Immigration, Asylum and Nationality Bill

– in the House of Lords at 8:11 pm on 7th February 2006.

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Consideration of amendments on Report resumed.

Photo of Lord Hylton Lord Hylton Crossbench

moved Amendment No. 44:

Before Clause 51, insert the following new clause—

"TRAFFICKING

(1) The Secretary of State may provide accommodation and other essential living needs to persons who have been trafficked into the United Kingdom.

(2) For the purposes of this section, a "trafficked person" means—

(a) a person who is a passenger within the meaning of section 4 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 (c. 19) (trafficking people for exploitation), and who has been or whom the Secretary of State believes may have been "exploited" within the meaning of subsection (4) of that section;

(b) a person who is the victim of an offence under sections 55 to 59 of the Sexual Offences Act 2003 (c. 42) or section 145 or 146 of the Nationality, Immigration and Asylum Act 2002 (c. 41);

(c) a person whom the Secretary of State decides, on the basis of the information available to him, should be treated as a person to whom paragraphs (a) or (b) above apply, pending any final determination of whether or not they have been trafficked within the meaning of those subsections."

Photo of Lord Hylton Lord Hylton Crossbench

My Lords, as can be seen from the heading of the amendment, it attempts to improve the situation as regards trafficking of persons. It is in fact a modified version of my Committee stage Amendment No. 74.

I emphasise that it is permissive and imposes no duties. The definition of a trafficked person has been improved by using the language of existing statutes. As your Lordships know, there is already some accommodation for women trafficked for purposes of prostitution through the Poppy project, while local authorities have responsibilities for trafficked children. There is however no specific provision for women trafficked for non-sexual exploitation, or any accommodation at all for men. The new clause fills that gap. It grants only a power to the Secretary of State. He or she would not have to return to Parliament if, following a consultation on the Home Office action plan headed "Tackling Human Trafficking", it is decided that accommodation is in fact needed. This could then be provided for the rehabilitation of victims and to facilitate the prosecution of criminals. I suggest that both purposes are necessary. I beg to move.

Photo of Lord Dholakia Lord Dholakia Deputy Leader, House of Lords, Spokesperson in the Lords, Home Affairs

My Lords, we support the amendment in my name and that of the noble Lord, Lord Hylton. The reason is as quite rightly explained; there is already provision for accommodation for women trafficked for sexual exploitation through the Poppy project, and local authorities have responsibility towards children. However, for adults trafficked other than for sexual exploitation, or for men trafficked for sexual exploitation, there is a gap in such a provision. The clause would give the Secretary of State a power to fill that gap, either where the person is victim of the criminal offence of trafficking under UK law or where a person may be such a victim.

The section imposes a power only, and would put the Secretary of State in a position not to have to return to Parliament when he has made a decision on the basis of the consultation on the Home Office action plan on trafficking, "Tackling Human Trafficking". That would assist in dealing with the problem.

Photo of Baroness Turner of Camden Baroness Turner of Camden Labour

My Lords, I spoke several times during the passage of the Bill about the trafficking of women and this amendment is worthy of support, because it covers not only trafficking of women for sexual purposes, but general trafficking of people for exploitation. Obviously, we must all take seriously the business of trafficking undertaken by criminals across Europe and I know that my noble friend does. I await what she has to say.

Photo of The Earl of Sandwich The Earl of Sandwich Crossbench

My Lords, I, too, support my noble friend's amendment. It gives me the opportunity to ask the Minister whether the Home Office will think again about the reflection period that we discussed briefly in Grand Committee. The reflection period helps trafficked people to recover from any traumatic experience, to take advice and to make an informed decision on whether to co-operate with the police. The Netherlands currently operates a three-month period; in Belgium and Norway the period is 45 days. Other states provide at least 30 days, which is a requirement of the Council of Europe convention. Without such a reflection period many victims will face immediate deportation, which is in neither their interests nor those of the police. While the Government are considering the Council of Europe convention—and I am sure that they recognise this as a key issue—perhaps they might consider whether the minimum of 30 days is an adequate period of reflection.

Photo of Baroness Masham of Ilton Baroness Masham of Ilton Crossbench

My Lords, I, too, support the amendment. It seems to be helpful, and it should be helpful to the Government. How many such people are we talking about and what is happening to them at the moment?

Photo of Baroness Ashton of Upholland Baroness Ashton of Upholland Parliamentary Under-Secretary, Department for Constitutional Affairs, Parliamentary Under-Secretary (Department for Constitutional Affairs)

My Lords, I am grateful to the noble Lords, Lord Hylton and Lord Dholakia, for raising an important issue that we debated in Committee. I hope that noble Lords have had the chance to study the detail in which I sought to set out where the Government are looking to deal with the issue of victims of trafficking and also to deal with the perpetrators of trafficking.

The amendments change something that is important—that, irrespective of individual needs and circumstances and without any limit in time, we provide unconditional support. While I understand the sentiment behind the amendment we must recognise that a critical factor is that we do all that we can to find the perpetrators of trafficking and seek the assistance of victims to achieve that. We rightly talked about that at great length in Grand Committee.

I hope that I made it clear then that the provision of targeted and appropriate support is already an integral part of the Government's strategy to tackle trafficking. The Home Office-funded Poppy scheme is at the heart of current support. I know that the noble Lord, Lord Hylton, has had the opportunity to discuss with Home Office Ministers his concerns that we ensure that funding continues. I believe that he has received a commitment from the Minister that it would continue for the next two years and that there should be recognition of the need to think regionally about the operation of the Poppy scheme. I hope that the noble Lord was reassured by that.

For the first four weeks of the scheme, all victims accepted onto it are provided with shelter, support, medical attention, information and any other services they need to meet their immediate needs. That gives them time to recover, reflect and make decisions about their future. After four weeks, support is provided in return for co-operation with the authorities. It is envisaged that victims will be on the scheme for around four months but may remain on it longer if necessary.

We believe that that is the right approach. It enables law enforcement agencies to act on vital information and, one hopes, to secure prosecutions and convictions to prevent any future trafficking. That is in line with the approach taken across Europe and in other destinations and transit countries. Looking at those who abuse and exploit victims is not just in the Government's interest; it enables current victims to be protected and in the longer term helps to prevent future victims. Existing arrangements operate successfully on a case-by-case basis, with care and support packages delivered on the basis of an assessment of the individual, ensuring that we meet their particular needs. This enables us to target support effectively on those in greatest need.

Although I understand what is behind the amendment, operating on an unconditional basis would risk stretching the resources to the point where some victims may be unable to access the help they require. It may also open up the system to abuse. We have no evidence that the flexible case-by-case approach we have adopted is any less effective in meeting the needs of victims of trafficking than the approach proposed.

I take on board what the noble Earl, Lord Sandwich, said about 30 days. I will perhaps consider that and write to him, if I may. One matter of which the noble Earl will be aware, which we discussed in Committee, is the obtaining of evidence. That is why we have the present process to acquire as much information as possible. While we know something about the exploitation of trafficked women, we know very little about the exploitation of others in the workforce who have been trafficked. Our ambition is to gather information and to be able to provide the right kind and level of support to the people involved. An information-gathering exercise on that is currently taking place. I hope that noble Lords had an opportunity in Committee to look at the documentation that I provided.

With full recognition of the particular concerns of the noble Lords, Lord Hylton and Lord Dholakia, I resist the amendment. We believe we have the correct balance in trying to secure the appropriate support for individuals while recognising the need to gather as much information as possible so that we can capture the perpetrators of trafficking and ensure there are no future victims. On that basis, I hope the noble Lord will feel able to withdraw his amendment.

Photo of Lord Hylton Lord Hylton Crossbench

My Lords, I am most grateful to all noble Lords who have spoken. I noticed that they all spoke in support of the amendment. I particularly thank my noble friend Lord Sandwich for what he said about reflection periods and those who may have suffered the most undesirable fate of immediate deportation—perhaps because no accommodation was available when they were arrested or rescued, and therefore they were sent back to a very uncertain fate in another country. I emphasise that my amendment was wholly permissive and did not place any duty on the Secretary of State, though he might find it quite convenient at some future stage.

I should also mention children and young people, some of whom may have been trafficked into this country for purposes of what one might call domestic slavery, and others who may have been trafficked here for a whole range of purposes. My understanding about such children is that they are usually fostered by local authorities when they become known. I simply question how well that works in practice. In passing I thank the noble Baroness's Home Office colleague for indicating not only that funding for the Poppy project would continue but also that it might be replicated in parts of the country other than London. With those remarks, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 52 [Refugee Convention: construction]:

Photo of Lord Avebury Lord Avebury Spokesperson in the Lords (With Special Responsibility for Africa), Foreign & Commonwealth Affairs, Spokesperson in the Lords (Civil Liberties), Home Affairs

My Lords, the purpose of this amendment and Amendment No. 47, which I will speak to with it, is to knock out from the clause the references to Article 1F(c) of the refugee convention. We believe that it is wrong in principle for the Government to construe an international treaty in statute against the advice of the custodian of the treaty and without any consultation with the other 146 states that are party to it.

We have objected to the progressive narrowing of the exception in Article 1F in previous legislation, and we object to the proposal in this clause to fetter the discretion of the courts to take account of all the circumstances in deciding whether a person is disqualified from the protection afforded by the convention. As your Lordships know, the UNHCR has made repeated representations to the Government on this matter, first in a letter of 10 November 2005 and then in another letter in the middle of December. I quote one paragraph from the first letter in which the UNHCR said:

"With regard to the current draft of Clause 51 of the Immigration, Asylum and Nationality Bill, currently before Parliament, UNHCR notes that any legislative action taken by the UK would have significant influence on the interpretation and/or application of Article 1F of the 1951 Convention by the authorities of the other 146 Contracting Parties to the 1951 Convention and its 1967 Protocol. Consequently UNHCR cautions against the adoption of legislation that is aimed at interpreting one of the subsections of a provision of the Convention which is designed to be read in context and as a whole."

I would like to know whether the Minister has had consultation with the UNHCR since that letter was written and, if so, what was the outcome of it? We have talked about consultation with many organisations in previous clauses. I can hardly think of any provision of the Bill in which it is more important for us to have engaged in consultation with—to use new Labour jargon—the "stakeholders" than something which affects 146 other countries and the treatment of vulnerable individuals who seek protection in any of those countries and who are to be deprived of it in this country because of the narrow interpretation that we choose to place on Article 1F.

I would also draw the Minister's attention to the memorandum sent by the UNHCR with the letter to the Home Office on 10 November. I am not going to read the whole thing as it is rather long. However, in the fifth paragraph it says:

"UNHCR's guidance on the interpretation of the exclusion clauses in Article 1F of the Refugee Convention is set out in the attached September 2003 'Guidelines on International Protection: Application of the Exclusion Clauses: Article 1F of the 1951 Convention relating to the Status of Refugees'. These guidelines were issued pursuant to UNHCR's mandate under its Statute and its supervisory function under Article 35 of the 1951 Convention. They are intended to provide interpretative legal guidance for governments, legal practitioners, decision makers and the judiciary".

I hope the Minister is listening to what I am saying, because I want to ask her whether she does not think that the Government should have seriously considered the objections of the UNHCR, which are based on a longstanding interpretation of the exclusion clauses, which everybody has accepted since September 2003 when these guidelines were issued.

Your Lordships will remember that the UNHCR engaged in a very thorough international consultation on the application of the convention in which, to my knowledge, our own Government took part. I do not believe that at that time the exclusion clauses in Article 1F were queried or that the guidelines were disputed. For the noble Baroness to come along and tell your Lordships that now we want to unilaterally abrogate from certain of the responsibilities, particularly the interpretation of Article 1F, in the context of the convention as a whole, is an unsatisfactory way to treat our obligations under the convention and I think breaks the spirit of our adherence to that treaty. I beg to move.

Photo of Lord Hylton Lord Hylton Crossbench

My Lords, I am in general support of the amendment moved by the noble Lord, Lord Avebury. The courts in this country are perfectly well accustomed to considering the subject matter of the convention, in particular Article 1F(c), and they ought to be allowed to continue to do so without hindrance.

Photo of Baroness Ashton of Upholland Baroness Ashton of Upholland Parliamentary Under-Secretary, Department for Constitutional Affairs, Parliamentary Under-Secretary (Department for Constitutional Affairs)

My Lords, the noble Lord, Lord Avebury, speaks with great passion on an issue he feels strongly about and I always listen with great care to what he says in your Lordships' House and beyond. We simply disagree on the outcome and purpose of this part of the legislation. The primary purpose of Clause 52 is to make it crystal clear in statute that terrorists are excluded from asylum by virtue of Article 1F(c) of the 1951 Geneva Convention on the Status of Refugees. There is no disagreement between us on how that was developed to make clear that terrorists were excluded.

