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My Lords, before I move Amendment No. 1, I wonder if your noble Lordships would indulge me for a moment in remembering Lord Chan? Others are far better placed than I to talk of his incredible role in health, race relations and academic life. In the context of this Bill, I am reminded by his absence of his support and advocacy, at Second Reading, of the Chinese community in particular. He set out compelling arguments in support of the Chinese food industry; he reminded us of the need to continue welcoming the large number of Chinese students who come to the United Kingdom; and he reminded us of the amazing academic attainment of those members of the Chinese community who stay in the United Kingdom, and contribute so fully to our economic life.
I committed to Lord Chan that I would meet representatives of the Chinese community and I have fulfilled that undertaking with two meetings thus far and a commitment to further meetings with them. In doing so, I seek to address their concerns, to reassure them about the focus and direction of government policy, and to listen carefully to the issues raised. Lord Chan will be sorely missed. In honouring my commitment to him, I also seek to honour his memory.
My Lords, I am sure the whole House will appreciate that the Minister took this opportunity to pay a very generous tribute to the late Lord Chan, whose last contribution in the House was his remarkable speech on the Second Reading of this Bill on
My Lords, I shall support Amendment No. 1 when it is moved, but like the noble Lord, Lord Lea of Crondall, I have looked back at the Second Reading debate on
For me, it is a matter of great satisfaction that the Minister has recognised the importance of the points raised by Lord Chan, continued the contacts with the Chinese community and is willing to see whether solutions can be found. There is therefore a welcome continuity, despite the sad death of our colleague, Lord Chan.
My Lords, Lord Chan brought welcome expertise to this House. He spoke modestly, with commonsense and compassion. I shall certainly miss him. I also welcome the fact that his representations on behalf of the Chinese community have been so extensively and properly taken up by the Government.
My Lords, on behalf of those on these Benches, I pay tribute to Lord Chan. I had known Lord Chan for more than 20 years, since his appointment to the Commission for Racial Equality and through his continued membership of a number of other public bodies. He was the first people's Peer to be appointed to the House of Lords. As a member of that commission, I am delighted that our judgment was proved right in his particular case.
Human rights, race relations and issues related to his personal profession of medicine were close to Lord Chan's heart. In an unassuming way, he reflected those issues in your Lordships' Chamber. More interestingly, by his contribution to the Second Reading of this immigration Bill, he was able to highlight issues affecting the Chinese community. He was at the forefront of such issues and we recollect his contribution to our debates on the tragedy of the Morecombe Bay cockle pickers. To an extent, he activated the Chinese community, which was reflected in a number of meetings we all had.
I attended a Chinese New Year function last night at which I met a Chinese representative. I was told that they all miss him. One thing that came out clearly was appreciation of the Minister's indication of how she will take the issues forward. We are all grateful for that.
moved Amendment No. 1:
Page 1, line 3, leave out subsections (1) to (4).
My Lords, in moving Amendment No. 1, I shall speak to the other amendments in the group. This group of amendments has been proposed in response to concerns and suggestions raised during Grand Committee in your Lordships' House and elsewhere. I am grateful to all noble Lords and to members of different stakeholder groups who have made representations to me. As noble Lords will see, these amendments will confirm in-country rights of appeal against variation decisions, as is the case under existing legislation.
We maintain that it is important to create an effective single appeals system. Throughout the passage of the Bill, there has been a great deal of agreement in your Lordships' House that that is an important principle. We have therefore created within this group of amendments a new power to make removal decisions in order to achieve this.
Under these provisions, appellants will be able to contest variation and removal decisions at the same appeal, while continuing to remain in the UK with continuing leave. The amendments fit into the wider strategy of implementing an end-to-end migration process and will incorporate other elements of the five-year strategy. As your Lordships will know from this legislation, that includes the introduction of e-borders, for example, which will help us to know when people comply with the terms of their leave.
I will briefly speak to each amendment so that noble Lords can see how they fit together. Amendments Nos. 1, 2 and 3 are part of a package of government amendments which confer in-country appeal rights on a broad range of applicants. First, the existing right of appeal against decisions to refuse to vary and to curtail leave will be retained by virtue of Amendment No. 1. As a result, it is no longer necessary to confer a separate right of appeal against variation decisions for specific categories of leave. Clause 1(4) is therefore deleted.
Our intention behind these amendments is to allow variation and removal decisions to be made simultaneously and for both decisions to be contested at the same appeal. These amendments will ensure that variation appeals fit into the wider strategy of implementing the end-to-end managed migration process.
Amendments Nos. 4 and 5 are consequential to the package of provisions that we have introduced to ensure that in variation, curtailment and revocation cases there should, so far as is possible, be a single in-country right of appeal at which the enforcement decision can also be considered. As a result of the retention of variation and curtailment appeals by virtue of Amendment No. 1, it is no longer necessary to allow people to raise previous decisions as grounds for appealing against a removal decision. Therefore, Amendment No. 4 removes this provision. Amendment No. 5 makes a consequential change.
Amendments Nos. 12 and 13 provide continuing leave for people who are bringing an appeal against refusal to vary, curtailment and revocation of indefinite leave. This means that people will be able to exercise an in-country right of appeal and benefit from continuing leave during that appeal. Amendment No. 12 corrects a technical problem with the existing continuing leave provision in Section 3C of the Immigration Act 1971. Under the current version of Section 3C leave continues while an appeal could be brought without specifying whether to trigger an extension of leave; the appeal can be brought in the UK or elsewhere.
Amendment No. 12 inserts a condition that leave will be continued only where appeal may be brought in the UK or where such an appeal is pending. The change has been made to make it absolutely clear on the face of legislation that leave will be continued only where an appeal against a decision to vary leave could be brought in-country.
Amendment No. 13 is designed to ensure that the continuation of leave provisions provides an appropriate period of extended leave for applicants who are challenging decisions to curtail limited leave or to revoke indefinite leave to remain. It will bring the position for these appellants into line with the present position for persons who are challenging a refusal to vary leave. At the moment, leave is continued for appeals against refusals to vary decisions by Section 3 of the Immigration Act 1971 whereas for curtailment and revocation decisions leave is continued by Section 82(3) of the Nationality, Immigration and Asylum Act 2002.
The provisions of Section 82(3) of the 2002 Act do not extend leave beyond its original expiry date. Therefore, it is theoretically possible for a person's limited leave to expire midway through the currency of their appeal. To address that problem and for the benefit of coherence, Amendment No. 13 will bring all of the continuation of leave provisions into the same format and will extend leave in curtailment or revocation cases during the period in which an appeal against such a decision could be brought or is pending.
Amendment No. 14 removes Clause 13. Clause 13 would ensure that someone who has complied with the terms of their leave would not be liable to prosecution under Section 24(1)(b)(i) of the Immigration Act 1971 as an overstayer. It was introduced in response to concerns that we were enforcing illegality on people by virtue of Clauses 1, 3 and 11. However, the amendments which have been tabled at this stage will provide for continuation of leave during any appeal against a variation, curtailment or revocation decision and, therefore, Clause 13 is no longer relevant.
Amendment No. 15 provides an order-making power to limit the scope to certify clearly unfounded human rights claims under Section 94 of the 2002 Act. This would mean that where a type of leave was designated it would not be possible to use Section 94 powers in relation to variation appeals. We believe that it is important to take firm action against those who clearly make unfounded claims which is why the power to certify was extended, as noble Lords will remember from that legislation, to variation appeals in the 2004 Act. Introducing the order-making power does not change that position but we consider that the type of leave a person has before making a clearly unfounded claim may be relevant to whether they should be able to bring an in-country appeal. No decisions have yet been reached on what types of leave, if any, fall into this category but an order-making power ensures that we can seek Parliament's early approval if we decide that some types of leave should confer an in-country appeal right even where a person is making a clearly unfounded claim to extend his stay.
Finally, Amendment No. 42 creates a new power to make a decision to remove someone from the United Kingdom. The intention behind the amendment is to allow the enforcement decision to be made at the same time as the decision to revoke, curtail or refuse to vary leave. When two such decisions are made before an appeal is lodged, the tribunal will, by virtue of Section 85(1) of the 2002 Act, be required to deal with matters in a single set of appeal proceedings. That will address the issue of variation and removal decisions, triggering the separate appeal.
During the single appeal against both decisions, appellants will have continuing leave and may remain in the United Kingdom. I hope noble Lords will welcome this group of amendments. I beg to move.
My Lords, I welcome these amendments. They achieve the Government's original aim of a one-stop appeal process. They also meet the concerns we on these Benches expressed in Grand Committee that the appeal should be in-country and that the people's leave should be preserved on the same terms and conditions until that appeal is finally determined. We thus avoid the unacceptable result of the original drafting of Clause 1 whereby people would automatically have been turned into overstayers with all the damaging consequences that could have had. We also avoid the necessity for the artificiality of the Clause 13 situation that was introduced in another place as a rather last-ditch attempt to save the Clause 1 procedure.
So, I am certainly grateful to the noble Baroness for the work she has done between Grand Committee and Report. The Government have fully met the commitments the noble Baroness gave in Grand Committee. On that more pleasant note, I am not sure whether others have had the opportunity to do so since last Wednesday, but perhaps I may congratulate her on being elected Peer of the Year by Channel 4 and the Hansard Society.
My Lords, I too thank the Minister. She has obviously listened to the arguments we put forward at Second Reading and in Committee. I add my congratulations on her nomination and approval as Peer of the Year by Channel 4. I trust that that particularly generous award will be reflected by her approval of many amendments tabled by this side of the House.
Like the noble Baroness, Lady Anelay, I think that the amendment meets the three main concerns we have set out. First, it meets the Minister's aim of a one-stop appeal; secondly—a point we had made again and again—it requires that there should be an in-country appeal; and, thirdly, it requires that people's leave is preserved on the same terms and conditions until the appeal is determined.
I need to ask the Minister one simple question. Perhaps she could explain this. The need for a 10-day grace period for those who do not appeal is to preserve the status quo for the future if they were asked to leave the country. Will that remain in this Bill? Will the Minister also confirm that government amendments do not create any new powers over and above what is available in these amendments?
My Lords, I add my congratulations to those that have been expressed to the noble Baroness on her wonderful victory in the contest for Peer of the Year. All noble Lords who were present in Grand Committee will agree that that was extremely well deserved. I echo my noble friend's words in hoping that this afternoon will lead to further advances in her reputation, so that it will not be the last of these distinguished awards that she receives. I add to the welcome my noble friend expressed for these amendments and I welcome the couple of minor questions which he asked. I have one further little query. Can the Minister say what sort of groups would be protected from having their claims certified as clearly unfounded under the new clause to be inserted after Clause 13? I know that the Minister has already said that the Government will preserve the rights of children to an in-country appeal, but does she have any other groups in mind?
My Lords, I add my thanks to the Minister for the amendments. I spoke at Second Reading and in Committee about the position of university students seeking extensions of visas for one reason or another. The university community is extremely grateful to her for having listened to the pleas we made and is very grateful for her amendments.
I too add my congratulations on her achievement of Peer of the Year. As the Minister knows, we sparred across many an education Bill, and I am very sorry that I shall not be sparring with her on the one that is coming up because she has proved to be—and I think that this is one reason why many of us voted for her on that occasion—one of those Ministers who listens; that is a very important quality.
My Lords, may I be forgiven for intervening in the debate, having only just rushed in, to join others in congratulating the Minister on the amendments which she tabled? They will be enormously appreciated in the university sector, in which I must declare an interest as chief executive of Universities UK. It therefore behoves me, as my noble friend's colleague, to congratulate her on the award of Peer of the Year to which others have referred. I am sure that we all share considerable joy in that announcement.
My Lords, I am unsure about whether to be grateful to the noble Baroness, Lady Anelay, for raising the award, yet I am extremely grateful for all of those kind words. I feel totally buttered up and ready for this afternoon, especially by the noble Lords, Lord Dholakia and Lord Avebury, who I believe were seeking to do that in order to force me subsequently to do things which I cannot. However, there may be the odd little trick up my sleeve for the rest of the day.
The noble Lord, Lord Dholakia, asked about the 10-day grace period. Effectively, the answer is yes. People who are not detained have 10 working days from the date that they are notified of an appealable decision, if they are in the UK, in which to lodge an appeal. During that period their previous leave is continued; so, people currently have 10 days' leave without lodging an appeal. That will continue under these arrangements. The noble Lord also asked if there were any new powers in the amendments, other than the one which I mentioned. No, there are none.
On clearly unfounded claims, we have no decisions yet. We want to think about that and have used that particular way so as to come back to Parliament and address the issue properly. The policy behind it recognises that some people, in some circumstances, should have an in-country right of appeal, even if they have quite clearly made an unfounded claim. We need to work through the details there. It may well be that children will be an example, as the noble Lord already indicated, but I am not yet in a position to say whether any groups have been determined. As soon as I am able to, I shall bring that to your Lordships' House.
My Lords, it is currently under negative procedure.
My Lords, I hesitate to destroy the harmony which has been enjoyed on previous amendments and begin by expressing our gratitude to the Minister and her officials for the briefing which they gave us last week on the points system. The knowledge that the principle of having lists of approved employers and academic institutions whose offer of jobs or study would be treated as conclusive is a great improvement on the present situation, where subjective judgments on those matters are taken by the entry certificate officer. As we understand it, the ECO will not be able to refuse an application on the grounds that a person may not comply with the immigration conditions since his offer, if from an academic institution or employer, will be treated as satisfying that particular requirement.
However, we still have concerns since we do not consider that the prevailing culture of disbelief among entry certificate officers will vanish overnight. There is still scope for discretion to be used against the applicant, particularly in assessing his ability to support himself without recourse to public funds. It was acknowledged in our discussion last week—which might have gone on much longer had it not been for the interruption, halfway through, of the Division Bell—that much of the detail still remained to be worked out, particularly on how numerical values would be assigned to attributes and how that would be calculated.
The person is assigned points for the rating of the sponsor, availability of funds, previous compliance with Immigration Rules, and so on—according to the notes that I took at the time. It was accepted, for example, when we put it to officials, that a person who had never been in the United Kingdom before would be given zero points for compliance with the immigration laws, so he would need to score much higher in the other factors to reach whatever threshold of points is specified to be given entry clearance. An undesirable side-effect of that may be that someone with plenty of money who intends to study in a class B college could gain an unfair advantage by coming here for a brief visit before applying as a student and getting some points to offset the lower rating of the college at which he intends to study.
We are also concerned because we must judge the Bill as it stands and have no opportunity to deal with the present system, which is so catastrophically unreliable, as everyone acknowledges. Dozens of recommendations for putting it right have been made by the independent monitor. They have lain on the table, ignored, from one report to the next and the Government have not yet published the final report of the independent monitor, more than two months after it was submitted. They arranged that there would be no monitor in post all the way through Second Reading and Grand Committee in your Lordships' House. How can we trust, not the Minister but the Government, who have failed so conspicuously to run the existing scheme fairly and effectively, to produce the new one to meet our needs, to be consistent, reliable and economical?
We have seen only the headlines of the points-based system; the full scheme will be published long after the Bill has received Royal Assent. That is the political equivalent of the classic 18th-century scam of a stock market flotation of a company carrying on an undertaking of great advantage, but no one is to know what it is. Parliament should not be asked to sweep away appeal rights without even a roll-out, let alone the thorough testing of the processes that are said to make those rights unnecessary. We are now being asked to approve the points system for visitors and students on the basis of a seven-page PowerPoint presentation, plus whatever we managed to scribble down when the Minister and her officials were talking last week.
We note that the consultation on the paper, Selective Admission: making migration work for Britain, finished on
The idea of sponsorship by an approved academic institution or employer and the elimination of entry certificate officers' discretion to challenge acceptance of a student or worker could be implemented by a change of the Immigration Rules. That would eliminate a large number of the refusals that are overturned on appeal, especially those of students as described by the monitor, who said in her report of February 2005:
"The overwhelming majority of refusals are made for reasons which address the requirements of the Immigration Rules that visitors and students (who are not studying at degree level) . . . should not intend to work and that students should intend to follow their course".
Why have the Government not addressed that problem by amending the Immigration Rules so that the number of refusals—hence the number of appeals—in respect of bona fide colleges could be reduced accordingly? They might then be able to save a great deal of money, not only on the appeals themselves, but by continuing the part-time appointment of Ms Lindsley, who is doing a great job, rather than replacing her with three full-time workers, as I understand they are doing. As I have already said, Ms Lindsley came to the end of her term of office on
Before I sit down, I should briefly refer to our Amendment No. 6, which allows the Secretary of State to prescribe purposes for which the rights would be restored. It does not require the Secretary of State to do anything unless he thinks that necessary in the future. We still believe that chickens might come home to roost when a totally unexpected but perfectly reasonable case is made for some group to have its rights of appeal restored. If not, nothing is lost by having the provision in the Bill. I beg to move.
My Lords, I speak to Amendment No. 9, which is in my name and grouped with these amendments.
The Government's plan to abolish appeals in non-family cases was in the general election manifesto. It did not exactly shout out that students would have their appeal rights removed. I suspect that the implication of the text of the manifesto was not crystal clear to the public, but I accept that the provisions in this Bill accurately apply the commitment in the manifesto. As such, therefore, I have from the beginning acknowledged that the Salisbury convention means that I should not, and I would not, do anything to undermine the operation of Clause 4.
Debates in Grand Committee showed that there was opposition on all sides of the House to the Government's plans to abolish appeals for those who apply out-of-country for visas to come here to work and study. I expressed my concern both on Second Reading and in Grand Committee about that abolition of a right of appeal and its replacement by a system of administrative review. In Grand Committee, the Minister offered to take time to explain to noble Lords how the Government expected the new administrative review procedures to work and, in particular, how they would try to remove subjectivity from the decision-making process of the entry clearance officer. I believe that the Minister has met that commitment with good will and energy.
I am grateful to the Minister for arranging to meet my honourable friend Damien Green and me last week, so that IND officials could make a presentation on how they hope the new points system may work. The noble Lord, Lord Avebury, has just referred to that PowerPoint presentation. I was impressed by their optimism and determination to establish a system that is both fair and accessible and one that should try to remove from the equation that subjectivity in decision-making. I do not question their professionalism and dedication—far from it—but there are significant questions that remain to be answered.
