter written to me by the Minister, David Lammy, who said, in relation to further categories of exceptions such as rape or torture victims, that,

"at present"— that was a month ago—

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

Most of the world would find that an astonishing proposition and, with respect, it does not do justice to the standards that this country upholds normally. I shall read noble Lords just one piece of evidence from the Home Office. The interdepartmental working group set up by the Home Office published a report, Speaking up for Justice, which said, regarding the treatment of vulnerable or intimidated witnesses in the criminal justice system generally, that,

"the offence of rape itself"— so rape victims were then considered to be vulnerable—

"is often a traumatic experience for the victim, who is likely to need to be treated with care and sensitivity".

I should not have thought it necessary to read that, but I have done so.

I shall also refer to another source which I have just discovered in support of the amendment—the comments made by the noble and learned Lord, Lord Scott of Foscote, chairman of the European Union committee that was considering the EU directive on legal aid and assistance. On 21 April he said that the article before the committee,

"has the effect that Member States may decide to provide free legal assistance only for the appeal procedure".

He was referring to immigration and asylum cases, so I have begun to realise why the Government withdrew legal aid from this class of cases at the end of March. The noble and learned Lord continued:

"The initial decision-taking process is highly important in getting the correct result in these cases because the asylum seeker in a strange country that he has come to, often not speaking the language of the country, does not know what he needs to say in order to get his case properly considered and in terms of getting a correct result. To underwrite a system under which there is going to be no legal aid at that critical fact-finding stage of the process seems to me to be quite wrong".

No one in any previous debate on similar amendments has advanced the proposition that such advice was not needed in these limited cases.

I have consulted a number of adjudicators and senior personnel—including, on the one hand, legal representatives and, on the other hand, those who have to sit on asylum appeals. Everyone engaged in the system believes that there would be a saving of cost and time and an overall increase in effectiveness if the categories of persons mentioned in the amendment could have legal representation at the initial substantive interview. The simple reason is that the interview is the rock on which everything subsequently is built. The asylum officer's decision is made on the basis of that interview. In so far as it is inadequate, the chances of appeal will be greater and the appeals will be extended with extra costs for all.

Clause 2 creates criminal offences for asylum applicants who do not act as required under Clause 2 at the asylum interview. Thus we have a new position that adds to the already strong case for allowing legal representation for asylum interviews in the three cases specified in my amendment. If the Government continue to say that there have been bad cases of poor representation by legal representatives in the field—and I hope that they will not—all I can say is that it is a major objective of the Legal Services Commission to rectify that state of affairs.

In response to this amendment on 27 April the noble Baroness, Lady Scotland, said,

"The Government have chosen to go for excellence and proper representation at a time when that representation makes a difference".—[Hansard, 27/4/04; col. 756.]

It makes a difference in such cases. Justice points clearly in the direction of allowing the amendments and I hope that at this stage the Government will agree to them so that we can have a more effective, efficient and just system. I beg to move.

Photo of Lord Clinton-Davis Lord Clinton-Davis Labour

My Lords, I rise to support in principle the remarks of the noble Lord, Lord Phillips of Sudbury. I do not expect my noble friend to accept the amendment but I would like him to outline the procedure. I have been much persuaded by what the noble Lord said. In each of paragraphs (a), (b) and (c), the people involved are essentially vulnerable. The Government have nothing to fear from approaching the issue with an open mind.

As the noble Lord, Lord Phillips, said, the initial interview is vital. As has been acknowledged, it does not always come up to scratch. More pity for that. The case for applying legal aid to such people in the initial interview is made out. I agree that there will be a saving of costs and time. While I do not think that my noble friend will accept what has been said, I hope that he will be benign in welcoming the arguments in principle. In my view, the noble Lord, Lord Phillips, argued unassailably.

Photo of Baroness Anelay of St Johns Baroness Anelay of St Johns Shadow Minister, Home, Constitutional & Legal Affairs, Shadow Minister, Home Affairs

My Lords, I echo some of the sentiments of the noble Lord, Lord Clinton-Davis. We need to be open minded about how we debate these matters. Our views on asylum and immigration applications must change over the years as our communities change and the way in which we manage migration changes.

I have problems with some of the amendment's drafting. It begins with the word beloved of oppositions and hated by governments: "shall". It says,

"The Lord Chancellor shall make a direction".

A direction is imposed on the Lord Chancellor: whatever he does he must pay his money on particular cases and say that there will be legal aid.

The Minister knows that I use "shall" in amendments on a number of occasions. Whenever I do, I always have at the back of my mind that if the amendment is not probing but concerns a matter I wish to press, anything that I provide in the amendment must be so obviously necessary to all noble Lords that they would stand on their heads if it did not happen.

I do not think that this amendment can justify a "shall", but it justifies proper considered debate, particularly as we have discussed the issue of whether rape should be included in the list on other Bills. I know that there has been a division of opinion over many years. I am minded of situations in the Congo or in Darfur where rape is an everyday fear, not necessarily because the Government in place are carrying out rape but because they are unable to protect their citizens from rape at the hands of armed militia.

There is a reasonable fear of rape, torture or suffering serious physical harm in too many countries throughout the world. The question is whether our Lord Chancellor has imposed on him the duty to pay legal aid when someone comes to this country to seek either asylum or immigration and claims that he has suffered what is unacceptable.

I agree with the noble Lord, Lord Phillips of Sudbury, that for anyone who has suffered under paragraphs (a) or (b), or has reason to believe that he might under paragraph (c), it is unacceptable to him, but should it then trigger automatic legal aid for the substantive first interview, as the noble Lord said, for immigration and asylum? That is when it becomes more difficult, because nowhere does the new clause say that the suffering the person has endured is as a victim of a crime rooted in political persecution.

If one intended to vote on the amendment and first to take it apart, one then could ask, "What if I were involved in drug running in another country—Afghanistan or wherever around the world—and I upset my drug running compatriots? Should I, because I have a reasonable fear of being bumped off by them, be able to come here and expect automatically to receive legal aid in a claim for asylum?".

I take an extreme example, but it is simply to show why it was right for the noble Lord, Lord Phillips of Sudbury, to table the amendment to make us keep an open mind and to take forward the debate, but why it would be wrong for the amendment to go in the Bill. I know that what I am saying will be controversial to some members of my party, but the issues raised must not be allowed to go away. We have a responsibility in our community for looking after people who seek refuge here and we need to keep those matters under consideration.

Photo of Lord Filkin Lord Filkin Parliamentary Under-Secretary, Department for Constitutional Affairs, Parliamentary Under-Secretary (Department for Constitutional Affairs)

My Lords, the amendment, which the noble Lord, Lord Phillips of Sudbury, has tabled not for the first time on the Bill, seeks to include a number of additional categories in the exceptions listed in the accompanying directive to the Community Legal Service (Scope) Regulations 2004. The essential thrust of the regulations is, as the noble Baroness, Lady Anelay, said, to place an obligation on the state to provide funding for the attendance of a lawyer and an independent interpreter at substantive IND asylum interviews.

The issues have recently been before us. While the regulations were made under the Access to Justice Act 1999, it was only on 31 March that the House passed them. Although the noble Lord, Lord Phillips of Sudbury, has been redoubtable in arguing that the regulations are wrong, it is a fact that this House passed them only a matter of weeks ago. Therefore, in procedural terms, the noble Lord is now saying to the House that we should use primary legislation to reverse something that this House passed in secondary legislation only a matter of weeks ago. He is perfectly entitled to do so; I simply mark to the House that it seems slightly strange to go back over this process so soon.

That of course is not a sufficient answer to the challenge that the noble Lord has made, and perhaps I may explain, first, why we introduced the regulations. The previous practice was that funding was available for a representative—usually an agent or an outdoor clerk working for a legally aided organisation—to sit in on the asylum interview. As I and other Ministers said on previous occasions, we could see little evidence that that added significant value to the process. In most cases, the role played by the person accompanying the asylum seeker was simply that of a note-taker as he was not meant to intervene during the interview. In addition, the interviews are non-adversarial, fact-finding processes, and remedies are available to the client to deal with discrepancies or disputes after the interview.

When we passed the order a matter of weeks ago, we also explained that there were important exceptions where it was right that an applicant's representative should be present at the interview. We signalled those as cases involving unaccompanied minors, applicants going through fast-track initial decision processes, and those suffering from a recognised and verifiable mental incapacity, which would make it impractical to undertake an interview without support. It also includes applicants interviewed at a police station and those who pose a threat to national security.

My noble friend Lord Clinton-Davis, in his usual courteous but challenging way, said that surely such a move would make a saving. I do not believe that that is the case. The amendment includes not only people who claim that they have been torture or rape victims (our sympathy must go out to them) or those who are seriously physically harmed (again, wherever that is true, one's sympathy would be with them) but also those who had a reasonable fear of being tortured, raped or so harmed. I suggest that that includes the vast majority of people who apply for asylum in this country—for obvious reasons because that is the central thrust of the asylum international obligations.

Therefore, in practice, the effect of the amendment would be that in virtually all cases a lawyer and a second interpreter would be present at the interview. That would not merely be a backward step; it would take us further backwards towards spending relatively scarce legal aid money in areas where there is not a good case to do so.

Nevertheless, that still leaves the issue, about which the House should be concerned, of whether people who have experienced rape or torture or who have a genuine fear will still receive a fair hearing. My first point is that it may be desirable for some clients to bring a companion to the interview for medical or emotional support. That does not mean a lawyer; it means someone who will give them support. But it is clear that that is the existing IND practice in such cases, and there is absolutely no impediment to people bringing someone along in those circumstances.

The IND protocol confirms that any other person may be allowed to accompany an applicant to an interview at the discretion of the interviewing officers. The IND policy sets out clearly that that is how applicants who are particularly vulnerable—those whom we are talking about—should be treated.

Again, in process terms, what is needed is not a lawyer who sits saying nothing during an asylum interview but one who tries to ensure that a vulnerable applicant puts before the IND interviewing officer all the written representations with supporting medical evidence to support and bolster his case for why he has been tortured or why he has a genuine fear of torture. It is far better if lawyers spend their time preparing and presenting a case to put to the IND interviewer rather than sitting there saying nothing but taking notes.

I also draw attention to the Medical Foundation for the Care of Victims of Torture. I am informed that when that organisation interviews alleged victims of torture, it insists that a legal representative should not be present.

I turn to the argument that the state should fund not one interpreter but two. But what do we do if they disagree with each other? Do we fund three interpreters? That seems to me to be—how can I put this politely?—unnecessary.

A point was raised about interviewing people who have a genuine fear or who have genuinely experienced torture or rape. We must do our utmost to ensure that that is done with sensitivity and care, but this is not the way to do it.

As a crumb of comfort to the noble Lord, Lord Phillips, I draw his attention to our previous debate on these regulations. I think that on that occasion I dealt with this matter, and I was probed on what was meant by "mental incapacity". We define it as a person lacking capacity if, at a material time, he is unable to make a decision for himself in relation to the matter because of the impairment of, or disturbance to, the functioning of the mind or brain. In other words, if, as part of his professional duties, the solicitor preparing the case for the asylum applicant genuinely thinks that, because of his mental impairment, that person is incapable of making his case, the regulations already allow him an opportunity to do so.

For those reasons, while I respect the vigour with which the noble Lord, Lord Phillips, put his case, I do not feel that we would be wise to accept it.

Photo of Lord Phillips of Sudbury Lord Phillips of Sudbury Liberal Democrat

My Lords, I am grateful for the Minister's reply. He said that a legal representative would provide little added value. But that was answered by the quotation that I gave from the noble Baroness, Lady Scotland, which signals a new regime and one which, by April next year, will see legal representatives accredited by the Legal Services Commission.

When the Minister said that there would be no saving, he gave no evidence for that proposition. I have discussed this matter with several adjudicators and senior people in the service, and they all say that they are bedevilled by unnecessary appeals and lengthy timescales because of crap first interviews.

The next point made by the Minister was that the majority of claimants would fall within the exceptions. No evidence is adduced and that argument has not been adduced at previous stages of the Bill.

I was very disappointed with the remarks of the noble Baroness, Lady Anelay. It was the noble Lord, Lord Kingsland, the Front Bench spokesman for the Conservatives, who, when we considered the statutory instrument on 31 March, made clear that if the Government persisted with their proposal, this amendment would be brought forward in this Bill to reverse the withdrawal of legal aid. I am most disappointed that today the Conservatives are not supporting what they supported then. If they had unease about my drafting, which has not altered over the three stages of the Bill, it would have been helpful to have heard about it earlier.

Photo of Baroness Anelay of St Johns Baroness Anelay of St Johns Shadow Minister, Home, Constitutional & Legal Affairs, Shadow Minister, Home Affairs

My Lords, perhaps I may intervene as I have been named. On two occasions at the end of last week, I e-mailed the noble Lord with my comments. Unfortunately, on both occasions I received the message "system unavailable". I do not know whether the noble Lord's e-mail address has changed or whether the PDVN has messed things up, but I did make an attempt to notify him of my concerns.

Photo of Lord Phillips of Sudbury Lord Phillips of Sudbury Liberal Democrat

My Lords, I am grateful to the noble Baroness, but I have a pigeon hole and a telephone.

I believe that having a friend present at the interview is wholly inadequate when one considers the risk in which this category of persons is placed. No reference was made to the observation of the noble and learned Lord, Lord Scott, or to the imposition of criminal sanctions under Clause 2 of the Bill. I add that the Legal Services Commission does not even have discretion to allow legal aid in a particular case. For all those reasons, I wish to test the opinion of the House.

On Question, Whether the said amendment (No. 4) shall be agreed to?

Their Lordships divided: Contents, 66; Not-Contents, 132.

Division number 1 Private Parking: Ports and Trading Estates — Asylum and Immigration (Treatment of Claimants, etc.) Bill

Aye: 64 Members of the House of Lords

No: 130 Members of the House of Lords

Ayes: A-Z by last name

Tellers

Nos: A-Z by last name

Tellers

Resolved in the negative, and amendment disagreed to accordingly.

Clause 9 [Failed asylum seekers: withdrawal of support]:

Photo of Baroness Park of Monmouth Baroness Park of Monmouth Conservative

moved Amendment No. 5:

Page 10, line 33, at end insert—

"( ) The Secretary of State shall, before commencement of this section, publish regulations under paragraph 2(1)(d) of Schedule 3 to the Nationality, Immigration and Asylum Act 2002 (c. 41) (withholding and withdrawal of support) disapplying paragraph 1 of that Schedule in cases of citizens of Zimbabwe to whom that paragraph would otherwise apply by virtue of the provisions of that Schedule other than paragraphs 4, 5 and 7."

Photo of Baroness Park of Monmouth Baroness Park of Monmouth Conservative

My Lords, in the debate on Report on 18 May, the noble Lord, Lord Bassam of Brighton, said (at col. 711 of the Official Report) that the Government's position was that it would be inappropriate to return Zimbabwean asylum seekers to Zimbabwe at this time. Earlier, he said that should an appeal fail for that individual,

"return to Zimbabwe would be safe".—[Hansard, 18/5/04; col. 710.]

I refer the Minister to the debate on Zimbabwe in another place on 1 July for a true picture of how dangerous life can be in Zimbabwe today for anyone returning after having sought asylum in the UK. We know of at least one such case where a man was seized by the CIO as he got off the aeroplane having been identified by another Zimbabwean whom he had known while seeking asylum who was a CIO spy.

I was glad to see in Hansard of 28 June that the noble Lord, Lord Rooker, said that,

"we are committed to offering support under Section 4 to those who cannot maintain themselves and who are not in a position to leave the UK immediately".—[Hansard, 28/6/04; col. 19.]

How can that be squared with the present requirement that those Zimbabweans who have appealed and failed must, after NASS has withdrawn both accommodation and support, apply for voluntary repatriation and must leave the UK at once? I recognise that there cannot be a blanket provision simply on the grounds of their nationality to exempt all Zimbabwean asylum seekers, but I hope that the noble Lord will recognise that in a number of cases the quality of both the legal advice and the country information on which decisions to refuse asylum have been based in the past have been seriously flawed. According to the Medical Foundation for the Care of Victims of Torture, some well founded claims have been arbitrarily disbelieved.

We are told—I am very glad to hear it—that things will change. That is why I believe it to be necessary in the Bill to provide that Zimbabwean asylum seekers shall be treated as a special case so that the Secretary of State can be expected to exercise his right to offer asylum, whether on the ground of discretionary relief or humanitarian protection. My amendment will, I hope, have that effect. It seems to me that the clear intent of the original Schedule 2(1)(d) and 2(2) is precisely to enable the Secretary of State to disapply the withdrawal of support in certain circumstances.

There are cogent reasons why the Zimbabwean asylum seekers, like those from Iraq, should be recognised as a special case, warranting special treatment. There is no doubt that Zimbabwe is a country where violence, torture and death are endemic threats for those who are perceived as threats to the regime. Those who have sought asylum here are, for the most part, people with professional qualifications—teachers, doctors, engineers and computer experts—and some brave political opponents of the regime, who come here, often with great difficulty, believing that Britain, with its long history of giving refuge, will take them in, allow them to maintain their skills and to be useful to the country that has taken them in. They are a vital part of the professional infrastructure that Zimbabwe once had and will need again.

It is not their fault that they are not allowed to work. I understand that they may not be eligible to do community work either. They cannot go home and here they face destitution under the present law, or they must work illegally. A headmaster is working as a cleaner and a senior civil servant is working as a bus driver. We are talking about a limited number of people, since the visa regime of 2002 was imposed, but they should be a significant group when Zimbabwe has to be rebuilt.

On 1 July the Secretary of State for Foreign and Commonwealth Affairs, listing what we have done for Zimbabwe, said:

"We have given asylum to those persecuted by Mugabe and allowed others at risk to remain in the United Kingdom for now".—[Hansard, Commons, 1/7/04; col. 456.]

Later he included that in a list of 10 actions designed, he said, to keep Zimbabweans alive. He did not mention that that meant barely alive and in a state of destitution which they cannot remedy because, despite their own wish to do so, they are not allowed to work. Later he spoke of our readiness to help to rebuild Zimbabwe. These are some of the very people who should play a major part in that.

As it is, once they are evicted from their accommodation they have no address and dare not exist. I know a charity which offered to help some particularly tragic cases, but it could not do so because the people had vanished, at best to sleep on some anonymous floor—genuine asylum seekers do not have mobile phones. It is unworthy of our country that this should happen to courageous men and women who trusted us. When we are told that the Home Office works closely with other departments and when joined-up thinking is the watch word of the Government, I do not understand how the Secretary of State for Foreign and Commonwealth Affairs can speak as he did, I am sure in good faith, while the Home Secretary is not prepared to exercise the discretionary right, which a House of Commons committee has urged him to do. We are not talking of thousands of people, but of a significant and potentially valuable group who will be only too glad to serve the country in some way but are instead being driven into destitution.