The question the noble Lord raises is about how we have tried to do that. We are not seeking to make 146 other states think again. We are simply saying that in the context of this legislation we think it right and proper to put this provision in the Bill. Of course I take seriously what the UNHCR London office has said to us. There has been a further exchange of letters at official level. There were meetings with officials of the UNHCR before Christmas. The noble Lord will know that contact and dialogue continues with the UNHCR, but we disagree with certain elements it raises. We do so having looked carefully at the UN Security Council resolutions and the interpretation placed on aspects of the convention.

The amendment would remove subsection (1) from the clause which clarifies that acts of committing, preparing or instigating terrorism and acts of encouraging when inducing others to do so constitute,

"acts contrary to the purposes and principles of the United Nations" within the meaning of Article 1F(c). The second amendment removes the definition of "terrorism" from the clause. I will try to address each in turn.

As I have indicated, Article 1F(c) has long been interpreted by the courts and by the UN Security Council resolutions as allowing for the exclusion of terrorists from asylum. It is not explicit within the wording. We think that in the light of the heightened threat from terrorism that this country now faces, it is appropriate to legislate to provide statutory backing to the accepted practice that terrorists should not be afforded the protection of the refugee convention. I do not accept that it is inappropriate for Parliament to legislate to interpret specific provisions into domestic law.

As noble Lords are aware, it has already been done on a number of occasions. In Section 34 of the Anti-terrorism, Crime and Security Act 2001, we clarified that no balancing test should be applied when deciding whether to exclude an individual from the refugee convention on the basis of Article 1F or to remove the protection of the convention from them by virtue of Article 33 of Section 2.

I turn to Amendment No. 47 on the definition of "terrorism". I think that I made the Government's position as clear as I could in Committee. Parliament legislated to define "terrorism" in the 2000 Act and we believe it is appropriate to reflect the definition of the national Parliament within this clause. It must be drawn sufficiently widely to cover all the conduct we would wish to capture.

The definition of "terrorism" in our domestic law is compatible with those accepted in other fora; for example, the definition in the European Union framework decision on combating terrorism. We have been clear, however, that we will continue to look at our approach to defining Article 1F(c) in the refugee convention in the light of developments in the Terrorism Bill. Noble Lords—the noble Lord, Lord Avebury, in particular—will be fully aware that we have asked the noble Lord, Lord Carlile of Berriew, to conduct an independent review of our definition of terrorism and report back within a year of commencement of the new Terrorism Act. If Parliament decides in the light of that review that changes to the existing definition are needed, we would commit to bringing forward this change if parliamentary time allowed and would reflect the new definition in Clause 52 of this Bill as necessary.

As I said in Committee, the Government think it appropriate to take the matter forward in the way I have stated for the reasons I have given. We believe that it is compatible with what we wish to do. We make the commitments I have given already as regards the review of the noble Lord, Lord Carlile. I hope that the noble Lord feels reassured and able to withdraw the amendment.

Photo of Lord Avebury Lord Avebury Spokesperson in the Lords (With Special Responsibility for Africa), Foreign & Commonwealth Affairs, Spokesperson in the Lords (Civil Liberties), Home Affairs

My Lords, the noble Baroness's disagreement is not with these Benches: it is with the UNHCR, the custodian of the convention. It is for that body to decide the proper way for the statute to be interpreted. I am glad to know that the noble Baroness has had these consultations with members of the UNHCR since the letter of 10 November and the further letter in December in which it reinforced its opinion. I am certain I can predict that in those conversations it did not resile from the position that we are setting a bad example and that, inevitably, many of the other 146 states which are parties to this treaty will reconsider their own position. There could even be a leapfrogging in the narrowing of the definition of people who come within Article 1F.

The situation is already very difficult where a person may technically have committed an act of terrorism. I take the example of a person from this country who is applying for asylum elsewhere. He was found to have committed criminal damage to council offices in pursuance of his opposition to the poll tax, when it existed. Technically, that person would be a terrorist. Anyone who damaged council property in pursuance of the political objective of getting the poll tax abolished would, within the definition adopted from the Terrorism Act 2000, have been a terrorist. In such legislation, one would not be able to question whether the surrounding circumstances were such as to make it advisable and desirable to grant that person protection because he would be a terrorist. He would be excluded from protection by the mechanism the Government have chosen.

We should continue to consult the UNHCR. We should continue to bear in mind the effect which the Minister did not mention: that other states would copy the example we set and that thereby more people would be excluded from protection in a way that the UNHCR and most of us would consider highly undesirable. However, we shall not make further progress today. Therefore, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Baroness Ashton of Upholland Baroness Ashton of Upholland Parliamentary Under-Secretary, Department for Constitutional Affairs, Parliamentary Under-Secretary (Department for Constitutional Affairs)

moved Amendment No. 46:

Page 29, line 12, leave out subsections (2) to (4) and insert—

"(2) In this section—

"the Refugee Convention" means the Convention relating to the Status of Refugees done at Geneva on 28th July 1951, and

"terrorism" has the meaning given by section 1 of the Terrorism Act 2000 (c. 11)."

Photo of Baroness Ashton of Upholland Baroness Ashton of Upholland Parliamentary Under-Secretary, Department for Constitutional Affairs, Parliamentary Under-Secretary (Department for Constitutional Affairs)

My Lords, after the introduction of the Bill, we identified an overlap between the appeal provisions in Clause 52(2) and Section 33 of the Anti-terrorism, Crime and Security Act 2001 as regards appeals on Article 1F of the refugee convention.

The provisions have a similar intention; that is, to provide in cases where the Secretary of State considers that a person's criminality or other activities excludes them from the protection of the refugee convention for the appellate bodies to consider those issues first when determining an asylum appeal. However, while these provisions have the same aim, there are procedural differences between them which mean that they cannot work together. The amendment is designed to address them. It removes the appeals provisions from Clause 52, repeals Section 33 of the 2001 Act and inserts into the Bill a new clause, refugee convention certification.

I want to draw noble Lords' attention to three aspects of the new clause. First, it has a broader scope than Clause 52(2) as it makes statutory provision for appeals brought on grounds relating to the national security aspects of Article 33(2) of the refugee convention as well as Article 1F.

Secondly, under the new clause, the Secretary of State will certify that an appellant is not entitled to the protection of the refugee convention because 1F and/or Article 33(2) applies and requires the asylum immigration tribunal and SIAC to begin substantive deliberations on the asylum appeal by considering the certificate.

Thirdly, while Section 33 of the 2001 Act excludes the possibility of judicial review in relation to decisions connected with the certification, the asylum claim or decisions made as a consequence of all or part of the asylum appeal, we have decided not to replicate this in the new clause. Individuals affected by SIAC decisions have a statutory right of appeal to SIAC. Decisions taken in connection with a certificate can therefore be challenged through this appeal route.

In summary, the amendment does two things. First, it tidies up the statute book to ensure that two legislative provisions do not impact on the same situation in a slightly different way. Secondly, it removes from the statute book a provision that excluded the possibility of judicial review on specific SIAC decisions. I beg to move.

Photo of Baroness Anelay of St Johns Baroness Anelay of St Johns Shadow Minister, Home Affairs 9:00 pm, 7th February 2006

My Lords, I thank the Minister for her explanation of these amendments. I seek an assurance from her about the position on something I raised in Grand Committee. Given her explanation, I suspect she will easily be able to give me reassurance. As I have given her advance notice, it is a matter on which I require something to be put clearly on the record.

In Grand Committee, on 19 January at col. 258, I asked how Clause 52 would affect the position of child soldiers. There must be occasions when such children will seek to come here for refuge. We would all hope and expect that their application will be considered positively on the basis that they acted under duress. All too often we hear of children as young as 10 or even less being kidnapped and, by force majeure, forced to become soldiers. They are traumatised, often given drugs so that they can be kept in thrall, and they can be psychologically as well as physically damaged.

Clause 52 had appeared to prevent consideration of their cases on the basis of the acts that they had committed. In response to my query, the Minister said in Grand Committee that the Government,

"would of course consider every case on its individual merits and absolutely take into account issues of coercion—that is a critical issue in these particular tragic circumstances".

She went on to say:

"Clause 52 does not remove that element of discretion, so there is no question that child soldiers would be automatically excluded under the clause".—[Official Report, 19/01/06; col. GC 264.]

In the light of the Government's amendments to Clause 52 and their tabling of the new clause after Clause 52 today, I therefore need to ask the Minister to confirm whether her undertaking given in Grand Committee holds true for the new clause.

Photo of Lord Dholakia Lord Dholakia Deputy Leader, House of Lords, Spokesperson in the Lords, Home Affairs

My Lords, I wish to speak to government Amendment No. 48, which inserts a new clause after Clause 52. It replaces the other provision in Clause 52 and also repeals and replaces Section 33 of the Anti-terrorism, Crime and Security Act 2001. Section 33 applied only in national security cases considered serious enough that they should be heard before the Special Immigration Appeals Commission—SIAC. The new clause will apply similar provisions to asylum appeals which do not meet this level of seriousness.

It is no good the Government seeking to justify this clause by referring to cases raising serious national security concerns. Those cases undoubtedly will go to SIAC. Under Section 97 of the Nationality, Immigration and Asylum Act 2002, cases are sent to SIAC if the Secretary of State, acting in person, certifies that the decision appealed was taken wholly or partly on the basis that the person's exclusion or removal from the United Kingdom would be in the interests of national security, or in the interests of the relationship between the United Kingdom and another country; or where the decision was taken on the basis of information that in the opinion of the Secretary of State should not be made public in the interests of national security, in the interests of the relationship with the United Kingdom and another country or otherwise in the public interest—maybe the interest of national security.

What examples can the Minister give of the people at whom this clause is aimed, since it is not aimed at those who raise national security concerns? How can the Minister justify using a procedure previously reserved for national security cases in such cases? My noble friend Lord Avebury raised the information supplied by the UNHCR. It has provided detailed criticism of the way in which the Government have interpreted Article 1F in the clause, which makes clear that the use of the definition of terrorism in the 2001 Act is a misinterpretation of that article. It notes:

"the assertion in Security Council resolutions that an act is "terrorist" in nature would not by itself suffice to warrant the application of Article 1F(c), especially, as there remains no universally accepted legal definition at the international level".

In UNHCR's view, only

"persons who are in positions of power in their countries or in State-like entities", and,

"in exceptional circumstances, the leaders of organisations carrying out particularly heinous acts of international terrorism which involve serious threats to international peace and security" are persons who could act contrary to the principles and purpose of the United Nations and fall within 1F(c). So, the clarity is already there. Article 1F(c) envisages acts of such a nature as to impinge on the international plane in terms of gravity, international impact and implications for international peace and security.

The Government attempt to justify the new clause by reference to Security Council resolutions, as the Minister did both in Committee and in her letter of January 2006 to the House of Lords Constitution Committee, but we do not believe that that stands up to argument. In Committee in the House of Commons, the Minister of State noted that there had been 32 exclusions under the whole of Article 1F in 2004. He accepted that they could not point to any cases where the absence of the clause had led to a person being recognised as a refugee who should not have been so recognised. Such a case is not going to be found among the cases that do not pose sufficient threat to warrant their going to SIAC, and thus the justification for the new clause appears weak.

There are two other issues. In paragraph 179 of its third report, the Joint Committee on Human Rights said:

"To give effect to the Government's stated purpose of merely making explicit what Article 1F(c) implicitly requires, the clause would need to be amended to decouple it from both the broad definition of 'terrorism'"— in Section 1 of the Terrorism Act 2000

"and the published list of unacceptable behaviours in its present form".

Secondly, the House of Lords Constitution Committee, in the letter of 13 December, said:

"We share the view of others that it is not appropriate for Parliament acting unilaterally as a national legislature to reinterpret in this way an international treaty to which the UK has become a party."

In response, the Government cited two examples of their doing so: Section 72 of the Nationality, Immigration and Asylum Act 2002, which purports to interpret the meaning of "particular serious crime" under Article 33(2) of the refugee convention, and Section 31 of the Immigration and Asylum Act 1999.

All that is at odds with the convention's objective and purposes. Moreover, it runs counter to the longstanding understandings developed through state practice over many years regarding the interpretation and application of Article 33. We see no good reason for including Clause 52 in the Bill and very good reasons for not doing so.

Photo of Lord Hylton Lord Hylton Crossbench

My Lords, I rise briefly to support the noble Baroness, Lady Anelay of St. Johns, because she raised the issue of child soldiers. These wretchedly exploited people pose serious problems in Uganda, the Congo, Sudan and West Africa and probably sometimes also in Asia and South America. The problem is worldwide and urgent and I hope that the Minister can say something helpful about them.

Photo of Baroness Ashton of Upholland Baroness Ashton of Upholland Parliamentary Under-Secretary, Department for Constitutional Affairs, Parliamentary Under-Secretary (Department for Constitutional Affairs)

My Lords, I begin with the noble Lord, Lord Hylton, and the noble Baroness, Lady Anelay. I stand by everything that I said in Committee and reiterate it. That will be done on a case-by-case basis. It is clear to all of us that if there is compulsion or coercion, we are not dealing with a terrorist. In the case of child soldiers, that could not be clearer. I hope that noble Lords will take that as an absolute certainty—the Government will look very carefully, case by case. Where a child has been coerced by any means, they could not conceivably be a terrorist and we will act on that basis. I want to be as clear as I possibly can on that. I am very grateful to the noble Baroness and the noble Lord for raising what is an important issue in that context.

