asked Her Majesty's Government:

My Lords, Scottish Natural Heritage, as the main government agency for conservation of the natural heritage, has the primary responsibility for monitoring wildlife in Scotland. It has an extensive monitoring programme which is co-ordinated with a wide range of other agencies and non-government organisations.

My Lords, I thank the Minister for that reply. I am glad that the Government are taking an interest. However, is he aware that, without an overall plan for monitoring these important factors, and without the resources, the voluntary labour that is plentifully available will be wasted? What are the Government doing about that?

The noble Lord is quite right; the voluntary sector is very important in work for the environment all over the United Kingdom. So far as monitoring is concerned, it is recognised that some aspects of wildlife monitoring are relatively well covered. That is true particularly in the case of birds. For others, such as lower plants, invertebrates, fish and mammals, the information base is less developed. The priority in many cases for species and habitats is to establish a satisfactory baseline inventory. As the noble Lord commented, one has to find out what is there in the first place before changes in levels can be monitored. As regards funding, I believe that in the region of £20 million per annum is spent in Scotland on monitoring wildlife:

My Lords, in relation to such monitoring exercises, especially of the marine environment and the conservation of salmon, to what extent does the Minister think that the north-east drift net fisheries are adversely affecting the salmon stocks in Scottish rivers?

My Lords, salmon fisheries are a very important part of industry in rural parts of Scotland. We fully recognise the value of wild salmon to Scotland's rural communities and its importance from the standpoint of natural heritage. As the noble Lord is aware, we are very concerned over drift netting, and the position is continually being looked at.

My Lords, is my noble friend aware that the scientific community, together with landowners and conservationists, are all most grateful for the Government's recent decision to extend their support for the acid rain monitoring programme for at least another year; and that we all hope that that support will continue for many years to come?

My Lords, I thank my noble friend for letting me confirm that the network is to continue. Much of this is down to my noble friend Lord Ferrers, who is unable to be with us in the Chamber today.

My Lords, is it not the case that the budget for Scottish Natural Heritage for 1996–97 has been cut from £40.3 million to £36 million? How does that tie in with the Minister's assurances that all the services will be kept up? Will he assure the House that Scottish Natural Heritage will continue to support the Joint Nature Conservation Committee?

My Lords, I thank the noble Baroness, not for all her content but for the point she makes. The commitment remains to ensure that Scottish Natural Heritage is sufficiently well funded to be able to fulfil its statutory and other obligations. Both Her Majesty's Government and SNH are absolutely certain that we shall be able to carry that out. Circumstances have changed, and it should be noted that efficiency savings are available and improvements in effectiveness are expected to follow from the implementation of the recent efficiency review and also The Way Ahead.

My Lords, will my noble friend inform the House of the large subventions made by this Government to the environmentally sensitive areas, which I believe amounted to some £66 million? Will he also comment on the fact that the Organic Aid Scheme received only £1 million?

My Lords, I am afraid I did not catch everything that my noble friend said. The environmentally sensitive areas in Scotland are very important. There are 10 such designated areas in Scotland. We continuously review and measure changes in vegetation cover and landscape features; there is also more specific monitoring of individual sites on farms and crofts in the scheme.

My Lords, has anybody monitored the population of birds of prey (raptors) since so many have become protected species, and their effect on the population of small birds, in particular songbirds?

My Lords, the noble Lady makes a very important point. The Biodiversity Action Plan takes that into account.

My Lords, the Minister will be aware that the Scottish Environmental Protection Agency and Scottish Natural Heritage are obviously doing much the same type of work in slightly different spheres. We were promised in the 1995 Bill that there would be a memorandum of agreement between the two bodies. Can the Minister say—perhaps not now; he may prefer to write to me—whether there is such a memorandum and where it can be obtained? If it has not yet been published, can he say whether it will be published soon?

My Lords, I always try to help the noble Lord but in this instance I cannot. I am afraid that I shall have to write to the noble Lord.

My Lords, did the Minister notice that yesterday fishermen were taking salmon from the River Tweed at Berwick-upon-Tweed and inserting small radios in the stomach of the salmon before putting them back in the water? If the Minister should be talking over the radio to any of those salmon, can he ask them to persuade their colleagues to swim further north up into the Scottish rivers?

My Lords, as usual, the noble Lord makes a very interesting point. As I already said to his noble friend, Scottish salmon are very important.

My Lords, in view of the number of interesting points made, would the Minister do his homework again and see that resources are given instead of being reduced?

My Lords, I am fully satisfied that resources are available, as are the rest of Her Majesty's Government and SNH. Monitoring will continue and we shall look to the safe environmental future of Scotland.

asked Her Majesty's Government:

My Lords, the three-year licensing process is supporting continuous improvement in training and enterprise councils. To be awarded a licence a TEC must meet rigorous criteria across all that it does. That includes assessment of the TEC's corporate planning and indicators of its strategic impact, a corporate programme and internal capability. Sixty-four TECs have already been awarded licences. The Government's intention is to contract only with licensed TECs after 1997.

My Lords, does the Minister agree that one of the most unsettling and worrying aspects of TECs at the moment is that their legal status is not quite clear? If Oldham TEC wins charitable status arising from its court case with the Inland Revenue, would it not make some of the activities of the TECs illegal? Perhaps equally important, would it not affect the liabilities of members of TECs? In those circumstances, is it not likely—in fact, highly probable—that some members will cease to do work for TECs?

My Lords, the noble Lord is right to draw attention to the uncertainty following the case for charitable status which involved Oldham TEC. I understand that the Inland Revenue has appealed to the High Court the decision of the special commissioners of Inland Revenue to grant Oldham TEC charitable status for tax purposes. At the moment, all I can say to him is that the department is considering with the Charity Commission and the TEC National Council the implications for TECs following that decision if the Inland Revenue fail to win at a higher court.

My Lords, is it a fact that the application for charitable status came about because the TEC in question was concerned about financial resources and felt that obtaining charitable status would improve the financial resources available? Is it also true that TECs constantly seem to have to battle with the Treasury for adequate resources? Furthermore, how do the Government deal with what appear to be varying degrees of effective performance among the different TECs? How is it intended to obtain consistency of performance?

My Lords, it is not for me to guess the motive behind Oldham TEC's decision to take this matter to the courts. On the wider question as to whether TECs are adequately funded, I do not accept what the noble Baroness said. Overall, TECs' budgets this year, 1996–97, are set to increase. That is a sign of Her Majesty's Government's confidence in TECs. Obviously, we want to make sure that all TECs perform adequately. That is why we introduced the licensing process and why we intend to continue with it.

My Lords, in view of the success of the licensing process, can the Minister say what percentage those 64 TECs represent? What help will be available to other TECs which are less likely to reach the criteria and for how long may that help go on?

My Lords, I cannot help the noble Lord with the precise percentage of those which have not been licensed. My arithmetic is not up to it at the Dispatch Box. I can assure him that 64 out of 74 TECs have already been licensed. That leaves 10 TECs waiting to be licensed by next year. Certainly, we shall offer what help we can to those 10 TECs to go down with the licence process. I hope that the TEC National Council will do the same. Certainly, we hope that all will be licensed by next year.

My Lords, does the noble Lord recall that the policy director of the TEC National Council criticised the bureaucratic procedures under which TECs have to operate? Those procedures were said to be a natural consequence of allowing technocrats, distant from the field, to design systems of operation in environments which they had not experienced and did not understand. How does the Minister respond to those strictures?

My Lords, I am aware of those criticisms. They were looked at by the Employment Select Committee in another place in its recent report on the work of TECs. But, as the committee's report emphasises, there is a balance to be struck between maintaining proper accountability in expenditure of public funds and ensuring that the detailed oversight of checks is not overly bureaucratic. The Government aim to bring greater trust and clarity into their relationship with TECs. I believe that there has already been considerable progress in that area.

My Lords, can the Minister say how many councils have so far gone bankrupt? I know of one case in south London.

My Lords, the only TEC which was forced to go into liquidation was the South Thames TEC. We believe that that was not as a result of fraudulent claims, as alleged by some, but was due to its own inadequate financial control systems. We trust that with the improved measures and licensing procedures that have been introduced that will not happen again.

My Lords, these councils are called training and enterprise councils. Can the Minister say where the enterprise comes in? What do they do that encourages enterprise? In particular, if they are encouraging enterprise and wish to go bankrupt, should not they be allowed to do so?

My Lords, the councils work at a local level in partnership to bring about and encourage economic development of their local area. They assist in driving forward national targets for education and training and also help deliver the national training and enterprise programmes of Her Majesty's Government. They are training and enterprise councils, and we believe that they do their job well.

My Lords, I do not want to press the Minister too much. However, the word "enterprise" has a definite meaning within the market mechanism and it is not about training. It involves enterprise, which is about risk-taking. That is why I should like the Minister to explain what it is that a council can do that encourages such enterprising, risk-taking activity. He has not yet given us an example.

My Lords, I shall be more than happy to arrange for the noble Lord, Lord Peston, to visit one of the training and enterprise councils. I hope the noble Lord will take me up on that offer. I can refer him to a number of good training and enterprise councils in London, or perhaps the noble Lord would like to travel further afield. It may do him good to see some of the rest of the country. I shall be more than happy to arrange that; I am sure too that the TEC involved will be more than happy to show the noble Lord exactly what it can do to encourage enterprise and training.

My Lords, the Government have been encouraging the amalgamation of TECs and chambers of commerce. However, does not the Minister agree that the present position is so uncertain that the Government should be abandoning that situation?

My Lords, I do not accept that. There is a case to be made for TECs, where appropriate, to merge with their chambers of commerce if they and their chambers of commerce believe something can be gained from that. But that is a decision for individual TECs and chambers to pursue if they believe it to he appropriate.

asked Her Majesty's Government:

My Lords, the Department of Social Security, like all other departments when considering policy changes, consults widely within government to ensure that the full implications of any such changes are properly considered. The nature of such consultation will depend on the policy change in question. Her Majesty's Treasury is fully involved in that process.

My Lords, I am grateful to the Minister for those remarks. I appreciate that he has difficulty in giving exact figures. But when the Department of Social Security says that a measure will save, for instance, £65 million, we need to understand what that means. In the Minister's Written Answer, when he said that it was not possible to quantify every potential second-order effect, was he telling me that the department takes account of some second-order effects or that it takes account of no second-order effects?

My Lords, as I have explained to the noble Earl on a number of occasions, the Department of Social Security works inside the Government and, along with our colleagues in other departments, we try to take into account those effects which may come from decisions that we are proposing to take. Sometimes those are easily quantified but on other occasions they are not, perhaps because they are behavioural and therefore difficult to work out. But we do our best and over time the noble Earl will find that on some occasions we overestimate the amount of savings that we make and on other occasions, I am happy to say, we underestimate the amount of savings we make.