What is the timetable for the roll-out of the application of the various tiers of the points system? What is the number of staff that will be involved in the retraining of entry clearance officers and when will that training be completed? Will staff be trained on a country-by-country basis or on the basis of point of application? What are the plans for monitoring the quality of the initial decisions? If somebody objects to the results of that initial review and requests a review, how long might they have to wait for the outcome? What information will be given to them as to the reason for upholding or overturning the original decision? How will the Government raise awareness of the new system among small employers, who will not have access to the advice systems that may be put in place by affected/effective organisations such as UUK? Here I add my appreciation to UUK for all the hard work that it has done in briefing noble Lords on all the issues throughout the Bill process so far.
How will a proxy accreditation scheme for small business work? The Government say that there will be a carrot-and-stick approach to the points rating of employers. How will they determine the initial rating of employers? What information will be used and how reliable will it be? How will the new system deal with complex cases and high-risk areas such as poor track records or new sponsors? Those questions could go on for ever—it is tempting to do so—but I think that I have put there more than my baker's dozen which I had originally intended.
I realise that the results of the consultation will be published soon, as the noble Lord, Lord Avebury, said; one hopes it will be within the next month. It is vital that this House should consider the results of that consultation before Third Reading. It would therefore be helpful if the Minister could say whether she agrees that it would be best if the House had that opportunity.
I have reflected carefully on the work carried out by the Government on the new system of administrative review. It is important for everyone that it should work well. It is also important for Parliament to have the guarantee that it will have the opportunity to hold the Government to account for the operation of the administrative review system. It is in that spirit that I have tabled Amendment No. 9, which I hope will be seen as a constructive move forward. The amendment requires the Secretary of State to lay a report before Parliament within three years of Clause 4 being put into effect, a report that would have to set out the details of what system of administrative review has been set up and how effective it is, taking into account the number of cases and the number of applications for further review after the initial decision. As ever, I am not wedded to the drafting of that amendment, but it is offered in a constructive spirit.
My Lords, in speaking to Amendment No. 10 in this group, I declare an interest as chief executive of Universities UK. I cannot hide my disappointment that the Government have not proved willing on this occasion to listen to our concerns about Clause 4, which will abolish the right of appeal in entry clearance cases. No substantial improvement has been made so far to this aspect of the Bill. As the noble Baroness, Lady Anelay, said, there is a manifesto commitment in play which of course ties the hands of this House. But it does not remove the possibility of making real improvements to the Bill.
As we know, the quality of initial decision-making is poor. With respect to students, about 34 per cent of applications are initially refused. Of those who appeal, one in four is successful. In plain English, entry clearance officers get decisions wrong with alarming frequency. The Government have argued that the new points-based immigration system will solve the problem. It appears, however, that Ministers are confident that this will happen overnight because it is clear that the Government intend to remove the right of appeal as soon as the points-based system is in place.
The noble Lord, Lord Dholakia, has tabled Amendments Nos. 76 and 77 in this group, which would create an opportunity for the system to be tested before appeals are abolished. I wholeheartedly support that approach. Under the current scheme, there will be no opportunity to test the Government's assertion that the new points-based system will work and will improve the quality of decision-making. Although we all hope that that will be the case, there are reasons to doubt that it will, which I have set out in a detailed letter to the Minister this week.
As the noble Lord, Lord Dholakia, said, the details of the scheme are yet to be published. I hope that we will see it before Third Reading. But from what we know, it is clear that there will remain an element of subjectivity in the process. As Tony McNulty, the Minister, has said in another place,
"100 per cent objectivity is a fool's errand . . . It is not about simply ticking boxes and adding points up, although that is a large part of the measure. We do not know how points will be allocated and what weighting will be given to different criteria".—[Official Report, Commons Standing Committee E, 20/10/05; col. 116.]
There remains the fact that errors frequently occur under the current system, as a result of entry clearance officers failing to follow the existing rules. How can the Minister be confident that that will not happen under the new system? I hope that better training and resources will improve things, but I remain unconvinced that the new points-based system will be a magic-wand solution. If the Government are wrong and errors still occur, or it simply takes some time to get the system working well and train the people who are to operate it, those who lose out will have no opportunity for independent redress.
That is particularly disappointing because the Minister's own department, the Department for Constitutional Affairs, has made it clear that the Government are committed to providing independent adjudication where decisions taken by government officials affect people's lives. The July 2004 DCA White Paper, Transforming Public Services: Complaints, Redress and Tribunals, stated:
"in a democracy ruled by law, and under a government committed to high quality and responsive public services, simply appealing to a department's sense of fairness is not, and never has been, enough".
I hope my noble friend at the Dispatch Box will make it clear on the record that she agrees with the statement; I do. If she does agree, can she explain how it is consistent with the Government's intentions on entry clearance?
There is still time for the Government to achieve consistency between that statement and the entry clearance system. Amendment No. 10 would create an opportunity to do just that. It provides for the Government to appoint a person or body independent of the decision maker with power to review decisions in individual cases. Given the DCA's commitment to independent adjudication, I have suggested that this scheme should have the endorsement of the Lord Chancellor. I have not sought to bind the Government's hands on who should take responsibility for such an independent review and, no doubt, the Government can improve on the drafting. But in the five-year plan the Government have already committed themselves to producing a scheme for administrative review. All I ask is for that system to be given a statutory basis, for the principles to be set out in secondary legislation, and for it to include some element of final independent arbitration.
I know that my noble friend has been thinking about the scheme and I am most grateful for our conversations about it. But I would appreciate it if she could confirm several points: that administrative review will be available to all those refused visas; that entry clearance officers will provide written reasons for refusing visas and invite applicants and their sponsors to make representations; that the review should allow for the clarification of existing evidence; that responsibility for conducting the review will rest with the regional tier of entry clearance staff; and, finally, that the independent monitor will sample review cases and monitor procedure in relation to students. The reason I ask for these specific commitments is that so far we do not have any concrete proposals for the review, which was promised as part of the five-year plan and we know that the administrative review process that exists under the current system does not deliver results.
I believe the record will show that this House is well aware of the problems with the scheme the Government have set out. The Minister still has an opportunity to listen to those arguments and to make appropriate changes. At this point I should like to thank the noble Baroness, Lady Anelay, and the noble Lords, Lord Dholakia and Lord Avebury, for their determination, tenacity and continuing support for this approach. The Minister has a reputation in this House for listening and delivering real improvements to legislation. In speaking to Clause 1, all those who intervened complimented her on the fact that she was so willing to listen. Notwithstanding all of the constraints this House is under in view of the manifesto commitment, I hope she will take the opportunity now before us and bring back some concrete proposals before Third Reading.
My Lords, I am not sure whether the amendments tabled by the noble Lord, Lord Dholakia, to postpone this clause until January 2010 fall within the Salisbury convention. I do not know whether the Minister has it in her brief to remark on it. But obviously we must pay attention to the convention which, although questions are asked about it, still exists.
This is a very important subject. The effect of Clause 4 as it stands will be fairly devastating for universities and for the country because it is clear that a great many students would not have come here had they not won an appeal. Some now play a notable part in our economy. Some of them have stayed and are now working here. Some plan to come back. They have all got to know this country and may come back in the future. We have been over all these arguments, and the Minister knows well the importance of the subject.
The noble Baroness, Lady Warwick, has put down Amendment No. 10, and is suggesting there should be an independent person to adjudicate on cases. I do not know how many cases there would be, what size this operation would be, or whether it is possible. Doubtless the Minister will tell us about that. It is certainly worth considering.
My noble friend Lady Anelay has spoken to Amendment No. 9. Although it would do less to help, it would improve the situation, because there would be a chance for Parliament to know within three years just what has been going on. Three years can be quite a short time with something like this. It would be very helpful if there could be a report to Parliament to tell us what has happened, how many people have applied, how many have had their applications refused and so on. I hope the Minister will consider that carefully. If I were in the Government I would like to accept that amendment, as it is a sensible and workable solution. It does not solve the whole problem, though, and we will be interested to hear the response to the amendments of the noble Lord, Lord Dholakia, and those of the noble Baroness, Lady Warwick.
My Lords, I add my support to the amendments in the grouping. On Second Reading and in Committee we spoke at length about the difficulties this would pose for students applying for entry to the UK. The points system, which we understand, will undoubtedly clarify the situation. On the other hand, as both my noble friend Lord Avebury and the noble Baronesses, Lady Anelay and Lady Warwick, have indicated, many questions remain to be answered about the workings of the points system. Ideally, therefore, we need a pilot period during which we can see how it works out. That is the purport of Amendments Nos. 76 and 77, standing in the names of my noble friends Lord Dholakia and Lord Avebury. That is what we would like to see, but, if that is impossible, falling back on a review mechanism is very important.
I pick up the point made by the noble Baroness, Lady Warwick: natural justice demands that there is some sort of independent review. She has indicated the importance the Minister's own department put upon the concept of some sort of independent tribunal, where tribunals exist. I support Amendment No. 10 standing in the names of the noble Baroness, Lady Warwick, and my noble friend Lord Dholakia. It would be excellent if we could introduce an independent review of decisions that have been made.
My Lords, I declare an interest as pro-chancellor of the University of London, though I am not speaking in any sense on its behalf. I was unfortunately unable to attend the briefing given by Universities UK yesterday afternoon, by virtue of a separate association with the National Lottery Bill, but I listened with care to what the noble Baroness, Lady Warwick, said this afternoon.
I recognise the impact of the Salisbury convention alluded to by my noble friend on the Front Bench, and indeed by my noble friend Lady Carnegy. One of the ironies of the Salisbury convention in this context is that it was introduced by the third Marquess of Salisbury and renewed by the fifth only after the Second World War. When the third Marquess of Salisbury introduced it, it was during a period when a great deal more of the world was painted red than is the case today.
I shall of course give the benefit of the doubt to the Minister, who enjoys great respect in the House, as has already been alluded to, but I shall maintain unease until I hear her reply. I hope that I shall feel less unease after she has spoken.
My Lords, we had a useful discussion on Amendment No. 10 at Second Reading and in Committee. I do not intend to repeat those arguments, but we should listen carefully to the case that was made by the noble Baroness, Lady Warwick, and my noble friend Lady Sharp, among others.
I thank the Minister for arranging a series of meetings with her staff, and I ask her to thank her Bill team for the information that they have given to us. It has made the Government's stance on this clause fairly clear. The points-based system has some merit as against what was available until now. There is no dispute about that. I have always believed that an objective system is a much better way of proceeding than subjective decisions by entry clearance officers.
However, we need safeguards even within an objective system of this type. Perhaps I may make an appeal to the noble Baroness, Lady Anelay, and the Conservative Party. Amendment No. 10 is not a wrecking amendment and I would not support any decision at this stage to divide the House on it. The reasons are very clear. We want to see how we can improve the provision. There are three areas at which we must look. The first is independent adjudication. We will continue to press for an appeal procedure to be retained, and we will consider anything that delivers a layer of independent adjudication. Secondly, while we would certainly welcome an administrative review, which would reduce reliance on the appeal mechanism, even a review of that nature requires an element independent of the Government to identify the issues that have been highlighted in this discussion. The third and most important area—the noble Baroness, Lady Warwick, mentioned it—is the overlap between the introduction of a points-based system and the evolution of appeals.
I said that it would be right and proper for further discussions to take place before Third Reading about the points-based system. That would be the right time to analyse the system in conjunction with our request of the Minister to take back our concern and to look at whether the system could be improved. I hope that the Opposition would support that, even if it meant a matter of this nature being sent back to the Commons for them to look again at the case that has been made. However, we have no intention ultimately to wreck the provision or that part of the Labour Party's manifesto commitment. I hope that the Minister will give sympathetic consideration to what has been said so far.
My Lords, I listened with great interest to the speech of the noble Lord, Lord Dholakia—I declare an interest as a member of the immigration appeal tribunal—and to the speech of the noble Baroness, Lady Warwick. They both illustrated a system which is in existence now. Since the 2005 Act, the appeal system has existed. "If it's not broke, don't fix it", you might say, but the trouble is we don't know whether it is broke or not because it has not yet had time to work. We cannot tell that. Perhaps we should keep our thoughts trained in that direction. I am not seeking to sustain my employment, as the noble Baroness will know, but there is no point in inventing a new system if the system is already there.
My Lords, I declare an interest as chairman of the Cambridge Commonwealth Trust and Cambridge Overseas Trust. We have been responsible for bringing in about 800 to 1,000 students per year for approximately the past 10 to 15 years. One of the features that has been very apparent is the complexity of trying to make decisions before you have seen the students. I speak in support of these amendments because I genuinely believe that until the measure is in operation we shall not find out what some of the real problems are. I say that respectfully to the Minister and her department. When dealing with specific cases complexities very often arise which were not thought of beforehand. The noble Baroness, Lady Anelay, suggested that the system should be reviewed after a short period. I consider that the suggestion of the noble Baroness, Lady Warwick, constitutes basic justice—that someone is seen to be looking at this problem from the outside.
I say that with considerable sensitivity because one of the things that has become very clear, and has been spoken of on previous occasions, is how much the world at large is looking at this problem. I cannot over-emphasise how much students at large are sensitive to the protocols that apply when coming to a given country. We have a good reputation which I would like to maintain. These amendments would help in that regard.
My Lords, I am grateful to all noble Lords who have participated in the debate. I begin where the noble Lord, Lord Lewis of Newnham, ended. I would like to enhance our reputation. The point that was made by my noble friend Lady Warwick on the number of decisions that are overturned on appeal is the reason and the driving force for the new system that is being proposed, which is a much better proposition. My role, notwithstanding any conventions, is to try to convince your Lordships' House during the passage of the Bill that we have that right.
One of the ways I want to do that is to make a promise. The promise is specifically directed at the noble Lord, Lord Avebury, but I believe that it will be welcomed by your Lordships' House. I have discussed it very briefly with the noble Baroness, Lady Anelay, and I know that she will welcome it. As noble Lords have indicated—I think that the noble Lord, Lord Avebury, used the word "shortly"—the response to the consultation will be published. I give the commitment that Third Reading of the Bill will not take place until that is published and noble Lords have had at least a few days to consider it. I do not have a publication date yet; my pay grade is not sufficient to be given such an honour, but as soon as I have one I shall make sure that noble Lords know it. If for some reason the publication were delayed, we would move the Third Reading date accordingly. The purpose of that is to achieve precisely what noble Lords want, which is to look at the consultation and to have the opportunity to meet myself, my honourable friend Mr McNulty and officials. I was grateful for the thanks that noble Lords have given for the meetings that officials have held with them over the past couple of weeks.
One should also understand that the stakeholders involved in this—I refer not only to universities but also to other education institutions and employers, large and small—played a critical part in designing the new system. They will have a continuing role to play in making sure that we get it right. Noble Lords rightly mentioned the difficulties that arise with the current system. I am sure that there are wonderful entry clearance officers and entry clearance managers and I know that noble Lords do not mean to imply that they are not, but I accept that mistakes are made and that judgments are arrived at. Largely because of the judgmental nature of the way in which decisions are made it has been important to have an appeals process. That has proved itself through the number of successful appeals. But that is not the system that we will be dealing with. The system will be specifically designed with all those factors taken out.
One issue that has been raised continuously with me by representatives of Universities UK—I am always sorry to disappoint my noble friend Lady Warwick, despite my efforts to meet her concerns—members of the Chinese community and others, has been considering the subjectivity of intention to study. That will not be in the new system, because the people who will decide that someone is going to come and study in this country will be the institutions. They will determine by giving someone a place that they are qualified and able to study and that they meet the requirements, just as they do with students here.
The other issue that I am often told about is that people supply many pieces of information, largely to give financial security to entry clearance officers in the sense of giving them all sorts of information that they might need. Without pre-empting what will happen, we hope that the system will streamline that process totally, so there is transparency regarding what information is needed for the individual who is seeking to apply either to come to this country as a student or who has a job offer and is coming in as a worker, so that they know what they need to supply in the points-based system and they understand the importance of supplying it.
I apologise if the seven-page PowerPoint presentation did not do it for the noble Lord, Lord Avebury, but I have sought to get people—whether Members of your Lordships' House or people outside—to understand that we have to forget the existing system and all that we loved or hated about it and think about a transparent system at which any applicant can look and work out how many points they will need and how they will gain them and that the same system is being looked at by an entry clearance officer at the point at which the applicant is seeking to have the application ratified and to come into the country.
That transparent system will do a number of things. It will prevent people speculatively trying to come into the UK, which will have an impact, because it will show people what they will need. It will enable the institutions and employers to play a far greater role. We are talking about how to make sure they have a positive relationship and we are discussing with Universities UK what role the institutions might play in querying if there is an issue. It will enable people to see at a glance precisely what information is required, so we do not get the bundles of paper that lead to the issues and problems that have been raised.
When I talk to the officials at the Home Office—noble Lords must remember that I am not a Home Office Minister, which is sometimes an advantage in this process, because I am not part of it and can therefore ask more difficult questions—I am clear that here is a system that sounds infinitely better for everyone; not least our hard-pressed entry clearance officers in terms of being able to understand and see what will happen. It is in that context that we began to think about what kind of mistakes or issues we would need to take forward. It is not an appeal against someone's judgment; it is looking at what might be the issues and problems.
I invited all noble Lords who took part in our deliberations in Committee or whom I have met outside and the universities and other institutions to come forward with examples of decisions that have gone wrong, which might be decisions that could not be addressed by what I have described as the administrative review. I am still waiting to find one that either would happen or could not be dealt with.
When we looked at what we need to do to make sure that things do not go wrong, my concern was that there was still of course the possibility of human error. Even with a system that has taken out huge amounts of judgment—I will talk about the final judgment in a moment—we still have the potential for someone to misread a piece of information; to write down the wrong number for the points, and so on. What could we do that would create a better system than the one we have currently but would recognise that that could happen?
Noble Lords who have dealt with appeals will know that they can sometimes take up to two years. I want a system that means that a student, for example, is not prevented from coming to their course because someone read a number wrong. We need to design an administrative review system that has a number of elements: first, that it is free, which it will be; and secondly, that it is speedy, which it must be. We have asked universities and employers what is an appropriate length of time—I am talking days and weeks; certainly not months—to make sure that we can handle an assumption that everyone who is refused will call for a review. Therefore the time period has to be manageable within the system but the system must make sure that no one misses out on either a job offer or a university or college place because it has taken too long. How do we make sure that that is done in such a way that people have transparency?