HMG are obsessed with their desire not to play into Mugabe's hands by enabling him to say that we are acting like a former colonial power. They need to remember that the people of Zimbabwe do not think like that. They expect us to behave with decency and humanity and to help them in one of the few areas where we can do so. They look to us to remember them. They fear being forgotten and their instinct has been to turn for help to a country with which they have many natural links through common, educational, sporting and legal systems for a start.

How do HMG think that the people of Zimbabwe will feel when the present asylum seekers return home to rebuild the country and their experience of us has been enforced destitution? I very much hope that the Government will be able to accept my amendment. It is very small and is designed to meet a specific and unique situation. All that is needed is for the Secretary of State to exercise his power to grant a temporary right to remain in the UK with its concomitant rights to accommodation and support for a relatively small number of people, asylum seekers—not of course the crooks of whom we have recently heard—in a situation which is finite. I beg to move.

Photo of Lord Avebury Lord Avebury Shadow Minister, Foreign & Commonwealth Affairs

My Lords, when the blanket suspension of the removal of Zimbabweans was introduced, it was largely at the behest of my noble friend Lady Williams of Crosby, ably backed by the noble Baroness, Lady Park. It was right that that was done at that time. But I am not sure that setting it in stone, as the noble Baroness advocates, is the right solution and I shall explain why.

Certainly, there are Zimbabweans going through the system and coming out at the other end whom one considers should have received asylum and did not, when by all accounts they had extremely good reasons for fearing persecution. The noble Baroness has mentioned some of the examples about which we all know and which have come to us via the medical foundation and so on. On the Friday before last I met one such person at a book launch of Andrew Meldrum's autobiographical account of the situation in Zimbabwe. He was a recognised member of the MDC, who had played a prominent part in its activities and yet somehow the asylum system had failed him.

The Zimbabweans are the only nationality to whom this peculiar rule applies. When they reach the end of the process they are not forced to return, but they are encouraged to do so, as the noble Baroness has explained, at the expense of the IOM. We have ceased to have blanket suspensions for removals to particular countries. The noble Baroness mentioned Iraq which is one of the countries to which we are now returning people, as are Somalia and Afghanistan. Although the conditions in Zimbabwe may be very dreadful, as I am sure they are for anyone who is in the least bit unpopular with the regime, and although matters may be getting worse, I am not at all sure that they are so uniquely dreadful that one would put Zimbabwean failed asylum seekers in a different category from those who come from Somalia, Afghanistan or Iraq.

In correspondence with Home Office Ministers I have suggested that we take a more distinguishing approach to those who have been through the system. As the noble Baroness is aware, quite a few came as a result of the provision of false documentation and criminal activities by a certain organisation in Birmingham, which I understand is now under investigation by the police. It would be useful if the Minister could say something about the progress being made in trying to stamp out that organisation and dealing with the tens or hundreds of people—I do not know how many—who managed to get through the system as a result of those criminal activities. At the same time, I would be warmly in favour of reviewing the failures of some people who, on every possible ground, we believe should have received asylum and who are fully supported by the MDC, by the Zimbabwe Association and by other organisations that can vouch for them as bone fide refugees who suffered at the hands of Mugabe.

I hope that the Minister, while not necessarily being able to accept the amendment as proposed by the noble Baroness—I am sure she would not press it to a Division—may be able to say something about a more discriminating approach to the Zimbabweans. Although the noble Baroness says that the numbers are not very large, I worked out that from the beginning of 2002 onwards there might have been a couple of thousand people who had been all the way through the system and had come out the other end but were living on thin air because they were not supported by NASS or in any other way. Only a handful of those had accepted the assistance of IOM to go back to Zimbabwe—I think it was 47 in 2003. We cannot just let a couple of thousand people rot. Many of them, as the noble Baroness, Lady Park, has said, would have a useful contribution to make in our own society as doctors and so on.

I appeal to the Minister to treat Zimbabweans in a special way in one sense: to allow them to have a review where there is solid evidence to show that a mistake was made. That is either because, as the noble Baroness said, they did not have good representation, or because there was very inadequate country information at one time. But we should not have a blanket policy of not repatriating anybody to Zimbabwe, because we know there are many people here who we do not want and who are not legitimate refugees but who obtained their status by false pretences.

Photo of Lord Rooker Lord Rooker Minister of State (Regeneration and Regional Development), Office of the Deputy Prime Minister, Minister (Office of the Deputy Prime Minister) (Regeneration and Regional Development)

My Lords, I say at the outset, by way of a conditional apology, that I do not have any information about the current police enquiries. I suspect, however, that if I did, it would be quite inappropriate to set it out on the Floor of the House at the moment because the enquiries are ongoing.

I do not have any major good news for noble Lords who have raised this issue; I accept this is not the first time that it has been raised. There is, I hope, an acceptance of what I said at an earlier stage: to make sure our language is correct. I think both the noble Baroness, Lady Park, and the noble Lord, Lord Avebury, used the term "failed asylum seekers", but were not referring to the people we are referring to here every time. The effect of the amendment would be that support could not be withdrawn from failed asylum-seeking families under Clause 9, or where they had failed to comply with a removal direction. We discussed the issues involved on Report, and I suspect it was discussed at earlier stages as well. The Government are not currently enforcing the return of failed asylum seekers, other than for people with serious criminal convictions and others whose presence is not conducive to the public good. That is a general statement of policy, which the noble Lord, Lord Avebury, would agree with: not having a blanket ban.

We cannot accept the amendment, as we do not believe it is right that families from Zimbabwe should, as a matter of course, continue to receive support indefinitely. As the noble Lord said, the suspension of removals of failed asylum seekers to Zimbabwe, announced in January 2002—to a large extent in this House, as I had day-to-day responsibility for the matter at the time—was in response to concerns about the then serious deterioration of the situation in Zimbabwe, in the build-up to the presidential election held in March of that year. We did not, at that time, regard it as unsafe to return failed asylum seekers to Zimbabwe, but in view of the rapidly changing conditions we considered it would be appropriate not to enforce the returns.

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

There is no difference between the government departments in the understanding of conditions in Zimbabwe. The Home Office's Country Information and Policy Unit produces country information materials which are used as the background against which the asylum applications are considered. As I have said, the unit maintains close and regular contact with the Foreign and Commonwealth Office, and consults it about the country information materials prior to their publication.

We do, of course, recognise that conditions in Zimbabwe are such that there are individuals who are able to demonstrate a need for international protection. Where they meet the definition of a refugee, under the 1951 UN Convention on Refugees, asylum is granted. There may also be individuals whose circumstances make them particularly vulnerable, and who would engage our obligations under the European Convention on Human Rights. Where this is the case, these individuals will be granted humanitarian protection or discretionary leave.

If you come to the end of the line and an application is refused, there is a right of appeal to the independent authorities. Should the claim be refused, and any appeal be unsuccessful, that means that, for that individual, return to Zimbabwe would be safe. That is why we consider it reasonable to expect an individual in that position—where there is no successful claim under asylum or human rights—to leave voluntarily instead of being supported indefinitely at the taxpayers' expense.

It is worth making a note in respect of the voluntary assisted returns and reintegration programme operated by the International Organisation for Migration. It is open to all failed asylum-seeking families to apply to the International Organization for Migration to take part in this programme, and we would expect families to take up the opportunity to make a return home. People returning under the programme are offered reintegration assistance. An application to the International Organisation for Migration would clearly be a practical way for a family to demonstrate that they were seeking to leave voluntarily. Zimbabwe nationals are in fact leaving in a voluntary manner under this programme. It is not as though people are not returning on a voluntary basis under the agreed programme.

Photo of Lord Avebury Lord Avebury Shadow Minister, Foreign & Commonwealth Affairs

My Lords, can the Minister say how many are involved? I have a figure from the IOM of 47 people who had accepted their assistance throughout 2003. Have there been any more since the beginning of 2004?

Photo of Lord Rooker Lord Rooker Minister of State (Regeneration and Regional Development), Office of the Deputy Prime Minister, Minister (Office of the Deputy Prime Minister) (Regeneration and Regional Development)

My Lords, I shall get the latest figure. I am not making a point about the numbers. The point is that it is happening. I merely have a figure for the number of applications for refugee status. In terms of those leaving, if there is an up-to-date figure for the current year, I shall get it. If I cannot obtain it before I sit down, I shall give it in a later debate.

We already promote the assisted returns programme through a variety of means, and have discussions with non-governmental organisations such as the Refugee Council and the International Organisation for Migration. Information is available at reporting centres and in letters sent at various stages of the asylum process. Our view remains that, although it would be safe for failed asylum seekers to return voluntarily to Zimbabwe, in the wider context of the Government's position on Zimbabwe it would be inappropriate to return them forcibly at this time.

We will, of course, assess every case on its individual merits before a decision is made to withdraw support. I emphasise that the Secretary of State will not certify under Clause 9, except where a family is failing to take reasonable steps to leave the UK or place itself in a position where it can do so, and has no reasonable excuse for its failure to do so. That is the current position on Zimbabwe. That is not a Home Office position, or a Foreign Office position. It is the Government position. The departments do not disagree with the policy I have enunciated in answer to this amendment.

Photo of Baroness Park of Monmouth Baroness Park of Monmouth Conservative

My Lords, I have listened carefully to the Minister. I find it extraordinarily difficult to understand how it can be right to consign people who have made an assessment for themselves that it would be dangerous to return—an assessment which would be supported by many people—to destitution.

I would have liked to hear more about the possibility raised by the noble Lord, Lord Avebury, of the Secretary of State being prepared to consult, or receive advice and recommendations from, skilful and well informed people, who would perhaps be able to make the case better when it has been badly made, as many of them have done in the past. All I am asking is for the Secretary of State to use his powers. As I feel very strongly about it, I wish to test the opinion of the House.

On Question, Whether the said amendment (No. 5) shall be agreed to?

Their Lordships divided: Contents, 35; Not-Contents, 123.

Division number 2 Asylum and Immigration (Treatment of Claimants, etc.) Bill — Do not withdraw support from failed asylum seekers who are citizens of Zimbabwe — rejected

Aye: 33 Members of the House of Lords

No: 121 Members of the House of Lords

Ayes: A-Z by last name

Tellers

Nos: A-Z by last name

Tellers

Absent: 534 Members of the House of Lords

Absents: A-Z by last name

Resolved in the negative, and amendment disagreed to accordingly.

Photo of Lord Avebury Lord Avebury Shadow Minister, Foreign & Commonwealth Affairs

moved Amendment No. 6:

Page 11, line 16, at end insert—

"(6) The Secretary of State shall, before the commencement of this section, and thereafter from time to time as he may decide is necessary, publish detailed guidance on how the provision of this section should be implemented.

(7) Guidance published under subsection (6) shall not be made unless a draft of a statutory instrument containing the guidance has been laid before Parliament and approved by a resolution of each House."

Photo of Lord Avebury Lord Avebury Shadow Minister, Foreign & Commonwealth Affairs

My Lords, if the Government will not agree to leave out Clause 9, the very least there should be is guidance on its implementation, so that the manner in which the removal of support from families when they refuse to comply with removal directions is clearly set out in accordance with the Nationality, Immigration and Asylum Act 2002. In Schedule 3 to that Act, paragraph 2(1) provides that support shall not be withheld nor withdrawn from children, and paragraph 2(3)(a) provides that the schedule does not prevent the exercise of a power or the performance of a duty to the extent that this is necessary to avoid a breach of a person's rights under the ECHR or European Community law.

We are not happy to rely on vague ministerial assurances to ensure that there are proper safeguards here to prevent breaches of Article 3 of the ECHR. Our amendment provides that the section does not commence until this guidance is published and understood by those involved in its implementation, but that is very much a second best.

We would urge the Government to think again about Clause 9 as a whole, which we have argued all along is inconsistent with the UN Convention on the Rights of the Child, the Children Act 1989 and the Children (Scotland) Act 1995. The Government have failed to explain how the clause is to be operated in a way that is compatible with either of those Acts, or the new provisions in the Children Bill to ensure that children are safeguarded and their welfare promoted. The amendment would ensure that the best interests of children are protected and promoted so that they do not face destitution or separation from their families.

In the Home Affairs Select Committee in another place the then Minister, Beverley Hughes, highlighted the contradiction between Home Office policy in this area and the Children Act 1989 by stating, in relation to the separation of families:

"I hope it will not come to that, and I do not intend [that] it should come to that . . . I do not think that it is in the best interest of those children, and I hope it would not come to that in any individual circumstance at all".

The Government have yet to explain how that hope could be made a reality. They cannot rely on the co-operation of those affected, and when all else has failed, local authorities will have no choice but to separate children from families, because the Government have made them destitute. At the Report stage, in response to questions about how local authorities would be expected to undertake their duties in respect of children, the noble Lord, Lord Bassam, said:

"They can use Section 17 . . . but only to support the child, and not the family as a whole. They can . . . use Section 20 of the Children Act. So options might include . . . being looked after by a family friend or relative, or the use of foster arrangements. We want to continue the dialogue with the Local Government Association on the workability issues arising from [this] legislation, and we will consider how best guidance could be given to local authorities".—[Hansard, 18/5/04; col. 701.]

Sections 17 and 20 both rely on the co-operation of parents in agreeing to voluntary separate accommodation of the child. Under both sections, the welfare of the child must be the paramount consideration. Section 17 provides that local authorities must promote the upbringing of the child within the family wherever that is consistent with the child's safeguarding and welfare. The law in this area recognises the critical importance of the family and parental attachment in children's welfare and development and provides that children be separated from their parents only when being with them is more harmful than not. It was never envisaged at the time Section 17 was drafted that the family might have become destitute as a result of the Government cutting off support so as to coerce them into leaving the country when their asylum appeal rights had been exhausted.

The Government have relied on the safeguards in Schedule 3 to defend Clause 9, yet in the chaos that ensued in the eastern European accession states cases, NASS ignored the existence of those safeguards, despite the fact that the date was set months in advance. NASS did not assess individual cases and that resulted in many legal challenges, so that the High Court had to ask it to stay evictions to prevent its being overwhelmed by applications for relief. The noble Lord, Lord Bassam, confirmed in Committee that NASS is to undertake individual assessments retrospectively, and that experience gives us no confidence that, for these provisions, an assessment will be made in advance sufficient to ensure that no breach of our ECHR obligations arises.

Similarly, the Government have been challenged recently on their policy of refusing support to asylum applicants under Section 55 of the 2002 Act, and have been forced to revise that policy. As a result of the Court of Appeal judgment in the case of Limbuela and others, when it was found that the Home Office had acted unlawfully in refusing accommodation to homeless asylum seekers, the Government have been forced to produce new policy guidance on the implementation of Section 55, to ensure that further breaches of human rights are avoided, and that the courts are no longer the first point of proper decision making on a time consuming and expensive case-by-case basis.

We noted the resistance of the noble Lord, Lord Bassam, to the comparison between what happened in those cases and what may now happen in the cases involving people affected by Clause 9, but the implementation of Clause 9 will create a procedure that is even less clear, more complex and ultimately more costly. The test under Clause 9, to establish whether families,

"failed without reasonable excuse to take reasonable steps . . . to leave the United Kingdom voluntarily", is going to be more difficult to apply than the Section 55 test of whether a person claimed asylum,

"as soon as reasonably practicable", which has resulted in so much litigation. We could see no grounds for confidence that the doubts here also may not have to be resolved in the High Court unless there is greater clarity, and we remain apprehensive about the risks to children and that the courts and the local authorities will be left to pick up the pieces.

We also registered the argument of the noble Lord, Lord Bassam, that our amendment giving practical effect to the safeguards in Schedule 3, by ensuring an individual assessment of need before support is withdrawn, was unnecessary because that assessment would be made when the family is interviewed and they have an opportunity to explain why they have not left the country voluntarily and what steps they were taking to do so. He said that was precisely what the amendment sought to do, but he must have realised that it was nothing of the kind. That interview would be concerned with persuading the parents to comply with the requirement to leave the country and would be conducted by immigration officers who would have no professional competence to evaluate the situation of the children in the event of their parents' non-compliance.

Previously, at the Committee stage, in rejecting our amendment to ensure that social workers would not be required to operate outside of their duties under the Children Act 1989, the noble Baroness, Lady Scotland, said:

"All I can do is create a framework where the effect of what we anticipate is managed in a way that we hope will not inure to the disadvantage of the families—and they will include children".—[Hansard, 5/4/04; col. 1699.]

In other words, the clause relies on hope that it will not result in breaches of the Children Act. This is our third attempt to save the Government from the consequences of leaving such an important matter to chance. Without the safeguards that we propose, Clause 9 is a recipe for chaos, confusion and litigation. I beg to move.

Photo of The Bishop of Portsmouth The Bishop of Portsmouth Bishop

My Lords, I should like to speak to the amendments which are tabled in my name as well. Amendment No. 6 is second-best, while Amendment No. 7 is what we really want. I am sorry to have missed debates on this matter at previous stages of the Bill, but I have followed them with keen interest, and I promise that I will be brief.

I have frankly been disappointed that at every stage the Government have not seen fit to accept any amendments to the clause that would have provided increased protection for children. I remind your Lordships that at all stages the aim of those who oppose this clause has been to ensure that children are best protected and that their best interests are safeguarded.

The clause is not about voluntary departure. It envisages the separation of children from their families. That, it seems to me, is fundamentally wrong, a view shared by my colleagues on these Benches. It is something of an irony that, in the context of the Government bringing forward the Children Bill, this loophole is not closed.

I accept the Government's aspirations that people will decide to co-operate voluntarily with removal. At all stages of the Bill, Ministers have sought to assure this House and another place that it is their hope that people will co-operate. Ministers have argued that if they do not, parents will be putting their children at risk by their actions. But it simply cannot be acceptable for this House to pass legislation on the basis only of a leap of faith, in the hope that its worst effects will not be felt by children. It is not acceptable for the Government to argue that if children are affected, the fault lies with the parents. The Government, in my view, must take responsibility for their inadequate legislation.

In addressing your Lordships, I am grateful to the Children's Society and the Refugee Children's Consortium for their continued lobbying on this clause and their commitment to the rights and needs of refugee children. I hope very much that the Minister will be able to provide some further information and assurances that will help to allay some of their fears. If not, and were the opinion of the House to be tested, I fear that I would vote against the clause and invite other noble Lords to do the same.

Photo of The Earl of Listowel The Earl of Listowel Crossbench

My Lords, I support both amendments, Amendment No. 7 being particularly desirable. I should like the Minister to say more about the consultation prior to the implementation of the clause—if it is implemented—on 1 September. I declare an interest as a member, several years ago, of a sponsored visit to Angola by UNICEF to examine the course of the journey of the refugee child. I should also like to take this opportunity to ask the Minister to convey my thanks to his colleague, the noble Baroness, Lady Scotland of Asthal, for her meeting with me in the past, her correspondence, the meetings she has arranged between officials and the Medical Foundation for the Care of Victims of Torture and the Refugee Children's Consortium. They have been very helpful indeed.