My Lords, is it not clear that the savings in one department's budget can cause increased expenditure in others? Is it not important that the Minister looks at his own department—for example, in the area of social security benefits available for pregnant women to provide an adequate diet during pregnancy? Refugee women are of particular concern in that regard at the moment. Is it not clear that savings in social security benefit may increase the incidence of low birthweight babies and the highly expensive care to the NHS for neo-natal intensive care for those children? Is it not important that the overall costs are taken into account?

My Lords, that is exactly what I said when I said that we consider with other government departments what the overall implications will be. We aim, and I believe we succeed, to make sure that all our policies result in a net saving to the Government overall. Even though there may be some expenditure to another department, that expenditure will be less than the savings gained by us. Controlling the social security budget is an important issue. In relation to the incidence of low birthweight, as I explained on a previous occasion at this Dispatch Box, giving up smoking is perhaps the single most important thing mothers can do to help the birthweight of their children.

My Lords, how does the Minister's department manage to keep within the limits set down by the Chief Secretary to the Treasury if another department does not underspend when his department overspends?

My Lords, I am but a boy when it comes to answering a question like that from the noble Lord, Lord Barnett, who knows jolly well how the Treasury keeps government departments under control from the five difficult years he spent doing it in the last Labour Government. The important thing is that government departments are aware of each other's policies. They attempt to quantify any implications that fall to them. When the Government agree on a policy, all the various aspects—the pluses and minuses—are taken into account. As the noble Lord will expect me to say, the Treasury usually expects to come out on the plus side.

My Lords, the noble Lord's replies to this Question suggest that the only things that count are those that can be counted. How does the Minister arrive at the social security costs? Is research taking place to find out the costs of the changes being made? Otherwise, we are just relying on figures which have no research base behind them at all.

My Lords, I do not agree with the noble Baroness, Lady Seear, that we should not take into account the cost to the general taxpayer of social security. We must take that into account; any responsible government must take it into account, although I appreciate that members of the party to which the noble Baroness belongs do not have to worry too much about the increased cost to the taxpayer. When we look at the different decisions we must face in order to control our budget, we look carefully at the consequences of those decisions and at the various research papers on those issues that come out of universities before we arrive at our final conclusions.

My Lords, the noble Lord cannot get away with simply sneering at my party, but we will leave that on one side for the moment. He may learn some day that we have rather more say in matters than he predicts. The noble Lord did not answer my question. How do the Government find out systematically what the real costs are? The noble Lord has not yet told us that. To refer to odd papers coming from universities not commissioned for the purpose is no answer at all.

My Lords, I suggest that the noble Baroness looks at the report from the Department of Social Security which is published annually concerning the research we fund. She will see a fair body of expensive research funded directly by us in order to address the policy questions we are considering.

My Lords, what research was conducted by the department on the second-order effects of disallowment from benefit into crime rates and the catastrophic increase in the number of people in our prisons? If the noble Lord says that no such research exists, how can we make an estimate of the net results of any changes in the benefits when those increases in crime and the huge cost of building new prisons is set off against the reductions in expenditure?

My Lords, as I said, we look at all aspects of government expenditure. If the Home Office felt that something we were doing would impinge on its department, it would include the Home Office being involved in any discussions about possible repercussions on public spending. In relation to the rise in crime, I am fairly old-fashioned and take the view that badness has a lot to do with it.

My Lords, the Question asks about the cost of DSS activities for other government departments. Perhaps I may ask the Government a question about the cost of DSS activities for the DSS itself. In recent years the Government have cut DSS staff and have stopped home visits, and are now threatening to close the free benefit helpline. Does the Minister agree that at the very same time accuracy in delivering income support has deteriorated very badly indeed; from almost 95 per cent. accuracy three years ago to 78 per cent. accuracy today, an error figure of £750 million? Do the Government see any connection at all between DSS cuts in staff and the increased DSS error in paying income support?

My Lords, I think the noble Baroness is a little confused between the past and the future. We have announced that we are looking carefully at a change programme which will bring considerable savings to the Department of Social Security and result in fewer staff. Through that change programme we hope, by making the systems more efficient, to reduce mistakes, to reduce the time that is taken and to make sure that benefit goes to the people who deserve it. It is a change programme first attacked by the party opposite in the person of Mr. Chris Smith, its social security spokesman, and then approved of in a leaked letter from the Shadow Chief Secretary to the Treasury, who said that all these possible savings were perfectly feasible.

My Lords, will the Minister explain to the House why the error rate for income support has risen by nearly 20 per cent. in three years?

My Lords, I shall have to look that up to make sure that the noble Baroness is giving me a correct and accurate figure. One of the problems with income support is that it is complicated and one is very dependent on accurate information coming from the claimant. We hope to simplify the system, improve the way information comes from the claimant, and in that way reduce the number of errors. I hope I have the noble Baroness's support.

asked Her Majesty's Government:

My Lords, site clearance is under way in preparation for upgrading the A.1 to motorway standard between Alconbury and Peterborough. The scheme is one of the design, build, finance and operate contracts. The clearance is necessary for Road Management Group, which has been awarded the contract, to gain access to the site and for the consequent construction of the new road and its structures. Considerable landscaping measures are included as part of the scheme. It is proposed that some 400,000 new trees and shrubs will be planted, which will considerably enhance the existing landscape.

My Lords, I thank my noble friend for that reply. Perhaps I may remind him that 46 ecological sites are affected by this development. Is he aware that a mass of ancient hedgerows, which produce beautiful blossoms especially at this time of year, have been torn down, unnecessarily in some cases? Will he ensure that their replacements are mature enough to take root and flourish without delay?

My Lords, my noble friend is quite right. This is clearly an important ecological area. That is why such care has been taken to make sure that the environmental impact of the road is minimised and it is why such environmental and landscaping work will take place. I can also reassure my noble friend that the work will take place, will fit in and will integrate with the existing landscape. That is one of the major priorities.

My Lords, when the time comes to replant along the A.1, will the noble Viscount do his best to ensure that the same mistakes are not made as were made when the A.11 was widened from Stump Cross north-north-east towards Newmarket? There the planting was extravagantly dense, with the trees spaced less than a metre apart as opposed to the more normal 2.5 metres or so. Is not this practice expensive and wasteful both initially and when the time comes to start thinning?

My Lords, I am sure that every endeavour will be made to ensure that the planting process is not wasteful and that the end result is an improved environmental area after this major road has been built.

My Lords, does my noble friend recognise that, although the Department of Transport plants oceans of trees along roads, it generally fails to look after them, which means that the trees are wasted? Will he try to explain to the department that the most expensive and time-consuming business in tree establishment is aftercare?

My Lords, clearly the proper maintenance and care of the trees is an important factor. That has been built into the DBFO contract for the Road Management Group. It will have a duty to make sure that the trees are properly maintained.

My Lords, might not consideration be given when new roads are made to the possibility of transplanting mature hedges and trees? Given the fact that large earthmoving equipment is present, it is perfectly feasible to do so.

My Lords, I shall ensure that the noble Earl's suggestion is passed on to the Highways Agency. I should have thought that it has already considered the possibility of transplanting trees. But where that is not possible, it is right that we should plant trees—and not just trees but trees and shrubs of the same species as are already in the area—and that they should fully integrate with the existing woodland environment.

My Lords, is it not the case that until now the Department of Transport has subcontracted the care and maintenance of motorway trees to the Forestry Commission? Is that still the practice, or has something happened to change it? Can we not be confident that the Forestry Commission will do a good job?

My Lords, I am not able to advise the noble Baroness on what has happened with previous schemes. I shall find out and let her know. This scheme is rather different because it is one of the new phase of design, build, finance and operate schemes, whereby the party that has been awarded the contract not only builds the road but maintains it for a period—in this case, some 30 years. It is therefore its responsibility to maintain the trees.

My Lords, is it not important that even motorway development should blend with the local scenery and tradition instead of it becoming an incongruous contrast with it? The replanting of shrubs is much more suitable than merely growing masses of trees which may not produce blossoms and which are merely an unfortunate contrast with what has gone before.

My Lords, I could not agree with my noble friend more. It is right and proper that, where possible, the road should blend in with the existing landscape. That is why this new major development essentially follows the same road corridor as the existing A.1. A number of mitigation measures have been taken. There is a combination of trees and shrubs; and more than that, they are of the same species as those already in the area.

My Lords, I beg to move the Motion standing in my name on the Order Paper.

Moved, That a Select Committee be appointed to consider the present condition and future development of the public service in Great Britain with particular regard to the effectiveness of recent and continuing changes and their impact on standards of conduct and service in the public interest;

That, for the purposes of the Select Committee, the public service shall be deemed to exclude local government, the National Health Service, schools and institutions of higher and further education, but to include all government departments, executive agencies, non-departmental public bodies and other organisations created by or working for the public service;

That, as proposed by the Committee of Selection, the following Lords be named of the Select Committee:

• L. Brabazon of Tara,
• L. Croham,
• L. Cuckney,
• L. Gillmore of Thamesfield,
• L. Harris of Greenwich,
• L. Lane of Horsell,
• L. Merlyn-Rees,
• B. O'Cathain,
• L. Rodgers of Quarry Bank,
• B. Serota,
• L. Slynn of Hadley (Chairman),
• L. Taylor of Gryfe.

That the Committee have power to adjourn from place to place;

That the Committee have leave to report from time to time;

That the Committee have power to appoint specialist advisers; and

That the Minutes of Evidence taken before the Committee from time to time shall, if the Committee think fit, be printed and delivered out.—(The Chairman of Committees.)

My Lords, I understand that no amendments have been set down to this Bill and that no noble Lord has indicated a wish to move a manuscript amendment or to speak in Committee. Therefore, unless any noble Lord objects, I beg to move that the order of commitment be discharged.

My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.

In calling Amendment No. 15, as an amendment to Amendment No. 1, in the name of the noble Lord, Lord McIntosh of Haringey, and if it is not too far out of order to do so, I am sure that we all wish the noble Lord many happy returns of the day.

moved, as an amendment to Amendment No. 1, Amendment No.15:

Line 25, leave out from ("persecution") to end of line 27.

Although I am a keen supporter of the Government and commend them for bringing forward the new clause to replace Clause 1, the argument put forward by the noble Lord, Lord McIntosh of Haringey, is worthy of consideration. However, it is more a drafting matter than the matter of substance the noble Lord tried to indicate that it raises. "Raises" is the operative word. If Members of the Committee look at line 28 on page 2 of the new clause they will see that whereas in line 28 the word "shows" is used, in line 29—

I did not move Amendment No. 14 which was concerned with "show" and "raise". I moved, and I am speaking to, Amendment No. 15, which is not about those words.

In that case I ask the noble Lord to accept my apologies and to say that I shall come back to the matter, if necessary, when I have understood it.

