Clause 11 - Unfounded human rights or asylum claim

Asylum and Immigration (Treatment of Claimants, etc.) Bill – in a Public Bill Committee at 9:10 am on 22nd January 2004.

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Photo of David Heath David Heath Shadow Spokesperson (Home Affairs) 9:10 am, 22nd January 2004

I beg to move amendment No. 150, in

clause 11, page 13, leave out lines 9 and 10 and insert

'entitled to reside in the State or part and that the claimant—

(a) confirms that he is within that description, or

(b) can be shown by documentary evidence to be within that description.'.

Good morning, Mr. Taylor. I welcome you to the Committee. It is also good to see the Minister of State back in her place.

The clause deals with the so-called white list. Liberal Democrat Members have serious reservations about the white list process and the change that the Government propose to that process. Our amendment is narrowly drawn. It would simply leave out lines 9 and 10 and insert a slightly crisper and more evidentially based form of words.

I shall not digress into the consequence of the clause in totality. That can be properly debated under later groups of amendments. At this stage, I shall say simply that we are seeking to put at least some constraint on the discretion of the Secretary of State to form an opinion and, on the basis of that opinion, to apply that part of the clause.

If the amendment were successful, there would have to be some substantiated evidence for the Secretary of State's opinion. It could be argued that the Secretary of State's opinion could be challenged in any case if it were held to be improper by judicial review, but I am trying to obviate that process. We should not encourage matters to be challenged in the courts. I would expect the Secretary of State to have a degree of evidence for his assertion that a person was of a particular group before making the declaration that is inherent in the operation of clause 11.

That is a brief explanation of the basis for the amendment. I hope to widen the scope of the debate under later amendments with regard to what the Government intend but what I have said so far is sufficient to introduce the debate.

Photo of Beverley Hughes Beverley Hughes Minister of State (Citizenship and Immigration), Home Office, Minister of State (Home Office) (Citizenship, Immigration and Counter-Terrorism)

Before I deal with the amendment, it may be helpful to make some general comments about clause 11. It provides for a relatively modest extension of the powers in section 94 of the Nationality, Immigration and Asylum Act 2002, under which a state or part of a state can be designated as safe if certain conditions are met. Hon. Members may

be aware that there are two tests for that. One is that there is, in general, no serious risk of persecution of those entitled to reside in the state. We are talking about that issue now, rather than a safe third country, to which the next clause relates. The other test is that removal of a person entitled to reside in the state would not, in general, contravene our obligations under the European convention on human rights.

Since section 94 came into force, 14 states have been designated by order under that provision. Those are in addition to the 10 EU accession states included in the 2002 Act, which a later amendment to clause 11 would remove. Designating a country does not mean that a person's asylum or human rights claim will not be considered on its merits. Every claim is given an individual assessment, taking account of all the facts, but if a claim is refused—this is the law we have now—it must be certified as clearly unfounded, unless the Secretary State is satisfied that it is not. Such a certification prevents a person from lodging an appeal until they have left the United Kingdom. These provisions have been working extremely well.

Photo of David Heath David Heath Shadow Spokesperson (Home Affairs)

The right hon. Lady has just mentioned the capacity of appeal from abroad, which certainly exists technically. Will she tell me how many appeals have so far been lodged under that measure because, by March 2003, in the first two months of operation, there were no appeals at all.

Photo of Beverley Hughes Beverley Hughes Minister of State (Citizenship and Immigration), Home Office, Minister of State (Home Office) (Citizenship, Immigration and Counter-Terrorism)

There certainly have been some since, and I will get the number for the hon. Gentleman before we end this debate.

Clause 11 will enable a country or part of a country to be designated, for the purposes of section 94, in respect of a ''description of person'', where the Secretary of State is satisfied that the refugee convention and the ECHR tests that I have outlined apply to the description of person in the country in question. This provision will give us greater flexibility in respect of section 94 powers. We may not consider that the two-part test set out in the section has been met when taking all the population of a given country together, but there might be occasions when it would be useful and appropriate to designate that country with regard to a specified group of persons for whom that test is met.

New subsection (5C), inserted into section 94 by clause 11, details that to which a ''description of person'' may refer. We have listed seven specific examples of attributes or circumstances that we think are most likely to be relevant to this particular power. We have added a final category covering any other attribute or circumstance that the Secretary of State considers appropriate. We will consider that list in debates on later amendments.

Amendment No. 150 requires that, for the Secretary of State to be satisfied that a person is within one of the given descriptions, the person must confirm that, or there must be documentary evidence to that effect. I can understand the general principle that we should proceed on the basis that a person is within a given description only if we have good reason to do so. We have no intention of proceeding on any other basis. That principle is already reflected in the clause,

because it requires the Secretary of State to be satisfied that a person is within a given description—this necessarily imports a requirement of reasonableness on the part of the Secretary of State.

However, I do not think that the limitations imposed by the amendment are appropriate. I understand that the Liberal Democrats are opposed in principle to the mechanism of designating countries as safe—they opposed it in the debates on the 2002 legislation and some of the amendments they have tabled to this clause obviously underline that opposition. In fact, the operation of the non-suspensive appeal mechanism that follows from the certification power in section 94 has been phenomenally successful in reducing unfounded asylum claims from the countries concerned. In respect of the first-wave countries, the accession countries, there was a dramatic reduction in unfounded claims as a result of that measure within the first three months of implementation of the Act.

It is at this point that I would like to raise the sights of the members of this Committee from the rather forensic attention to detail that we saw in the debate on clause 10. I remind them of the other context in which we are operating. While the Opposition clearly have a duty to scrutinise the principle and the practice of the Bill, to make their points and to ensure that the provisions are operationally feasible and logistically possible, they also have an obligation to understand the context in which we are working—the fact that the vast majority of unfounded claims are fuelled by organised crime, and people are exploited by being sold a service; they are told that they can get here and that they claim support under the asylum system as a means of staying here while their claim is assessed. This situation is a huge disadvantage to people who are genuinely fleeing persecution. It undermines public confidence in the asylum system and damages race relations in the community.

I made these points at the start of our debates on the Bill, but I have to remind Members that we are trying to strike a balance. We have had to fight tooth and nail with Opposition Members to put measures on the statute book that are now showing themselves to be effective in striking that balance.

Photo of Beverley Hughes Beverley Hughes Minister of State (Citizenship and Immigration), Home Office, Minister of State (Home Office) (Citizenship, Immigration and Counter-Terrorism)

I agree that the hon. Gentleman did not oppose this particular measure in principle, although I recollect that he had some comments to make during the passage of the Nationality, Immigration and Asylum Bill. To the Liberal Democrats I simply say, in a spirit of trying to work together, that we have to remember the big picture and what we are trying to achieve here. Like some of my hon. Friends, I would like to hear some comments from Opposition Members that reflect their concern both for genuine refugees and a system that works for them and for the people whom they represent, the members of the British public, many of whom are from minority ethnic groups and whose relationship with their communities is being damaged because people do not have confidence in the system.

The limitations imposed by the amendment are not appropriate. Some examples will quickly illustrate that. Were the amendment to be passed, an applicant could simply deny that they were a man. They might look like a man but they could say that they were not, and the clause would be inoperable as most asylum seekers have no documents with them that would tell us legally that they were a man. A similar argument could apply where a person simply denied that they spoke a certain language and refused to speak. How could we make them? We have no documentary evidence that they speak that language.

The right way to approach the matter is to place a general requirement on the Secretary of State to be satisfied that a person is within a given description. That is how section 94 of the 2002 Act operates, where a Secretary of State is deciding whether a person is resident. Clearly, unless we are satisfied that that condition is met, we will not proceed. As the hon. Member for Somerton and Frome (Mr. Heath) acknowledged, a condition not being met is a matter that can be raised in court and in tribunal proceedings.