A specific concern has been expressed by the Medical Foundation for the Care of Victims of Torture that vulnerable families would be caught by these provisions. A reassurance that there will be thorough consultation would be very helpful.

The timing of the clause seems very strange. Given what the noble Lord, Lord Rooker, said earlier, it is admirable that there has been such a reduction in the number of applications for asylum. In a period of months, 80 per cent of asylum claims are processed within two months. That is a grand achievement on the part of the Government. Twice as many failed asylum claimants are now returned to their home country. Good progress is clearly being made. So is this the right time to introduce such a draconian measure, because draconian it certainly is? The clause envisages a situation in which children and families will be put into the street. The Government have made it quite clear that they are also prepared to accept children being taken into care as a result of the clause. This is a very serious matter for these families.

We still do not know how many children are likely to be affected by this. Any further clarification about the numbers involved would be very welcome.

I emphasise again that it would be so helpful to have from the Minister some reassurance that there will be thorough consultation before the implementation of the clause, if it is to be implemented. It has been made very clear in discussions on the Bill that the consultation prior to its being brought before Parliament was not adequate. One understands this—the Home Office has very serious responsibilities. It is often the case with Home Office Bills that there has not been the time to consult properly.

When we are dealing with children and families, no matter how irresponsible the parents may be, we have a special duty to consult and think very carefully about what guidance and regulations will determine the behaviour of immigration officers. I look forward to the Minister's response.

Photo of Lord Rooker Lord Rooker Minister of State (Regeneration and Regional Development), Office of the Deputy Prime Minister, Minister (Office of the Deputy Prime Minister) (Regeneration and Regional Development)

My Lords, let me make it clear, for the avoidance of doubt—as people do take account of our debates in this place—that Clause 9 is headed:

"Failed asylum seekers: withdrawal of support".

The people we are talking about are failed asylum seekers. They have been through the whole process and have no other avenue open to them because their claim has failed. They have no right to remain in the country, at the taxpayers' expense. That is what we are dealing with, although it does not always appear like that when we use the necessary shorthand in our speeches dealing with individual cases.

I should like to answer a point raised by the right reverend Prelate the Bishop of Portsmouth. He said that he had not been present at the debates but he had followed all the proceedings in detail. Well, he got one thing wrong. The Government have listened on this issue. We amended the Bill—in the Commons, true—to introduce a right of appeal to the asylum support adjudicator. It may have been a fault that the Bill was introduced without the right of appeal, and putting it in was the right thing to do. I want to make that point, because otherwise the folklore gets out that the Government have not been listening, are ramming it through Parliament and are not worried about children.

The consequence would be an invitation for the very irresponsible parents to whom the noble Earl referred to run this country's immigration policy. That is what the implication is, if we do nothing about the situation. The noble Earl would not say that, and I would not expect him to. But the consequence is that notwithstanding the irresponsibility of the parents, we have to look after the children. We would be saying to those irresponsible parents, "You run the country's immigration policy. If you have failed in your asylum case and you decide not to co-operate and not to return voluntarily, it does not matter. Because of the overwhelming needs of the children, whom you are using as a shield, you can stay for ever and the British taxpayer will pay for you". That is simply not acceptable.

This is not an issue that has popped up out of nowhere. I realise that the Government never consult enough—I accept that and apologise for it. They do not introduce all the draft Bills that they should. However, the clause did not appear on a whim of the Home Secretary early this year or late last year, when the Bill was introduced. It is not as though such issues had not been discussed; we looked at the evidence and tried desperately to make a reasoned, proportionate response to the issues that arose at the time, and are with us now—to a lesser extent, I accept. But it is no reason to withdraw the clause and take away the idea just because the numbers have gone down. They have done so partly as a result of the series of issues to which the noble Lord, Lord McNally, referred earlier.

There are two issues involved: first, the prospect of ameliorating the clause through guidance; and, secondly, the proposal to leave the clause out, which is a matter of some principle that I know has been debated previously in the House. I assure noble Lords that detailed guidance will of course be published, but it will not be issued in the form of a statutory instrument of secondary legislation. That would not be the normal process in any event, although I realise that that is one way of securing a debate in this place.

It is common practice for guidance of that nature to be placed on the website of the Immigration and Nationality Department. We will update the guidance as procedures develop and further issues arise. In that way, we can make sure that the procedures used are transparent. Therefore, we cannot accept the use of secondary legislation as proposed by the amendment, but there will certainly be guidance.

It would be helpful if I indicated the type of information that would be included in such guidance. It will make clear, for example, that any decision to certify needs to be copied to the family's representative, if it has one, in line with the undertaking given during the passage of the Bill. It will make clear also that, if support is withdrawn, the local authority will be informed at that time. The guidance will also advise staff about the particular information they will need to ascertain where the family attends an interview. It will set out how staff can assess whether the family has taken reasonable steps or whether it has a reasonable excuse for not having done so.

The noble Earl, Lord Listowel, and others have expressed concern that there may not be an adequate assessment of whether a withdrawal of support would breach the European Convention on Human Rights. The noble Lord, Lord Avebury, said much the same thing. We do not accept that. The individual circumstances will be assessed in each case. The guidance will set out the need to examine relevant information put forward by the family about their individual circumstances. That may include, for example, the age of the children and whether there are any special needs in particular cases. Of course, we are willing to receive comments at any time if there are particular concerns and we will assess whether those need to be reflected in the guidance that we issue.

There has been considerable discussion about Clause 9. I realise that—to put it mildly—it is a highly sensitive issue. It has caused ferocious debate in both Houses. It is an issue on which we have had to take a difficult decision. That is why I said earlier that the clause was not produced on a whim over the course of a weekend. I recall the issue being discussed in the Home Office when I was a Minister there.

Since the issue was discussed on Report, we have listened carefully to the concerns that have been put to us by the Medical Foundation for the Care of Victims of Torture and representatives from the Refugee Children's Consortium. We are very grateful for the constructive approach that has been taken—notwithstanding the fundamental difference of opinion. There is no sense in trying to sugar-coat the issue.

The clause is not designed to make families destitute. That is not our aim. The clause was never designed to take children into care and to split families. That was never its aim, whatever the original propaganda may have stated. However, we are making it clear that families affected by the clause do not have the option of remaining in the United Kingdom permanently. We have to make that clear, not hint at it by giving families the option of using the children as a shield and sending the wrong signals. That does not help them in any way whatever. We have to make it clear that their appeal against the asylum decision has been rejected. We are not talking about asylum seekers or refugees; we are talking about people who have made a claim for asylum and failed. We have to use that language and not pussy-foot around. Otherwise, we will send the wrong information and the wrong signals to those who are asylum seekers and those whose appeals have succeeded and who have become refugees because their status is different. We have to be absolutely clear about the status of the people to whom Clause 9 refers.

Photo of Lord Hylton Lord Hylton Crossbench

My Lords, the Minister is no doubt trying to be helpful, but will he explain why it is that if a family whose application has failed is not willing to return voluntarily, the Government do not remove that family? Instead, they seem to prefer to leave such families here to starve and possibly to suffer separation.

Photo of Lord Rooker Lord Rooker Minister of State (Regeneration and Regional Development), Office of the Deputy Prime Minister, Minister (Office of the Deputy Prime Minister) (Regeneration and Regional Development)

My Lords, I shall come to that question as I go through my notes. Without pussy-footing around, I want to make absolutely clear the status of the families that we are talking about. We know that forcibly removing families with children is extremely distressing. However, the question we must answer is whether, if nothing is done, the family should be entitled to indefinite support from the taxpayer regardless of its behaviour. That is the implication.

We must face up to the reality of those families' position in the country. They are in the country illegally and will not be given permission to stay. Whatever hints may be given, that is the position. They are here illegally and will not be given permission to stay because they have gone through the appeal process. It is not in the children's best interests to remain for long periods in a country where they have no prospect of being allowed to stay permanently. It is quite wrong for the children to be used as a shield for a family that is behaving irresponsibly in taking no steps to leave or that has no reasonable grounds—that is, the caveats in the legislation—for not taking any steps.

It may be that we do not agree that families should be encouraged to leave voluntarily, but I hope that we would all agree that in those circumstances, with no prospect of a permanent stay and all appeal rights exhausted, that the families should be encouraged to leave the country voluntarily. If they are not, people are selling them a false prospectus. The detailed process, which includes the opportunity for interview and warning letters, makes it clear that that is what we want to achieve—that is, a voluntary leaving of the country—but we do not accept that it is enough simply to leave it at that.

I do not need to emphasise again that we cannot physically remove a family without the appropriate travel documentation, which is why the clause is so important. If we are dealing with families which do not have the appropriate travel documentation and which want to remain here, the obvious question the family will ask is: "Why should we co-operate with removal, because if we don't, we can't be removed and we will be able to stay here, receiving cash and accommodation, indefinitely?" That is bound to be a question at the back of someone's mind. If it was not in the mind of the families, it would be in the mind of their advisers.

Therefore, at some point, we have to draw a line and say, "The process is finished. Some action needs to be taken". People have to understand that they cannot just ignore our immigration and asylum laws—that is what is happening in these circumstances—and simply expect the British public to pay for them regardless. That is what has been happening and that is what we want to avoid.

Unless we address these issues, they undermine our efforts to develop better integration packages, which the Government, refugee organisations and other political parties have to sell. They undermine our ability to say why we have a humane immigration policy and why our door is open to genuine refugees. It is much more difficult to do that if the public see another door open at the side where the rules are not followed. That is the consequence of doing nothing. If we do not address these issues, they will undermine our policies for managed migration and undermine taxpayers' acceptance that we need to help many thousands of people, which we do gladly. However, we are not prepared to see the perception of the system undermined by people who simply flout the rules in a systematic fashion.

The House is fully aware that we do not want to make families destitute—far from it—and we do not want children to be taken into care by local authorities. We will not certify under Clause 9 where the family is co-operating. Where it is co-operating or where it has reasonable grounds not to co-operate and take steps to move, we will not certify. We want people to return home when they have no basis of stay in the United Kingdom and when their legal position is such that they have no prospect of permanently remaining here. However, that will not work unless there is an end point. Amendment No. 7 would remove that possibility and that is why we cannot accept it. As I said, there will be fundamental differences of opinion in this respect. On the issue of consultation, I should say that I am unfamiliar with the date the noble Earl referred to. There is no agreed date for implementation of this provision, whatever he may have heard. I am not in a position to elaborate on that.

We are willing to listen to the views of organisations and happy to consider comments. If anybody wants to talk to us, we will listen to them. We have met organisations. We meet the Local Government Association on a regular ongoing basis. I suspect my department has contact with the association every day and will continue to do so. I agree that my explanation will not satisfy people with a point of principle, but I hope that I have spelled it out in not unsympathetic terms. If you are over sympathetic, you send the wrong signals. We are dealing with people who are being unreasonable—because if they are reasonable no action will be taken. They have failed, they have no prospect of permanent stay in this country whatever. We do not want to make them destitute. It is not a policy objective to separate families from their children.

Photo of The Bishop of Portsmouth The Bishop of Portsmouth Bishop

My Lords, before the Minister sits down, I am extremely grateful for the thoroughness, energy and care with which he has answered our questions. But I would like to register that, without nitpicking, I respect that he has points of principle and those of us who may not agree with him have points of principle that are actually backed up by experience of the real world.

Photo of Lord Rooker Lord Rooker Minister of State (Regeneration and Regional Development), Office of the Deputy Prime Minister, Minister (Office of the Deputy Prime Minister) (Regeneration and Regional Development)

My Lords, I freely admit that. I have put on the record that when I walked into the Home Office in 2001 I said, "By the way, I am poacher turned gamekeeper. I have used every trick in the book to exploit the rules and your inefficiency"—which is what it was. There were rooms full of hundreds of unopened mailbags; the system was in total chaos. In the end, it did not help my constituents because they were always in doubt, never having a decision, never knowing whether they could put their roots down and so on. So I fully accept that comment. I am not saying that my experience or my principles are any greater than anybody else's—far from it. If I even hinted at that, I certainly did not intend to do so.

Photo of Lord Avebury Lord Avebury Shadow Minister, Foreign & Commonwealth Affairs

My Lords, I am most grateful to the right reverend Prelate and to the noble Earl, Lord Listowel, whose knowledge of children's affairs is completely unrivalled in this House. They both speak with the backing of organisations such as the Refugee Children's Consortium. The Minister has correctly said that this is a matter of principle, on which it would be impossible across the Floor of the House today to reach agreement. We would have liked to test the opinion of the House, if we had heard anything at all from the Conservative Benches this afternoon. But, realising that they are unlikely—

Photo of Baroness Anelay of St Johns Baroness Anelay of St Johns Shadow Minister, Home, Constitutional & Legal Affairs, Shadow Minister, Home Affairs

My Lords, it is normally not proper to intervene at Third Reading, but the noble Lord, Lord Avebury, has called into question the absence of comment from these Benches. I have adopted the proper course at Third Reading, which is to say nothing because I could add nothing to four speeches I made on this issue. I feel it would be inappropriate to the House to extend the debate any longer.

Photo of Lord Avebury Lord Avebury Shadow Minister, Foreign & Commonwealth Affairs

My Lords, the noble Baroness has not rendered the House any wiser about whether she would have supported us if we had pressed this to a Division. We would only have done that if there had been some chance of defeating the Government on the principle of this clause. Despite the fact that the Minister may say he has not considered this matter solely over the weekend but has been at it for months and months, he has still not explained to us how this clause will be implemented.

He keeps on saying that we are talking about people who have failed all the way through the system. He may be right about the parents, but he is not right about the children. It is not their fault that the parents have not had an adequate claim to asylum. It is not their fault that the parents have been—as he would put it—irresponsible enough to fail to comply with the arrangements for their voluntary departure—but it is difficult to make my speech when there is another one going on just under my nose. It is not the children's fault that the parents have put them in this position. We are concerned not with the irresponsible parents, but with what happens at the end of the day when the parents have refused to comply with all the injunctions to leave the country voluntarily and to pay attention to the notices which the Minister said will be served upon them, explaining the consequences of their failure.

I want to know whether the Minister will ultimately take the children into his care. What will the instructions be? We have not seen the guidance, but if he has been at it for all these months then why could we not have seen a draft? Why does not the veil which he lifted to a very slight extent today reveal the substance of the matter? He said only that the detailed guidance would contain instructions on whether the families have taken steps to comply with the need to examine relevant information, but not what happens to the children when that process has reached an end.

The Minister has not said today how many meetings have been held with the LGA. It is no good telling us that he meets them almost every day. What we want to know is how many discussions have been held on this specific issue, and whether the LGA is satisfied with the instructions it will be given on how to comply with the ECHR, the Children Act and so forth while at the same time support is removed from these families. He has not given a clear process for how potential breaches of Articles 3 and 8 of the United Nations Convention on the Rights of the Child will be assessed. He has not told us what involvement there will be from independent experts in assessing the facilities available to the children in the final circumstances, nor about arrangements for the care and welfare of the children to be made prior to the withdrawal of support.

We are extremely disappointed in the attitude of the Government and their failure in the person of the noble Lord, Lord Rooker, to answer many of the questions which remain in the minds of the Refugee Children's Consortium. But in view of the fact that we would not win a Division, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 7 not moved.]

Photo of The Earl of Sandwich The Earl of Sandwich Crossbench

moved Amendment No. 8:

After Clause 9, insert the following new clause—

"REPEAL OF SECTION 55 OF THE NATIONALITY, IMMIGRATION AND ASYLUM ACT 2002

Section 55 of the Nationality, Immigration and Asylum Act 2002 (c. 41) (late claim for asylum: refusal of support) shall cease to have effect."

Photo of The Earl of Sandwich The Earl of Sandwich Crossbench

My Lords, I speak to Amendment No. 8 which inserts a new clause. I introduced this amendment in Committee. I did not bring it back on Report in the hope that it would encourage the Home Office to look again at the unfair effects of Section 55 of the 2002 Act on genuine asylum seekers who become destitute when they are unable to make claims "as soon as reasonably practicable" or in any case within three days of arrival.

Many people, in and outside Parliament, now accept that this clause is a thorn inserted into asylum legislation without proper scrutiny, that it sits uneasily with the European convention, that it lacks credibility as a deterrent, and that it should be removed from the Bill as soon as possible.

The Court of Appeal judges in the case of Limbuela et al on 21 May—mentioned already by the noble Lord, Lord Avebury—had these points in mind when they upheld a High Court decision in favour of three asylum seekers who had been denied support under Section 55. The majority opinion was that the Secretary of State could deny support only if he,

"has in place realistic arrangements for meeting his responsibilities under the Convention".

This decision has prompted a welcome, but only provisional, change of policy. That is now visible in the way that NASS interprets the human rights duty under Section 55(5). The latest guidance, which I have in my hand—a 39-page document—produced only on 25 June, states that NASS must provide support,

"unless it is positively satisfied that the individual does have some alternative source(s) of support available to him/her . . . Failure by NASS to provide support where no other source of support is available may lead to a breach of the applicant's rights under Article 3", of the ECHR. That is a quote from paragraph 6.2 of the IND policy bulletin 75.

Alternative support is not always there. Local communities, assisted by churches and voluntary agencies, do a remarkable service to the public in looking after destitute people, including asylum seekers. I have no doubt that the Home Office would like that to continue, especially when local authorities are cutting services. I hear that there are threats of those services being cut in cities such as Leicester.

Research by the Greater London Authority shows that despite the efforts of local communities, which we all applaud, 29 per cent of people denied support under Section 55 in London last November had to sleep rough. That was a rise of more than half on the previous recorded tally of rough sleepers in London. Furthermore, we know that something like half—a disproportionate number—of those rough sleepers are women. Incidentally, it was unfortunate that in Committee the Home Office brief said that the Greater London Authority's research was based on a very limited sample. In fact, its survey covered 1,999 people in total, of whom 14 per cent, or 283 people, were asylum seekers reporting that they had been denied support under Section 55.

Under the revised NASS rules, we can assume and hope that only a small number will now be left destitute. The Minister may very well say that we should stop worrying about them. That in itself suggests that the whole purpose of Section 55 has now been undermined and that the Government should recognise that by simply removing the clause. However, we shall have to wait to see what the Minister says now and what the effects of the new guidance will be between now and the Government's further appeal against the decision. It will not look good on the record if policy is shown to be inconsistent as well as discriminatory.

Finally, I remind the House of three further points, in the unfortunate absence of the noble Earl, Lord Russell, whom we all wish were here today. These are points that arose in Committee. First, I am grateful to the Home Office for confirming through a Written Answer to my Question HL 2729 that a claim made after three days is no less genuine than one made on arrival. I do not personally like to use the word "late" because it carries a stigma. That Answer shows to me how arbitrary Section 55 is, although the provision for three days is often described as a concession.

