moved, as an amendment to Amendment No. 56, Amendment No. 57:

Line 15, leave out paragraphs (c) and (d).

In order to save the time of the Committee and given that many of us have much sympathy with the Minister's situation and want to be as helpful as we can—none of us enjoys having flu—I shall address the amendments one after the other. With regard to Amendments Nos. 58, 59 and 60, I have much sympathy with the arguments of the noble Lord, Lord Berkeley. It seems to many of us on this side of the Committee that we are seeing an attempt to deal with a situation in which the discussions on the Schengen agreements have not been completed and, therefore, much of the provision that might be made commonly throughout the single market area has to be dealt with by individual member states. That is an unsatisfactory situation.

As I listened to the noble Lord, Lord Berkeley, I could not help wondering whether the Government might not find themselves in endless litigation with other countries whose freight wagons had been detained, to which they had taken exception. I strongly urge support for the suggestion in Amendment No. 58 that attempts be made to reach agreement with the relevant interests in the railway industry in what is a complex area in which it would be easy to get things wrong.

The noble Lord, Lord Berkeley, made a strong case for Amendment No. 61. At least until there is a code of practice—it may be that the Minister can tell us that one is forthcoming soon—it would be helpful to have an affirmative resolution procedure. The Home Office cannot, by the nature of things, have full expertise in the area of transport regulation, especially in the organisation of railway freight. Therefore, reaching agreement or at least seeking full consultation with railway interests seems an essential part of getting the law right.

With regard to Amendment No. 61, therefore, I should like to press the Minister on the code of practice and to ask him to reconsider his view that the affirmative resolution procedure is not necessary, especially given that basic civil liberties are involved in the retention of property. We have much sympathy with those who are affected by such regulations.

Subsection (1)(b) of Amendment No. 56 repeats the Government's assertion that the very seeking of asylum in the United Kingdom is regarded on an equal basis with illegal immigration. We have raised that point before and shall raise it again, but I should like to flag up again our real concern that people seeking asylum seem to be put on all fours with people who are attempting to evade or have evaded immigration control. That is not acceptable, given our commitments under the refugee convention, the European Convention on Human Rights and other international regulations. We shall return to that issue later.

In speaking in support of the amendments, it seems to me that it is inappropriate to treat a railway vehicle, the ownership and operation of which is complex, as someone's private conveyance that is knowingly being used illegally. It may also be against international and European law to dispose of such vehicles and loads in the manner suggested in the Government's amendment. Some railway wagons consist of up to five or six permanently coupled vehicles. Are they all to be impounded under the regulations, and at what point in their journey?

I hope that Amendments Nos. 57 to 61 would prevent any adverse effect that the imposition of the regulations would have on the general conditions of the carriage of freight into this country by rail. I reinforce the request made by the noble Lord, Lord Berkeley, for a rail freight code of practice to be deposited in the Library.

People who arrive in this country concealed on a train comprising freight vehicles give rise, of course, to an offence and the possible prosecution of the vehicle operator or owner. Presumably, in enforcing the regulations, immigration officers will have to have powers to check vehicles of all descriptions for the presence of people at an appropriate point in the journey. Many of the regulations seem to be passing the responsibilities of the immigration authorities on to the vehicle operators and owners who will have to ensure that they do not get into trouble.

In an earlier amendment, I tried to draw attention to the demands of the immigration service for the provision of services at controlled ports of entry and to ask that some responsibility be recognised for additional costs. In some cases and by some people, the immigration service's working practices are seen to be somewhat inefficient. If so, it would be unfair for the consequences of an over-stretched inefficient service to be loaded on to businesses and operators.

The code of practice that I have seen appears to be heavily loaded against vehicle operators, many of whom are in no position fully to comply. Although I have no quarrel with our desire effectively to retain our island status within a common market or free trade area, the consequences of that and the lack of attention by the authorities of other nations to the presence of unauthorised people aboard vehicles of any description should not ultimately be the responsibility of people such as drivers and operators. It should be the responsibility of the immigration police before transit to our shores.

I support the noble Lord, Lord Berkeley, in his amendments and I suggest that much more consultation needs to take place on this subject before the Bill is finally enacted.