I express some doubt about the amendment. It may be that additional clarification will be of some assistance. The amendment, along with others to Clause 1, substantially weakens the fast-track procedure which I regard as essential to the Bill. It is really the heart of Clause 1. The procedure is important in order to deal with abuses of our hospitality and to ensure that claims which are unlikely to be successful are dealt with as speedily as possible, thus safeguarding the position of genuine claimants. It is essential that there should be adequate safeguards in a sensitive matter of this kind.

The fast-track procedure provides those safeguards. It provides for an adjudicator who is independent. He is appointed by the Lord Chancellor, and he will consider each case on its individual merits. The procedure also provides for appeals. Unless I am mistaken in my understanding, the amendment goes a considerable way to substantially weaken the heart of Clause 1 of the Bill.

In the spirit of unity and consensus, perhaps I may begin by agreeing with the proposition advanced by the noble Lord the Chairman of Committees that the noble Lord, Lord McIntosh of Haringey, have a very happy birthday. But now, to business—although I hope that nothing that I say will detract from that proposition.

The noble Lord, Lord McIntosh, proposes to delete the last 15 words of sub-paragraph (4)(a), which is aimed at a claim which does not show a fear of persecution. Under the amendment, sub-paragraph(4)(a) would no longer specify that the persecution must be for reasons of race, religion, nationality, membership of a particular social group or political opinion. The existing text follows the wording of the 1951 convention. Moreover, asylum appeals under Section 8 of the 1993 Act are made on the grounds that the applicant's removal would be contrary to the United Kingdom's obligations under the 1951 convention. It is for those reasons that we consider that sub-paragraph (4)(a) should remain precisely aligned with the convention's criteria.

It is also right to say that nothing in this part of the Bill precludes all our obligations under other international law. If the Opposition really want to incorporate international instruments into our immigration law, they will need to make a far more radical revision of the 1793 Act. That Act provides that it is on 1951 convention grounds that an appeal is exercised under Section 8 against removal. Clause 1 relates specifically and solely to appeals on asylum grounds. It is for that reason that we believe it important to leave it as it is. The example of Colombia which the noble Lord gave a few moments ago confirms that discretion is exercised on the granting of exceptional leave for those applicants who fall outside the 1951 criteria. The question of giving legal effect to the adjudicator's recommendations is to be debated later, as the noble Lord knows, when we reach Amendment No. 48. I hope that Amendment No. 15 will not be pressed.

Perhaps I may deal with the last point first. The Minister is right to say that the example that I gave resulted in the person concerned being granted exceptional leave to remain. However, he was not granted that exceptional leave to remain thanks to the Government; he was granted it as a result of judicial review and in the face of that exceptional leave to remain being recommended by the adjudicator, but followed by a refusal from the Home Office. So I do not think that the Minister should use that example to claim credit for the Government's flexibility.

I suppose that the Minister is trying to make me happy by suggesting that I should be much more radical in my attacks on the Bill. However, I would have to be radical going back over a period of 23 years to the 1973 Act. I am not convinced that such a wholesale approach would meet with the approval of the Committee—and still less with the approval of the noble Lord, Lord Renton, if we were to use amendments to legislation now to extend the scope of the 1973 Act. I thought—I still think—I gladly give way to the Minister—

I thank the noble Lord for giving way. I think that we are both wrong. I think that I referred to the 1873 Act while the noble Lord referred to the 1973 Act, whereas we are talking about the 1993 Act.

Just to compound the confusion, the Minister actually referred to the 1793 Act. In fact, we are concerned with both the 1971 and the 1993 Acts. It was the 1971 Act which first gave statutory authority to the 1951 convention.

I am grateful for the Minister's confirmation that we take account of the United Nations Convention on Torture and of Article 3 of the European Convention on Human Rights. The Minister had better say that because that is what the Committee decided when it approved Amendment No. 3 last week. When it is printed, it will be part of the Bill that torture is to be treated as a proper reason for seeking asylum and for being granted refugee status.

I do not think that the Committee should be asked to express an opinion on this matter. I could indeed have been more radical in my attack on the Bill, but I think that the point was made by the decision taken by the Committee last week, and I beg leave to withdraw the amendment.

Amendment No. 15, as an amendment to Amendment No. 1, by leave, withdrawn.

moved, as an amendment to Amendment No. 1, Amendment No. 16:

Line 27, at end insert ("or a risk of torture or inhuman or degrading treatment").

It is important that we debate this amendment. The noble Lord, Lord Dubs, did not speak to Amendment No. 16 last week. I have with me the Hansard of that debate which I have read carefully. The noble Lord spoke specifically to the amendment proposed by the right reverend Prelate the Bishop of Liverpool. The whole debate was about Amendment No. 3. Amendment No. 16 was not mentioned until I wound up and I mentioned it simply because it was grouped with Amendment No. 3. Amendment No. 16 is, however, a free-standing amendment. It is not consequential upon Amendment No. 3 and I believe that if the Committee wants to debate it, it should do so. I certainly wish to speak to the amendment.

I acknowledge that although Amendment No. 16 was debated last week, it was the Minister who referred to it specifically rather than my noble friend. The amendments were intended to be taken together. If my noble friend had referred to it more specifically, I should have insisted that the two be taken together. In view of the fact that other amendments on torture are to be considered in relation to later clauses, I shall not press the procedural matter now, and I beg leave to withdraw the amendment.

Amendment No. 16, as an amendment to Amendment No. 1, by leave, withdrawn.

moved, as an amendment to Amendment No. 1, Amendment No. 16A:

Line 27, at end insert—

("() it does not show a fear of persecution by reason of gender").

I seek clarification on the amendment. With respect to the noble Baroness, does not the amendment extend the traditional definition under the convention of fear of persecution? If so, what practical purpose does it serve? If there is persecution, under the convention as presently defined it is immaterial whether it relates to a man or a woman. I fail to understand the position. There must be something missing from my appreciation. I cannot see what useful, practical purpose is served by the amendment. I say so with respect and in ignorance.

There is something missing from the appreciation of the noble Lord, Lord Campbell of Alloway. The noble Baroness is moving an amendment which adds "by reason of gender"; in other words, if a man or woman is persecuted for the other reasons in sub-paragraph (4)(a) that is not affected. But if a woman in particular is persecuted, not for the other reasons but by reason of gender, that is a good reason for the inclusion. To that extent, although the amendment is probably in the wrong place, I support the principle behind it.

But if he or she is persecuted by reason of gender, that person is nonetheless persecuted within the meaning of the convention. I still do not see the point.

There is growing evidence of specific forms of maltreatment of those held in detention in certain countries—I am reluctant to give the details to the Committee—which are specific to the gender of those detained. I can give some inhumane and unpleasant instances. These are forms of persecution that would not be targeted at anybody of a different gender. It is that particular group of actions against individuals that I am anxious to bring within the scope of the Bill, not because I wish to include all women—which would be ludicrous—but because there is substantial evidence of certain kinds of behaviour by states towards women specifically on the ground of gender. I am advised by lawyers who are concerned in this matter that the wording of the existing convention does not deal with those cases.

In view of the comments of the noble Baroness, Lady Williams, I believe that a very strong case has been made on this issue. I should like to put a question to my noble friend the Minister. Sub-paragraph (4)(a) includes a list of grounds on which persecution may be feared. In responding, can my noble friend say whether that is an exhaustive list or whether it is necessary to include the word "gender" to ensure that the cases properly raised by the noble Baroness are taken into account? I believe that the drafting and status of that paragraph will help the Government in deciding whether to accept, perhaps in a reworded form, the amendment moved by the noble Baroness.

My noble friend is quite right in saying that at the time of the introduction of the 1951 convention the particular forms of persecution suffered by women in many countries were not widely appreciated. She mentioned Iran in particular. I should like to expand upon that, if I may.

It is not the policy of a few rabid fundamentalists in Iran which causes women to be persecuted for not wearing a Hijab, which is the garb that covers the whole of a person's hair and leaves no part of the skin exposed except the hands. This is the policy of the mullahs' government; that is to say, the theocratic state imposed by Ayatollah Khomeini. It dictates that all women are to be dressed in a particular way on penalty of severe punishment, which may sometimes be inflicted on the spot by the religious police. It may also mean that a woman can be taken to prison and given a long sentence, or even be subject to lashes, for behaviour which is considered wrong in a woman but perfectly all right in a man. I believe that that answers the question posed by the noble Lord, Lord Campbell of Alloway.

Why should there be any specific mention of penalties that are applied to women? In states such as Iran there are forms of persecution that do not apply to men. It is not just a question of dress but a question of the status of women in the particular society: their right to employment, their entry into certain disciplines in the universities, their position under the law and their responsibilities within the family. A woman has no rights over her children in Iran. She has no right to become a judge. The head of state must be a man. Everything in the theocratic state of Iran is male-oriented and calculated to keep women in the position of second-class citizens.

In the face of that kind of discrimination, if a woman presents herself at a port of entry in the United Kingdom and claims to have been discriminated against as a woman in Iran, and to have suffered persecution by reason of her gender, I believe that it is perfectly right to grant her asylum on that basis and not stick to the letter of the 1951 convention. I absolutely agree with my noble friend that if we cannot do that by strict adherence to the 1951 convention then it must be spelt out on the face of the Bill.

I hope that the noble Lord, Lord Campbell of Alloway, will forgive me for saying that he made an interesting point. I mean it. It was interesting. It is a point which was made in this place in 1628. The answer it received then seems to be entirely relevant to today. This place was then considering the Petition of Right which was a declaration of liberties. Someone said:

"If we should leave any liberty out of this list, does that mean we do not in future enjoy it?".

The answer of course was that that was not so; that no list of liberties can possibly be exhaustive, because the types of oppression and injustice which may happen are infinite, and no document can possibly specify them all.

The noble Lord will appreciate that within the principles of the common law there is a great deal of room for adaptation to change. If he considers the change in the applications the common law has made of the word "reasonable" over five or six centuries, that will make the point. So the liberties, as spelt out in the UN convention, must be capable of growth.

It is true, as my noble friends have said, that a high proportion of persecution that takes place in the world today is directed at women by reason of their gender. If the type of persecution that is taking place is changing, we must take account of it. It is not just the cases my noble friend has mentioned, it is the cases of women who wish to leave a violent and dangerous husband. They are in many cases treated worse than they were three or four centuries ago. So, where the type of persecution with which we deal is changing, we must recognise that fact. That is the point to which my noble friend wished to call attention.

I understand fully what the noble Baroness, Lady Williams, is saying about torture and women, but surely if a woman is badly tortured that will come under "torture". It does not need to come under "women" whatever be the torture—when it is against a woman, she will come under the procedure for asylum because she has been tortured. Any man can be tortured in the way that a woman cannot be tortured. We will not insert an extra provision relating to gender for men because men may be tortured in a way that might not be possible for women. In this case including gender may perhaps be going too wide.

I should like to deal with the amendment in two ways. First, I shall deal with the technical aspect of the amendment. The amendment flies in the face of many amendments tabled by the Opposition today which attempt to restrict the categories of applicant whom the Bill proposes should be considered for certification.