Any decision that is made that says that an applicant will not be entitled to come must give within it—the noble Baroness, Lady Anelay, asked about this point in her opening remarks—the specific reason why the applicant has been turned down. That enables the applicant, or the institution if it plays a role, to say, "Hang on a minute, you have read that wrongly", or, "You have misinterpreted that information". The review is done of a very specific, relevant piece of information or of a fact that can be looked at.
My Lords, does that mean that during the process of monitoring by the independent monitor the applicant will be able to submit written evidence to show where the decision is faulty and to contest any incorrect statement that has been included in the decision? The applicant will not be able to give oral evidence, will he? It will simply be a matter of making written representations to the monitor.
No, my Lords, the independent monitor does not play a role in this. The independent monitor is much further up the system. He will be in a full-time position, looking across a sample of cases. We talked about this a lot in Committee. He will perhaps look at particular countries where there have been particular issues. I am describing a process— which we still have to work out and which is not set in concrete—where someone more senior in the area looks at whether someone has misread bank account details or miswritten the number of points. We are talking about a very clear administrative system. The individual can reapply; there is nothing to stop anyone reapplying.
That is the kind of process that we seek to put in place to address precisely the questions that will be raised, bearing in mind that the subjectivity has largely been taken out. The one area where we still have to have a discussion—and I am grateful to my noble friend, because she mentioned this area in her letter this week—is where you believe that the documentation before you may be forged, or something of that nature, in which case one might say that professional judgment has a part to play. That is what my honourable friend Mr McNulty referred to when he said that you can never 100 per cent rule things out, because you have to consider whether the information before you is forged or accurate. We have to think about that. We are talking about an administrative review, not an independent anything. It is not an appeal by the back door. I will not pretend to your Lordships that that is what I am looking for. I am looking for a system that will provide a greater and better impetus for people to come to this country as students or workers; I am looking for a system that is much more transparent and makes it much easier for people to understand what they have to provide to do so. The system should give them greater opportunities to participate in education or in work in this country; that is the ambition behind it.
I will now address the specific points that noble Lords have raised. The noble Baroness, Lady Anelay, gave me a series of questions. Some of them will be answered when the documentation is available, but I will seek to deal with those questions as best I can. We have a five-year strategy to roll this out in a phased way, so I do not have a specific timetable at this point of how it will come in. The idea is to phase in the different tiers over time. The noble Baroness is absolutely right that we need to think about the number of staff that we need for training. Part of the design is how we make sure that we have got the right kind of training in place; we absolutely do not underestimate the importance of that. Whether we take a country-by-country approach will be part of looking at what will work best. We will use a phased approach, but we need to think about how to do that—whether it should be country by country, or all of one tier.
On the quality of initial decisions, I hope that I have given a flavour of looking for transparency and objective criteria so that people can understand the process effectively. We are looking at the details now so that we can make sure that people get the information in a clear, objective and transparent way—for example, if they are refused. The noble Baroness, Lady Anelay, raised the issue of small employers, on which we are consulting. Not surprisingly, members of the Chinese community have raised it with us, because they represent a large number of small employers. We are looking carefully at how to ensure that we involve them appropriately and how we make contact and keep contact with them. That is much easier with big employers who have a number of people coming through and where we will be able to develop personal contacts for them. We need to make sure that we have got that right. That also applies to an accreditation system for small businesses.
We want to ensure sure that the basic procedure is in place so that we can obtain the initial ratings. We will aim to have more compliance checks while people get their ratings right. There might be a provisional rating that will then come into force as we have more compliance checks. I am not seeking to prevent people participating or to discourage or discriminate against them because they do not have a long track record. The use of compliance checks is to help them.
I can tell my noble friend Lady Warwick that the administrative review is available to anyone who is refused. Written reasons will be given, as I have indicated. There is no regional tier involved. Such regions are huge areas of the world, but my noble friend and I can continue to talk about this. I have indicated that the independent monitor will carry out a sampling exercise.
I have talked at some length about the administrative review and, sneakily, I thought that my noble friend would start quoting my department at me. I have the quotation, too. The noble Baroness quoted section 3.13. Section 3.12 states:
"The first and most direct remedy is to dispute decisions directly with departments and agencies".
So I stand by what we said in 3.13. The noble Baroness will know that I am responsible for tribunals within my own areas of policy. We are saying that we need to make sure that people dispute with departments and agencies. We are doing that and the administrative review enables it to happen. There are still rights of appeal on human rights and race relations grounds; there is a route to judicial review; there is a level of independent scrutiny by the independent monitor; and the noble Baroness may wish to note that the document states on page 15:
"Both the public and private sectors need to create and maintain suitable and cost effective means of redress".
Noble Lords will remember from Second Reading that we are seeking to achieve a better use of resources across all our work on asylum, immigration and managed migration. It is important that we achieve that.
Turning briefly to the amendments that have been spoken to, I do not think that the noble Lord, Lord Dholakia, will be surprised that I do not accept Amendment No. 6. However, I am interested in Amendment No. 9, which I hope will please the noble Baroness, Lady Carnegy of Lour. She wanted me to accept that amendment here and now. My difficulty is that there is a technical problem with the drafting, as I have already explained to the noble Baroness, Lady Anelay, who accepted that explanation. The amendment is worthy of consideration for the exact reasons that noble Lords have stated. I am happy to take it away for further consideration and return to it at Third Reading.
My noble friend Lady Warwick and the noble Lord, Lord Dholakia, know that I shall resist Amendment No. 10 regarding creating a review of the kind that it describes. I understand why noble Lords want to put matters on the face of legislation—it is a guarantee of what the Government are seeking to do—but there is no reason to fear the introduction of our administrative review system. It is important that we introduce the system and we are committed to it, but making that process statutory on the face of legislation would bring with it all the difficulties of creating rigidity in a system that needs to be flexible. It is also an administrative review, which would not sit well with being statutory. However, we are committed to doing it and will work closely on it with my noble friend and others.
I shall not accept the idea that Clause 4(1) cannot come into force until at least January 2010, because this is a better system for future students and employees; when we are ready to introduce it, we should do it properly. I do not want to be captured by legislation that sets out a date that may be inappropriate for many reasons, although I understand why noble Lords want to set a date.
Regarding Amendment No. 77, I bow always to the Delegated Powers and Regulatory Reform Committee. I have not yet failed, nor do I plan ever to fail, to accept what it says. So when it does not say something, I take that to mean that noble Lords on that committee are reasonably content with what we have done. They made no comment on the procedure in Clause 59 and, therefore, I do not propose to accept that amendment.
I hope that the explanations and the commitments that I have given about Third Reading may offer some cheer to noble Lords and perhaps some greater understanding of why we are proposing a new system with a new process rather than thinking about the old system and the concerns that quite rightly noble Lords have had. On that basis, I hope that at this stage the noble Lord will feel able to withdraw the amendment.
My Lords, again the noble Baroness has said, as she did constantly in Grand Committee, that we have to forget about the existing system. The same people are going to operate the new system, which is what makes us anxious. The same entry certificate officers, who, as the noble Baroness, Lady Warwick, has pointed out, had 25 per cent of their decisions overturned on appeal, will be dealing with the new system. Even though one tries to be as objective as possible, they will still have to exercise an element of judgment, which will be subject to only an internal administrative review, about which the noble Baroness has been able to tell us very little.
The issue is not simply whether the documents are forged or not, which is a matter of fact that can be determined by reference to the original institution. However, if the idea, which is so meritorious and which we all accept, of having the sponsorship of an academic institution or an employer removes the element of intention from the decision by the ECO, why have we not introduced it already in the Immigration Rules? I ask the noble Baroness that question and I wonder whether there is an answer to it, or whether we should have embarked on this in a series of steps that would have enabled us to judge whether they were effective. The system whereby academic institutions are on the register is already in place. They are recognised as being responsible for judging the applications of students, so the ECO does not have to go behind those, except to say whether the course is appropriate or whether the institution meets the particular needs, as in the case of the famous student who wanted to study English in Northern Ireland.
We would not have any of those nonsenses if we had already instituted the system of established sponsorship by an academic institution or by an employer and if we had been able to treat that as conclusive in removing the element of judgment by the ECO on whether something was going to comply with the immigration rules. One could have done that in the existing immigration rules and we would not have had to abandon the rights of appeal because, by definition, there would have been a much smaller number of appeals against decisions which are now made on the basis of someone's assessment of intentions.
As the noble Baroness said—this has been echoed by every noble Lord who has spoken—we do not know enough about the system to evaluate it. I am most grateful to the Minister for saying that at least we will have the report of the consultation on a points system before Third Reading. I honestly believe that we would have a much more fruitful and productive discussion if we had that document before us. As I am about to withdraw the amendment, I look forward to a further discussion at Third Reading and I hope that on that occasion we will be able to make progress. We shall know more clearly what is intended and many of the blanks that we face at the moment will be filled in. We will know how the points system has been evaluated by those who have been consulted on it and we will perhaps know more about the administrative review, about which the Minister has been able to say very little, but which clearly, in the minds of the academic community, and particularly in the mind of the noble Baroness, Lady Warwick, is of vital importance.
We will not get over the subjective decisions when, to quote the noble Baroness's department's document, Tribunals for Diverse Users,
"Its key features need to be independence, professionalism, accessibility and efficiency".
Perhaps the noble Baroness could say—I would be delighted if she interrupted me to do so—whether this document applies to the administrative review that we are talking about. She was referring, as I understood her, to the White Paper, Transforming Public Services: Complaints, Redress and Tribunals, so I rather inferred from that that the comments made in this document applied pari passu to the administrative review to be introduced under this Bill. That would be very important, because we would at least have an independent yardstick by which to judge the process when it is finally introduced. If the noble Baroness does not want to interrupt me, perhaps we can come back to that point on Third Reading. I beg leave to withdraw the amendment.
moved Amendment No. 7:
Page 3, line 9, at end insert ", or
( ) entering for settlement as a returning resident in accordance with the provisions of the immigration rules, including cases where the person may be admitted as a returning resident under those rules despite the length of their absence from the United Kingdom"
My Lords, Amendment No. 7 deals with returning residents. The matter was raised in Grand Committee on
Amendment No. 8 deals with the position of non-EEA nationals who apply to come here under European Community association agreements. In Grand Committee the Minister recognised that they should have a right of appeal under a recent European Court of Justice judgment, but said that the reinstatement of those rights, which were removed under the Bill, would be accomplished through secondary legislation. I wonder if the Minister could point to the order-making powers that allow this to be done. Clause 4 is concerned only with visitors and students and I see nothing that would allow the Minister to do this under the parent Section 82 of the NIA Act 2002.
The Minister said that she did not accept that the settled community law, which applies to the other categories I mentioned—that is, nationals of Switzerland and primary carers of children who themselves have a right of residence—meant that they would forfeit their right of appeal against refusal of entry clearance. Nor did the Minister consider that there should be any general power in the Bill to restore rights of appeal to any other classes of person to whom Community law extends the right of appeal in the future. That also, the Minister said, could be dealt with in secondary legislation. Again, I would be obliged if the Minister could tell us where the order-making power to do that might be found. Assuming the power exists, if exercised it gives rights of appeal to specific EEA nationals in specific circumstances, so an EEA national alleging a breach of some other EEA treaty right, which had not been tested or litigated before, would be unable to appeal. Our approach solves that problem and ensures compliance with Community law.
I am sure the House would agree that where it is possible to leave rights that already exist in primary legislation, it would be quite improper and unwise for the House to remove those rights in primary legislation and then restore them in secondary legislation. What is the point of doing that? I beg to move.
My Lords, as the noble Lord, Lord Avebury, says, we dealt with this issue to a degree in Grand Committee. Taking Amendment No. 7 first, the noble Lord will know that refusal of entry clearance for returning residents is on the basis of objective criteria. I hear what the noble Lord says about the particular case he raised. It is right that if someone has been outside the UK for more than two years, that is a factor to be taken into account. We allow returning residents to retain a limited right of appeal on human rights and racial discrimination grounds. Any argument that would be put forward, for example, under Article 8—the right to respect for family and private life—could still be raised under Clause 4 of this Bill. That does not get taken away. As the noble Lord acknowledged in Committee, many residents who have indefinite leave also have the opportunity to apply for citizenship.
As the noble Lord, Lord Avebury, has raised the matter again, I have looked at it very carefully. However, I remain of the view that there is already an objective set of criteria that allows for the kind of appeals which would deal with his concerns. He will be disappointed by the reply, but that is the Government's position.
On Amendment No. 8, the Immigration (European Economic Area) Regulations 2000 (as amended) give the issue the ability to be addressed. It is not that we are replacing secondary and primary legislation; it is done through that set of regulations. They are the appropriate place for the appeal rights to be defined. The amendment does not deal with the persons claiming rights under the ECAA arrangements, but we will ensure that we reinstate all the relevant rights that are to be removed under the Bill, using those 2000 regulations, as I have indicated. I reiterate that we do not accept that there is settled Community law which generally requires other classes of applicant to receive an appeal against a decision to refuse entry clearance. However, we have also made it clear that if Community law develops and the right of appeal is extended, of course we will give effect to that within the regulations.
There is therefore no intent to do anything other than restore what the noble Lord primarily seeks, but to do it in the right place, which is where it is now in those regulations. I hope that that will reassure him.
My Lords, I still fail to understand why the noble Baroness, knowing that there are exceptions under the returning residents scheme, is unwilling to grant those people rights of appeal. She still did not say whether the example I gave in Committee, and repeated today, was one where the individuals concerned should be denied rights, or whether they were so denied because the Bill was not in force. There will always be a small number of people who for good reasons are not able to comply with the conditions for returning residents, and in particular will have been away from this country for more than two years generally in circumstances of great family tragedy; for example, the couple whose son was killed.
I therefore argue that it is inhuman to deprive people who have already suffered intensely as a result of, say, a family bereavement and say, "You have forfeited your right of appeal through no fault of your own". I simply cannot understand why the noble Baroness is so resistant to that amendment.
I accept it is possible to do as she says under the regulations she quoted, but I still cannot understand why, when there is the opportunity to make provision in primary legislation to retain people's rights, we should take away the rights in the Bill and then restore them by secondary legislation. But obviously we are not going to win this argument so, for the time being, I beg leave to withdraw the amendment.
My Lords, the purpose of the amendment is to maintain the status quo in national security appeals whereby both risk of breach of human rights on return and the national security case are heard before the applicant leaves the UK.
The Immigration Law Practitioners' Association has done a good deal of work and I am grateful for the information and briefing it has supplied to us. These proposals for a variety of measures relating to terrorism were published over the summer months. Many are now part of the Terrorism Bill. On
It is right that we respond to public concern after the events of
A large number of organisations working in this field are of the view that the case for new legislation in this area has not been made and that the new provisions fail to respect rights and civil liberties. Existing immigration law contains ample powers to deal with those who pose a threat to national security. The debate in Grand Committee was characterised by the Minister sketching extreme cases for which more than adequate provision is already made under existing legislation; and then seeking to use those to contend for an extension of existing powers. All arguments about better provision in the Terrorism Bill are relevant but the clauses introduce a few new problems of their own.
Let me spell those out. Clause 7 provides that if a case raises national security concerns the part of the appeal dealing with whether the appellant's human rights will be breached on return will be dealt with before removal and the part which deals with national security will be dealt with after removal as an out-of-country appeal. This creates a two-stop appeal out of a one-stop appeal. It is wholly at variance with the Government's approach in other parts of the appeal system that we discussed only recently.
In Committee, the Minister said that the new clause is designed to streamline the process of appeals against deportation orders in national security cases. However, it streamlines nothing: it creates a two-stop appeal process, as the Minister acknowledged in Grand Committee. She said:
In Committee in the Commons, the Minister of State reaffirmed and supported statements by the noble Lord, Lord Filkin, during the passage of the Nationality, Immigration and Asylum Act 2002: that the person is sent back and only then the question of whether they are a risk to the safety of the United Kingdom is examined; there are powers to prosecute people here, and powers to extradite them. The approach proposed by Clause 7 is, therefore, irresponsible. It may put the applicant at risk. In some cases the risk on return is born from the national security case against the appellant. That the British Government suspect persons of being a threat to national security, whether or not the suspicion is well founded, may be what turns their own government against them. If the British Government provided only details of the national security case once the appellant was back at home, this could put him or her at risk of torture. Those points were all put to the Minister in Grand Committee.
SIAC cannot take into account what it does not know. If it does not know what is the national security case against the appellant, it cannot look at the relevance of this to the risk of torture or other flagrant breaches of human rights on return at the in-country stage of the appeal. One result of Clause 7 is likely to be that people are returned and then tortured. Another will be attempts to raise risk through judicial review challenges before removal.
In other cases, where the national security case is known, it is likely to be rehearsed in detail as part of the human rights case pre-removal; and yet these points cannot be decided. Instead, the evidence must all be considered again at an out-of-country appeal post-removal involving repetition and wasting resources. It will result in the United Kingdom exporting risk. The Government have accepted that this is an effective way of tackling the threat from international terrorism. In practice, it would be difficult or impossible to separate the human rights and national security aspects of the appeal—for example, the threat to the appellant could derive from the national security case against him or her; that is, the fact that he or she has been labelled as a terrorist. This proposal is inconsistent with the general aim of a single appeal. It requires at least two appeals which would often involve the same question and evidence. The clause would result in unfairness for the appellant, who, having been deported, would not be present in the United Kingdom while the national security case against him or her is heard. I beg to move.
My Lords, we had an extensive discussion on Clause 7 in Grand Committee and since then we have had further exchanges with the Minister and her officials, for which we are very grateful. But, as the Minister knows, we were not convinced by the argument for a special process to be applied to a handful of cases where a person is deported on national security grounds. As my noble friend has said, a proposal in these cases alone is that there is to be a two-stage process, in which those parts of the appeal against deportation concerning the possible breach of a person's human rights on his return will be heard before removal, while the part that deals with national security is to be heard after the person has already been deported.
