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The Rule of Law

3.8 p.m.

Lord Lester of Herne Hill asked Her Majesty's Government:

Whether, following comments by the Home Secretary on the release of an Algerian man suspected of having terrorist links, criticism by Ministers of the Crown of decisions of the courts in cases to which they are party is an attack on the rule of law.

The Secretary of State for Constitutional Affairs and Lord Chancellor (Lord Falconer of Thoroton): My Lords, the rule of law is fundamental to our constitutional democracy and must be safeguarded accordingly. This Government have always strongly defended the rule of law and will continue to do so. Given this responsibility, the Government are not in the same position as other litigants who are entirely free to express views about decisions against them. But the Government are entitled to disagree with particular decisions, both in Parliament and as part of our wider executive responsibilities, without undermining in any way judicial independence and the rule of law. I have discussed the approach that I have set out with my right honourable friend the Home Secretary and the noble and learned Lord the Lord Chief Justice. We all agree that this is the right approach.

Lord Lester of Herne Hill: My Lords, I thank the noble and learned Lord the Lord Chancellor and Secretary of State for that careful, considered and helpful reply. This is not the first occasion on which the present Home Secretary has made an instant and angry attack on a judicial decision without, of course, the judge having any opportunity to reply. He did so in an asylum case early last year. If the noble and learned Lord has further discussions with the Home Secretary, will he bring home to him, in addition to the helpful formula about which he told us, how harmful it is to the rule of law to make such attacks? Would he look favourably on an amendment to Clause 1 of his Constitutional Reform Bill to make it clear that his duty and that of any successor will be not only to guarantee judicial independence but to secure and maintain the rule of law?

Lord Falconer of Thoroton: My Lords, I think that the line that must be drawn is between legitimate disagreement, which is plainly permissible even for the Government, as long as it is measured, and something that is intemperate and undermines the rule of law. In the light of remarks that have been made, I have closely considered the detail and am quite satisfied that my right honourable friend was measured in what he said. One must be careful to distinguish what he said from what else was said about the issue by other people. As far as I am concerned, he was measured in his response.

Lord Ackner: My Lords, should we not take comfort, however small, from the fact that the Home Secretary seems, if he is correctly reported, to wish to have access to the courts—the Court of Appeal in particular—rather than seeking to oust the jurisdiction of that court, as was attempted in Clause 14 of the recent Bill?

Lord Falconer of Thoroton: My Lords, it is important to stress two things. In all my right honourable friend's remarks, he has made it absolutely clear that the court that made the decision is a superior court of record and we have, as a matter of legislation, decided that it should make the decision. We fully accept that. He quite legitimately raises the issue of whether there should be appeal to a higher court, and that can be considered by this House by way of amendment to a Bill currently before the House. I believe that to be a responsible approach, because it is permissible, as long as it is done in a temperate way, to disagree with the decisions of the court.

Lord Borrie: My Lords, does my noble and learned friend recall that my noble and learned friend the

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former Lord Chancellor suggested that Ministers should normally refrain from cheering those decisions of which they approve and booing those which they dislike? But would it not be a counsel of perfection to expect a Minister never to criticise a decision of the courts that seems to him to frustrate the policy for which he is responsible to Parliament and to the people? Surely, that is nothing to do with any attack on the rule of law, as suggested by the noble Lord, Lord Lester.

Lord Falconer of Thoroton: My Lords, I agree with the broad approach proposed by my noble friend Lord Borrie. In the case that we are talking about, quite legitimately, the Home Office made submissions which the court was quite entitled to reject. It is obvious from that that the Home Office took a particular view, but it fully accepts that the decision is ultimately for the courts. It inherently disagrees with the approach taken, but it both accepts the authority of the court—as it must because of the rule of law—and raises the question of whether we should amend an Act of Parliament to allow an appeal. With respect, I believe that to be a perfectly legitimate response.

The Lord Bishop of Worcester: My Lords, does the noble and learned Lord agree that there is an issue here that we all need to consider? It has to do with the culture of public criticism in which we live and in which an absence of restraint has its own dangers. It is perfectly clear that people who hold privileged positions have to have regard to the fact of their position in deciding what to say. Is it not possible that if unrestrained criticism of judgments becomes fashionable, the judiciary may start to arrogate to itself the right of reply? In that case, does not the abyss open up of a society that cannot distinguish between a judgment and a political speech? Does the noble and learned Lord agree that we all have the responsibility to exercise such restraint as will prevent that from happening?

Lord Falconer of Thoroton: Yes, my Lords, I agree with what the right reverend Prelate says. As I said in my initial reply, I believe that the Government are in a wholly different position from that of other people. Private citizens are entitled to criticise judgments with less restraint than the Government. The Government have a responsibility, which my right honourable friend the Home Secretary accepts, only to disagree and not to do anything that could undermine the rule of law. That must be the approach, because the dangers identified by the right reverend Prelate plainly exist otherwise.

Lord Kingsland: My Lords, bearing in mind the importance of the principle of the separation of powers, to which the Government attach great importance in their current proposals for constitutional reform; and bearing in mind the concordat recently achieved between the noble and learned Lord the Lord Chancellor and the noble and learned Lord the Lord Chief Justice, restraining the intrusion of the judiciary into legislative and executive matters; does the noble and learned Lord not think that the time has come for him to conclude a similar concordat with the Home Secretary, restraining the Home Secretary from intruding into matters that are properly the province of the judiciary?

Lord Falconer of Thoroton: My Lords, I am glad that the noble Lord said that, because, as I said, the approach I set out, which is the right approach for the Government to take in commenting on decisions, is an approach agreed between me, my right honourable friend the Home Secretary and the noble and learned Lord the Lord Chief Justice. So there is agreement, the noble Lord will be glad to hear.


http://www.publications.parliament.uk/pa/ld199900/ldhansrd/pdvn/lds04/text/40427-07.htm

 
....Baroness Scotland of Asthal moved Amendment No. 28A:


    After Clause 17, insert the following new clause—


"SUSPECTED INTERNATIONAL TERRORIST: BAIL
(1) At the end of section 24 of the Anti-terrorism, Crime and Security Act 2001 (c. 24) (suspected international terrorist: bail by Special Immigration Appeals Commission) add—
"(4) Where the Special Immigration Appeals Commission determines an application for bail, the applicant or a person who made representations to the Commission about the application may appeal on a question of law to the appropriate appeal court.
(5) Section 7(2) and (3) of the Special Immigration Appeals Commission Act 1997 (c. 68) (appeals from Commission) shall have effect for the purposes of an appeal under subsection (4) above."
(2) In section 27(5) and (6) of the Anti-terrorism, Crime and Security Act 2001 (c. 24) (suspected international terrorist: Special Immigration Appeals Commission: procedure) for "section 25 or 26 of this Act" substitute "section 24, 25 or 26 of this Act"."

The noble Baroness said: As the Committee will be aware, under Part 4 of the Anti-terrorism, Crime and Security Act 2001 my right honourable friend has the power to issue a certificate in respect of a person if he reasonably suspects that that person is a terrorist and that his or her presence in the United Kingdom is a threat to national security. The effect of certification is that the person concerned can be detained under Immigration Act powers even though our international obligations or practical considerations mean that there is no immediate prospect of their being removed.

A person who has been certified can appeal to the Special Immigration Appeals Commission (SIAC) against that certification. Separately, a person detained as a suspected international terrorist in reliance on the powers contained in Part 4 may be released on bail.

Once SIAC has determined an appeal, there is the possibility of a further appeal on a point of law to the relevant court. In England and Wales this is the Court of Appeal; in Scotland it is the Court of Session; and in Northern Ireland it is the Court of Appeal in Northern

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Ireland. Those are also the courts that would consider appeals against determinations by SIAC in the commission's non-ATCSA cases.

When SIAC allows the appeal against certification, the certificate must be cancelled and the person concerned is released. If the appeal is dismissed, the person remains in detention. Similarly, if bail is granted, the person is released. If the application is refused, he remains detained. However, whereas there is a further right of appeal in respect of the certification decision, there is no avenue of challenge in respect of the bail decision, even though the practical effect may be the same. Given that bail can be granted, and has been granted, where SIAC has been satisfied that the person concerned has been correctly certified—that is to say, where the commission has accepted that the person concerned is a terrorist, and that he represents a risk to the national security of the UK—the Government believe that there should be a mechanism to ensure that the law is applied correctly.

Equally, although it is possible for a detainee simply to submit a further application for bail if his first application is refused, he has a right to expect that the law will be applied correctly, and the right to challenge the decision if he believes it has not.

The clause will therefore create a right of appeal, again to the relevant court, and again limited to points of law in respect of SIAC's determinations on applications for bail by persons detained under the ATCSA. I beg to move.

Baroness Carnegy of Lour: I am sure that this is an excellent amendment; I do not take issue with it. Increasingly, this Bill is drafted in terms of amendments to other statutes. The poor asylum seeker who must find his or her way through the law will find it quite impossible, even if a lawyer, to find out what are the possibilities—whether bail or anything else. Will the Government consider producing a clear document in basic English to tell people exactly what their rights are in this respect? She probably will not want to give a definitive answer now. I must not go on asking questions that the noble Baroness cannot answer. I find it very difficult to understand a Bill drafted in this way, because I do not have all the other statutes in front of me; the asylum seeker will certainly not have those statutes. Will the noble Baroness comment on that?

Lord Renton: I warmly support what my noble friend has said. We ought to enact legislation in such a way that it will not be difficult for lay people to understand. Although one agrees in principle with the amendment that the noble Baroness has moved on behalf of the Government, it is strange that it amends previous legislation that amended legislation before that. If there could be consolidation as soon as possible, this important legislation could be more easily enforced.

Lord Donaldson of Lymington: I support that most wholeheartedly. When I heard of the recent case, which attracted a certain amount of publicity, my first

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reaction was surprise that SIAC had power to grant bail. I thought that the history of the legislation was that appeals from SIAC were being confined continually, for reasons that do not matter. I had to try to work my way through all four statutes, which I found very difficult.

My next surprise was being told that the Home Secretary had no right of appeal. It appears that that was right. The Home Secretary may be surprised that I wonder in this case whether it is right that his rights of appeal and the detainee's rights should be confined to issues of law. From a public perspective, the idea of someone who has been found by SIAC to be a danger to national security being allowed out on bail—which, to the public, means free to walk the streets—is so strange that public confidence would be improved if it were open to the Court of Appeal to do what it would have done in the last case—namely, to ask, "What is the practical difference between this man being confined in Belmarsh Prison and his being under house arrest in his own home, subject to incredibly detailed and onerous conditions?" They may say that there is a difference. In that very unusual circumstance, the rule of law would be strengthened if the appeal were extended to questions of fact, notwithstanding the well-known ability of the courts to turn questions of fact into questions of law when it suits. I do not think that that should be overstrained.

I do not think that we need consolidation. Those who come along the steady road of amending previously amended Acts should revoke the whole section and insert a completely new one. That avoids having to introduce consolidated legislation.

Lord Goodhart: Unless the Minister wishes to reply to the points that have been made, I shall speak now.

Amendment No. 28A gives a right of appeal on a point of law to the losing party in a SIAC bail decision, whether the losing party is the detainee or the Home Secretary. That seems to be acceptable, though I have some reservations about going as far as the noble and learned Lord, Lord Donaldson of Lymington, in saying that it ought to be an appeal on the facts as well as on the law. I regard it as ironic that the Home Secretary, having tried to exclude judicial review of the decisions of the Immigration Appeal Tribunal, now uses this Bill to introduce an appeal procedure when it suits him to do so.

It is also regrettable that the Home Secretary chose to comment on last week's SIAC decision to grant bail, which led to this amendment. Those comments went beyond what was acceptable, in spite of the efforts to justify them made by the noble and learned Lord the Lord Chancellor about an hour ago in your Lordships' House. It could be said that following up these abusive comments with this distinctly modest amendment shows that the Home Secretary's bark is worse than his bite. That is not an adequate defence of the conduct of the Home Secretary. It is the barking, amplified by the tabloid press, that people will remember, not the absence of the bite. The Home Secretary has a bad record of not only barking, but biting, or at least trying to bite, as with the original version of Clause 14. With respect to Clause 14, will we be allowed to see the revised version before we debate it, or only afterwards?

 
Baroness Anelay of St Johns: I give full support from these Benches to the government amendments. Rather like the noble and learned Lord, Lord Donaldson, I was a little taken aback, when I first read the Home Office letter on this subject, to find that there was no right of appeal against the granting of bail. It is not a matter that causes me concern—I welcome the Government's move.

I want to consider carefully the point made by the noble and learned Lord as to whether the Government are being too narrow at this time, and grasping too little. From these Benches, I usually accuse them of grasping too much. Whether one ought to look at point of fact as well needs to be considered carefully. I agree with my noble friend Lady Carnegy that where there are such a series of substantial changes to complex legislation that affects people who are vulnerable, it is important that those changes are made as clear as possible. I am intrigued by the proposal made by the noble and learned Lord that good practice should be the withdrawal of a section and the rewriting, rather than this continual insertion of new clauses, bit by bit, to amend earlier legislation. I welcome the change, but I would welcome greater attention being paid in the future, by whoever is in government, to the clarity of presentation.

The noble Lord, Lord Goodhart, tempts us into the realms of Clause 14, which would in normal circumstances have been before us today. He is absolutely right to do so. He mentions the irony of the fact that here we have an appeal, and yet in other parts of the Bill we know that the Home Secretary was somewhat loath to have a full appeals process. Certainly, I understand that the usual channels have been in careful negotiation on this issue. I am also aware that because it is the usual channels, I must not say anything on the Floor of the Committee. I invite the Minister to tell us the latest headline news, if headlines there be.

4.15 p.m.

Baroness Scotland of Asthal: That is a temptation that I regret I must resist, for the same reason that the noble Baroness could not be tempted into commenting. The usual channels are dealing with this matter. I know that all Members of this House want us to get these amendments right, and the usual channels will be anxious to ensure that all noble Lords who need to see these amendments will get them at the earliest possible moment, as soon as we can practicably arrange for that. I hope that I can say that without being remonstrated with by the usual channels for saying too much.

The noble Baroness, Lady Carnegy, and the noble Lord, Lord Renton, will be helped by knowing that the Act that we are amending is the 2001 Act. This is available on the website, and it will be available in an amended form, so when one comes to read it, one will read it as one Act, as opposed to the different

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amendments. I know that that is important for many practitioners. I will also take away the concerns about having shorter versions of data that will tell people exactly how things work. I commend to your Lordships the "Just Ask!" website, which is a Department for Constitutional Affairs website on law. Your Lordships will know that we make every effort to ensure that clear information is provided for those who need to have it.

I will take away the comments made by the noble Baroness, Lady Carnegy, and give further consideration to the comments made by the noble and learned Lord, Lord Donaldson. It is refreshing to stand at the Dispatch Box and for once to be castigated for being too timorous, as opposed to too bold.

The Earl of Onslow: There is nothing new in this habit of amending clauses back. I originally thought that it was solely a job creation scheme for my learned friends. Would it be possible, in a case of a Bill like this, to put in notes, or something like that, what the whole clause will be as amended if it is required to be amended? Then you do not have to read. It does not have to be part of the Bill. There would be a piece of paper that says, "This is how Bill X would read when amended".

Lord Goodhart: Before the noble Baroness finishes, I was delighted to hear that the Government website will now have the 2001 Act in its amended form. Until recently, it was an enormous problem that the government website contained Acts only in their original form. I had not heard that this practice had changed. I hope that it has changed generally, and not just in relation to this Act. If so, it is an enormous step forward.

Baroness Scotland of Asthal: My Lords, I am so delighted that the noble Lord has something to commend this Government on. I thank him wholeheartedly for those congratulations.

On Question, amendment agreed to.

Lord Avebury moved Amendment No. 29:


    Before Clause 18, insert the following new clause—


"DETENTION OF CHILDREN: ASSESSMENT
(1) Section 62 of the Nationality, Immigration and Asylum Act 2002 (c. 41) (detention by the Secretary of State) shall be amended as follows.
(2) After subsection (9) insert—
"(9A) Where a detained person, within the meaning of section 147 of the Immigration and Asylum Act 1999, as amended by this section, is under the age of 18, an independent assessor appointed by the Department for Education and Skills, or the appropriate executive body in the country, must visit the detained person for as long as the person remains detained to carry out on each visit an assessment into the welfare, developmental and educational needs of the detained person.
(9B) All assessments under this section shall be guided by the principles set out in the United Nations Convention on the Rights of the Child, the Children Act 1989, the Children (Scotland) Act 1995 or the Children (Northern Ireland) Order 1995.