Nothing in clause 11 affects the current position that every asylum or human rights claim is considered, and will be considered, on its individual merits. Therefore, when a person is a resident of a country designated in respect of certain categories of person and fits one of those categories, their claim will still be properly assessed. The consequence of fitting one of the categories is that, if the person's claim were refused, it would have to be certified as unfounded, with the consequential impact that that would have on any appeal.

On that basis, I urge the hon. Gentleman to withdraw the amendment. I cannot accept it, and I hope he can see from some of the examples I have given that it would make section 94 and clause 11 inoperable.

Photo of David Heath David Heath Shadow Spokesperson (Home Affairs)

It is nice to return to crisp debate and clarity of purpose. I understand exactly what the right hon. Lady is saying. As she knows, I do not agree with her. We must agree to differ.

We have serious doubts about the operation of section 94. The particular instances that she prayed in aid as areas where it would be impossible to have some identification or identification through documentation, are exactly the areas that I do not believe should be added to the clause. We have tabled amendments in a later group to remove those simply. We do not think that they are appropriate grounds for that blanket clearance.

If my amendments were taken in totality—if I dare use the word ''totality'' nowadays—the Minister would see that they are internally consistent, and that therefore the argument she advances is not appropriate. However, we must agree to differ, and there is little point pursuing the amendment further. I believe that it is an important matter, but I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of David Heath David Heath Shadow Spokesperson (Home Affairs)

I beg to move amendment No. 151, in

clause 11, page 13, line 12, leave out paragraphs (a) and (b).

Photo of David Taylor David Taylor Labour/Co-operative, North West Leicestershire

With this it will be convenient to discuss the following amendments:

No. 92, in

clause 11, page 13, line 17, leave out 'or other'.

No. 93, in

clause 11, page 13, line 17, at end insert 'or'.

No. 94, in

clause 11, page 13, line 18, leave out from 'opinion' to end of line 20.

Photo of David Heath David Heath Shadow Spokesperson (Home Affairs)

This is perhaps the point at which to expand the argument to discover what the Government intend to achieve through the expansion of section 94 of the Nationality, Immigration and Asylum Act and the white list. We have established that the Minister believes the white list to be a valuable aid to the administration of the system, but we are suspicious of it. I would like to believe that each asylum case is treated on its own merits before the white list is considered in proceedings, but I suspect that an asylum application from a white list country is less likely to be examined in the same way. The Minister will obviously deny that, and I have no evidence to substantiate it—it is merely my suspicion and concern.

We have always been concerned about the proposal. It is unlikely that the first tranche of EU and accession countries will pose a significant problem, and that someone from one of those countries will have a well founded claim of persecution. If that were the case, that country's continuing membership of the EU and commitment to human rights legislation would lack serious credentials, which should be brought up in another place. Therefore, I understand why fast-tracking applicants from fellow EU countries might be appropriate.

When the 2002 Act was introduced, the Government responded to our concerns by accepting that conditions in a country ought to be vetted, and agreeing to set up an independent panel to examine country information. However, before they did that, they extended the list with no benefit of advice from the panel. The Minister has already referred to the countries that were added, although not explicitly, and they are an interesting bunch. Now included in the section 94 list are Albania, Bulgaria, Jamaica, the Former Yugoslav Republic of Macedonia, Moldova, Romania, Serbia-Montenegro, Brazil, Ecuador, Bolivia, South Africa, Ukraine, Sri Lanka and Bangladesh.

I shall not question the credentials of those countries individually, but the hon. and learned Member for Harborough (Mr. Garnier) has already provided an eloquent exposition of the position of his constituent in Ecuador. However much we wish the Government of Bangladesh to succeed, we have concerns about local conditions there. There is clear evidence of human rights abuse in Ukraine. If I were a journalist in Ukraine, I would be horrified to know that I was living in a safe country according to the Home Office designation. Tell that to those journalists who have fallen foul of the president of Ukraine and have disappeared. If I were living in the main part of

Moldova, I would have little concern if I were Moldovan, but genuine concerns if I were ethnically Russian. If I were living in Transnistria, I would have little concern if I were an ethnic Russian, but serious concerns if I were an ethnic Moldovan.

Those are countries that, according to Foreign Office advice, are unsafe to travel to. I obtained the current version this morning and the list of countries to which the Foreign Office advises against all travel includes Albania and Sri Lanka, while Moldova and Serbia and Montenegro are on the list of countries to which it advises against travel unless on essential business. The Home Office is saying that those places are safe while the Foreign Office is saying that the places are so dangerous that people should not even visit them. I find those positions difficult to reconcile, so I wonder how the advisory panel on country information is operating. Does it take advice from the Foreign Office, the Department for International Development and human rights organisations? Are the countries on the list ever reviewed because circumstances change?

I have serious concerns. Clause 11 will extend the way in which section 94 can be used to include not just a country, but parts of and specific groups within it. I am not sure why that should happen. The proposition is that someone will be considered to be safe if they fall into a certain category, even if they come from a country with a current record of human rights abuse. That is an unsafe proposition to make from a distance.

Photo of Andrew Turner Andrew Turner Vice-Chair, Conservative Party 9:30 am, 22nd January 2004

The hon. Gentleman's argument sounds convincing at first, but could the Government be saying that a country such as Moldova is unsafe for non-nationals but safe for nationals?

Photo of David Heath David Heath Shadow Spokesperson (Home Affairs)

Yes. I accept that there are countries where it is bad to be British or American but which are safe for their own residents. However, if a country is on the Foreign Office list, it is an indication of violence or a climate of danger, which might properly cause someone to claim asylum. That is my only point: not that someone's claim is substantiated, but that it is not clearly unfounded. We are being asked to agree that someone's claim for asylum is clearly unfounded if they come from a country to which the Foreign Office nevertheless advises people not to travel. At the very best, that is an unsafe proposition.

The Government see the provision as a useful administrative tool, but we do not agree. How often and under what circumstances are the countries reviewed? What advice does the Home Office receive before making its decisions? There seems to be a mismatch between the advice of those who are best placed to give it and the advice that is generated in this country.

Photo of Mark Oaten Mark Oaten Liberal Democrat, Winchester

As my hon. Friend speaks, another point occurs to me. Is it not possible that an individual from one of the listed countries could come to this country, take a positive pro-British stance on a controversial law and, ironically, be in danger going back to that country because of that support?

Photo of David Heath David Heath Shadow Spokesperson (Home Affairs)

I was going to come on to that point, and my hon. Friend is right. Being a member of a particular ethnic group in a country that is exercising human rights abuses is not necessarily a safeguard against being a victim of those abuses.

Let us return to the example of Moldova. I presume that Moldova is a country that may be classified in the way proposed in clause 11. People in Moldova from one racial group in one part of the country would be considered safe and those from another racial group in another part of the country would be considered safe, but they would not be considered safe in the contrary positions. What about someone who is an active campaigner for human rights on behalf of the other ethnic group? How will he prove that that is so, to the satisfaction of the Secretary of State, when he is told that he is in a safe group? That would be very difficult, but he may be genuinely in fear of his life and there may be clear evidence of abuse in that country.