As we have already shown, the very fact that an appellant is considered to be a threat to our national security may trigger the risk of persecution in the country of origin, irrespective of whether the suspicions held against him are well founded. That is why we say that, contrary to the assurance given by the noble Lord, Lord Filkin, we shall not use these powers to export risk; that is precisely what the clause does, as my noble friend has just explained. SIAC is never going to be able to consider the possibility that the national security case might have a bearing on the likelihood that a person's human rights would be violated, since this is not considered at the same time as a human rights case—as we say it should be.
I wonder if we should distinguish between cases where a person has been convicted of a terrorist offence and those where the certification by the Secretary of State is based on evidence which is not in the public domain. Where a person has been convicted, and the Secretary of State certifies that the decision to make a deportation order in respect of him has been taken on grounds of national security, there cannot possibly be any argument that would speed up removal, as the Minister claimed, because the evidence on national security will already have been heard in the criminal case. The only additional matter to be argued, if the two aspects of the appeal are to be dealt with together by SIAC, is whether the evidence itself could have a bearing on the likelihood that a person's human rights would be violated in his country of origin.
Either that is a trivial point, which is to be disposed of in a few minutes, in which case it has little, if any, effect on the speediness of the removal, or it is a complex matter requiring a great deal of extra time in the SIAC, which means it is essential in the interests of fairness for the two parts of the case to be connected. I would like to know which of those two the Minister prefers.
In the case where the certificate follows a criminal conviction, it may or may not be reasonably clear from the evidence whether the national security case will affect the probability of the person's human rights being abused. But where the certificate is based on evidence which is not to be presented to SIAC until after the person's removal, it is impossible to say whether he is going to be put at risk. Even then, because the SIAC procedure involves the delivery of closed material to the special advocate, who is prohibited from communicating either with the appellant or his legal advisers without SIAC's permission and because the appellant and his lawyers are not allowed to be present at any closed session, it may be very difficult to assess the effect that the hearing might have on the authorities in the country of origin.
However, there is a strong likelihood that the knowledge that an appeal has been made to SIAC would itself cause serious problems for the appellant, and increase the likelihood that he would be a target for human rights abuse. He might well decide not to pursue his right to an out-of-country appeal even though he believes the evidence against him is false or flimsy in case, by the very act of pursuing the appeal, he draws the attention of hostile authority to himself.
In response to our arguments in Committee, the Minister gave details of a case that dealt with an entirely different issue. She ultimately acknowledged that it was irrelevant, and then said merely that SIAC would take our concerns into its considerations. That is the whole point; SIAC cannot take national security aspects into account and has no knowledge of its possible relevance to the risk of torture or other serious breaches of human rights at the first hearing, before removal, while to revisit the relevance at the second hearing would be too late. Therefore, one outcome of split appeals is that the appellants may be returned and then tortured. Another is that they will try to raise questions of risk by judicial review.
We know that the Government are hoping to ward off objections to the deportation of the person suspected of being a security risk by entering into memoranda of understanding with the states concerned, reinforced by independent monitoring of the undertakings given not to torture or ill-treat returnees. In Jordan, the first and only country where monitors have been selected so far, the task has been assigned to the al-Adeleh human rights centre—an NGO formed as recently as September 2003 which is almost invisible on the web while proclaiming that its strategy is to avoid confrontation with the Government and security apparatus. The terms of reference for its monitoring of returns have not yet been agreed.
Other countries with which similar agreements are contemplated, such as Egypt, Libya, Syria and, most important of all, Algeria, have not even got that far. Assuming that they will all agree to MoUs like the one agreed with Jordan in August 2005—and that monitoring arrangements for the treatment of returnees can be made with NGOs which inspire confidence—what happens if the returned person is then detained? He is entitled under the MoU to have access to the monitor and to be visited privately by him at least once a fortnight while in custody. The monitor is expected to report back to the UK on the conditions in which the detainee is being held.
In the opinion of Amnesty International, the UK's reliance on diplomatic assurances while seeking to expel people to countries where they risk torture or other ill-treatment would violate its obligations under international law. Diplomatic assurances are inherently unreliable and, in practice, ineffective. They cannot relieve a state of its obligation not to forcibly return a person to a country where they would be at such risk. To reinforce that opinion, the only sanction for a breach of the MoU is for us to give the receiving state six months' notice of withdrawal from the agreement.
Algeria is the country to which the largest number of people would be deported if the Government manage to complete these arrangements. It is a country where, according to Amnesty, torture is still used regularly against detainees. Algeria has not signed the optional protocol to the convention against torture, which provides a right of individual petition to the committee against torture; neither has any other state that is being considered for the MoU process. Algeria has blocked visits by the UN special rapporteur on torture for the past 10 years.
We happen to know the Prime Minister's attitude to effective safeguards and compliance with international obligations not to send people back to countries where they may be at risk of torture or ill-treatment. That is from his intervention in the case of Hani El Sayyed Elsebai Youssef, an Egyptian whose application for asylum was not considered by the Secretary of State. That was on the grounds that he was a terrorist, though not charged with any criminal offence, and therefore excluded by Article 1a of the convention. No doubt we shall have a few words to say on that later.
That case was important as it was the first time that we had explored the idea of seeking undertakings from a state to which it was proposed to return a high-profile terrorist suspect. A draft was produced in March 1999 and the initial negative reaction of the Egyptian authorities to our proposals was reported to No. 10 Downing Street at the beginning of April. Across the top of the letter, the Prime Minister wrote "Get them back", and next to the paragraph setting out the assurances that were objected to by the Egyptian interior minister, he wrote that they were a bit much and asked why we needed all of those things.
It is against that background that we should consider Clause 7, which allows for the deportation of people who are considered to be a risk to national security back to countries where torture is practised, subject to unenforceable agreements that they will not be tortured. We really do not care what happens to them—or, at any rate, the Prime Minister does not—but we need a veneer of legitimacy to ward off challenges in the courts.
Mr Justice Field considered that if the Egyptians had given the undertakings sought in the Youssef case, there would have been a reasonable chance that an English court would not have quashed the removal. The Government took the hint and proceeded down on the undertakings route, but Mr Justice Field did not have to consider the likelihood that the Egyptian Government would honour the assurances sought or that any effective remedy would be available if they were breached.
No doubt that was why he was cautious in his assessment of what the courts would do in those circumstances. I would not be too confident that they would accept arrangements of the kind being made in the case of Jordan, but Parliament should consider the whole scheme, including the contract with al-Adeleh, with the advice of experts, before handing these powers to a Government who display such careless disregard for the protection from torture of individuals whom we may have every reason to fear and dislike. The convention against torture applies to suspected terrorists just as much as to heroes of resistance and to unjust and tyrannical rulers.
Does that mean that we would never be able to get rid of the persons to whom the clause applies? No, it does not. It means that our efforts should be directed to persuading those countries to abandon the practice of torture; to honour their obligations under the convention against torture; to sign the optional protocol; and to issue invitations to the United Nations High Commissioner for Human Rights, including the special rapporteur on torture. In the mean time, the Government should agree to take the clause away. I beg to move.
My Lords, before my noble friend replies, I should like to draw her attention to the serious consideration given to this point by the Joint Committee on Human Rights. I shall not detain the House by going over all the detail of how the committee reported, but perhaps I may highlight a couple of points on which it would be helpful if my noble friend could say something convincing today.
The first is the export of risk. I for one simply do not understand how, given the nature of global terrorism, it is safer to have someone sent home, where we cannot monitor or control them, than it is to have them held in some way within our own system, subject to supervision and scrutiny. It would be very interesting to hear my noble friend's argument on why it is thought that that might be more appropriate, because we are dealing with the dangers of global terrorism. If it is global terrorism—and I am totally convinced of its reality—then it is arguably very dangerous to send someone who is regarded as a threat out of our jurisdiction.
The second point on which it would be very helpful if my noble friend could clarify her conclusions and why she holds them is that if the matter is in effect to be dealt with in two parts, two stages, there is danger to the individual in a country where torture happens simply because the British Government have regarded that individual as a threat. That is what alerts the security system in all its uglier dimensions in a country about which we have anxieties. Therefore, it is important to hear from the Government why we are prepared to subject someone to that risk before we know what the nature of the risk is.
The final point is that to argue that there will be a good opportunity for the security dimensions to be properly heard when the person concerned is already out of the country does, from the standpoint of many of us, beggar belief. The person will not be present at the hearing. By the nature of how SIAC conducts its affairs, there is in any case the limitation on contact between lawyers and suspect.
If we are in the battle of winning hearts and minds and convincing people in this country that we really are committed not only to the principles of justice but to their full-hearted implementation, and of not seeing them short-circuited and destroyed simply because terrorist threats exist, then it becomes more important than ever to show young, troubled people in our country that we are standing by the law—and convincingly standing by the law—and that the law is as transparent as possible. The whole procedure laid down here is going to play into the hands of the extremists, who will start manipulating the minds of the vulnerable in our midst.
My Lords, I am grateful to follow my noble friend Lord Judd, who has a long and distinguished career and plays an important role in the Joint Committee on Human Rights. I trust that he accepts that I take very seriously the comments made by that committee and by the Members of your Lordships' House who serve on it. Where we all begin in our agreement is that we face an unprecedented threat, which is global. In this country we need to take our responsibilities to deal with such matters as seriously as possible. Clause 7 is part of that process.
I absolutely agree with my noble friend about the critically important nature of the work we do to deal with—as he described—troubled young people. I have spent many years of my life doing that, working in our communities to look at ways in which we make people feel integrated, supported and part of society, while celebrating diversity and difference as part of that. As my noble friend and other noble Lords know, in making some of our communities of young people feel that, there are particular issues of identity and how they see themselves—to do with educational attainment, integration and their relationships, even with their parents and grandparents.
My noble friend will know that some of my work in the Department for Education was involved in trying to address the concerns of some of our children and young people who felt alienated either from the education system or, more broadly perhaps, from our society. I absolutely accept the principle behind what my noble friend said. But I also accept the principle behind this clause. If the person is a threat to national security and is being removed for that reason, it is vital that removal should take place as quickly as possible. Of course, a person subject to deportation can be detained pending the hearing of their appeal and apply for bail. If bail is granted, that will normally be subject to strict conditions. However, compliance with such conditions has to be monitored and, as we know, that diverts police and security service resources from other work.
Decisions to deport individuals on national security grounds are taken only after the most careful consideration. If the assessment is that the person constitutes a threat, we think it is better to remove the person at once and readmit them if the appeal is allowed rather than to permit them to remain here continuing to pose that potential threat until after the often lengthy—frequently very lengthy—proceedings are concluded. That is what the clause seeks to do. It provides for the speedier removal of individuals who threaten this country's national security. It does this because it provides that the appeal would normally be able to be brought only from outside the UK.
In response to my noble friend Lord Judd, I do not think that appellants are disadvantaged by conducting the appeal from overseas. In the great majority of cases, much of the evidence is closed; that is, the detail is not disclosed to the appellant. The noble Lord, Lord Avebury, referred to the role of the special advocate. The appellant of course will be able to have a solicitor to represent him or her and to deal with open evidence. I do not accept that as a principled argument against this.
I take issue with the noble Lord, Lord Avebury, particularly about my right honourable friend the Prime Minister, for I have been party to some of the discussions around these issues in my previous work at the Department for Constitutional Affairs. I take seriously our obligations under Article 3 of the Human Rights Act. It was this Government who brought that Act in. We did so in full knowledge of the commitment that we were making. We would work very carefully to ensure that people were not going to be deported where there was a threat of torture.
The memorandum of understanding is specifically designed to deal with individuals and individual cases. It is more than just a diplomatic bit of paper. It is a carefully crafted agreement, where we can achieve it, between the two nations concerning an individual about what will happen. I know that the noble Lord, Lord Avebury, describes the organisation that has been appointed thus far as one that he does not know anything about. Neither do I. But those who are involved in ensuring that we have the correct monitoring are trying to make sure that we do it appropriately and properly. With respect to the noble Lord, Lord Avebury, just because neither he nor I know an organisation does not necessarily mean that it could not do a perfectly good job. Ultimately, the courts will play their part properly and appropriately in determining whether the memorandum of understanding is an appropriate agreement under which they can safely feel that a person could be deported.
We are doing everything that we can in those very few cases where we believe that there is significant risk and that we should deport someone. I go back to the point made by my noble friend Lord Judd about exporting risk, on which the noble Lord, Lord Avebury, has taken me to task before. Part of this is about disrupting activities. It is possible to envisage circumstances where an individual operating in this country is significantly putting us at risk, but who, operating in another country, is not, because he or she has no desire to disrupt anything in that country, no desire to disrupt the way of life of that country, and no desire to change the way that that country operates. We are therefore not exporting risk: we are disrupting activity that could be extremely dangerous for the citizens of this country. As I have said before in debate, the most important thing that a government do is to make sure that their citizens are safe. We do so in full recognition of our international obligations under the ECHR and the Human Rights Act in this country. We need to work with our international partners to ensure that we do not export risk to them, but work collaboratively with them to deal with the global threat.
My Lords, I am extremely grateful to my noble friend for giving way. I realise how irritating it must be. However, will she please spell out a bit more the logic of her position on the rejection of the concept that she is exporting risk? If a person is dangerous and is sent out of our jurisdiction, that person can become an extremely active agent in global terrorism; that is, in recruiting, organising and helping to build up international networks. How is it safer to export them out of our jurisdiction?
My Lords, if we felt that a person would become an international agent who would develop an even bigger network, we would have to consider that very carefully with other nations when thinking about deportation. Where possible, it is always our objective to prosecute people whom we think are a danger. But as the noble Lord will know perfectly well, that is not always possible. So we look for the available alternatives. There are a very few people whom in these circumstances it may be better to deport to another country as that would disrupt their activities here, where we genuinely believe with good cause that they would not be in the business of doing the same disruption in another country. My brief states that there is "a very small number", but it is a number none the less.
As I have already indicated, the job of the Government is to try to balance all of the significant risks with their obligations in the international arena. That is what this seeks to do. I do not believe that I will convince the noble Lord, Lord Avebury, on this, but he has given me the benefit of several conversations with him, for which I am grateful. I am absolutely convinced that this clause should remain in the Bill. On that basis, I hope that the noble Lord will withdraw his amendment.
My Lords, it just felt as though the noble Lord, Lord Avebury, moved it.
My Lords, there is a lot of difference between the two of us.
I am grateful to the Minister for her explanation. She knows that since day one of the Bill our views on this matter have differed. She knows also the stance my party takes on issues regarding torture. All Members on these Benches are aware of the fact that when some asylum seekers have been deported, a certain number have never been located again. We do not know what happened to them. I would much prefer to trust in the justice system of this country than to rely on reports from Algeria, Libya and other countries like those.
Our differences remain. For that reason, I intend to seek the opinion of the House.
moved Amendments Nos. 12 and 13:
Page 6, line 7, leave out subsection (2) and insert—
"(2) In subsection (2)(b) (continuation pending possible appeal) after "could be brought" insert ", while the appellant is in the United Kingdom,".
(2A) In subsection (2)(c) (continuation pending actual appeal) after "against that decision" insert ", brought while the appellant is in the United Kingdom,"."
Page 6, line 19, at end insert—
"(4) After section 3C insert—
"3D CONTINUATION OF LEAVE FOLLOWING REVOCATION
(1) This section applies if a person's leave to enter or remain in the United Kingdom—
(a) is varied with the result that he has no leave to enter or remain in the United Kingdom, or
(b) is revoked.
(2) The person's leave is extended by virtue of this section during any period when—
(a) an appeal under section 82(1) of the Nationality, Immigration and Asylum Act 2002 could be brought, while the person is in the United Kingdom, against the variation or revocation (ignoring any possibility of an appeal out of time with permission), or
(b) an appeal under that section against the variation or revocation, brought while the appellant is in the United Kingdom, is pending (within the meaning of section 104 of that Act).
(3) A person's leave as extended by virtue of this section shall lapse if he leaves the United Kingdom.
(4) A person may not make an application for variation of his leave to enter or remain in the United Kingdom while that leave is extended by virtue of this section."
(5) Section 82(3) of the Nationality, Immigration and Asylum Act 2002 (c. 41) (variation and revocation: extension of leave pending appeal) shall cease to have effect."
On Question, amendments agreed to.
Clause 13 [Over-staying leave pending appeal]:
moved Amendments Nos. 14 and 15:
After Clause 13, insert the following new clause—
"APPEAL FROM WITHIN UNITED KINGDOM: CERTIFICATION OF UNFOUNDED CLAIM
After section 94(6A) of the Nationality, Immigration and Asylum Act 2002 (c. 41) (appeal from within United Kingdom: unfounded human rights or asylum claim) insert—
"(6B) A certificate under subsection (1A) or (2) may not be issued (and subsection (3) shall not apply) in relation to an appeal under section 82(2)(d) or (e) against a decision relating to leave to enter or remain in the United Kingdom, where the leave was given in circumstances specified for the purposes of this subsection by order of the Secretary of State.""
On Question, amendments agreed to.
Schedule 1 [Immigration and Asylum Appeals: Consequential Amendments]:
moved Amendments Nos. 16 to 20:
Page 33, line 8, leave out paragraphs 3 and 4.
Page 33, line 24, leave out paragraphs 8 to 10.
Page 34, line 1, leave out paragraph 14.
Page 34, line 6, leave out from "orders)" to end of line 11 and insert "in subsection (5) for "94(6)" substitute "94(6) or (6B)"."
Page 34, line 25, after "83A(2)"," insert—
"(aa) in subsection (2)(a)—
(i) after "3C" insert "or 3D", and
(ii) for "(continuation of leave pending variation decision)" substitute "continuation of leave","
On Question, amendments agreed to.
Clause 15 [Penalty]:
moved Amendment No. 21:
Page 7, line 31, leave out sub-paragraph (ii) and insert—
"(ii) has ceased to have effect (whether by reason of curtailment, revocation, cancellation, effluxion of time or otherwise),"
My Lords, these minor technical amendments will clarify the definition of who may or may not be employed for the purposes of the civil penalty scheme in Clause 15 and the offence of knowingly employing an illegal migrant worker in Clause 21.