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(9C) Reports of the assessment shall contain advice on the compatibility of detention with the welfare of the detained person and must be sent to—
(a) the Chief Immigration Officer responsible for reviewing the detention;
(b) the detained person;
(c) the detained person's legal representative, if any.
(9D) When a Chief Immigration Officer receives a report of an assessment carried out under this section, he must review the decision to continue detention in the light of the advice contained in the assessment and send his decision on review, with the reasons for the decision, to—
(a) the independent assessor who carried out the assessment;
(b) the detained person;
(c) the detained person's legal representative, if any.""

The noble Lord said: As we have pointed out in debates on the Nationality, Immigration and Asylum Bill in 2002, the White Paper said that detention of children was to be confined to wholly exceptional circumstances, and then to the shortest possible time. The operation enforcement manual still provided up to October 2001 that families with children were to be detained only for a few days prior to removal. From then on, there were no separate criteria for the detention of families with children, and the Minister, the noble Lord, Lord Filkin, was unable to give any estimate of the number of children likely to be detained, let alone for how long.

On 31 October, at Third Reading, I mentioned the case of Jacqueline Konan, who had been detained with her small daughter Thelma already for several months by that time. She had miscarried the day that she was taken into custody, for which she received no medical attention at Harmondsworth. After that debate, I wrote 13 letters to the noble Lord, Lord Filkin, to Beverley Hughes, to MODCU, the section of the IND that was dealing with the case, and to the adjudicators who heard applications for bail. The case was dealt with in a broadcast on "Woman's Hour". In spite of those many appeals, it was not until 23 December that Ms Konan and her daughter were finally given bail. At that time, the Home Office was still opposing it. This mother and her child had spent 190 days in detention to no purpose and at great expense to the taxpayer.

I wrote to the then Minister saying that Ms Konan's case illustrated that prolonged and unnecessary periods of detention were occurring. I asked her to give me details of the length of time spent in detention by the 36 children mentioned in a Written Answer from the noble Lord, Lord Filkin, and I suggested that the Home Office make statistics available about the detention of children on a regular basis. It was impossible, I suggested, for Parliament to monitor the Government's policy of detaining as few children as possible, for as short a time as possible, without having the statistics, and, because there was no independent review of individual cases, things could and did go wrong.

On 7 October, Ms Konan finally got a new hearing before an adjudicator, represented this time by excellent counsel and instructed by the best solicitors, and on 27 October the appeal was determined in her favour. That, by the way, could not happen under the

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new legal aid regime, because the time allowed had been exhausted by the previous, incompetent solicitors. Ms Konan then went on to take proceedings against the Secretary of State for wrongful detention, and on 21 January 2004 she was awarded substantial damages in the High Court by Mr Justice Collins. In delivering his judgment Mr Justice Collins said:


    "This is a story of very poor administrative decisions . . . It is a cautionary tale since it shows that decisions of the defendant's officials and the appellant authorities can be wrong and that there is a need for judicial assessment"—

a point that we shall return to when we get to Clause 14. He continued:


    "If the possibility of judicial review had not existed, the claimants would wrongly have been returned to the Ivory Coast".

I wrote to the then Minister the following day, saying that my efforts to get Jacqueline released were obviously inadequate, but I did not know what more I could have done. What worried me was that the Minister was totally impervious to my appeals and that the important duty that we have as Members to make representations to Ministers to correct injustice could only work if Ministers gave careful and dispassionate consideration to what we had to say. In this case, the longstop of representations simply did not work. Apart from the criticism made by the judge of officials and adjudicators, the Minister too had failed in her duty to protect the weak and vulnerable from the unlawful exercise of the power to detain.

I wondered how many other Jacquelines there had been who did not have the support of Members of Parliament or of good solicitors. I had not received an answer to that letter by the time Ms Hughes left office, and I now repeat the questions to the noble Baroness who will answer this debate.

The Chief Inspector of Prisons, in her report on Dungavel Removal Centre, dated October 2002 but not published until August the following year, said that there should be an independent assessment of the welfare, developmental and educational needs of each detained child, guided by the principles set out in international and UK domestic law in relation to children. She said that this should be done as soon as possible after detention, and then repeated at regular intervals, to advise on the compatibility of detention with the welfare of the child, and to inform decisions on detention and continued detention. That is what we seek in this amendment. What the Home Office said, 14 months after the chief inspector's recommendations were originally made, was that it would ensure that the welfare and educational needs of any child detained in Dungavel for 21 days were assessed satisfactorily so that the Home Office could be assured that those needs were being met.

That is a wholly inadequate response. The assessment needed is not just for children in Dungavel but for children wherever they happen to land up in the detention estate. Oakington is now being used not only for fast-track cases but for the overspill from other detention centres, including families who have been allocated there by MODCU or DEPMU since the end of May 2003. These families are not dealt with by the

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Oakington immigration staff and they are not representable by the IAS or the RLC in spite of the fact that they are next door to them on the premises.

We know of two recent cases where single mothers and their children were detained for 143 and 114 days respectively at Oakington. Ms W, who had a seven-month-old baby, was released on temporary admission at the end of November 2003. Ms D, with a nine-year-old son, got bail on 15 December and the Home Office withdrew its "clearly unfounded claim" label. But those women are continuing to report six months later, their cases not having been resolved. Clearly neither of them was imminently removable and they did not meet the criteria for detention.

I was a member of Sub-Committee F which recently visited Oakington. We saw that there were reasonable play facilities for smaller children, but there was no education whatever and no facilities for children over 12. The Home Office is obviously reluctant to invest in those facilities at Oakington when the site is due to close in 2006. Incidentally, there seem to be no definite plans for its replacement. The Detention Services Policy Unit said, in a note circulated on 1 April, to the attendees at the detention user group meeting, that,


    "planning is under way for the future location of the NSA process".

It is a matter of serious concern to us that so little time remains for obtaining planning permission—including the possibility of an inquiry—letting the contract and finishing the construction of the new site within two years. What happens to the contract to operate Oakington when it closes? Does the existing contractor automatically assume responsibility for NSA detainees in their new location, or is that contract a new one?

The situation is complicated by the fact that Group 4 is selling the subsidiary which operates both Oakington and Yarlswood, together with two other establishments where immigration Act detainees are held. We understand that the Yarlswood site has been ruled out as a possible home for the NSA process for reasons that I find difficult to understand. Expansion of Yarlswood to its full operational capacity of 400, including families with children, is to be complete by January 2005. How many places will there be after that for children, and what does that say about the policy of keeping the numbers of children detained to the minimum possible?

At Dungavel, HM Inspectorate of Education found improved facilities on its visit of 2003, following that of the chief inspector, but it said that these facilities were acceptable only for periods of less than two weeks. It confirmed the view expressed in other reports that the detention of children should be an exceptional measure and should not, in any event, exceed a matter of days.

The Home Office did give a snapshot picture of children in detention at the end of 2003 in the quarterly RDS figures, showing that it would have been possible to do that all along. At that date, there were 10 detained children, of whom two-thirds, or 6.67, had been in custody for less than 14 days. The remaining

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3.33 children had been held for less than three months. Come on now, cannot the Home Office give the figures instead of percentages? Would the noble Baroness not think it possible for the IND to state the actual number of children? It is probably useful for those responsible for detention to know that their work will be subject to this limited and unnecessarily confusing degree of public scrutiny on a quarterly basis, but it falls a long way short of the undertakings that were given by the Minister in response to the Home Affairs Select Committee's report on asylum.

The Minister, Beverley Hughes, said in a press statement of 16 December last, that a Home Office Minister would have to authorise the detention of any child for more than 28 days. Is that happening, and will the Minister say how many times the Home Secretary has used the lock, and whether he has ever used the key instead? What progress has the Home Office made with the commitment to ensure that the educational and welfare needs of any child detained in Dungavel for 21 days are assessed, and to ensure—in consultation with the Scottish Executive—that educational provision is made for all children detained for more than just a short period?

It is two years since the Government altered their policy to allow families to be detained for longer periods. They have failed to implement the recommendations of the chief inspector, and they have ignored the repeated pleas of children's organisations, refugee bodies and Members of both Houses. They have rejected the UNHCR guidelines, which say that children should not be detained at all, and they have turned a deaf ear to repeated demands by Parliament for better oversight of children who are detained. The amendment would not solve all those problems, but it would ensure, at least, that the welfare, educational and developmental needs of all children, not just those in Dungavel, were examined by an independent assessor. I beg to move.

4.30 p.m.

Lord Hylton: I agree fully with the UNHCR's guidelines on refugee children, which state that such children should not be detained. It is, no doubt, possible to argue—it is argued—that there are sometimes exceptional circumstances existing for very short periods when such children have to be detained. One can accept that, but I was happy to add my name to the amendment because it would provide minimum safeguards, by increasing the scrutiny of the welfare of detained children.

The amendment is, as has been said, fully in line with the recommendations of HM Chief Inspector of Prisons, who inquired into Dungavel detention centre in Scotland and four other immigration detention centres. Her report was made available in April last year, so a full year has gone by since, with, as far as I know, little or no action.

We should also take note that the Bill is being considered in parallel with the Children Bill. Clause 7 of the Children Bill extends the duty to safeguard children and promote their welfare to police and

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prisons. Significantly, however, it omits extending the duty to immigration removal or detention centres. The amendment gives us a chance to do something to remedy that omission, and, for that reason, I am pleased to support it.
The Lord Bishop of Chester: We wholeheartedly concur with the careful analysis offered by the noble Lords, Lord Avebury and Lord Hylton. In all such matters, we must put the interests of the child at the centre.

Various voluntary societies that care for children have come together in the Refugee Children's Consortium, among them the Church of England Children's Society, Barnardo's and a number of other organisations. Their collective wisdom is that there must be very exceptional reasons to justify the detention of a child. It is unclear that those reasons usually exist. It is nothing short of a scandal that it happened in the Konan case, which the noble Lord, Lord Avebury, spoke about.

If it is the case that, because of the dynamics of a particular family, it is in the best interests of a child to detain that child, it is doubly important that the interests of the child are put first. As the amendment says, that would require an independent assessment of the child's needs—not simply an assessment in the department, a political entity, but an independent assessment. There are creative ways of addressing that. One thinks of the work that the education services do with Traveller children. We are light years ahead of where we used to be with children who come into schools for a short period. One can think of all sorts of things that can be done. In the exceptional conditions in which a child is detained, we must bend over backwards to do the best for that child, so that detention does not become something of a nightmare, as, I imagine, it normally would.

I hope that the Government can assure us that, in their plans and policies, the interests of the child will always come first. They should confirm that consideration of those interests will not normally—only very exceptionally—require the detention of the child. If we are to detain a child, we must bend over backwards to do what is in the best interests of the child, while we, as a society, are responsible for him or her. That is not recent wisdom; it goes back to the Old Testament. Concern for the stranger in the midst was at the heart of the ethic of a society that sought to care. Among those strangers in the midst, the children of asylum seekers must come pretty near the top of the list.

Baroness Anelay of St Johns: The noble Lords who put their names to the amendment were right to table it and give us the opportunity to press the Government on the need to assess the requirements of children in detention. I thank the Refugee Children's Consortium for its helpful briefing. I agree with the consortium that detention gives rise to a range of child protection issues and that detention can damage the physical and emotional health of children. The consortium is right to draw attention to the fact that the Bill does not

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address the concerns about children being held at immigration removal centres that were highlighted most recently in the report by Her Majesty's Inspectorate of Prisons. That report was referred to by the noble Lord, Lord Avebury.

Like other noble Lords, I noted the Home Office announcement on the assessment of children's welfare and educational needs after 21 days. That will apply only to Dungavel and will not extend to other detention centres. Have the Government reconsidered that position? Have they considered extending the assessments beyond Dungavel?

The briefing from the Refugee Children's Consortium confirms the observation made by the noble Lord, Lord Avebury, that children over the age of 12 at Oakington receive no education and that children under 12 may use the play room, where there is structured play but no formal education. It can be argued—it is, on occasion—that children should not be in detention for long and that, therefore, those problems should not arise. In a perfect world, children would be in detention for as brief a moment as possible. However, we are told by the Refugee Children's Consortium—the noble Lord, Lord Avebury, reminded us about it—that, in two recent cases, single mothers and their children were detained at Oakington for 143 days and 114 respectively. Can the Government assure us that they intend to implement the recommendation of HMIP for an independent assessment of the welfare, educational and developmental needs of each detained child? Will the Government give an assurance that implementation will apply to all centres, not just Dungavel? When will the implementation be carried out?

Baroness Carnegy of Lour: Noble Lords have probably guessed that we are talking about Dungavel because there was an almighty row in Scotland about the children there. Noble Lords may have seen some details of it in the press, I was one of those who, to an extent, defended the Government's position. The row was about not sending children to local schools. I deployed the argument locally that it was probably better for children who were in detention only for a short time that their education should take place in the centre and that they should not be shipped off to a school at which they would make friends before having to go away and leave them behind, making them even more disorientated than they would have been in any case. That was why the Government acted on Dungavel.

It is important that we pay attention to the matter and that assessments are made in the most practical way possible. It is not only a question of assessments; the children should have the right facilities. They must have them, and it is wrong not to provide them.

The right reverend Prelate talked a little as if children were being treated on their own. The children are in the centres because they should not, if possible, be separated from their parents, whom it has been necessary to detain. Apart from trying to move the

27 Apr 2004 : Column 712

parents on as quickly as possible, we must make facilities available. I hope that in her brief the noble Baroness has some detail about what has been provided at Dungavel. I hope that I did not defend her position on false premises.

Baroness Howe of Idlicote: I support the amendment. This issue has been debated on a number of occasions. Very many Members of the Committee are against the whole practice of having children in detention in whatever circumstances. I also think that children and families are among the least likely people to abscond if they are under conditions of reporting fairly frequently to a local police station or wherever. Whatever one's view of that, the United Nations Convention on the Rights of the Child and the paramount importance of doing what is in the best interests of the children must take precedence over any other considerations, except in really dire circumstances where severe danger is envisaged.

Baroness Scotland of Asthal: Perhaps I may say straight away that I understand the import of the concern and sentiment behind this new clause. However, while I share the concern that we should have due regard to the welfare of children detained with their families—in practice, we do—I cannot accept on behalf of the Government that this need is best met by what would appear to be a bureaucratic system of assessment and reviews. Not only does it seem unwieldy, but we also question whether it is necessary or workable. I take entirely into account that the noble Lord, Lord Avebury, has referred to a couple of cases where the time spent in detention has been considerable.

The present position is that the welfare of the children concerned is monitored constantly by the excellent healthcare and other staff in removal centres. Where there are concerns, those are addressed either locally or by the Immigration Service. That includes consideration of whether detention should continue in appropriate cases. Perhaps I may respectfully say that the suggested system of assessment would not help that process. In all probability, it would add an additional layer of bureaucracy.

I assure Members of the Committee that, from our figures, very few families with children are detained. The vast majority of those who are detained are held for only a very short period, most often just before removal. As the published asylum statistics show, there were just 10 individuals under 18 years old detained at 27 December 2003. Two-thirds of those had been detained for 14 days or less.

Lord Avebury: I did point out the absurdity of talking about two-thirds of 10 children. Could the noble Baroness not say whether the figure is six or seven?

4.45 p.m.

Baroness Scotland of Asthal: I cannot. The figures given to me refer to two-thirds. Members of the Committee will know that the figures are aggregated

27 Apr 2004 : Column 713

and set out in that way. As always, I shall give as much information as I have available to me. If I can obtain that figure, I shall write to the noble Lord. What is important is that the figure of those detained is low. Against that background, it is difficult to see what practical purpose would be served by an independent assessor in those cases. More than likely, the children would have been removed or released from detention before the assessor had a chance to do much if anything at all.

Of course, I note that the proposed assessment system shares some of the features as one of the recommendations made last year by Her Majesty's Chief Inspector of Prisons in relation to children detained with their families in removal centres. My right honourable friend, the former Minister of State for Citizenship, Immigration and Counter-Terrorism rejected that recommendation for much the same reasons that I am unable to accept the new clause. But she made it absolutely clear that she would look further at the issue. That remains our position.