Amendment No. 16A would insert an additional category of asylum claim to which the special appeal procedure can apply into sub-paragraph (4) in Clause 1. I should say at the outset that the amendment is defective because, as drafted, it would enable the certification of all asylum claims which do not show a fear of persecution by reason of gender.

There is a temptation that we should accept the amendment because it would, in a way, foreshorten some of today's debate. It would allow us to certify the vast majority of asylum claims. I know that that cannot be the noble Baroness's intention, and such an indiscriminate extension is not acceptable to the Government. So in an attempt to safeguard one additional category, the truth is that all other categories would be certified. I know that that is not the noble Baroness's intention.

However, the noble Baroness's intention in tabling the amendment is to prevent us certifying a refused claim under sub-paragraph (4)(a) if it alleges persecution on grounds of gender. The amendment is unnecessary, and I shall explain why. If a person shows a fear of persecution, including a fear based on gender grounds, that person would normally have done enough to escape certification under indent (a). That would be the case, for example, if the applicant alleges that his or her human rights will be threatened because of gender. I have to say to the noble Earl, Lord Russell, that my noble friend Lord Campbell of Alloway's understanding of this part of the Bill is right.

That does not of course mean that a gender-based claim would be exempt from a certificate if it is manifestly fraudulent, or meets one of the other criteria under Clause 1. Nor does it mean that such a claim would always succeed. I can assure the Committee that gender is taken into account in the assessment of individual asylum claims where that is relevant. However, our experience suggests that, in practice, few, if any, asylum applications made in the UK turn solely on the question of gender-based persecution. Applications normally involve claims of persecution on the grounds of race or religion or, for example, that a particular group of women faces persecution. Each case is considered on its merits. Each case that has been mentioned during the debate would be properly considered under even the 1951 convention.

The interpretation of a "social group" convention ground has been raised in debate by the noble Baroness. Our approach is not to define in the abstract whether women or men, or any other set of people, might or might not be regarded as a social group. Each individual claim is considered on its merits to determine whether the applicant can demonstrate, in all the circumstances of the case, that he or she has a well-founded fear of persecution in a particular country for any of the 1951 convention reasons. A range of possibilities exists; for example, from treatment of women generally, which may be discriminatory but may not constitute persecution, to a particular group of men or women who, because of the likelihood of persecution, are protected by the terms of the convention. Each set of circumstances, individual or collective, is addressed on its merits.

Gender is taken into account in the assessment of individual asylum claims where that is relevant. The Government believe that it is right that all asylum applications from men and from women should be considered without any discrimination in accordance with the criteria set out in the 1951 UN convention relating to the status of refugees. Each claim is considered on its merits to determine whether the applicant can demonstrate that he or she has a well-founded fear of persecution.

Rape and other forms of sexual violence clearly amount to persecution in the same way as do other acts of severe physical abuse. Whether less prejudicial acts or threats would amount to persecution will depend upon the circumstances of each case. In order to qualify as a refugee, the applicant would need to show that that fear of persecution was well-founded and based on a convention reason.

Women and, indeed, men who do not meet the requirements of the 1951 convention may be granted exceptional leave to remain in the UK if there are compelling humanitarian reasons why they should not be required to leave. The point made by my noble friend Lady Rawlings was right: sexual abuse is not specific to women or gender; men, too, can be sexually abused. There is a great deal of evidence that they are.

If it is serious abuse, it is persecution or torture. The noble Earl, Lord Russell, in his inimitable style, and calling upon his enormous understanding of history to which I defer absolutely, asked whether the list of grounds for persecution in sub-paragraph (4)(a) is exhaustive. The answer is that it is.

Does the Minister regard separation from one's children unreasonably as being torture? Would that be regarded as being discrimination on the basis of gender? I should like clarification on that point.

I should need to know all the circumstances. That is a broad scenario. It would depend upon why they were separated; what were the conditions of separation; and, frankly, whether it was a man separated from his family or a woman separated from her family. If the degree of persecution were such that it came within the convention, then it would be properly considered as a case within the broad parameters of the convention.

The convention refers to social groups, and I have given some indication that there is considerable interpretation of what constitutes a social group. It is a degree of persecution that would be proper in that case. Without more detail, it is impossible for me to answer that question specifically.

To finish on the point as to whether the list is exhaustive, yes, it is exhaustive. But as I have said, and I hope that I have convinced the Committee, gender can be taken into account where it is relevant to the degree of persecution.

Before my noble friend replies, perhaps I may thank the Minister for that reply. Perhaps I may say that an amendment may sometimes be unnecessary because it has been moved when, had it not been moved, it might be very necessary indeed.

The debate on the amendment has been most helpful because the issue has concerned all Members of the Committee. I hope that I have been able to convince my noble friend that the issue of gender will be subsumed within the confined restraints of the 1951 convention. The debate has been useful on two counts; first, in explaining that the amendment is defective and, secondly, in trying to assure the Committee that such cases can be taken into account under the criteria set out in the convention.

I believe that the Minister said that "social group" could be applied to "gender group", either men or women. If that is so everyone is covered one way or another. What is the real interpretation of "social group"? Does it refer only to women or only to men?

I said that it depends on the case. Someone may claim to have been persecuted and may have a well-founded fear of persecution. The example was given of a woman who refused to wear a veil being deemed a prostitute. The consequence of being a prostitute is that she may lose her life on that ground alone. It could be that a group of people who fall into that category could be constituted as a group. It would depend on the particular case, the particular degree of persecution and the social group; whether they are women or men, whether they belong to a particular group of women or men, or to a particular group of men or women who are persecuted and hounded simply because they are who they are or because they hold certain beliefs.

I am grateful to the Minister for that full reply. I wish to clarify only one matter. She said that she needed to know exactly what case one might have in mind; perhaps I may give an example. I am somewhat haunted by my visit to the refugee camps in Croatia when evidence first emerged that there was systematic use of rape as an instrument of war. The Minister will remember that the Warburton Report was published soon afterwards. Would it be possible under the Bill to regard, for example, women subjected to repeated rape, in particular women under the age of maturity, by an enemy group as falling within the special social group definition? I was most anxious about the provision because the list appeared to be exclusive. Unless such women qualify as a special social group they will not be covered. That is one of the main reasons why I moved the amendment. Perhaps the Minister will clarify that final point.

I understand that as regards the particular scenario set out by the noble Baroness the answer is yes. Perhaps I may read from Article 33 of the convention. It states:

"No Contracting State shall expel or return a refugee in any manner whatsoever to the frontiers of territories where his life or freedom",

which is the whole purpose of applying for asylum,

"would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion".

Those are the parameters of the convention and all the examples given by the noble Baroness will fall within them. What would fall to be judged is the degree of the fear of persecution.

In case there is a Division, perhaps I may assure the noble Baroness that if women are treated in the way she said they were, that would, within my concept, totally come within fear of persecution. My intervention, which was not intended to be discourteous, was based upon some such assumption.

I beg leave to withdraw the amendment.

I must point out to the Committee that if Amendment No. 18 is agreed to I cannot call Amendments Nos. 19 or 20.

moved, as an amendment to Amendment No. 1, Amendment No. 18:

Leave out lines 31 to 39.

This amendment creates some severe practical problems. Surely if you have a genuine, real, important fear of persecution, either because you have been persecuted or tortured—and you know jolly well how serious that is—or because you are a member of a social group which has been subjected to such treatment, and you wish to claim asylum, in the ordinary way you should do so on arrival in this country.

The noble Lord quoted an unreported decision. There are all sorts of unreported decisions and all sorts of reported decisions. Some of them make sense and some do not. To my mind, the decision which the noble Lord, Lord Dubs, quoted makes no sense at all. I take the noble Lord's point that the procedures, certainly if they change, may well not be known. But surely that problem can be met in an administrative fashion by drawing to the attention of those who enter their position as regards claiming asylum if they wish to do so. Forms could be produced. There are various ways in which that can be done.

The noble Lord said that credibility is lessened if the claim is made after the person has come in rather than at the time of entry. Inevitably that is so. That is inevitable because if there is an urgent, genuine fear, in the ordinary way you state that when you reach this country.

I should like to say a few words on Amendment No. 19 which would insert "without reasonable explanation" into the Bill. That would indicate that where a reasonable explanation is given, the issues would be set aside and the case looked at afresh.

I am concerned in particular about that because, like the Government, I appreciate that it is very important to draw a distinction between genuine asylum seekers and those who are not genuine. I might put the line between the two at a very different place from the Government, but of course I recognise that some asylum seekers are not genuine. Some asylum seekers are absolutely genuine. The crucial question facing this Chamber is to try to draw a correct distinction.

Without the addition of the phrase "without reasonable explanation", the Bill will almost certainly exclude the most genuine asylum seekers: those who do not have the benefit of legal advice; those who are not particularly knowledgeable about the procedures and ways of the Immigration Service in this country or, indeed, Europe and therefore have not the faintest idea about how our procedures work. Those people will emerge as refugees or asylum seekers in this country often after having undergone an extremely painful and difficult period of time in which they have been very frightened, even to the point of being frightened of losing their lives.

It seems to me to be wholly unreasonable to expect such a person to go through all the procedures exactly as he should do—and they are very complex procedures; to expect such a person to know that it will help him to put in a claim for asylum the moment he reaches this country; and to expect him to know the complexities of our legislation which, heaven knows, many of us find difficult to follow.

Therefore, I urge the Committee and the Government to consider very carefully the addition of the very limited and simple phrase "without reasonable explanation". That would allow utterly genuine asylum seekers—who often have the worst cases and who do not know our procedures and do not handle them properly—not to be sent back to a country which in many cases has done them great damage before their case has been considered. Therefore, I support strongly Amendment No. 19.

I wish to oppose Amendment No. 19. The question of credibility is very much an issue here. The present pattern found by local authorities is that people come to this country on visitors' visas. They move in with supposed friends or relatives who have often given a complete undertaking to be responsible for bearing the entire cost of supporting them. The authorities then find that two days after their arrival, they turn up on the council's doorstep asking to claim housing benefits and any other benefits which can be obtained. I can see that the noble Lord, Lord McIntosh, is looking surprised but I am quoting the experience of London councils which have reported that history to me.

I am grateful to the noble Baroness for giving way, but I believe that she is really talking about Clauses 8, 9 and 10 rather than about this amendment.

As I understood him, the noble Lord, Lord Dubs, is saying that Amendment No. 19 would mean that people do not have to announce on arrival that they wish to seek asylum. I oppose that. If that is not what he is saying, perhaps I am wrong. But I do not believe that the noble Lord, Lord McIntosh, is right and I am responding to what the noble Lord, Lord Dubs, proposed. Is that correct?

Yes, it is. The words that I seek to add to the clause are "without reasonable explanation". Those words apply specifically to people who are refused leave to enter and apply also to deportation and other considerations.