One of the pleasures of having the Minister on duty is that one need not be afraid to ask him technical legal questions. I want to probe the extent of the vires conferred by Amendment No. 66, which states:

"'rail freight wagon' has such meaning as may be prescribed".

Having listened to the noble Lord, Lord Cadman, I understand some of the difficulties that that amendment may be intended to address, but is there any legal limit to the vires conferred by the amendment? Es there any outer limit to what the Minister could, if he chose, describe as a "rail freight wagon"? Is this a case of the famous porter's maxim, "Dogs is dogs, cats is cats, but a tortoise is a hinsect"? Suppose, for example, the Minister were to prescribe a bicycle as a "rail freight wagon". Would that technically be ultra vires under the wording of Amendment No. 66? Before conferring such powers, we should understand what they mean.

I, too, listened with great care and considerable sympathy to the noble Lord, Lord Berkeley. We are a trading nation and we live by our trade, but we threaten our livelihood if we impose undue obstacles and costs on trade. We know what the French, with dubious legality, have attempted to do with imports from Japan, which for many years were impounded at Poitiers while all sorts of legal checks were conducted on their labelling and specification. We risk imposing such a burden on our own commerce. Apart from the fact that that might be shooting ourselves in the foot, which I hope is not an irrelevant consideration, we are committed to membership of a single European market, within which there is supposed to be free and unimpeded movement of goods. Has the Home Office consulted the European commissioner responsible for the single market before introducing this measure? If not, why not?

Finally, I should like to elaborate on the point made by my noble friend Lady Williams of Crosby about whether this measure might impede the entry of genuine refugees. The obvious intent of carriers' liability legislation is to deter the carrier from carrying any immigrant, whether refugee or not. It is not within a carrier's competence to determine whether a person has a genuine, well founded fear of persecution, within the definition of the UN convention. The penalty applies in any case. Can the Minister explain how it is that this new clause would not lead to the turning back of people with a well founded fear of persecution and therefore to a breach of our obligations under the 1951 UN convention? The Committee has a right to ask to be satisfied on that point.

Let us suppose that a person arrives in a railway wagon. As soon as the wagon reaches the point where an entry certificate officer is available, the person comes out of the wagon and presents himself for examination. Then, as I read the clause, that person is still liable to be prosecuted. That is notwithstanding the fact that he was not a "clandestine entrant" within the meaning of the English language. But he is a "clandestine entrant" within the meaning of this clause. However, anyone using English in its normal sense would say that if that person has arrived in a railway wagon but nevertheless comes out of it at the first opportunity at which he can be examined by an immigration officer, he is not attempting to gain entry without passing through an examination point. He has indeed come forward at a point at which he can be interviewed. He has simply used the railway wagon as a means of transport to the United Kingdom and not as a means of preventing his examination at the point of entry.

Why is the term "clandestine entrant" defined separately in this clause rather than by reference to Clause 25 where the remainder of the definition of "clandestine entrant" is contained? Is it riot confusing to have two separate definitions of "clandestine entrant" instead of incorporating the words of this definition in Clause 25 where they belong? Also, what is the definition of "relevant rail freight wagon" to correspond with "relevant ship, aircraft or vehicle" in new Section 25A(2)? The subsection states:

"relevant ship, aircraft or vehicle, in relation to an arrested person … one which the officer or constable concerned has reasonable grounds for believing could, on conviction of the arrested person for the offence for which he was arrested, be the subject of an order for forfeiture made under section 25(6)"—

that is to say, of the Immigration Act 1971. I presume that the term "relevant rail freight wagon" has a similar meaning but I cannot find a definition. I may have missed something. Perhaps the Minister can point it out.

Therefore, is it intended that those freight wagons will be forfeited under Section 25(6) of the Immigration Act 1971, notwithstanding the fact that the operators of the freight wagon have no knowledge whatever that the illegal entrant—if he is such a person—has entered the railway freight wagon clandestinely with a view to gaining admission to the United Kingdom? Is it an absolute offence which causes the wagon to be impounded by the very fact that a person has attempted to gain entry and not through any omission or fat, It by the operators of the railway freight wagon?