Perhaps I may reassure noble Lords that we are not complacent about the issue. We recognise that detention, even if only for a short period, is not an ideal situation for children. No one would argue otherwise. However, we must recognise reality. While the vast majority of asylum-seeking families are not detained and live in the community, there are some cases where detention is necessary in order to maintain an effective immigration control and, in particular, to enforce the removal of those who will not leave voluntarily. That is the reality of the situation in which we find ourselves.

Nevertheless, within that context, we are keen to ensure that children's welfare is taken into account. We have indicated that we have been exploring the scope for enhancing welfare and educational assessment for children who, exceptionally, have been detained for longer periods than the norm. That remains the case. Much good work has been done already. We continue to work with local agencies in that area. For example, we are discussing arrangements with South Lanarkshire Council to conduct a welfare assessment for any child detained at Dungavel for 21 days. The outcome of such a review would inform any ministerial authorisation for detention to continue beyond 28 days.

We are just as interested as anyone in the welfare of children detained with their families. We are just as determined that any problems or concerns are identified and dealt with speedily and appropriately. That is what happens in removal centres now. We approach the issue from the position of established and developing systems, which must be sensible and workable. We must not only have the interests of the child in mind, but also take proper account of the balance that has to be struck between the need to maintain effective immigration control and the need to remove those families who have no lawful basis to stay here. The system proposed in the new clause does not fit that bill.

As regards the case of Ms Konan, referred to by the noble Lord, Lord Avebury, of course, we accept the court's view that the detention in this case was

27 Apr 2004 : Column 714

unlawful. We regret that it occurred. I say that without any hesitation. The detention procedures have been tightened up since the time of that case. The systems are in place to prevent a recurrence. That is why we have a closer and more frequent review of family-detained cases and ministerial authorisation of detention beyond 28 days. My right honourable colleague Des Browne, who is now the Minister dealing with those cases, will be asked to review the cases which go beyond 28 days.

Of course, I hear the comments made by the noble Baroness, Lady Anelay, the noble Lord, Lord Avebury, and others about family facilities at Oakington, plans to replace Oakington and ministerial authorisation for detention. At Oakington, arrangements for educational provision are being put in place. As the noble Lord said, play facilities for older children are being looked into. As yet, no final decision has been taken about what will happen to replace Oakington. But those are the issues that continue to be developed.

I hope that I have already satisfactorily dealt with the system for authorisation as regards those who stay in residence for more than 28 days. Since mid-January, all of those children have been subject to authorisation. I cannot provide precise figures about authorisation, but I will be happy to write to noble Lords. At Dungavel, as at 26 April, we have six families and 10 children, with four of school age. At Oakington, currently, we have 11 families and 14 children, with six of school age. That is a total of 17 families and 24 children, with 10 of school age.

As regards detention of families, between 27 February and 25 March 2004, 95 families were taken into detention. Of 99 other families, 69 families were removed and 30 were released. There have been 134 children removed or released. The average time that those 134 children spent in detention was 9.8 days. Members of the Committee will see that we have done a great deal of work to try to ensure that the children who are taken into detention are those who absolutely need to be taken in with their families. If they are taken in, they are taken in for the very shortest period of time possible.

We will continue to endeavour to do all that we can to make that a proper process. I hope that noble Lords will now agree with me that, bearing in mind those changes, the complicated assessment process that the amendment suggests would not fit well.

Lord Avebury: I am most grateful to all Members of the Committee who have taken part in the debate. Every speaker expressed great concern about the detention of children as a general matter and about the cases we are discussing in particular. The general sense of the Committee is that we have not done enough to minimise the number of children taken into detention or to see that their interests are properly safeguarded. I was worried by the figures that the noble Baroness gave, because they show that that number of children being detained has risen from 10 at the end of December 2003 to 24, so we appear to be detaining more children now.

27 Apr 2004 : Column 715

I asked the Minister what would be the ultimate size of the detention estate for families with children once Yarl's Wood had been extended. She was not able to give me that figure but perhaps she will write to me about it as well as the other matters left hanging in the air. She said that systems are in place to prevent recurrence of cases of the type that we cited, not just that of Jacqueline Konan, but of the two single mothers who were kept in Oakington for 114 and 143 days, as she knows.

There were systems in place at that time. There was something called Parliament and parliamentarians were writing to Ministers. Ministers cannot say that they were not seized of the fact that those women were detained for wholly excessive periods. As I told the noble Baroness, I wrote 13 times to Ministers about the case of Jacqueline Konan. I telephoned the Minster's office endlessly, but they paid no attention. So what systems can we have that would be more effective than Members of Parliament badgering Ministers' offices? The one factor that was missing in those three cases was that we did not have regular reporting from the Home Office of how many children were in detention and for how long they had been there.

One factor in the debate about which I am pleased is that the noble Baroness has seen fit to disclose the current figures, which I hope will not be a one-off. If we get a snapshot and we do not know what is happening in a week or 10 days' time, the position might be entirely different. So I hope that we can guarantee the regular reporting of the number of children in detention and for how long they have been there. In order to ensure that we obtain not only a system of assessment but also a system of reporting we shall need to return to the matter on Report.

While I accept entirely that we may not have the wording exactly right, an independent assessment of the children's needs is essential because the Home Office has manifestly failed to provide children with the necessary facilities that they require to ensure that their educational development and welfare needs are met. As the noble Baroness has just acknowledged, that has been the case in Oakington, where there is no education. There are only play facilities for small children under 12. Although she said that that will be provided at a future date, unless we have an independent monitoring system to ensure that it happens I am certain from our previous experience that we could not guarantee it.

I am grateful to the Minister for what she said, but we still find it unsatisfactory and we look forward to returning to the matter on Report. In the meantime I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 18 agreed to.

27 Apr 2004 : Column 716

Schedule 3 [Removal of Asylum Seeker to Safe Country]:

[Amendments Nos. 30 and 31 not moved.]

Baroness Anelay of St Johns moved Amendment No. 31A:


    Page 44, line 1, leave out from beginning to "as" in line 2 and insert "This Part shall not apply to a state unless the Secretary of State certifies that, in general, the assumptions in sub-paragraph (1A)(a) are true.


(1A) The assumptions are that, in so far as relevant to the question mentioned in sub-paragraph (1), the State may be treated"

The noble Baroness said: Clause 18 and Schedule 3 deal with situations where a person can be removed to a third country that is deemed safe without substantive consideration for that person's asylum claim. They replace and extend the provisions currently in Sections 11 and 12 of the Immigration and Asylum Act 1999. I have tabled the amendment to ask the Government to place on the record their response to paragraphs 11 and 12 of the twelfth report of the Delegated Powers and Regulatory Reform Committee. I am aware that although the report has been published there has been no publication of the Government's response. I hope that the Minister is now able to share it with the Committee.

Paragraphs 11 and 12 make it clear that the,


    "consequences of a state being specified in a particular Part of Schedule 3 are that certain assumptions are made by the bill about the safety of that state".

As the report points out,


    "there is no express requirement on the Secretary of State to be satisfied that those assumptions in fact apply before making an order which specifies the state".

The committee observes that,


    "section 94(5) of the 2002 Act which is amended by clause 15 of the bill and is mentioned in paragraph 15 of the Home Office's memorandum) allows a state, or part of a state, to be added to the list under section 94 only if the Secretary of State is satisfied as to certain matters (such as that there is, in general, no serious risk of persecution)."

In respect of that matter, the committee drew the House's attention to the absence of similar provision in the Bill. It makes the point that the House "will wish"—not even "may wish"—


    "to consider whether a similar express restriction should be placed on the powers to list any state in one of the three lists in Schedule 3 (for example, the Secretary of State must be satisfied that, in general, the assumptions which will be made by the listing are true)".

In response to that report from our respected committee of the House I thought it right to table Amendment No. 31A. I am grateful to the Public Bill Office for its assistance. The drafting of my amendment may be pulled apart. I hasten to add that the drafting is not of moment here; I wish to see what the Government's response is.

I tabled the amendment relatively late, last Thursday. Normally, as the Committee will be aware, I like to try to table amendments early to give all Members a full chance to consider them. The reason for the delay was simply that I wanted to see whether the Government would seek the opportunity to

27 Apr 2004 : Column 717

enlighten the Committee in respect of the amendment and others I tabled late. When I was aware that they were not going to do so, taking account of the strictures of the Delegated Powers and Regulatory Reform Committee, I jumped in and tabled the amendment. I beg to move.

Baroness Scotland of Asthal: I understand that this is a probing amendment. I make no comment about the noble Baroness's drafting; I compliment her as always on her energy in getting down anything of a fit and proper nature—which this certainly is—that allows me to answer the question that she raised. The amendment's effect is to add the requirement that the Secretary of State expressly certifies that the safety test in terms of the Refugee Convention has been made out when deciding whether to list a country at part 3 of Schedule 3.

Schedule 3 takes a differentiated approach to challenges against removal to safe third countries, an approach based in part on Section 94 of the 2002 Act. It is worth noting that part 6 of Schedule 3 ensures active parliamentary scrutiny of the decision to add a country to any of the lists. Parliament will therefore have an opportunity to debate the appropriateness of including a particular country on a list.

Although the schedule reflects the approach taken towards human rights challenges in the non-suspensive appeals—the NSA provisions set out in Section 94 of the 2002 Act—there is an important difference between the two sets of provisions. Put simply, the fact is that in this schedule we are dealing with returns to safe third countries and not countries of origin, so the provision is not and does not need to be absolutely on all fours with the approach taken in the 2002 Act. Furthermore, we consider that a general safety test is implicit and consequently we do not feel that the insertion of such a test in the manner described is absolutely necessary.

We have not as yet submitted our report to the Committee on Delegated Powers and Regulatory Reform because of the points raised by this amendment. As noble Lords will know, the directive is still being negotiated at the Justice and Home Affairs Council, which is to meet on Thursday. Of course it is our intention to try to reach agreement in relation to the amendment in accordance with that which is consistent with our domestic policy objectives.

I hope that, with my response, the noble Baroness will feel that she has had sufficient clarification about matters which I know have been of concern to her, as well as on those which she raised with my honourable friend Caroline Flint.

5 p.m.

Baroness Anelay of St Johns: I am grateful to the Minister. This clarification suggests that, "We are not giving the answer yet because . . . " rather than giving the answer itself. However, I understand the position in which the Government find themselves. Indeed, a later amendment specifically asks the Government to put on the record assurances with regard to the

27 Apr 2004 : Column 718

negotiations on the directive. Last week as a matter of courtesy I contacted the Bill team to explain the purpose of my amendments, otherwise it would not have been immediately obvious.

I am also grateful to the noble Baroness for making the distinction between the definition of types of countries; that is, the difference between countries of origin and third countries and therefore the Government's position that there can be a different assessment of whether they are safe and how much information must be included in the Bill. The noble Baroness also pointed out that Part 6 of the schedule provides for active parliamentary scrutiny on whether a country should be included on a list. I leave further comment on that to later amendments because, of course, the noble Baroness will be aware of the concerns that not all orders are subject to the affirmative resolution procedure, but are subject to negative resolution. However, I shall return to that matter at the appropriate point. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 32 to 36 not moved.]


Lord Avebury moved Amendment No. 36A:


    Page 46, line 29, after "add" insert "or remove"

The noble Lord said: Clause 18 and Schedule 3 create a new and fiendishly complicated structure of "safe country" provisions which allow a person to be removed without substantive consideration of his asylum application. The proposals now before the Committee represent what I consider to be a large extension of the powers contained in Sections 11 and 12 of the Immigration and Asylum Act 1999 and Section 94 of the Nationality, Immigration and Asylum Act 2002. There are now four sets of circumstances in which a person may be removed without a right of appeal, arranged according to the degree of confidence in their safety.

The first category is removal to states where a person is deemed to be safe vis-à-vis both the Refugee Convention and the ECHR. These are the existing and accession states of the European Union plus Norway and Iceland, which are all members of the Dublin Convention under which an asylum seeker can be sent back to the country that he arrived in first.

The second category comprises unnamed states which are deemed to be Refugee Convention safe, but not necessarily safe from refoulement to a country where a person may not be safe. For these countries, the Secretary of State will certify cases unless there is reason to think that they are not clearly unfounded.

The third category comprises another empty list, also Refugee Convention safe, but where claims based on the ECHR may be certified as clearly unfounded.

Finally, there is individual certification, which may be applied to a person who is not a national of the country to which he is being sent, if he is not at risk of being refouled and is not at risk of being persecuted there for any Refugee Convention reason.

27 Apr 2004 : Column 719

The difference between these provisions and the safe country provisions set out in the 1999 and 2002 Acts is that under previous legislation each case had to be individually certified. The certificate could then be challenged under Section 65 of the 1999 Act and Section 82(1) of the 2002 Act, although in the latter case the right had to be exercised from overseas.

As the noble and learned Lord, Lord Bingham, said in the case of Yogathas and Thangarasa:


    "The possibility of a challenge on human rights grounds is preserved by Section 65 of the 1999 Act as was no doubt necessary if that Act was to be compatible with the obligations of the UK under the Human Rights Act . . . ".

In that case it was not suggested that the state to which the person was being sent would itself violate the ECHR, but that he could be sent on to a country where his rights were likely to be violated.

To be fair, the Government are not saying that all the countries in these lists are going to maintain an impeccable human rights performance for all time. In answer to my honourable friend Mark Oaten in Standing Committee on 22 January, the then Minister said:


    "If we had evidence that a country was not operating to the letter of the human rights convention, I think that that would mean that we would consider the provisions of Part 2 of Schedule 3 and the inclusion of that country on the list".—[Official Report, Commons Standing Committee B, 22/1/04; col. 355.]

If the lapse had occurred in only one or two cases, the removal of the country from the list might be an extreme remedy, but the Secretary of State has no power to downgrade a state from list 1 to list 2 or 3, where affirmative resolution certification would be necessary. Unfortunately, while the option of taking the country off the list altogether was set out in the original Bill, it was taken out in Committee for reasons that were not made clear. Perhaps the Minister can give an explanation for that when she comes to reply. Our amendment seeks to restore the power and I hope that the Government will accept the idea in principle, although I acknowledge that the wording needs to be tidied up.

Only 15 years ago the A8 countries were all communist dictatorships, and three of the western European EU states were fascist dictatorships during the post-war era. In the future, other countries will join the EU and will automatically be added to the first list, even though their human rights past may have been appalling. This clause gives no flexibility in the treatment of states in an enlarged Europe which do not continue to maintain the standards we have set, which I am sure is a mistake. I beg to move.

Baroness Anelay of St Johns: It may be appropriate for me to speak to the amendment grouped with this one tabled in my name, Amendment No. 36AA. As an aside, I remind the Committee that earlier we were teasing the noble Baroness about whether she could give us any news on what was happening in the usual channels. I have just been handed a draft of amendments to Clause 14, so I suspect that there will now be a flurry of activity on the part of noble Lords.

27 Apr 2004 : Column 720

The Minister seems to think that she does not have a copy of the amendments. However, they are tabled in her name. I am glad to know that she has an alter ego who has been active. At first glance, it appears that these amendments cover the substantive matters that we had hoped to deal with today but which were delayed to allow the Government time for further consideration.

I turn to the matter in hand, Amendment No. 36AA. The effect of the amendment would be to make all orders affirmative, both those that remove countries from the safe list as well as those that add them, As I mentioned, I have given the Government notice of the reason behind my tabling of these amendments.

What will be the impact on the United Kingdom Government's ability to amend safe country lists of the proposed directive on minimum standards of procedures in member states for granting and withdrawing refugee status? Last week, EU Sub-committee E on Law and Institutions put questions on this directive to the Minister, Caroline Flint, in advance of the Justice and Home Affairs Council, to which the Minister referred, which sits on 29–30 April. If the directive is adopted, would Her Majesty's Government be able to designate any country they choose as safe without any reference to the terms of the directive? Would Her Majesty's Government be able to remove any country from the safe list without any reference to the directive? In other words, will Her Majesty's Government have complete freedom of action in those designations?

The reason I ask these questions is that when Caroline Flint was giving answers she was directed to two articles in the directive, which is under negotiation at present. Article 30A states that the Council may, acting upon a proposal from the Commission, adopt a minimum common list of third countries that shall be regarded as safe countries of origin by member states. It also provides that the Council may amend that list by adding or removing names of states.