The purpose of my amendment was to try to bring together what we saw as two bits of legislation that were rubbing along each other in an inappropriate way. I know that the noble Lord, Lord Dholakia, is concerned that the Government's amendment slightly expands what is in Section 33 of the 2001 Act. We seek through the amendment to ensure that there is a certification procedure for appeals involving all exclusion cases. We are trying to ensure proper safeguards in all such cases and, in a sense, to try to tidy up the statute book. That is not quite consolidation in the way that the noble Lord, Lord Avebury, seeks, which we have already addressed during the passage of the Bill, but we are trying to tidy it up.

On the particular question raised by the noble Lord—that the UNHCR's paper suggested that it appears that only those who have been in power in a state or a state-like entity, for argument's sake, are capable of committing such acts—it is clear that in the case of KK v Immigration Appeals Tribunal, that was rejected. The tribunal stated:

"owing at least partly to the growth of terrorist activity, it is now accepted by almost everybody that the meaning of Article 1F(c) is not so confined . . . we are perfectly content to hold that a private individual may be guilty of an act contrary to the purposes and principles of the United Nations, and we see no difficulty in reading the words in this way . . . we should have some difficulty in confining 1(F)(c) to individuals who control States".

That is a clear indication of how we have sought to address questions about Clause 52, interpretation and the dialogue that we have with UNHCR in London. That dialogue continues. We seek to ensure that it is fully aware of what we seek to do and why, but there are areas in which we have a fundamentally different view. I cite that as an example where we have looked carefully to interpret who is covered.

I do not really know what else I can say to the noble Lord, Lord Dholakia. We disagree. It said in my briefing that there should be part of our proposals that the Liberal Democrats, in particular, would like—not least the removal of the judicial ouster, which I thought would be dear to the noble Lord's heart, but it is clearly not dear enough. The purpose of this group of amendments is to try to make the legislation work more effectively. I hope that, reflecting on that, the noble Lord will not press his amendment.

Photo of Lord Dholakia Lord Dholakia Deputy Leader, House of Lords, Spokesperson in the Lords, Home Affairs

My Lords, I thank the Minister. I have no doubt that we will come back to this matter later, but, in the mean time, I shall not move my amendment.

On Question, amendment agreed to.

[Amendment No. 47 not moved.]

Photo of Baroness Ashton of Upholland Baroness Ashton of Upholland Parliamentary Under-Secretary, Department for Constitutional Affairs, Parliamentary Under-Secretary (Department for Constitutional Affairs)

moved Amendment No. 48:

After Clause 52, insert the following new clause—

"REFUGEE CONVENTION: CERTIFICATION

(1) This section applies to an asylum appeal where the Secretary of State issues a certificate that the appellant is not entitled to the protection of Article 33(1) of the Refugee Convention because—

(a) Article 1(F) applies to him (whether or not he would otherwise be entitled to protection), or

(b) Article 33(2) applies to him on grounds of national security (whether or not he would otherwise be entitled to protection).

(2) In this section—

(a) "asylum appeal" means an appeal—

(i) which is brought under section 82, 83 or 101 of the Nationality, Immigration and Asylum Act 2002 (c.41) or section 2 of the Special Immigration Appeals Commission Act 1997 (c. 68), and

(ii) in which the appellant claims that to remove him from or require him to leave the United Kingdom would be contrary to the United Kingdom's obligations under the Refugee Convention, and

(b) "the Refugee Convention" means the Convention relating to the Status of Refugees done at Geneva on 28th July 1951.

(3) The Asylum and Immigration Tribunal or the Special Immigration Appeals Commission must begin substantive deliberations on the asylum appeal by considering the statements in the Secretary of State's certificate.

(4) If the Tribunal or Commission agrees with those statements it must dismiss such part of the asylum appeal as amounts to an asylum claim (before considering any other aspect of the case).

(5) Section 72(10)(a) of the Nationality, Immigration and Asylum Act 2002 (c. 41) (serious criminal: Tribunal or Commission to begin by considering certificate) shall have effect subject to subsection (3) above.

(6) Section 33 of the Anti-terrorism, Crime and Security Act 2001 (c. 24) (certificate of non-application of Refugee Convention) shall cease to have effect."

On Question, amendment agreed to.

Clause 53 [Deprivation of citizenship]:

[Amendments Nos. 49 and 50 not moved.]

Clause 54 [Deprivation of right of abode]:

[Amendments Nos. 51 and 52 not moved.]

Clause 55 [Acquisition of British nationality, &c]:

[Amendments Nos. 53 and 54 not moved.]

Photo of Lord Lyell Lord Lyell Conservative 9:15 pm, 7th February 2006

My Lords, I advise the House that there is a misprint in Amendment No. 55. I am given to understand that it should read:

" Page 30, line 27, leave out "1(3)" and insert "1".

Photo of Lord Avebury Lord Avebury Spokesperson in the Lords (With Special Responsibility for Africa), Foreign & Commonwealth Affairs, Spokesperson in the Lords (Civil Liberties), Home Affairs

My Lords, I am most grateful for that small correction, which I spotted this morning after the Marshalled List appeared. We accept the correction that the Lord Chairman described.

We welcome the Government's Amendment No. 58, to remove "4B", which will have the effect of allowing British overseas citizens with no other nationality to retain their right to register by entitlement and not to have to pass a good character test. The amendments that we are discussing seek to do the same for other groups: babies under 12 months, Gibraltarians, children and others. In the case of any of the groups covered, it is not appropriate to restore in secondary legislation rights that are being removed in primary legislation, when Parliament can simply refrain from taking their rights away in this Bill.

Clause 55 extends the statutory requirement that an applicant must be of "good character" in granting British citizenship to all cases, save those where British citizenship is granted because of the UK's ratification of the UN Convention on the Reduction of Statelessness. "Good character" takes in matters far beyond terrorism, as I know from experience of discretionary applications for British citizenship, where minor discrepancies in filling in the form are on occasion treated as evidence of untrustworthiness. A rejected applicant has no way of contesting the decision, because he is not given the reasons. The clause extends far beyond what is necessary to counter a terrorist threat. We should avoid creating new bureaucratic barriers to citizenship where there is no evidence of need.

Other than birth, a person can only acquire British citizenship by either registration or naturalisation. Up to now, the "good character" requirement has applied only to those seeking naturalisation as a British citizen and not to those seeking to register as British. The process of registration is either discretionary or by entitlement. Clause 55 applies the "good character" requirement to both, as well as to naturalisation, thus ending the practice of registration by entitlement, a category named as such in statute, in recognition of special obligations to allow certain categories of person to become British in this way.

The government amendment to leave out "4B" demonstrates that the specific groups losing their rights to register by entitlement are tightly defined in the clause. When it was pointed out to the Minister that, as drafted, the clause would subject babies to a good character test, she said:

"Concern has been expressed that we would extend the rule to very young children or even babies—that was raised with me yesterday. Of course, the rules would state that that would be a silly thing to do, and it would not happen".—[Official Report, 19/1/06; col. GC 279.]

If it is "silly" to include a particular group, then why first include that group within the scope of the Bill and then knock them out again by administrative decision—in guidance still to be drafted by officials—when Parliament itself has the opportunity not to allow silly laws to get on to the statute book in the first place.

In Amendments Nos. 56, 61 and 65 we remove the subjection of babies under 12 months to a good character test. Section 3(2) of the British Nationality Act 1981 entitles babies born outside the UK to a British parent who is British by descent—that is, who does not automatically pass on their British citizenship to their children—to be registered within 12 months of birth. Section 17(2) makes similar provision in respect of British Overseas Territories. Article 6 of the Hong Kong (British Nationality) Order 1986 is entitled "Provisions for reducing statelessness". Article 6(3) says:

"A person born stateless on or after 1st July 1997 outside the dependent territories shall be entitled, on an application for his registration as a British overseas citizen made within the period of twelve months from the date of the birth, to be registered as such a citizen if the requirements specified in paragraph (4) below are fulfilled in the case of either that person's father or his mother".

Thus, our amendments concern not only babies, but stateless babies. To include these babies in the Bill is not merely "silly", but it risks making people stateless. It is a simple matter to take them out in the way suggested.

The second group of amendments removes the subjection of children to a good character test—Amendments Nos. 55, 57, 60 and 62. I apologise again for the minor error that crept into Amendment No. 55, which I fortunately spotted in the Marshalled List this morning. Section 1(3) of the British Nationality Act 1981 allows children, and only children, to register if their parents become British citizens or are granted settlement—indefinite leave to remain—in the UK. Section 15(3) makes similar provision for British Overseas Territories citizens.

Section 3(5) makes provision for children, and only children, born outside the UK to a British parent who is British by descent and thus cannot automatically pass on their nationality to their child to be registered, if the family has returned to the UK and has lived here for at least three years. The equivalent provision for British Overseas Territories is Section 17(5). Should a child be put to the risk of losing an entitlement to register as British simply because he or she might fail a good character test? These amendments solve that problem and retain their right to register by entitlement.

A growing group of children who will come under Section 1(3) are the children of refugees. When refugees got indefinite leave to remain as a result of recognition, their children were British because they were born to parents settled—that is, with indefinite leave to remain—in the UK. The decision to give refugees five years' limited leave in the first instance means that their children will not be British by birth and will not be entitled to register until their parents get indefinite leave to remain at the end of five years. This places refugee children in a situation of particular difficulty, as refugees are barred, for good reason, from approaching the embassies or government of their former country. In the more distant past, when refugees used to get four years' limited leave before getting ILR, children born to them in those years were in travel and citizenship limbo. If the parents had refugee convention travel documents, it was sometimes possible to get the child included, but most families had to remain in the UK throughout the whole four years. Will the Minister give an assurance that the Secretary of State will exercise his discretion to register the children of recognised refugees who are not yet able themselves to register by entitlement?

Amendment No. 59 deals with British overseas citizens who fall to be treated as UK nationals for the purposes of the Community treaties. Section 5 of the BNA 1981 provides an entitlement to register for British overseas citizens who fall to be treated as UK nationals for the purposes of the Community treaties—usually they are Gibraltarians. We believe that depriving these people of their entitlement to register breaches Community law. Parliament should not allow that to be done in an Act of Parliament, whatever the Government may say about correcting it later by administrative provisions.

Amendment No. 63 leaves out paragraph (c) of Clause 55(2) and restores the entitlement to register of wives and widows of those who fought in the defence of Hong Kong during World War II. There are hardly any of these people left alive and they probably do not want to come to Britain anyway, but those who do remain are elderly. To take away their rights unnecessarily is disrespectful and insensitive.

Finally, Amendment No. 64 deals with British nationals other than British citizens, Hong Kong residents and the prevention of statelessness. Section 1 of the British Nationality (Hong Kong) Act concerns Hong Kong residents whose entitlement to register derives from their having a "second class" British citizenship and being, on 4 February 1997, stateless but for that citizenship, and who have not since renounced any other citizenship. We shall have a further opportunity to discuss that in a few moments. To amend the Bill to allow these people to register by entitlement would be in line with the government's amendment to leave out Section 4B. I beg to move.

Photo of Baroness Ashton of Upholland Baroness Ashton of Upholland Parliamentary Under-Secretary, Department for Constitutional Affairs, Parliamentary Under-Secretary (Department for Constitutional Affairs)

My Lords, I am grateful to the noble Lord for going through the amendments in some detail. We will come to the government amendment, which I hope will go some way to addressing the noble Lord's concerns. I went through this with officials earlier today. The noble Lord has picked out a number of groups for, I am sure, very particular reasons. Perhaps other groups could have been picked out. When we look at government policy on these issues, it is important that we have a consistent and clear approach. I hope that in the amendment that I will move shortly, the noble Lord will see the approach that I have tried to take.

I hesitate to pre-empt my own words, but when we consider groups such as the wives and widows of those who fought in the defence of Hong Kong, we believe that we have brought them all into the system in one way or another. We do not believe that anyone remains outside. However, I am sure that the noble Lord and others listening to or reading our debate will let me know if that is not the case. As a general point, however, I am deeply reluctant to address the question by seeking to add in different groups. In the next group of amendments the Government address a particular problem rightly indicated to us in Committee, which we have sought to solve effectively. However, I believe that it is right and proper to have the test as I have described.

The exception I make—and here I probably go off message—is that the noble Lord is right to pick me up on the question of babies. The noble Earl, Lord Listowel, is not in his place at the moment, but I know that he has seen me squirm on a number of occasions when we consider issues involving children. I am not terribly keen on the idea of a character test and in practice it would not be applied to babies. However, in saying that I will be asked, "That is fine for nought to one year-olds. What about two year-olds or three year-olds?" We end up in a very difficult position.