Secondly, I am reassured by another government Answer to my Question HL 2728, showing that it is impossible to prove statistically that Section 55 of itself has caused a reduction in applications for asylum. That surely weakens the case for Section 55 as an effective deterrent.

Thirdly, Section 55 escaped parliamentary scrutiny from the outset. I am sure that the Minister knows that it was never even debated in another place, despite the efforts of his honourable friend Mr Neil Gerrard. The section is still capable of wide interpretation by the Government, even if we leave it alone, through the various non-statutory methods which are open to it. That is why so many people are opposed to the section, are concerned about its use in future and would like it to be repealed. I beg to move.

Photo of Lord McNally Lord McNally Shadow Minister (Broadcasting), Culture, Media & Sport, Deputy Leader, House of Lords

My Lords, I rise briefly to support the noble Earl, and to thank him for his good wishes to my noble friend Lord Russell, which we will pass on.

In the end, the noble Earl's analysis is right. As it now applies, the measure is neither a deterrent to asylum application or a saving of public money. What is left is something that the Minister referred to earlier. It is part of the package of gesture politics that the Government have assembled, although whether it is intended to deter asylum seekers or to appease the Daily Mail, no one is ever quite sure. Whatever it is intended to do, the clause would contain a particularly mean-minded piece of legislation if we were to let it go through. We support the amendment.

Photo of Baroness Anelay of St Johns Baroness Anelay of St Johns Shadow Minister, Home, Constitutional & Legal Affairs, Shadow Minister, Home Affairs

My Lords, I shall speak very briefly, as I have spoken on this matter before and I am sure that noble Lords will remember each and every wonderful syllable that I uttered. It is absolutely right that the noble Earl, Lord Sandwich, should introduce this amendment today, because of the timing and the Court of Appeal case. It is right to give the Government the opportunity to make further comment on the opposition to the clause. I appreciate that the Minister may have some difficulties of a procedural nature if the matter is going to appeal, so I do not know how much he will be able to assist us today. However, this was the right parliamentary opportunity for the noble Earl to seize.

I have told the noble Earl in the past week that I am not able to support his amendment as such. We on these Benches have in the past made it clear that we believe that the policy objective should be achieved, provided that that happens within the legal system. We are concerned to see what has happened in the Court of Appeal. Obviously, we now look forward to seeing a resolution of that question, and would naturally accept whatever the Higher Appellate jurisdiction decides.

Photo of Baroness Park of Monmouth Baroness Park of Monmouth Conservative

My Lords, I rise to support very strongly the noble Earl's remarks.

Photo of Lord Hylton Lord Hylton Crossbench

My Lords, I support my noble friend's amendment. Of course we all understand that the Government want people to apply for refugee status when they arrive or, if they cannot do that, within three days. But surely the Government could go a little further than that; surely they could say that cases with merit will be considered, especially if there is some reason for the individual person delaying his application. There should be some little let-out of that kind, should there not?

Photo of Lord Avebury Lord Avebury Shadow Minister, Foreign & Commonwealth Affairs

My Lords, as my noble friend Lord Russell has been mentioned, I draw attention to the fact that he moved an amendment on the clause in the Nationality, Immigration and Asylum Bill on 24 October 2002. The matter was taken up by the Joint Committee on Human Rights, which in its 23rd report of Session 2001–02, HL paper 176, concluded that there was a significant risk that the new clause would lead to a violation of Article 11.1 of the International Covenant on Economic, Social and Cultural Rights. There was a threat of violation of Articles 3 and/or 8 of the European Convention on Human Rights.

It is worth reminding ourselves of that exchange in October 2002, because we frequently refer to the JCHR. There are always good reasons why the Minister of the day rejects its findings, but it is our watchdog in the matter of human rights. We should pay a little more attention to what it says, otherwise there will be more cases in which the Government have to answer to the Court of Appeal, like the one that we are discussing at the moment. If we had paid attention to my noble friend Lord Russell and to the JCHR then, we would not be faced with the difficulties that the Government have encountered with Section 55 in the Court of Appeal.

Photo of Lord Rooker Lord Rooker Minister of State (Regeneration and Regional Development), Office of the Deputy Prime Minister, Minister (Office of the Deputy Prime Minister) (Regeneration and Regional Development)

My Lords, before I start, I reiterate not only on my own behalf but on behalf of others as well that we hope to see the noble Earl, Lord Russell, back in his place as soon as possible.

I know this is totally out of order, but in this place there are no rules, so you can get away with it. Regarding the earlier debate we had on Zimbabwe, unfortunately we do not collect information on the voluntary returns on a country-specific basis, but I have asked officials to see whether they can obtain a figure from the International Organisation for Migration, and I will naturally follow that up in writing for noble Lords who have been present today.

Read literally, the noble Lord, Lord McNally, was including me in his term "gesture politics". First, the package is not gesture politics and, secondly, I assure him that I would have no part in sucking up to the ragbag people who run the Daily Mail. Sincerity is a zero sum on this issue. We cannot prove that any part of the changes in the Immigration Rules and procedures in the past few years has been the only or key part, but we know the total effect of the changes of the package of which Section 55 is a part has been a halving in the number of asylum claims since the autumn of 2002. Therefore, while we cannot be precise about the individual components, we see no justification for disturbing the package that has been put together. We cannot be absolutely certain that the signals sent back down the supply chain of people traffickers on one part of the package are translated to another part of the package to get the right effect. Nevertheless, it is not gesture politics; the package was designed for a purpose. We still claim, and rightly so, that the whole issue is proportional to the situation the country found itself in.

The central point about Section 55 is that we were not prepared to use taxpayers' money to support people who make speculative asylum claims, or indeed anyone who has some other means of support. I freely admit that not every person who claims asylum also claims financial support, but the number of speculative asylum claims was high. We think Section 55 has been effective in tackling that kind of abuse to send a signal to those who are simply economic migrants: first, that there are other ways and, secondly, that if they use the speculative route they will not be supported at the taxpayer's expense.

I am pleased and grateful that the noble Earl has brought these amendments forward. It is the right and proper thing to do. However, I am obviously fairly constrained in what I can say, because this year the Court of Appeal gave its judgment in those three test cases concerning the application of Article 3 of the ECHR in cases where support had been refused under Section 55 and dismissed the Government's appeals in the individual cases. In giving guidance on the issue, the Court of Appeal was divided as to the correct approach, as indeed was the High Court before it. In his minority judgment, Lord Justice Laws points out that the relevant principles in this area are "more than usually elusive". Clearly, these cases raise issues of general public importance and legal complexity.

The Home Office maintains that Section 55 strikes the right balance between fulfilling our obligations to genuine asylum seekers and protecting the system against abuse. We have therefore sought, and been granted, leave to appeal to the House of Lords against the Court of Appeal judgment of 21 May, although I understand that this will not be heard by the Appellate Committee of your Lordships' House until much later in the year. In the mean time, we have issued new interim policy guidance, to which the noble Lord referred, and we will continue to make decisions in line with the judgment expressed in the Court of Appeal.

Section 55 is a tough policy. It was designed to be, in order to face a serious issue. The section has been kept under close review since it was introduced, and, where appropriate, has been amended, as demonstrated by the change of approach announced by the Home Secretary on 17 December last year, whereby in general a person who applies within three days of arrival in the UK would be considered to have applied as soon as reasonably practical. Quite why they could not have applied when they reached our shores at the port, heaven only knows, but that is the issue everyone always asks about—"Why not?". There are good reasons why some people cannot apply immediately, but within three days we think they ought to be able to.

There are already a number of safeguards built in to protect vulnerable people, and those with care needs continue to be supported by local authorities. Moreover, it is open to anyone who may receive a negative decision under Section 55 to request reconsideration of their case. Emergency accommodation will be provided in what we believe are seriously arguable cases in the small proportion of reconsideration decisions that cannot be made on the same day. Each case is considered on its merits. Where the period is longer than three days, people's circumstances will be fully taken into account. We fully accept that, in some cases, three days may not be reasonably practicable.

There is little evidence of a rise in rough sleeping as a result of Section 55. Rough sleeping on the streets of London has been cut by about 70 per cent since the Rough Sleepers Unit—now the Homelessness Directorate of the Office of the Deputy Prime Minister—was set up. A count is taken, but we have no evidence that Section 55 has caused a rise. Both officials and outreach workers are out on the streets on a regular basis, not just on the nights of the counts, and I have spent one night with them—although I cannot really claim that it was a night, as I knocked off just after midnight. I had to be introduced as Jeff, a researcher from Birmingham, because if I had been introduced as the Minister no one would have talked to me. I did not find any asylum seekers, but that was just one evening for a few hours. The point is that we monitor the situation of rough sleepers because, having achieved a 70 per cent reduction, we want to go the whole hog.

We accept and freely admit that there were some initial problems with the operation of Section 55, and, where required, we have made changes. The recent Court of Appeal judgment does not alter our view that the policy has been effective or that we have sufficient provisions in place to protect people who are vulnerable. We certainly do not consider that it would be the right to abolish Section 55 altogether, bearing in mind that we have given notice of appeal to the highest court in the land, and that is where it will be decided. In the mean time, we will operate the policy in line with the judgment given down by the Court of Appeal. I hope I have made the position clear. The provision is not totally flexible, but it can be reasonably practicable for the period to be over three days because we judge each case on its merits.

Photo of The Earl of Sandwich The Earl of Sandwich Crossbench

My Lords, the noble Baroness, Lady Scotland, said that Section 55 was continuously under review, and the Minister has confirmed that today, which is very welcome. I accept and welcome his flexible approach, and the fact that every case will be looked at on its merits, possibly even after the draconian three days.

This is not a party political matter, and it is partly for that reason that I am speaking from the Cross Benches. Many others are involved in this, and, if it came to a vote in a future Bill, I hope that vote would be free. This matter causes a lot of concern outside this House, among voluntary organisations and those working with asylum seekers. I was tempted this morning to press my amendment to a Division, although of course it would be only a protest vote. But the numbers outside this House are more convincing evidence than those inside it. We will just wait to see what the effects of the Bill are.

I thank all the noble Lords who have taken part and supported this amendment. I am grateful to the noble Baroness, Lady Anelay, for speaking on this occasion, and because she has said that the Conservative Party is going to give this matter much more thought, which is also very welcome. The Government have moved, albeit under pressure from the judges and, I hope, from some of us. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 12 [Refugee: back-dating of benefits]:

Photo of Lord Rooker Lord Rooker Minister of State (Regeneration and Regional Development), Office of the Deputy Prime Minister, Minister (Office of the Deputy Prime Minister) (Regeneration and Regional Development)

My Lords, in moving Amendment No. 9, I wish to speak briefly also to Amendments Nos. 10 and 11.

These amendments make minor consequential changes to the regulations applying in Northern Ireland to ensure consistency with the other regulations referred to in Clause 12. Clause 12 expressly revokes the regulations that set out the current back payments system established under the powers contained in Section 123 of the Immigration and Asylum Act 1999. We discussed that scheme at some length both in Committee on Recommitment and on Report. As I say, these amendments make purely minor consequential changes to the regulations applying to Northern Ireland. I beg to move.

Photo of Lord Hylton Lord Hylton Crossbench

My Lords, these government amendments give me an opportunity to make a special appeal to the noble Lord, Lord Rooker. Would he be so kind as to use his influence in the Home Office on a Northern Ireland matter? What is happening at present is that small numbers of asylum seekers are being imprisoned in Northern Ireland, sometimes for rather long periods. This is something which makes the management of Northern Ireland prisons, which is already extremely difficult, rather more complicated than it need be.

I suggest to the noble Lord—perhaps he will discuss this with his colleagues both in the Home Office and in the Northern Ireland Office—that there is a fairly simple solution; namely, to commission a housing association in Northern Ireland, of which there is quite a range, to provide accommodation that is semi-secure, under curfew, or under whatever restrictions the Government wish to impose, so that these people can be held in a known place while their cases are considered rather than having them in prison. I hope that that appeals to the noble Lord's good nature.

Photo of Lord Rooker Lord Rooker Minister of State (Regeneration and Regional Development), Office of the Deputy Prime Minister, Minister (Office of the Deputy Prime Minister) (Regeneration and Regional Development)

My Lords, certainly, it is news to me that asylum seekers are being held in prison as asylum seekers anywhere in the UK. I did not know about that situation in Northern Ireland. I shall ensure that the matter is taken up by my ministerial colleagues in the Home Office who have policy responsibility for the matter. I am but their mouthpiece here, but nevertheless it is a matter for which I am answerable as a government spokesman. I shall ensure that we try to achieve a satisfactory solution to the point raised by the noble Lord.

On Question, amendment agreed to.

Photo of Lord Rooker Lord Rooker Minister of State (Regeneration and Regional Development), Office of the Deputy Prime Minister, Minister (Office of the Deputy Prime Minister) (Regeneration and Regional Development)

moved Amendments Nos. 10 and 11:

Page 14, line 36, leave out "paragraph 49" and insert "paragraphs 48 and 49"

Page 14, line 47, at end insert—

"( ) Regulation 11(1) and (2) of the Social Security (Immigration and Asylum) Consequential Amendments Regulations (Northern Ireland) 2000 (S.R. 2000 No. 71) (which make similar transitional savings) shall cease to have effect."

On Question, amendments agreed to.

Photo of Lord Avebury Lord Avebury Shadow Minister, Foreign & Commonwealth Affairs

moved Amendment No. 12:

Page 15, line 4, at end insert—

"( ) No such order shall be made unless the Secretary of State is satisfied that the amount of benefits paid to or on behalf of the refugee while his application was under consideration or under appeal was equivalent in total to the amount a person would have received by way of income support and housing benefit for the same period and for accommodation of the same value."

Photo of Lord Avebury Lord Avebury Shadow Minister, Foreign & Commonwealth Affairs

My Lords, as the Minister may perhaps have gathered, this amendment is designed to resolve the arguments that we had several times during the course of this Bill, as well as on the asylum support regulations a week ago, on the value of the NASS full support package for asylum seekers waiting for their cases to be decided, and whether or not if it comes to less than they would have received on income support, the Government are in breach of their obligation under Article 23 of the Convention relating to the Status of Refugees to,

"accord to refugees lawfully staying in their territory the same treatment with respect to public relief and assistance as is accorded to their nationals".

We have said all along that asylum seekers do not get the same treatment as our own citizens, and in 2002 the Government conceded that the voucher scheme constituted inferior treatment not only because the vouchers could be cashed only in certain shops, but also because, as the then Home Secretary Mr Jack Straw frankly acknowledged that,

"the support that we are providing will be equivalent to the 90 per cent. of income support that is otherwise available to asylum seekers".—[Hansard, Commons, 16/6/99; col. 472.]

When the vouchers were scrapped in 2002, they were replaced by cash amounting to 70 per cent of income support, and the payment of utility bills and household costs continued, as before. So the value of the total package must have remained at the 90 per cent of income support declared by the then Home Secretary, unless for some unexplained reason the utility and household costs for people on income support had increased from 20 per cent to 30 per cent of their expenditure. That seemed to be the claim of the noble Lord, Lord Bassam, when he said:

"The calculation has been made that the discount, the 30 per cent— that was the first we had ever heard of it—

"is approximate to the value of housing accommodation which is fully furnished and has all the necessary utensils and furniture in place".—[Hansard, 14/3/02; col. 1017.]

But there was never any attempt to justify this astonishing increase from 20 per cent to 30 per cent in a period of less than three years. When the matter came under closer scrutiny on 15 June and again last week, first the noble Lord, Lord Rooker, and then the noble Lord, Lord Bassam, contented themselves with repeating the bare assertion, without giving any of the underlying arithmetic.

When the Joint Committee on Human Rights examined the matter, it said:

"The Government has not provided Parliament with the detailed evidence which demonstrates that the value of the benefits in kind provided to asylum-seekers is equivalent to the value of the back-payments being abolished".

The Government did not provide any evidence and they still have not done so, though it was not the back payments themselves that were at issue; it was whether the total package was equal to 90 per cent, 100 per cent, or some other percentage of income support.

The noble Baroness, Lady Scotland, has acknowledged at last, in a letter dated 25 June, which I did not receive until the day after the previous debate on this clause, that the package is not worth 100 per cent after all, and that the assertion made on at least three occasions was wrong. The JCHR ought now to consider, in the light of that admission, whether there is a significant risk of a breach of Article 23 of the Refugee Convention or Article 14 of the European Convention on Human Rights in conjunction with Article 1 Protocol 1. The noble Baroness, Lady Scotland, now tells me in this letter that the value of the package is,

"on average only 4% lower than income support levels".

I made it 7 per cent, and I gave the details of the calculation, which the noble Baroness has not done, but whether it is 4 per cent or 7 per cent, asylum seekers are worse off by that amount than British citizens on income support levels.

Ministers have also stated, incorrectly, that putting asylum seekers on level terms with those on income support means that they should not be eligible for payments other than bare NASS support. The noble Lord, Lord Bassam, did not respond when I pointed out last Tuesday that people on income support have access to other discretionary payments which are not available to asylum seekers.

The noble Baroness, Lady Scotland, in this letter, acknowledges that UNHCR has been critical of the Government's proposals in Clause 12, but she now advances a novel interpretation of the convention, which she has not discussed with the UNHCR, which is under international law the guardian and interpreter of the convention. She has not discussed it with the JCHR either, and its conclusions on Clause 11 were based on the assumption that the Government's previous statements about the arithmetic of their proposal were correct. The noble Baroness now says that short-changing asylum seekers by 4 per cent is,

"sufficient to meet the requirements of the Refugee Convention".

I have taken advice on this, and, as I hope the noble Lord will be aware, the UNHCR has explicitly contradicted the noble Baroness's assertion—a very unusual, if not unprecedented, occurrence. In its letter to me of 2 July it says:

"UNHCR does not consider that provisions which have 'broadly the same material effect' are sufficient to meet the standards required by the 1951 Convention . . . UNHCR considers 'same treatment' in Article 23 to mean exactly equal material benefits. This accords with the common usage of the word 'same' as defined in the Oxford English Dictionary. Equal treatment is fundamental to the spirit of the 1951 Convention, and there can be no degrees of equality".

Clause 12 puts asylum seekers in a benefits regime inferior to that required by Article 23 of the convention, and the Government must not deliberately enact a measure which makes the UK non-compliant with an important requirement of international law. This would be especially heinous, considering that we are members of the executive committee of the UNHCR, with a responsibility to set an example in upholding the standards set by the convention.

This amendment would give us the breathing space that is needed to undertake proper consultations and to redesign the NASS package, so that it provides asylum seekers with the same treatment as our nationals and not something which falls short of that obligation. I beg to move.