Will the Minister substantiate how she intends to use the descriptions under new subsection (5C)? I could just about understand if the Minister was proposing the five reasons that are in the refugee convention. That would be logical. Asylum applicants under the refugee convention must show that they fear persecution for the reasons of race, religion, nationality, political opinion or membership of a particular social group. If those reasons were listed under new subsection (5C), although I would not agree, I could accept that there was a logic in identifying those areas, because they are the grounds for claiming asylum, from which the Minister can identify whether a country is ''safe''. She has decided not to use those five reasons, but to extend them by including gender. It has been established under case law that gender can be a social group for the purposes of asylum, so its inclusion is otiose, unnecessary and confuses matters. I believe that the case law referred to the position of women in Pakistan, although I may be wrong about the country of origin.

Language is also included. It is impossible to prove what language a person speaks or whether they are being persecuted on the grounds of speaking that language. We therefore have a nebulous concept that should play no part in the legislation. In polyglot countries, exclusively monoglot people are rare, yet the Secretary of State can ascertain that fact, form an opinion and use that information as grounds for an unfounded claim. I reject both those grounds, which is the basis of amendment No. 151.

Paragraph (f) of new subsection (5C) refers to

''membership of a social or other group''.

I question the words ''or other''. What do they mean? What does the Minister have in mind? Which groups are not social, religious, national, racial, or concerned with language or political opinion? What are those other groups which might lead to persecution and can they be identified?

Photo of David Heath David Heath Shadow Spokesperson (Home Affairs)

The hon. Gentleman from a sedentary position suggests lawyers. I can understand the persecution of lawyers. It is a commonly held view that lawyers should be persecuted. However, in this

instance, we are asked to assume that lawyers are not the persecuted group but the unpersecuted group, and that they have immunity from persecution. I find it hard to identify another social group other than the head of state that is immune from persecution to the satisfaction of the Secretary of State and from whom any asylum claim would be unfounded. The Minister must enlighten us.

Photo of Mr Tony McWalter Mr Tony McWalter Labour/Co-operative, Hemel Hempstead

I am tempted not to make this point on the basis that the amendment is rather trivial. However, some states have persecuted anchorites—people who are deliberately antisocial—and that would constitute another group.

Photo of David Heath David Heath Shadow Spokesperson (Home Affairs)

The hon. Gentleman provides the reciprocal argument to what the Minister is saying. The problem is that we are not identifying groups that can be persecuted, but those that cannot be persecuted. The right hon. Lady suggested that she could identify groups—not social groups or any of those other sorts of groups—which are not, and will not be, persecuted in a particular country. The hon. Gentleman has therefore assisted my argument by suggesting that, however unlikely that group, it might be persecuted by an Administration that determine to do so. Although he made what I think was intended to be a light-hearted intervention, he has proved the point. I should like the right hon. Lady to clarify the matter.

The right hon. Lady should also explain paragraph (h). Whenever I am a member of a Committee and we are considering a Bill that allows the Secretary of State to think afterwards of anything that they might want to think of and make it law, I reject that and will oppose it. That is not how to make law. If the Minister cannot think now of this ''other attribute or circumstance'', she should not be allowed to think later. She must come back and create law. I will not sign blank cheques for the Government in this Committee or any other. The right hon. Lady should explain what she wants from paragraph (h) and how she intends it to be used, although even after she has explained it I shall reject her explanation, so she is on to a loser.

I hope that that has explained what we intend to achieve by tabling this group of amendments. We seek to probe what the Minister's intentions are. We do not agree with the principle on which she has based the clause, but we want to understand her reasons. The Minister is particularly good at explaining what her intentions are, even when we do not agree, so I look forward with interest to her response.

Photo of Neil Gerrard Neil Gerrard Labour, Walthamstow

I want to comment briefly on some of the points that the hon. Member for Somerton and Frome made on the amendments. It must be acknowledged that the availability of the country information that is used by the Home Office in making decisions is vastly better than it used to be. It is now possible to go on to the internet and look at the country information that is used by Home Office officials in making decisions.

I have talked to a particular group in my constituency that had concerns about the information relating to their country of origin, and

was able to direct them to the information on the Home Office website. I then talked to the Home Office and, as a result, changes were made to that country information. When one compares that with the situation six or seven years ago, when it was impossible to see the country information, it should be acknowledged that there have been significant improvements on that front.

Photo of Humfrey Malins Humfrey Malins Conservative, Woking

My own experience suggests that what the hon. Gentleman says is right and there have been significant improvements.

Photo of Neil Gerrard Neil Gerrard Labour, Walthamstow 9:45 am, 22nd January 2004

The questions then arise of how that information is used and how decisions are made. We have had some discussion about the quality of decision making. I have always had concerns about decisions that parts of countries are safe. That is not a new problem. Other hon. Members in the Committee have taken an interest in Sri Lanka and, over a number of years, will have seen cases in which it was decided that it was safe to return someone who was Tamil to Sri Lanka. The argument that there was fighting going on and that there was complete disruption in the north of Sri Lanka was not accepted. The Home Office advanced the argument that it was perfectly safe for someone who was Tamil to go back to Colombo, even though, at that time, there were some serious concerns about human rights abuses of Tamils in Colombo.

Some of the Sri Lankan groups in the UK were seriously concerned about Sri Lanka being added to the list of designated countries. Although talks have been going on for some time now between the Liberation Tigers of Tamil Eelam and the Sri Lankan Government it is questionable whether those talks will lead to a long-term solution and there are questions about the current political situation in Sri Lanka. As the hon. Member for Somerton and Frome said, situations in countries change. Once a country is on the designated list, there is a tendency for it to stay there indefinitely.

Finally, I should like to talk about the operation of section 94 in general and the non-suspensive appeal procedure. The hon. Gentleman spoke about evidence, and it is difficult to know how it has been operating. The 2002 Act was supposed to create the post of an independent monitor who would report to Parliament on the operation of section 94. That was done in response to concerns that were raised across the House about the non-suspensive appeal procedure. I should be interested to know when that monitor will be appointed and when he will report to us on the operation of section 94.

Photo of Beverley Hughes Beverley Hughes Minister of State (Citizenship and Immigration), Home Office, Minister of State (Home Office) (Citizenship, Immigration and Counter-Terrorism)

The hon. Member for Somerton and Frome has opened up again the debate on both the principle of designation and on some of the countries so far designated. I know that you would like me to keep to the amendments, Mr. Taylor, but I should first like to answer some of the points that have been made about that.

We need to understand first that countries are designated as safe if they meet the two tests for people entitled to reside there. As the hon. Member for Isle of Wight (Mr. Turner) pointed out, that may be different

from the advice that we would give to UK residents about whether they are safe in travelling to a certain country, precisely because they are UK residents. Secondly, the designation is for the purposes of the refugee convention and the European convention on human rights. Those are specific criteria.

That is not tantamount to saying that those countries are safe for everyone for every purpose, or that there is no crime and no potential for non-state agents to try to discriminate against people, any more than we can guarantee that every citizen of this country will be safe in that respect. The designation is very specific. It is about persecution under the convention, for the purposes defined there and in the articles of the ECHR.

Clearly, the way in which we make judgments about safety on those criteria is very important. I am grateful for the comments about improvements in the quality of country information. There is further to go, which is why we have set up the advisory panel. When I was concerned about some cases that crossed my desk I asked for the country information. I had fairly recently assumed responsibility for this policy area and, given what had been said about country information, I was surprised at the detail and depth of the package that I received from the website. It was the package used by caseworkers and contained a wealth of information drawn from a variety of independent sources across the world.

That is one source of information that we use in assessing countries for designation, but the views of the Foreign Office and others are also taken into account and the designation is kept under review. As my hon. Friend said, it is really about how the non-suspensive appeal in section 94 is operating.

The second big point is that every case is decided on its merits at the first stage; there is no presumption at that point about safety. In 2003, there were 1,260 decisions, most of which were refused and certified, but 69 were refused and not certified. In other words, we did not think there was a case but we took the view that there should be an in-country appeal and that the case should be considered in country by an independent adjudicator.