The Bill currently provides that an employer may not employ an adult subject to immigration control who has not been granted leave to enter or remain in the UK, or whose leave to enter or remain in the UK is invalid, has expired or is subject to a condition preventing him accepting the employment.
We have reflected on whether the term "expired" provides sufficient legislative clarity in every case where leave has ended, other than as a result of the passage of time. It is, of course, important to ensure that the obligations which these provisions place on employers are not ambiguous and that they effectively prohibit the employment of those not entitled to work.
The amendments clarify that employers should not employ adults whose leave to enter or remain,
"has ceased to have effect", by virtue of curtailment, revocation, cancellation or the passage of time. In moving the amendment, I confess that I have learnt a new word, "effluxion". I did not know that it existed, but all the lawyers in my department told me that that was down to my ignorance and my not being a lawyer. I beg to move.
My Lords, I am glad that the Minister noticed the word "effluxion". Your Lordships may remember that she was keen to remind us in Committee that "thinks that" had been adopted rather than "is satisfied that" on the ground that it was always preferable to use plain English. So I took the trouble to look up the word "effluxion". I did so first in the Oxford School Dictionary. It includes 30,000 words, which is a vocabulary slightly larger than most of us command, but the word was not there. Roget's Thesaurus contains it, alongside a number of alternatives which the parliamentary draftsmen no doubt looked at and discarded. The noble Baroness suggested that we might use "passage".
In legal language, "effluxion of time" normally means the expiration of a lease or option or some other right due to passage of time, rather than due to a specific event that might cause the right to be extinguished, such as the destruction of a building. I do not think that its use has so far been extended to the immigration laws. Perhaps this would be a good opportunity to prevent it from spreading all over the statute book by referring to the OED. The meaning that the OED gives is,
"lapse or passing away (of time)".
I suggest that "lapse" ought to replace "effluxion" not only here, but in the several other places in this Bill where it occurs, as well as in other parts of the statute book that have been polluted by use of words other than plain English.
My Lords, there is a serious point here. The Minister said that the purpose of the amendment was to make the provision unambiguous. She did not know the word; I certainly did not. The noble Lord, Lord Avebury, looked it up and told us what the dictionary says. If the amendment really means the passage of time, it should say so; if it means the expiry of time, it should say so. It is not a good idea deliberately to include a word—presumably for some reason or other—if one can use a synonym which is perfectly acceptable and which everybody understands.
My Lords, I agree about using plain English, partly because there are lots of words in the English dictionary that, sadly, I do not know. The noble Baroness's noble friend Lord Brooke usually uses several such words in his contributions and I have to rush away later and discover what they mean. However, I checked the word, precisely for the reasons which the noble Lord, Lord Avebury, and the noble Baroness, Lady Carnegy of Lour, indicated as being important. They are important to me, too. We need to use this word because it has a resonance which brings clarity to this legislation. The need for clarity is absolute. We do not want there to be any lack of it. My best and strongest advice is that this is the appropriate word to use in these circumstances. I argue for clarity every time: I have received at least one other note from parliamentary counsel on another issue where I have thought about plain English. I said that the word is new to me, but I am reassured by my legal team and my parliamentary consultants that, in this context, the word will be of great value because it is absolutely clear. I hope that the noble Lord will accept the amendment on that basis.
My Lords, I do not want to get into a Committee debate at this Report stage. The noble Lord, Lord Avebury, gave a very clear definition. I sought in my note to explain precisely what it meant, which is why I referred to it as being a clear explanation of what we are trying to achieve.
moved Amendment No. 22:
Page 7, line 38, at end insert—
"( ) An employer is excused from paying a penalty if it is the first time he has acted contrary to this section, and he—
(a) co-operates fully with enforcement officers; and
(b) is willing to take help and advice to avoid the repetition of the offence."
My Lords, in moving the amendment, I shall speak also to Amendment No. 24. I have tabled the amendments in response to a briefing from representatives of the Chinese, Bangladeshi, Indian and Pakistani communities in the UK. They are probing amendments which seek some explanation and assurances from the Minister.
We debated Amendment No. 22 in Grand Committee and, as we are now at the Report stage, I shall refer to it only briefly now. It would excuse an employer from paying a civil penalty if it was the first time that he had contravened the provisions of Clause 15, if he had co-operated fully with the enforcement officers and if he was willing to take help and advice so that he does not reoffend.
Members on all sides of the House have made it clear that they deplore the employment of those who have no right to work here. Illegal working can end in tragedy, as we saw at Morecambe Bay. All good employers and their representative bodies support the principle of sanctions on employers, but are concerned about the detailed implications of the Government's proposals in this Bill.
Amendment No. 24 would require the Secretary of State to consult employers before the Government put into place the civil penalty regime. In Grand Committee, the Minister made available a draft of the code of practice. What further developments have there been on the draft code? Have any improvements been made as a consequence of any further consultations that the Minister has held? She stated in Grand Committee that she anticipated meeting again representatives of the various ethnic communities which had expressed their concerns. She made some reference to that earlier today during tributes to Lord Chan. Will she bring us up to date on those meetings?
I have been advised by Christine Lee of the North London Chinese Association that she and her colleagues have held briefing meetings around the country—for example, in Manchester, Birmingham, Stirling and Sheffield, in addition to London. At Second Reading, Lord Chan gave a full explanation of their reasons for concern and set it carefully against the background of the development of their small businesses, which are so important to the UK economy. Ms Lee and her colleagues point out that the Government have not had any consultation specifically with the Chinese, Bangladeshi or Indian catering sectors or with any other organisations which involve employers who rely on overseas workers in the restaurant industry. I would be grateful if the Minister could respond to that point today.
I am also advised that many employers do not have the time or resources to perform the policing role that they believe is better and more appropriately performed by the IND. The Minister will be well aware of the vibrancy of the catering sector represented by Ms Lee and her colleagues. It is also interesting to note that the most recent statistics published by the Government demonstrate the importance of the Chinese ethnic group in England. The Government's press release of
"The fastest population growth between 2001 and 2003 in England was in the Chinese ethnic group with an average annual growth rate of 11.1%, largely due to the net international in-migration of people born in China".
This exactly reflects the evidence adduced by Ms Lee about the importance to small catering businesses here of being able to recruit chefs and kitchen staff directly from China.
Mr John May, vice-chair of the North London Chinese Association, has put forward three proposals to improve Home Office practice. First, the Home Office should include a non-compulsory invitation to disclose the respondent's ethnic group when an individual or a group responds to a consultation exercise; secondly, the Government should publish the ethnic breakdown of respondents to consultations; and, thirdly, the Home Office should as a matter of urgency produce the list of stakeholders that it has undertaken to compile and should make positive efforts to include Chinese community and business associations on that list. I appreciate that, as we recognised earlier, the Minister has her locus in the DCA and is taking this Bill forward on behalf of colleagues in the Home Office, but will she agree to discuss those proposals with her colleagues at the Home Office to ensure that this is a continuing process?
I referred in passing to these concerns when we debated the Identity Cards Bill on Monday of last week. I was cautiously optimistic about the response of the noble Lord, Lord Bassam of Brighton, who expressed an intention of the Home Office,
"to reach out to those groups who would otherwise ordinarily feel excluded from consultation".—[Hansard, 30/1/06; col. 72.]
But, as the vice-chair of the North London Chinese Association points out to me, the devil is in the detail. If the Government do not know who these groups are and how to contact them, outreach will not work, however good the Government's intentions are. I beg to move.
My Lords, I speak to Amendment No. 23, which is included in the group that we are discussing. I introduced a rather similar amendment in Grand Committee. This one is rather shorter but is concerned with the use by employers of migrant workers as cheap labour. In Grand Committee, perhaps because of the way in which I spoke about the possibility of regularising illegal workers, much of the discussion—and, indeed, the response of my noble friend the Minister—dealt with the whole issue of the employment of illegal workers.
The main objective of my amendment is to draw attention to the fact that there are unscrupulous employers who will exploit migrant workers if they can get away with it and that everything possible should be done to make sure that they do not. I have already drawn attention in previous debates to the way in which the director-general of the CBI has welcomed immigration on the ground that it deals with "wage inflation"; in other words, it keeps the general level of wages down. Migrant workers are willing to work for low wages; they are often quite unaware of the existence of minimum wage rates or of health and safety conditions and are much too scared to take issue with their employer even if they are aware of them. Many of them are sending part of their earnings home to families who are even poorer than they are.
Of course, a suspicion that migrant workers are undercutting wage levels does not help race relations. I am glad that trade unions are recruiting among migrant workers and doing their best to improve wages and conditions. However, there are problems. On the BBC's "Politics Show" at the weekend there was discussion of this whole issue. It is clear that some people think that a free market in labour is keeping down the general level of wages and is therefore to be welcomed. That is all very well; large profits can be made but, of course, as usual, the very poor pay for it. For that reason my amendment refers to the right to join unions and to participate in workshop organisations.
I hope that this time round my noble friend the Minister will be willing to respond sympathetically to the wording of the amendment. As I said earlier, in Grand Committee and, I believe, at Second Reading, the possibility of migrant workers undercutting the general level of wages is not a very good idea in this country. It can lead to a worsening of race relations and make employment relations that much more difficult. I therefore hope that my noble friend will be prepared to view what I have said with sympathy.
My Lords, I support what was said by the noble Baroness, Lady Anelay, about the issue affecting the Chinese community. All of us have met the person concerned at different times and she has made representations on behalf of the Chinese community. However, she also made it very clear that the issue affects other minorities, particularly those involved in the catering industry.
One of the assumptions that is often made by decision makers is that if you have a large ethnic community in this country, particularly involved in the catering trade, you should be able to find people from that community to provide services. That is utter nonsense. A large number of people growing up in this country who comprise the second, third or fourth generations of their ethnic minority do not want to do precisely what their parents did. They have received a better education and are better qualified than their parents and do not want to go into the catering industry. However, that industry creates substantial wealth for this country. It contributes about £2.3 billion or £2.4 billion to the British economy. We ought to be careful to ensure that no generalised assumptions are made where applications are concerned and that the Minister takes into account the special needs of that community to be able to make them.
My Lords, if the Minister has not already done so, I suggest that she also meets Bangladeshi restaurateurs. She has met Chinese restaurateurs on two occasions. Bangladeshi restaurateurs and the Bangladeshi food industry probably comprise at least as big a contributor to our economy and to gastronomic excellence as the Chinese food industry. I hope that the Minister agrees that both of them deserve to be heard.
During the consultations, various representations were made. The noble Baroness, Lady Anelay, gave us details of three proposals made by a leader of a Chinese community association. I hope that the Minister can publish the results of the consultation that she has held with both sectors before Third Reading, as it would be enormously helpful to your Lordships to know that at least we are moving in the right direction in accommodating the special needs of those industries. I believe that that would satisfy the noble Baroness, Lady Anelay.
With respect to the amendment spoken to by the noble Baroness, Lady Turner, it occurred to me while she was speaking that if one merely provided that the treatment of migrant workers was not less favourable than that which applies to national workers, one would miss something, because most of these people are employed in a sector where there are no nationals. As we have constantly heard during our discussions with both the Chinese and the Bangladeshis, the natives of this country do not know how to do Chinese or Bangladeshi cooking. That is the reason why people come in from abroad to carry on those operations. Therefore, there is no exact equivalent with which to compare them. If one were to make provision for these workers, as is suggested by the noble Baroness, it would have to be applied to national workers in equivalent occupations. Then I think that the issue would be properly taken care of. I hope that the noble Baroness will consider that. The measure is a good idea in principle.
As regards the employers who will go on the register, one of the factors that ought to be considered—even if it is not formally put into the statute—is how they treat existing migrant workers. They should not get on to the list of approved employers for the points scheme unless the noble Baroness and the Government were satisfied that they treated migrant workers as favourably as local workers.
My Lords, in supporting my noble friend Lady Anelay's amendment, I make the following points. This is a civil penalty. No doubt the Minister has told us, but I am sorry that I do not know how much she has in mind for it and what the maximum is. However, what the amendment suggests is reasonable. Once the Government have caught up with an employer thought to be employing those he should not be employing, it is likely that he will either be stopped by having it drawn to his attention or he will carry on regardless. The Government are keen on civil penalties. When one is acting as an enforcement authority, this method of enforcement provides a cumbersome form of appeal and places all the burdens on the defendant. One can justify that sometimes, but we are nudging up against what is reasonable. It is extremely important to remember that any prosecutor should act reasonably before enforcing. The amendment asks the Government to act reasonably. I hope that the Minister will take that point into account.
My Lords, I am grateful, not least to the noble and learned Lord, Lord Lyell, for joining our debate. We spelt out in our debates in Committee many of the issues that he rightly wishes to address. There is a maximum penalty. It can be applied at different levels in order to recognise the contribution of employers in making sure that they were trying to act reasonably and so on. The Secretary of State is required to act reasonably. Perhaps I may refer the noble and learned Lord to those discussions. He can then come back to me if I can give him further detail.
I completely accept the points about behaving reasonably and trying to make the system work appropriately. The noble and learned Lord will know that we have brought it in in order to try to deal with a problem without criminalising employers, but recognising that some perhaps do not do their job properly and are sloppy and those who cannot be bothered need to recognise that a penalty is involved. The majority of employers do not behave in that way; and hence part of what we are seeking to do is to address working with employers to recognise that we all have a bit of a part to play in making sure that the right workforce is operating for business. In a quick snapshot that is the background to the amendments; I am grateful to the noble and learned Lord for giving me the chance to make those remarks.
As the noble Baroness, Lady Anelay knows, I have met Christine and other members of the Chinese community and representatives of the Indian, Pakistani and Bangladeshi restaurant community too. We talked about food a great deal and it was hugely enjoyable. We talked a great deal about the issues of small employers and their concerns. It was not a formal consultation but I am happy for the correspondence to be placed in the public domain. I am not sure whether a record of the meeting was taken, but I have no difficulty with the points from the meeting being made public and I hope that the noble Lord, Lord Avebury, will accept that I will do that in good faith.
I turn to the amendments in the name of the noble Baroness, Lady Anelay. She invited me to talk further about the draft code, around which we had a discussion. It is currently being revised in the light of our discussions in Committee. As soon as I have a new version I will make it available to your Lordships. We took on board the need to be clearer about the way in which the penalties will operate and we recognise the role that employers will play in collaborating when issues arise.
The critical question within Amendment No. 22 is the yellow cards system—as I referred to it before—which the CBI has felt strongly about. The difficulty I have is that it provides a complete excuse not to have recognised the fact that one has not done something that one should have done. I turn to the conversations with the different communities. It was clear to me that they were concerned that what they were being asked to do should not be onerous. I completely agree with that. We do not expect employers to become experts in forgery, nor indeed necessarily to have a great understanding of all the documentation. However, it is reasonable to ask them to look at documents and to check photographs of the person involved. We will be working through the helpline and with the different officers who will be working with them to give support and advice to employers so that they become better at understanding what the documents will do.
We also talked to the community about how frequently one would be expecting to consider documents again. Noble Lords will know from Committee that we discussed 12 months as being the point, regardless of whether the employee had a six-month visa and was going to renew it. We are not expecting them to keep track of individuals in that way, but we think that about once a year is right. In speaking to the community I believe that at the end of the meeting there was great reassurance about the way in which we are seeking to approach the issue and that it is not about trying to catch people out or to make life more difficult. The representatives also spoke about circumstances where they felt it would be better if there was greater clarity and understanding about what they had to do so that they would be clear about the process. They wanted to make sure that they were employing people legally for all the reasons that noble Lords would expect. So we made significant progress in talking through how this measure would work.
The noble Baroness, Lady Anelay, talked about consulting. I agree that we cannot consult people whom we do not know exist. We certainly now have in mind to make sure that the Chinese community and the Bangladeshi, Pakistani and Indian community, particularly around the restaurant business, are consulted. I am grateful again that the late Lord Chan was able to do that for us. They will certainly be part of what will be a consultation. I place on the record that this will be a full, detailed, public consultation on the measures proposed. It will be in accordance with the Better Regulation Executive's code of practice on consultation. It will last for 12 weeks and responses will be analysed. It will pay particular attention to possible new approaches to the questions that have been consulted on, evidence given on the impact of the proposal and the strength of feeling among particular groups, which in part seeks to deal with the issue that Mr May raised, as the noble Baroness, Lady Anelay, mentioned. I will commit to taking that issue away to discuss with my colleagues in the Home Office, and I will come back to the noble Baroness with copies to other noble Lords of what has been determined.
Once the consultation has taken place, copies will be placed in the Libraries of both your Lordships' House and another place to ensure that they are available to noble Lords as well. I hope that that will be sufficient to enable noble Lords to feel comfortable that we are determined to make sure that employers work collaboratively with us and that the civil penalty side is simply to address the fact that we know there will be circumstances where unfortunately perhaps a few employers do not do that and we need to deal with that properly and efficiently. In Committee and, I hope, this evening, I have made it clear how we will do that and I have indicated that we will obtain more details of the latest code of practice, which will take on board points to be made.
I turn to Amendment No. 23 in the name of my noble friend Lady Turner of Camden. I am sorry that I did not address it properly in Committee, although I sought to do so. My difficulty is that it is in the wrong place, because in this Bill we are trying to deal with illegal working. There are specific issues where we are seeking to deal with illegality that do not apply to those people working legally and who, as my noble friend rightly said—I sensed a great deal of support for her proposals—were people who work legally in the system but are not treated properly. They are not treated properly in part because people think that because they are migrant workers they do not need to be.
Because I am a DCA Minister I am not sure where to take the proposal, except to say that I could not agree more with the sentiments behind it. However, I cannot insert it here in the Bill because the Bill is about illegality and I would not want migrant workers working properly and legally to be mixed up in our minds with those who work illegally. All I can do that might help is to commit to take away the issue and look at it with the appropriate department, which may be the Department for Trade and Industry rather than the Home Office. We can then come back to my noble friend and invite other Minister colleagues to meet her to see what more could be done to address the issue. It is an incredibly important issue but I hope my noble friend will understand that it is not right in this Bill, not least because we do not want to mix up illegality and legality for this important group of people. I hope that I have reassured the noble Baroness, Lady Anelay, and that she will be able to withdraw her amendment.