Photo of Lord Rooker Lord Rooker Minister of State (Regeneration and Regional Development), Office of the Deputy Prime Minister, Minister (Office of the Deputy Prime Minister) (Regeneration and Regional Development)

My Lords, there was one phrase used by the noble Lord which I wish he had not used. My response to it is this. The British taxpayer is forking out over £1 billion a year for asylum seekers. To say that we are short-changing asylum seekers is just the kind of thing that plays into the hands of those friends at the Daily Mail, referred to by the noble Lord, Lord McNally—because they will twist it. To say that we are short-changing asylum seekers, when we are spending over £1 billion by way of taxpayers' support, is extravagant language in the extreme and sends out all the wrong signals regarding the policy we are trying to address.

On the other hand, the noble Lord is right to come back on the issue at Third Reading. I have no complaint about that. However, we are not prepared to accept the amendment.

In the letter dated 30 June which he wrote to my noble friend Lady Scotland the noble Lord made a number of points, and I am grateful to him for making these known before the debate. He has not yet received a written response from the noble Baroness, and I do not say that the response is winging its way from the Home Office, but it is being put together. I will now try to answer those points.

The first point the noble Lord makes is about the arithmetical equivalence or otherwise of the benefits available to asylum seekers in NASS accommodation, as compared with UK nationals. As has been said in the exchange of letters, the Government's assessment is that the difference is on average 4 per cent. In the debate on 29 June on the Asylum Support (Amendment)(No. 2) Regulations, the noble Lord set out a calculation which concluded that the difference is 7 per cent for a married couple with no children.

The Government will happily set out the assumptions by which they have arrived at the figure of 4 per cent. I will not go through them line by line, but the Government do not wish to make a point of disputing the noble Lord's detailed calculations. It so happens that we have used slightly different assumptions and have come up with a slightly different conclusion.

At the risk of falling foul of the noble Lord, I have to make the point clear. The fundamental difference between the Government and the noble Lord is not whether the answer is 4 per cent or 7 per cent. The question is whether any difference is acceptable at all. That is implicit in what the noble Lord said, and I see that the noble Lord agrees with me. In the Government's view, a difference of 7 per cent, such as is estimated by the noble Lord, is acceptable. However, we do not say that the numbers add up exactly. Our argument is that the two regimes are broadly the same in material effect. We are not arguing about the percentages.

I also make the point that access to income support opens up another avenue completely. I said at an earlier stage of this legislation that, in the long run, it might have been cheaper not to have had NASS support in the first place. However, I repeat that we are running a system that is costing over £1 billion in support of asylum seekers.

The noble Lord also said in his letter that we have ignored asylum seekers who have opted for subsistence-only support, and those denied any support at all by virtue of Section 55 of the Nationality, Immigration and Asylum Act 2002. Neither of these groups will have had any support in kind from NASS. If those in accommodation are out of pocket to the tune of 7 per cent, those on subsistence only will be out of pocket to the tune of 30 per cent, and those denied support altogether to the tune of 100 per cent. We have not ignored these cases.

In so far as Article 23 may be relevant, the Government's view is that it requires only that the treatment of refugees and nationals be broadly the same in material effect, not identical. Mainstream benefits are intended as a basic safety net to ensure that the poorest have a roof over their heads and sufficient money on which to live. Asylum seekers on subsistence-only support will have this.

Applicants who do not claim as soon as reasonably practicable after entering the UK are still able to access National Asylum Support Service support in the usual way, if they do not otherwise have means of support available to them.

In Clause 12 the Government are proposing to abolish a discredited and retrospective system of back payments, which rewarded time spent stringing out the asylum process. I have explained today how advisers sometimes become involved in that process. We are seeking to stop that.

In Clause 13 we are replacing this with a new, forward-looking system of refugee integration loans. The Government are satisfied that this is within both the spirit and the letter of the Refugee Convention, and we hope that it will result in a better deal for refugees.

As I have said, a proper response to the letter from the noble Lord, Lord Avebury, will be on its way but I hope that, in the light of these explanations, the noble Lord will not press his amendment.

Photo of Lord Avebury Lord Avebury Shadow Minister, Foreign & Commonwealth Affairs

My Lords, the argument is not one solely between myself and the Minister. The argument is between me and the UNHCR on the one hand and the Minister on the other. The Minister has to satisfy the UNHCR that he is in compliance with Article 23 of the Convention.

He says that it is okay to short-change the asylum seekers by 4 per cent or 7 per cent and, as he says, we are not arguing about the exact figure because we can attempt to reconcile the arithmetic "off-line", as it were.

I stick by the figures I gave and I have told the colleague of the noble Lord where the figures came from—the Government's own statistics. If his calculation comes up with a slightly different figure, we will not argue about that detail. However, the noble Lord is now saying that to be in full compliance with Article 23 it is sufficient to give the asylum seekers something less than equal treatment with British citizens. That is not what the Convention says and not what the UNHCR's interpretation of the Convention confirms—which the noble Lord has seen.

Although we will not take this any further this evening on the Floor of the House, I can assure the noble Lord that he has not heard the last of it. It will be necessary for him to satisfy not just the UNHCR representative in the UK but UNHCR headquarters in Geneva.

It is a matter of principle. It is the difference between the noble Lord, who says that something which is roughly equivalent, but is less than full equal treatment by 4 or 7 per cent, complies with the Convention, and the authorities of the UNHCR, who say that equal means equal. It is a matter we will not resolve this evening, but I am sure that the noble Lord will hear a great deal more of it hereafter. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 13 [Integration loan for refugees]:

Photo of Baroness Anelay of St Johns Baroness Anelay of St Johns Shadow Minister, Home, Constitutional & Legal Affairs, Shadow Minister, Home Affairs

moved Amendment No. 13:

Page 15, line 24, at end insert—

"( ) shall enable the Secretary of State to specify that a loan shall be made by instalments,"

Photo of Baroness Anelay of St Johns Baroness Anelay of St Johns Shadow Minister, Home, Constitutional & Legal Affairs, Shadow Minister, Home Affairs

My Lords, I hope that I can be very brief on this. It may also be for the convenience of the House, given the time we have needed to discuss such important matters this afternoon, if I indicated that I do not need to move Amendment No. 14. I have notified the Front Benches and the ensuing speaker.

Amendment No. 13 gives the Government the opportunity to carry out a commitment they gave at a previous stage of the Bill when, on 28 June at col. 44, the Minister said that the Government were intrigued by the proposal of this amendment; that they would look at it, and come back with further clarification at Third Reading.

The Clause enables the Government to provide an integration loan to refugees, which will replace the backdating of benefits. The question I asked was whether it would not be convenient for the Secretary of State to have the power, in making a loan, to be able to make that loan by way of instalments rather than in one lump sum, particularly if a fairly large sum of money were involved.

I am therefore seeking that the Government put that clarification on the record. I beg to move.

Photo of Baroness Carnegy of Lour Baroness Carnegy of Lour Conservative

My Lords, I, too, greatly look forward to hearing the Minister's reply. After reflecting on this matter it seems that we do not yet know the nature of the loan scheme or how much it will cost the taxpayer. It will be fairly expensive. However, it could be, without in any way incommoding a refugee, that much money could be saved if it was possible to pay a certain amount of the loan and then proceed later with other sums by instalments. As my noble friend said, a person's circumstances may change and we hope that many refugees, having received a loan, will find a job and begin to earn—perhaps well and will not need the further loan instalments. Will it be possible to incorporate this provision in the loan scheme?

Photo of Lord Rooker Lord Rooker Minister of State (Regeneration and Regional Development), Office of the Deputy Prime Minister, Minister (Office of the Deputy Prime Minister) (Regeneration and Regional Development)

My Lords, yes, certainly; although I should make clear it that this will not cost the taxpayer anything in terms of new money, because the refugee integration loan will be funded from the abolition of the back-payments scheme. This is not new, extra money—it is already being paid by the taxpayer. When we discussed this matter on Report I thanked the noble Baroness, Lady Anelay, for her helpful suggestion that the loan could be made in instalments. We still consider that to be a suggestion which we should like to see carried through to the operation of the loan scheme.

We have now had the opportunity to confirm our original impression that we believe it is possible to make provision for the loan to be paid by instalments through the present drafting of the clause by conferring a discretion on the Secretary of State. There is one caveat. If the Secretary of State makes a loan by instalments it should not circumvent either the provision prohibiting the making of two loans to one person or any provision made for a minimum or maximum amount of a loan. We think that is right. If the Secretary of State makes a loan by instalments, it should be one loan that does not exceed any specified maximum amount, made in staged payments over time. It should not be a route that enables more than one loan to be made to any person or a way to enable a loan to be made in excess of the specified maximum amount. That will be in the regulations.

During the debate at Report stage the noble Baroness explained that paying the loan by instalments would enable payments to be halted if there was a sudden change for the better in the fortunes of the applicant, given that the loans will be based on need and individual circumstances. The provision to confer a discretion on the Secretary of State or the amendment would not by themselves achieve that objective. However, we have considered this again and would suggest that it might be best achieved by making a provision under subsection (3)(d) for the loan to become repayable in full in specified circumstances, of which sudden affluence could be one.

This matter will return to the House for detailed examination when we have a scheme to present to Parliament. I should like to thank the noble Baroness for her suggestion.

Photo of Baroness Anelay of St Johns Baroness Anelay of St Johns Shadow Minister, Home, Constitutional & Legal Affairs, Shadow Minister, Home Affairs

My Lords, I am grateful for the Minister's helpful answer, not only regarding this matter but for his explanation of how the Government could work the loan proposals into the existing skeleton of Clause 13 with, perhaps, regulations coming later.

The explanation that he gave regarding the use of subsection (3) (i), which confers a discretion on the Secretary of State, went a long way to reassuring me about some of the concerns that I expressed on Report on recommitment. I shall look carefully at Hansard, but the Minister seemed to say that the Government would not be trying to obviate or get out of the provisions in the rest of subsection (3)(a) to (h) by using the discretion provided for in subsection (3)(i). The Minister has satisfied me on more than one point and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 17 [Retention of documents]:

[Amendment No. 14 not moved.]

Photo of The Countess of Mar The Countess of Mar Crossbench

moved Amendment No. 15:

Before Clause 19, insert the following new clause—

"MARRIAGE NOT A GROUND FOR LEAVE TO REMAIN

(1) That a person has married a British citizen in the United Kingdom is not a ground for granting leave to remain under the Immigration Act 1971 (c. 77) if that person—

(a) was granted leave to enter the United Kingdom for a period of less than six months, or

(b) their period of leave to be in the United Kingdom expires in less than 3 months from the date of their marriage.

(2) That a person intends to marry a British citizen in the United Kingdom is not a ground for granting leave to remain under the 1971 Act if that person—

(a) was granted leave to enter the United Kingdom for a period of less than six months, or

(b) their period of leave to be in the United Kingdom expires in less than 3 months from the date of their application for leave to remain."

Photo of The Countess of Mar The Countess of Mar Crossbench

My Lords, when I suggested at Report stage the possible introduction of a measure such as that in the amendment it was because I had a sudden vision of a vast bureaucracy waiting in the wings for the enactment of Clauses 19 to 24. I have been in your Lordships' House long enough to recognise that each time we have a new Act of Parliament we seem to double the number of officials and civil servants. That worries me somewhat.

Would it not be easier to tell all those single people to whom time-limited visas are issued that, should they wish to extend their stay in the United Kingdom, contracting a marriage here would not provide them with a ground to remain? That would be done at the time the visa was issued. I have limited the scope of the amendment to spouses who are British citizens because I recognise that we must observe the terms of EEA treaties.

I thank the noble Lord, Lord Rooker, for asking two officials from the immigration and nationality department to contact me last week. I was interested to learn that it is now EEA nationals who are a major source of bogus spouses. As the grounds for remaining on the basis of a marriage contracted with a person present and settled in the UK already are enshrined in rule 284 of the Immigration Rules, can the Minister say whether the rule is so ineffective as to require the introduction of Clauses 19 to 24 for all marriages? If not, why are those clauses not restricted to applications for marriages to EEA nationals only? Is there a problem? Would such discrimination go against the terms of the treaty? Is this a problem common throughout the EEA and, if not, why is the UK so disadvantaged?

I have no intention of pressing the amendment to a Division. I realise that the wording is faulty. However, I still suspect that there may be some less cumbersome way to deal with the problem. I beg to move.

Photo of Lord Dholakia Lord Dholakia Shadow Minister, Home Affairs, Party Chair, Liberal Democrats

My Lords, I support the amendment. The Minister was good enough to say earlier on that he does not listen to the ragbag of stuff in the Daily Mail. But this gives a completely different impression that this legislation has been pushed forward in the House of Lords and at one time did not have the scrutiny of the Joint Committee on Human Rights, which we have now received. This is very much a reaction to the headlines in the Daily Mail, the Express and the Sun about sham marriages. No one condones sham marriages. Even one is unacceptable and the figure that the Minister identified—up to 2,700—is worrying. I have studied his letter to the noble Countess, Lady Mar. He said that the main objective of the clause relates to non-EEA nationals marrying EEA nationals. That is a matter for European Community law. Why are we interfering with UK domestic law in this matter?

It would be particularly helpful to me if the Minister were to provide some statistics about where this fundamental abuse of marriage takes place. Are we talking about non-EEA nationals or people from Commonwealth countries? So far I have not seen any statistic which confirms that.

The amendment tabled by the noble Countess, Lady Mar, is appropriate for two reasons. First, the present immigration legislation provides adequately for entry clearance to be obtained for the purpose of marriage. One has to make the appropriate inquiries in this country regarding the basis of the issue of a certificate. If that certificate is not issued, one cannot come to be married in this country. If the certificate is issued, there is no problem. Why are we not controlling that aspect to ensure that only people who have the right to marry in this country are granted leave to remain?

Secondly, one is not allowed to change one's status after entering the UK. A student has to return to his country if he wishes to be married and a visitor has to do the same to obtain the appropriate certificate to enter the UK. Why are those rules not sufficient to deal with this problem?

Over a period of years the Home Office has moved away from the primary purpose rule, to which the Minister and I did not subscribe, and we have reached a stage where it was initially confirmed that leave to remain would be granted only when someone has had a stable marriage for a period of one year. That period has been increased to two years. If two years have been completed, leave to remain in the United Kingdom is granted.

There are ample safeguards in the existing legislation. In February, according to published figures, over 60 arrests were made in relation to sham marriages. If that is the case, why do we not use the existing law? Why can the Minister tell us that over 2,300 sham marriages took place in 2003 and only 60 people were arrested? I would much prefer that anyone who gets involved in a sham marriages is not allowed to stay in this country. I do not think that anyone has a problem with that.

But what the Minister proposes is not the way to deal with the situation. Why do we have to use marriage registrars as tools for immigration control? The Home Secretary at one time said—I read it in a newspaper—that people who live in this country should marry people who are here. That does not build confidence. It is the right of individuals to marry whom they wish, but that must not in any way evade immigration control.

The amendment in the names of the noble Countess, Lady Mar, and my noble friend Lord Avebury makes sense. No one can use marriage as grounds to remain in the United Kingdom. The amendment gets rid of the role of registrars and the Home Secretary's role in determining who should marry whom. There is no need for a separate system of monitoring, because any appeal could be determined under the existing legislation and over 60 arrests have been made, so the present law is adequate to deal with the matter.

There are matters of serious concern, particularly among minority communities. I saw a headline in one of the ethnic papers, which said,

"Can we marry, Mr Blunkett?".

The article was endorsed by the Labour Peers, the noble Lords, Lord Ahmed and Lord Parekh, by the Conservative Peer, the noble Baroness, Lady Flather, and by myself. We must be careful. The Home Secretary has better things to do than going around saying that he objects to particular marriages.

We have every right to control sham marriages, but it should be done on the basis of the amendment suggested by the noble Countess. If European law needs revision we should consider that rather than interfering with our domestic law.

Photo of Lord Avebury Lord Avebury Shadow Minister, Foreign & Commonwealth Affairs

My Lords, we have had two debates on the Government's new marriage clause, to which the amendment relates, but this is the first time we have considered it, as my noble friend said, with the benefit of the advice of the Joint Committee on Human Rights. I would like to place on the record our extreme gratitude to the committee for the rapidity and thoroughness of its work on all the clauses involved in recommitment as well as on other matters that invariably come before your Lordships that may have human rights implications.

We fully support the Government's aim of clamping down on sham marriages and we acknowledge that the increasing number of reports made by registrars under Section 24 of the 1999 Act indicates that further measures need to be taken to solve the problem. However, we have not been convinced that the existing powers, as my noble friend said, under criminal and immigration law are insufficient to curb the use of marriage as a means of evading immigration controls.

In that we are greatly reinforced by the discussion in paragraphs 36 to 81 of the JCHR report. The fact that almost half the report is devoted to the issue reflects its importance and the sensitivity of the human rights at issue, as we have sought to persuade your Lordships on two previous occasions.

For good measure, the JCHR not only enumerates the ECHR rights in Articles 12 and 14 but also the provisions in the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights, to which the United Kingdom is also a party. The first question the committee asked was whether the requirement in Clause 19(3) that express authorisation must be obtained for a marriage is a breach of Article 12 of ECHR; the right to marry. As it points out, although that right is according to international law, the wording is not interpreted as conferring an unlimited discretion on governments to circumscribe the right because otherwise Article 12 would be redundant.

Any restrictions on the right to marry have to be for a legitimate aim and must be proportionate. Thus, for instance, it was held that laws preventing prisoners from marrying were not within the scope of Article 12. We have to apply the same tests of legitimacy and proportionality to the proposals before us. In that regard, the JCHR has picked up the point we made in Committee that without knowing more about the Section 24 reports and the "striking discrepancy", as the report calls it, between the 2,251 reports by registrars and the 37 persons charged with criminal offences, we are not in a position to reach a conclusion.

As the committee says, we also need to know how many people have been refused leave to remain as spouses on the grounds that their marriages were sham; Amendment No. 15 touches on that point. The JCHR says that there is a significant risk that the proposed restriction on the right to marry may be disproportionate. It gives three substantial reasons, which I shall not attempt to summarise. It concludes that there is a significant risk that the requirement to obtain permission to marry as presently drafted will be incompatible with the right in the ECHR.

The committee also raised discrimination against persons who belong to a religion other than Church of England, to which I referred in Committee. The noble Lord, Lord Rooker, said that there was,

"no evidence of sham marriages in the Church of England".—[Hansard, 15/6/04; col. 696.]

However, the committee did not consider that "a sufficiently weighty justification" for treating members of one religion preferentially in a private matter that affects almost everyone.

Finally, the committee takes up a suggestion I made in Committee that it should consider the application of Article 14 on non-discrimination together with Article 12 on marriage since the clause restricts the rights of non-EEA nationals to marry and therefore treats them less favourably because of their nationality. The committee says that in principle a prior authorisation requirement could be justified if it applied only to those in the UK unlawfully and that more generally it is legitimate to regulate the right to marry so as to prevent the exploitation of marriage as a means of circumventing immigration control.