However, I believe that the point which my noble friend Lord McIntosh makes is that later parts of the Bill deal with housing matters. Here we are concerned about the rights of people when they seek to claim asylum. I am concerned that the fast-track procedure weakens their ability to do so effectively.

I still believe that we are debating the credibility or lack of credibility of people applying for asylum, whether or not they declare it on arrival. That is certainly the issue which I am addressing.

I consider that the most important issue of the whole Bill is that people should have to declare their position on arrival. That is a tremendous improvement. At present, this country is considered a soft touch in Europe because we do not have nearly such stringent regulations as other countries. I am 100 per cent. behind the genuine asylum seeker, but I am not at all in favour of the so-called economic refugee who wishes to come here.

The noble Baroness, Lady Williams, referred to the words "without reasonable excuse".

I referred to the words "without reasonable explanation". That is rather different.

The words "without reasonable explanation" are even less onerous. Anyone can give an explanation. I sit on an industrial tribunal. There is an extremely heavy onus of proof on an applicant who wishes his case to be considered, even if the application was lodged just one day late. Therefore, the phrase "without reasonable explanation" seems to me to be not nearly definite enough. If we were saying that there had to be a really strong reason—for example, that the person had arrived in such an ill state that he was not able to speak—then I might have some sympathy with the proposal. However, if it is just a case of someone not having thought up his explanation at the time and then having worked it out a few days later, I am afraid that that would not appeal to me. For that reason, I oppose Amendment No. 19.

The reason why genuine asylum seekers, of whom there are a great many, do not apply at the port of entry—I take the point made by the noble Baroness about bogus claims; indeed, I am not seeking to defend them—is due to the fact that they wish to obtain proper advice. I believe that the noble Baroness was present in the Chamber when that point was made on the last occasion. Such people are ignorant about our procedures. They arrive at a port of entry, go through the immigration procedures and then consult a solicitor or go to a citizens advice bureau, or whatever other agency is available to them, and ask for an explanation as to how they should present an application for asylum. I do not see how someone in a far-off country, without access to the Immigration Rules or procedures which apply here, could possibly guess the requirements in advance. I give way to the noble Baroness.

I am much obliged. Can the noble Lord tell me how such people get here in the first place? Do they not have a visa or some form of entry document when they first arrive? I am sure that they have access to some form of permission to enter the country. Therefore, they have had some advice from someone. I also believe that word gets around pretty quickly from one person to another and that such people would rapidly learn that they had to make such an application.

No. It does not happen that way. If people were sufficiently aware of the necessity to make such an application at the port of entry and they had a well-founded case, as many of them do, they would follow the advice given by the noble Baroness and, indeed, by the noble Lord, Lord Campbell of Alloway. However, the noble Lord contradicted himself. He said, first, that everyone should know and that if a person had a genuine case then he would present it at the port of entry. But he then went on to say that, if they did not know, the situation would be corrected by some other means. The noble Lord then suggested the distribution of forms at airports. That indicates that there is a problem involved which even someone as hostile to immigrants generally and to asylum-seekers in particular as the noble Lord, Lord Campbell of Alloway, recognises. Therefore, we must deal with it in some way, either by saying that the person can give a reasonable explanation afterwards as to why he did not announce his intention of applying for asylum at the port of entry or by giving sufficient warning at the port of entry. That is perhaps an alternative that the Government should explore.

I do not go along with the noble Lord who suggested that forms should be distributed to everyone who arrives at Heathrow or Gatwick airport. I say that because there would be a vast number of false positives—that is to say, people who are genuinely coming here for a holiday and who have no intention ever of applying for asylum. However, the noble Lord has produced the germ of an idea. For example, notices could be displayed at the principal places of entry into the United Kingdom warning people of the consequences of the failure to declare their hand at the point when they present themselves to immigration officers, if it is their subsequent intention to apply for asylum. That would be one way to get round the problem identified by the noble Lord who moved the amendment.

There cannot be any doubt that other countries have such provisions. Indeed, I discovered only this weekend that the Turks (who are not particularly liberal in such matters) grant an asylum seeker 30 days in which to make an application. The person then forfeits certain rights at the end of that period. However, in this case, we are proposing to impose very much more severe restrictions on the rights of applicants than even a state like Turkey does which is not renowned for its observance of human rights.

I believe that a serious case has been made. If the Government are not able to address it by acceptance of this particular amendment, they should at least promise to take away and consider the suggestion made by the noble Lord, Lord Campbell of Alloway. Of course, I do not say that that particular device is the ideal solution; but, nevertheless, it has at least put into the mind of the Government the thought that something must be done at the port of entry to safeguard the rights of people entering the country who do not make an application when, in the end, it is their intention to do so.

I hope that Members of the Committee will forgive me for intervening at this point. I believe that there is a great deal of misunderstanding both about this part of the Bill and about the amendments. It just might help if I address what I believe to be the misunderstanding. If noble Lords still wish to comment thereafter, I shall certainly listen to what they have to say.

The noble Lord, Lord Dubs, has misunderstood the effect of the Bill. It does not provide the power to fast track all claims which were not lodged immediately on arrival. It is concerned with those who are refused leave to enter at the port of entry—that is to say, it applies to people who attempt to enter as students or visitors but who are refused entry in that capacity and then claim asylum. So they will already have been considered under the 1971 Act. Judging by what has been said, there appears to be a great deal of misunderstanding.

The removal of paragraph (4)(c) enables the Secretary of State to issue a certificate if the asylum application was submitted after the applicant had been refused leave to enter, recommended for deportation by a court, served with a notice of intention to deport, or notified of his liability to removal as an illegal entrant. My noble friend Lady Gardner of Parkes was right regarding what she thought she heard noble Lords opposite saying about the amendment. In fact, I am saying that their interpretation is wrong. I hope that I shall be able to convince my noble friend that what the Bill has to say in that respect is right.

We have become increasingly concerned about late asylum claims. By this I mean claims lodged in order to fend off removal and frustrate the enforcement of the immigration rules. Perhaps I may give the Committee some examples of this form of abuse. There are people who have been here illegally, sometimes for years, who are then apprehended by the immigration service and lodge an asylum claim just as they are about to be removed. Others seek leave to enter as a student or a visitor, for example, and only claim asylum when their application for leave to enter is refused and removal directions are set. The intention is to be able to resolve quickly claims of that sort which are manifestly lodged in order to delay removal action, rather than because the applicant has a well-founded fear of persecution.

Let me make clear, however, that this provision cannot apply to a claim simply because it is made after entry. It will not apply, for example, to someone who enters illegally or overstays his leave but who claims asylum before we take steps to remove him. Late claims will still be considered on their merits in the usual way and there will still be an appeal. But if they prove to be unfounded and asylum is refused, the Bill will enable us to apply the accelerated appeal procedure.

I have listened carefully to the arguments advanced for deleting our proposal to permit certification of claims lodged only after a court recommends deportation following a criminal conviction. It has been suggested that a criminal conviction here might put a person at risk of persecution at home. I am not persuaded—certainly not by what has been said in the course of today's debate. It is exceedingly unlikely that a criminal conviction in this country could form a legitimate convention basis for an asylum claim. But, in any event, if a claim made after such a conviction was found to be valid, asylum would be granted. In other words, if the case for asylum was a good one and came within the convention, then of course it would be granted and would not be thwarted by this measure. Similarly, if there are genuine humanitarian reasons why removal should not take place, exceptional leave would be awarded. But where it is found that claims made in such circumstances are not well founded, it is entirely appropriate that we should be able to apply the accelerated appeal procedure.

It has been proposed that we should provide an exception where the applicant gives a "reasonable explanation" for his failure to claim earlier. We think that that is unnecessary and undesirable. In the Bill as drafted, a certificate would only be available where the asylum claim has been fully considered and rejected. If it is found to be a valid claim, asylum or exceptional leave will be granted, despite the circumstances in which the claim was submitted. But if the claim is not well founded, the fact that it was submitted only after the commencement of removal proceedings or the refusal of leave to enter, will almost invariably justify a certificate. We need to send a clear signal that abuse of the asylum procedures in order to frustrate enforcement of our immigration laws will be met robustly.

The late claim provision in Clause 1 indent(c), does not apply to claims simply because the application was not made at the port of arrival. The Bill is clear on the point. The provisions only apply to applications lodged to stave off removal action. That is claims lodged after the applicant has been refused leave to enter and notified of his liability to deportation or his liability to removal as an illegal immigrant. Therefore, we are concerned because it is a growing form of abuse. It is entirely right that the Secretary of State should be able to certify claims lodged in this manner. It is responsible for much of the backlog in the system. I should have thought that noble Lords opposite would realise that this form of abuse is not acceptable. So long as there is a safeguard for genuine and well founded cases of people who have an opportunity to put their case within the system, I hope that our remedy for this kind of abuse in the Bill will be supported by Members of the Committee opposite.

I recommend to the Government the practice of the noble and learned Lord the Lord Chancellor. During the passage of the Child Support Bill 1991, a provision put a time limit of 28 days on appeals under a particular clause. I put down an amendment without reasonable explanation. It was one of those nights when it seemed as if the House would sit until 3 a.m., so I did not move it. However, when we reached the next stage the noble and learned Lord had incorporated it in the Bill. He had accepted it without so much as my moving it. That was a quite unparalleled act of generosity to which I should be glad to find a parallel. I recommend to the Government the wording of their own amendment, Amendment No. 1. Lines 20 and 21 deal with the absence of a passport and there are the words,

"without giving a reasonable explanation".

The noble Baroness said a great deal about abuse. Everyone is against abuse. The noble Baroness is against abuse but in trying to rule out the words "without reasonable explanation" she strengthened my suspicion that the fast-tracking of a case involves an element of prejudging the merits of the issue, or at least there is a risk that it might.

That is a great argument in reply to the noble Baroness, Lady Gardner of Parks, on claiming at the point of entry. There are six or seven places in the Bill where we could insert the words. I suggest that we join issue on that argument on the question of whether Clause 1 stand part.

I emphasise the point just made that the expression "without reasonable explanation" is already on the face of the Bill. It is already the wording that the Government used in relation to a person who,

"failed to produce a passport without giving a reasonable explanation for his failure to do so".

All we ask for in Amendment No. 19 is that the same concept of a reasonable explanation should be applied in the case of persons covered by Clause 1, paragraph 5(4)(c), particularly those entering the country as well as some of the other categories. It seems to me that it is not breaching the Government's policy to suggest the proviso that an asylum seeker should give a reasonable explanation. That is all we ask. If the asylum seeker cannot give a reasonable explanation, then his application would have to be fast-tracked. It seems to be a reasonable proposal.