My Lords, I am grateful for the support of the noble Lords, Lord Dholakia and Lord Avebury, and my noble and learned friend Lord Lyell of Markyate. The noble Baroness is right; we are trying to elicit assurances from her, and I am very satisfied with what she has said today.
In particular, she referred to the fact that the draft code is under revision. It certainly would be very useful for the House to be able to consider that latest draft before Third Reading, now that we know that the Government are minded to ensure that other consultation matters will be before us by that stage. I am also grateful to her for spelling out so clearly that the public consultation will follow the proper rules and will be full and detailed. I am grateful for her offer to talk to her colleagues in the Home Office about the way in which they carry out consultation in the future.
I make a commitment that in discussing such matters with organisations such as the North London Chinese Association I will discuss how they might be able to approach other departments in an effective way. One of the matters that has been highlighted here is that it is often very difficult for small organisations to respond to government initiatives and Bills because they do not have their focus on the department concerned. If I am a Chinese restaurateur, I might well expect that my focus is on DCMS, because that is the department that has control over the tourism industry. If I am a member of the British Hospitality Association, all my focus is on what the association is talking about to DCMS, and I might then miss what is being done by the Home Office. I might more easily have my focus on DTI; certainly the Home Office is not a natural focus of my attention as a businessperson. I am grateful to the Minister. I am sure that we will all try to ensure that we better carry out our duties in consultation; although we do not have the resources of the Government to do it as effectively—yet. I beg leave to withdraw the amendment.
moved Amendment No. 25:
Page 10, line 37, leave out sub-paragraph (ii) and insert—
"(ii) has ceased to have effect (whether by reason of curtailment, revocation, cancellation, effluxion of time or otherwise),"
On Question, amendment agreed to.
Clause 32 [Passenger and crew information: police powers]:
My Lords, Amendment No. 26 deals with Clause 32 on passenger and crew information and police powers. We define this very much as a rendition amendment. Much of the discussion has taken place in the other place. One of the difficulties that we have faced in recent times is the words that repeatedly cropped up there: extraordinary rendition, which is the covert, involuntary transfer of individuals—commonly terrorist suspects—between one country and another. In particular, extraordinary rendition refers to the alleged US practice of rendering terrorist suspects to countries—usually Middle Eastern or Asian states such as Egypt, Morocco or Jordan—where they are subjected to torture or other mistreatment to obtain information.
The Minister looks puzzled about why I am talking about that. I am simply setting the background of the purpose of the amendment. Since we have not been able to get any further with this matter, particularly in relation to questions being put to the Foreign Secretary, it is right and proper that we have a system in this country when we give police powers to be able to seek such information that it is systematically collected. Will the e-borders system being set up by the Immigration, Asylum and Nationality Bill monitor as a matter of course all flights in and out of the United Kingdom, both civil and commercial?
A specific reason for collecting routine data from private jets as well as commercial airlines is that private aircraft are alleged to have been used by the CIA to transfer prisoners illegally and for the purposes of subjecting them to interrogation methods including torture and/or inhuman and degrading treatment. British police forces have a positive duty to investigate allegations that such flights have touched down in the United Kingdom, because if that is proved to be the case there would be an obligation on them to intervene and make arrests to prevent an illegal act taking place. We would welcome assurances that passenger details will be required from all flights, including those that touch down only for refuelling, so that investigations can take place where appropriate.
It is currently not clear what information is required from private aircraft landing in the United Kingdom. It may be that no record exists for non-fee-paying passengers on those flights, or that records are not kept when the plane is simply landing for the purpose of refuelling. Will the Minister clarify the way in which the current rules operate? What information is currently required from non-commercial charter flights, including those where the aircraft is carrying neither fee-paying passengers nor cargo, and where the aircraft is simply landing briefly for the purposes of refuelling? Where is that information held, and for how long is it held? That would go a long way in terms of giving some information on some of the practices that we all condemn. I beg to move.
My Lords, there are comments in the recent report by the noble Lord, Lord Carlile, on the operation of the Terrorism Act 2000, about lax security at small ports and airports and poor management of passenger manifests. I will not go through the quotes from the report, as I am sure that the noble Baroness is familiar with them. The report expresses anxiety that manifest information may be inaccurate, inadequate and given a low level of importance by transport operators, and that vital clues to terrorism may therefore be missed. Conversely, good manifest information can save lives. Why the selectivity? What is the purpose of allowing only the collection of information on certain limited flights or routes when, according to the noble Lord, Lord Carlile, we should be collecting all that information if we want to be safe from terrorism?
My Lords, I have read the report from the noble Lord, Lord Carlile, who could not be with us today. My interpretation was slightly different. We recognise that there is more to be done in terms of small ports and airports but there is a big question about the resource implications of collecting all information at all times in all cases. The Bill seeks to enable the police to have the power to make sure that we are able to get information when there is a reason to get it.
The obvious examples that noble Lords will be aware of historically are when we have a concern about a piece of intelligence that suggests that there could be a problem with a flight between, for example, London and Washington, but we do not know which airline or what time of day may be affected. It may be that one would collect information for a specific length of time on a specific route. It may also be that we get information that we should worry about a threat to a particular airline, so we might collect information from the airline across Europe or across the United States destinations and so on. The specific purpose behind all of that is to enable us to target and get information appropriately that will help us to deal with potential threats of any kind or potential need to get information that would help us in a variety of ways, not least on terrorism.
The noble Lord, Lord Dholakia, took me by surprise, because he has transformed an amendment on that subject to, if I may say, a different issue. I am not going to try to second guess the comments of my right honourable friend the Foreign Secretary, who has made a number of statements about this issue. I listened carefully to the points that the noble Lord made. The purpose is to deal with the potential difficulties and threats that we face; it is not to collect information in a general sense for a different purpose. I volunteer to look back on the comments and either write to the noble Lord or arrange an appropriate meeting on it. I am sure that the officials will be happy to do that too. I should simply say that the matter he raised does not relate to this part of the Bill and it would be wrong of me to try to deal with it, because I would not do it well. I would rather do that separately and appropriately.
My Lords, I thought that we were being rather helpful to the Minister by identifying the treatment received by people suspected of being terrorists. However, I am grateful that the Minister said that she would look at that matter and come back to us at some stage, at least before Third Reading. That would be helpful and, meanwhile, I beg leave to withdraw the amendment.
moved Amendment No. 27:
Page 21, line 14, at end insert—
"(1A) Information may only be disclosed under subsection (1)(d)—
(a) for police purposes;
(b) with the consent of the Secretary of State.
(1B) The Secretary of State shall give his consent only if satisfied that the information can be shared without breaching Convention rights."
My Lords, in moving the amendment, I shall speak also to Amendments Nos. 28 and 29 grouped with it. The three amendments tighten up the loose and sloppy drafting of the Bill. They are a definite improvement on my earlier attempt in Grand Committee. They provide the important safeguards that information may be disclosed outside the United Kingdom only for police purposes and with the consent of the Secretary of State.
Amendment No. 29, which is consequential, precisely defines "police purposes". Amendment No. 28 provides for accountability and transparency by requiring the Secretary of State to specify the external agencies by means of an order.
This brings Clause 39 into line with Clauses 32 and 33. I hope that my approach will be acceptable to your Lordships' Select Committees on human rights and on the constitution. I trust that it will commend itself to the Government on grounds of both principle and drafting. I beg to move.
My Lords, the noble Lord, Lord Hylton, has brought us back to the question of what limitations there should be on the purposes for which information obtained under the new powers in Clauses 32 and 33 should be disclosed to foreign law enforcement agencies, how we can ensure in the Bill that none of these disclosures would lead to a breach of human rights, and whether the definition of "foreign law enforcement agencies" should be restricted so that only responsible agencies in countries that respect human rights would be included.
When we looked at these problems in Grand Committee, the Minister argued that in deciding whether to disclose a particular item of information, the 44 chief police officers in England and Wales and Northern Ireland, plus the eight chief constables in Scotland, who should also be considered in this context, had the knowledge and expertise to assess whether it could result in a breach of human rights. I am sure that every one of those 52 chief officers would do his best to make an assessment of whether, as the noble Lord, Lord Hylton, put it during the debate on this clause in Grand Committee,
"to disclose very sensitive information to any other foreign law enforcement agency".
But is it fair of Parliament to lay that responsibility on them without further guidance? The Minister said that:
"States with excellent democracies and very good track records are still asked, in the context of sharing information, whether their systems can be relied on to ensure that the information is used appropriately and stored effectively".—[Official Report, 17/1/06; col. GC 221.]
If I may digress for a moment, there is no general framework for data protection in Pillar 3 of the European Union, but there are individual sets of rules and supervisory arrangements covering particular areas such as Europol and Eurojust, the customs information system, the Schengen information system and so on. Your Lordships' European Union Committee recommended, in its report, After Madrid: The EU's response to terrorism, that,
"enhanced information exchange in the EU, and the trend towards greater profiling of individuals, necessitate the establishment of a common EU framework of data protection for the Third Pillar".
That was nearly a year ago, and it would be useful to know whether any progress was made towards that framework during our presidency and, meanwhile, what data protection regime would cover disclosure under Clause 39 to any agency in another EU state. Would information acquired under Clauses 32 and 33 be covered by the draft framework decision tabled by the Swedish Government in June 2004, which would give police authorities of one member state access to information and intelligence held by authorities in other member states under conditions no stricter than those applicable at national level, and has any progress been made on the principle of "equivalent access"?
The fact that law enforcement agencies in EU member states exchange information only on the basis of agreements that safeguard data protection means that we could simplify the task imposed on police officers in deciding whether to transfer information under this clause. If one of the amendments were adopted, the Minister could give an undertaking that no order will be made in respect of any person mentioned, unless there is an agreement with the state under whose jurisdiction the person operates on data protection covering the information in question. There would be a list of the countries with which an agreement exists and the extent of the information that it covers. If the country is not on the list or the agreement does not cover information of the kind specified in Clauses 32 and 33, the chief officer would not have to consider whether, notwithstanding the existence of satisfactory data protection arrangements, there was any reason to suppose that an individual's human rights could be at risk from the act of transferring the information.
Obviously, we do not have data protection agreements with states that we discussed in Grand Committee, such as Burma and Zimbabwe, and it would be useful if the Minister could tell us what countries outside Europe we have agreements with that would permit transfers under Clause 39. If it is a fairly short list, as I suppose, and she confirms that chief officers would have to consider transfers only where the receiving country is on the list, the task of chief officers may not be quite as onerous as we feared.
My Lords, I am grateful to the explanations given by the noble Lords, Lord Hylton and Lord Avebury. Sadly, I will resist the amendments because, apart from anything else, one has to be clear about the amount of effort and energy that would be appropriate, particularly because it would place a particularly burdensome requirement on the Secretary of State and the police.
However, I seek to reassure the noble Lord, Lord Avebury, on some of the issues he raised. First, it is right and proper that human rights issues are taken forward under Article 8 of ECHR and we expect chief police officers to take this seriously. The Human Rights Act is a backdrop to all public service. We expect people to take it seriously and I believe that they do. In all of these issues it is important that that is noted and that people recognise the importance of doing so.
The Data Protection Act and the eighth data protection principle come into play. That principle states:
"Personal data shall not be transferred to a country outside the European Economic Area unless that country or territory ensures an adequate level of protection for the rights and freedoms of data subjects in relation to the processing of personal data".
It is a principle that would be followed. The noble Lord, Lord Avebury, asked me how we would deal with the framework decision in terms our presidency and the work on data protection. The noble Lord knows that I am responsible for data protection in government and I spent a huge amount of time during the presidency dealing with many issues relating to data retention and data protection. He will also know that the European Parliament has started its deliberations on the work proposed by the Commission and the Council has not yet reached conclusions—not least, because there is a huge number of issues to take forward. I am happy to keep the noble Lord informed of how we get on. It is expected that we will make significant progress under the Austrian presidency. My own view is that we will not finish this until the Finnish presidency, because there is much to do.
There is a great deal of commitment, particularly in the European Parliament, to ensure that the balance between how we share data and how we protect them is recognised. The Justice and Home Affairs Commissioner Franco Fettini has often talked about the scales of making sure that alongside security you protect people's rights, and the Council of 25 nation states have approached that from different viewpoints, but I find a general recognition within the Council that this is an important aspect of what we do.
Noble Lords will also know that at Vienna we discussed issues concerning Europol and data, ensuring that we had a consistent approach. I took that forward for the Home Office. As regards European Union work, we have to ensure that data protection issues are correctly understood and undertaken. There are issues about sharing data between nation states. We need to be clear with whom we are sharing information, on what basis and in what the circumstances and, broader than that, we have to recognise the importance of this.
On the data protection principle, the exceptions that are applied concern substantial public interest. We need to think very carefully about what we are seeking to achieve. Essentially this concerns enabling the appropriate level within our police services to share information and give information appropriately. We believe that the safeguards are there. We accept the role of the Human Rights Act, as do the police. We accept the data protection principles, particularly the eighth principle. We accept that in the European Union much work still needs to be done on data protection but people need to be willing to adhere to how far we have gone. Our information commissioner meets regularly with his counterparts in Europe to discuss these issues. He and I are considering how best we can work together to deal with data protection issues across Europe. I am not sure whether that fully reassures the noble Lord, but I am very clear about the way in which we are seeking to approach the issue.
My Lords, the noble Baroness has made a very useful comment about how the data protection principles are applied. I was also suggesting that if these chief police officers have at least a list of the countries with which we do not have a data protection agreement, they would know that they would not have to begin to consider the human rights implications of transferring information. Under the data protection principles, there would be no question of allowing the receiving agency in those countries to have that information.
My Lords, as far as I am aware, we do not have a list. The reason is that there are different nations which have different approaches to data protection, but that does not mean that they do not take it seriously. As far as I know, we have not gone down that road. If I discover that that is wrong—I do not believe I shall discover it is wrong—I shall come back to the noble Lord. As data protection Minister, I think I would know if we had a list of nations and I certainly do not.
That is an interesting thought and one that I shall consider, not, I hasten to add, as regards this Bill, but as regards broader pieces of work that I am undertaking on data protection. In this legislation, I would be very reluctant to hamper the opportunity to share information appropriately and properly simply because someone is not yet on the list because we have not got round to putting him on the list. As the noble Lord will know, I am not a list person. None the less, I shall reflect on what the noble Lord said.
We seek to do this while recognising our responsibilities on human rights and data protection. I have picked up the points made by the noble Lord, Lord Avebury, but I shall resist the amendment as I believe we have the situation about right. I do not want to restrict the opportunities for police forces to be able to share information by requiring the Secretary of State to be involved in all cases. I do not believe that is workable, although I can see why the noble Lord would want it. I believe it is too much of a burden. I resist it on that basis. I hope the noble Lord will feel able to withdraw his amendment.
My Lords, I am very disappointed that the Minister resists the amendment. I had thought that it improved the drafting of the clause. I point out that we are talking about the whole world; we are not limited to the European Union which, on the whole, has fairly good practices, although they may vary from country to country. We are dealing with all regimes in the world. I would be somewhat reassured if the noble Baroness could tell me that this power—I accept it is only a permissive power—to disclose information is strictly limited to information arising under Clauses 30 to 33 of the Bill.
My Lords, this is Report stage and I am conscious that I am not able to speak again, but yes, it is restricted to Clauses 32 and 33. I hope that that reassures the noble Lord.
My Lords, that is some help because Clause 33 deals only with freight information and it is hard immediately to see how that would prejudice the rights of people in this country. On the other hand, Clause 32 deals with passenger information which could perfectly well be information about citizens and bone fide residents of this country, for example, returning home after a perfectly lawful and normal journey. That is why I believe there is a need for safeguards. I know that the Minister mentioned some existing safeguards. Can she say whether these are only or principally under our existing Human Rights Act or are there some other kinds of safeguards?
My Lords, I am extremely sorry to interrupt the noble Lord. This is Report stage. Once the Minister has sat down, she cannot speak again. I would be very grateful if the noble Lord would realise that this is not Committee stage but Report stage.
My Lords, I am perfectly well aware that this is Report stage. I am inviting the Minister to write to me, or to communicate with me by some other means. Perhaps she could indicate later whether there will be very clear guidance sent from the Secretary of State to all 43 chief police officers to guarantee that they do not infringe the human rights of citizens and residents by disclosing information that may be prejudicial to them. If I could have that kind of understanding, I would be happy to beg leave to withdraw the amendment.
moved Amendment No. 30:
Page 21, line 42, leave out subsection (5).
My Lords, we have a profound aversion to Clause 40, as the noble Baroness knows, because it allows powers of detention and search and the use of reasonable force for these purposes to be exercised by private contractors. We have particular concerns about the use that may be made of these powers in the juxtaposed jurisdictions in France. There is no objection to private contractors examining lorries or containers to ascertain whether there are illegal entrants or contraband as they already do, but we think that the powers of arrest, detention and search ought to be conferred on only police, customs and immigration officers who are fully trained in those duties and operate under strict codes of conduct. Unfortunately, that principle has already been breached by the appointment of detainee custody officers under Section 154 of the 1999 Act. As we noted in Grand Committee, they merely look after persons who have already been detained by an immigration officer; they do not have any powers of arrest or search.
The Minister referred to the work that these private contractors will be required to do as often simple and mundane operations. No doubt she meant conducting a preliminary search of a ship, an aircraft or a vehicle and finding no evidence of illegality, as I suppose will be the case in 90 per cent of the operations. However in 1 per cent of searches, where the contractor's employee has reason to believe that there is an illegal entrant present, perhaps by virtue of an infrared scan or electronic detection signal, he should call an immigration officer or police officer immediately and an officer should always be on hand nearby for that purpose.
That must have been already happening since August 2000, when, so the Minister told us, the Immigration Service has been working with private contractors in the freight lanes berthside in Calais, with huge success. If the collaboration is working so well, why are these extra powers needed? Clearly there must be immigration officers nearby in the freight lanes at Calais who can be called to arrest, detain and search an illegal entrant. Clause 40 envisages that they will be somewhere off-site, or even off duty, but within a three-hour journey of the site. The Minister could not explain why the three-hour upper limit was necessary, when the Immigration Service has the duty of supervising the contractors, which ordinary people would assume to mean that there would always be officers on-site.