I warmly support the principle of Amendment No. 56. However, I should like some clarification on what the individual asylum seeker should do. If he is travelling in a railway freight wagon, one might argue that that is illegal anyway and therefore he should not be there. However, in practice it is much more difficult for a person who is trying to escape from a country in that way to apply for permission to come to the UK because he is probably sealed in a railway freight wagon. That appears to cause extra difficulty for the individual. Let us assume that the asylum seeker cannot obtain exit papers or make contact with a UK embassy in the country where he is liable to persecution, torture or death. How is he to resolve the matter if he receives an offer to enter a railway freight wagon, whatever that may mean or however it may be defined?

I believe that we touched on the point in a different sphere earlier in our discussions. However, would arty penalty be refunded to the person responsible for the wagon if subsequently the individual or individuals were accepted in this country as asylum seekers?

I now seek clarification on another point on which I am ignorant. I assume rail freight wagons enter the country through the Tunnel. I assume that they do not fly in, but I wonder whether they come in also by ship. It would be interesting to know whether there is only one way in which they come here nowadays. With regard to the power to sell a freight wagon, is it not always clear who is the owner? I wonder why that is necessary. Presumably there is no problem in ascertaining who is the owner of a freight wagon. I should have thought that agreement could be reached with that person without necessarily having to sell the wagon.

I am a little surprised by the drafting of the Government's new clause in that it refers to "rail freight wagons" and makes no mention of "rail passenger wagons." Perhaps the Minister considers that passengers are already covered even if they are entering clandestinely or stowing away.

I turn now to the substance of the regulations when they come into force, from the point of view of the operator. First, he faces additional penalties; secondly, he is liable to have his wagon detained; and, thirdly, in extreme cases—I recognise that the noble Lord said the power would be used only rarely—he is still liable to have the wagon sold. It seems to me that the value of a rail freight wagon is likely to be greatly in excess of the penalty for, perhaps unknowingly, bringing in one single person. Therefore, on those grounds, I am inclined to support the noble Lord, Lord Berkeley.

I express my support for the noble Lord, Lord Berkeley, on two grounds. The first, raised by a number of Members of the Committee, concerns the character of seeking asylum through stowing away on a freight train. That might be the only way in which a genuine asylum seeker or genuine refugee can get out of his own country and into this country. Indubitably the Government need to take seriously that possibility.

I return to the points originally raised by the noble Lord, Lord Berkeley. All Members of the Committee are anxious to see a significant increase in the transfer of freight traffic to rail. The Government's amendment, as tabled, is a serious disincentive to that traffic. I echo the point made by the noble Lord, Lord Hylton, that paragraphs (c) and (d) of subsection (2) of Amendment No. 56 seem completely inappropriate and unnecessary. If Clause 56 really relates to the detection of clandestine entrants, why is it then necessary to detain or sell the freight wagon? That simply sabotages the freight operation which we wish to see flourish.

I am not entirely happy about Amendment No. 59, which seems to me too widely drawn. However, I certainly agree with all that has been said about Amendment No. 61 and I hope that the Minister will give the Committee assurances about a code of practice.

Perhaps I may say a brief word about Amendment No. 66, which states:

"'rail freight wagon' has such meaning as may be prescribed".

That seems rather wide. I do not recall seeing such a definition clause before. I wonder whether the Minister will consider a slight alteration to the wording, such as, "rail freight wagon means such rail vehicle as may be prescribed", in the same way as one might say, "such road vehicle as may be prescribed". That would avoid the very wide wording of the present definition.

Perhaps I may say in parenthesis, as it were, as gently as possible to the noble Baroness, Lady Williams, that the town from which the noble Lord takes his ancient peerage is commonly pronounced "barkly" in this country. I had the honour to live there; hence it occurs also in my title. The noble Baroness prefers the American pronunciation; no doubt because of her connections in that country.

I immediately accept the noble Lord's point and apologise for using any American pronunciation in this Chamber.

Turning first to the substance of the new clause, the Minister referred to immigrants and potential asylum seekers entering the country on rail freight wagons as a problem that is growing rapidly. However, he gave no estimate of the numbers who are entering in that way. I realise that it is likely to be an estimate, because some illegal immigrants elude the controls at that point. Have many been identified as attempting to enter the country illegally in that way? If so, to the extent that the Minister is able to tell us, how did they do so? We have heard previously of people entering through the roof of a rail wagon, for example, or hiding under the bogeys. Where has that happened? Italy has been suggested as one place where it happens to a degree. The Committee needs such information in order to attempt to assess whether the draconian remedies proposed by the Government for what is said to be a rapidly growing problem are proportionate to the mischief involved.