But as drafted, it considers that there is a significant risk that the proposals will be found to discriminate on grounds of nationality without objective and reasonable justification. It is profoundly unsatisfactory that we should be considering the advice of the JCHR on this important matter at the eleventh hour and without the benefit of a reasoned answer from the Government to the detailed objections that they raise to the clause.

We regret that decisions are not going to be made on the basis of reasoned argument and that Ministers can easily cast aside the opinions of a committee established by your Lordships for the purpose of ensuring that we avoid making human rights errors that will land the Government in the courts. In the past the Government have ignored the JCHR's advice and have good reason to regret it. I hope that that will not happen again.

Photo of Baroness Anelay of St Johns Baroness Anelay of St Johns Shadow Minister, Home, Constitutional & Legal Affairs, Shadow Minister, Home Affairs

My Lords, I have tabled two amendments in the group, Amendments Nos. 20 and 23 to which it may be convenient for me to speak. Amendment No. 23 is supported by the noble Lord, Lord McNally, and the noble Lord, Lord Avebury. In referring to Amendment No. 20, it is a case of putting the cart before the horse. The nature of Third Reading procedure means that I know it is difficult for the Minister to move his amendments until the end when he is responding to everyone else's.

Although the Minister has not yet moved his amendments in this group, I shall welcome them when he does so because they more than adequately respond to the concern I reflected in my Amendment No. 20. The difficulty is that all of us start from the position that the noble Lords, Lord Dholakia and Lord Avebury, have so properly enunciated: we are all against the use of sham marriages for the purposes of obtaining residence in this country. That is not what the institution of marriage is about.

After that we get into difficulties as to how the measure should be applied. I say to the Government that we want to support them if we can but so far we are not convinced that they have properly put in place a mechanism to prevent sham marriages taking place. Therefore, I think that the Government have gone one step further in the right direction. I shall ask the Minister to speak to those amendments rather than simply repeat everything in relation to my Amendment No. 20.

Amendment No. 23 reflects a concern that I had at earlier stages of the Bill. I pointed out that, as we are entering wholly uncharted territory in creating this super-league of registrars, it would be very valuable to have some way of reporting back to Parliament on the work that they were doing, and it would be valuable to know whether or not the Government's new provisions were having the impact that they intended or whether there were unintended consequences. The Minister had given his reasons for rejecting those amendments.

Last week, I had a very helpful meeting with the Joint Council for the Welfare of Immigrants. I am grateful to its members for taking the time to meet me. They put forward Amendment No. 23, which is before the House today. I hope that the approach that it adopts appeals more to the Government than did my original attempt. It provides for the Secretary of State to appoint an independent monitor, who would report on the refusal of permission to marry. He would report to the Secretary of State and the report would be laid before Parliament. Such an independence of approach could be very valuable indeed.

Earlier in our debates today—I noted that it was at about 3.40 p.m. when we were debating Amendment No. 3—the Minister seemed to say that he thought that that was a good idea. He referred to the fact that my idea of a monitor has a precedent in the 1999 Act, which creates an entry-clearance monitor. Indeed, he reminded us of other examples. Therefore, I hope that there is an appropriate read-across to this proposal. An independent monitor would be a valuable step forward here as well.

Photo of Baroness Carnegy of Lour Baroness Carnegy of Lour Conservative

My Lords, government Amendments Nos. 16 to 19, 21 and 22 in this group are a handsome response to my noble friend's Amendment No. 20 and to the discussion that we had at an earlier stage. When we were debating this matter earlier, I asked what the position would be as regards Clause 21, which relates to Scotland. Looking at that clause, I am not sure whether any party to the purported marriage must appear with the registrar. If no one appears, the safeguard which the noble Lord is building in will not be possible. I wonder whether anyone who has it in mind to perpetrate a sham marriage will flee to Scotland to do so. I am not sure that that would be desirable.

Did the Government discuss this issue with Scottish Ministers to ascertain the position? Last night, I was lucky enough to be invited to a reception at the Scotland Office in Dover House and the First Minister was present. At that point, I had not realised quite what the position was. If I had, I think that I would have discussed it with him over a glass of wine. Does the Minister know the answer to that now?

In relation to Amendment No. 23, it seems that it is highly desirable to have some form of monitoring, and an independent monitor might well be a fairly unbureaucratic and inexpensive way of achieving that. I hope that the Minister will look sympathetically at the proposal.

Photo of Lord Lester of Herne Hill Lord Lester of Herne Hill Liberal Democrat

My Lords, I intervene as a member of the Joint Committee on Human Rights. I am glad to do so in the presence of the noble Lord, Lord Judd, who, like me, has the great benefit of serving on that all-party, and beyond-party, committee. I shall explain the reason for my intervention.

Parliament has not been well served by the Home Office in the way in which these human rights issues have been dealt with. At the beginning of our report, which was published yesterday, we say at paragraph 3:

"We have made it clear in a number of reports that we regard it as unacceptable that amendments having significant implications for human rights should be introduced at a late stage in a Bill's passage through Parliament, without a clear explanation of the Government's view of the human rights implications. We find it particularly regrettable that we find ourselves once again in the very same position so soon after having made clear that such a practice undermines parliamentary scrutiny of legislation for compatibility with human rights. Such scrutiny is crucial to the democratic legitimacy of the Human Rights Act 1998. We once again draw this to the attention of each House".

We work very hard; we have an excellent staff; we attend meetings; we consider reports; and we produce them as quickly as possible. The earliest that we could produce a report that could be of any benefit to Parliament and to this debate was yesterday.

My noble friend Lord Avebury has done the House a great service in summarising, in a way that I do not need to do, some of the main issues that we raised in the context of marriage and sham marriages. However, the situation is wholly unsatisfactory for this reason. Having done all that work and having produced what we consider to be a cogent report, it would be impossible for us to expect the Minister now, although we would like him to do so, to respond properly in this debate and before the end of Third Reading to the points that my noble friend Lord Avebury summarised. The net result will be that, in a thinly attended House late in the afternoon, the luckless Minister will have the task of responding to a report as best he can and we shall then move on.

What will be the result of that? There will be no effective parliamentary scrutiny of these human rights issues and, as my noble friend Lord Avebury said, the matter will end up in court. Although I practise at the Bar, I regard it as a misfortune whenever legislation is passed in a form so defective that judges and lawyers have to come to the rescue. That does no one any good—not even the legal profession. It is dispiriting and it is entirely the fault of the Home Office. I am sure that, when he replies, the noble Lord, Lord Rooker, for whom I have great respect and whose love of parliamentary democracy and respect for Parliament is beyond reproach, will, in some sense, apologise. I am sure that he will. But, of course, that will not make good what has been done on this occasion.

This is not an ordinary Bill. It is one that affects the rights of one of the most vulnerable groups of people in this country. I must choose my words carefully—I am tempted to go over the top, but I shall not. I hope that this is the last occasion in the lifetime of this Government, or any future government, that something of this kind happens. When it does, we let down the parliamentary process and, ultimately, we must resort to litigation, which is a great misfortune.

Finally, I want to ask one specific question. It is a narrow but important one. In paragraph 46 of our report, we point out that:

"The legislation is . . . silent about the purpose of the open-ended power in the Secretary of State to exempt certain classes of individuals subject to immigration control from the new requirements".

We point out:

"There is no indication of the sort of differentiations which might be made between different categories of people".

I am sure that we would be grateful for an answer to that specific point and also for a reply to the various other points that have been made in our report.

Photo of Lord Judd Lord Judd Labour

My Lords, I hesitate to intervene. However, I do so simply on this point because I am a member of the Joint Committee on Human Rights. Like the noble Lord, Lord Lester, I am second to no one in my admiration for my noble friend and the way in which he undertakes his work. Therefore, anything that we say contains no personal criticism of him whatever. But the Joint Committee is an all-party committee and the Government should be under no illusions that the points raised by the noble Lord, Lord Lester, were strongly expressed by everyone on the committee, whatever their party allegiance.

Photo of Lord Rooker Lord Rooker Minister of State (Regeneration and Regional Development), Office of the Deputy Prime Minister, Minister (Office of the Deputy Prime Minister) (Regeneration and Regional Development)

My Lords, I am very grateful for, and embarrassed by, some of the things that have just been said, particularly, I freely admit, in view of the fact that, until the noble Lord, Lord Avebury, was on his feet, I did not even know that the report was being published yesterday. Before coming back on the scene, I have obviously tried to get myself briefed on the amendments that we are discussing today and on some of the issues that were not in the recommitted part of the Bill. I wanted to be updated, but I did not know that the report had been published. But I am not hapless; I am angry that I did not know that it had been published. I clearly could not come with a response in 24 hours. I also hope that this is the last time that happens.

Draft Bills are published much more frequently; in fact, one is due imminently. If we are serious about the scrutiny of legislation, serious about getting it right and serious about human rights legislation, we cannot later say that we regret putting the Bill on the statute book but we have done it we will slip round it. That is not on.

I do not know the background and the chronology of events or why the committee did not report. I always speak at this Dispatch Box on behalf of the Government, unless I am speaking for myself. At the moment, I am speaking for myself and for the Government in apologising to your Lordships' House. The Government's treatment of the committee could be bordering on contempt in not allowing sufficient time for scrutiny because I cannot respond.

The Third Reading is set for today. I do not know what procedures will be used in the other place when its Members get this Bill back. Clearly they must have plenty of time to talk about the recommitted issues as they did not debate them when the Bill was before them. I hope that there will be sufficient time for the JCHR report to be considered in the other place, and that the Government somehow concoct a response to the report before amendments are discussed. That is the minimal response. I have no knowledge that this is being put together but I certainly hope so.

If I were in the House of Commons as a Minister—let alone as an Opposition or Back-Bench Member—and there was no response to the JCHR report in the amendments that come from this place, I would have one hell of a row. It will be very substantial block of amendments—almost a Bill on its own.

That is my view as a Minister, not just as an individual Member of the House. This situation puts me in a position where I cannot do my job of representing the Government to this House. I am critical of the machinery, but my job is to represent and speak for the Government in this House. I cannot do that as I would wish to as I have been placed in this position. The Government therefore lose out and we ask for trouble next time around. That situation has to be corrected in future.

I would like to say to the noble Baroness, Lady Carnegy, that she has got it dead right about Scotland. I will come to that point as I will go to my prepared notes in a jiff. In Scotland, there is no requirement to turn up. The situation will be looked at in case there is a problem.

This comes back to the issue of marriage tourism that I raised in Committee—people from overseas who want to get married, probably not on a bridge but perhaps in a castle or somewhere similar. In those cases, it may not be possible to turn up and give notice. The noble Baroness, Lady Carnegy, has got it dead right and has not misread the Bill or the amendments.

I will now proceed with the notes that I have. They were prepared by the Home Office in advance of the Bill and the remarks that I have just made.

Under Amendment No. 15, a person married in the UK, or intending to marry in the UK, would not be eligible to apply for leave to remain where he, or she, has been granted less than six months' leave or only have three months or less of his current leave remaining.

In April 2003, a similar provision to subsections (1)(a) and (2)(a) of the amendment—the six months' leave point—was included in the immigration rules. Paragraph 284 of the immigration rules requires that persons applying for leave to remain on the grounds of a marriage to a British citizen or person settled here have extant leave to remain in the UK and have been granted over six months' leave since the date that they were admitted to the United Kingdom, or have entered the UK with leave as a fiancé. That is one of the normal routes. Where a person does not meet this criterion, he would be expected to leave the UK and apply for entry clearance as a spouse. Many people do that.

While subsections (1)(b) and (2)(b) of the amendment—the three month leave point—may have a use in prohibiting persons approaching the end of their leave from entering into a sham marriage, the Government do not feel that it would be appropriate to consider it at this time. Should evidence arise that such an amendment is necessary, an amendment to the immigration rules could be made in secondary legislation. In any event, the immigration rules would be the appropriate place to make provision of this nature, not primary legislation. I hope that that point is accepted because it is well made.

Furthermore, the amendment tabled by the noble Countess, Lady Mar, does not assist us in combating marriage abuse when it is undertaken by a non-European Economic Area national marrying an EEA national. It is the act of marriage that gives a right of residence in these cases rather than the act of the Home Office granting leave to remain. Those marrying an EEA national do not need to obtain leave to remain on the basis of that marriage to have a right of residence through that marriage. This is because the rights of residence obtained through the marriage to an EEA national are the subject of European law rather than UK domestic legislation. Their rights are irrespective of an individual's immigration status in the UK at the time of the marriage.

As noble Lords will know, all EEA nationals have the right of free movement throughout the EU. This means that they are not subject to immigration control and do not require leave to enter or remain in the United Kingdom. In order to ensure that an EEA national can exercise free movement of rights effectively, he is entitled to have his family members accompany or join him when in another member state and exercising a treaty right.

The family member therefore derives free movement rights through his relationship with the EEA national. This includes a right of residence equivalent to that of his EEA family member. In practice this means that, like the EEA national, he does not have, or need to have, leave to remain when residing in the UK. He is in the UK as a family member of an EEA national exercising a treaty right and is therefore able to obtain a residence document confirming this right. This document is issued for the length of the residence permit his EEA national family member can also obtain. This would normally be for a period of five years.

Reports from registrars and other intelligence sources suggest that fixers of sham marriages are increasingly favouring this EEA route. As an indication of this, 61 per cent of the Section 24 reports received by the Immigration Service in May involved EEA national spouses.

While we are not obliged to issue a residence document in the case of sham marriages, the burden of proof in establishing whether the marriage is one of convenience lies with the Secretary of State. This is a very difficult and a resource-intensive activity.

As such, if we are to stop spouses of EEA nationals abusing immigration law through sham marriages, the most effective option is to stop them from getting married in the UK in first place. Designated register offices in addition to the requirement for entry clearance or a Home Office certificate of approval will provide a complementary two-pronged approach to tackling this marriage abuse.

With this in mind, I hope that the noble Countess, Lady Mar, will withdraw this amendment. She said that she would not proceed with it. I hope that that explains some of the reasons why the amendment cannot be accepted. It is a seductive one until the question of where those rights come from is considered.

As noble Lords will recall, the noble Baroness, Lady Anelay, tabled an amendment at Report stage that would have required both parties to attend the designated centre together. This was resisted because as drafted it did not meet the policy aim, but I stated that we were considering the policy intention behind the amendment. Since then, she has tabled Amendment No. 20, explicitly requiring both parties to attend the centre together.

The noble Baroness stated on Report that it was important that registrars at the new designated centres should be able to use the expertise they will build up in detecting sham marriages effectively, and that it was difficult to see how they could do this if under the new measures the parties to the proposed marriage were able to give notice of their intention to marry at separate designated centres. That would be the position under Clause 19 as currently drafted. The Government agree with the noble Baroness, and have tabled Amendments Nos. 16 to 19 in response to her amendment.

Requiring only non-European economic area nationals to attend designated centres or allowing the couple to attend separately would potentially leave a large loophole in the legislation. The fixers of sham marriages will be able to have participants to the marriage give notice separately which, of course, will deny registrars the opportunity to observe the interaction between couples at the notice stage and reduce the ability of registrars to identify suspicious marriages for the purposes of Section 24 reporting.

By requiring parties to the marriage to give notice together we shall ensure that registrars have an opportunity to observe interaction between couples, enabling them to form a view on whether an intended marriage should be reported as suspicious under current legislation. They will become familiar with the signs indicating a sham marriage and, therefore, be in a better position to be able to identify potential offenders and, in some cases, repeat offenders. One would think that people would not be so stupid as to return to the same register office, but it is amazing what people do. It happens; people have a forged passport and turn up wanting it renewed, never thinking that someone may be checking on it the other side of the desk. It is amazing and it could arise.

Where suspicions are aroused, Section 24 reports can be made and the Immigration and Nationality Directorate's increased commitment to enforcement and intelligence in this area will mean that, where appropriate, action can be taken.

Amendments Nos. 21 and 22 will amend subsection (2)(b) of Clause 23 to bring the powers available in Northern Ireland's enabling clause into line with the amended provisions in Clause 19(2). If there are signs that the problem of sham marriages has been displaced to Northern Ireland, these amendments will give the Secretary of State, after consultation with the Registrar General for Northern Ireland, the power to require that parties to a marriage, involving a European economic area national, give notice together and in person at a designated register office. With that in mind, I would hope that the noble Baroness, Lady Anelay, will withdraw her amendment and that noble Lords will agree to the amendments that I shall move in due course.

The noble Baroness, Lady Anelay, and the noble Lords, Lord Kingsland, Lord McNally and Lord Avebury, have tabled Amendment No. 23 requiring an independent monitor to be appointed in order to report annually on refusals for permission to marry under subsection (3)(b) of Clause 19. Such a monitor does not exist for any of the Immigration and Nationality Directorate's other managed migration functions, such as leave to remain applications. At this point, the Government do not believe that it is appropriate to appoint one to report on this function. We believe that it would be adding unnecessary bureaucracy.

All the Immigration and Nationality Directorate's practices and procedures are subject to compliance with the Race Relations Act 1976, as amended, and are subject to independent review by the race relations monitor. The current monitor reports annually to Parliament and operations under subsection (3)(b) would be included within that remit. So there would be a mechanism for reporting to Parliament.

As I have stated in each of our debates, the Government appreciate the importance of parliamentary scrutiny of the workings of these clauses, which I would have thought would have included the JCHR points that I made earlier. However, we do not feel that an annual report from an independent monitor would be a suitable vehicle in this instance. As I stated on Report, the Immigration and Nationality Directorate officials are seeking to identify a suitable government publication in which the numbers of applications made for certificates of approval and the numbers of successful and unsuccessful applications could be included. I pointed out that some of the issues probably could not be reported if people were simply making inquiries. This publication, once we have found a suitable one, would then be laid before Parliament.

In Amendment No. 24 the noble Lords, Lord McNally and Lord Avebury, have requested that a statutory right of appeal be introduced for those persons who are refused a certificate of approval by the Home Secretary under subsection (3)(b) of Clause 19. The Government do not believe that a statutory right of appeal is necessary in relation to such refusals, as a decision to refuse a certificate of approval will be subject to challenge by way of judicial review.

All applications for certificates of approval will be considered and determined in accordance with published guidance, which will set out the factors to be taken into account by caseworkers when determining such applications. Where an application for a certificate of approval is refused, a person would be free to challenge the decision by judicial review on what are commonly known as Wednesbury grounds—by the way, that is a place in the Black Country in the Midlands—which is that no reasonable person in the same position could reasonably have reached the same conclusion. For example, a person might challenge the decision on the basis that it was not made in accordance with the published guidance, or that the published guidance was itself unreasonable. Therefore, we think that judicial review is a sufficient and appropriate method of challenge to decisions to refuse an application for a certificate of approval.

In light of that, I would hope that noble Lords will not proceed with those amendments.