I hope that that reassures hon. Members that it is not our intention to send back those who we think may have a case. If we think that there is no case, but believe that it should be looked at, we remove the case and perhaps refuse it, but do not certify it, so people have the right of appeal here.

The hon. Member for Somerton and Frome asked me earlier about appeals, and I can now give him the figures. To the end of 2003, 155 appeals were lodged out of country. Of those, 135 have so far been heard, 133 were dismissed by the independent adjudicator and two were allowed. He may be surprised by those figures, but a substantial number of people avail themselves of out-of-country appeals, and some—albeit a small number—get through.

This is an important measure in terms of our ability not to deter people who genuinely have a case under the convention but to deter the vast majority who come here from those countries and claim asylum but

who are not the people—if there are such—who are being persecuted in those countries. They are people who have the wherewithal to pay a trafficker to get them in. That is the point we must hold on to.

Amendment No. 151 would remove the first two categories—gender and language. Amendment No. 92 would confine the sixth category to membership of a social group rather than of a social or other group, as drafted. I will come to that in a moment. As the hon. Gentleman made clear, under the amendments new subsection (5C) would mirror the refugee convention grounds, and his argument that it should is flawed, because what the convention does is the opposite of what we propose. The convention designates people who would not be safe, identifying people for whom there are grounds specified in the convention for thinking that they may be discriminated against. Our proposal is the corollary of that: identifying people who are generally safe. Therefore, the definitions are potentially wider than those of the convention and the link that he makes is not appropriate.

There is no obvious reason why the categories should be limited to convention categories, because they have precisely the opposite purpose: in the case of these countries, a much narrower group of people who we think might be discriminated against, whereas what we propose is designating people or groups of people who, because the countries are generally safe, we think would themselves be generally safe.

The hon. Gentleman should reflect, especially in relation to amendment No. 94, that the provisions also cover potential human rights claims. In listing the seven main categories in new subsection (5C) we have also had regard to article 14 of the ECHR, which relates to discrimination. Gender and language, two categories that amendment No. 151 would delete, are included in article 14.

Photo of David Heath David Heath Shadow Spokesperson (Home Affairs)

On the grounds of discrimination.

Photo of Beverley Hughes Beverley Hughes Minister of State (Citizenship and Immigration), Home Office, Minister of State (Home Office) (Citizenship, Immigration and Counter-Terrorism)

True, but the amendment would delete them.

Turning to the case law on gender to which the hon. Gentleman referred, he may recall that the case in the House of Lords was confined solely to the position of women in Pakistan. The law clearly said that whether women were a social group in a specific country would have to be decided by known facts about that country. There will be circumstances in which the designation ''social group'' would not cover gender. We need this provision in the Bill in order to be able, if we wish, for example, to designate men in certain countries as a generally safe group, if the issue of discrimination or potential persecution relates solely to women.

The proposed change in amendment No. 92 to the sixth category would, as I have said, leave the wording very similar to one of the refugee convention grounds of

''membership of a particular social group''.

For the purposes of defining discrimination, that phrase has acquired a distinct meaning. For example, case law requires members of a group to be subject to

discrimination as a result of their membership of that group, and for all that group's members to have a shared characteristic that cannot be changed—it is ''immutable''—or that a person should not in conscience be required to change. It is very specific.

Photo of Andrew Turner Andrew Turner Vice-Chair, Conservative Party

Yet France is on the list of safe countries, even though it discriminates against a particular social group in exactly that way by preventing them from demonstrating their religion.

Photo of Beverley Hughes Beverley Hughes Minister of State (Citizenship and Immigration), Home Office, Minister of State (Home Office) (Citizenship, Immigration and Counter-Terrorism)

It is for France to consider whether its requirement on dress is compatible with the European convention on human rights. That is not an issue for this Committee. We are considering how we can designate people as safe in particular countries in ways that will help us to refine those groups of people that we want still to be able to protect. We want to apply section 94 of the 2002 Act to them more flexibly.

To return to amendment No. 92, we consider that the definition is not appropriate for this clause, which is why we have included the phrase ''other group''. For example, if we designated a group as one for which conditions in a particular country are generally safe, it could not be said that the group was discriminated against. That group would probably not be regarded, within that narrow definition, as a ''particular social group'' within the meaning of the convention. There might be groups that are fairly readily identifiable that do not meet the so-called ''immutable characteristic'' definition of a ''particular social group'' as developed by the courts. We want the clause to cover them.

Photo of Edward Garnier Edward Garnier Conservative, Harborough

Is the Minister able to give us an example of the type of ''other group'' that she is thinking of?

Photo of Beverley Hughes Beverley Hughes Minister of State (Citizenship and Immigration), Home Office, Minister of State (Home Office) (Citizenship, Immigration and Counter-Terrorism) 10:00 am, 22nd January 2004

Yes, in doing that I shall turn to amendment No. 94. We have listed seven specific examples of the circumstances and attributes that we think most likely to be relevant. We expect to use the provision in relation to those seven examples. The list may not be exhaustive, and it is not easy to give now the sort of situations that we have in mind. For example, factors such as age, employment status and shared history may be relevant in some countries and may not necessarily be caught by the other listed examples. In seeking assurances about the way in which we shall operate, the Committee must remember that every claim will be considered on its merits. Nothing will be prejudged. For the reasons that I have outlined, I do not think that the amendments would make best use of the flexibility that the clause will offer. I hope that hon. Members are assured, by the way in which we have operated section 94 so far and the figures that I have given, that we shall continue to use the system responsibly. We shall continue to use it in a way that identifies people who do not fall into the category that we are discussing and that gives us the flexibility to ensure that we have an efficient system and can return people whose claims are not well founded.

Photo of David Heath David Heath Shadow Spokesperson (Home Affairs)

I am grateful to the Minister for her explanation of what she proposes. She has not persuaded me, but she probably did not expect to in

the first instance. She has, however, given the Committee interesting and useful information about the operation of section 94 to date, for which I am grateful. I am even prepared to say that that information has given me some reassurance about the operation of section 94. However, she noticeably did not respond to the point made by the hon. Member for Walthamstow (Mr. Gerrard) about what has happened to the independent monitor. She may like to intervene on me to do so.

Photo of Beverley Hughes Beverley Hughes Minister of State (Citizenship and Immigration), Home Office, Minister of State (Home Office) (Citizenship, Immigration and Counter-Terrorism)

I beg my hon. Friend's pardon. I intended to respond to his point in talking about appeals. The process of appointing a monitor is almost complete, and I hope that we can make an announcement shortly. That provision in the previous legislation is in the process of being implemented.

Photo of David Heath David Heath Shadow Spokesperson (Home Affairs)

I am glad that I allowed the right hon. Lady to intervene to make that point, for which I am grateful. However, it has taken an unconscionably long time since the enactment of the 2002 legislation to get the independent monitor in place, even though that is an essential safeguard in its operation. Many people might have had their minds put more at rest had that appointment been made earlier and had the Government shown any urgency about it.

The Minister has been at pains to stress that the clause will be used to identify areas in respect of asylum claims not on the grounds of persecution but in relation to discrimination. I would have preferred a much more narrow definition, because the provision is open to very vague descriptions that could be used inappropriately. I listened to her explanation of the other groups that she had in mind. We had difficulties finding out who those groups were. I do not know whether professional groups were at the back of her mind in one instance. Certainly, age was an issue. However, unless we have a latter-day King Herod and the firstborn are considered to be in danger, it is hard to see how there could be an institutionalised and governmental discriminatory policy that would identify particular groups on the basis of age, history or whatever, and could be identified as releasing those who did not fall within those categories from any prospect of persecution.