I pointed out in a recent discussion with stakeholders that there is a difference between a one year-old and a 17½ year-old. The latter may be involved in acts that would be of concern. Perhaps it could be something to do with drugs, or an attack on a particular group of people, or even the young person might be involved with an extreme right-wing organisation. At the age of 17½, people are responsible and it is right and proper for us to think about their character in that context. Therefore I do not want to make a blanket statement to cover everyone from the age of one year to those we now consider to be adults, at the age of 18.

Photo of Lord Avebury Lord Avebury Spokesperson in the Lords (With Special Responsibility for Africa), Foreign & Commonwealth Affairs, Spokesperson in the Lords (Civil Liberties), Home Affairs

My Lords, when the noble Baroness envisages all these 17½ year-old fascists coming into our country and being entitled to register as British, she forgets that the people we are talking about have always had an entitlement to register as British. We do not notice all these fascists taking advantage of their privilege.

Photo of Baroness Ashton of Upholland Baroness Ashton of Upholland Parliamentary Under-Secretary, Department for Constitutional Affairs, Parliamentary Under-Secretary (Department for Constitutional Affairs)

My Lords, at the risk of upsetting the noble Lord, I was not being frivolous. I am simply trying to indicate that good government is about recognising the importance of looking carefully at those who wish to come to this country in order to become full citizens and to consider the contribution they can make. Whether the noble Lord likes it or not, there are certain individuals that we would want to look at carefully in terms of what they have done and what they can offer or bring to this country. I can think of a whole range of potentially horrible activities that would be a cause for concern.

However, I accept in principle the proposition regarding children. Personally, I am moving towards considering the age of criminal responsibility, which as noble Lords will know is 10 years old. I do not want to pick an arbitrary age, but I am nervous about babies, toddlers, pre-schoolers and seven year-olds. So this may not, as they say, fly. But there is something about the natural point where an individual attains criminal responsibility. Perhaps that might be the appropriate cut-off point. I am not sure that it would meet what the noble Lord seeks, but I think he understands that I recognise that distinctions must be made between the age categories of children and that there are considerations among the older categories.

I hope the noble Lord will allow me to think on this a little further. This may mark the end of my career in taking Home Office Bills through your Lordships' House. I shall talk to the noble Lord and to the noble Baroness, Lady Anelay, as well as to members of the Home Office team. I am interested in pursuing the point if I have the support of your Lordships' House in doing so in a right and appropriate way. Beyond that, I am afraid the noble Lord will have to accept that, apart from what I will move in a moment, I am keen that we stick with a clear set of guidelines and a clear understanding of the Government's position. We believe it is right and proper that we do not exempt further groups from the effects of Clause 55. On that basis I hope he is able to withdraw his amendment.

Photo of Lord Avebury Lord Avebury Spokesperson in the Lords (With Special Responsibility for Africa), Foreign & Commonwealth Affairs, Spokesperson in the Lords (Civil Liberties), Home Affairs 9:30 pm, 7th February 2006

My Lords, I always like it when the Minister is herself. She puts a human face on the Home Office, which it earnestly needs. We are grateful for her offer to consider the children, although not right up to the age of 17½. I think it is a brilliant idea that, faut de mieux, the age of criminal responsibility be the age at which someone can properly undergo a character test. That seems like the kind of common sense we would have liked to have thought of. I sincerely hope that by Third Reading the Minister will have been able to formulate this, as she rapidly has in other respects, in the form of an amendment we can look at.

I am also grateful to her for the assurance that all the categories of people we have described are in fact covered by other means, even though we still think it is absurd to have to take these people out from the right to register, which they have always enjoyed, then put them back in by some other means. We are very pleased that they do get back in. With that, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 56 and 57 not moved.]

Photo of Baroness Ashton of Upholland Baroness Ashton of Upholland Parliamentary Under-Secretary, Department for Constitutional Affairs, Parliamentary Under-Secretary (Department for Constitutional Affairs)

My Lords, as presently drafted, Clause 55 would extend the requirements for nationality applicants to satisfy the Secretary of State that they are of good character to all such applicants except those seeking to exercise an entitlement derived from the 1961 UN Convention on the Reduction of Statelessness. The Government's Amendment No. 58 would make a further exception in the cases of those seeking to register as British citizens on the basis that they are already British overseas citizens, British subjects or British protected persons and hold no other nationality or citizenship. As noble Lords will be aware, such people frequently have no right of abode in any country. In recognition of this fact, and accepting that we owe a moral obligation towards them as holders of British passports, we changed the law in 2002 to give them an entitlement to British citizenship and thus the right of abode in this country. We also consider that British overseas citizens, British subjects and British protected persons who have no other nationality or citizenship and have not recently and deliberately given up another nationality or citizenship should not in addition be required to satisfy the Secretary of State that they are of good character before they may be registered as British citizens. I beg to move.

On Question, amendment agreed to.

[Amendments Nos. 59 to 65 not moved.]

Photo of Lord Avebury Lord Avebury Spokesperson in the Lords (With Special Responsibility for Africa), Foreign & Commonwealth Affairs, Spokesperson in the Lords (Civil Liberties), Home Affairs

moved Amendment No. 66:

After Clause 55, insert the following new clause—

"AMENDMENT OF SECTION 1 OF THE BRITISH NATIONALITY (HONG KONG) ACT 1997

(1) Section 1 of the British Nationality (Hong Kong) Act 1997 (c. 20) (acquisition of British citizenship) is amended as follows.

(2) Subsections (1)(a), (2)(a) and (3)(a) are hereby repealed.

(3) After subsection (8) insert—

"(9) A person shall be deemed to have met the requirements of subsection (2)(c) or (3)(c) and shall not be refused under subsection (6) if—

(a) his father or his mother has been registered as a British citizen under section 1 of this Act;

(b) immediately before 4th February 1997 the person was not of full age and capacity, or the person was born on or after 4th February 1997 but before 1st July 1997, and

(c) at the time of the application he is not a national or citizen of a country or territory outside the United Kingdom.""

Photo of Lord Avebury Lord Avebury Spokesperson in the Lords (With Special Responsibility for Africa), Foreign & Commonwealth Affairs, Spokesperson in the Lords (Civil Liberties), Home Affairs

My Lords, this new clause removes anomalies in the British Nationality (Hong Kong) Act 1997. Subsection (2) of the new clause deals with the problem of otherwise stateless British nationals overseas who were not ordinary resident in Hong Kong on 4 February 1997. The exclusion of persons who were not ordinary resident on the qualifying date is intentional, because the purpose was to benefit only those British nationals who had demonstrated their commitment to Hong Kong by maintaining ordinary residence in the territory. However, in the Nationality, Immigration and Asylum Act 2002, by inserting a new Section 4B in the 1981 Act, otherwise stateless British nationals were given a right to register as British citizens, as long as they were solely British, irrespective of where they were resident.

This created an inconsistency. A former Hong Kong British Dependent Territory citizen, who was otherwise stateless but registered to become a British national overseas, will never have a right to become a British citizen if he was not resident in Hong Kong on 4 February 1997, whereas a former Hong Kong BDTC who is otherwise stateless but simply failed to register as a BNO will have been automatically granted BOC status under Article 6(1) of the Hong Kong (British Nationality) Order 1986. As is the case with other BOCs, BPPs and BSs, holding one of the latter categories of British nationality gives an entitlement to register as a British citizen under Section 4B of the 1981 Act.

By removing the ordinary residence requirement, the proposed new clause would allow a person from the Hong Kong ethnic minority who was solely British on the qualifying date, 4 February 1997, to register as a British citizen, thus equalising his position with that of those who benefited from Section 4B. That is an argument of fairness.

Subsection (3) covers persons who were minors on the qualifying date—primarily from Hong Kong's Asian ethnic minorities—and have hitherto been treated as failing to satisfy the test in Section 1, but who have at least one parent who registered successfully under the 1997 Act. The provisions of that Act have resulted in an injustice and created a number of split families in the ethnic minority community in Hong Kong. In all cases where the parent was born, naturalised or registered as a British national in Hong Kong, the child born to such parents after they registered under the 1997 Act would automatically become a British citizen by descent, whereas a child born before the 1997 Act has no entitlement to become a British citizen. Those children, some of whom are now adults, are left in a position where they are now de facto stateless.

A discretionary registration concession was made in 1992 to remedy split families. It resulted from the provisions of the British Nationality (Hong Kong) Act 1990, as referred to obliquely in an Answer to my noble friend Lord Lester by the noble Lord, Lord Bassam, on 31 January 2000 at column WA 7 of the Official Report. Subsection (3) of my proposed new clause would extend a similar registration entitlement to remedy the split families which have resulted from the British Nationality (Hong Kong) Act 1997 and rectify the position of a small number of British nationals in Hong Kong who are presently de facto stateless. The concession is important. It takes into account the special circumstances of the ethnic minorities in Hong Kong and is consistent with the commitments that we made to this group in the run-up to the handover to China in 1997. It would apply to a small, closely defined group whose only nationality is British. The amendment contains adequate provisions to prevent abuse; namely, that either the father or mother of the applicant must have qualified under the 1997 Act; that the applicant must be solely British on the date of the application; and that the person must have been a minor immediately before 4 February 1997 or born before the hand-over.

After I tabled this amendment, a new Annex H to Chapter 14 of the Home Office Nationality Instructions appeared on the IND website, which I saw for the first time yesterday evening. This acknowledged at last—I had been trying to persuade the Home Office of it since October 2004 in literally dozens of Questions and at a meeting with the previous Minister, Des Browne, on 2 February 2004—that Indian minors who were registered as BN(O)s in Hong Kong forfeited their previously held Indian citizenship and were therefore entitled to register as British citizens. The delay arose after the Government sent a note verbale to the Indian authorities which asked them to clarify the meaning of their citizenship law, because at the time when BN(O) status was invented, they had said that the person concerned would retain their Indian citizenship, not clearly understanding that BN(O) status could be obtained only by registration and not by birth. We had said all along that this would be the answer. Since the applications by these people for registration as British citizens are now admitted to have been wrongfully refused, I hope that the Minister will assure me that arrangements have been made to grant the claims without requiring the applicants to make further submissions, because the refusals were unlawful and therefore void, as provided in paragraph 6.8.3 of the nationality instructions. It would be outrageous if these people, having been deprived of their rights since 1997 or 1998, were now to be charged another £250. Subsection (3) of the proposed new clause may no longer be necessary as a result of this development.

Considering that Ministers have inadvertently misled Parliament since 27 October 2004 by stating repeatedly that Indian minors who acquired British nationality by registration did not lose their Indian citizenship, will the Minister tell me when a statement will be made which corrects these misunderstandings as provided by standing orders? I beg to move.

Photo of Baroness Ashton of Upholland Baroness Ashton of Upholland Parliamentary Under-Secretary, Department for Constitutional Affairs, Parliamentary Under-Secretary (Department for Constitutional Affairs)

My Lords, I shall begin with the substantive issue and move on to the question that the noble Lord rightly raised. As the noble Lord indicated, the 1997 Act created an exception to the general rule at the time that British citizenship should be available only to those with a close connection to the United Kingdom. That was due to the particular concerns about those people's post-1997 future in Hong Kong. It was considered appropriate to extend eligibility to those in the territory who had former British nationality and who otherwise would have been stateless. The provisions of the Act are directed very precisely at this group. We see no case for extending the class of persons eligible for British citizenship under the Act given the guiding principle that British citizenship should normally be restricted to those having close connections with present day British territory, which Hong Kong is not, and the absence of any indication that conditions for non-Chinese residents in Hong Kong have deteriorated since handover in 1997 or that the non-British children of British citizens there face a particularly uncertain future, such as might justify a further exception to the principle in paragraph (a). I am not taken by the substantive amendment that the noble Lord has put forward.

On the particular point that the noble Lord raised in relation to Indian citizenship, he has been proven to be precisely right. He has received a letter today from my honourable friend Mr McNulty who outlined the steps that the Home Office proposes to take to bring this development to the attention of those affected. A press notice is being issued in Hong Kong. As the noble Lord said, details are being posted on the websites of the British consulate general there and of the IND directorate in the UK, to which the noble Lord referred last night. I want to be clear that this is not about the Government misleading Parliament in any deliberate way. I know that that is not what the noble Lord suggested. Officials have held lengthy conversations and discussions with their Indian counterparts.

The noble Lord, Lord Avebury, will know that this issue came to my attention only when he raised it in one of our discussions between Committee and Report. It was clear that at that point we were waiting to get a definitive response from the Indian Government, which it was right and proper for us to do. I live in the anticipation that my speaking to the noble Lord in this open way will suffice rather than a statement from the Government, but the noble Lord will have to make up his own mind about that and press the matter if he wishes. I know that he is going to bring out the Companion as he has already indicated that it gives clear and strong advice on the issue. Of course, I shall convey that point to my colleagues in the Home Office to see what they wish to do, but I hope that, whatever they decide to do, the noble Lord will accept that, procedurally, we have followed an appropriate course, which was to wait for the Indian Government to give us a definitive response and then to act with as much speed as we possibly could.