It has also been pointed out by the noble Lord, Lord Hylton, that this is not a question of passengers, but merely of rail freight. It would be interesting to know whether the Government believe that a number of illegal entrants are entering the country on passenger trains. It has been suggested to me that the immigration service believes that passenger trains have carried a large number of inadequately documented passengers. It has also been suggested that a change in French law—and probably in Belgian law also—is required for checks to be instituted at the station of departure. The provision places passenger trains on a different basis from passenger aircraft, and aircraft operators are extremely concerned. Aircraft operators are obliged to check all documentation in advance, whereas passenger train operators have no such obligation and no such penalties. If many immigrants are entering in that way, it is clearly a matter of concern.

The clause also requires proper precautions to be taken. However, it is extremely difficult—that was the nub of remarks made by the noble Lord, Lord Berkeley at Second Reading—to see how the proper precautions can be taken by those who will have to pay the penalty if the precautions do not succeed. The difference between lorries and rail freight under the new clause is not clear to me. As I understand it, a large amount of the rail freight that comes into the country through the tunnel does so on lorries; but the lorries themselves are on wagons when travelling through the tunnel.

Perhaps I may explain that they do not come in lorry trailers on piggyback, as many of us would like to see, but they come in containers, which are the same, but without wheels. They are lifted on to, and are separate from, the wagon.

I bow, as always, to the noble Lord's specialist knowledge. It seems that it is particularly difficult to know who is responsible as regards containers, as the noble Lord has set out on other occasions.

We have also had some discussion, initiated today by the noble Earl, Lord Russell, to which the noble and learned Lord, Lord Brightman, contributed, about the definition of "rail freight wagon". That is important. Subsection (2)(c) of the new clause confers the power to detain only a "rail freight wagon". In ordinary speech, a rail freight wagon is a railway wagon; it is not the container which is on top of it. Unless there is some other power, it would seem that the container cannot be detained—only the wagon. That seems odd, unless the definition that is to be inserted following Amendment No. 66 includes containers and is extremely wide—which would probably go outside normal English and he difficult. We need to know more about the proposed definition that will be put in place as a result of Amendment No. 66. The power that is granted by Amendment No. 66 is potentially extremely wide.

The noble Lord, Lord Berkeley, also spoke to several other amendments, relating, for example, to consultation. I appreciate that to permit operators to have a veto by requiting agreement is rather heavy, as the Minister suggested; but that does not mean that we are happy with the limited consultations that have taken place so far. Fortunately, as the noble Lord the Captain of the Gentlemen-at-Arms told us, we are about to have a Recess, during which the Minister and his colleagues can no doubt pursue the consultations, so that we can hear a great deal more about the matter on Report. I hope that we shall have more information by that stage.

Amendment No. 59 relates to the question of who will be affected. It seems that those who will be most directly affected are the lorry drivers. They ought to be consulted just as much as the operators. I should be grateful to know whether such consultation has taken place. Individual lorry drivers will not realise that they will be directly affected until they find themselves in that position, and with a very expensive bill. At least their representatives might be consulted.

I can understand why the Government want to extend to rail freight the draconian penalties that they are putting in place for some other forms of transport—although not all, judging by the situation regarding passenger trains. However, we are worried about the provisions in this part of the Bill. The noble Lord, Lord Berkeley, has done the Committee a service in drawing attention to particular aspects.

I am grateful for the questions that have been put. Perhaps I may deal first with the helpful question raised by the noble and learned Lord, Lord Brightman. I shall certainly give consideration to the definition of "rail freight wagon" in Amendment No. 66, standing in my name.

Perhaps I may help further. In answer to the noble Earl, Lord Russell, I do not think that it would be possible to have a definition to include, for instance, a motor cycle or bicycle. We seek to include a definition of "rail freight wagon", with the intention of catching all forms of railway vehicle designed or adapted for the carriage of goods, but not to catch the locomotive which pulls those wagons. We are more than happy to have consultations with anyone who expresses an interest in these matters. I agree that they are of importance.