I am not persuaded by what the Minister is saying, but there is great merit in the fact that she is at least setting out what she is doing and having us understand why she thinks she is doing it, even if we do not agree. Having made my points, I do not think that I shall persuade her or that she will persuade me.

I continue to have concern, not about the quality of country information, but about the way in which it is applied to section 94 list countries. To have Ukraine still on the list despite what we have seen over the past few years—Council of Europe investigations into the processes of government there and well-documented evidence of, for instance, journalists disappearing—seems entirely inappropriate. If the information is applied in the same way to the new groups that will be considered for the purpose under section 94 and clause 11, that will give me great cause for concern.

I shall not persuade the Minister, but we have had a useful debate. We have covered some ground and heard information on the operation of section 94 that is of value to the Committee and the House. On that basis, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Beverley Hughes Beverley Hughes Minister of State (Citizenship and Immigration), Home Office, Minister of State (Home Office) (Citizenship, Immigration and Counter-Terrorism)

I beg to move amendment No. 129, in

clause 11, page 13, line 20, at end insert—

'(1A) In section 94(4) of that Act omit paragraphs (a) to (j).'.

Photo of David Taylor David Taylor Labour/Co-operative, North West Leicestershire

With this it will be convenient to discuss Government amendment No. 130.

Photo of Beverley Hughes Beverley Hughes Minister of State (Citizenship and Immigration), Home Office, Minister of State (Home Office) (Citizenship, Immigration and Counter-Terrorism)

The amendment removes from the list of states designated under section 94 the 10 countries that will join the European Union on 1 May 2004. It is a regularisation and tidying-up exercise, because from 1 May, nationals of the 10 states will benefit from free movement rights under European law. Individuals from those countries are unlikely to apply for asylum after 1 May, given that they would gain no extra benefit to that to which they are already entitled under EU law.

We receive few asylum claims from nationals of existing EU states. If an EU national makes an asylum claim, appeal rights against a refusal of the claim are governed by the Immigration (European Economic Area) (Amendment No.2) Regulations 2003. They provide that there is no appeal right if, as we would expect, a claim is certified to be unfounded. There is an appeal right if the claim is refused and not certified, but that happens rarely, if ever. From 1 May, the regulations will supersede section 4 of the 2002 Act in relation to nationals of the 10 accession countries. Section 94 will no longer be relevant, hence our deletion of those states from the list.

Photo of Humfrey Malins Humfrey Malins Conservative, Woking

I would like to ask the Minister a question that I do not necessarily expect her to be able to answer now. If she cannot, perhaps she will write to me. From 1 May, citizens of accession countries will enjoy the rights that accompany accession to the EU. How many nationals of those countries have claimed asylum in this country over the past six months; how many have been removed from the country in the past six months; how many are the Government in the process of removing; and how many do they anticipate removing over the next two or three months? It is unnecessary to remove a raft of people who can lawfully return after 1 May. I hope that a great deal of money has not been wasted on that.

There was another matter that I wanted to raise but, strange as it is on a Thursday, I have forgotten what it is. I hope to return to it in a moment.

Photo of David Heath David Heath Shadow Spokesperson (Home Affairs)

I associate myself with the request from the hon. Member for Woking (Mr. Malins) because removing people at this stage in the process is a ridiculous waste of money.

I have an ongoing concern about a particular class of people: the Roma living in the Czech Republic and Slovakia. Will the Minister tell us whether the flow of asylum or immigration applications from the Roma population of eastern Europe has slowed down? Does

she anticipate that it will increase under EU free movement regulations?

Photo of Beverley Hughes Beverley Hughes Minister of State (Citizenship and Immigration), Home Office, Minister of State (Home Office) (Citizenship, Immigration and Counter-Terrorism)

Certainly, there has been much inflammatory and inaccurate speculation in parts of the press about the effect of accession on the movement of people. There has been particular inaccuracy surrounding the UK's decision to allow people to come for the purpose of work from 1 May rather than to have a transitionary period. I want to make two comments about that to clarify the position.

First, all citizens of accession countries have complete freedom of movement to every other EU state from 1 May. The only purpose of movement for which existing member states have the option of a transitionary period is that of work. Hon. Members should be clear that the transitionary period that we are not applying refers only to work. People from the accession countries may move to any other country for any other purpose, if they are self-supporting for example.

Secondly, our decision not to impose the transitionary period, which we made on the basis of detailed academic research that we commissioned into what happened in the last enlargement and what we can expect with this one, is not for ever. If there are any concerns about the impact of enabling people to come to the UK for work, we can impose transitionary arrangements. Those can be blanket arrangements or imposed on individual countries. We have great flexibility in imposing transitionary arrangements if evidence supports that choice.

Photo of Humfrey Malins Humfrey Malins Conservative, Woking

Is there any legislative basis for the transitionary provisions that we could impose? Does existing legislation permit us to impose those constraints without the House having to pass any further legislation? What criteria would the Minister consider before deciding whether to impose constraints?

Photo of Beverley Hughes Beverley Hughes Minister of State (Citizenship and Immigration), Home Office, Minister of State (Home Office) (Citizenship, Immigration and Counter-Terrorism)

The provisions on the transitionary arrangements are in the treaty. As signatories to the treaty, and as our legislation reflects it, we may impose transitionary arrangements in accordance with it. When I introduced the relevant provisions to Parliament, I made it clear that that option would be open to us. With the Department for Work and Pensions, we will monitor the impact of people arriving from accession countries, and if we need to, we will take the action that I have outlined.

Photo of Andrew Turner Andrew Turner Vice-Chair, Conservative Party

Before the Minister moves on, will she clarify one point? She used the words ''if they are self-supporting'' in relation to people in accession countries who have the right to go to any EU country. By ''self-supporting'', does she mean that those people will not present any burden to the UK taxpayer, should they decide to settle here, whether that is through benefits, health needs or education needs?

Photo of Beverley Hughes Beverley Hughes Minister of State (Citizenship and Immigration), Home Office, Minister of State (Home Office) (Citizenship, Immigration and Counter-Terrorism)

The position on health is different, as reciprocal agreements between EU member states provide that citizens from EU countries will be able to avail themselves within the

boundaries of national arrangements of health provision. However, people cannot move here, or to any member state, and simply claim benefits, and we are ensuring that our arrangements, including the habitual residence test, will not allow that. People may come for work, but they cannot come simply to claim benefit.

That is an important point in relation to the question of the hon. Member for Woking about removals. He asked how many people have claimed asylum in the past six months from accession countries. The number has dropped considerably, but it is still about 25 people a month. There have also been a large number of removals in those six months, as I outlined in the figures on the non-suspensive appeal process. He then conjectured that it was a waste of money and pointless to continue to process claims and try to remove people from accession countries. For precisely the reasons that he outlined, our priority is to reduce as far as we can the number of people who are here with asylum claims from the accession countries and, if their claims fail, to remove them. We must continue to do that. If someone has been here with a claim we need to be sure that that would not give them any rights to go straight into benefits under our benefit arrangements.

Photo of Beverley Hughes Beverley Hughes Minister of State (Citizenship and Immigration), Home Office, Minister of State (Home Office) (Citizenship, Immigration and Counter-Terrorism)

They certainly can, but we are seeking to prevent people who are here now on National Asylum Support Service benefit from using that as an argument for staying and going on to social security benefit. If they come back, they will do so under the terms of the treaty. They will not be eligible for benefits. They can come to reside if they are self-supporting, or they can come to work. They cannot come for benefits. It is very important that we keep that strong message going back to people. We must deter people from coming before 1 May to claim asylum because they have no basis for coming before then on any other basis.