The difficulty arises when one looks at Article 30B, which starts off by making it look as though the member states can go their own way in listing safe countries if they wish. That would be all right. But paragraph 2 goes on to restrict that freedom of action to states that do not appear on the minimum common list as safe countries of origin for the purpose of examining applications for asylum. So, if one puts Articles 30A and 30B together, does that mean that we are bound in this country to adopt the minimum common list, whatever it says?

Baroness Scotland of Asthal: I shall deal first with the amendment of the noble Lord, Lord Avebury, Amendment No. 36A, before turning to Amendment No. 36AA.

I should like to begin by drawing the Committee's attention to the provisions in Part 6 of the schedule which provide the order-making powers to add a state to the lists at Parts 2, 3 and 4 by an order subject to the affirmative resolution procedure. These provisions ensure that the inclusion of a country on any list will be

27 Apr 2004 : Column 721

subject to active parliamentary scrutiny. Part 6 of the schedule provides for the removal of a state from the lists at Parts 3 and 4 by order subject to annulment by resolution of either House of Parliament.

Turning to Amendment No. 36A, we do not consider it necessary to provide a similar order-making power in relation to the removal of a state from the list at Part 2. I should reiterate that we intend that the list at Part 2 should be limited to European Union member states which are party to the Dublin arrangements for determining the state responsible for examining an asylum application, and other states, such as Norway and Iceland, which are associated with those arrangements.

I hear what the noble Lord, Lord Avebury, says about new states which may join the Union, but he will remember that all new states seeking to join will still have to comply with the acquis in order to be accepted. In the very unlikely event that such a state deteriorated to a point where it no longer generally met the tests set out in Part 2, we would consider bringing forward new primary legislation to recognise that. This would also apply should any agreements between the Community and other states associating them with the Dublin arrangements be terminated or renounced.

5.15 p.m.

The Earl of Onslow: In 1967, Greece was a functioning, squabbling, shrieking democracy when along came a bunch of colonels who kicked out the democrats. I am not saying that that will happen in any of the new Balkan states or Turkey if, peradventure, it should join, but there will always be that risk. Should we not have a quicker method than primary legislation to deal with the problem that the noble Lord, Lord Avebury, has shown could theoretically exist?

Baroness Scotland of Asthal: I of course recognise the noble Lord's anxiety about that. However, he should bear in mind that the deterioration of a member state would be a considerable issue for all other member states. It would be a very serious issue and, in order to act in this way against a fellow member state, primary legislation would be necessary.

Of course, if there were an emergency, it is possible for the parliamentary procedure to be accelerated to meet it. But we hope that that will not be necessary. We are keeping such legislation in reserve for a situation which may very well either never occur or occur in extremis.

As to the issues raised by the noble Baroness, Lady Anelay, in her amendment, member states will have the ability to designate safe countries of origin and will have to consider those countries which are in the EU list as safe. However, as countries of origin, there will always be case by case consideration of asylum applications. The provisions of Articles 30A and 30B of the directive do not deal with third countries.

I reiterate what I said earlier: the directive has not yet been finalised. We wish to ensure that it is compatible with our policy objectives and we will negotiate to that end.

27 Apr 2004 : Column 722

Amendment No. 36A seeks to extend the affirmative resolution procedure to the removal of states from the lists at Parts 3 and 4—countries not subject to the Dublin arrangements. We do not agree that any decision that the Government might take to remove a state from these lists should require the approval of both Houses of Parliament in the same manner as we consider appropriate for the addition of a country, which is a matter of greater importance. The approach that we have taken with regard to the amendment of the lists of countries not subject to the Dublin arrangements is consistent with that taken generally within legislation, such as the non-suspensive appeals provisions in the 2002 Act.

I hope that the noble Baroness and the noble Lord are content with that explanation and will not pursue their amendments.

Lord Avebury: I am grateful to the Minister for the explanation that she has given and for drawing our attention to the provisions in Part 6 of the schedule. I had appreciated that the power to remove countries from the lists at Parts 2 and 3 existed and that that power did not extend to the Part 1 list. The whole point of the amendment was that we should treat these countries in a uniform manner.

Although I accept the Minister's argument that we are looking at a very remote contingency in a European Union country, we should consider other countries which are not members at present. We are not legislating only for the next year or two; we hope, presumably, that once the Bill becomes an Act it will still be on the statute book when the next wave of accessions occurs.

We are looking at a very large community of 27 or 28 nations and the Minister is saying that the eventuality that one of them will become undemocratic is so remote that we do not need to take account of that in the Bill. On the other hand, she is saying that the countries on the second list, which are equally democratic—otherwise we would not apply the procedure to them—are obviously going to be more likely to drop out of being democratic and to become dictatorships. If that were not the case, there would be no point in differentiating between the two lists or in saying that we will have an order-making power to cross off those that are not members of the European Union, but, having joined the European Union, those states are so extremely unlikely to revert back to dictatorship or repression that we do not need an equivalent power.

I personally cannot see the logic in that, but we have obviously not succeeded in persuading the Minister that there should be a uniform approach. We shall have to take the matter away and consider, before we come to another stage, whether we want to pursue it further. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 36AA not moved.]

Schedule 3 agreed to.

Clause 19 agreed to.

27 Apr 2004 : Column 723

Clause 20 [Deportation or removal: cooperation]:

Lord McNally moved Amendment No. 36B:


    Page 19, line 14, at beginning insert "Subject to subsection (1A),"

The noble Lord said: Noble Lords will see from the groupings list that the amendments relating to Clause 20 are split into three separate groups. At a late hour last night, when replying, the Minister reminded us that she had an Exocet in her weaponry, in that she always had a 15 or 20-minute reply ready for every group of amendments. Therefore, faced with that challenge, I had a hard look at the next group of amendments. I believe that it would help the Committee to have a more coherent debate and keep at least two of those Exocets in their boxes, if I spoke now to all five amendments covering the clause—Amendments Nos. 36B to 36F. I sent billets doux to the Minister and the noble Baroness, Lady Anelay, and both said that they thought it would be an appropriate course of action.

The Explanatory Notes state:


    "Clause 20 creates a new offence of failing to comply, without reasonable excuse, with steps that the Secretary of State may require someone to take so as to enable their deportation or removal from the United Kingdom".

As a number of commentators have said, that represents a considerable extension of powers on behalf of the Government. Concern has been expressed that the clause is drafted in dangerously wide, generalised and all-embracing terms. Failure to comply may lead to prosecution and up to 12 months' imprisonment. Such a serious offence should not be framed so widely as to give immigration officers such enormous discretion to bring prosecutions without clearer interpretation or safeguards in the Bill or in published guidelines.

We believe that much clearer definitions of the specific actions requiring the co-operation of persons are needed. They should include special details of the type of information required; the process and forms referred to; the protection required in relation to personal data processing and recording; the nature and scope of interviews; the circumstances when contacts with other governments and states may reasonably be required; and guidance to immigration officers in the conduct of interviews and decisions to refer for prosecution.

There is particular concern whether data protection in those circumstances is fully compliant with the European Convention on Human Rights. There has also been special concern expressed to us about how the clause will affect children. The decision to start returning under-18s and the proposal in Clause 20 to prosecute them for failure to comply with the removal process increases the urgency to provide special guidance for those adjudicating on children's cases.

In short, the complaints that the amendments seek to remedy are that the clause is too broad in its description of the offence, is loose in terms of data protection, and prompts grave concerns about the breaching of confidentiality, with the prospect of

27 Apr 2004 : Column 724

people being returned to a country that may not be safe for them, where information may then be used against them. There are other concerns about how children are to be handled, and a very real concern about the impropriety of compelling documentation before the final resolution of an asylum claim or appeal.

I hope that the Minister does not think that because we have concertinaed these matters together, we are in any way casual about any of those issues. The clause represents an important and a large extension of powers, and we believe that the amendments that we have suggested put a necessary limit on those powers without denying the Government all the extensions that they require for an effective return of people whom they wish to remove from the country. I beg to move.

Baroness Scotland of Asthal: I thank the noble Lord, Lord McNally, for his billet doux, which was gratefully received. He has not been in the least bit casual in his explanation of the amendments. I shall try to give as comprehensive an answer as I can, because I understand the noble Lord's worries. I understand, too, that Amendments Nos. 36B and 36C would mean that we would not require, with the prospect of criminal sanction, a person to take certain steps with a view to obtaining a travel document if he or she had an outstanding asylum or human rights application or outstanding appeal.

The offence is all about encouraging people to co-operate with the process of redocumentation so that they may be returned home. Our aim is not to imprison people. The offence is aimed at stopping people from being obstructive. Only in the most extreme circumstances would we want to prosecute people; clearly we would far rather remove them.

Our starting point is that we want to remove people with no basis to stay in the United Kingdom as soon as we can; in most cases, that will be after their appeal rights have been exhausted, but in some cases removal is lawfully possible before that stage—in the case of NSAs, for example.

When someone arrives in the United Kingdom without a passport, they cannot be removed until a travel document is obtained on their behalf. A country will issue it only if it is satisfied of both the true identity and nationality of the person concerned. As I am sure noble Lords know, different countries have different requirements, but most require the co-operation of the person concerned; for example, in providing biometric data, information about friends and family, or even attending an interview. It is a lengthy process and we want to start it as soon as we can.

If a person does not co-operate with the provision of this information or provides information that is false or incomplete, a travel document is unlikely to be issued and the person may not be removed from the United Kingdom, potentially indefinitely. So there is a strong incentive for non-compliance. The provision refers to taking specified action only if the Secretary of State believes that that action will enable a travel

27 Apr 2004 : Column 725

document which will facilitate the person's removal from the United Kingdom to be obtained. That is made clear by subsection (1).

We would therefore not usually require actions to be taken with the prospect of criminal action until after an initial decision has been made. For those with asylum appeals outstanding, we believe that many of the listed actions are ones that we can reasonably expect a person to take. It is rare for a person to be required to attend an interview at an embassy at this stage but, if we do require this, we make it clear to the person that he is not required to answer any questions relating to any asylum application that he may have made.

The offence provided for by Clause 20 is committed if a person fails to take action without a reasonable excuse. Thus we would be unlikely to prosecute those who had a reasonable excuse for not undertaking the actions required. This should ensure that someone who may have been requested to do something that in his particular circumstances could be deemed to be too restrictive would not have committed the offence. Restricting this offence would, we believe, mean that some of its efficacy would be lost. As the Committee will know, obstructing redocumentation is a serious barrier to removal and undermines immigration control, so we need to be robust about the measures to combat it.

Amendment No. 36D seeks to specify what should normally be considered a reasonable excuse for failure to co-operate with an interview or other information gathering procedure. First and foremost, we do not consider this offence to be the type of offence for which it is appropriate to include a list of reasonable excuses of which people could avail themselves. It is for the prosecution to prove that the person did not take the step and does not have a reasonable excuse for failing to do so. It is something better left to the circumstances of each individual case and eventually to the courts to decide whether or not it has been made out.

There are no means of determining what the minimum level of information required for identification or redocumentation, or both, would be. The purpose of the interviews to which the amendment refers is satisfactorily to establish identity and citizenship or nationality. Requirements will vary from country to country and with each individual. As a result the type and depth of information required is judged on the details of each individual case.

In relation to the verbal notice, we do not currently give verbal notice of the timing and purpose of any redocumentation interviews that a person may be required to attend to establish identity and nationality or citizenship with a view to issuing a travel document that will facilitate his deportation or removal from the United Kingdom. Knowledge of the nature of questions to be asked at the interview is not crucial since the person attending will know its general purpose and what he is there to do. Where, for example, a person is asked at such an interview to provide written material of which they were not

27 Apr 2004 : Column 726

forewarned it would be reasonable for that person not to hand them over then but to provide them after the interview once they had had the chance to obtain them.

I turn to Amendment No. 36E, which seeks to limit the actions that a person can be required by the Secretary of State to take for the purposes of this clause to the eight actions specified in subsection (2). We think that such an amendment is unnecessary because it would hamper the effective use of the provisions of this clause in the future. There is no way that we would seek to ask for a blank cheque to be given to the executive and we do not think that this provides one. As I have explained, subsection (1) limits the scope of the clause and any specified action not covered by subsection (2) could be requested for the purposes of this clause by the Secretary of State only where it was consistent with the scope.

Amendment No. 36F would require statutory guidance, subject to the affirmative order procedure. We think that this amendment is unnecessary. Several of the actions listed are not ones for which detailed guidance, let alone detailed statutory guidance, is appropriate; for example, completing a form accurately and completely, attending an interview and answering questions accurately and completely or making an appointment. These are very basic matters for which we think that guidance would not be helpful. These are the sort of requirements that are susceptible to a common-sense assessment.

Where a person is not complying with a process that we consider he should be complying with, our efforts will go first and foremost into persuading the person to comply. So there is no risk of someone being landed with a criminal charge out of the blue. We will make clear to him what we expect to be done and the consequences of failing to do it. If a person is charged with this offence, it will be for the prosecution to prove in the usual way that he has failed to take the action required. The prosecution authorities would need their own guidance for implementing this offence, as they do for other offences.

I hope that I said, "We do currently give verbal notice". There is some concern that I might have said, "We do not currently give verbal notice". If I did, I did not intend to. We do currently give verbal notice of the timing and purpose of any redocumentation interviews. It was a slip of the tongue if I did not say that earlier.

I hope that the noble Lord will feel that I have given a sufficient response to his concerns to satisfy him that the amendments that he seeks are unnecessary. However, I understand why a proper explanation in relation to these matters was sought, because they influence what is done.

5.30 p.m.

The Lord Bishop of Chester: Before the Minister sits down, can she respond to the issue concerning children that the noble Lord, Lord McNally, raised. As I understand it, this clause will create a new criminal offence that will apply to those above the age of criminal responsibility and therefore to children.

27 Apr 2004 : Column 727

There are some cases of unaccompanied children who are asylum seekers. It must be a desperate and difficult situation. I also understand that, until recently, the policy has been not to seek to repatriate such people until they are 18 but that the Home Office is now trialing some repatriations of children under the age of 18.

As things stand, a criminal offence punishable by two years' imprisonment or a fine will be inserted into that dynamic. It is difficult to imagine that there would be any circumstances in which such people would pay a fine. I wonder whether the mere existence of this threat will not unnecessarily complicate the very difficult dynamics of assessing a child with a view to repatriation. The Minister said that only in the most extreme cases would one want to prosecute but sometimes the threat of prosecution can hang in the air and colour the atmosphere. I wonder whether it would not be much better if this new offence were limited to those who are 18 or older.

Earl Russell: I am most grateful to the right reverend Prelate for making that point. I am handling a case of this sort at the moment, which has a big risk of a possible infringement of Article 8 of the European Convention on Human Rights like, I imagine, a number of these cases. It is the case of two brothers, one of whom is under age and the other of whom is of age. So one of them is in a position where he can stay and the other is not. This has the effect of separating each of them from the only surviving relation they have in the world, so far as they know. If that is not an infringement of Article 8 of the European convention I would like to know what is. Some relaxation of this policy might save the Government a good deal of legal trouble.

Baroness Scotland of Asthal: I apologise for not directly answering the question from the noble Lord, Lord McNally, about the application of Clause 20 in relation to children. I hope that I can reassure the right reverent Prelate the Bishop of Chester and the noble Earl, Lord Russell, that although we do not think that there is a need for statutory guidance, we will be publishing guidance on how Clause 20 is to be applied. That guidance will cover any issues specific to children that we think is necessary. I should emphasise that the most important aspect of this process is to gain the full co-operation of those whom we are proposing to remove so that we can make the process as humane, painless and appropriate as we can.

Lord McNally: I am particularly grateful for the intervention by the right reverend Prelate the Bishop of Chester. It is interesting to read in the brief that we received that:


    "The threat of prosecution and imprisonment proposed in this clause is in direct contradiction to the best interests principle of Article 3 of the United Nations Convention on the Rights of the Child (UNCRC), the Children Act 1989 and the Children (Scotland) Act 1995".

I thank him for his support and underlining of that concern.

27 Apr 2004 : Column 728

As always, the Minister gave a very detailed reply that we will study. One of her complaints against the amendments was that they would restrict the effectiveness of the legislation. Of course, that was the precise intention of the amendments. We and those advising us think the clause too broadly drawn. However, she gave some very interesting assurances about interpretation that we will study. We may well return to how the clause will apply to children on Report, but in the mean time I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 36C to 36F not moved.]