I wish to deal with some of the other points made. Perhaps I did not make myself clear or the Minister may have misunderstood me. I was not suggesting that a criminal conviction would itself lead to an asylum claim. I suggested that an individual might fear persecution in his or her own country, be stupid enough to commit a criminal offence, be deported or threatened with deportation as a result and lose his or her right to have the asylum claim considered as fully as possible because of the threat of deportation.

I am also aware that people arrive here as visitors and students. However, as we discussed the other day, we may demand visas of a country, the nationals of most countries from which asylum seekers come have to have visas, but it is not possible to enter this country with a visa to become an asylum seeker. With the exception of the Bosnians and the Vietnamese, such visas are not granted by this country. Therefore, as applies to most west European countries, the only way in which an individual can arrive here and seek safety is through obtaining a visa as a visitor or student. Of course, that means applying for a visa on grounds other than those on which the person might wish to seek safety here—namely, as an asylum seeker. It is a catch-22 situation; there is no way out.

Therefore, I argue that an honest individual must do as we discussed last time, he must apply for a visa as a visitor or a student. He may arrive here and say: "Let me pause for breath, let me seek proper advice as to how to make my asylum claim. First, let me enter the country and then make my asylum claim". That person is then faced with the difficulty that he is in breach of the provision. All we argue is that we should not return to the present position but go part of the way towards the present position. That is all. I contend that Amendment No. 19 is entirely reasonable, as are all the amendments. The words "without reasonable explanation" are surely such that under any fair-minded system in any fair-minded country one would say: "Yes, those are the provisions to which you must adhere. But if you can provide a reasonable explanation, well and good, we will accept it". That is all we ask for in the amendment.

Before the noble Lord decides what he wishes to do about the amendment, I say what he said sounds reasonable, but I invite the Committee to consider this point. It is true that we propose to provide a "reasonable explanation" safeguard in the paragraph dealing with undocumented passengers. The reason we do that is that we accept that there are some circumstances in which an applicant could reach this country without travel documents. But it is more difficult to conceive of a reasonable explanation for a late asylum claim made in the circumstances defined by indent (c). We therefore resist including in the statute a "reasonable explanation" caveat which would unnecessarily complicate appeal hearings. My noble friend Lady Gardner made some relevant points.

The case which we are discussing is where asylum is claimed on the point of removal, following refusal under the 1971 Act, when the case has been heard, on the point of notification of deportation under Section 3(5) of the Act and on the point of notification of removal under paragraph 9 of Schedule 2 to the Act. Those provisions are commonly abused and we have evidence of the extent of that abuse. Given that the asylum applications will he given substantive consideration and an appeal under the accelerated procedure, we think it reasonable to address that form of abuse in this way. I hope that the Committee will not accept the amendment.

I am disappointed. Perhaps I may restate the proposition. All we argue is that the words "without reasonable explanation" should be added. If the individual concerned cannot produce a reasonable explanation, then the provisions of the Bill would apply. That is, the fast-track procedure. The individual may be able to produce a reasonable explanation such as where a mother and baby arrive at the airport and the baby is tired or ill. Would anyone wish to go through the complications of claiming asylum then at the airport? Most people who arrive seeking asylum speak little or no English. When I have travelled to distant countries where I do not understand a word of the language, after a lengthy flight and arriving for legitimate tourist or business purposes, I find it difficult to deal with immigration procedures. I may not observe all the notices on the walls.

I suggest to the Committee that it is normal human behaviour that after a long flight one may be confused and have good reason not to make a claim on arrival. If such good reason can be demonstrated under the wording "without reasonable explanation", all well and good. That is all we seek. It is a reasonable request and a modest amendment.

It is necessary to respond again to the reason that the noble Lord has given. It again sounds reasonable.

We are referring to the difference between practice and administration, and being humane in the way in which people are refused entry, deported and handled. The noble Lord makes a real point. However, let me give a reason that I believe will attract the Committee. There may be an uprising in the country to which we would be sending someone, and we believe that there are good reasons for considering an asylum application in those cases. We are discussing putting a provision on the face of the Bill giving everyone the opportunity to exercise delay of the procedure. In practice, if a convincing explanation were provided, we would not certify. It would be only in exceptional circumstances that we would not certify—for example, where the claim is based on a coup which post-dates the start of the enforcement action. The main disadvantage of a reasonable explanation proviso is that it would dent the deterrent impact of the late claims provision.

If noble Lords do not wish to rid the Bill of this abuse, they will seek to test the opinion of the House. However, this is an abuse; and in practice the Government are totally cognizant of the examples that the noble Lord gave. Such cases would be handled in a perfectly appropriate and humane way.

Perhaps I may ask the noble Lord for an explanation on a point he made. He stated that in applying for a visa people would not be willing to disclose the reason. They may well have to apply for a student or a visitor visa. Does he mean that that would be an acceptable explanation: that one applies for a visa under false pretences so that one can then apply for asylum?

Perhaps I may deal with the noble Baroness's question first. I simply reminded the Committee of the basis on which visas are issued, the reasons for which they are issued and the difficulties facing someone who is in fear of persecution in his own country and as regards how he gains a visa to enter this country or to many Western European countries. I simply said that the main way to gain a visa is to apply as a visitor or a student. That is the way in which asylum seekers enter a safe country; otherwise they have no reason for making the journey.

I do not say that that in itself is a reason for exempting those applicants from the provisions of the Bill as drafted. I simply suggest that there may be other reasons known to the individuals, personal to them, which would represent a reasonable explanation. After all, they still have to have their case considered. They still have to demonstrate their case under the 1951 Geneva Convention. That is quite reasonable. I do not want them to be "fast tracked" in such a way as to lose such rights as they may have.

I turn now to the point that the Minister made. I think that she was suggesting a small concession. However, I contend that it is too small.

I was not suggesting a concession. I was explaining how the procedure works in practice. If there are good reasons why applicants should not be deported, if there are good reasons why they should be given the formal track rather than the fast track procedure, in practice that is exactly what happens. We are against putting on the face of the Bill a right that a reasonable explanation would have to be considered, which would delay the process. Because this is such an area of abuse, we believe that the genuine cases are caught by the way in which we operate in practice. What the noble Lord is insisting should go on the face of the Bill is tantamount to a licence to delay and thwart deportation in genuine cases.

We are talking here of people claiming asylum on the point of deportation, on the point of removal. That is what we say is the abuse. That is what is addressed by the Bill.

Before the noble Baroness sits down, can she tell us how she knows that it is an abuse before she has heard the evidence?

There is a great deal of recorded evidence of people who have sought asylum on the very point of removal. Students come with permission to stay, and at the end of their course they have to be returned. At the point of returning they seek asylum. Others come for other reasons, overstay, and at the point of removal they suddenly seek asylum. There are those who have been through the 1971 Act immigration procedures and at the point of refusal, where they are deemed to be removed, they then seek asylum. That is the point of abuse, and it is well catalogued.

But how does the noble Baroness know, before examining the evidence, that that case before her, which is individual, is in point? Perhaps I may remind her of a remark once made by the noble and learned Lord, Lord Ackner: that a man apparently lying dead drunk in a gutter may in fact be a diabetic who has run out of insulin.

I can answer that question too. Let me take the example that I gave of the student who completes a course. He is due to return to another country. He refuses to go at the point of deportation and seeks asylum. The proposition in the Bill is that he should be put through the accelerated procedure. The adjudicator hears the case. If in the case put to the adjudicator there is good reason why he should not have received a certificate in the first place, the adjudicator could set the certificate aside. All I am saying is that those applicants will have their case heard. They will have an appeal right. Therefore, if they have good reason, it will be put before the adjudicator.

In that case, will the noble Baroness agree to an amendment, tabled perhaps at Report stage, to sub-paragraph (6) which would make it plain that the adjudicator has the power to set the procedure aside? Sub-paragraph (6) states that,

"If…the…adjudicator agrees that the claim is one to which sub-paragraph (2)(3) or (4) applies … section 20(1) shall not confer on the appellant any right to appeal to the Immigration Appeal Tribunal".

The provision does not state that the adjudicator has the power to set that matter aside.

Perhaps I may suggest to the noble Earl, Lord Russell, that this is not a matter of histrionics. It is a matter of a reasoned administration to seek to curtail manifest abuse, on which all parties, all Members of the Committee, would be in agreement. When the noble Earl says that we are pre-empting, prejudging the situation, with respect, is that quite fair? It is the entrant who applies after entry who, by a much delayed judgment, then seeks this accommodation. The noble Earl does not seem to appreciate that we are not seeking to stop or in any way impede genuine asylum seekers. But, broadly speaking, something has to be done to stop what has become a manifest abuse.

My noble friend is right. We know that there are cases of abuse because they are all denied asylum and the decision on appeal has been upheld.

Perhaps I may say to the noble Lord, Lord Avebury, and the noble Earl, Lord Russell, that we do examine the evidence. If the evidence supports the application for asylum, asylum is granted. I have given that assurance to the Committee. All we are saying is that Clause 1, the fast track, comes into play only after that decision has been made—in other words, if the view of the substantive consideration and the appeal is that this is not a case for asylum. It is only that point of the procedure that we are discussing. I simply say that it is not an arbitrary or a cursory examination. The case is properly heard.

I certainly do not want to delay the Committee further. The noble Baroness made the point that there is a real case and I understand that. However, I wonder whether she will consider, possibly on Report, examining further the remarks of my noble friend Lord Avebury, in this sense only. If sub-paragraph (6) in Clause 1 goes through and the further appeal stage is removed, the concern expressed by the noble Lord, Lord Dubs, and others is simply whether, if circumstances have so far changed, we can be assured that, if the asylum seeker advances a reasonable case—in the sections to which she referred most will not, but there may be exceptions—there is an opportunity for such exceptions to be considered.

I have given the Committee an assurance that if there are good grounds for an application to be considered on the normal track rather than the fast track, in practice that is exactly what will happen. What I cannot do is accede to the amendments. We know that this is an area of abuse. In regard to the accelerated appeals procedure, taking all the Opposition amendments together, including removing Clause 1, it is clear that they do not wish to address some of the worst excesses of the system. Amendments have been tabled to remove Clause 1; amendments have been tabled to remove various parts of Clause 1. I am taking all the amendments together.

We believe that these measures are necessary. There is a particular need for an accelerated procedure. It allows substantive consideration of each case and there is an appeals system. (Those on the normal track then go on to a third stage, a tribunal.) Even at the substantive stage it is possible to decide that the application should go by the normal track rather than the fast track. The case worker makes the decision as to whether Clause 1 is invoked.

We believe the measures are right: first, to address the volume of applicants; secondly, to address abuse; thirdly, for good race relations in this country; and to give proper, and speedier, consideration to genuine asylum seekers. Those are the reasons for including them in the Bill. We know that noble Lords opposite do not wish even to see Clause 1 remain. We believe it is an important part of the Bill.