Photo of Gwyn Prosser Gwyn Prosser Labour, Dover

My right hon. Friend has given some important assurances this morning about possibilities for the Government to take action should the flows of people coming into the UK be disproportionate. What is the position with those people who enter in the meantime who are unable to find work and then effectively become destitute because they do not have the support of benefits? Would that become the responsibility of the local authorities?

Photo of Beverley Hughes Beverley Hughes Minister of State (Citizenship and Immigration), Home Office, Minister of State (Home Office) (Citizenship, Immigration and Counter-Terrorism)

People from those countries cannot come in freely until 1 May. If they enter the country now, presumably illegally—

Photo of Gwyn Prosser Gwyn Prosser Labour, Dover

What about after 1 May?

Photo of Gwyn Prosser Gwyn Prosser Labour, Dover

Large flows of people may come in on 2 May and the months that follow. The people who came in 1997 and 1998 were mostly Roma from eastern Europe. People are still anxious to leave those areas. There is still a push factor as well as an

attraction in this country. What happens if they come in, ostensibly to seek work under the new treaty arrangements, fail to find work and after six or even 12 months are still without any form of support? Our experience has been that they fall under destitution provisions, irrespective of their nationality. Someone has to pick up the tab.

Photo of Beverley Hughes Beverley Hughes Minister of State (Citizenship and Immigration), Home Office, Minister of State (Home Office) (Citizenship, Immigration and Counter-Terrorism)

We certainly want to avoid that. People are interested in coming here—our research suggests that the numbers will be nothing like the estimates given in the media—because they know that we have a buoyant labour market. It is straightforward for people who can come in legally to get jobs at much better pay than they can expect in their own countries, if they can get jobs at all there. Those people will want to work and to support themselves. That is the opportunity that they seek. Where that suits our labour market we want that to happen. I understand the point that my hon. Friend makes. I know that he speaks from experience in his constituency. I will consider that point further, if I may, outside the context of the Bill, and give him further information on our work to try to prevent the potential adverse consequences that he outlines.

The hon. Member for Somerton and Frome, who has now left unfortunately, asked about Roma applications. I will give him full details in writing. However, I made it clear in relation to the non-suspensive appeal system and its operation that there has been a dramatic fall in applications for asylum from the first-wave countries—the accession countries. That will be reflected in applications from Roma people as well as from other citizens of those countries. I hope that hon. Members will accept the amendments. Although the matter is open to wider debate on accession, the amendments are technical: we need to remove those countries from the list in the 2002 Act.

Amendment agreed to.

Photo of Andrew Turner Andrew Turner Vice-Chair, Conservative Party

I beg to move amendment No. 124, in

clause 11, page 13, line 31, at end add—

'(4) The Secretary of State shall—

(a) cause to be maintained a record of the use of legal aid for purposes connected with this and the principal Act;

(b) regularly review the success of legal practitioners in pursuing with the assistance of legal aid cases under this and the principal Act and the extent to which they have pursued unfounded human rights or asylum claims;

(c) publish statistics on the cost and success rate of each legal practitioner; and

(d) withdraw from eligibility to receive legal aid payments practitioners who in his opinion are not achieving good value for money.'.

I apologise to the Committee, because I shall have to leave at 11 o'clock, but I hope that the debate on this probing amendment will be over by then.

There is an apocryphal story—I am sure that it is apocryphal—about the chairman of a constituency association of a well-known political party, who, seeking a candidate, said, ''No merchant bankers, no one over 50 or under 30, put a woman on the list if you must, but no lawyers.''

Photo of Andrew Turner Andrew Turner Vice-Chair, Conservative Party

It was not mine. We have heard a number of stories, in particular from the hon. Member for Glasgow, Cathcart (Mr. Harris) and other Government Members, about the misuse of public funds in pushing cases that stood no reasonable chance of success. Such cases were pushed to their extremes, at the expense of the legal aid fund.

On the Isle of Wight, I do not have many asylum cases come to my surgery, but I am unusually capable of drawing conclusions from a paucity of information. I am sure that the hon. Member for Crosby (Mrs. Curtis-Thomas), who was on the ''Today'' programme this morning would sympathise with me in that.

There seems to be a feeling that the legal aid fund is deployed in many cases to defer removals, and is used for many cases that, in the words of the heading of the clause, are ''unfounded human rights or asylum'' claims. I want the Government either to say that that feeling is entirely unjustified or, if it is justified, that they will do something about it.

I shall give two examples from my own experience. Our office was rung after 10 o'clock at night—it is perhaps a tribute to my staff that they were there to take the call—by a lawyer acting for a Mr. Q, in a case that did not, at that stage, seem to be urgent, although doubtless it seemed so to Mr. Q. I am pleased to say that he and his family have been removed to Italy, but only after more than a year. The lawyer was pursuing the argument that it was unsafe for him to be removed to Italy.

Secondly, there was the case of Mr. C, who was advised by a firm of solicitors in Southampton, for whom, as far as I know, none of my constituents works, to get a letter from his MP supporting his case. I knew nothing about Mr. C, and Mr. C's lawyers, as far as I knew, knew nothing about me except what they had read in the newspapers. I was not prepared to issue a letter on the basis of a telephone call, or on the basis of advice given by a lawyer to his client that implied that he had a right to a letter from an MP, regardless of the circumstances of the case. I ask the Minister to confirm that the Secretary of State—either the Home Secretary or the Lord Chancellor—should take seriously the question of how legal aid is used in asylum and immigration cases.

Photo of Tom Harris Tom Harris Labour, Glasgow Cathcart

I have a lot of sympathy with the hon. Gentleman's case. I look forward to my right hon. Friend's response. To play devil's advocate, how would he respond to the inevitable criticism that, were his amendment accepted, there would be a case for demanding that criminal lawyers whose clients are found guilty in court should also publish records of how much legal aid has been spent on an ultimately fruitless case?

Photo of Andrew Turner Andrew Turner Vice-Chair, Conservative Party

There may be such a case, but I do not now claim either to make it or to argue against it. The argument that I would make in favour of the amendment is that there is widespread public concern that this is a mischief that needs to be dealt with. I ask merely that the Secretary of State exercise caution in the expenditure of public money. The Home Secretary gave me some assurances on Second

Reading—I apologise that I have not brought a copy of that debate with me—that were moving in the right direction. I really wanted some bankable assurances, preferably from the Lord Chancellor, that the Government would undertake an effective value-for-money audit of the use of public funds in asylum cases and would act on the results.

Photo of Mark Oaten Mark Oaten Liberal Democrat, Winchester

The amendment says that there should be published

''statistics on the cost and success rate of each legal practitioner''.

Does not the hon. Gentleman share my concern that, as with any league table, that could make some legal practitioners want to take on cases only where they are likely to be successful, so that they look good in the published statistics? That could be difficult in complex cases that look risky to lawyers not wanting to slip down the league table. Is not that a concern?

Photo of Andrew Turner Andrew Turner Vice-Chair, Conservative Party

I accept that that is a concern, but I think that there should be more openness. People should have the opportunity to choose legal practitioners who have a success rate, rather than going to the first person who presents himself at a port of entry. There are arguments for and against.

I shall not detain the Committee any longer, but my hon. Friend the Member for Woking has just handed me the text of the Second Reading debate, so I may seek to intervene on the Minister later.