As the Minister is aware, there is particular concern about how these arrangements will work in the ports where there are juxtaposed controls. The contractors there will be French companies, operating under French law and employing French contractors. These employees would, for instance, be subject to whatever checks there are in France to prevent sex offenders being employed in jobs involving children. We cannot even get our own checks right, so how are we to be assured that French safeguards are watertight? The Minister said, in response to my noble friend Lord Dholakia, that she would enquire about the extent to which the French system mirrors our Criminal Records Bureau and sex offenders' records, and that she would report back to us. I hope that we may hear something from the Minister on those matters this evening.
The Minister talked about the duties of the Kent social services, in whose care children arriving at Dover are placed, she said, almost immediately. Will the Calais social services have equivalent responsibilities? What happens to unaccompanied children picked up at Calais under our present system?
The Children's Commissioner and the Chief Inspector of Prisons both told Sub-Committee F last week that they have the right to inspect and report on arrangements for detention at the juxtaposed controls ports. It would be useful to know what the Children's Commissioner said about this when the Minister consulted him, as she undertook to do in Grand Committee. Whatever he or the chief inspector may say about these arrangements, it cannot be denied that accountability is being watered down. The contractors are not British citizens and, in the extreme case of criminal misconduct, their employees would be dealt with in the French courts. If it was felt that any law needed to be amended in light of such a case, we would have no power to secure that change, except through representation by the FCO to the French authorities. This Parliament would be outside the loop.
As to the qualifications of staff for dealing with vulnerable people in general, and children in particular, the Minister in effect said that their skills would be of a lower order than those needed by immigration officials. That is a further reason for concern. As with most legislation nowadays, all we have to go on at this point are the broad headings to be covered. The Minister said that contractors would have to submit detailed procedures for handling vulnerable groups; presumably this would also cover such matters as the syllabus and training programme for employees carrying out these duties. Could we have an undertaking that all the documentation provided by the contractor will be in the public domain? This is clearly essential if any comments made by the Children's Commissioner or the chief inspector on their proposals are to make sense.
In Grand Committee we asked under what code of conduct contractors' staff will be working. As the Minister made no comment on the matter in her reply, I shall try again. As we understand it, private contractors will be obliged to work to PACE when they search or question a person, but there is no code of conduct in force when they are arresting or detaining someone. I hope that that is wrong and that the Minister can assure me that PACE operates throughout the whole process, as it does when the professionals are doing it.
Unfortunately, there is another difference between immigration officers and private contractors which is of material importance. Clause 38 of the Police and Justice Bill makes immigration officers exercising enforcement powers subject to the Independent Police Complaints Commission, on top of their answerability to the IND's internal complaints procedure, itself subject to independent audit. In evidence to the Home Affairs Committee the chair of the audit committee said that some 200 complaints of serious misconduct, mostly assault, were received annually, and even those were not being dealt with satisfactorily, because no statistics were kept to show what happened after they were referred to the police. Presumably very few complaints of criminal misconduct get to the courts, or even to the CPS, because the alleged victim is no longer here to give evidence. That could be dangerous, because it could create an atmosphere of impunity around the whole process, making it likely that the force used against detainees would not always be reasonable. With none of the safeguards provided where the complaint is against a professional provided, and even more so when it is in a foreign jurisdiction, is not the employment of private contractors a recipe for the ill treatment of detainees? To whom will a detainee complain about the conduct of a private contractor's employee and how can he ever hope to obtain justice? I beg to move.
My Lords, my name is to these amendments and I spoke on Clauses 40 and 41 in Grand Committee. At that time I was speaking on a brief supplied by the Public and Commercial Services Union, the union to which immigration officers belong. They are concerned about the provisions in the clauses for part of the services their members now provide to be contracted out to private operators. Obviously, they are worried about what they see as a threat to their jobs. Contractors currently operating under arrangements with France are paid less than the UK Immigration Service staff, with no access to pension provision and no career prospects—at least, so I am told. The union is also concerned about maintaining the professional and security standards which apply to their members.
I raised some of these issues in Grand Committee. Since then I have received further briefing, this time from the Immigration Law Practitioners' Association. It points out that Clause 40 would allow the contracting out of powers to search and detain for up to three hours at ports to other authorised persons—i.e. to private contractors. The contractors would be used to seek out and to detect people hidden in vehicles, and to expose and arrest them.
It is generally accepted that extremely difficult conditions can arise when desperate and vulnerable people, who may include children, are detected. The Minister said the Government intended that contracting out would relieve immigration officers of what she termed "mundane work". The Immigration Law Practitioners' Association points out that while it may be mundane to walk alongside vehicles looking for people, it is anything but mundane to find them. This is where experience and professionalism become all-important, and that is particularly true where children are involved.
The Government have not fully explained why contracting out is necessary. I hope it is not thought that it will be cheaper to use less well-paid people and that is why the Government want to proceed down that path. That does not seem acceptable to me and I hope the Government will look at this again. Indeed, experience of contracting out in the public sector has not always been good. The Institute of Employment Relations, of which I am a member, has recently published research into what it calls the impact of contracting out on employment relations in public services. The experience, quite clearly, is not uniformly good. Accountability, as they say, is impaired as responsibility is shed—the point that has just been made by the noble Lord, Lord Avebury. Can the Minister explain why it is necessary to go down this path, to contract out the work of highly skilled, professional and well-trained people—people, moreover, who are subject to a very rigorous security check? I think, in the present circumstances, that that is of utmost importance and I support the amendments.
My Lords, I also support these amendments. I have an amendment in this group—Amendment No. 35, which would delete Clauses 40 and 41. I go slightly beyond the concerns of other speakers in that I am also concerned about extending these powers to customs and police officers. This is important work because it relates to vulnerable children arriving in this country. Over a period, immigration officers have developed considerable expertise and we all need reassurance that that will not be lost.
Let us consider the journey of a child coming to this country in these circumstances. Sometimes they do not know what country they have arrived in. Sometimes their trafficker will tell them that the alien officials are villains and are cruel and unkind and they should be avoided. Their experience of officials in their own country may be very unhappy. I will give the example of a young man from Afghanistan whom I will call Abdul. All his immediate family were killed when he was aged 11. He spent four years travelling in Pakistan and at the age of 15 he arrived in Nottingham in a lorry with his uncle. He was very disoriented and unwell. He is the kind of person these officers may come across. We must be sure that they are well equipped to act with compassion, consideration and understanding in these circumstances.
The Minister is likening this reform to that which has occurred in teaching and other areas. In teaching, less qualified individuals are allowed to do the more mundane work so that the full expertise of the teacher is used more effectively and efficiently. My understanding is akin to that of the noble Lord, Lord Avebury. Already it is possible to farm out the less sophisticated work to individuals, not immigration officers. When, for instance, a heartbeat is found in a lorry, that less qualified person goes to the immigration officer and says, "Look, there is somebody in there. We need you to come in and detain, search and hold this person". The expertise appears already to be used most effectively and therefore I do not see why this provision is necessary.
If the Minister wishes to persevere with this reform, I should be grateful if she could give a number of reassurances. It would be helpful if these new officers came under Section 11 of the Children Act 2004, which puts a duty on authorities to proceed with regard to the promotion of the well-being of children. If every individual had an enhanced Criminal Record Bureau check before they started work, that would be helpful. If they had a certificated qualification in the handling of children, that would be a reassurance. If the local safeguarding children board was alerted immediately these children were found and there was an approach to a child protection officer, that would be helpful. If the Minister will continue to ensure that the Children's Commissioner is fully consulted on the importance of this reform, that would be helpful. A report from the senior immigration officer at the scene within 24 hours of a child being found would be helpful. Finally, perhaps the Minister would write to me on how the monitors who will supervise the contracts will be equipped to judge whether contractors are doing a good and sensitive job when it comes to managing children.
The noble Lord, Lord Avebury, highlighted concerns about accountability on two grounds. First, at the juxtaposed controls, which authority is responsible for these children? Secondly, which contractors hold the main responsibility? Clarification on who would be accountable for these children at the juxtaposed controls is necessary and I hope that the Minister can provide that. I look forward to her response.
My Lords, I am grateful to noble Lords for covering many issues on the important point of ensuring that we contract out appropriately. Noble Lords have moved for deletion of the clauses, but I am taking many of the comments to be on ensuring that the system we are designing is fit for purpose. It ranges from the continuing desire of the noble Earl, Lord Listowel, to ensure that children are properly safeguarded to ensuring that the current workforce is not displaced or ill-treated, as expressed by my noble friend Lady Turner. There is also the general principle of ensuring that the system is robust and uses people appropriately.
I will try to deal with some of the issues that have been raised rather than read the text of my brief. The concerns are specific. I take the point about the mundane tasks turning into something less than mundane. However, the search activities are straightforward. If someone is found, we want to ensure that the people carrying out the searches are able to deal with the individual. As the noble Earl, Lord Listowel, will recognise, some of the young people in such circumstances could be extremely vulnerable.
As I hope I spelt out well in Committee, we want to ensure that contractors have the proper safeguards in place, that they train their staff appropriately, that it is an individually based contract and so forth. The powers of the contractors are set out in Clause 40(7) and they are deliberately limited. I know that there is an issue surrounding the three-hour time limit because I have discussed the matter with some of our stakeholders in the past couple of days. When dealing with legislation, one tries to ensure that one has captured the widest spectrum of possible need. In this case, we want to ensure that we can hang on to people so that we can hand them over properly. However, when I have discussed the matter with officials, the expectation has always been that you would hand them over very quickly—much more quickly than three hours. The three hours is a maximum limit and the critical point in legislation is to be clear about the maximum limit.
We would expect that to be extremely rare. However, it is possible—not because immigration officers are off-site having a cup of tea or whatever—that it may be extended. Let us say that, for example, a number of people have been found, that the officers are trying to move from person to person, and that other incidents may have taken place. There could be a range of circumstances in which that maximum of three hours is important, but it is there as a safeguard and we would expect it to be exceeded only in extremely rare circumstances. The current pilot schemes are different because the private contractors work only alongside immigration officers. Here we are setting up something different, which is why we have set it out this way and have been clear about the maximum time.
I understand noble Lords' need to ensure that the contractors are properly trained. They will have to provide the Immigration Service and the appointed monitors with access to the course material and the opportunity to attend the training they provide to ensure that there is high quality. I am happy to make that training document available to noble Lords, if they would find it of value. There is no difficulty with that whatever.
Furthermore, the French police will check all those who are to work in the Calais port area, regardless of the nationality of the employee. All persons will be checked for the existence of a criminal record in France. These records contain all charges or other issues around sex offences.
My noble friend Lady Turner has been particularly concerned about the PCS and has reiterated it. My honourable friend Tony McNulty and senior managers of the Immigration Service have held meetings with the PCS. There is no intention to replace warranted staff with contractors. I put it this way: there will be no redundancies. Perhaps that will reassure my noble friend Lady Turner more completely than anything else I might say.
The noble Lord, Lord Avebury, was rightly concerned that those who had a complaint would need to know to whom they could complain. At the time, they can complain to the Immigration Service officer in charge, the chief immigration officer, who will be required to refer the matter to the monitor.
The noble Lord asked about PACE. We discussed this matter in correspondence. As the noble Lord knows, the application of PACE is neither a legal requirement nor, we believe, appropriate and there will be no alternative code. But the contractors will be provided with detailed operational instructions which in some respects will mirror a number of the requirements of the Police and Criminal Evidence Act. For instance, all those detected will be advised in writing of the reason for their detention and the purpose of any search undertaken. Records will be kept. There will be significant safeguards within the proposed layers of scrutiny to ensure that those searching abide by the operational instructions provided by the Immigration Service. Because essentially the provisions of PACE are intended to protect the rights of those under investigation and facing arrest, the noble Lord will recognise that there are different circumstances, but I hope that I have given some assurances.
The noble Earl, Lord Listowel, rightly focuses on the general question of children. I have talked with the noble Earl on a number of occasions. I accept that any child found in these circumstances will be among the most vulnerable we may ever find—a child who speaks no English and may not know where he is or why he is here and so on. I sought to spell this out in Committee. It is important that those who detain the child do so appropriately and properly. I have had good discussions with the Refugee Children's Consortium, with which we shall continue to work to ensure that the provision is right.
If a heartbeat is detected, I want those persons to move swiftly because that child could also be in trouble. There have been too many tragedies. It is not about getting somebody else to come in. I would want the people finding the heartbeat of the child or the adult to move swiftly to ensure that we got him out and that we held on to him. The noble Earl and I, and the Refugee Children's Consortium, discussed ensuring that people are properly trained to hold on to young people in particular. They might run away because they do not know where they are and what is happening. It is important that they are held on to for their own safety. We are in discussions with the Children's Commissioner. My ministerial colleagues have not yet met with the Children's Commissioner, although that is no more than a diary issue. The meeting is being arranged and we await the outcome. I shall let the noble Lord, Lord Avebury, and the noble Earl, Lord Listowel, know about it. The Foreign Office has found the French equivalent—Défenseur des Enfants—and we seek to make contact in order to raise equivalent concerns with our French counterpart on those issues.
My Lords, indeed if that is what they said, that must be right. I sought to deal with the specific point about the Children's Commissioner. I referred to the meetings that we need to have for these issues to be discussed with my honourable friend Mr McNulty and officials. I undertook to ensure that that occurred. It is in the process of being organised.
In Committee, noble Lords were concerned to know whether there was a French equivalent and whether we were able to make appropriate contact. We are in the process of doing that. I hope that that reassures noble Lords.
I shall write to the noble Earl on the question of the monitor. We shall discuss Section 11 of the Children Act later, so I shall not speak about it now, although I remember it well because I took the Bill through your Lordships' House. We shall discuss important issues about the primary focus of the work being undertaken, and not seeking to conflict with that.
I am confident that it is appropriate to subcontract particular responsibilities. We need to use resources, especially people, effectively and properly within training and contract regimes that are as transparent as possible within commercial confidentiality. The issues relating to children need to be addressed. We have done that in an appropriate way with the French and the English commissioner. We recognise the importance of staff being protected. No redundancies is about as good as it gets in these circumstances. We have to create a proper system which enables people to do their jobs efficiently. The three hours should be seen in the context of the maximum amount of time and not the norm. That is not the intention underlying this part of the Bill. On that basis, I hope that the noble Lord will feel able to withdraw the amendment.
My Lords, I am grateful to the Minister for her careful and considered reply, and for her assurance that the contractors' documents concerning the training of the officers who will be employed on these duties will be placed in the public domain.
The Minister also spoke about the detailed operational requirements which are the equivalent of PACE, although not exactly the same because of the different circumstances that apply to the duties which officers have to perform under the provisions. I say en passant that the duties they perform in arresting and holding suspected illegal immigrants are very similar to those that the police perform in arresting criminal suspects. Will the noble Baroness write to confirm that detailed operational requirements that are the equivalent of PACE will also be in the public domain? Will they be in accordance with the provisions of the rules which already prescribe a code of conduct for immigration officers in these circumstances? When the Minister replies, it would be useful if she could cover that point also.
My Lords, I thank the noble Baroness. That is a useful assurance. The codes of conduct are of material importance to those of us who are anxious about the employment of private contractors generally. It is not simply about incorporating adequate safeguards into the system. Some of us go further: we dislike the notion of employing contractors in these duties because of the risks deployed, as every noble Lord who has spoken has said, in particular the noble Earl, Lord Listowel, with his immense experience of children's issues.
We are pleased to hear that there is an equivalent of the Children's Commissioner in France. It is remarkable that we had to wait until Report before discovering such an essential fact. The existence of such a person, and the liaison between our own Children's Commissioner and his opposite number in France, are not the whole answer to the objections that we have raised. We are still anxious that vulnerable people—in particular children—can be in the custody of officials who are subject to only the remotest of controls via the immigration officers at the ports concerned and, through them, to the authorities in this country. It is one removed from the supervision and monitoring that we exercise over, for example, the immigration detention centres in this country, which any noble Lord can inspect and the Chief Inspector of Prisons inspects regularly. We think that it will be more difficult for such oversight to be exercised in the juxtaposed controls. The existence of the private contractors adds an element of risk which does not exist elsewhere.
moved Amendment No. 38:
Page 24, line 32, at end insert "and shall have the right to contact a legal representative and his embassy or high commission at any time during that period"
My Lords, the amendment deals with what is appropriate in an arrest or a detention. The clause, although it now sits in the "Information" part of the Bill, was introduced with other amendments on terrorism, which are now Clauses 7, 51 to 55. It provides new powers to detain embarking passengers who are not British citizens for up to 12 hours and to establish the person's identity, compliance with conditions of leave and whether return to the UK is prohibited or restricted. It also applies to all non-British citizens who are embarking passengers, not just those considered to pose a national security risk.
We have tabled the amendment because of a discussion that took place in the other place involving Mrs Gillan, who asked the Minister whether he would comment on the individual's ability to contact a legal adviser, or his embassy or High Commission, during the period of detention. Mr McNulty replied:
"Before the 12 hours are up, there will be no right to legal representation and none of the other rights afforded by PACE. It is not an arrest for a criminal offence. It is detention under the administrative powers of immigration legislation. If it goes beyond 12 hours, the legal rights and powers under PACE will kick in, but not before".
The Minister also sought to justify this clause on the basis that it was better to have power to detain an embarking passenger than to arrest him. I quote again:
"Currently, we are able to take all that information from someone only if they are arrested. Clearly, we do not want to arrest everybody . . . In that regard, having the facility, which is all that the two new clauses propose, to establish beyond doubt a person's identity as they are leaving and to take a record of that by biometrics is a more than appropriate halfway house".—[Official Report, Commons Standing Committee E, 27/10/05; cols. 308-10.]
The point that I make is that arrest is unpleasant but it carries legal safeguards on the right for representation. The clause envisages continuous detention for up to 12 hours. It is unlikely that anyone would realise that the embarking passenger was being detained. They would not be allowed to tell anyone unless the clause is amended.
Many other countries follow the type of legislation that we enact in this country. I would hate to think of somebody being detained for up to 12 hours for no reason other than to seek information and at the same time being denied any right of representation whatever. In that respect, I beg to move.