Some further points were raised. I shall refer to that raised by the noble Lord, Lord Lester, and my noble friend Lord Judd on the JCHR report. We are satisfied that the provisions are fully compatible. We appreciate that the timing is not ideal. We shall respond in detail in writing, as the points raised merit a detailed response. That is the official Home Office response.

Photo of Lord Judd Lord Judd Labour

My Lords—

Photo of Lord Rooker Lord Rooker Minister of State (Regeneration and Regional Development), Office of the Deputy Prime Minister, Minister (Office of the Deputy Prime Minister) (Regeneration and Regional Development)

My Lords, I have not finished yet. I am saying that in my view a response in writing, even if it is an interim response, should be in front of the House of Commons when the Bill returns to that House with the Lords amendments. That is only fair because of the major changes that have been made in this House. I shall give way to my noble friend.

Photo of Lord Judd Lord Judd Labour

My Lords, I am very grateful to my noble friend for giving way. Does he agree that the advice that he has just conveyed to the House is in itself disturbing? No Minister, of course, would bring any legislation to this House unless there were a statement saying that it was compatible with human rights obligations. Our job in the Joint Committee is to examine that and to see whether it is valid.

Photo of Lord Rooker Lord Rooker Minister of State (Regeneration and Regional Development), Office of the Deputy Prime Minister, Minister (Office of the Deputy Prime Minister) (Regeneration and Regional Development)

Yes, my Lords. No Minister would sign the front of the Bill unless he received written advice to the effect that it was compatible. That is the case. I just do not know what the procedure was. The Bill was introduced, it went through Committee stage and Report stage in this House and was recommitted to a Committee so that some amendments could be added. It was not another Bill. I am not sure whether a signature was required because the Bill was that which was presented to Parliament, both to the first House and then to this House. I have never been required to sign to the effect that a particular amendment to a Bill is compatible. On the other hand, the advice that one receives would cover these points. The Committee has a job to do.

Photo of Lord Lester of Herne Hill Lord Lester of Herne Hill Liberal Democrat

My Lords, the way in which the Minister has put the point is entirely fair and practical and shows his commitment to parliamentary scrutiny. I am sure that in the Commons his words will be read and I am sure that the committee will appreciate what he has said.

Photo of Lord Rooker Lord Rooker Minister of State (Regeneration and Regional Development), Office of the Deputy Prime Minister, Minister (Office of the Deputy Prime Minister) (Regeneration and Regional Development)

My Lords, I appreciate that. I am speaking from experience and I am trying to help the Government. We have placed ourselves in a difficult position. I believe that an interim response in writing ought to be made available and I have said that from this Dispatch Box, so that is it.

A noble Lord raised the point about people's changing status once they are in the UK. Persons who have been granted six months' leave or less since entering the UK may not switch into marriage. Those may be people on short-term visas, such as students. Anyone else can switch into marriage if he or she has been granted over six months' leave since entering the UK. However, those provisions apply only to persons marrying British citizens and persons settled here; they do not apply to European economic area nationals exercising treaty rights.

I was asked about Clause 19(3)(c) and who would be exempt. We envisage that persons with settled status in the UK will be exempt under subsection (3)(c). Thus the clause is being left to secondary legislation under the negative resolution procedure, and will be subject to the usual Parliamentary scrutiny procedure. I am not clear whether that answers the point about paragraph 46, which the noble Lord, Lord Lester, asked me about. A note has not winged its way to me, and I shall see if I can get one before we finish tonight, because I can refer to it on another amendment, as I did in our earlier debate on Zimbabwe.

I hope that is a sufficient explanation, that this apology is accepted, that noble Lords will not, therefore, push their amendments to a vote and that, in due course, they will support the amendments I shall move on behalf of the Government.

Photo of The Countess of Mar The Countess of Mar Crossbench

My Lords, before the noble Lord, Lord Rooker, sits down, could he respond to my question about Rule 284? Is it working properly?

Photo of Lord Dholakia Lord Dholakia Shadow Minister, Home Affairs, Party Chair, Liberal Democrats

My Lords, I hope the Minister can write to me if he is not able to answer my question. The purpose of a sham marriage is one of non-EEA nationals marrying EEA nationals for the purpose of leave to remain in the United Kingdom. Would the noble Lord, Lord Rooker, agree that there is nothing to stop non-EEA nationals marrying an EEA national in a European country and then coming to this country and exercising their rights here? There is no way you can control that particular situation.

Photo of Lord Rooker Lord Rooker Minister of State (Regeneration and Regional Development), Office of the Deputy Prime Minister, Minister (Office of the Deputy Prime Minister) (Regeneration and Regional Development)

My Lords, off the top of my head I think that is correct, but I shall take advice and write to the noble Lord, Lord Dholakia. That was one of the issues raised in our earlier debates.

I can only repeat the point I made about paragraph 294 at the opening of my speech. As I made clear, the amendment of the noble Countess, Lady Mar, does not assist us in combating marriage abuse when it is undertaken by a non-EEA national marrying an EEA national. As I said, Paragraph 284 of the immigration rules requires the persons applying for leave to remain on the grounds of marriage to a British citizen or persons settled here, to have extended leave to remain in the UK and been granted over six months' leave since the date they were admitted to the UK, or have entered the UK with leave as a fiancé. Of course, that happens up and down the country many times a week, I suspect.

When a person does not meet these criteria, they would be expected to leave. Quite clearly, if we have a position of alleged sham marriages, something is not working in the rules the way they are intended. It may sound like a glib answer to the noble Countess, but that must be the position. Hence, we need these extra powers.

Photo of The Countess of Mar The Countess of Mar Crossbench

My Lords, the noble Lord, Lord Rooker, will not mind my saying that I think that was a dreadful answer. It does not answer my question.

I am very grateful to noble Lords who have taken part in this debate. We have given the subject an airing, and perhaps the JCHR will be proved right. My instinct tells me that this group of clauses is not a good one. On that basis, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 19 [England and Wales]:

Photo of Lord Rooker Lord Rooker Minister of State (Regeneration and Regional Development), Office of the Deputy Prime Minister, Minister (Office of the Deputy Prime Minister) (Regeneration and Regional Development)

moved Amendments Nos. 16 to 19:

Page 18, line 37, leave out "a notice" and insert "the notices"

Page 18, line 39, leave out "may" and insert "shall"

Page 19, line 1, leave out paragraph (b) and insert—

"(b) shall be delivered to the superintendent registrar in person by the two parties to the marriage,"

Page 19, line 5, leave out first "the" and insert "his or her"

On Question, amendments agreed to.

[Amendment No. 20 not moved.]

Clause 23 [Northern Ireland]:

Photo of Lord Rooker Lord Rooker Minister of State (Regeneration and Regional Development), Office of the Deputy Prime Minister, Minister (Office of the Deputy Prime Minister) (Regeneration and Regional Development)

moved Amendments Nos. 21 and 22:

Page 21, line 27, leave out "may" and insert "shall"

Page 21, line 28, after "given" insert "by both parties together"

On Question, amendments agreed to.

[Amendments Nos. 23 and 24 not moved.]

Clause 26 [Unification of appeal system]:

Photo of Lord Goodhart Lord Goodhart Shadow Minister, Law Officers (Constitutional Affairs)

moved Amendment No. 25:

Page 26, line 5, at end insert—

"( ) If an application under section 103A(1) is brought by a party to the appeal other than the appellant, the appellant's costs—

(a) in respect of the application, and

(b) in respect of the reconsideration, shall be paid out of the Community Legal Service Fund established under section 5 of the Access to Justice Act 1999 (c. 22) (funding of services)."

Photo of Lord Goodhart Lord Goodhart Shadow Minister, Law Officers (Constitutional Affairs)

My Lords, this is a very short point. The provisions of Clause 26 of the Bill relating to legal aid for reconsideration of the original decision of the appeal at the asylum and immigration tribunal are apparently based on the assumption that the application for reconsideration will be made only by an asylum seeker or immigrant. In fact, an application can be made by the other party to the appeal, the Home Office, which may be unsatisfied with a decision in favour of the asylum seeker or immigrant.

The provisions are that legal aid can be granted to an asylum seeker or immigrant only retrospectively. In the case where the asylum seeker has been successful before the tribunal and then the Home Office has obtained an order for reconsideration, it does seem unfair that the asylum seeker, or lawyers, should be entitled to the benefit of legal aid only retrospectively. Having won first time, surely the asylum seeker must be entitled to legal aid to defend his or her position. I beg to move.

Photo of Lord Kingsland Lord Kingsland Shadow Lord Chancellor, Parliament

My Lords, I find the argument of the noble Lord, Lord Goodhart, very compelling.

Photo of Lord Filkin Lord Filkin Parliamentary Under-Secretary, Department for Constitutional Affairs, Parliamentary Under-Secretary (Department for Constitutional Affairs)

My Lords, I can assure the noble Lord, Lord Goodhart, and the House that Clause 103D will only apply to reviews and reconsiderations instigated by the appellant. This is already explicit—or perhaps implicit—in the text of Clause 103D(1) and (3). They use the words "on the application of the appellant" as a prelude to the new provisions conferring new powers on the tribunal and the High Court to order payments out of public funds. In all other circumstances, the usual legal aid scheme will continue to operate, including the means and merit tests and the usual arrangements whereby the court or tribunal can order the losing party to pay the winning party's costs, without any drain on public expenditure. Nothing, therefore, in Clause 103D applies in relation to cases where the review is instigated by a party to the appeal other than the appellant. I hope that that clarification is helpful to the noble Lord, Lord Goodhart.

Photo of Lord Goodhart Lord Goodhart Shadow Minister, Law Officers (Constitutional Affairs)

My Lords, I am grateful to the Minister. It certainly is not explicit, and it was not clear to me that it was implicit. In view of what the Minister has now said, however, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Lord Goodhart Lord Goodhart Shadow Minister, Law Officers (Constitutional Affairs)

My Lords, this is much more serious group of amendments. I speak also to Amendment Nos. 27, 28 and 30 to 33. These are all amendments to Clause 26.

Clause 26 eliminates the adjudicators and provides for appeals by immigrants or asylum seekers from an adverse decision or an immigration officer direct to the asylum and immigration tribunal. If that appeal is rejected, the immigrant or asylum seeker can apply to the High Court for an order requiring the tribunal to reconsider its decision on the ground that it may have made an error in law.

The Bill inserts new Section 103D into the Nationality, Immigration and Asylum Act 2002. That is the provision which deals with costs. Under Clause 103D(1) and (2), the applicant's costs may be paid out of the Community Legal Service fund if, but only if, the application has succeeded. That is the cost of the application, not of any reconsideration which has been ordered. At the reconsideration stage, the tribunal can order the costs of both the application and the reconsideration to be paid out of the fund under Clause 103D(3) and (4). The reconsideration does not have to be successful in order to get an order, but the result has to be taken into account under these provisions. Clause 103D(6)(a) provides that if payments of legal aid are made, the amount of payments may vary according to the result. That is to enable the Government to provide mark-up success fees for successful applications. Section 103D(6)(c) provides that the power to make an order for the payment of costs,

"may be restricted by reference to the outcome of the appeal".

The Government have made it clear that they intend to introduce a conditional fee system for both the application and any reconsideration which may result from a successful application. There is an absolute "no win—no fee" system at the application stage because the order under subsection (1) can only be made if the appropriate court has made an order. At the reconsideration stage, the Government have said that they will limit payments out of the fund to winners or near misses, but as with conditional fees under the Access to Justice Act 1999 there will be a mark-up for successful cases.

Conditional fees were introduced by the 1999 Act for civil cases involving damages or claims to property. Conditional fees have many defects, but we have to accept they are here to stay in civil cases. Up to now, they have not been introduced in public law cases and they cannot, under the 1999 Act, be introduced for criminal cases. If ever the conditional fee system was applied to criminal appeals, I believe there would be an absolute uproar in the legal profession and beyond it. What would the effect of that be? Of course, it would depend on the amount of the "success fee" or mark-up. If we assume that it is 100 per cent—that is, double the standard fee being given if successful; it certainly would not be more than 100 per cent, and could well be less—it would mean that lawyers would not take a case unless the chances of success were greater than 50 per cent, otherwise they would end up being out of pocket.

People convicted of crime must obviously be allowed to apply for leave to appeal from conviction even if their chance of success is quite small, and if the judge hearing the application for leave thinks the case is strong enough to justify leave to appeal then the appellant will get legal aid for that appeal, win or lose. The consequences of a wrongful rejection of an asylum claim can be just as disastrous as the consequences of a wrongful conviction, so I believe that legal aid for the application and reconsideration should in principle be treated on the same basis as criminal appeals. It is completely unacceptable if lawyers refuse to take a case because it only has a 40 per cent chance of success, or indeed a 20 or 25 per cent chance of success.

I am prepared to accept that some modification of the criminal appeal basis is appropriate here. For the application, what I propose is to remove the requirement that the costs of the application can only be paid if the application succeeds. That is the result of Amendment No. 26, which leaves payment in the discretion of the High Court judge who hears the application. This discretion would of course be retrospective, but I believe the court, if left with that discretion, would order payment where it was reasonable to make the application, even though it had not succeeded. Conversely, where there were no reasonable grounds for making the application, costs would be refused. The costs of the application are relatively small, because applications are determined on the basis of written submissions of the applicant, without argument. But the reconsideration stage involves considerably more time and work, because the cases have to be argued and are contested. It is true that they are legal arguments only, but they could be time-consuming, involving a full day or more.

In principle, I believe that if the application is granted, that shows there must be reasonable grounds for reconsideration and legal aid should be granted before the reconsideration hearing. I put forward an amendment at Report which would have had that effect. I have however decided not to bring that amendment back, and have instead put down Amendment No. 28, which gives the High Court power to grant legal aid in advance where reconsideration is ordered. I do not intend to press that amendment because it is not central to the case that I am making. I recognise that there could be cases in which the grounds on which a successful application has been based are misleading or incomplete. For example, failure of the lawyer making the application to cite an important decision in another case of which the judge is unaware.

I am, therefore, prepared to accept that the order for payment of costs should be retrospective and in the discretion of the tribunal, but I believe strongly that costs should only be refused where there are no reasonable grounds for making that application. That is the effect of Amendment No. 30. If the costs are refused, reasons must be given so that that decision can be reviewed: that is the purpose of Amendment No. 31. I have passed over Amendment No. 27, which is a very minor consequential amendment.

It follows that reference to the amount of the payments varying according to the results, and to the order for payments being restricted by reference to the outcome of the appeal should be omitted. That is the effect of Amendments Nos. 32 and 33.

The Bill as amended will still give protection to the legitimate aims of the Government. Applications will still be dealt with quickly, because there will be no prior applications for legal aid. Hopeless applications will be deterred because the judge or tribunal can dismiss them and refuse, in their discretion, to order costs. Lawyers in the few unreasonable cases which may slip through the filter will be punished by being refused payment out of the Legal Aid Fund.

If these amendments are not accepted, there is a real risk of injustice to immigrants and asylum seekers. That is the view of the Joint Committee on Human Rights, in a report which was published much longer ago than yesterday. These passages are from its thirteenth report of the present Session. On page 23 the committee says:

"It seems to us undesirable that the right of access to court for the protection of the most fundamental of rights should be made to depend for its effectiveness on the degree to which lawyers are risk-takers".

The report continues at paragraph 1.85 to say:

"The evidence of respected bodies with practical experience in the field is that the legal aid proposals will inevitably lead to meritorious cases not proceeding because of the practical impossibility of obtaining representation, and this will in turn lead to individuals being returned in breach of the UK's ECHR obligations and of the principle of non-refoulement. We remind the Government of its obligation under the ECHR to ensure that there is available a practically effective opportunity to have the substance of any arguable Convention complaint considered, and that this obligation includes a positive obligation to take steps to make sure that there are not practical obstacles to the availability of such an opportunity".

Then, in paragraph 1.87, the committee says:

"We agree that the effect of the proposed conditional fee legal aid regime for High Court reviews from the Tribunal will be that meritorious cases do not get brought because of the lack of representation".

I am astonished that the Government are prepared to put into the Bill provisions which will cause such obvious injustice—doubly so when that injustice could be avoided by alterations to the Bill which would protect the legitimate objectives of the Government: the deterrence of unmeritorious appeals. I beg to move.

Photo of Lord Kingsland Lord Kingsland Shadow Lord Chancellor, Parliament

My Lords, the encyclopaedic preamble of the noble Lord, Lord Goodhart, to these amendments has left me with a relatively modest task. I entirely share his views about conditional fees, as indeed I explained at Report. It seems to me that they are, in principle, wrong in the context of public law matters. Not only are they wrong but also, in my submission, unworkable because the financial affairs of asylum seekers are such that they could never afford the insurance premium necessary to guarantee their legal representatives' fees in circumstances where the case was lost.

On the other hand, I also share the view of the noble Lord, Lord Goodhart, that is appropriate to award costs at the reconsideration stage, retrospectively, and at the discretion of the tribunal. The test should be a merits test and it should be a robust test without being unfair. There is no amendment which seeks to gauge exactly what the merits test should be. I shall be interested to hear whether the Government have given any further thought to that matter between Report and Third Reading.

Some of the amendments carry the name of both the noble Lord, Lord Goodhart, and myself. Since the noble Lord has already spoken to them, I need add nothing. But there is one amendment in the name of the noble Lord, Lord Goodhart, which I have been unable to support. I refer to Amendment No. 28. That is not because I disagree with the spirit of the amendment but because it seems unfair that there should be, as it were, two classes of legal aid rules for those who reach the reconsideration stage.

There are rules which are established by the High Court judge, because Amendment No. 28 says that a High Court judge,

"may order that the appellant's costs in respect of the reconsideration shall be paid out of that Fund", and rules that apply to those applicants who have not had such an order made by the High Court judge and therefore have to rely on the discretion of the tribunal. That seems to put the second category in a disadvantageous situation. I would like to see all those who come before the tribunal for reconsideration having their legal aid applications treated on the same basis.

Photo of Lord Clinton-Davis Lord Clinton-Davis Labour

My Lords, I am not entirely persuaded that the Government have alighted on the correct solution to what is undoubtedly a very difficult problem. Nor am I persuaded that the alternatives which have been postulated, notably by the noble Lord, Lord Goodhart, provide the complete answer, although I think that in theory, they are rather more compelling than the Government's case.

I plead guilty to preferring, in our earlier debates, a view different from that of the Government. I shall not weary the House with a reiteration of all the arguments. Suffice it to say, we are both dealing with situations which, by their very nature, are, at this stage, unproved and, indeed, cannot be verifiable.

I submit, therefore, that the Government should have an opportunity—two years from the enactment of the Bill, say—to determine whether their preferred way works without having any serious impact on civil liberties or whether we should revisit the matter, giving the Legal Services Commission the task of determining whether there is an arguable case, and that those putting it forward should be in no doubt that their costs will be paid. I ask my noble friend whether this idea is worth contemplating, as I believe it is.