Photo of Edward Garnier Edward Garnier Conservative, Harborough 10:30 am, 22nd January 2004

I am grateful to my hon. Friend, who has given me an opportunity to underline some of my concerns—perhaps other hon. Members share them—about the Government's approach to removing asylum seekers whose claims are unfounded. As a lawyer—albeit not one who practises asylum and immigration law—I accept that there are some dishonest and bad lawyers who advance cases, in all areas of the law, that should never be brought. Happily, their number is very small indeed. The professional bodies, be they the Law Societies of England and Wales or Scotland or the Bars of England, Scotland and Northern Ireland, are strict in dealing with those who behave improperly, as a matter of professional misconduct. However, it is inevitable that some of those lawyers will be able to get hold of publicly funded cases and push them repeatedly, if the courts do not come down heavily on them.

All that I ask of the Government is that they should—not by legislation, but by practice directions through the courts—make it permissible, or, as I believe it is already permissible, make it a practice that is adopted more, for courts to be pro-active and interventionist when they come across duff cases.

If a court made a costs order against a legally aided asylum seeker whose claim was unfounded, the chances of recovering the money would be nil. The costs order should be made against the firm of solicitors or the lawyer advancing the duff case. That would introduce a financial discipline that would encourage lawyers tempted to advance such a case to

think more carefully before bringing it to court, or even taking it on.

There is nothing wrong with a lawyer telling a client, ''I'm afraid you haven't got a case. There is no evidence or law to support your case, and therefore I will not advance it.'' The lawyer who says that is a better lawyer than one who says, ''Irrespective of the merits of your case, I shall take it on and we'll give it a punt—see what happens.'' That is not a good way to advance a case of any kind, and particularly not an asylum case, in which all sorts of expectations are bound up in the equation.

I broadly applaud my hon. Friend for moving the amendment. Clearly, he does not expect me to say that its detail would necessarily translate into law. I think that there are already things that can be done by the Legal Services Commission, the body that now deals with the very limited amount of legal aid available to the public following the passing of something called the Access to Justice Act 1999—never was a law less aptly named; it should be called the Denial of Access to Justice Act, but language has taken on a whole new dimension since the present Government took office. The Government should concentrate on the imposition of discipline, through the courts and the judges. In that way they could improve the system, prevent the wasting of taxpayers' money and enhance the reputation of the legal system and the removal system.

My hon. Friend said that he received a telephone call from either a constituent or a constituent's lawyer, at 10 o'clock at night. As I understand it, the Law Society has issued guidance making it clear that it is wrong of solicitors automatically to ring up a Member of Parliament to jump a queue or to apply pressure on the court system. If there is a case, it should be advanced through the legal system.

Photo of Humfrey Malins Humfrey Malins Conservative, Woking

I, too, thank my hon. Friend the Member for Isle of Wight for moving the amendment. He has done the Committee a service and raised one or two interesting and good points.

On the point made by my hon. and learned Friend the Member for Harborough, the Law Society has indeed issued guidance. I was involved in helping to draft it. It is a difficult area, but it is important that lawyers should not abuse the relationships that they may develop with Members of Parliament—particularly when they stand to make financial gain and the Member of Parliament is acting without payment.

I want to reinforce my hon. and learned Friend's point about costs and ask the Minister if she can produce one or two statistics on the issue of costs awarded against a losing party in asylum cases. Specifically, in the criminal court system, if a judge thinks that a solicitor has behaved in an improper way in advancing a client's case, the judge can make a personal order for costs against that solicitor. That is done infrequently; I wish it was done more. If, in asylum cases, it is felt that a solicitor has acted improperly—such examples are pretty rare, because by and large the profession acts honourably and with integrity—is there a power, first, for the adjudicator,

secondly, for the existing tribunal, and thirdly, for the Court of Appeal, to award costs against the lawyers concerned? If so, what are the criteria that the judge or the adjudicator must take into account in imposing such a costs order? How many such orders have been awarded in the past few years and what sums have been recovered? Are the courts using the powers that they have in a sufficiently robust way, or do they need more powers? I appreciate that the Minister will not be able to respond now, but it would be interesting for the Committee to have the answers to those questions in due course.

Photo of Beverley Hughes Beverley Hughes Minister of State (Citizenship and Immigration), Home Office, Minister of State (Home Office) (Citizenship, Immigration and Counter-Terrorism)

The hon. Member for Isle of Wight is right to be concerned about these issues. I share his concern and concur with the spirit of the amendment and the remedial measures that he proposes. There is concern about the costs of legal aid in asylum cases, which have risen from just over £80 million in 2001–02 to £174 million in 2002–3. Only a relatively small part of that rise is accounted for by an increase in the number of claims at the end of 2003.

There is concern, too, about the quality of some of the work undertaken under legal aid, and about instances of duplication that came to light. That requires action, and the Department for Constitutional Affairs acted in recognition of those concerns.

The consultation document that Lord Falconer published at the end of last year proposed a variety of measures with which the hon. Gentleman will be familiar. They include a financial threshold of five hours for initial decision making; no legal aid work undertaken in asylum cases without the permission of the Legal Services Commission, which will also set financial thresholds in individual cases; accreditation for all the lawyers and caseworkers undertaking legally aided asylum work to address the quality issue; and the introduction of a unique client number to avoid duplication when people change representatives.

In addition to the powers that the Legal Services Commission already has, the measures that the Government have announced will require the Legal Services Commission to operate more robustly. The hon. Gentleman's concerns and the remedies that he proposes will be dealt with through those two routes. I hope that I have reassured him.

Photo of Mark Oaten Mark Oaten Liberal Democrat, Winchester

The Minister listed the planned changes to legal aid, some of which may have merit. However, my argument is, first, that they may deter some professionals from getting involved in these cases, which may have a knock-on consequence in terms of quality, and secondly, there might be some merit in holding off some of the changes to legal aid, because the changes in the Bill are complex and will require a lot of expertise among professionals. Would not it make sense to let one set of changes bed down before putting in place another set of changes to legal aid, which could directly affect people's ability to get good, high-quality information when they will need it most: in the year ahead when these changes will take place?

Photo of Beverley Hughes Beverley Hughes Minister of State (Citizenship and Immigration), Home Office, Minister of State (Home Office) (Citizenship, Immigration and Counter-Terrorism)

I do not agree with those two points. First, the hon. Gentleman spoke about the threshold and other measures, and whether they would

deter good-quality practitioners. I have considered evidence from the consultation, and anecdotal evidence from Members who would not normally take the point of view that they have. One Member told me that legal practitioners whom she respects have told her that the arrangements are adequate, particularly for the threshold, which is the issue of concern. That view was confirmed throughout the consultation process. They told her that five hours is adequate for a good-quality adviser or lawyer, and that the arrangements for the Legal Services Commission to allow advisers to go beyond that on a case-by-case basis are adequate.

Good-quality practitioners are assured by the measures. I agree with the hon. Gentleman that we do not want to deter them, but they see that it is in their interests that the people who give the profession a bad name are deterred, and do not get through the accreditation process.

On the issue of delay—these are all important parts of the whole picture—it is important that the changes to legal aid take place alongside the measures for other parts of the asylum process, which lead up to that. It is not beyond the capacity of the profession to respond to that. Colleagues in the Department for Constitutional Affairs and in the Legal Services Commission want to proceed to implementation in conjunction with those in the profession who want to work with us. We want to work with them, as they are showing themselves to be willing and constructive in ensuring that we can implement the measures satisfactorily.

Photo of Ms Annabelle Ewing Ms Annabelle Ewing Spokesperson (Social Security (SNP Shadow Scottish Minister); Education & Skills; Home Office; Law Officers; Work & Pensions)

In asking this question, I do not suggest that there are no problems in Scotland; there are, but not on the same scale. Will the Minister confirm that her comments on the amendment will not apply in Scotland, because legal aid is a devolved function?