My Lords, the purpose of holding somebody is—if you like, it is an administrative detention—to establish their identity, nationality and/or immigration status. The vast majority of people, therefore—we are back to maximum times—will be held for much shorter lengths of time than 12 hours. Twelve hours, as I have indicated, is a maximum. At present, those detained on arrival under paragraph 16(1) or (1A) of Schedule 2 to the Immigration Act 1971 have access to telephone facilities once they are taken to the holding facilities in the port. The treatment of embarking passengers detained under the new limited power will mirror those existing powers, so people will have access to telephones during that time if they are transferred.
As I have indicated, in practice, the detention will be kept to the shortest possible period necessary to satisfactorily establish the person's identity and/or immigration status, after which the person would be released. If the examination reveals grounds sufficient to justify the arrest of the passenger for a criminal offence, he will be arrested and transferred to police custody where, as the noble Lord, Lord Dholakia, has indicated, the usual PACE safeguards will apply.
My argument is that the amendment is not necessary. The circumstances that we are describing, with access to phones, a minimum time—we have also put a maximum amount of time—and the fact that this is an administrative detention to establish who the person is are appropriate. Normally I accept the point that one wishes to give access as quickly as possible, and we think that 12 hours is right. I hope on that basis that the noble Lord is able to withdraw the amendment.
moved Amendment No. 39:
Page 25, line 24, at end insert—
"(7) At the end of section 4 of the Immigration and Asylum Act 1999 (c. 33) (accommodation) add—
"(10) The Secretary of State may make regulations permitting a person who is provided with accommodation under this section to be supplied also with services or facilities of a specified kind.
(11) Regulations under subsection (10)—
(a) may, in particular, permit a person to be supplied with a voucher which may be exchanged for goods or services,
(b) may not permit a person to be supplied with money,
(c) may restrict the extent or value of services or facilities to be provided, and
(d) may confer a discretion.""
My Lords, in moving Amendment No. 39, I would like to speak to Amendment No. 43. The amendment to Clause 43 will enable the Secretary of State to make regulations to provide for additional needs to be met for those in receipt of support under Section 4 of the Immigration and Asylum Act 1999. The provisions will ensure flexibility, both now and in the future, to meet essential needs not directly connected with the provision of accommodation. Such needs might include, for example, travel to essential appointments and essential supplies for new mothers, such as baby clothes.
Section 4 support is currently provided for, in the main, failed asylum seekers who are temporarily prevented through no fault of their own from leaving the UK. If the amendment is accepted, regulations will be drawn up to enable NASS to provide services or facilities to overcome these difficulties. Essential needs will be met by non-cash means. That is important, as Section 4 provides a limited form of support for those about to leave the United Kingdom. While meeting essential needs, the support should not act as an incentive for people to remain in the UK once they have exhausted their appeal rights. I hope that that explains what Amendment No. 39 seeks to do.
On Amendment No. 43, the Government have considered the views of the Delegated Powers and Regulatory Reform Committee about the powers in Clause 48(2). These were that by exercising a power administratively, as in requiring applicants to follow particular procedure, the Government will be doing away with parliamentary scrutiny of the procedure. The Government accept the point and seek to introduce the amended Clause 48 so that any mandatory procedures required of applicants will be set out in the immigration rules. We still wish to set out administrative details, such as what information and documents are required, and to be able to change this easily, where necessary. I hope that this amendment will meet the concerns of the Delegated Powers and Regulatory Reform Committee. I beg to move.
My Lords, I am sorry to interrupt the noble Baroness. I hope she will have an opportunity of speaking later. I begin by saying that this clause, as the Minister has explained, allows local authorities to provide accommodation to failed asylum seekers in accordance with arrangements that have been made by the Secretary of State. The amendments now before your Lordships extend this to the provision of vouchers for people receiving this accommodation. As the honourable Member for Walthamstow observed in another place, people supported under Section 4 used to be given cash, but then luncheon vouchers were provided instead. That caused all the problems that were encountered with the former hated voucher system.
This change was as a result of legal advice obtained by NASS in March 2005, which, as far as I know, has not been seen by anybody else—at least, that was the position at the end of May 2005, when Refugee Action and Citizens Advice obtained advice from Doughty Street Chambers on the extent of the powers under Section 4. This opinion stated that there was no express prohibition in Section 4 against making cash payments and that the arguments that cash payments would allow the recipient to obtain items outside the scope of Section 4 was invalid because people could sell the vouchers and spend the cash on whatever they wanted, as indeed they do and have always done.
As Citizens Advice has pointed out, giving vouchers that can be used only for food and drink has a number of major disadvantages. The recipient cannot get everyday essentials, such as clothes, baby items and toiletries. He cannot use public transport, even for essential journeys that are necessary to comply with reporting conditions. He cannot buy food other than from designated retailers, which may not be local to the accommodation supplied. He cannot attend medical appointments and so on. He may not be able to buy culturally appropriate food, such as halal meat, or to conform to medically prescribed dietary requirements. He will not have access to basic medication, since those on Section 4 support are not entitled to free NHS care. Finally, there is a flourishing black market in vouchers, with criminal profiteers buying them—usually at 50 per cent of their face value—in return for cash.
Last month, there were 5,000 failed asylum seekers of 70 different nationalities on Section 4 support. In spite of Home Office efforts to open a route of return to Iraq and so reduce the number of Iraqis on such support, there were still more than 3,300 on
We were therefore disappointed that the Government, having said that they would consider the representations by the honourable Member for Walthamstow—who is, after all, chair of the All-Party Parliamentary Group on Refugees and has considerable expertise in the subject—and having conceded that NASS's legal advice may have been wrong, decided to return to the abominable voucher system. That is a deplorable return to the past, and I hope that we shall give another place a chance to think again about what the Home Office is doing.
My Lords, I rise in relation to Amendment No. 43, which the noble Baroness explained was tabled in response to the Delegated Powers and Regulatory Reform Committee recommendation. I saw in the Government response that they were going to table this amendment. I notice that the immigration law practitioners doubt whether the amendment has the effect that the Government intend. I will not go into details, but has the Minister looked at the point which the law practitioners raised? Is the amendment, in fact, secure? I am sure that they are right to be doing this but—the point having been raised—we should make quite sure that the amendment is foolproof.
My Lords, I want to warmly welcome the government amendment since it will much relieve the burdens currently falling on local authorities, voluntary bodies and churches. I think that it is also a response to the amendment moved in Committee by my noble friend Lord Listowel; I hope that I am right in that. However, I agree strongly with the amendment moved to Amendment No. 39 by the noble Lord, Lord Avebury. He made an extremely strong case.
My Lords, I welcome the principle behind what the Minister has said. I had not intended to speak in this debate but, as I understand it, the intention in what the noble Baroness proposes is to ensure that mothers who, for instance, currently lack the ability to buy milk or other provisions for their baby will have that provision. I welcome that aspect; however, I am concerned at the dependence on the use of vouchers.
An example of the difficulties that can arise is a case history where vouchers were initially being provided in the form of luncheon vouchers. The supermarket Tesco, in which people were intending to exchange their vouchers, was unwilling to provide them with anything other than food items. They had attended more than one Tesco store and had tried complaining. Disturbingly, the women were refused essential items such as baby milk and powder, clothes, including baby clothes, nappies, shampoo, washing powder and sanitary towels. I am sure that these vouchers that the Minister proposes will avoid that sort of problem. Yet there do seem to have been technical problems in the past which have caused worry to families.
I am particularly worried about families being identified, when they are paying at checkouts, as being asylum-seeking families or failed ones, given the great ill-will that sadly exists toward those families among many members of the public—especially in some of our poorer and more deprived areas—and the experience of those children standing in that queue and being aware of how many adults around them are regarding them. I think that the Minister understands my concern.
My Lords, I am not sure if my amendment is being welcomed. We have checked the point about delegated powers which the noble Baroness, Lady Carnegy of Lour, raised, and it is fine. If I discover anything untoward I will of course ensure that I put it right. Parliamentary counsel, in whom I have enormous faith, are very good at ensuring that we have done that, but I will make sure that we check what ILPA said. I am grateful to the noble Baroness for raising that.
The noble Lord, Lord Avebury, will not be at all surprised that I will obviously resist Amendment No. 40. I will be doing that because our amendment recognises that we need to do more. I hope that those noble Lords who have welcomed it will understand that we see the obligations that we have and want to fulfil, but do not want to do so by providing cash.
In a sense, we do not want to invite people to draw on the public purse if they do not need to; more importantly, nor do we want to reduce the incentive for people to take steps to leave the UK voluntarily. Whether your Lordships like the consequence of what I am saying or not, it is crystal clear that that could be a consequence if we provided cash. We are trying to meet people's needs in a way which does not increase the incentive for those people who have exhausted all of their appeal rights. We want to ensure that they are able to leave the UK once the barrier to leaving has been resolved. That is the principle behind it.
The noble Lord, Lord Avebury, indicated that there may be an issue about getting health treatment. They are provided with that health treatment which is immediately necessary free of charge under primary care. Under secondary care they can receive a number of services free of charge. To ensure that we have dealt with issues of accessing primary and secondary care we are at present considering, with colleagues from the Department of Health, the eligibility for failed asylum seekers for whom there is a temporary barrier to leaving the UK. I shall come back to your Lordships on that, but there is access to care; I would not want our deliberations to suggest otherwise. We need to think about it more carefully in the light of what the noble Lord has said, and more generally in any event.
I am sorry to resist the amendment but I do so on the right grounds and I hope that my amendments, though not meeting the needs which the noble Lord wished, are none the less recognised for having an important part in providing support.
My Lords, I am most grateful to the Minister for saying that these people will, at least, receive free both primary and secondary care. I hope that that will include free prescriptions, since that is an essential element of the care that a general practitioner gives to a patient. He signs a prescription; they take it along to a chemist and, if they have no money, then they must be of a class that would be exempted. That would be a useful concession, because one item which they currently have to buy out of their non-existent money is medication. It is a serious matter if you cannot even buy aspirin to take care of yourself and your family.
With great respect to the Minister, she has not really addressed the nub of the problems which we all know exist with the voucher scheme. We ought to have known better than to reintroduce it after our prior experience of it. We have heard from the noble Earl, Lord Listowel, the noble Lord, Lord Hylton, and the NGOs who are doubtless advising the department that it is a mistake. However, I can see that we will get no further on Report with cancelling the voucher scheme. I shall have to withdraw my amendment and hope to come back to it at some later stage, if we can exert the kind of pressure which the NGOs believe should be brought to bear on the Government on that issue. Meanwhile, I beg leave to withdraw the amendment.
moved Amendment No. 41:
After Clause 43, insert the following new clause—
"FAILED ASYLUM-SEEKERS: WITHDRAWAL OF SUPPORT
(1) The Secretary of State may by order provide for paragraph 7A of Schedule 3 to the Nationality, Immigration and Asylum Act 2002 (c. 41) (failed asylum-seeker with family: withdrawal of support) to cease to have effect.
(2) An order under subsection (1) shall also provide for the following to cease to have effect—
(a) section 9(1), (2) and (4) of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 (c. 19) (which insert paragraph 7A of Schedule 3 and make consequential provision), and (b) in section 9(3)(a) and (b) of that Act, the words "other than paragraph 7A".
(3) An order under subsection (1)—
(a) may include transitional provision,
(b) shall be made by statutory instrument, and
(c) shall be subject to annulment in pursuance of a resolution of either House of Parliament."
My Lords, as your Lordships will recall, Section 9 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 created a new category of people in Schedule 3 to the NIA Act 2002—"failed asylum-seeker with family"—and established conditions under which such persons would become ineligible for financial and material support of any kind, including social welfare provisions such as the Children Act 1989 and its equivalents in Scotland and Northern Ireland. If persons in that category do not take "reasonable steps" to leave the UK, the Secretary of State may issue a certificate stating that they have failed to do so without reasonable excuse. Support is then withdrawn from adult numbers of the family, unless that would lead to a breach of the Human Rights Act.
The Government's argument for making those families destitute was that it would encourage them to leave "voluntarily" once their case had been finally decided. We opposed that clause when the Bill came before us and agreed with many in children's and human rights NGOs who argued that its implementation would lead to breaches of the UN Convention on the Rights of the Child. Wisely, the Government decided that, before rolling out the proposal nationally, they would test it in three areas: central and east London, Greater Manchester and West Yorkshire and, in those areas, on 116 specified families.
In a study by Barnardo's, the local authorities concerned said that Section 9 was wholly incompatible with the Children Act and some feared that it would damage the welfare principle and child-centred practice more generally. Ms Nancy Kelly, head of international and UK policy at the Refugee Council, giving evidence before Sub-Committee F of your Lordships' European Union Select Committee on
"enormous distress and terrible destitution".
She said that one-third of the families studied had been wrongly allocated because they still had rights of appeal. In other words, those families had been unlawfully deprived of support. Inevitably, that would happen on a far larger scale across the country if Section 9 were rolled out everywhere.
One woman in the survey attempted to commit suicide three times and many people had significant mental health problems. Ms Kelly said that there was a low risk of absconding while those families were being supported, but that some of them vanished under threat of being separated from their children.
Subsection (1) of the new clause contains the power to make an order repealing the relevant provision in the 2002 Act inserted there by Section 9 of the 2004 Act. Subsection (2) refers to Section 9(1), (2) and (4) of the Asylum and Immigration Act 2004. Section 9 included a fifth class of persons ineligible for support under Schedule 3 to the Nationality, Immigration and Asylum 2002—a failed asylum seeker with family. It also gave those families a right of appeal to the asylum support adjudicator under Section 103 of the Asylum and Immigration Act 1999, while removing the right of appeal under Section 103 for other classes of persons listed as ineligible for support under Schedule 3. In repealing parts of Section 9, we are not restoring a right of appeal to those other classes. Subsection (3) provides that the order will be subject to the negative resolution procedure.
Section 9 is an inhumane way to coerce vulnerable families. Under the new clause, if the pilots led to the conclusion that other ways to persuade failed asylum seekers to return home, such as the £2,000 grant mentioned by the Minister, should be tried, the Secretary of State would have power by order to repeal the provisions of Section 9 relating to failed asylum seekers with families. I am most grateful to the Minister not only for accepting that idea when we suggested it in conversation after Grand Committee but for her invaluable assistance in drafting the new clause. I hope that that is a signal of the Government's recognition that Section 9 may have to be abandoned and that, when the result of the pilots is published, they will not be afraid to admit that they were wrong to proceed down that road. I beg to move.
My Lords, the noble Lord, Lord Avebury, hinted at my response to the amendment, but I want to place it in the context that the Government take very seriously the matter of ensuring that people who have exhausted the process recognise that we expect them to go. There is sometimes a dilemma in ensuring that that happens—voluntarily where possible; that is the most appropriate method. I argue, as the noble Lord has heard me argue before, that, in the interests of children, it is better for people to leave and look after their children in another place and get them settled, to find their own communities, and so on. I do not believe that it is right for people to remain when they should not or that that is in the interests of children.
I accept that there is toughness about this policy. In part, it is about sending a really clear signal that people who are refused asylum must go home. That is why we decided to include this in the Bill and, as the noble Lord mentioned, to pilot it. It is being evaluated in conjunction with the Department for Education and Skills, the Office of the Deputy Prime Minister, the pilot local authorities and voluntary organisations before any decision is made on a national roll-out. That will include exploring other options that could encourage failed asylum seeker families to take the steps that they really ought to take to leave the UK.
Further implementation of the provisions of Section 9 will depend on the outcome of the evaluation and no decision has yet been taken. Since the introduction of Section 9, there have been a number of developments on the management of asylum applications and assisted involuntary returns. The new asylum model process is intended to deliver faster outcomes, resulting in improved chances of a speedy removal. By putting the case-owners closer to the claimants, the IND will be able to manage both the case and the claimants more effectively. Enhancements to the assisted voluntary returns system are expected to result in greater uptake of that avenue of departure.
It is within that context that I am pleased to accept the amendment.
moved Amendment No. 42:
After Clause 45, insert the following new clause—
"REMOVAL: PERSONS WITH STATUTORILY EXTENDED LEAVE
(1) Where a person's leave to enter or remain in the United Kingdom is extended by section 3C(2)(b) or 3D(2)(a) of the Immigration Act 1971 (c. 77) (extension pending appeal), the Secretary of State may decide that the person is to be removed from the United Kingdom, in accordance with directions to be given by an immigration officer if and when the leave ends.
(2) Directions under this section may impose any requirements of a kind prescribed for the purpose of section 10 of the Immigration and Asylum Act 1999 (c. 33) (removal of persons unlawfully in United Kingdom).
(3) In relation to directions under this section, paragraphs 10, 11, 16 to 18, 21 and 22 to 24 of Schedule 2 to the Immigration Act 1971 (administrative provisions as to control of entry) apply as they apply in relation to directions under paragraph 8 of that Schedule.
(4) The costs of complying with a direction given under this section (so far as reasonably incurred) must be met by the Secretary of State.
(5) A person shall not be liable to removal from the United Kingdom under this section at a time when section 7(1)(b) of the Immigration Act 1971 (Commonwealth and Irish citizens ordinarily resident in United Kingdom) would prevent a decision to deport him.
(6) In section 82(2) of the Nationality, Immigration and Asylum Act 2002 (c. 41) (right of appeal: general) after paragraph (h) insert—
"(ha) a decision that a person is to be removed from the United Kingdom by way of directions under section (Removal: persons with statutorily extended leave) of the Immigration, Asylum and Nationality Act 2006 (removal: persons with statutorily extended leave),".
(7) In section 92(2) of that Act (appeal from within United Kingdom) after "(f)" insert ", (ha)".
(8) In section 94(1A) of that Act (appeal from within United Kingdom: unfounded claim) for "or (e)" substitute "(e) or (ha)"."
On Question, amendment agreed to.
Clause 48 [Procedure]:
moved Amendment No. 43:
Page 27, line 7, leave out paragraphs (a) and (b) and insert—
"(a) may require the use of a specified form,
(b) may require the submission of specified information or documents, and
(c) may direct the manner in which a fee is to be paid; and the rules referred to in subsection (1) may provide for the consequences of failure to comply with a requirement under paragraph (a), (b) or (c)."
On Question, amendment agreed to.
My Lords, I beg to move that consideration on Report be now adjourned. In moving this Motion, I suggest that the Report stage begin again not before 8.30 pm.