Clause 20 agreed to.

Clause 21 [Electronic monitoring]:

Baroness Scotland of Asthal moved Amendment No. 36G:


    Page 20, line 44, leave out "and"

The noble Baroness said: In moving the amendment, I shall speak also to Amendment No. 36H. Clause 21 provides for electronic monitoring of people who are granted temporary admission or release, or who are released on immigration bail by a variety of bodies or persons empowered to grant such bail. However, as introduced, the power would not be available where bail was granted by SIAC—the Special Immigration Appeals Commission.

SIAC's caseload raises different issues from normal immigration casework, and in most cases the person is detained because that is necessary in the interests of national security. Although electronic monitoring technology provides a means of mitigating the risk that an individual will abscond, it may be less useful where the risk is not primarily that the person will abscond if released, but that they may be involved in other activities which pose a threat to national security. For that reason, we initially took the view that the measure would be of little practical application in such cases.

We have reviewed that position in the light of events since the Bill was introduced, particularly the comments by the Newton committee following its review of the Anti-terrorism, Crime and Security Act, and the decision in principle by SIAC in January to grant bail in an individual case subject to the person concerned agreeing to be tagged. We have concluded that, although electronic monitoring may not be a solution in every case, it might be a useful tool in certain circumstances, and it was unnecessary to forgo the possibility of using it where it is considered appropriate.

As I said, SIAC decided in January to grant bail subject to the person concerned agreeing to be tagged. In so doing, it relied on the provisions of the Anti-terrorism, Crime and Security Act. However, not all the cases before SIAC relate to ATCS detainees. The amendments will make the position absolutely clear for all SIAC's cases. I beg to move.

27 Apr 2004 : Column 729

5.45 p.m.

Baroness Anelay of St Johns: I support the government amendments. When we debated the report commonly known by the name of my noble friend Lord Newton, I expressed some scepticism on the value of tagging. I subsequently had a conversation with my noble friend, who pointed out that the committee had talked more about electronic monitoring than tagging. I am therefore rather intrigued on two bases.

First, the Minister appears to talk about tagging and electronic monitoring as the same thing. Will she confirm that they can be very different? Secondly, I certainly became aware after further conversations with my noble friend that electronic monitoring could be of great use if bail were granted. All has been thrown into sharp relief as a result of last week's events. I appreciate that, where a person is under house arrest, electronic monitoring can be of great value. The Minister says that the person may not wish to or be able to abscond, but they may be able to carry out activities that are not conducive to the safety of the public of this country. Will the Minister say a little more? Is she talking about tagging and electronic monitoring separately, or does she consider them to be the same thing?

Baroness Scotland of Asthal: The noble Baroness is quite right. Electronic monitoring and electronic tagging can be different things. However, the latter is sometimes subsumed within the former. One could say that one method or species of electronic monitoring may be electronic tagging. As she knows, we greatly questioned the utility of the measure, but she is right to say that recent events have put that in sharp relief. We have taken the view that it should not be excluded. It may be of use, so it is appropriate for us to have the power for it to be used in those circumstances where it is deemed appropriate.

Earl Russell: It is a great and unexpected pleasure to be able to welcome an amendment by the Government to the Bill, or to any Bill on the subject. The conflict between the Home Secretary and the committee chaired by the noble Lord, Lord Newton of Braintree, is an important and genuinely difficult one. I have known the noble Lord since long before he first stood for president of the Oxford Union. I do not think that he has ever been accused of being a woolly minded idealist; he is a thoroughly practical person, and his words deserve attention.

Where we have the clash between the basic principles of evidence and the basic interests of national security, we have a conflict in which both sides of the case deserve a serious hearing, and in which it is therefore unwise to give automatic priority to one side over the other. To make provision for the possibility of bail in such cases is therefore a very welcome recognition that one case will not be like another, that one set of priorities will not be like another, and that the civil liberties arguments will bear a greater proportion of the weight in some cases than in others. In fact, we should treat cases on their merits, which is how they ought to be treated.

On Question, amendment agreed to.

27 Apr 2004 : Column 730

Baroness Scotland of Asthal moved Amendment No. 36H:


    Page 21, line 1, leave out "or by the Special Immigration Appeals Commission)." and insert—


"), and
(iii) bail granted by the Special Immigration Appeals Commission."

On Question, amendment agreed to.

Clause 21 agreed to.

Clause 22 agreed to.

Clause 23 [Immigration Services Commissioner: power of entry]:

Baroness Scotland of Asthal moved Amendment No. 36J:


    Page 24, line 42, leave out from beginning to end of line 4 on page 25 and insert—


"(c) a reference to material—
(i) includes material subject to legal privilege within the meaning of the Police and Criminal Evidence Act 1984 (c. 60),
(ii) does not include excluded material or special procedure material within the meaning of that Act, and
(iii) includes material whether or not it would be admissible in evidence at a trial."

The noble Baroness said: I shall speak to government Amendments Nos. 36J, 36K, 36L and 36M. Clause 23 enables the Immigration Services Commissioner, subject to obtaining a court warrant, to enter and search premises. The commissioner will then be able to seize and retain material for which the search was authorised. The current draft of Clause 23 includes the categories of "excluded" and "special procedure" material among the categories of material that the commissioner may seize. The Committee will know that concerns were raised about this issue by the Joint Committee on Human Rights. We have consulted the commissioner on the need for him to be able to seize these categories of material. We have concluded that excluded and special procedure material would not be of value to his investigations. As a result, we propose to amend the Bill to remove these categories from the list of material the commissioner may seize using this new power. I hope that will give even further pleasure to the noble Earl, Lord Russell, in relation to this matter. On that basis, I beg to move.

Lord Renton: The use of the word "material" in this or any context is rather rare in legislation. It may be my forgetfulness, but has the word "material" which is used here previously been used in a context of this kind?

Baroness Scotland of Asthal: I believe that it has. The category of excluded material will of course have included material such as personal records—those relating to a person's health, human tissue and so on. It can also be used in relation to journalistic materials. The category of special procedure material includes information acquired or created in the course of business. That is subject to a statutory restriction or undertaking of confidentiality

27 Apr 2004 : Column 731

given to a third party. I hope the noble Lord, Lord Renton, will not be disappointed to hear that it is not, I believe, the first time that it has been used in this way.

Lord Renton: I am grateful for that explanation, but I do think it would be worth while between now and Report stage for the noble Baroness, whose penetration we much admire, to have a look at precedents for this. She may be able to improve on it.

Earl Russell: The noble Baroness has given me pleasure. It is possible she might have been able to give me a little more, but she has certainly given me some.

On the word "material", I am reminded in this context of the 1558 Act for the militia which, most unwisely, specified precisely what types of weapon everybody coming to musters must bring with them. Fifty years later, every one of those weapons was obsolete. Most of the types of weapons they were supposed to produce had not been invented at the time of the previous Act.

The types of material—and I use the word advisedly— used for the purpose of committing acts of terrorism have changed quite remarkably within my own lifetime, even since I became eligible for the old age pension, which is not a very long time. So I think they needed some kind of general word of this sort.

I am worried by the power to have a general right of search on an arrest, before there is a charge, before anything has been made public, and before there is a defence. It in fact exactly repeats an argument which took place in both Houses in 1628, when it was argued that the King's taking a power to arrest on suspicion and then to search gave him a chance to arrest people against whom he had no evidence whatever and, by dint of the power of search, to create what Sir Thomas Wentworth described as "a springing offence"—one springing solely from what was discovered in a search which would, in any normal circumstances, have been illicit.

I would be very tempted, were I the commissioner, to take some person like Abu Hamza and search his possessions absolutely without the need to prove anything in advance. In fact, I would be itching to do so. However, the more a policeman is itching to exercise a certain power, the more legislators need to think twice about whether he should actually do it. I wonder whether this clause—even with this very welcome restriction—may still on occasion create mischief and, if it does, whether the mischief will or will not be balanced by any good that it might do. How, in fact, where one is measuring a justice against an injustice, does one set about creating tools of measurement? That is perhaps the most difficult question of all.

27 Apr 2004 : Column 732

When this Act is, in the normal course of events, reviewed and reconsidered, I hope that the Government will consider how exactly this clause has worked. Meanwhile, we have received a crumb from the rich man's table, for which I thank the Minister very warmly.

Baroness Scotland of Asthal: It is only for me to say that I beg to move, and to thank the noble Earl for his exposition of the 1628 position.

On Question, amendment agreed to.

Lord McNally moved Amendment No. 36JA:


    Page 25, line 7, leave out "or a justice of the peace"

The noble Lord said: I too am impressed at this outbreak of amity between my noble friend Lord Russell and the Government Front Bench. Although it cannot be recorded in Hansard, the heavens seem to be making their own comment on this strange occurrence.

This amendment has been prompted by the opinion of the Law Society of Scotland. It seeks to ensure that in Scotland a sheriff only, and not a justice of the peace, will be entitled to grant the search warrants referred to in this clause. It is the view of the Law Society of Scotland that the powers to grant warrants under Clause 23 should extend to sheriffs only. Often a justice of the peace will not be legally qualified and may be unfamiliar with the criteria needed to grant such warrants. Given that the warrants are to investigate serious offences relating to asylum claims, it is in the interests of justice that these warrants are considered and granted by the sheriff.

A similar point was made in relation to search warrants under Clause 67 of the Anti-terrorism, Crime and Security Bill, and it was accepted by the Government that the appropriate authority in Scotland would be the sheriff. The Law Society of Scotland would suggest the position under Clause 23 is analogous to that under earlier legislation and that the appropriate authority to grant these warrants is the sheriff.

It gives me particular pleasure to move the amendment, since the Minister knows full well that I am in total awe of the legal opinions of Scotland.

Lord Renton: I am glad that the noble Lord, Lord McNally, has moved this amendment because it enables one to express one's doubt, or curiosity at least, as to the use of the expression "justice of the peace" in this context at all.

I must confess that although I was born and educated in England, I am more than half Scotish, and have spent a lot of my life in Scotland. I have noticed that in Scotland not all people who are called justice of the peace ever take part in judicial work. It is a sort of compliment in many cases. Indeed, I have a brother-in-law who has never taken part in any judicial work, but nevertheless is called a justice of the peace. I wonder whether the draftsman, in drafting this subsection, had that in mind. It is a curious position, but we have to get the law right.

27 Apr 2004 : Column 733

6 p.m.

Baroness Carnegy of Lour: Justices of the peace in Scotland have functions related to road traffic arrangements and so forth and, as my noble friend said, many are honorary appointments. However, I was a little surprised to see justices of the peace being given this power because I am not aware that they ever do anything of the kind. I agree with the noble Lord, Lord McNally, and I would have thought that it was a function of the sheriff. Presumably the clause has been drafted for Scotland, so it will be interesting to hear what the Minister has to say about it.

Earl Russell: I am most pleased that the Government have thought to bring the provision into force. We have an example of why devolution was necessary. The majority of Members of the Union Parliament are not expert in the laws of Scotland. In fact, every time I open my mouth about Scottish law, I am conscious that I am giving rise to the West London question. And the West London question is quite as difficult as the West Lothian question and creates quite as many problems.

The institution of justice of the peace was introduced into Scotland by James VI, subsequently James I of England, as part of his plans to assimilate the systems of the kingdoms bit by bit towards each other. I always think of James as King Eric because he proceeded little by little. But the institution of justice of the peace in Scotland was a graft that was imperfectly successful. They never developed as they have done in England—they never had anything like the same power—and the reference to justice of the peace, which is meant to apply both sides of the Border, means two very different things one side from the other. Therefore, in this context, it can cause only confusion and I am extremely glad that the Government have thought better of it.

Baroness Scotland of Asthal: In reply to the noble Lord, Lord Renton, we recognise the position of a justice of the peace in Scotland. It is complicated and some have signing powers while others do not. Both the noble Lord, Lord Renton, and the noble Baroness, Lady Carnegy, recognised that.

However, the effect of the amendment would be to prevent a justice of the peace from issuing warrants in Scotland and reserving the responsibility solely to the sheriff. We consulted colleagues from the Scottish Executive and the Office of the Advocate General and we maintain that sheriffs and justices of the peace should have the power to issue warrants of this kind.

Justices of the peace are able to grant warrants for entry in other parts of immigration legislation and, indeed, in non-immigration legislation. We think it important to maintain consistency within the immigration legislation. The only legislation where this power is reserved for sheriffs alone deals with terrorism or firearms offences. We would not consider those issues to be analogous to the statutory responsibilities of the commissioner.

27 Apr 2004 : Column 734

I understand the concerns raised by Members of the Committee in relation to Scotland, but the difficulty is not shared with the Scottish Executive. I suppose that I, too, should declare an interest because it is my namesake.

Lord McNally: With Scotland ranged against Scotland, I shall leave it to those who prompted me to table the amendment to read the reply. In the mean time, I beg leave to withdraw it.

Amendment, by leave, withdrawn.

 

Baroness Scotland of Asthal moved Amendments Nos. 36K to 36M:


    Page 25, line 7, leave out "and"


    Page 25, line 9, leave out "whether or not it is" and insert "includes"


    Page 25, line 11, at end insert—


", and
(c) sub-paragraph (ii) of subsection (7)(c) shall be ignored."

On Question, amendments agreed to.

Clause 23, as amended, agreed to.

Clauses 24 to 26 agreed to.

Clause 27 [Fees]:

Baroness Anelay of St Johns moved Amendment No. 37:


    Page 28, line 40, at end insert—


"( ) No fee shall be prescribed using the powers conferred in this section unless the Secretary of State had first given at least three months' notice of his intentions and consulted with bodies and individuals appearing to him to represent the interests of those affected."

The noble Baroness said: In moving Amendment No. 37, I shall speak also to Amendments Nos. 38 to 40 and 40A. I tabled them in response to concern expressed by those in the education world that the Bill signals an intent to introduce charges for visa applications which will harm student recruitment, damage efforts to widen access to education and create further burdens for students who are already making great financial contributions.

We are specifically not talking here about the kind of students who hit the headlines of the tabloids as a result of the press release by the Home Secretary, Mr Blunkett, last Thursday. His press release referred to the few language schools which are accused of accrediting students who should not qualify for visas as they do not attend courses. My amendments have nothing to do with those persons. They refer to the 80,000 or more fee-paying students who contribute to our economy.

A summary of the concerns can be put as follows. It is argued, first, that the fees provided for in Clause 27 should not apply to international students or dependants; secondly, that the international student market is worth an estimated £5 billion a year to the UK economy; thirdly, that international students contribute through income tax and national insurance contributions for part-time and vacation work; and, fifthly, that there have been some negative experiences from the introduction in 2003 of immigration

27 Apr 2004 : Column 735

application charges which have failed to lead to an improved service. In short, to introduce overcharging for students would be short-sighted and would risk alienating the international student market.

The fees for extensions to and variations of leave under the 1999 Act were introduced only last summer. Students are one of the groups worst affected by the charges, despite the fact that education is one of our vital exports. Students now face the prospect of having to pay an entry tax to the Exchequer for the privilege of coming here to study.

I notice that in the order introduced in this House by the Minister last Friday, which covers the registration of those who will arrive from the A8 countries from this Saturday to work here as employees, the Government have introduced a charge of only £50 to cover administration costs. The Minister then made the point that the registration facilities will also cover students who come to work here as well. It strikes me as an intriguing juxtaposition that while on Friday we were talking about administrative costs being £50, here we are talking about students having to pay fees at a higher rate. I wonder why there is such a great difference between the two charging levels.

I am grateful to Jo Clough, international director of the Association of Colleges, and to Dr Anil Seal, director of the Cambridge Trusts, for their briefing on these issues. Other Members of the Committee may refer to the Cambridge Trusts' briefings, so I will leave that to one side and to others to do greater justice to it than I can. I shall refer to the briefing from the Association of Colleges.

The AoC points out that further education colleges have made a significant contribution to meeting the challenging targets for international student recruitment that were set by the Prime Minister's initiative of 2000. They have already exceeded the target of £50,000 set for 2005. At the start of the Prime Minister's initiative, the Government supported the move to a more streamlined and flexible visa application process. However, the AoC is concerned that the introduction of entry fees of up to £500, and charges of between £155 and £250 for visa extensions for students, therefore creates the distinct impression that the Home Office has now departed from the Prime Minister's initiative partnership approach to international student recruitment.