It is important to bear in mind the terms of Clause 27. Clause 27(3) has a defence which I shall not read out again. It is worth bearing that in mind as some rather alarmist questions have been raised.

The noble Lord, Lord Cope, raised the question of Eurostar and I accept that this is a legitimate area of concern. Checks at stations of departure are under consideration. We have checks for passengers travelling on the Shuttle; there are UK immigration controls in France and French immigration controls at Folkestone. Again in answer to the noble Lord, Lord Cope, I am not aware, subject to checking, of material that points to any significant use of passenger trains by clandestines. I accept that, as he said, they are used by inadequately documented passengers and that is why they are covered by Clause 32.

The noble Lord, Lord Cope, also quite reasonably asked how I backed up my assertion about clandestine entrants from freight trains. I accept his point that in the nature of things at the moment some may well not be discovered. In January there were nine clandestines, in February nine, in March 83, in April 117, in May 117. In June, because there was a French police operation within their own jurisdiction, a limited exercise, the figure fell to 33. The noble Lord is quite right, those clandestines were destined for the United Kingdom, coming from Italy, but they were found by French police within their jurisdiction.

We are trying to establish a regime which underlines the public concern and the right public policy behind the prevention of clandestine immigrants. I repeat the defence that is open in Clause 27. Clandestines conceal themselves in freight wagons, they use a variety of means of forced entrance and come from a variety of countries. Italy is a problem.

Under the 1951 convention or elsewhere, we have no obligation to facilitate the arrival of asylum seekers here, clandestinely or otherwise. Drivers bringing clandestines have no idea whether their "passengers" are genuine. That is why, on a proper construction but not an unduly harsh one, it is irrelevant whether or not they are genuine from the point of view of the carrier' s liability. It is entirely relevant to what happens to the determination of their claims, but it does not bite on whether proper precautions have been taken by a driver who brings in clandestines.

I simply point out, I hope not unduly harshly, that any clandestine who gets into the United Kingdom must have come from continental Europe. In other words, he has come from a third country where an asylum application could have been made. I am not being harsh, it is a fact of life and of geography.

The definition of freight wagons was also touched on by the noble Lord, Lord Avebury. I hope I have made it plain that we want to consult on the definition that we arrive at. On the first Committee day, I dealt with refunds to those recognised as refugees. The civil penalty is to give the clearest possible signal of the importance we attach to security measures to prevent the entry of clandestine illegal immigrants. If we have refunds, we shall diminish that effect. I repeat what I said a moment or two ago: if they are clandestines and if no system is operated, the vice is in having no effective system, it is not dependent on what happens to the asylum seeker in the end.

Eurostar services are already covered by Clause 32. We do not propose to extend the present clause to cover freight wagons coming as freight; they will be treated as freight on a ship.

There is only one type of clandestine entrant that can be relevant to rail freight. That is referred to in Clause 25(1)(a). I refer to the question from, I think, the noble Lord, Lord Hylton. The reason we put the definition there is that we thought it better to have the wording there for clarity rather than use a cross-reference. The noble Earl, Lord Russell, asked whether we had consulted the relevant European commissioner. We have not, but we have carefully considered relevant questions of European law.

I have dealt with the point on the limit to vires in my response to the noble and learned Lord, Lord Brightman, and with my assurance that, on my understanding, a bicycle could not be included within the definition unless, I am reminded, a bicycle were adapted to run on rails and carry goods—which would make it difficult to pedal. (An example of humour of that quality from the Box is entitled to be repeated!)

A number of issues have been raised in detail. I welcome the fact that informed minds raised them, if I may say so without presumption. There is a good deal of technical expertise in the House and in this Committee which is invaluable. That is why I underline that we want consultation with everyone who has a sensible interest. That is why it would have been a blank cheque or an open postal order to accept what my noble friend Lord Berkeley said. It was that we could not have regulations unless we had come to agreement.

We all look forward to the Recess with panting anticipation. I was asked by my noble friend Lord Berkeley whether the code of practice would be put in the Library before Report. It is a reasonable request and it is our intention to have the code of practice in draft in the Library before Report. The whole point of proceeding in this way is to allow detailed and informed consultation with the industry.