When requested to do so, the Home Office will reconsider applications for British citizenship that were refused on the basis of the advice that we received from the Indian Government in 1997–98. I do not have an answer today to the cost question that the noble Lord raised. I will ensure that I write to him on that. He referred specifically to those who had already paid money. As I say, I do not have an answer to that at this point. I hope that, given our speedy response on the websites, what we are seeking to do with the British consulate general and the fact that my honourable friend wrote immediately to the noble Lord to recognise the position, he will consider that, although it may have taken some time, the Government, having got the definitive advice—it was right and proper to do so—acted accordingly. But on the substantive point, the noble Lord will understand that I hope he will feel able to withdraw the amendment.

Photo of Lord Avebury Lord Avebury Spokesperson in the Lords (With Special Responsibility for Africa), Foreign & Commonwealth Affairs, Spokesperson in the Lords (Civil Liberties), Home Affairs

My Lords, I am most grateful to the noble Baroness. As she said, I was thumbing through the Companion while she was speaking. I refer her particularly to paragraph 4.72(2), which states:

"It is of paramount importance that Ministers should give accurate and truthful information to Parliament, correcting any inadvertent error at the earliest opportunity".

Photo of Lord Avebury Lord Avebury Spokesperson in the Lords (With Special Responsibility for Africa), Foreign & Commonwealth Affairs, Spokesperson in the Lords (Civil Liberties), Home Affairs

My Lords, the noble Baroness has indeed done so and I am hoping for the avoidance of doubt that her honourable friend Mr McNulty, in addition to writing me a letter might feel able to make a Written Statement in another place, so that those concerned with these matters would also have knowledge of what has been decided. At the moment, as the noble Baroness said, the Minister has addressed to me a private letter which has been discussed in general terms but which is not physically on the record in the sense that Members of another place can refer to it.

I am obviously disappointed by what the noble Baroness said in reply to the earlier parts of the new clause. I will have to think about that. But with regard to the main issue I am delighted that after 18 months' work at last the claims of these people have been recognised. I request the noble Baroness to confirm to me in due course—not this evening—that they will not be charged another £250 and that a mere notification by the individuals concerned to the local consulate where the application was originally lodged will be enough to set the application in motion again. As I said, under the normal procedures it is recognised that to have been unlawful a decision falls to be reconsidered by the authorities that were looking at it in the first place once the matter has been drawn to their attention. It may be that some of the individuals no longer wish to pursue it, but if the persons notify the local consulate that they wish to pursue the matter, it should be taken forward without further form filling or bureaucracy. I hope that at some convenient date nearby the noble Baroness can notify me accordingly. In the mean time, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Lord Avebury Lord Avebury Spokesperson in the Lords (With Special Responsibility for Africa), Foreign & Commonwealth Affairs, Spokesperson in the Lords (Civil Liberties), Home Affairs 9:45 pm, 7th February 2006

moved Amendment No. 67:

After Clause 55, insert the following new clause—

"AMENDMENT OF SECTION 4C OF BRITISH NATIONALITY ACT 1981

After section 4C(4) of the British Nationality Act 1981 (c. 61) (acquisition by registration: certain persons born between 1961 and 1983) insert—

"(5) An applicant is also entitled to be registered as a British citizen if he or she is the brother or the sister of any person who satisfies the three conditions set out in subsections (2) to (4).""

Photo of Lord Avebury Lord Avebury Spokesperson in the Lords (With Special Responsibility for Africa), Foreign & Commonwealth Affairs, Spokesperson in the Lords (Civil Liberties), Home Affairs

My Lords, the British Nationality Act 1981 equalised the right of a child born overseas to parents, one of whom was British, whether that parent was the mother or the father. In either case, the child, born after 7 February 1961, could be registered as a British citizen by the parents up to the age of 18, but if the mother was British and the father was foreign they could not do so. That position was corrected in the 2002 Act.

We argued that there was still discrimination, in that if the child's right was derived from his father, he could be registered as a British citizen because of his ancestral connection, irrespective of whether it was done on his behalf by his parents when he was a minor, or by himself as an adult. In the 2002 Bill Committee stage the Government accepted the case in principle, tabling their own amendment on Report, which is now Section 4C of the British Nationality Act 1981.

The problem with that solution was the cut-off date, which led to a situation where children born after 7 February 1961 were entitled to British citizenship, while children born before that date had no rights. There are several cases where siblings in the same family are divided in that way into sheep and goats. For instance, Michael Turberville, who has given me permission to cite his case, and who is the chairman of CAMPAIGNS, the NGO that promotes the rights of the 1981 Act orphans—so to speak—now has British citizenship because he was born in 1967, but none of his elder brothers and sisters qualified: David, born in 1945; Freda, born in 1946; Sandra, born in 1949; Maryann, born in 1952, and Philip, born in 1957. Mr Turberville says that about 150 members of his organisation are excluded from British citizenship by the cut-off date.

One mother whose family is affected, Mrs Constance Salgado, who lives in Colombia, had children on either side of the cut-off date and is seeking to formulate a complaint against the UK under the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women. But the Government, knowing that they would otherwise have been in breach of an international obligation, entered a reservation to CEDAW allowing them to discriminate in nationality law.

The only reason that was given by the noble Lord, Lord Filkin, for turning down the proposal the last time that I raised it was:

"One can only go so far back in seeking to right the wrongs of history and of previous generations".—[Official Report, 31/10/02; col. 298.]

To remove discrimination in our nationality law that affects only a small number of people still alive and nobody from any previous generation is surely something that any listening Minister should accept. This Minister went a little further than the noble Lord, Lord Filkin, when she explained in a discussion that we had that—I am paraphrasing what she said—although it is agreed that very few children born abroad to British mothers and foreign fathers would benefit from the removal of the cut-off date and therefore it would have no implications for immigration policy, there could be repercussions in the drafting rules that apply to all statutes. My first reaction was that we could achieve the same end result without tampering with the time limit through the formulation in the first of the amendments. Then I realised that in many cases all the children in the family could have been born before the cut-off date, and the purpose of the second amendment is to move the date back so that all but the very old would be covered. Mr Turberville tells me that all the members of his CAMPAIGNS group would be included if the cut-off date was moved, as I suggest, back to 1931.

Common sense tells us that most of the children born between 1931 and 1961 who would be able to register under the amendment would not bother, since they have held another citizenship for the past 44 years. However small the number affected, this is worth doing to eliminate what I hope is the only remaining piece of sex discrimination in our nationality law and to enable us to rescind our reservation to the CEDAW and its optional protocol. I beg to move.

Photo of Baroness Ashton of Upholland Baroness Ashton of Upholland Parliamentary Under-Secretary, Department for Constitutional Affairs, Parliamentary Under-Secretary (Department for Constitutional Affairs)

My Lords, the noble Lord is extremely tenacious in the way in which he deals with issues. I can always rely on him to come up with another solution. Before I start on this, I want to say something further in the interests of telling the noble Lord as quickly as I possibly can about the issues that he raised in the last group, although I am sure that I am breaking all kinds of procedure. This is to do with those people that the Indian Government have now given a different status. On the record, I say that there will be no further charge and mere notification will be sufficient. I think that the noble Lord and Members of your Lordships' House would want to hear that immediately. I have just had that advice, and I am very grateful to my officials for doing that so speedily.

Having made the noble Lord happy on one thing, I am now going to take away his happiness—I know that the noble Lord will not be surprised by that. I am grateful to him for talking this through with me on a number of occasions. I have heard a number of times as a Minister that, "it will affect only a small number of people". The noble Lord is of course correct on that. When you look across all of government policy, not least in this area which is quite complicated and important to try to get right, there are lots of potential issues where only a small number of people might be affected and where the noble Lord, in looking back on the amendments that we have already discussed and some that we may discuss on Third Reading, might say that only a small number of people are affected so therefore why on earth should the Government hold back on giving in.

The reasons are various. I think that the noble Lord had a hand in the decision to make the date 1961 in the first place. It is also important to recognise, as my noble friend Lord Filkin said, that we cannot undo everything that went before. As a woman, I can think of lots of legislation that I would like to go back over, going back several hundred years—and I suspect that the noble Baroness, Lady Anelay, could think of some too—that might still have some resonance for us today. There is a principle about people getting their citizenship as individuals and not because they happen to be related to someone else as adults. It is different with children; we have had a lot of discussions about children and the noble Lord knows that I am concerned that we keep that under review. As adults and real grown-ups—because they are pre-1961 so they are nearly as grown up as me—they are able to think about their entitlement as an individual and not just because they happen to have a connection with a sibling.

Although the noble Lord has tried to be very ingenious, as ever, in the way that he has approached this, I am going to resist it on the basis both that we cannot simply move policy around on the grounds that it affects only a few people, and that we have made a substantive approach to try to redress a problem, which was sexism and nothing else as far as I am concerned, in the right way. It is one that the noble Lord had a very strong hand in.

I cannot move any further when I fundamentally believe that, as grown-ups and adults, not merely as siblings, people should consider their own position in that context.

I know that that disappoints the noble Lord. He knows how much I try, particularly at this time of night, not to disappoint him, but I fear that I must do so on this occasion.

Photo of Lord Avebury Lord Avebury Spokesperson in the Lords (With Special Responsibility for Africa), Foreign & Commonwealth Affairs, Spokesperson in the Lords (Civil Liberties), Home Affairs

My Lords, I cannot help observing, as my noble friend Lord Dholakia just reminded me, that when it comes to disadvantaging a group of people, however small it may be, there is no problem with the Government finding room for them in the Bill.

It is not a question of numbers; it is a question of fairness. The cut-off limit is not fair—it divides siblings in the same family, and it is unnecessary. I cannot see the logic of the Minister's statement that there are many other areas in statutes where relaxation of the time limit would have repercussions. So what? I cannot see the connection. However many times we argue about this on the Floor of the House, either with the noble Lord, Lord Filkin, or the noble Baroness, she, at least, has tried to explain the thinking behind this matter, with only partial success, because I still find it incomprehensible that she has not conceded on the amendment.

I shall have to go back to Mr Turberville and his campaign group and make them extremely disappointed; but I assure the noble Baroness that this will not be the last time we raise this matter. However old these people are, they still want to be in the same country as their siblings and it is wrong and unjust for Parliament to deprive them of that right. Meanwhile, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 68 not moved.]

Photo of Lord Hylton Lord Hylton Crossbench

moved Amendment No. 69:

After Clause 56, insert the following new clause—

"DETENTION

Asylum applicants falling within the vulnerable categories, as defined by the United Nations High Commissioner for Refugees, shall only be detained before or during the determination of their cases if an independent medical practitioner has certified that detention will not harm their mental or physical health."

Photo of Lord Hylton Lord Hylton Crossbench

My Lords, I was mildly encouraged when I noticed that the Minister had two or three supporters behind her; but they have somehow melted away. She will now understand why I said to her in an earlier conversation that we would need two days for Report stage on this controversial, complex and difficult Bill.

This is a simple and, I hope, humanitarian amendment. The UNHCR has for a long time defined the kinds of asylum applicants that the commissioner considers to be vulnerable. These include the elderly, torture survivors, children, women who have suffered rape or who are pregnant, and people with serious health needs. Such conditions are made worse when those affected speak and understand little English. Bail for Immigration Detainees is a small English charity. In one year, it was approached by some 1,100 detainees, many of whom were in the conditions that I mentioned.

In May 2005, Médecins Sans Frontières reported on 13 adults and three children, all with health needs. Their detention lasted from 40 to 270 days, with an average of 250. The report commented on the apparent lack of means to secure appropriate medical care and protection. In February 2005, Save the Children estimated that 2,000 children are detained with their families each year. Studies of 32 cases showed that children can and do remain in detention for long periods.

I hope that I have said enough to show that health and vulnerability are urgent problems that are often overlooked. My amendment offers a way of preventing harm and unnecessary suffering. There should be a thorough medical check before vulnerable people are locked up. If the Government believe that some vulnerable people will abscond if they are not detained, surely some combination of reporting and tagging could be devised to meet a few exceptional cases. As more people are expected to be detained each year from now on, health cases are likely to multiply, making my amendment still more necessary.

The amendment is intentionally limited to asylum applicants and, in particular, to those whose cases have not yet been determined. Perhaps it should go a little further—I do not know. As it originates from the direction of the UNHCR and as two of your Lordships with very considerable medical experience—the noble Lords, Lord Rea and Lord McColl of Dulwich, although they are not in the Chamber—have expressed to me support for it, I hope that it will commend itself to the Government. I beg to move.