Photo of Beverley Hughes Beverley Hughes Minister of State (Citizenship and Immigration), Home Office, Minister of State (Home Office) (Citizenship, Immigration and Counter-Terrorism)

It is a devolved function, and those arrangements are covered by the relevant Scottish authorities. We are talking about arrangements that apply through the LSC, which is a statutory body set up by the Access to Justice Act 1999. It is responsible for the development and administration of legal aid in accordance with its duties under that Act and directions made by the Lord Chancellor.

I say to the hon. Member for Isle of Wight that paragraphs (a), (b) and (d) in the amendment are unnecessary because the LSC already has such powers and practices under the contracting scheme. In addition to the measures that I have outlined, and partly as a consequence of them, the LSC is implementing a bid round that would exclude a significant number of poorly performing suppliers; it seeks to enter new contracts from 1 April. There will also be a new system, in which individual cases will be reviewed and checked to ensure that only meritorious cases will be able to continue with public funding.

For those reasons, it is inappropriate for the provisions in the amendment to be in primary legislation. Similar provisions regulating the way in which legally aided services are provided are contained

in regulations and contractual rules relating to the community legal service, rather than in primary legislation.

I do not think that paragraph (c) is necessary either. The Commission is committed to funding legal advice for all asylum applicants, including those whose cases are later considered unfounded, on the basis of the speed at which assessment and advice have been given prior to the decision's being made. That was made clear in the Government's statement on asylum legal aid on 27 November. We do not want to deter good practitioners; we want to work closely with them. However, we want to ensure, through these measures, that the system is robust and that less than good practitioners are not part of it, and cannot abuse legal aid.

A number of questions were asked about costs. I understand—perhaps I shall have to supplement this response with a written reply—that it is possible for the various courts to issue certificates of no merit, disallowing claims for the cost of work done when there is a view that it should not have been done. I understand that 40 certificates have been issued so far, but that the commission is seeking clarification from the tribunal that they have been properly issued. No costs have yet been disallowed, but we have to come to grips with the issue. I shall refer the matter to the Department for Constitutional Affairs.

Photo of Edward Garnier Edward Garnier Conservative, Harborough 10:45 am, 22nd January 2004

I have been listening to the Minister with interest. I largely agree with her remarks—they do not cut across any of the concerns of my hon. Friend the Member for Isle of Wight or any other observations that have been made. In my experience, we get into trouble either when inexperienced lawyers do work with which they are not familiar or when bad lawyers of poor quality do work that they should not be doing. We want to discourage those who are out of their depth or who are in the wrong area of law from practising in this area. If we seek qualified, experienced lawyers to do immigration and asylum work and pay them properly, we will attract good, bright lawyers rather than the inexperienced or the ignorant.

Photo of Beverley Hughes Beverley Hughes Minister of State (Citizenship and Immigration), Home Office, Minister of State (Home Office) (Citizenship, Immigration and Counter-Terrorism)

I agree with the general principle that the hon. and learned Gentleman outlines. That is the principle on which we are working. When good lawyers give good advice, claims are not extended and people operate within reasonable time limits because they are doing their jobs properly. That is what we want, but there is evidence, both on cost and on lack of quality and duplication, that it has not always happened.

Photo of Angela Watkinson Angela Watkinson Opposition Whip (Commons)

The situation is complicated further by another group of people who offer advice in asylum and immigration cases and who turn out to be unqualified, but posing as legally qualified practitioners, or give the impression that they are such. They do not target people who are destitute, because they charge large sums and take a long time to obtain information that could be sought through a Member of Parliament within 24 hours. What advice is

available to people who need such information, to allow them to distinguish between people who are accredited and those who are not?

Photo of Beverley Hughes Beverley Hughes Minister of State (Citizenship and Immigration), Home Office, Minister of State (Home Office) (Citizenship, Immigration and Counter-Terrorism)

The hon. Lady makes an important point, and I am sure it is one that we will consider further when we discuss the powers of the office of the Immigration Services Commissioner. We have created the office to ensure that advisers are qualified, and we want to give the commissioner additional powers to weed out those who are operating illegally, sometimes under cover of some solicitors' offices.

The hon. and learned Member for Harborough made another point, repeated by the hon. Member for Woking, about guidance from the Law Society. I was slightly intrigued by his point regarding solicitors not telephoning MPs—certainly, as the Minister for Citizenship and Immigration, I have many people coming to my advice surgeries claiming addresses in my constituency which I find somewhat suspect, and I know hon. Members from many constituencies encounter many immigration and asylum cases in their surgeries. While the solicitors do not telephone me, the number of occasions on which I see people in my surgery who say their solicitors have told them to see their MP is enormous. I hardly get anybody coming to see me about an immigration case who does not say that his legal representative has told him to come and see me. I am grateful to the Law Society for the guidance to solicitors, but I wonder how many people are operating according to that advice.

Photo of Tom Harris Tom Harris Labour, Glasgow Cathcart

Is my right hon. Friend aware of any similar guidelines being issued by the Law Society of Scotland? She will, perhaps, remember a specific case where I was contacted by telephone by a solicitor whose client was a constituent of mine and who made a very genuine appeal to me, which I undertook to convey to my right hon. Friend. The outcome of that case was positive for that constituent. I would be surprised if the Law Society of Scotland were to have issued similar guidelines given that this was not an exceptional case but a typical example of approaches that are made to my office very regularly by solicitors.

Photo of Beverley Hughes Beverley Hughes Minister of State (Citizenship and Immigration), Home Office, Minister of State (Home Office) (Citizenship, Immigration and Counter-Terrorism)

Unfortunately, I cannot answer my hon. Friend as to whether the Law Society of Scotland has issued similar guidance—I shall certainly try and find out and inform him shortly. He makes the point that I was making. I would not wish to deter solicitors from contacting us—there may be situations of emergency in which a solicitor does need the advice of an MP, or in which it is in the best interests of the person to be directed to their MP—but it is happening as a matter of routine, rather than one of urgency.

Photo of Mark Oaten Mark Oaten Liberal Democrat, Winchester

Does the Minister accept that there is a danger in some of the previous clauses—particularly clause 10, where we have taken away the right to appeal—that the situation may be reversed, and the Law Society may well issue guidance to the effect that people should indeed contact their MPs, because a direct approach to the Home Secretary is the only way to advance such cases?

Photo of Beverley Hughes Beverley Hughes Minister of State (Citizenship and Immigration), Home Office, Minister of State (Home Office) (Citizenship, Immigration and Counter-Terrorism)

No, I do not accept that, because those are two entirely different systems. I will not

reopen the debate on clause 10, but that is an appeal system conducted through the available legal routes and arenas, including the new single-tier tribunal, rather than through approaches to an MP, which can be influential, but are none the less outside those formal arrangements.

We have had an interesting debate, which has strayed slightly beyond the amendment, but I hope that I have convinced the hon. Member for Isle of Wight that with the existing powers of the Legal Services Commission and the further measures that the Government have announced and intend to implement, we can already deal with the issues with which the amendment is concerned, and will do so better through the new arrangements. We share the spirit of what he is seeking to achieve, but we do not believe that it needs to be done in primary legislation.

Photo of Andrew Turner Andrew Turner Vice-Chair, Conservative Party

I thank the Minister for her response, and the facial expressions of some of her hon. Friends demonstrated their support for the general contention that we are, I think, agreed on. I am satisfied that she intends that proper measures should be taken. I hope that they will be taken—and bear fruit—swiftly, and I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 11, as amended, ordered to stand part of the Bill.

Clause 12 ordered to stand part of the Bill.