We cannot let that pass. If we accept the argument that the Minister has just made, there is no point at all in having this House as a revising Chamber. As a revising Chamber, we examine every single part of each clause of a Bill and consider whether we can make helpful amendments. We have a fallback position whereby we can say that if we have not persuaded the House (or Committee) of the justice of individual amendments, we will seek a debate and possibly even a Division on the issue of whether the clause shall stand part. But the Minister cannot simply add together all the amendments on a clause and the debate on clause stand part and say that, taken together, they all add up to root-and-branch opposition to the Bill. That is not the case. The position of the Opposition is, and always has been, that we examine the text of a Bill, treating each part individually and carefully, place by place, and make each argument at the appropriate time. I protest against the attitude that the Minister is now taking to the role of the Opposition and to this House as a revising Chamber.

I also protest against the Minister's attempt to foist upon us her belief that this Bill does anything to remedy abuses.

My Lords, I return briefly to Amendments Nos. 18, 19 and 20. Nobody condones abuse of the system. The Minister gave examples where the Government would, as it were, try to meet particularly difficult circumstances—for example, if there had been a coup in the country from which an asylum seeker came. Such examples are not on the face of the Bill. There may be concessions that the Secretary of State might make in individual cases, but they are not on the face of the Bill. When we are talking about the rights of individuals, it is proper that those rights should be stated on the face of the legislation.

The rights of individual asylum seekers not to be sent back to face possible torture, imprisonment and death are absolutely paramount. The reason we are concerned with the procedures that determine whether an individual is to be sent back is that they may determine life or death for that individual. I know from my time at the Refugee Council of instances of persons being returned to countries where there was turmoil and persecution, and those individuals were never heard of again. That is why the rights of each individual are so important. The words "without reasonable explanation" which we seek to add to the Bill surely represent the minimum that we could say on behalf of the rights of individuals. It is a minimum additional protection which I contend is reasonable.

I should like to test the opinion of the House on Amendment No. 19. I therefore beg leave to withdraw Amendment No. 18.

Amendment No. 18, as an amendment to Amendment No. 1, by leave, withdrawn.

moved, as an amendment to Amendment No. 1, Amendment No. 19:

Line 31, after ("made") insert ("without reasonable explanation").

moved, as an amendment to Amendment No. 1, Amendment No. 22:

Line 42, leave out ("is") and insert ("has been certified by an Adjudicator to be").

We are all wrong sometimes. I remember particularly one occasion when I rose in this Chamber and started speaking with great impassioned eloquence to the wrong amendment. I was rescued expeditiously and effectively by my noble friend Lady Williams of Crosby.

The fact that we can all make mistakes is the fundamental ground of the right of appeal. It is especially true in matters of law, and immigration law is extremely complex. It is in a state of perpetual Heraclitean flux. The possibility of error is always there.

One of the crucial roles of the Immigration Appeal Tribunal is to correct errors on points of law. In 1994 it corrected 270 appeals against the special adjudicator's dismissal of an asylum appeal; 200 of those were either allowed or remitted back for rehearing. That is to say, the tribunal corrected 200 errors of law in one year. That is a lot of errors of law. In a precedent-based system, an uncorrected error of law is capable of having a multiplying effect and affecting the determination of many subsequent cases. The keeping up of a body of case law in an area of this magnitude is extremely important. If there were no other reason, that would be a good reason for accepting the amendment.

It is important also not to be too certain that one is right at the first hearing of a case. I recommend to the Government the spirit shown in the case of a puisne judge whose children observed case after case of champagne being brought into the house. They said, "Mummy, what is all that for?" She replied, "Daddy has been upheld in the appeal court". That is the sort of surprise we should all be humble enough to feel.

This is another amendment designed completely to emasculate Clause 1.

Under the special appeal procedure, the Secretary of State can issue a certificate if, having considered the claim, he considers it to be without foundation. The certificate has two effects: first, the applicant has less time in which to give notice of his appeal, and the appeal must be heard quickly; secondly, the appellant cannot seek leave to appeal to the Immigration Appeal Tribunal unless the adjudicator overturns the certificate. Clause 1 does not change the nature of the special appeal procedure, but makes it available in a wider range of cases where the application is considered to be manifestly unfounded.

The effect of Amendment No. 24 to sub-paragraph (6) would be to restore access to the tribunal in almost all certified cases. The tribunal would be excluded only in cases which satisfied the test of being frivolous or vexatious—a criterion which case law has restricted to a very small number of claims, such as those which merely repeat earlier claims or which make no reference to asylum.

Denial of access to the tribunal is an important part of the benefit which the appeal system derives from the accelerated procedure. It reduces the number of applications for leave to appeal which the tribunal is required to consider. It means that the applicant has exhausted his appeal after the adjudication and can be removed immediately, rather than after a further delay while an application is made for leave to appeal to the tribunal. And it contributes to the overall signal which the Bill sends to would-be asylum seekers that manifestly unfounded claims will be dealt with robustly.

I do not accept the argument that access to the tribunal should always be a possibility as a long-stop safeguard. I remind the Committee of the safeguards that the Bill will leave in place for cases covered by Clause 1. First, asylum claims cannot be certified until after they have been considered substantively in the normal way. All applicants are invited to an interview, and all are given an opportunity to make additional representations afterwards. All claims will still be considered substantively and granted asylum or exceptional leave to remain where warranted. Those refused will still receive a letter setting out the reasons for refusal. And all will still have an appeal to an adjudicator.

Adjudicators are of course experienced members of the legal profession appointed by the Lord Chancellor and wholly independent of the Home Office. Furthermore, if the adjudicator upholds the refusal of asylum but does not agree that the certificate was correctly issued, he can overturn it and thereby restore the appellant's opportunity to seek leave to appeal to the tribunal. This is what would happen, for example, if the adjudicator agreed that the asylum claim was unfounded but did not agree with the Secretary of State's certificate asserting that the claim was manifestly fraudulent.

There seems little point in having an accelerated appeal procedure if we are not even prepared to reduce the normal three-tier system of consideration by the Secretary of State, the adjudicator and the tribunal to a two-tier one. I should also say that Amendment No. 22 is defective. It would require the Secretary of State to certify in advance of the appeal that in his opinion the adjudicator has certified that the claim is frivolous or vexatious. That is obviously nonsensical, since the Secretary of State cannot attest to an appeal determination which has not yet taken place.

It has been argued that most of the tribunal's determinations result in remittal to the adjudicator for a rehearing so that errors can be corrected. It was suggested also that removing access to the tribunal will result in such errors going uncorrected. Concern was expressed that the Bill will result in the loss of the tribunal's role in maintaining the quality of asylum case law. Those concerns are greatly exaggerated. The majority of applications to the tribunal result either in leave to appeal being refused or in the appeal being dismissed after a hearing. A small proportion result in the case being remitted back to an adjudicator, but in our experience the great majority of such remittals result in the refusal of asylum being upheld. Only a tiny proportion result in an appeal being allowed by the tribunal. In those circumstances, I hope the noble Lord will not press the amendment.

The noble Baroness might with profit look at the judgment of Mr. Justice Hidden last week in the case of ex parte Bostam. I pay tribute to the work done by the special adjudicators but, inevitably, they differ from each other from time to time. On the issue of safe third countries, they differ quite substantially. If there is no provision for calling in the Immigration Appeal Tribunal, there could be some trouble in reconciling these variations between people who are of equal status.

I wish to make one other point to the noble Baroness. Before she uses words like "frivolous" and "without foundation" with quite such sublime confidence as she has done today, I would ask her to look over debates in this House in the past few years and at the occasions when she has described arguments from this side of the House as being either without foundation or frivolous and then to ask herself how many of them have subsequently been accepted by Her Majesty's Government.

I take exception to the accusation that the noble Earl has made of me. I was not being light-hearted. The determination as to whether an application is vexatious is not my decision; it is that of the adjudicator. So I hope the noble Earl does not believe I am treating it lightly. I also hope that the noble Earl will agree that vexatious cases should be accelerated. We are saying that, not only for those cases but for those cases that are manifestly unfounded, it is right that an accelerated procedure should be considered.

I shall willingly and eagerly acquit the noble Baroness of the charge of being light-hearted. I also understood entirely that it was not just her own certainty with which we were dealing. We were dealing with adjudicators. But I do not share the noble Baroness's degree of confidence in every stage of this process. That is where I really would like her to be a little more ready to entertain the possibility that decisions taken within the Home Office machinery may be mistaken. She is very resistant to accepting that possibility—that was all I wish to say—and that is frankly a matter of opinion.

I found the Minister's reply fascinating because not once, but several times, she used the phrase "manifestly unfounded" as being the basis on which the provisions of Clause 1 would come into effect, whereas the words "manifestly unfounded" do not occur anywhere in Clause 1. Under the 1993 Act there was provision for fast-track appeals procedures and for the denial of access to the Immigration Appeal Tribunal for claims which were "unfounded". Ministers—I acquit the Minister in this House of the charge—have since then consistently referred to such claims as bogus. I am glad that the noble Baroness does not do that and has never to my knowledge done so. But "manifestly unfounded" is not what the clause says.

Clause 1 speeds up the appeals procedure and denies the special appeals procedure unless the adjudicator allows it. It applies to those cases which fall under sub-paragraph (2)—about the designated list—sub-paragraph (3)—about passport defects—and sub-paragraph (4)—about the fear of persecution. In reading sub-paragraph (4)(b) I now see the words "manifestly unfounded". I apologise to the Minister for that. But it is only one of a wide range of conditions under which denial of access to the Immigration Appeal Tribunal applies. The words "manifestly unfounded" refer to a fear of persecution but not to a claim. Therefore, the Minister's defence of Clause 1 does not apply.

As I said, Clause 1 speeds up appeals and restricts access to the Immigration Appeal Tribunal. But what is the Immigration Appeal Tribunal for? It is designed to send cases back to the adjudicator for errors to be corrected. As the noble Earl, Lord Russell, said, there have been a significant number of cases in which it has done so and in which the result has been different from that which would have been the case if there had been no Immigration Appeal Tribunal. That proves the worth of the Immigration Appeal Tribunal and it proves to my mind that it is wrong for it to be emasculated in the way that is proposed in Clause 1.

This issue is very close to one which we have considered on a number of amendments and it is not one on which I wish to seek the opinion of the Committee. However, I have to say that the criticism we have been making is not in the form of a wrecking amendment but of a desire to restore an appeal tribunal which was set up by this Government, which we believe serves a useful purpose, and which is being diminished by the Bill as drafted.

I am grateful to the noble Lord for giving way. Perhaps I may put the record straight. Before the noble Lord decides what he is going to do with the amendment, I believe I misled the House in saying that it was the adjudicator who determined the accelerated procedure. It is after substantive consideration that a decision as to whether it should be normal track or fast track is taken and then of course it is for the adjudicator to hear the appeal. But it is nevertheless after substantive consideration of the case.