Photo of Baroness Anelay of St Johns Baroness Anelay of St Johns Shadow Minister, Home Affairs 10:00 pm, 7th February 2006

My Lords, I shall break my silence for the past half hour, although at this hour I shall be brief. I am grateful to the noble Lord, Lord Hylton, for tabling the amendment. He always challenges the House on humanitarian issues by bringing forward amendments that make us reconsider previous positions that we have taken on policy, which is very important. He is very—I am trying to find a polite word—clever at finding ways of doing it that are within the correct rules of the Bill. The amendment is certainly well founded.

To be picky, I find it difficult to know how the amendment might be properly applied. For example, if I were an independent medical practitioner and I were asked to certify that detention would not harm someone's mental or physical health, I would wonder for how long into the future I would have to provide that certification. Normally, a medical practitioner would certify the condition of a person only at that moment. We do not know how long a person may be held in detention. As the noble Lord has said on many occasions, detention should not take place anyway; if it does, it should be as brief as possible. I see that the noble Lord wishes to rise. This is Report, so I shall be brief. I know that he is trying to raise the threshold of how we approach people in the vulnerable group.

Vulnerable people who may be taken into detention—perhaps children or people who are vulnerable for other reasons—may be part of a family group. If one is a medical practitioner, one is then in the unenviable position of certifying the vulnerable person as someone who should not be subject to detention. What then happens to the remainder of the family group? Are they split up? I suspect that the noble Lord, Lord Hylton, would say that none of them should be in detention. These are very difficult questions that any government would have to address.

It is important that amendments like this give us the opportunity to consider the arguments put forward by the Bail for Immigration Detainees organisation, which is excellent in its briefing. The amendment also gives us the chance to ask the Government tonight to explain what the current condition is and what systems are in place to provide the protections that the noble Lord, Lord Hylton, asks for. It would then be up to individual Members of the House to decide whether they think that the Government have shown there is sufficient protection to make it possible for us to reject the noble Lord's amendment or whether it needs to be considered further at Third Reading. I know that the noble Lord, Lord Hylton, is a master at refining amendments for Third Reading and I do not believe that the new rules on Third Reading will hold any fear for him at all.

Photo of Lord Dholakia Lord Dholakia Deputy Leader, House of Lords, Spokesperson in the Lords, Home Affairs

My Lords, I support this amendment. The noble Baroness, Lady Anelay, was right when she referred to the period of detention that would affect mental or physical health. I have been aware of a substantial number of cases—the Medical Foundation for the Care of Victims of Torture has a record of them—that clearly explain the effect of detention on children. To my mind, children should not be in detention, full stop. It is important to recognise that there are cases which can give us a direction on this particular matter. It is right and proper that the attention of the Government is drawn by the noble Lord, Lord Hylton, to these particular practices.

Photo of Baroness Ashton of Upholland Baroness Ashton of Upholland Parliamentary Under-Secretary, Department for Constitutional Affairs, Parliamentary Under-Secretary (Department for Constitutional Affairs)

My Lords, the one thing that I have never thought the noble Baroness, Lady Anelay, as being is picky. Far from it; indeed, I think that the noble Baroness captured a really important issue, which I hope the noble Lord, Lord Hylton, will reflect upon: the difficulty for medical practitioners of trying to prove a negative. I doubt that we would have many offers of support from the medical world. In my experience as chair of a health authority, I have dealt with some amazing and fantastic doctors, who felt very strongly about what their role was and how best to fulfil it. It is incredibly difficult, not only in the time available, but in any event, to prove that point, so I have some difficulties with it.

I rise to the challenge of the noble Baroness, Lady Anelay, which is to set out what the Government will do. I hope that the noble Lord will feel that we recognise what I think is of the essence in this amendment, which is to make sure that people have proper access, at the appropriate moment, to medical support, and that we are fully aware of the condition that those people are in and of the appropriateness of what we are proposing.

The noble Lord himself referred to those who are considered unsuitable for detention. That is covered within the operational instructions, where there is clear guidance to immigration service staff about who would normally be considered unsuitable for detention: pregnant women; victims of torture; those with serious medical conditions; the mentally ill; the seriously disabled; and the elderly. I think that is quite a substantial group of people to be normally considered inappropriate for detention. They would not be ruled out completely, because there might just be circumstances—and I think that noble Lords on both sides would understand why we do not rule out detention in all circumstances for all people—where it was appropriate.

The officers who deal with these cases have to weigh up the different factors for and against detention and make an individual judgment as to whether it would be appropriate, within the guidelines that I have indicated. When a detainee arrives at a removal centre they receive a medical examination and have access to good-quality healthcare throughout their detention, including secondary care at a hospital, should they need it. Any concerns that a person's physical or mental health may be affected adversely by detention must be reported on arrival or at any point during the course of detention. Any such reports have to be considered very carefully in deciding whether to maintain that detention.

We believe that to be the best and most appropriate way of dealing with this. The logistics, aside from what I have already said about the medical profession, of where one would try to put the amendment into action would be very difficult. Who would fund the medical practitioners? Where would they be? How many of them would we need? Where would they conduct their examinations—at every port, enforcement office, screening unit and police station across the country? What if somebody said that they did not want to be examined? What should we do then? As I have already indicated, there is the difficulty for the medical practitioner of trying to prove what is essentially a negative.

We think that once we have decided—within the guidelines that I have described—to detain someone, giving them a medical examination on arrival, ensuring that they have good access to healthcare and addressing all concerns both on arrival and in the course of their detention is the right way of involving the medical services that we wish to involve and of providing proper and appropriate care for those individuals who are being detained, I hope for as short a time as possible. I agree completely with the spirit of what the noble Lord is seeking to do; I also agree with the noble Baroness, Lady Anelay, who said that the noble Lord always brings us back to the humanitarian aspect. I think that we have resolved it in—dare I say it—a more practical way: involving the medical services appropriately and supporting vulnerable people. On that basis, perhaps the noble Lord can withdraw his amendment.

Photo of Lord Hylton Lord Hylton Crossbench

My Lords, I accept that I should, very likely, have framed the amendment the other way around. I will reflect carefully on everything that has been said. Meanwhile, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Lord Hylton Lord Hylton Crossbench

moved Amendment No. 70:

After Clause 56, insert the following new clause—

"DETENTION CENTRES: REVIEW

After section 153 of the Immigration and Asylum Act 1999 (c. 33) (detention centre rules) insert—

"153A CHALLENGING DETENTION

The manager of every removal centre shall make provision for duty legal representatives on the Legal Services Commission's rota scheme to see every detained person in his removal centre once in every month for the purposes of—

(a) establishing whether they have legal representatives able to advise them on bail and represent them at a bail hearing;

(b) where they do not—

(i) advising them as to the prospect of success of challenging whether the original decision to detain was reasonable;

(ii) advising them as to the prospect of success of challenging whether, in all the circumstances, continued detention is reasonable;

(iii) ensuring they are aware of the procedures for applying for bail;

(iv) making arrangements to represent them at bail hearings before immigration judges where such hearings take place within the detention centre;

(v) facilitating their representation or attendance or both at bail hearings where sub-paragraph (iv) does not apply.""

Photo of Lord Hylton Lord Hylton Crossbench

My Lords, this amendment is tabled by way of a further probe to obtain firmer assurances than we were given in Grand Committee and in the Minister's letter to me of 31 January. It adds a further section to the 1999 Act. We want to know beyond all doubt that no one is detained unnecessarily or unreasonably. Apart from issues of personal liberty and innocence, it costs more than £800 to detain a person for one week. We want to be certain that every detainee knows of the possibility of bail and gets bail if he qualifies for it. We seek assurances that there will be effective consideration initially and at monthly intervals of the need for detention and of its continuing reasonableness.

I underline the seriousness of these matters by pointing out that there were seven self-inflicted deaths in detention between January 2003 and September 2005. Detainees feel powerless and desperate. A government must take account of the following important guidelines and convention points. I mention in particular Article 5(4) of the European Convention on Human Rights; the UNHCR's guidelines on criteria for detention of asylum seekers dated 1999; Guarantee 3 of the UN Working Group on Arbitrary Detention; and, finally, the Council of Europe's 20 guidelines on forced return of May 2005. All these call for challenges and reviews of detention to be heard by a court.

If the Government do not pay attention to these documents, they will be wide open to criticism of the kind already made by Mr Gil-Robles, the Council of Europe's Commissioner for Human Rights, in June 2005. He pointed out that, in December 2004, 55 people had been detained for more than one year and that 90 were detained for between six months and one year. He recommended judicial review in all cases exceeding three months, with free legal aid. I beg to move.

Photo of Lord Avebury Lord Avebury Spokesperson in the Lords (With Special Responsibility for Africa), Foreign & Commonwealth Affairs, Spokesperson in the Lords (Civil Liberties), Home Affairs

My Lords, I warmly support the amendment. We have discussed this matter a great many times and have all condemned the long periods of detention that people must suffer under the immigration rules and the lack of access to proper legal advice and assistance in applying for bail. It results in the extended periods of detention mentioned by the noble Lord, Lord Hylton. We do not even have proper statistics showing how long people have been held in custody. We receive merely immigration statistics showing how many people are in detention centres and for how long those people in the snapshot have been held.

When we discussed this subject on the 2002 Act, we received far more from the noble Lord, Lord Bassam. We were provided with a vignette showing the number of people detained, for what period and how many were under 18. We asked at the time, "If you can do this on the particular occasion of a Bill passing through the House, why can't you do it on a regular basis and why can't these statistics be published as part of the quarterly information from the Immigration and Nationality Directorate?"

It is a serious matter because, as the noble Lord, Lord Hylton, commented, some people commit suicide because of the length of time they have been in detention. I point out to the Minister that in her latest report on Harmondsworth, the Chief Inspector of Prisons mentioned suicide 19 times. That followed a case in 2004 where an inmate committed suicide. As the noble Baroness will probably recall, there were serious disturbances after that in Harmondsworth. But the lessons do not seem to have been learnt, because a few weeks ago there was another suicide in Harmondsworth followed the day after by an attempted suicide. Obviously part of the reason for these phenomena is that people feel hopeless and deserted and that they cannot gain proper access to outside help.

The Home Office is considering a scheme to allow rota solicitors to go round the detention centres and to take instructions on bail. That goes part of the way towards what the noble Lord, Lord Hylton, seeks. If such a scheme gets under way, it will be extremely welcome and may help to relieve some of the enormous caseload with which BID constantly seeks to cope. As the Minister is probably aware, BID is a small charity which attempts to help people by putting them in touch with solicitors wherever possible and by finding sureties for them. If that can be dealt with on a more organised and thorough basis through the duty solicitors who will go into the detention centres, I should warmly welcome it. I am sure that BID would, too, as would all the thousands of people who suffer detention every year.

Photo of The Earl of Sandwich The Earl of Sandwich Crossbench 10:15 pm, 7th February 2006

My Lords, I have put my name to the amendment as I have to many of its predecessors. As the noble Lord, Lord Avebury, knows, it is the recurring amendment but I am not inhibited by that from expanding on the details of the amendment. It emerged from a conversation between the noble Lord and the legal agencies involved. I am fully aware of the points made by the noble Baroness in responding to our debate on 17 January and in subsequent correspondence. The Minister referred to the information provided in all removal centres and to the IND information pack. She also mentioned on-site legal advice provided by the various legal services of which I am well aware. However, this does not address the fundamental argument which we made in Committee about detainees' regular access to justice as a human right rather than an available service.

We made the point strongly that the experience of the specialised legal agencies such as BID is that many detainees are not taking advantage of these services for reasons that have already been explained by the noble Lord, Lord Avebury, and others. Many have no legal representation.

We are not now bringing forward the original arguments in favour of regular hearings that the Government, having introduced them in 1999, have already rejected on grounds of economy and practicability. The proposal under the amendment is much more practicable and might therefore appeal to the Minister. It is that she considers simply making use of the duty rota currently being piloted by the Legal Services Commission, by extending it to have a duty legal representative available one or two days per week for detainees who have no legal representation and who wish to challenge their detention before an immigration judge.

Duty legal representatives could thus not only advise detainees on bail but also represent them at bail hearings. This could be done, for example, in the IRCs which have asylum immigration tribunal hearing rooms attached and where immigration judges already attend on a regular basis at, for example, Harmondsworth, Colnbrook and Yarl's Wood.

Last October, the LSC itself accepted that there was insufficient legal representation in removal centres. Having a special interest in Haslar, I know that there are difficulties with obtaining adequate advice there and, I understand, at Lindholme. However, the other IRCs mentioned have a rota on two days per week and there is a large demand for this service. There are on-site AIT courts close to Harmondsworth and Colnbrook and also at Yarl's Wood which has on-site hearing rooms. I understand that both sets of hearing rooms are currently in use and have judges sitting five days per week. This should meet previous government concerns about the complexity and cost of providing access to the bail procedure. I know that the Minister did not say this herself but her colleagues in another place have referred continually to complexity and cost. A bail hearing is much cheaper than a substantive asylum appeal and may of course offset the cost of detention itself.