The noble Baroness, Lady Williams of Crosby, asked about the affirmative resolution procedure. I repeat what I said earlier. We do not think it is necessary. The principles of the civil penalty are already clearly set out in the relevant part of the Bill. The purpose of the power is to take account of the needs and troubles of the industry generally. I do not think that would require the affirmative procedure. The noble Baroness also asked about Schengen. As she said, we have an opt-out from it because we have no intention of removing our frontier controls with other European Union member states.

The final question came from the noble Lord, Lord Berkeley, on the definition of a train operator. It is not to be applied for the purpose of imposing a civil penalty on freight trains. The definition is used for the purpose of Clause 32. I hope that I have covered all the points Members of the Committee raised, but I see the noble Lord, Lord Avebury, rising to tell me that I have not.

I wished to remind the noble Lord that I asked where the definition of "relevant rail freight wagon" was, analogous to the definition of

"relevant ship, aircraft or vehicle",

in Clause 31.

I will check that before the end of this evening's business. In any event, apart from informing the noble Lord informally, of course I shall write to him and put a copy in the Library. It is a matter of more general importance than his specific inquiry.

Before the noble Lord sits down, perhaps I may ask one question on Amendment No. 61. He said that the Government were not minded to accept the affirmative resolution. However, he did not respond to the point relating to whether a code of practice with regard to the railway industry would be introduced soon. If so, part of our concern would be met.

With regard to subsection (1)(b) of Amendment No. 56, can he say anything about what steps might be taken in the case of a genuine refugee to permit him or her to travel? I believe the Home Office is trying to install some kind of hot line procedure. It may be that the Minister would rather leave the matter to a later stage of the Bill.

I am grateful for the noble Baroness's consideration. That is certainly one aspect to which we are giving a good deal of thought—not least following the helpful conversations that the noble Baroness and the noble Lord, Lord Dholakia, had with myself and Home Office officials.

I said that the code of practice would be placed in the Library before Report stage. I am not sure whether the noble Baroness was questioning me about that.

I enjoyed the Minister's remarks about bicycles and was reassured by them. I thank him and the noble and learned Lord, Lord Brightman, for their helpful comments. If the Minister will forgive me, I would like to probe further the question of clandestine entrants who are also genuine asylum seekers.

The Minister said that the Government are under no obligation to facilitate the entry of clandestines. Those words are clearly correct but they are also carefully chosen. I understand that the Government are under an obligation to give a hearing to people who wish to claim asylum in this country. It could be argued—I put it no higher—that to establish a regime that makes it extremely difficult for people to exercise that right might be construed as an evasion of that right. The Minister knows that courts are not charitable institutions and they occasionally construe people's actions in ways that do not give them pleasure. Can the Minister be certain that we will not lay ourselves open to that construction?

I can give a degree of reassurance because both my noble and learned friend Lord Falconer and I have been concerned with the general spectrum of questions that the noble Earl and others on his Benches have been asking.

At present, if the carrier brings inadequately documented passengers to the United Kingdom, there are two relevant concessions. The charge otherwise payable under the Immigration (Carriers' Liability) Act 1987 is waived or repaid where the captain of the ship or aircraft has allowed aboard a person whose life or limb was in imminent danger and where the inadequately documented person successfully claims asylum. Both concessions apply in respect of all fare-paying passenger transport subject to the charges for carrying inadequately documented passengers, and they are to be continued in Clause 32. If a carrier openly brings genuine refugees to this country, he will not be subject to a charge—or the charge they have paid will be refunded.

The more focused question centres on what is to happen if genuine refugees are brought here on a clandestine basis. I repeat something that I do not think is a philosophical evasion or a linguistic ploy. If someone brings clandestines here, self-evidently he does not know nor has any interest in whether or not they are genuine. He cannot, in the nature of things. We have given thought to that issue and if prosecutions are about to be launched, Article 31 of the convention will be considered to decide whether it is in the public interest to prosecute persons who have used false documents.

The noble Earl has raised that question in the past. I do not think that it is capable of being brushed aside. The noble Earl's point, which I accept is valid in some cases, is that a person genuinely fleeing from persecution is more likely to come here with false documents than otherwise.