That would seriously undermine all that our institutions have been doing so assiduously to meet the Prime Minister's targets and could force many potential students to look towards competitor countries, such as the United States, Canada and Australia. Can the Minister confirm that similar points were made at the October 2003 conference of Commonwealth Education Ministers, hosted by the UK in Edinburgh, where several Commonwealth Ministers strongly urged Her Majesty's Government to reconsider these recent decisions on their nationals seeking an overseas education, otherwise, they will simply go elsewhere?

27 Apr 2004 : Column 736

I turn briefly to the text of the amendments. Amendment No. 37 relates to consultation. On Second Reading, the noble and learned Lord, Lord Falconer of Thoroton, stated that Clause 27 sets out an "enabling power", but he said that,


    "the charges themselves will be phased in over a number of years, possibly at differing rates, and not without wider consultation"".—[Official Report, 15/3/04; col. 53.]

So is that an undertaking that an order will not be laid before Parliament until that wider consultation has been satisfactorily completed?

When what is now Section 5 of the Immigration and Asylum Act 1999, which provides for cost recovery charges, was in Committee in another place, the then Minister of State said:


    "We are looking for ways to encourage more students to come in . . . We shall consider proposals for students in due course, when regulations are introduced. It would be appropriate to discuss the detail of specific categories of fees, and the figures, in a debate on those regulations".—[Official Report, Special Standing Committee, 15/4/99, cols. 555–563.]

Contrary to what was said in 1999, and ignoring their own consultation protocol—there was no prior consultation or publicity—the Government introduced regulations just before the Summer Recess last year, which of course is the worst possible time for students. It is important to try to avoid repeating that mix-up by ensuring that proper notice is given of the timing of the introduction of new charges, and that no regulations or orders are made without advance consultation.

Amendment No. 38 would ensure that fees in excess of the actual cost of determining the application would not be charged to students and others mentioned in my amendment, or their dependants. It is mainly a probing amendment to discover how the Government intend the provisions to affect students and their dependants.

Amendment No. 39 raises the point that students are the group most likely to have to make multiple applications in order to complete a programme of studies here, because of the way in which the system operates. Amendment No. 40 ensures that errors can be rectified.

When the 1999 Act was first considered in this House, an amendment to Section 5 was considered that no fee should be charged if an application was made necessary by a mistake of the Secretary of State or his agents. The then Minister, now Lord Chancellor, the noble and learned Lord, Lord Falconer of Thoroton, promised:


    "We shall ensure that when fee regulations are made, appropriate provision is made to deal with errors which may occur".—[Official Report, 12/7/99, col. 49]

It later became clear that the Act had been drafted to preclude the making of such provision under the regulations. I hope that the Minister will be able to put that right. We want the Home Office to consider being able to waive fees where applications are necessary only to correct mistakes. That is the purpose of Amendment No. 40.

Amendment No. 40A is on a slightly different tack, but I thought it was right to table the amendments all together. It has been put down to ask the Government whether they intend to accept the recommendation of

27 Apr 2004 : Column 737

the Delegated Powers and Regulatory Reform Committee in paragraph 6 of its twelfth report. It states that Clause 27 is a significant extension of existing powers and that:


    "Where power is conferred to prescribe a fee payable for an application or similar process, it is normally implied that the fee relates to the cost of the service provided. But the power to include an element to 'reflect benefits that . . . are likely to accrue' gives a very wide discretion, the exercise of which could be significant in terms of policy generally and those affected in particular. We therefore recommend that fees prescribed in exercise of the new powers should be subject to affirmative procedure".

I therefore tabled this amendment rather late last week, as I said when dealing with an earlier group, when I became aware that the Government did not intend to table it themselves. I have done so simply as a probing amendment to give them the opportunity to say what their response is to the Delegated Powers and Regulatory Reform Committee, as obviously we are aware that the Government normally take those recommendations very seriously indeed. I beg to move.

6.15 p.m.

Lord Morris of Aberavon: I rise to support the spirit of the amendments introduced by the noble Baroness, Lady Anelay, Amendments Nos. 37, 38, 39, 40 and 40A. As is the custom of the House, I declare an interest as Chancellor of the University of Glamorgan, as well as honorary fellowships I am proud to hold at Caius College Cambridge and three colleges of the University of Wales.

There is a great dependence these days in our universities on attracting foreign students, and they go out of their way to go to distant parts to attend fairs. Only last week I was in Mexico City and was told of the immense efforts made there by the British Council in their fairs attracting thousands of young people to attend. Indeed, they had targets to achieve, which had been laid down to them, for what they should hope to get. They were in severe competition with the United States, Australia, and many other countries. This kind of charging regime can only put off students from coming here. In any event, if we believe in joined-up government, where does the national interest lie? Why should students from developing countries in particular not be encouraged to come here and return to contribute to their home countries?

I shall briefly refer to two reports that have come to hand, which give the bigger picture of where the national interest lies. One was launched last Tuesday by the British Council, entitled The Global Value of Education and Training Exports to the UK Economy. It has estimated the value to the United Kingdom of education export of some £10 billion, of which higher education provides some £4 billion, putting some methodological rigour behind the argument that international students in the UK should not suffer a further charge for the benefit of UK services, since they already contribute enormously to the economy.

There is a second report to which I shall briefly refer, Vision 2020, an important forecast of international student mobility. It concludes that demand for places

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in English-speaking universities will soar, that the number of international students in the UK is likely at least to double by 2020, and that the great majority of the demand will come from Asia, particularly China. It is inevitable, certainly in the view of Cambridge University, that such students will be put off coming to the UK by high financial barriers and that the Bill will do the UK no favours by allowing for such charges to be levied.

 

Lord Lewis of Newnham: I declare an interest as the chairman of the Cambridge Commonwealth Trust and of the Cambridge Overseas Trust. The trusts sponsor approximately 2,000 of the 4,500 overseas postgraduate students in Cambridge, so they have substantial involvement.

Before I discuss the details of the amendment, I ask the Minister to comment on the degree of consultation that has taken place with the higher education sector. That undertaking was made when the topic was aired initially by the noble Lord, Lord Wallace, and the noble Baroness, Lady Sharp, in Starred Questions. It is important to know exactly what information we have in that direction.

As has been said by the noble Baroness, Lady Anelay, the changes suggested in the Bill surely are inconsistent with the Prime Minister's recently declared initiative to encourage more students from overseas to study in Britain. The initiative has been taken up by the British Council, which is developing a policy to support that view in establishing Education UK as a world-leading brand. An announcement was made last week, and a position has been given in today's Times, which I shall quote, on exactly what has been happening in this area. It shows that the UK has the second-biggest share of the global market, falling just behind the USA for postgraduate students. I know that figures always differ when one talks about finance, but the figure given is that the share is worth up to £11 billion directly with a further £12 billion indirectly. That probably covers students other than those at postgraduate level.

I have little doubt that the extra cost of visa fees would fall either on government funding of overseas students or on charitable sponsors. In the case of the Cambridge trusts, if the fee were set at £200, which is the sort of figure that has been mentioned, that would involve approximately half a million pounds extra. That could be paid only at the expense of other postgraduate awards. I have little doubt that students would then go elsewhere. It is very important to recognise that much research, certainly in science and engineering in Cambridge, is very dependent on postgraduate students. At present, they comprise approximately two-thirds of the workforce. I am sure that this proposal would influence that resource significantly.

There are 35,000 international students undertaking research in British universities. It is anticipated that that figure will double by 2020. However, as is evident from the present situation in the US, where the fee structure has now changed, the number of applicants has dropped significantly. I cannot talk about the

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overall number but only about departments. In Chemistry, for example, numbers have dropped by as much as 50 per cent of the initial figures. Obviously, that means that there is high sensitivity to how visas are used.

There is a major problem with the present arrangements for issuing or extending a visa. Any student making a direct application must visit one of four centres—at Croydon, Birmingham, Liverpool and Glasgow. At present, Cambridge students tend to attend the Croydon centre, which has involved very long waiting times. We are told of queues starting at 6 a.m., which means that students must get to the centre by that time from somewhere such as Cambridge. Obviously, that involves considerable difficulty with travel arrangements. That position must be even more acute for less well-placed universities; for instance, those in the south west. As suggested by Oliver Letwin, the former Shadow Home Secretary, could not something be done to return to the efficient scheme of the past, using regional centres liaising directly with universities to deal with the more straightforward cases of visa renewal? I am sure that that would reduce considerably the problems experienced by students, who are not necessarily in a highly mobile position.

It is important to recognise that in taking overseas students we are educating the elite of many other nations. Exposing them to the British culture and values will influence their approach, not only in the immediate future, but in the long term, and certainly from a business point of view.

Earl Russell: I am grateful to the noble Baroness, Lady Anelay of St Johns, for introducing these valuable amendments. I agree with practically everything that she and the noble Lord, Lord Lewis of Newnham, have said. However, the noble Baroness, Lady Anelay, said one thing with which I did not agree. She said that fees were normally levied to meet administrative costs and match them. In the past that has been true, but in a period when one is dominated by a low taxation philosophy, it ceases to be true. It ceased to be true in the period roughly from 1590 to 1620, and during my lifetime.

The first case of which I know—although I am sure that it was not the first—in which it was applied during my lifetime was about 12 years ago, for photographic copies from the Public Record Office. As the policy of relying on fees for general taxation always does, it diverts the anger from the government on to those who must collect the fees. As I once said of Queen Elizabeth I, she left her officials to collect the unpopularity. In the Public Record Office, that had created such feeling that employees stuck up beside the photocopying machine a Hansard extract of an Answer to a Starred Question in this House by Lord Hailsham of St. Marylebone, the then Lord Chancellor, in which he admitted frankly that photocopying charges had been fixed, not to cover the costs of photocopying, but to meet the general expenses of running the Public Record Office. Increasingly, I am forming the

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suspicion that one of the big objections to a low taxation philosophy is that it costs the average taxpayer in one way and another a great deal more than meeting the costs out of taxation. This is such an example.

Although the whole Committee knows that I am constantly concerned with the financial hardship of students, we are dealing with almost the only group in the British Isles capable of making students look rich. To ask for relief from these fees for students only is to create an artificially privileged class where there is no justification for work. It is an uncommon experience for students, and it might be nice for them to enjoy it just once in a blue moon, but it would be a little tough on the others.

We heard yesterday about applicants who had become victims of Clause 55 and left destitute. We were reminded that a number of their applications were in the end successful; their cases were found to be perfectly good, even though the applications were submitted late. The Home Office by now ought to have absorbed, although clearly it has not, the principle that in-country applications and late applications are just as likely to be good and successful as those made at the courts—in fact, on balance, over the years, slightly more so.

I do not see, when someone has become a victim of Clause 55 and has been left destitute, out of what he is to pay the fee. If he must pay the fee to get asylum, he will have been given a judgment that he has a perfectly valid right to asylum and will not be able to take it up. He may be returned to his own country, when the court has recognised that he has a right to remain here. That is the most unfortunate consequence of the policy of using fees as a method of taxation. Asylum seekers subject to the clause, once they recognise that they are being taxed, are perfectly entitled to say, "No taxation without representation". Once they have citizenship, they earn British income and they pay British taxes. Then they can pay fees; but to charge them fees while denying them all means of income seems unreasonable in the extreme. I can see that it may satisfy some particular form of Whitehall theology; but I cannot see it working in the real world.

That is why we on these Benches have gone for deleting the whole clause altogether. We think that it is an unjust policy, impractically pursued, but if we cannot have the whole loaf, the noble Baroness, Lady Anelay, has found a particularly appetising little bit of the crust. We would certainly rather settle for that than for nothing. I am grateful to her for moving the amendment.

6.30 p.m.

Lord Wilson of Tillyorn: I join the voices of those who support these amendments, whether they are crust, crumb or whole loaf. In doing so, I declare an interest, first as the master of a Cambridge college, and secondly as chancellor of one of the ancient universities of Scotland.

There have been several references already to the Prime Minister's initiative in 1999. At that time, I was a member of the board of trustees of the British

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Council. I remember thinking that the objective put forward by the Prime Minister, of increases in the number of students from outside the European Union of 50,000 in higher education, and 25,000 in further education, by 2005, was wildly overoptimistic. However, as has been said this evening, that objective has already been achieved, thanks to a huge amount of effort from government departments, including the Foreign Office, and the British Council.

For me, the most striking figures in those increases are ones in which I happen to take a close personal interest; that is the increase in the number of students coming here from mainland China. In 1999, at the time of the Prime Minister's initiative, there were 6,050 students coming to the UK from mainland China. In 2002–03, the last year for which there are figures, the number was 31,900. Similarly, there have been increases in the numbers coming from Hong Kong—some 1,600—and from Taiwan—some 1,300. In fact, as I walk round the streets of Cambridge and listen to people talking, my impression is that, apart from English spoken in a variety of different forms, the most common language spoken in the streets of Cambridge is Chinese, either Mandarin or Cantonese.

The essence of the whole thing is not just China. As others have said, is it a good thing or a bad thing to increase the numbers of students coming here from overseas? Is it in the national interest to encourage that or not? For all the reasons that have already been stated by a number of noble Lords, I come down firmly on the side of those who think that it is very much in our national interest to encourage overseas students to come here. We benefit from talented graduate research students, as my noble friend Lord Lewis has just said. We benefit financially to a high degree, as noble Lords have said. Speaking from the point of view of a small college in Cambridge, we benefit from the mix of people that we have coming to the college from all over the world.

Finally, as has already been suggested, we benefit from the fact that—we hope—when those people go home they have enjoyed their time in the United Kingdom and they are lifelong friends of this country. Surely those things are good and should be encouraged. I share the view of those noble Lords who have said that charging fees—particularly if there is no clear limit on what those fees should be—on things like visas for overseas students to come here, is bound to be a deterrent. It is bound to be a deterrent in an atmosphere when other countries are extremely competitive in this field: Australia; New Zealand; Canada; and those continental European countries that are increasingly using English as a language of instruction.

We are in a very competitive market. If we are in that competitive market, and if it is in our national interest to encourage overseas students to come here, we should be putting out a mat with a welcome sign on it, and not pulling down a portcullis, whether a Westminster portcullis or any other form.

Baroness O'Neill of Bengarve: I will speak to these amendments, but I will confine my comments to the amendment that is not specifically concerned with

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students. In Amendment No. 40, the noble Baroness, Lady Anelay, has proposed that provision be made for the possibility of refunding fees in those cases where there is error, maladministration, loss of papers and the like. Clearly, that does not apply only to students. My experience in this area arises out of the fact that, as head of a Cambridge college, and in other academic contexts, I have frequently had to deal with the visa problems not only of our overseas students, but of our overseas academic visitors at every stage of their career.

It has been a humiliating experience. Whatever the background citizenship, whether it be eastern Europe, or New Zealand or Australia, there has been an excessive experience of delay; of discourtesy; of lost papers; of being summoned to Lunar House in Croydon and queuing from 6.00 a.m. through the day and not seeing anyone; of not being told the name of the officer dealing with the papers; and finally, of lost passports. Original documents must be sent, and when they are mislaid and no account is given, people are unable to attend to their normal academic business. They cannot attend conferences overseas, and they cannot attend job interviews overseas. They are in the most appalling position. I wish that I could say that this is uncommon, but my experience has been that it is not at all uncommon.

As other methods for improving the efficiency of Lunar House, and possibly other parts of the system, have not worked—I speak only of Lunar House because my repeated experiences have been of Lunar House—perhaps there should be a system of fines, by which there was a need to refund not merely the fee, but possibly the damages incurred when people cannot attend job interviews elsewhere, and cannot go home and must support themselves for additional periods in this country. These are serious matters, and Clause 40 needs particular consideration.

I emphasise that noble Lords who have stressed the economic opportunity that we have in this area have not pointed to one feature of that opportunity. The United States is in the business of cracking down on the issue of student visas—and I know about that at first hand also because we send students overseas—in a way that is time consuming, expensive, and difficult to get right. I suspect that the United States will damage its overseas recruitment in consequence, and that is an opportunity for us, if we could but get it right.

The Earl of Sandwich: I will not repeat anything that has been ably said on behalf of the universities, but I will make one additional point. One of my noble friends mentioned that we are supporting an elite in the developing world. There is a common perception that we are aiding students who have very wealthy parents, and giving them opportunities. I am speaking of students from the Middle East, Singapore, or Hong Kong. It is not like that. As we know from recent government Answers, student backgrounds are widely spread. My noble friend Lord Wilson spoke of the UK gaining many more students from China than before.