Finally, Her Majesty's Chief Inspector's reports over the past two years contain overwhelming evidence showing that barely half of detainees are making bail applications. I will quote briefly from two examples. Out of 26 detainees seen during an unannounced inspection at Dover last July, only eight said that they had applied for bail and four of those had made their own bail application without a representative. From a survey of detainees at Tinsley House in November 2004, only 6 per cent of respondents had received a visit from a legal representative against a benchmark of 46 per cent.

The report stated that the number of requests for help to find a representative had risen by more than 50 per cent in the past year but its ability to match need with supply had severely diminished because of the shortage of legal aid practitioners. A similar story was told at Campsfield, Haslar, Lindholme and several other centres. Some of these people are detained for months without any legal representation. I am sure that by now the Minister will be well aware of the problems that detainees have for these and other reasons previously explained

Photo of The Earl of Listowel The Earl of Listowel Crossbench

My Lords, I rise to support the amendment and to highlight the particular concerns for mothers with young children. Most children of mothers in Yarl's Wood centre are under three years of age. When mothers are anxious, it impinges very significantly on the child's life. If they do not have access to legal support and if—this point was made by a governor of such an institution—the Immigration Service does not have people going in to keep those people who are detained for removal informed of how their case progresses, that is very disquieting for them. They have no knowledge of what is going on. They do not know how their case is proceeding.

Anne Owers gave evidence to Sub-Committee F of the European Union Committee in its inquiry and report into returns. Her first concern was about the lack of legal representation. Joined with that was the complete lack of information about progress with detainees' cases. This causes disquiet to all these people but for mothers with young children we must be very concerned.

Photo of Baroness Anelay of St Johns Baroness Anelay of St Johns Shadow Minister, Home Affairs

My Lords, I have surprised the noble Baroness by having something to say again. We return to a very serious issue, which the noble Lord, Lord Hylton, raised in a rather different form in Grand Committee. Certainly, he has very cleverly crafted this amendment to move the debate on further. One of the issues in Grand Committee that I was certainly concerned about was that we would be looking at an amendment to set up a system of review which was simply unsustainable because of the cost and complexity of how the persons were being asked to look at individual cases on a regular basis.

I fully support the noble Lord's objective underlying the amendment—and that is the usual weasel way of saying, "but I don't support the amendment itself". I support most of what he has in the amendment. I think that he has tried very effectively to address the objections in Grand Committee. In Committee we were all agreed, including the Minister, that what was important was that people should be aware of their right to make a bail application. The difficulty then was how they should be made aware of it. What is the proper way that should happen? The noble Lord, Lord Hylton, has sought refuge in the idea of having a legal aid system through the Legal Services Commission. I shall be interested to hear what the Minister has to say about the Government's proposals. The noble Lord, Lord Avebury, referred in passing to that.

It is important that the Government put on the record what their thoughts are about making people aware. How often does one make somebody aware on the basis that, if someone is taken into detention, it could be when he is unable to think clearly, as I am at this stage of the night? Perhaps you have been under duress before you have got into that situation. You are certainly worried about your family who might be with you in detention. You may not be capable of taking in what is very clear information given at the time.

How often should there be a duty on anyone running a detention centre to make somebody aware of what facilities are available to them for making a bail application? What kind of facilities within the centre should be made available; for example, meeting rooms, the ability to meet quietly and not under threat—perhaps not under threat from other people who are in that detention centre as well? One has to be aware that detention centres are not always the most pleasant place to be, from the point of view of different groups who may—I was trying to avoid this phrase, but cannot think of another which serves as well—gang up against each other.

Throughout it all, this is the real question: is the situation that currently pertains satisfactory? We have all agreed, at least on the Opposition Benches, that it is not. How do we move it forward? It will not be by adopting wholesale the amendment of the noble Lord, Lord Hylton. Yet we need to look at its constituent parts, for he is trying to achieve the right results. It is a case of how the Government can assure us that those objectives are to be met, and how quickly. With the best will in the world, there is a huge churn of people going through detention, yet a residual number are always there far too long. As the noble Earl, Lord Listowel, said, we have to be particularly worried about families with young children, and we know that there are mothers at Yarl's Wood with very young children.

Throughout all this, I have maintained that I am no bleeding heart for people who have made unfounded applications and simply keep on appealing, trying to hang on here for as long as they can. However, I always have sympathy with the children, because whatever faults the parents may have, it is never the children's fault.

Photo of Baroness Ashton of Upholland Baroness Ashton of Upholland Parliamentary Under-Secretary, Department for Constitutional Affairs, Parliamentary Under-Secretary (Department for Constitutional Affairs)

Hear hear, my Lords, to the final remarks made by the noble Baroness on children. I knew that we will be coming on to discuss them in our final group of amendments, and rightly so.

To begin with, we all share a desire to ensure that detainees can get competent legal advice and representation and that they understand their bail rights and their rights to challenge the lawfulness of their detention. I apply that to all sides of your Lordships' House; so, the principle is, in a sense, agreed. We are merely trying to work out the best way to do it within limited resources—I make no bones about that—and within the most efficient and effective use of those resources. As the noble Baroness, Lady Anelay, rightly said, the noble Lord, Lord Hylton, has moved the debate on from the previous amendments in Committee, to try to focus further on those issues.

Part of that, as I sought to address in Committee, is to try to ensure that when people arrive in detention they get information about bail—that. It is readily available to them and includes copies of the bail handbook produced by Bail for Immigration Detainees, which has been referred to. They should also be given information about how to contact the Immigration Advisory Service to get free legal advice and representation. So we seek to give them information when they arrive, in writing and verbally, and to provide them with advice on bail and legal representation at the same time. That is an important part of what happens to everyone going into detention.

To pick up on what was said by the noble Baroness, Lady Anelay, about people often arriving in strange circumstances and, perhaps, not being able to deal with those issues as readily or as fully as they might, we seek to make that advice available throughout the process of detention and to make sure that they know about the issue of their representation throughout that process. The IND is producing another information pack for detainees, which will cover a range of different issues pertinent to their circumstances. It will include bail rights and processes and be available in a way which recognises the language differences between detainees. That is an ongoing process, which tries to give information to people throughout.

I am not taken with the idea of the duty representative scheme for all detainees being used in this area. However, I want to highlight something which may give the noble Lord, Lord Hylton, some comfort. As noble Lords may recognise, we have a pilot running at present that will be evaluated by the Legal Services Commission in June. It is to have on-site advice surgeries for any detainees who do not have an adviser. As the noble Lord, Lord Avebury, knows well, that is being piloted at Campsfield, Colnbrook, Dover, Harmondsworth, Tinsley House and Yarl's Wood removal centres.

If it is successful, we shall consider whether we can extend it to all centres. Perhaps the noble Lord would agree that if that works, that goes 95 per cent, if not all the way, to addressing his principle. I cannot promise that it will be rolled out, because I do not know what the evaluation will say, so I should be wrong to do that; but I can say that it is a very good example. Those advice surgeries provide the right kind of support for those in detention. They address the underlying question posed by the noble Lord: making sure that people get ongoing, systematic advice that enables them to take up the opportunity of bail if that is appropriate. I hope that that will convince him that we have taken the issue seriously.

I accept that serious issues need to be addressed here, but have already said that we want to do so in a sensible, targeted way. The combination of provision of support and advice that we already have, plus the opportunity that the pilot will give us, will address the noble Lord's concern, so I hope that he will feel able to withdraw his amendment.

Photo of Lord Hylton Lord Hylton Crossbench 10:30 pm, 7th February 2006

My Lords, I thank all those who have taken part in this short debate. I hope that the Minister's suggestion of on-site advice surgeries will work. It strikes me that that will turn on whether there are sufficient interpreters of the right languages to meet all possible needs. I shall reflect further to see whether something simpler could be salvaged from the text of the amendment but, meanwhile, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of The Earl of Listowel The Earl of Listowel Crossbench

moved Amendment No. 71:

After Clause 56, insert the following new clause—

"IMMIGRATION SERVICE: WELFARE OF CHILDREN

In section 11(1) of the Children Act 2004 (c. 31) (arrangements to safeguard and promote welfare), after paragraph (m) insert—

"(n) a regional office of the National Asylum Support Service;

(o) the centre manager of an immigration removal centre;

(p) the Chief Immigration Officer at a port of entry.""

Photo of The Earl of Listowel The Earl of Listowel Crossbench

My Lords, the amendment would apply Section 11 to the key elements of the Immigration Service who have day-to-day dealings with children. While fulfilling their primary function, they would have to give regard to safeguarding those children and promoting their welfare.

It is with regret that I introduce this amendment at such a late stage. I do so because, with the noble Lord, Lord Avebury, I listened to the evidence from the Chief Inspector of Prisons and the Children's Commissioner last Wednesday on Yarl's Wood. Their concern was so well evidenced and deep that I felt that I needed to act to prevent, as far as possible, such circumstances arising again.

The noble Earl, Lord Howe, moved an identically worded amendment to the Children Act 2004. He said:

"My Lords, the arguments for this amendment have been well rehearsed at earlier stages and I shall not weary the House by repeating them at length. We have what appears to many, including me, a giant lacuna in the Bill. In the Green Paper, Every Child Matters, refugee children are specifically mentioned as being children in the greatest need, yet the agencies which are charged with looking after them are excluded from the duty in Clause 8"— now Clause 12—

"to safeguard and promote children's welfare. I have read what the Minister said about the amendment on Report. I still find the omission incomprehensible. Why on earth should refugee children be denied the same rights and protection as other children in the UK. The Minister argued that,

'a duty to have regard to the need to safeguard and promote the welfare of children could severely compromise our ability to maintain an effective asylum system and strong immigration control' . . .

She went on to argue that in undertaking its primary functions it would be unavoidable that the IND would do things that would be judged as inconsistent with a duty to safeguard and promote welfare.

"We need to unpack this a bit. The first point is that Clause 8 is not an absolute duty, but simply requires agencies to make arrangements to have regard to the need to safeguard children and promote their welfare in the discharge of their functions.

"As the Minister said on Report,

'We have been very careful in the way in which we have worded this clause: we do not put a duty on agencies that would make them unable to fulfil their primary functions' . . .

Nobody would argue that the primary function of the Immigration Service is not to ensure effective immigration control just as nobody would dispute that the primary function of the police is to ensure public order and prevent of crime. Yet the chief officer of police is included in the new duty in Clause 8(1)(g).

"We might do well to look at the explanatory notes to the Bill, which state:

'This duty is intended to ensure that agencies are conscious of the need to safeguard children and promote their welfare in the course of exercising their normal functions'.

The Government have failed to explain how this duty would interfere with the normal functions of the agencies listed in the amendment".—[Hansard, 15/7/04; cols. 1460-1.]

I apologise for quoting at such length, but I do not think it could be put more lucidly and rationally than it was by the noble Earl, Lord Howe, on this occasion. Eventually this amendment was put to a Division and was lost narrowly, 90 votes to 99 votes. Indeed, all children should be protected in this way. This is why the Green Paper was entitled Every Child Matters.

The noble Baroness, Lady Ashton, elsewhere in the course of the Bill—in Committee I believe—said that

"noble Lords can rest assured that the wording of the Bill covers all children. There are no exceptions; noble Lords would not wish it otherwise, and neither would I".—[Hansard, 4/5/04; col. 1086.]

I highlight that I tabled this amendment only at the very deadline, last Friday. The Minister has had very little time to prepare a response to this and I apologise. However, I hope that there can be some thought before Third Reading on this matter.

The noble Baroness, Lady Ashton, also gave an assurance in response to the amendment tabled by the noble Earl, Lord Howe, speaking of the performance of the Immigration Service and of the National Asylum Support Service. She said:

"I can assure noble Lords that both organisations understand their responsibilities and are strongly supportive of the need to safeguard children and promote their welfare . . . But, ultimately we have an asylum and immigration policy designed to support people in the best possible way".—[Hansard, 15/7/04; col. 1464.]

I am sure that the Minister said that in good faith. I am sure that all the people in the services seek to consider the needs of children, but they have a strong target to work for—removing families. That is a top government priority and they have to double the numbers of families and individuals returned in, I think, a three-month period. There is no clear counterbalancing measure to ensure that children are protected in that process. We are all human, if we are faced with such a challenge—I will come back to that point.

The chief inspectors' report—on which I tabled a debate last October—which was published in July of last year, expressed deep concern about this matter. Paragraph 7.3 stated:

"Even more concerning is the effect of detention itself on a child, which is likely to compromise children's ability to thrive. Children may have had traumatic experiences in their home country before coming to the UK. Inspectors found evidence that the additional effects of restrictions on children's movements and activities and of witnessing their parents' powerlessness had led, in some cases, to eating and sleeping problems and depression".

The chief inspectors' report also refers to the lack of co-ordination between the local social services and Yarl's Wood, which is lamentable. The most vulnerable children were being dealt with and it was not thought through at the start that there should be a close relationship with the local social services. I apologise for taking far too much of your Lordships' time at this late hour. I do not know how else this important measure can be considered before we complete this Bill and when there would be another opportunity.