I hope that nothing I have said compounded that error. I hope I was saying that it is the fast-track appeal that we are talking about and not a fast track for the consideration of the original application. On the basis that I have stated, I beg leave to withdraw the amendment.

moved, as an amendment to Amendment No. 1, Amendment No. 23:

Line 45, at end insert—

("but nothing in those rules may permit any appeal to be determined without the appellant being given the opportunity to present evidence both orally and otherwise").

We are always at a disadvantage when we have to discuss a major substantive issue in the absence of some of the crucial documents which show how the policy is going to be applied. It means that we do not know exactly what is going to happen or how it is going to work. Without the procedural rules, I do not see we can properly understand exactly how the appeals are going to work.

We are at a disadvantage here. It is perfectly possible that the noble Baroness is also at a disadvantage. It is not the business of this side of the Committee to be in the habit of regularly giving the Government the benefit of every doubt that arises. It is quite possible that were this document to be made available, some of our fears would prove to be unfounded. One must accept that is a possibility. But one has to go on insisting that as long as they have the power to do something which we believe should not be done, one has to go on raising the issue.

The fear that appeals may be done entirely on the papers is not, so far as I am concerned, without foundation. During the last election, which is now quite a time ago, I took part in a radio programme opposite the noble Lord, Lord Waddington, on the subject of immigration. The noble Lord stated categorically that it was the Government's intention to introduce a system of hearing appeals purely on the papers. That was a statement made by the then Leader of this House, so it clearly was the Government's intention in 1992.

What is rather curious is that this did not appear in the Asylum and Immigration Act 1993 so, clearly, somebody had had second thoughts. What we do not know now is whether the second thoughts have been superseded by third thoughts. We do not know whether the second thoughts were the result of perhaps perfectly genuine difficulty. When a Government have hesitated so long before bringing in a policy which they have proclaimed during an election campaign, one must wonder whether they had good reason not to do so.

In this case what strikes me as the obvious good reason is that when one is dealing with a claim, practically the first thing that one needs to form an opinion about is the credibility of the claimant. I have not yet found any reliable way of judging the credibility of a person based entirely on paper. Believe me, if one's profession is that of an historian, one has to try to do that daily. There is not any way that it can be done adequately. So if one wants to judge the credibility of an appellant, one has to be able to have an oral hearing. Without that the element of lottery in a decision, which is already there, inevitably must increase and that is something that we could not regard as the prevention of abuse.

I shall ignore the political jibe of the noble Earl, Lord Russell. I wholeheartedly agree with him that establishing the credibility of an appellant is the intention of the system.

Did I hear the noble Baroness right in saying that I had made a jibe? If so, what was it? I do assure her that that was not in the least my intention.

I believe I heard the noble Earl refer to matters being brought up during political campaigns. If I have misunderstood the point being made by the noble Earl, of course I withdraw the comment that I made.

All I wanted to say was that the point was made by a spokesman acting for the Conservative Party during a general election campaign. I believe that hearing appeals based only on the papers was then the Government's intention, but what interested me was why they changed it. I was not alleging any impropriety about changing their minds—in fact, I was relieved that they did. I just wondered why they changed their minds back again.

It is my intention to ignore the politics of this amendment and to deal with the amendment before me on the Marshalled List.

Amendment No. 23 proposes changes to subparagraph (5) which would prevent the Lord Chancellor from issuing procedural rules which denied the appellant the opportunity to produce evidence in support of his appeal, both orally and otherwise.

The Government cannot accept the amendment. My noble and learned friend the Lord Chancellor has recently issued for consultation new draft procedural rules designed to reduce delays and adjournments. Comments have been requested by 20th May and a copy has been made available to this House. Among a number of important improvements to the rules, our proposals include an extension of the existing powers to resolve the case without a hearing. The draft rules would extend the adjudicator's existing discretion to determine the appeal on the papers in certain circumstances.

It is important to put this proposal in context. The Government have been seriously concerned about unnecessary delays and adjournments in the asylum appeals system. The majority of appeals now take longer to determine than the time prescribed in the procedural rules. Part of the problem is that the workload of the appeals system exceeds its capacity. That is why the Government are currently investing substantial sums in additional adjudicators and additional hearing rooms. The number of determinations nearly tripled last year from 2,400 to over 7,000, and a further very major rise in determinations is planned this year.

But an important part of the problem lies in avoidable delays and adjournments. A study by the consultants KPMG, which was referred to by the noble Lord, Lord McIntosh, which the Government commissioned in 1994 and made available to Parliament in February 1995, highlighted the havoc caused to many lists by last-minute adjournments. For example, the consultants found that there is little incentive for appellants and their representatives to co-operate with the Home Office and the appellate authority in moving appeals quickly through the system. They found that by the appeal stage, when it is becoming clear to appellants that their chances of gaining refugee status are very thin, it is in the interests of most to seek to postpone the final decision.

The report went on to say that the lack of incentive to co-operate with the appeal process is supported to some extent by the analysis of adjournments. It has been noted that significant causes are illness, lack of readiness on the part of the appellant's representative and absence of the appellant or his representative. The report went on to say that it was not suggested that all the adjournment requests are not genuine, but that for many such representatives it is not difficult to get at least one adjournment. The concern of adjudicators was also noted at the misuse of doctors' sick notes. The report commented that the Home Office Appellate Authority and judiciary should remain alert to the incentive for appellants and representatives to delay the processing of appeals.

The new procedural rules are designed to address the problems identified by the consultants. My noble and learned friend the Lord Chancellor has consulted closely senior members of the Immigration Appellate Authority and the Immigration Tribunal, to arrive at a clear and practical set of proposals. They include greater powers for adjudicators to make directions to the parties for the preparation of cases; a presumption against adjournments unless the adjudicator is satisfied that it is necessary for the just disposal of the appeal, and a stronger presumption against the admission of appeals if notice is not given in time, unless given late, because of circumstances beyond the appellant's control.

Powers to give directions are of no use without sanctions against non-compliance by either party. Therefore, we propose that the adjudicator will be able to proceed without a hearing or to treat the appeal as abandoned, if that is appropriate. In addition, we propose that the existing power to determine the appeal without a hearing may be appropriate in other circumstances. We believe that there may well be cases where it would be both sensible and compatible with justice to proceed in that way. There are cases when, for example, it is plain from the papers that the appellant cannot, or has not tried to dispute the incontrovertible nature of the decision. Where it is plainly unnecessary to hold a hearing, doing so merely adds to the burden on the appeal system.

Perhaps I may stress three points. First, there is already provision for determining appeals without a hearing in certain circumstances. Secondly, we are emphatically not renewing the right to an oral hearing in all certified appeals, as suggested in the Peat Marwick report. All that is proposed is to extend the adjudicator's existing discretion to determine on the papers, if he considers that appropriate in an individual case. It will be entirely up to the adjudicator how far, if at all, he uses such a discretion. We believe that it is an option that should be available to the adjudicator. Thirdly, if an adjudicator uses that discretion unreasonably, the ultimate safety net of judicial review is always available. We do not think that that will happen very often.

We shall, of course, consider carefully all the comments that we receive on the draft new procedural rules, but we cannot agree to Amendment No. 23 as that would foreclose an option that we believe at least deserves to be considered seriously.

Perhaps I may say just a few words on this, with particular reference to the bizarre statement made by the noble Baroness a few moments ago that my noble friend Lord Russell had made some sort of jibe by referring to a debate that he had had with the noble Lord, Lord Waddington. I am glad that I can get a laugh out of the noble Baroness because it is some little time since I have had the pleasure of watching her smile about anything—no doubt partly because of the unfortunate disclosure of the way in which the crime figures are moving at the moment.

I smile a great deal across the Dispatch Box, but the noble Lord has not been in the Chamber enough to see that.

I do my best to study the features of the noble Baroness because that always gives me great pleasure but, unhappily, not on this occasion.

The Minister dodged answering the specific question from my noble friend about the statement made by the noble Lord, Lord Waddington. The Minister may recall that the noble Lord, Lord Waddington, happened to hold the office of Home Secretary for a substantial period of time. May I ask her now whether she will reply to the question? On that occasion, the noble Lord, Lord Waddington, said that the Government were contemplating doing precisely what the Government are apparently now doing; namely, saying that in a number of cases the appeals should be carried out solely on the basis of the papers, without the appellant being present. If that was the position of the Government on that occasion and the Government then decided not to proceed, the question that arises is: why did they change their mind on that occasion and why do they appear to have changed their mind yet again? That seems to be an entirely reasonable question and I hope that the Minister will now reply to it.

The noble Baroness sometimes gives the impression that any criticism, however faint, about any action taken by the Home Secretary or any Minister is in some sense a grave breach of our constitution. Let me reassure her: we do not see things in quite that way. The noble Baroness should not be quite so sensitive when even the mildest points are made, as on this occasion.

The noble Lord presses me to say why the decisions have changed. When speaking to the amendment, I said that we had had the benefit of the KPMG report. I also said that what has changed is that the decision and the discretion are given to the adjudicator. We think that that is absolutely right. I also plead in defence the fact that this is a democratic process. As the noble Lord knows, government is a dynamic. We base our thinking on the latest information available to us. The Lord Chancellor has seen fit to put his proposals out for consultation. They are now out for consultation and if the noble Lord is concerned about them, we hope that he will respond. The proposal is that the special adjudicator should be satisfied, having regard to the material before him, the nature of the issues raised, and the extent to which any directions given under rule 23 have been complied with, that the appeal could be so disposed of justly. It is the adjudicator who must make that consideration. It is the judgment of the adjudicator that it should be appropriate. As I have already said, if the adjudicator acted unreasonably, that would be subject to judicial review.

Perhaps I may say this in clarification: I made no complaint at all about the Government changing their mind. That must happen. I merely wanted to know why they have changed their mind. I did not think that I was raising a major mystery, but I am now beginning to wonder whether I was.

I wonder whether the noble Baroness is aware that the draft procedural rules which she said had been issued by the Lord Chancellor are not available in the Printed Paper Office.

Perhaps I may return to Amendment No. 23, to adapt a phrase which I think has been used before. It is entirely legitimate for the Minister to quote from the KPMG report. We quote from reports from time to time when we think that appropriate. It is, however, somewhat curious that the noble Baroness should quote from that report and then have to admit that the Government have rejected the report's principal conclusion on this issue. After all, the KPMG report said, as I understand it, that all such hearings should be heard on the basis of the papers rather than orally.

My amendment does not propose any such thing. It states that no appeal should be heard on the papers unless the appellant has been,

"given the opportunity to present evidence both orally and otherwise",

and has chosen not to do so. We are not talking about whether all appeals should be on the basis of oral hearings. We are talking about the opportunity for an appellant to seek an oral hearing if he desires to do so. If I caused confusion by the way in which I moved the amendment, I apologise; but I do not think that the contrast between us is as stated by the Minister. I was arguing that there should be an opportunity for an oral hearing. None of the Minister's arguments seems to address that issue—