Photo of Lord Filkin Lord Filkin Parliamentary Under-Secretary, Department for Constitutional Affairs, Parliamentary Under-Secretary (Department for Constitutional Affairs)

My Lords, in responding to what have been clear and succinct speeches, I shall set out the Government's position pretty fully. That is not because I want to weary the House but if, as may well be the case, we come back to these issues time and time again—and I hope that I have the attention of the noble Lord, Lord Kingsland, on this point—it is fair that noble Lords should understand why the Government are doing this and the force of their position in this respect, so that there is no misunderstanding.

When we originally introduced the Bill into this House, we had sought to remove judicial review. We did so not for any flippant or frivolous reasons but because we have a duty to this country to try to make the asylum system work. This is in the interests of those who claim refuge in our society but also in the interests of the taxpayer, the efficient use of public money and the confidence of our society that the Government are addressing the issue of asylum properly as well as addressing asylum abuse properly.

We listened to noble Lords when they said that they felt that ousting judicial review was going too far, and we listened seriously. The noble Lord, Lord Kingsland, had the courtesy to acknowledge that when my noble and learned friend the Lord Chancellor put before the House why we had listened and why we were going to change. But make no mistake—we are not embarking on a process to recreate, amendment by amendment, the old two-tier system of appeals from the original decision process that we currently have. That is for a very good reason. While undoubtedly there are some people who ought to have had further consideration, in practice the process has led to abuse. If this House is party to perpetuating such abuse, the public will express their views on the matter very clearly and strongly. I make a distinction between abuse and trying to ensure that we uphold the civilised standards that we are proud of in our society.

So we are not going to allow the recreation of a bells and whistles two-tier system which has been the central thrust of this part of the Bill. Why not? First, there is the issue of cost. The cost of legal aid for asylum and immigration cases went from £53 million in 1998–99 to £176 million in 2002–03, while the most recent figure is nearer £200 million. There are plenty of good uses for £200 million.

The cost of an individual pursuing an appeal through to judicial review is probably about £4,000. Of course it is right and proper that such an individual should be legally aided by the state if there is serious merit in his or her case, but it is not right and proper for the state to fund an appeal when there is not serious merit in the case. Our society would hold us, as a House, in contempt if we were not able to make that distinction.

There is also the issue of delay. The consequence of a byzantine structure of appeals, which is what we are trying to demolish, is that it takes well over a year—more than 62 weeks—for a person who is persistent with their legal adviser and uses every single step of the process to bring the matter to a conclusion. We are seeking to put in place a system that is fair to the appellant but can nevertheless be concluded within 20 weeks or so.

The effect of a long-running process also matters. Europol—not me and not the Home Office—estimates that 70 per cent of people who come into the EU are facilitated in doing so by criminal gangs. It is self-evident that they have to have assistance to get to Britain, either through false means of transportation or forged documentation. This is a criminally run and criminally supported business. One of the reasons that it is a good business for criminals is that people will pay them substantial sums of money to try to get into Britain and pursue an asylum claim.

Britain is attractive because the process is long and slow, and removals are difficult. Countries where the process is rapid and removals are certain are a much less attractive proposition for a facilitator who is trying to extract £5,000 from somebody in the Indian subcontinent who wants to get into another country. That is why it matters.

The final reason why the process matters is that wider society in Britain does not believe that the Government or Parliament are able to make that distinction between people who are genuine asylum cases and those who, supported by criminals, are able to make claims that are not genuine and have a state-funded process that supports them in doing so. That undermines the confidence of society in government and the administration of justice. More seriously, it also undermines the public's belief that people who are granted asylum in our society are genuinely deserving of the refuge that this country gives. That matters in terms of our society. I do not want, nor should this House want, society to think that asylum recipients are liars, cheats, crooks or frauds. That terribly damages community cohesion.

I have set out with no apology why that matters and why I fear noble Lords will be hearing me say it on a number of occasions again in the future, if, as I fear, both opposition parties choose to ignore that serious picture and vote against what we are proposing.

I turn to the specifics of the issue. Approximately 70 per cent of people who are given a "no" decision by IND lodge an appeal. In many ways, one would expect them to do so. Of that 70 per cent who have had their case heard by the independent tribunal, which has not found that they deserve asylum according to our laws and international standards, about 50 per cent then appeal to the Immigration Appeal Tribunal. The noble Lord, Lord Newton, who is in his place

Photo of The Countess of Mar The Countess of Mar Crossbench

My Lords, perhaps I may slightly correct the Minister. The first appeal is to an adjudicator, not to an independent tribunal.

Photo of Lord Filkin Lord Filkin Parliamentary Under-Secretary, Department for Constitutional Affairs, Parliamentary Under-Secretary (Department for Constitutional Affairs)

My Lords, the noble Countess, Lady Mar, is absolutely right. The first appeal is to an adjudicator in the Independent Immigration Appellate Authority. The second appeal is to the independent tribunal. I thank her for that correction.

(10)Those figures demonstrate a level of appeal to the higher stages which one sees in no other tribunals in our jurisdiction. That is for two obvious reasons. First, the applicant has absolutely nothing to lose by playing the appeal process to the maximum. Without being too sharp about it, the lawyer has absolutely nothing to lose by taking cases that do not have serious merit, or even reasonable grounds to argue, to the next stage of appeal because they are fully funded by the state in doing so. Therefore, we have a system which provides an incentive for both applicant and lawyer to play it long. That produces the serious, negative consequences that I have described. Those consequences matter to this Government and they matter to this society.

Finally, I shall speak to the summary figures. If one looks at the number of people who appeal from the decision of the adjudicator to a higher tier of process and if one then tracks the figures around the system, only one in 10 of those people who appeal against an adjudicator's decision has that decision changed at the end of the process. If one wanted evidence of abuse, that figure would provide it. I have identified the motivation for abuse, but that figure demonstrates that there is abuse in the system. Only one in 10 cases actually leads to a change in decision.

The statistics are complex. I have put a letter in the Library of the House which explains why I am absolutely confident that that is a true and fair figure. It is the figure that should be sitting over this debate. We are not talking about a system where there is no problem and which we do not need to worry about sorting out. We need to worry about sorting it out extremely seriously and I shall watch with interest how the respective parties vote on these issues if the House divides.

That is why the appeal system matters and why the Government are committed to trying to do something about it. I shall now say where the amendments are deficient and why I do not agree with them. I shall also, as I hope is my wont, signal where there may be some common ground. I shall be interested to see whether there is any common ground on these issues.

I turn briefly to the process. Section 103D was part of the package of amendments that was introduced to replace the judicial review ouster with a new system of access to the higher courts. It is central to ensuring that only those with a genuine claim apply for review and to discouraging abuse. I have spoken about the abuse and I shall not repeat that. In exceptional circumstances, the High Court will have the power to order legal aid to be paid for the review process. An example of an exceptional circumstance might be a case where, on consideration of the review application, the High Court referred it to the Court of Appeal because it raised a question of law of general importance to the system. In those cases, it is right and proper that legal aid should be awarded, as I am sure that the noble Lord, Lord Goodhart, would recognise.

Under those new arrangements, we are asking lawyers to share the risk with the taxpayer when deciding whether a case should be pursued beyond the single tier. If we went along with the thrust of the amendment of the noble Lord, Lord Goodhart—for whom I have the greatest respect and who I know has tabled it from good principles—the broad consequence would be that virtually any appellant would be able to argue that there was some reasonable grounds. One would need an absolutely hopeless lawyer or an absolutely hopeless case, or both, not to be able to find some reasonable ground for lodging an appeal. The consequence of no reasonable grounds is that virtually everybody would continue to receive legal aid, even for cases—

Photo of Lord Goodhart Lord Goodhart Shadow Minister, Law Officers (Constitutional Affairs)

My Lords, is the Minister aware of the famous remark of one appellate judge; that the fact that a case has been argued for a week does not mean that is an arguable case?

Photo of Lord Filkin Lord Filkin Parliamentary Under-Secretary, Department for Constitutional Affairs, Parliamentary Under-Secretary (Department for Constitutional Affairs)

Yes, my Lords, I take the point. Without speaking at great length, while it is, on the face of it, seductive to the House to think that there are no reasonable grounds, I envisage the consequences of that being our finding ourselves very much where we are now. And where we are now is very unsatisfactory for the reasons that I have given.

Some of the debate will turn on whether it is reasonable to put the burden on the lawyer to make a judgment about whether he should take a case to appeal. The lawyers who are making that judgment will already know the case, because, in most cases, they will have advised the applicant on legal aid when he was making his appeal to the IND. They will have advised the applicant when he made his application to the IAT. Therefore, they will know the facts and the strength of that case. Essentially, the system will be that they should be rewarded on success and that they should be rewarded on near-misses. They should be rewarded at a higher rate than would normally be the case so that they are compensated for the risk that they take, because none of us can perfectly judge which case is a winner or even which is a near miss. Our intent is not to squeeze out of the system those cases which have reasonable grounds for being argued—those cases should be brought forward. Nor is it our intention to make the legislation so stringent that a good asylum lawyer cannot make a judgment where he thinks that the case has legs and should have a hearing. If he gets that wrong, one wants him to be in a position whereby, on swings and roundabouts over time, sufficient legal aid is granted as to continue an adequate supply of lawyers. Therefore, central to our thinking is that one has to pitch the legal aid, by whatever mechanism—there could be variability in it or a debate about it—so that there is an adequate supply of lawyers who are prepared to come forward and take cases that should be taken up because they have merit. However, we have to squeeze out those cases where there are no reasonable grounds for believing that there has been an error of law on the part of the AIT and that, therefore, they justify a reconsideration.

At previous stages of the debate, I have been asked why the LSC should do not all of that. There are two reasons for that. First, the LSC will add a further delay to the loop. Secondly, it is extremely difficult, just on the basis of the case that is presented on paper by the appellant's solicitor, to make a judgment about whether that case has strong merit. Therefore what happens is that such cases are put through and it is only when the full case is argued before the AIT on reconsideration that anyone apart from the lawyer will be in a position to make a judgment about whether the case had serious merit or not. The approach involves those reasons and not any flippant reasons. If we could have done it another way we would have given it serious consideration, but it does not actually work in practice if we are to achieve what we wish to.

The mechanism of trying to incentivise lawyers to bring forward good cases—and to reward them at a level that ensures that they do so and take a reasonable level of risk—has to be crafted in detail through regulations. Those require a serious discussion with the professions to get the level right to ensure there is an adequacy of supply. That is not a flippant but a serious point. We want to ensure that there is adequacy of supply so that they do take those judgments and risks. We cannot calibrate the detail of that now.

Amendment No. 26 would enable the High Court power to award legal aid for review applications even if the application was dismissed. That is totally at odds with the policy underpinning the proposals, which is to encourage lawyers to focus on meritorious cases. Paying legal aid for unsuccessful applications will not give the deterrent effect that is so crucial to ensure lawyers do not flood the High Court and the tribunal with weak cases.

Amendment No. 28 gives the High Court power to order legal aid to be paid for reconsideration. Again that undermines the policy intention. It is important to understand the process. The review stage is a gateway. It will be a paper-based process and the High Court will only be engaged in deciding whether the tribunal might have made an error of law that affected the outcome. If it does make that decision, it will order the tribunal to consider the case in practice.

On reconsideration, parties to the appeal will be able to make oral representations and the tribunal will have the opportunity to examine cases fully. It is inappropriate for the High Court, at an ex parte hearing, to make a definitive ruling binding on the tribunal. That judgment should be made at the tribunal, as I think the noble Lord, Lord Kingsland, accepted when he spoke in his support for some of the amendments.

Let me give an illustration of why that is so. We have some experience from, I think, May 2003 to April 2004 on statutory—

Photo of Lord Goodhart Lord Goodhart Shadow Minister, Law Officers (Constitutional Affairs)

My Lords, I do not know if it will help the Minister, but I said in opening that I was not intending to press Amendment No. 28.

Photo of Lord Filkin Lord Filkin Parliamentary Under-Secretary, Department for Constitutional Affairs, Parliamentary Under-Secretary (Department for Constitutional Affairs)

My Lords, I thank the noble Lord, Lord Goodhart. He is quite right. Perhaps I will spare him some of my further dire statistics, but I can no doubt share them with him on another occasion.

On Amendment No. 29, if the High Court thinks a review application has no merit, the amendment requires it to issue a certificate to that effect. I recognise the intention behind the amendment, but it is not necessary.

As the noble Lord, Lord Kingsland, knows, under the Government's proposals, which will be detailed in the regulations made in due course, we foresee the High Court will order legal aid to be paid only in exceptional cases—for example, as we stated explicitly in Clause 103D(1) where the court refers a case to the Court of Appeal. In the majority of cases the High Court is only dealing with ex parte application and will not play a part in ordering legal aid to be paid. It will be for the tribunal. Amendments Nos. 30 and 31 require the tribunal to award legal aid in every case unless there were no reasonable grounds for doing so. I have spoken to that already and shown the dire consequences that would come about.

Amendment No. 32 removes from the Bill the power to award different payments to different cases, based on the outcome of the case. What I heard from the noble Lord, Lord Kingsland—no doubt he will correct me if I heard wrongly—was that while he did not like conditional fees—I think he went so far as to say that they were wrong—he did agree that for having an effective control system, costs had to be awarded retrospectively at the discretion of the tribunal. We are four square on that point.

The noble Lord also said that he was perfectly comfortable with a robust merits test. What I understand by that is that he would see that there should be the payment of legal aid, clearly on cases that succeeded, and no doubt also, without putting words into his mouth, on cases that had merit or strong merit. Therefore I infer from what he said that there should be a flat fee on all such cases. It is possible that we are talking about whether there should be a two-stage fee or a flat fee, perhaps at a higher level than the lower level might be on a two-stage fee, applied for perhaps a tightly limited number of cases.

If that is what the noble Lord, Lord Kingsland, intended—I am not getting a response; yes I am—I do not think the difference between us is necessarily massive. But no doubt he will correct me if I am wrong.

I have gone on long enough. I am glad to hear that I have the House's support on that as ever. But my length is for a reason. If we do not get this matter right—if this House does something to the Bill that means we fundamentally do not fulfil the duty we have to the country in being fair to asylum seekers, yet also controlling abuse of the system—we will be rightly pilloried, but also the issue will return to your Lordships' House. It is as well that noble Lords understand why we feel strongly on this issue.

Before the noble Lord, Lord Clinton-Davis, interrupts, I conclude that I agree with him that as regards the system that we intend to put in place—with or without modifications, if there is scope for modifications—we would be very happy to give a commitment that we will review its operation over a two-year period and will put the report of that review into the Library of the House, so that it is there for inspection, debate and evaluation. I hope that answers the point of the noble Lord, Lord Clinton-Davis.

I hope that with those reasons the House will not feel it necessary to move to a Division because I have clearly signalled my willingness to debate within the parameters on which I had a discussion with the noble Lord, Lord Kingsland.

Photo of Lord Kingsland Lord Kingsland Shadow Lord Chancellor, Parliament

My Lords, I am most grateful to the noble Lord, Lord Filkin, for those remarks. The position is this: we have put our names to Amendment No. 26—it is a joint amendment—and Amendments Nos. 32 and 34. Those amendments seek to remove the conditional fee system from the Bill. As far as we are concerned, those amendments are unnegotiable. We find a conditional fee system unacceptable.

However, for my part, if the noble Lord were prepared to say that he would go off to another place and introduce a system based on merits with a robust merits test, but which applied equally to winners or losers without any distinction between the two—if he were prepared to give that commitment on the Floor of the House—then I would be prepared to leave the noble Lord to fulfil that commitment in another place and see what came back to your Lordships' House as a consequence.

Photo of Lord Filkin Lord Filkin Parliamentary Under-Secretary, Department for Constitutional Affairs, Parliamentary Under-Secretary (Department for Constitutional Affairs)

My Lords, I will respond to the noble Lord, Lord Kingsland. Although I have probably implied as much in what I said, but let me spell out our view for the avoidance of doubt. We are not wedded to the finest detail of the proposed mechanism. We are wedded to a system that focuses legal aid tightly on those cases which have real merit. That is for good reason. That means the decision can be made only at the end of the process by the tribunal. The detail has to be worked out in regulations, for good not flippant reasons, because one is also partly trying to ensure that whatever system one sets up has an adequacy of supply. You have to have an adequacy otherwise you do not meet the interests of justice.

If the debate is on how we craft a system that has a robust merits test—"significant merit" are the words that I would tend to look at—we are not wedded to a two-tier system and we are open to looking at introducing amendments that brought in a serious merits test and paid legal aid for cases that won or did not win but met the serious merits test. I give that commitment that we would be happy to do so in another place. I hope that answers the noble Lord, Lord Kingsland, clearly and unequivocally.

Photo of Lord Goodhart Lord Goodhart Shadow Minister, Law Officers (Constitutional Affairs)

My Lords, our amendments meet absolutely the legitimate intention of the Government to cut expenses, because they would make the award of legal aid retrospective, so that it would not be granted when the application for reconsideration was made on unreasonable grounds. The Minister shakes his head, but he said during the course of this debate that the Government's aim was to squeeze out cases in which there were no reasonable grounds. That is exactly our aim too. The problem is that the Minister's draft of these clauses will squeeze out not only cases in which there are no reasonable grounds but those in which there are reasonable grounds.

Photo of Lord Filkin Lord Filkin Parliamentary Under-Secretary, Department for Constitutional Affairs, Parliamentary Under-Secretary (Department for Constitutional Affairs)

My Lords, I hope that I understand the position taken by the noble Lord. Noble Lords have corrected me previously, but I have said quite a lot. Essentially, I am convinced, as are our lawyers and officials, that the effect of the noble Lord's amendment would be that we would rapidly have a very large number of cases with pretty weak merits coming through the system, legally aided by the state. We would be recreating the two-tier system with all the negative consequences that I have set out.

Photo of Lord Goodhart Lord Goodhart Shadow Minister, Law Officers (Constitutional Affairs)

My Lords, in that case, I must ask for the opinion of the House.

On Question, Whether the said amendment (No. 26) shall be agreed to?

Their Lordships divided: Contents, 41; Not-Contents, 95.

Division number 3 Private Parking: Ports and Trading Estates — Asylum and Immigration (Treatment of Claimants, etc.) Bill

Aye: 39 Members of the House of Lords

No: 93 Members of the House of Lords

Ayes: A-Z by last name

Tellers

Nos: A-Z by last name

Tellers

Resolved in the negative, and amendment disagreed to accordingly.

[Amendments Nos. 27 to 34 not moved.]

Photo of Baroness Crawley Baroness Crawley Government Whip, Baroness in Waiting (HM Household) (Whip)

My Lords, I beg to move that the proceedings after Third Reading be now adjourned until five minutes past nine o'clock.

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