The report cites examples of particular cases. For example, a child who was diagnosed with autism by a psychiatrist was held at Yarl's Wood for five days. The child was not eating properly and was very upset at being placed in such new surroundings. There was no system to identify his weak vulnerability and to remove him tout de suite.

I know that the Minister in her reply will say that the danger of this amendment is that it will cause delays in the removal process and will prevent the Immigration Service doing its necessary job and its primary function. She will speak from her experience as a previous Minister in the Department for Education and Skills, relating to her experience of what it means to have regard to the duty. The authorities would have to demonstrate that they have given due consideration to the welfare of children in their actions.

I hope that your Lordships welcome this obligation on the authorities to demonstrate that they have given due regard, which would be a balance to the tremendous drive that they have on achieving their important target of removing families and individuals. Earlier, we discussed Section 9, which makes failed asylum-seeking families destitute. That was taken to the court of judicial review, which decided that the Immigration Service was acting within its primary function. It rejected the request that families should not be treated in this way.

I again thank your Lordships for your patience at this hour. I welcome the opportunity to raise these concerns with the noble Baroness, Lady Ashton, who piloted the Children Bill and is receptive to these concerns, and the noble Baroness, Lady Anelay, who has a particular interest in children. My aim is to encourage the authorities to think more carefully and deeply about the needs of vulnerable children. A short term in detention could be better for a family if it meant that their children will get back to their home country and be settled in quickly, rather than leaving them hanging around in this country in limbo. But it needs to be done in a thoughtful way. My amendment may fetter to a degree the discretion of the authorities, but a limited fettering would be a good balance to the drive in the other direction. I look forward to the Minister's response and I beg to move.

Photo of Baroness Anelay of St Johns Baroness Anelay of St Johns Shadow Minister, Home Affairs

My Lords, the noble Earl, Lord Listowel, has no reason to apologise for bringing this forward. It is important and he is right to point out that he had to table this on Report. He would not be able to introduce it as a new matter of principle at Third Reading. I admire him for his fortitude and sticking with us until this time. I will be brief. Because this was a late tabling, the noble Earl, with his usual courtesy, today put on my desk a full briefing and a reference to the participation of my noble friend Earl Howe in the previous Bill. I am grateful to him for that. Although I took part in Divisions on that Bill, I did not have my eye on the intricate workings of it. I think that I was involved in the domestic violence and crime Bill at the time. I have not had an opportunity to discuss this matter with my noble friend because I was involved in the Identity Cards Bill yesterday, but I certainly undertake to do so between now and Third Reading.

The noble Earl quoted the noble Baroness, Lady Ashton, in another guise. He repeated some words which go to the heart of the problem for the Government and, indeed, for us all:

"On the question of IND, I hope that noble Lords can agree that a duty to have regard to the need to safeguard and promote the welfare of children could severely compromise our ability to maintain an effective asylum system and strong immigration control".—[Hansard, 17/6/04; col. 996.]

It is here that the tension exists between the position argued by my noble friends Lord Howe and Lady Morris of Bolton, in her role as opposition Minister for Children, and the position of the Home Office. I am aware that in the past I have called repeatedly on the Government to make removals faster and tougher. But the other side of the argument is that one must have regard to the welfare of the children in that system, usually through no fault of their own. Moreover, if they are unaccompanied minors, special circumstances govern them, and they may have been put in that position by adults.

I recognise the validity of the argument raised by the noble Earl. The problem the Government face in trying to resolve it is not one that may be achieved by Third Reading. However, I shall certainly discuss it with my noble friend to see if we can come forward with a common position.

Photo of Lord Dholakia Lord Dholakia Deputy Leader, House of Lords, Spokesperson in the Lords, Home Affairs 10:45 pm, 7th February 2006

My Lords, like the noble Baroness, Lady Anelay, I came across this amendment only rather late in the day. I should like the noble Earl to know that I would certainly have put my name to it if I had seen it earlier.

The noble Earl is absolutely right to propose this new clause. Ultimately we are not talking about the removal of a child, but about the provisions made to look after the welfare of children in relation to the three categories mentioned in the amendment. During the passage of the Children Bill the noble Baroness said:

"We are sure that the amendment would have an impact on what we would be able to do in terms of removals and the ability of people to use the Bill for judicial review. It is for those reasons—and those reasons alone—that I cannot accept the amendment".—[Hansard, 15/7/04; col. 1464.]

Let me take the noble Baroness back to what is being proposed here.

The amendment refers first to Section 11 and how three categories from the Children Act might be imported. The first is the regional offices of the National Asylum Support Service. Those officers are not involved in removals, they are there to look after the welfare of children. For the centre manager of an immigration removal centre to be involved, the policy decision would already have been taken. All we ask is that when children are being held in a detention centre, the managers should look after their welfare. Lastly, the chief immigration officer at a port of entry should rightly be concerned with this. We have discussed how children should be interviewed, whether they understand the procedures and so forth. All these details need to be looked at carefully.

The amendment is quite simple. It says nothing about removals and does not address the policy of immigration. It is therefore right and correct that these Section 11 matters should be included in the overall provisions of the Bill. Including provisions of this nature will put an acceptable face on our Immigration Service. People elsewhere will see that this is how we treat those immigrating to this country. It will be to the advantage of the Immigration Service and its support services. More importantly, it will be to the advantage of the managers of removal centres. I support the amendment.

Photo of Lord Hylton Lord Hylton Crossbench

My Lords, I thought I saw the noble Lord, Lord Adonis, in the Chamber not so long ago, who definitely has some responsibility for the welfare of children. But he, too, has melted away. I am very happy to support my noble friend in his amendment, both on the grounds of vulnerability which we discussed earlier, and in the interests of fully joined-up government between the department of the noble Baroness, the Department for Education and Skills and the Home Office. A concerted effort is needed to improve things.

Photo of Baroness Ashton of Upholland Baroness Ashton of Upholland Parliamentary Under-Secretary, Department for Constitutional Affairs, Parliamentary Under-Secretary (Department for Constitutional Affairs)

My Lords, I am always grateful to the noble Earl, Lord Listowel, for his contributions on children. I have two senses of déjà vu, if I might be slightly frivolous. The first is the number of times the noble Earl has asked the House to forgive him for what are, as the noble Baroness, Lady Anelay, said, issues of critical importance, for which we would forgive him for ever for raising. That is one of his roles in life and we are grateful for it. Secondly, as the noble Earl has indicated, it was I who piloted—if that is the word—the Children Bill to become the Children Act 2004.

My noble friend Lord Adonis was indeed here. He had no idea which amendment we were on. He is very busy with other issues. Had he known, I am sure that he would have stayed—he takes his responsibilities, which the noble Lord, Lord Hylton raised, extremely seriously and I know that he will read our conversations with interest.

I do not want to detain the House longer than I need to, although this is important. The noble Baroness, Lady Anelay, has hit the proverbial nail on the proverbial head. I do not suppose it will surprise any noble Lord to know that, when we came to this issue in the passage of the Children's Bill, I for one was keen to see whether we could accept the amendment. The principle of ensuring that our children are safe, whoever they are, and particularly those who are vulnerable, is, I hope that the noble Earl will agree, as dear to my heart as it is to his. It is a fundamental part of what the Government do, through the work we have done in legislation, Every Child Matters, the bringing together of children's issues and so on. We have sought to make children a much more central part of the way in which we approach policy and legislation. I know that that is supported on all sides; I am not making a party political point at all in saying it. But that approach is still relatively new.

I looked at the consequences of trying to agree to this amendment. As the noble Earl would expect, I probed them at enormous length. I remembered that, before I had had any briefing on this issue, the noble Earl and I had talked about it and had faced the tricky issue that the noble Baroness has quite rightly raised—that if you prevent people from doing what is essentially their primary purpose, or you undermine it without meaning to, that has potentially great repercussions. We discussed earlier the critical importance of ensuring that, when people should not be here, they go back and get their children settled in the community as quickly as possible. The answer is not always to be here, by any means.

It is clear, if you look at the way this would work, that if a chief immigration officer said that he wanted to return a family of failed asylum seekers, the decision could, under the amendment, be challenged in the courts on the basis that removing their access to health and education in Britain and returning them to a country where the education and healthcare may well not be of the same standard is not consistent with the duty to make arrangements to safeguard and promote children's welfare. It is possible, legislatively, that if this were inserted it would become virtually impossible to return any family with children or any accompanied child or young person.

I am not prepared to do that. I completely accept that we want to ensure that we support vulnerable children, but this is not the means to do so, because we would end up in a position where we could, in an odd way, make the situation worse for those children and young people and their families. To go back to the point made by the noble Baroness, Lady Anelay, about having effective Home Office policies and immigration and asylum controls, we have to have a position where, if people should not be here, be they individuals or, in this context, families, they should go. That is an important part of what we are seeking to do. As I explained to the noble Earl, Lord Howe, with whom I immensely enjoyed working on the Children Bill—he is a man of great integrity, who I know felt strongly and passionately about these issues—that is the basis on which I have to reject this amendment. I simply cannot put our immigration services in that position. It would be wrong to do it. That does not mean that we and they do not care about the welfare of children, but we simply cannot—by accident, as it would almost be—undermine the services in that way. I do not think that the noble Earl would wish that. It would undermine what we have and what we are seeking to do.

The noble Earl knows too that I will do anything that I can to try to support his objectives of making sure that vulnerable children are adequately protected and looked after, but this is simply not the way to do it for the reasons that I have given. I hope that the noble Earl will feel able, on that basis, to withdraw the amendment.

Photo of The Earl of Listowel The Earl of Listowel Crossbench

My Lords, I am grateful to my noble friend Lord Hylton, the noble Baroness, Lady Anelay of St Johns, and the noble Lord, Lord Dholakia, as well as to noble Lords who have spoken in support of the amendment or at least expressed their sympathy with its intent. The Minister too expressed sympathy with its intent, but deep concern about its impact in practice.

The Minister gave a helpful and generous response, and I shall study it carefully. Since the previous Bill in 2004, we now have a new Home Secretary. Perhaps circumstances have changed to some extent.

Photo of Baroness Ashton of Upholland Baroness Ashton of Upholland Parliamentary Under-Secretary, Department for Constitutional Affairs, Parliamentary Under-Secretary (Department for Constitutional Affairs)

My Lords, the noble Earl will remember that the Children Bill was enacted under his instruction. I would not suggest that my right honourable friend the Secretary of State would feel any differently about this matter.

Photo of The Earl of Listowel The Earl of Listowel Crossbench

My Lords, I note what the Minister says. The Home Office seems somehow to trump every other department around it. I may be unfair and wrong in my observation, but that seems to have happened in the past.

I encourage the Minister not to give up all hope of looking again at this problem and how such arrangements might work in practice. As I said only last week, the relevant court looked at an approach for judicial review under Section 9 of the power to make families destitute to encourage them to return to their home countries. It found that the immigration service was acting within its remit in doing so. Perhaps that gives some comfort to the Minister.

Perhaps a compromise is possible before Third Reading. As the noble Lord, Lord Dholakia, said, the Government could look at the different arms of the immigration service as it deals with children and families. Perhaps one arm could be brought under Section 11, with a sunset clause applying after two years. One could at least see how it worked and whether the consequences would be as grave as the Minister clearly fears. There would be an opportunity to evaluate that pilot scheme, just as there has been a very useful evaluation of Section 9 in the previous Bill.

I know that we all wish to work in the best interests of children. The danger arises when a system becomes unthinking because it is driven towards a particular target. I am seeking to encourage that system to think more carefully about children as it moves towards its necessary target. It is a little like doing maths and showing the working. That is what I am asking: I want to see the working behind the system. I think of the league tables in schools. There has been so much concern to set down a clear target for pupil achievement, but the softer targets of including, and working with, the more vulnerable children are harder to deliver. The Government have introduced value-added elements to the system to balance it. I am asking for more balance in this area and a proportionate response which achieves the aims of the Government—which we all wish—but does so in a humane way. I again thank the Minister for her response. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Schedule 3 [Repeals]:

Photo of Baroness Ashton of Upholland Baroness Ashton of Upholland Parliamentary Under-Secretary, Department for Constitutional Affairs, Parliamentary Under-Secretary (Department for Constitutional Affairs)

moved Amendments Nos. 72 to 75:

Page 36, line 2, column 2, leave out "Section 3C(2)(b) and (c)."

Page 36, line 20, at end insert—

"Anti-terrorism, Crime and Security Act 2001 (c. 24) Section 33."

Page 36, line 22, column 2, leave out "82(2)(d) and (e)." and insert "82(3)."

Page 36, leave out line 23.

On Question, amendments agreed to.

Clause 59 [Commencement]:

[Amendments Nos. 76 and 77 not moved.]

House adjourned at eleven o'clock.

Tuesday, 7 February 2006.