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We must be careful that this Bill does not discriminate against African countries and those from more deprived backgrounds.

The Lord Bishop of Liverpool: I support the amendments. I declare an interest as co-president of Liverpool Hope University College and also as chairman of the council of Wycliffe Hall in Oxford. I make one simple point to strengthen the amendment. In our academic institutions in this country, we are at the forefront of interfaith dialogue. It would be a great pity if these measures should alienate potential students, who would benefit enormously from participating in the interfaith dialogue in our universities and colleges, at a time when the world needs to have people with skill and insight in this very important area of conversations between the different faith communities at an international as well as a local level. I support the amendments of the noble Baroness, Lady Anelay.

Baroness Carnegy of Lour: This is a very strange clause. There seems to have been a great lapse in joined-up government. The Government and the Scottish Executive are extremely keen to help fill the enormous gap in funding in universities by bringing in a lot of overseas students; they do it for financial reasons as well as for all the other reasons that noble Lords gave. In many countries—notably, I think, in the Far East—it is very often governments who fund students, particularly undergraduate students. Vast numbers come to Scotland; the whole movement of overseas students is extremely important in Scotland. Those governments will notice when it is more expensive for students to get visas here than it is in some other countries; they will go elsewhere. There is no question about that.

I will not reiterate anything that has been said; we have had some fairly powerful speeches and I am sure that the noble Baroness has been listening to them with a lot of interest and perhaps been shivering a little in her shoes. I would just say that when the Delegated Powers and Regulatory Reform Committee, of which I am a member, considered this matter it appreciated that the raising of fees—above that which was justified by inflation and the costs of administration—would be a very sensitive matter politically. It is not only in this House that this kind of thing causes what in Scotland is called a stishie; I expect I will have to spell that. This stishie is from the universities, but there will be very strong political feeling throughout the country, and it will be reflected in the House of Commons.

That is why the Delegated Powers and Regulatory Reform Committee said that it would be better if the matter were properly debated under the affirmative resolution procedure. The noble Baroness will, I hope, tell us that she will table an amendment to that effect. If she does not, we should certainly impose it upon her in this House.

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Earl Russell: If the Minister will permit me, I think I may have unintentionally misled the Committee. I spoke, giving an impression that there was a general fee for anyone being granted asylum. That is not the case. Since I did not mean to say it, I should make clear that it is not true. Under Clause 27(2), fees are payable under the British Nationality Act for applications for leave to remain, and that in particular may concern a lot of people who are subject to Section 55; under Sections 10 and 122 of the Nationality, Immigration and Asylum Act, for entitlement to right of abode and fees for work permits. It is not all asylum seekers, but it goes a long way beyond students.

I am very grateful to the noble Baroness, Lady O'Neill, for saying what she did about the effect of retention of documents. I have come across far more cases than I care to remember, and it was high time that that was put into the parliamentary record. I also remember the deterrent effect of queuing for a US visa when I was going the other way. I could have written a substantial article in the time I spent doing that, and I sometimes wish I had.

6.45 p.m.

Baroness Scotland of Asthal: I say to the noble Earl that I of course accept his amendment; I would otherwise have to have gently pointed out to him that on this rare occasion he had perhaps not fully understood the position.

The Government very much understand the import of the comments made by a number of noble Lords about the importance of students. I agree wholeheartedly with what was said by the noble Lord, Lord Wilson, about the change that has been brought about as a result of the Prime Minister's initiative. We do not believe that these provisions will undermine that. It is important to remember, further to what the noble Lord, Lord Wilson, said, that the initiative has been an overall success. I understand that in higher education there were 109,940 students in 1996–97; by 2001–02, there were 142,350 students. During that time in further education numbers rose from 25,102 to 47,995, so we are moving towards the 2005 targets with a high degree of success.

I also agree with the comments that were made about the importance of not having disincentives for students, especially poor students, as mentioned by the noble Earl, Lord Sandwich. He is right to say that those who come to this country as students are from a very mixed economic background. We recognise therefore the concerns that poor students may have and we do not intend this power to be a drain, or to make it hard to raise funding for scholarships and other grants. Again, we will operate this power sensibly and proportionately; we want to continue to attract the students.

In shortened version, before turning to the precise amendments of the noble Baroness, Lady Anelay, I say to the noble Baroness that the Prime Minister's initiative to encourage overseas students is maintained; that no decisions have yet been taken on how the fees will operate; and that we intend to consult and will take into account all the points made about students. We retain

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the ability to exempt or apply lower fees to students if results of consultations suggest that that is a better course of action.

Other Ministers before me have given an apology for the way in which consultation took place on the last occasion. We have done so without reservation. We understand therefore the anxiety that there has been about the lack of consultation last time; we recognise that we did not undertake sufficient consultation; we have learnt the lessons from that and our intention on this occasion is that there should be a full consultation. I hope that the noble Baroness accepts that abject apology about those matters and that we can look to the future. The noble Baroness will know that it was not intentional. There has been a whole explanation for them from the Dispatch Box as to how and why it occurred, and regrets were expressed on the last occasion.

It is right that my noble and learned friend Lord Morris raised the issue about the support and anxieties he has in this regard. I acknowledge his fine reputation as the Chancellor of the University of Glamorgan and his association with all of Wales. It is a truly important issue.

I turn to the amendments. Amendment No. 37 will require the Secretary of State to consult interested parties three months in advance of prescribing the fee under Clause 27. The principle of consultation when introducing new fees is a sound one, as I made clear, and one which the Government support. We have stated on record on a number of occasions—including during the Committee stage of the Bill in another place and at Second Reading in this House—that we will consult fully on our proposals to introduce a fee before exercising this power, backed up by a full regulatory impact assessment. We intend to launch such a consultation in the autumn of this year.

However, we do not believe that it is necessary or desirable to prescribe that in statute. If there were circumstances in which it was appropriate to make a small increase of the fee—for example, to take account of inflation, or to reduce the charges for any reason—we would be bound by an unnecessary layer of administration, which is in the interests neither of our customers nor of the taxpayer. As the clause is drafted, we have the flexibility to consult as necessary, and we are committed to doing so.

Similarly, with regard to Amendment No. 40A, although I note the concern of the Select Committee on Delegated Powers and Regulatory Reform that the clause gives a wide discretion, I assure the Committee that a range of safeguards is already in place to ensure that any fees levied under the clause are fair and proportionate and do not discriminate against or deter potential applicants. We have purposely limited the scope of the power, which applies only to applications for which a charge can be set under the statutory provisions specified in the clause. It will not apply to applications for leave to remain based on asylum or ECHR grounds. Nor will it apply to the transfer of conditions—I refer to Clause 28—or to visa or entry clearance applications made overseas in British consulates, for example by students applying for prior entry clearance abroad.

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The power will be exercised only with the express consent of the Treasury, except in respect of applications for certificates of entitlement to the right of abode under Section 1 of the Consular Fees Act 1980. The reason for this latter exception is that such fees are made by an Order in Council—that is, with the agreement of the Privy Council. It is not usual to require Treasury consent in those circumstances. I have already made the commitment to consult all interested parties before the introduction of any new fees using the power.

Amendment No. 38 would exempt specified categories of applicant from the charges. Amendment No. 39 would ensure that, if subject to such a fee, such applicants should pay only once in any 10-year period. I am sympathetic to the intention behind the amendments. It is right that the people whom we want to attract to the United Kingdom—students, healthcare providers, academics—and whom we benefit from should not be deterred from coming to this country. I reassure the noble Lords, Lord Lewis of Newnham and Lord Wilson of Tillyorn, the noble Earls, Lord Russell and Lord Sandwich, the noble Baronesses, Lady O'Neill of Bengarve and Lady Carnegy of Lour, and the right reverend Prelate the Bishop of Liverpool—all of whom raised the issue—that we have that very much in mind. However, we do not believe that we should go so far as to prescribe in primary legislation certain rather selective categories of exemptions. I note, for example, that there is no mention of teachers. I fear that many applicants would regard themselves as prospective students, if the opportunity for avoiding payment presented itself.

In fact, we already have the power to provide for exemptions, given that fees set using the power in Clause 27 will be specified in statutory instruments made under the existing fee-setting powers referred to in Clause 27. Those fee-setting powers enable the Secretary of State to make exemptions, and that ability applies equally to fees set at an above-cost level. That provides us with the flexibility to respond to changing circumstances rather than having to attempt to classify exemptions in the Bill and, I suggest, is the more appropriate place to do so, should we feel that such exemptions were necessary.

Amendment No. 39 would limit the number of times that certain categories of applicant would be required to pay. As I say, I understand the concern that applicants will be required to pay repeatedly for extensions to their leave, for example, and that such sums would be far in excess of the benefits accruing to the applicant. I assure the Committee that the intention of the clause is in no way to extort payment out of people unfairly. We will be alive to that concern in the implementation of our proposals. However, there may well be circumstances in which a person or company applies for further leave to remain or for an extension to a person's work permit, where the benefits accruing to the applicant are clear. For example, a student may complete his or her course of study, find a job in the United Kingdom and wish to switch to a work permit category. In those circumstances, it would not be unfair or unreasonable to reflect in the fee the additional benefits that the individual would enjoy.

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Amendment No. 40 would make express provision for a general discretion to waive or refund leave-to-remain fees in cases of maladministration or mistakes, delays and so on. I can understand the wish to ensure that, if an error has been made, IND customers should not have to pay for it to be rectified. We have made changes in our operations to ensure that, in clear cases of maladministration, the error is corrected without charge. If a fee has been paid, an ex gratia payment is made. The power to make an ex gratia payment in cases of maladministration exists independently of the charging legislation. There is therefore no need to make express provision for it in Section 5 of the Immigration and Asylum Act 1999.

We are putting in place a central point of contact for correcting errors and a facility to accept a single payment for multiple applications. Officials are working hard to minimise the necessity to correct errors by ensuring that those applying for entry clearance or leave to remain—for example, as students—are granted the correct leave at the outset. All claims for redress in cases of maladministration are considered in accordance with the government accounting manual and a consolatory payment framework for non-financial loss that has been agreed with the Parliamentary Ombudsman.

I hope that I have succeeded in reassuring the Committee that we will not undertake to operate the power in Clause 27 without consultation and full regard to the impact that it may have on potential applicants and other interested parties, including universities, UK businesses and local communities.

Some noble Lords spoke about the difficulties that students have experienced. The new student batch scheme has been working very well. The batch scheme was introduced to make it easier for mainly university students in a general group who are experiencing a long backlog. The scheme means that a batch of applications comes in from the university via the student adviser. The applications are kept together and returned to the student adviser within two weeks, if possible. The scheme continues to receive considerable praise, despite the problems thrown up as charging beds in. Noble Lords who are intimately connected with universities should consider that scheme and promote it. It will ease many of the problems to which the noble Baroness, Lady O'Neill of Bengarve, and others referred.

I hope that the noble Baroness, Lady Anelay of St Johns, will feel that I have said enough, albeit extremely quickly, to reassure her that all those matters and those raised by the right reverend Prelate and others have been addressed and are being considered appropriately by the Government.

Baroness Anelay of St Johns: I am very grateful for the support for my amendments. Those supporters recognised that my amendments were probing amendments and were not perfect for delivering noble Lords' objectives, which were best encapsulated by the noble and learned Lord, Lord Morris of Aberavon,

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who said that we were trying to decide where the national interest lay. We have a clear picture that it lies with ensuring that overseas students come here and contribute to our life and our economy.

In the contributions made by noble Lords, we have seen the difficulty of trying to define in legislation something that satisfies the requirements of the Committee that, while there is access to education for people from throughout the world, the Government should have sufficient flexibility to set fees for applications that may be seen to be reasonable. Noble Lords were not trying to inhibit the Government in the setting of fees. Our concerns were clearly expressed in a way that showed that we were trying not to impede the Government but to facilitate the Prime Minister's initiative and extend further the opening of the gates of our great educational institutions to students from overseas.

It has been a full debate, and it would be wrong of me to try to pick up particular parts of it. I took from what the Minister said that there were, in her remarks, undertakings with regard to full and proper consultation in future on this setting of fees. I noticed she said that there would be the publication of a full regulatory impact assessment, which would be welcome.

I also took the Minister to have given certain undertakings with regard to the introduction of safeguards in the setting of fees. I suspect that that will not be satisfactory for some, but it is important that I can go back to those who briefed me and enable all noble Lords to consider further what the Minister said. Between now and Report, we will examine carefully the undertaking that the Minister gave today to see whether it will meet the concerns. We will see whether, between now and Report, which is not too far off—it is only about three weeks away—the Government will listen further to the concerns of the Cambridge trusts, the Association of Colleges and others, when they have had a chance to consider the matters fully.

The noble Baroness referred to one particular amendment of mine; that is, with regard to errors. She said that there was a separate method of dealing with that and that there could be an ex gratia payment. I accept entirely that that is the case.

The Minister will know that in another place my right honourable friend Oliver Letwin—who, at that time, was shadow Home Secretary—made representations that there needs to be some more force with regard to being able to ensure that there is redress. I was very concerned to hear from the noble Baroness, Lady O'Neill, about the experiences of those who suffer in the system; for example, those who lose their passports and suffer damage. There is concern about what recompense should and may be available.

I am grateful to the noble Baroness who has given significant undertakings with very goodwill. With goodwill, I shall need to look further at what she has said and go back to those who have briefed me. I see that the noble Baroness may wish to add more.

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7 p.m.

Baroness Scotland of Asthal: I absolutely appreciate that I had to rattle through the answers because of timing. I should be very happy to write a comprehensive letter to all noble Lords who have spoken, which concerns all the issues that were not dealt with as fully as I should have liked because of time limits. I shall try to pick up those issues highlighted by the noble Baroness. That may help before we come back at Report stage.

Baroness Anelay of St Johns: That is a very generous offer. I am grateful to accept it. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 38 to 40A not moved.]

Clause 27 agreed to.

Clause 28 [Transfer of leave stamps]:

On Question, Whether Clause 28 shall stand part of the Bill?

Earl Russell: I think that I can deal with this briefly. Clause 28 deals with the case of a person who returns temporarily to another country and needs a stamp certifying that he has the right of abode here transferred to a new passport because the old passport is out of date.

Under the Government's proposals, that attracts a fee which is well beyond the cost of administering the stamp. We ask that it should meet only the cost of the actual application. The Government should not follow the policy of using fees as a form of taxation. If the Government want a disquisition on the difficulties that principle can cause, I could easily take up the rest of the evening on it, but I will not.

Baroness Scotland of Asthal: Of course, I hear what the noble Earl says in relation to this matter. The noble Earl knows, as I have already made clear in earlier answers, that Clause 28 amends Section 5 of the Immigration and Asylum Act 1999 which enables the Secretary of State, with the approval of the Treasury, to make regulations prescribing fees to be paid in connection with certain immigration applications. In particular, Section 5(1)(c) enables fees to be prescribed for applications for an indefinite leave stamp to be transferred into the applicant's passport or travel document as the result of the renewal or replacement of the previous passport or travel document. I think that I dealt earlier, at some length, with why we have put the fee structure as it currently is and the steps that we propose to take in relation to change.

The clause substitutes new Section 5(1)(c), which will enable fees to be prescribed for applications for limited leave stamps, as well as indefinite leave stamps, to be transferred into the applicant's passport or other document issued to the applicant where the leave stamp was previously fixed in another passport or document issued to the applicant.

The clause also replaces Section 5(5) of the 1999 Act, which defines "indefinite leave stamp". Clause 28 is unaffected by the above-cost charging provision in

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Clause 27. The fees for applications to transfer leave stamps will be set under Treasury rules to recover the full administrative cost of processing such applications and no more. Those fees will be prescribed by statutory instrument. Therefore, I hear what the noble Earl says but I still suggest that Clause 28 stand part of the Bill.

Earl Russell: Perhaps I may have it absolutely clearly that the fee will cover only the administrative cost.

Baroness Scotland of Asthal: Under Treasury rules, the fees for applications should recover the full administrative cost of processing such applications and no more.

Earl Russell: "And no more". I thank the noble Baroness very warmly indeed for that.

Clause 28 agreed to.

Clauses 29 to 32 agreed to.

Schedule 4 [Repeals]:

[Amendment No. 41 not moved.]

Lord Phillips of Sudbury moved Amendment No. 42:


    Page 47, line 41, at end insert—

"PART 2
REVOCATIONS

Title and number Extent of revocation
Community Legal Service (Scope) Order 2004 (S.I. 2004/1055) The whole regulations."

The noble Lord said: On 31 March, we had a vigorous debate in this House on the Community Legal Service (Scope) Order 2004 (S.I. 2004/1055). I think that it is fair to say that no speakers other than the Minister felt that those regulations were in the interests of justice. The effect of those regulations was to remove legal aid from the substantive asylum interview, as it is called, which is such an important part of the asylum procedure.

Two exceptions were provided for in those regulations; namely, first, an interview involving a child and, secondly, an interview involving someone with mental incapacity, although that, too, was narrowly defined. During the debate, which starts at col. 1411 of the Official Report on 31 March, the noble Lord, Lord Kingsland, and those who spoke from these Benches, all indicated that if the Government persisted with the order that night, the matter would be brought back as part of this Bill. Indeed, Amendment No. 42 revokes that order.

The importance of the substantive immigration or asylum interview is obvious. Given the recent debate, I shall not speak longer than necessary, but I need to set out the core of the argument. First, the substantive interview forms the key basis of the decision by the senior immigration officer about whether asylum would be granted. Often, that decision is literally a matter of life and death. The fact that there are quite a few bogus asylum seekers should not blind us to the many genuine cases.

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Of course, that interview being the basis of the first decision becomes the basis of any appeal from that first decision. It is that interview that will go before the adjudicator when and if an appeal is made. In considering the amendment, the issue is whether or not legal representation, given that it is expensive and given that there are limited resources for legal aid, is warranted for those substantive asylum interviews. My first point is that they are no less important than interviews in a police station. Indeed, they are frequently much more important than interviews in a police station. As we all know, those interviews are the subject of legal aid procedures whereby solicitors can represent those interviewed.

Secondly—again, I think that all noble Lords understand this—very often those people going for the interviews are traumatised, in the truest sense of the word, and, if not that, they are often disoriented. Who can be surprised? Frequently, they are inarticulate and do not speak the language or speak it inadequately. We should not forget that with the revocation of legal aid came the revocation of the right to have a translator present. I commend the work of the Refugee Legal Centre, which provides a useful briefing for the House that was summarised at column 1415 of Hansard on 31st March.

But no one will be present to check the efforts of the immigration officer who will be conducting the first interview. One has to make the point that the Government make frequently about the quality of legal representation, that often the quality of the immigration officer leaves much to be desired at the first interview. They are often young and often—how shall I put it?—do not give the would-be asylum seeker a proper chance.

With no one present to assist the asylum seeker there is no one there to improve the quality of the first interview, sort out misunderstandings, make sure that key lines of questioning are pursued and make sure that where they are pursued they are pursued fairly. If the record of the interview that goes to the senior immigration officer for the first decision is inadequate there is no one to check it, apart of course from the asylum seeker, but the asylum seeker is in many cases poorly equipped to check the satisfactory nature of that key interview.

Then there is no one to look over the record of the interview as there is, for example, with the Crown Prosecution Service, who will decide whether the fruits of police work warrant a prosecution—there is no one in an equivalent position.

I refer to the Government's position, which the Parliamentary Under-Secretary of State, David Lammy, kindly set out to me in a letter on 23rd April. He made much of the fact that there is now an induction process, as it is called. He said:


    "Briefing provided as part of the induction process familiarises asylum applicants with IND's procedures and provides detailed briefing on different aspects of the asylum process, as well as making them aware of their own obligations as an asylum seeker".

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That sounds fine and dandy, but I come back to the general situation that normally prevails of disorientation, lack of linguistic skills, lack of confidence and the rest of it. Then the induction process says about legal advice—I am reading from the script issued by the Home Office of the DVD that all those people have to watch:


    "You can seek legal advice if you want it; but the Home Office do not believe that you need legal advice to tell Asylum Casework about your reasons for claiming asylum.


    They will not postpone interviews with you so you can get legal advice or be represented".

I do not think that is an adequate or fair summary of what an asylum seeker should be told under the process. The script later states—and this is fair as far as it goes:


    "The full interview is your only chance to explain why you fear return to your own country.


    It is vital you give the interviewing officer all the information you want to be considered and is also your opportunity to provide evidence or papers to do with your application, for example—medical certificates".

That is fair enough if one is sitting in this Committee or is a professional person and has some idea of what is what in this funny world, but I put it to the Committee that as a warning to the people who have to go through those procedures about what they really entail it is not remotely sufficient. That is why we believe strongly that legal representation is not merely desirable, but essential.

The consequences of not having legal representation by legal aid is that there will be far more appeals, because if someone comes to my office and wants advice having already been the subject of an adverse initial decision, the solicitor instructed is almost bound to say, "Given that you had no one there to look after your interests, and so on, you'd better appeal". When the case goes to appeal it will take longer. That is the point made forcefully by all speakers on 31 March. If that is supposed to save the Exchequer money it will have the reverse effect because there will be more appeals and longer appeals.

I have checked that matter with an experienced adjudicator who in turn took the view of several other adjudicators. I am bound to say that he took precisely that view and said that, in addition, the adjudicators as things stand are frequently deeply unhappy with the calibre of statements that come to them from the first decision-making process and the interview preceding it.

We find the present position extremely strange and counterproductive. It is no answer to say that the representatives are inadequate. One can deal with that by having a necessary vetting process, but at the root of the inadequate representation, everyone knows—it is common knowledge in the legal profession and I am sure I do not need to tell this to the noble Baroness, Lady Scotland, who is an experienced lawyer—that the rate of remuneration for those interviews is so parlous that too often inexperienced people attend them. That must be admitted.

This is an important matter in terms of the rule of law and standards in this country. The Lord Chancellor in the Chamber today rightly said that the

27 Apr 2004 : Column 753

rule of law is paramount in this country, but that is an empty boast unless there is timely and adequate legal representation for those who need it.

I end with a final reference to the letter kindly written to me by the Minister on 23 April. We had made the point, as indeed had the noble Lord, Lord Kingsland, that the two exceptions to the removal of legal aid are wholly inadequate; for example, what about victims of torture and rape? The Minister said:


    "In relation to further categories of exceptions, such as rape or torture victims, at present, neither the DCA nor the Home Office are persuaded that victims of rape or torture (however defined) should be regarded as being in a category of vulnerable people".

What does one have to be subjected to in a foreign country in order to come here as a vulnerable person?

Although it is not the time of night to be voting, I hope that when the noble Baroness responds she has something to say on the matter to avoid a vote at the next stage. I beg to move.

7.15 p.m.

Earl Russell: We have here a case where two government desires are incompatible with each other. The Treasury, for some reason I have never understood, feels an intense hatred of the growth of legal aid; whereas if its officials were to examine it in a wider context they would find that the legal aid budget is highly cost effective and saves us a great deal of money in other ways.

But the Treasury has always been extremely resistant to the principle of taking costs net, which leads it into a good deal of error. In fact, sometimes economy can be a very expensive habit. It is not even as if that were some newfangled principle. It descends directly from the right to plead in forma pauperis—in the form of a poor person—which goes back into the mists of the Middle Ages; practically back to the beginning of legal history.

The point is to restore a degree of equality between the privileged and the underprivileged. At the same time, the Government and we on this side would like to see a shortening of the process of application for asylum. Much of the trouble is that it proceeds extremely slowly and painfully. That is overwhelmingly the result of casual errors made in the initial interview. The one from Afghanistan, described in the Home Office as a "pile of pants", is merely a caricature of something with which we are all familiar.

We see that, at present, applicants are not given the opportunity to have their statements read back to them and that they cannot bring interpreters unless they have legal aid. But when the Home Office supplies interpreters, it often provides people who speak a different dialect. Although I shall not go into the case in detail, I know of a client who was supplied with four different Kurdish interpreters. The first three were unable to speak a form of Kurdish which would enable them to understand the client. Let us suppose that someone comes from Croydon and is supplied first with an interpreter from Glasgow and then one from Newcastle. I shall not continue, but it is worse than that.

27 Apr 2004 : Column 754

By producing more errors in the first stages of the application, the Home Office is prolonging its own process. It is pickling a rod for its own back. I think that the Home Office has enough rods on its back without needing to manufacture any more. If it allowed for legal aid, proper interpreters and a check of the contents of the interview so that an agreed record was made of what had been said, that would save a great deal of everyone's time and money and would be as much in the interests of the Home Office itself as in those of the client.

The reason why this proposal has not been adopted is that it is much too sensible, which never helps.

Baroness Scotland of Asthal: I was with the noble Earl in understanding the difficulties of interpretation until he mentioned the problem of understanding those from Glasgow, Newcastle and so forth. I must confess that I have never had that difficulty, although the situation may be different in the Kurdish language.

Earl Russell: I have not forgotten an attempt to buy a ticket on a Newcastle bus. The transaction was a complete failure until someone acted as an interpreter.

Baroness Scotland of Asthal: I shall not comment because some may say that it depends on how much you get out.

Amendment No. 42 addresses a serious issue. The noble Earl made an important point about interpreters. I should say to him that we make every effort to ensure that the interpreters made available are versed in the correct dialects because we understand the difficulties that can be caused. Moreover, I understand the concern of the noble Lord, Lord Phillips, about the changes we have made. But the noble Lord will know that these changes are part of a wider package of reforms to immigration and asylum legal aid that have been introduced following concerns over the rising costs of such legal aid. They have risen from £81.3 million in 2000–01 to £174.2 million in 2002–03.

At the same time, general concerns have been expressed about the level of control over quality, duplication and waste within the asylum legal aid system. I know that the noble Lord acknowledges that there have been difficulties in relation to quality of service. We are grappling with those matters and, indeed, the professions are seeking to assist us in that effort.

It is right that too many unmeritorious claims were being made and pursued and, to be frank, there were too many suppliers of insufficient quality doing this work. Of course some brilliant lawyers were undertaking work, but that standard was not reflected by all. All that contributed to an increase in costs per case and an unsustainable level of expenditure. I know that Amendment No. 42 seeks to reverse the effect of the Community Legal Service (Scope) Regulations 2004, and I understand all the reasons that have been put forward in support.

Let me explain why the Government introduced the regulations. Previously, funding was available for a representative, usually an agent or outdoor clerk working for a legally aided organisation representing

27 Apr 2004 : Column 755

an asylum seeker, to attend the substantive interview with the Home Office. However, the Government believe that in the majority of cases this was unnecessary, that it was of no benefit to the client, and that it was a waste of public funds.

Earl Russell: I am sorry to intervene again, but the Minister said this on the last occasion. She did not give a reason. I wonder if she could explain to the Committee why she thinks that that was the case.

Baroness Scotland of Asthal: I shall be happy to do so. In the majority of cases, the role played by the person accompanying the asylum seeker was simply that of a note-taker, as they were not meant to intervene during the interview. I accept what has been said by the noble Lord, Lord Phillips. He pointed out that the reason why someone at a junior level perhaps without the skills or acuity to deal with the case went along was because the fee for attending was so low, but we do not accept that someone should be present if they are not working creatively in assisting the applicant. That is why a person should be present.

We recognise that there are important exceptions where it is right that an applicant has his or her representative at the interview. These include unaccompanied minors, applicants going through the fast-track initial decision processes, those suffering from a recognised—

Earl Russell: I rise to ask—

Baroness Scotland of Asthal: Perhaps I may finish the sentence: those suffering from a recognised and verifiable mental incapacity which makes it impractical to undergo an interview without support, applicants being interviewed at a police station or under the Police and Criminal Evidence Act 1984, or applicants alleged to pose a threat to national security should have an adviser at the interview if they so wish. I give way to the noble Earl.

Earl Russell: I am grateful to the noble Baroness and I am sorry to be persistent. She referred to "only a note-taker". Would she have been happy to make this speech with no representative of Hansard present?

Baroness Scotland of Asthal: It depends on the quality of the note-taking made by myself or others. This is a very different situation. Noble Lords know that Hansard is a document of record which is used in interpretation and is absolutely critical. Any comment made from the Dispatch Box by a government Minister in debate in your Lordships' House must be accurately reflected in the record because it may ultimately be used to interpret statute. So, as I have said, the record is critical. However, we need to be clear that what is encompassed in the initial interview is the applicant being enabled to tell their story. Perhaps I may say that I also accept that the ability of the Immigration and Nationality Department caseworker to phrase questions in an open and sympathetic way that will enable the applicant to tell their story is extremely important.

27 Apr 2004 : Column 756

However, someone who is not skilled and who simply sits in the room taking a note does not facilitate that openness. We are trying to ensure that the provision we provide is directed towards where it is needed and can have the most beneficial effect. That is why, when one looks at the work we have done to improve the standard of legal representation and the increased fees that can be paid to those who have the requisite skills—targeting excellence—this is so important. We want those seeking legal representation to have the full benefit of excellent, first-class representation so that they are given proper advice.

The Legal Services Commission has also introduced rules to ensure that in the exceptional cases referred to earlier where attendance at interview is authorised, this will be by the adviser in the case or the immigration supervisor, and not by an agent or an outdoor clerk until the accreditation scheme is compulsory. It is the skill that is necessary here.

The Legal Services Commission, the Department for Constitutional Affairs and my department have undertaken to monitor the effectiveness and success of these regulations to ensure that the non-attendance of representatives at interview in non-exceptional cases does not reduce the level of assurance or access to justice.

The regulations are compatible with rights under the European Convention on Human Rights. This amendment is therefore undesirable as the regulations have removed attendance in unnecessary cases and will help ensure quality representation in the exceptional cases. If the effect of the regulations is reversed, we will lose a significant proportion of projected savings that will enable us to ensure that legal aid is properly targeted on those genuine and complex cases where there is a real prospect of success.

The noble Lord, Lord Phillips, raised the issue of rape and torture victims not being included in the exceptions. That is not necessarily incompatible with presenting their cases. If they can show that they are suffering from a mental incapacity as a result of torture or rape, the interview will be permitted. We have said that we will monitor the effect of the regulations and we can reconsider them if it is shown to be necessary.

I have dealt already with the question of the rates being low. The rates being paid to clerks are the same rates as are paid to clerks by the Legal Service Commission as solicitors for attending at interviews.

Choices have to be made. The Government have chosen to go for excellence and proper representation at a time when that representation makes a difference. I understand the concerns, but I urge noble Lords to think very carefully about all the other measures that we have put in place to improve the situation.

7.30 p.m.

Lord Phillips of Sudbury: I am grateful to the Minister for explaining the Government's position. She will not be remotely surprised to know that I am not a happy man. She did her best with, in my view, an untenable case. She said that the Government are justified in standing their ground on the basis of

27 Apr 2004 : Column 757

excellence when the majority of cases will be excluded. The Government's own statistics indicate that under two in five cases will be eligible for legal aid on any basis. I do not need to enlarge on that.

She held out an attempted solace that persons raped or tortured may have a mental incapacity so they will be all right. But we should contemplate the majority who will not have mental incapacity: what of them? The definition of "mental incapacity" given by the Minister in his letter to me was,


    "A person who lacks the capacity in relation to a matter if, at the material time, he is unable to make a decision for himself in relation to the matter".

That is a very strong test indeed.

I shall not labour the point at this time of night. We shall have to go back to the drawing board. I hope that the Minister will allow me to come and see her so that we can discuss this matter and avoid an impasse at the next stage of the debate. As to the other points on which she inadvertently provoked me, I shall shut up, put up, withdraw the amendment and expect to see her at Report stage.

Amendment, by leave, withdrawn.

Schedule 4 agreed to.

Clause 33 [Commencement]:

Baroness Scotland of Asthal moved Amendments Nos. 43 and 44:


    Page 30, line 8, after "2" insert ", (Suspected international terrorist: bail)(2)"


    Page 30, line 9, at end insert—


"( ) Section (Suspected international terrorist: bail)(1) shall have effect in relation to determinations of the Special Immigration Appeals Commission made after the end of the period of two months beginning with the date on which this Act is passed."

The noble Baroness said: I spoke to Amendments Nos. 43 and 44 with Amendment No. 28A. I beg to move.

On Question, amendments agreed to.

Clause 33, as amended, agreed to.

Clauses 34 and 35 agreed to.

Baroness Scotland of Asthal: I beg to move that the House do now resume.

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

House resumed.