May I press the Minister on the proposed subsection (2)(c) and (d)? Does he really believe those penalties are appropriate and proportionate? Also, the Minister did not respond to the points made by the noble Lord, Lord Berkeley, in relation to Amendment 60 and the costs and delay to rail freight traffic.

I am grateful to the right reverend Prelate. I did not do so deliberately. The oversight was genuine. As to whether the penalties will be proportionate, if such activities are part of a well-organised racket for carrying clandestines that brings in several thousand pounds, I personally have no sympathy with those who are carrying clandestines.

As to my noble friend Lord Berkeley's questions, if vehicles have to be searched to find out whether clandestines are hidden, significant delay will be inevitable. Many illegal clandestine entrants into this country are preyed upon by organised gangs that charge them thousands of pounds but dump them in this country, leaving them virtually destitute. If remedies include the seizure of vehicles, I, for one, would regard that as entirely proportionate.

I thank the large number of noble Lords who have contributed expert debate. They are concerned not only about immigrants but carriers who may unwittingly be exposed to extra cost or delay. I am grateful for the answers given by my noble friend the, Minister who has gone a long way to answering some of the questions.

It is possible that in future rail freight will come in by ship again—but I expect that has been covered elsewhere. My noble friend the Minister was asked how he intends to get Italian railways to pay up. If Italian railways has an office in London, will he send round the bailiffs or sequester its assets?

As to impounding and selling off rail freight wagons, where will that be done? Will a new government railway impounding centre be built? Who will pay for it? The Bill does not say. It may do so in the code of practice. I would be surprised if the Government did not ask the industry to pay, which would be an additional cause of concern.

My noble friend has produced the best solution—asking the French Government to help. When they helped, the number of illegal immigrants per month fell from 117 to 33. Surely, we can co-operate with the French Government to that extent? It is in the interests of both countries to reduce the number of illegal immigrants. Perhaps the French security people who already look at the trains in Calais ought to add searches for illegal immigrants to their searches for bombs.

I am grateful to my noble friend the Minister for offering consultation. There has been only one meeting with the industry so far. Consultation needs to be much wider. The recess will provide a period to consult and, I hope, to make available the draft code of practice. It is much easier to consult on a document than on a blank sheet of paper. We have had an interesting debate. There are many more amendments, so I beg leave to withdraw the amendment.

moved Amendment No. 61A:

I support the noble Lord's amendment. As he rightly said, shipping companies and airlines have been working closely with the immigration authorities for a number of years to try to streamline the procedures and obviate some of the fairly hefty fines that have been imposed on them over the years. One recalls the debates on the carriers' liability Bill when airlines and shipping companies were, to say the least, peeved by the fines to be imposed upon them for reasons with which one is familiar. Their employees were to act as quasi-immigration officials at points of entry abroad. Airlines and shipping companies felt from the beginning that that was an unfair way in which to proceed.

Since then the immigration authorities have made a number of concessions. Under the approved gate check system, for example, companies can achieve a certain status and so are not fined if people destroy their documents during transit. However, the companies must work to earn that status; it is not given automatically. They must shell out money to invest in various procedures which must be inspected by the immigration authorities. That status can also be removed. I believe that they are right to feel aggrieved that, apparently, train operators and the operators of road passenger vehicles are to be granted automatically what is in effect approved gate check status. I fully support the noble Lord's amendment and hope that the Government have a very good reason for proposing that shipping and airline companies should not be treated in the same way as road and rail interests.

I also support the amendment moved by the noble Lord, Lord Clinton-Davis, which seeks to equalise application of the provisions of the clause. I declare an interest as a director of British Airways. I regret that I was unable to speak at Second Reading. I was involved in some Select Committee work under a very harsh chairman who would not allow me to come to the Chamber. It seems very hard that the sectors which have done much with government to try to reduce document violations—I refer to aviation and shipping—should be the two excluded from the carriers' liability concession under this clause. It is most unlike our normally fastidious immigration service to make a major concession and effectively give automatic gate check status to two modes of transport that are most open to abuse by people who seek illegally to enter our country.

There is no indication of what "satisfactory" arrangements are required in order for road and rail to enjoy exemption from the carriers' liability obligation; yet the airlines and shipping companies must set them out in great detail before they are considered for any concession. They are required to make significant levels of investment in the provision of both facilities and staff training, as I mentioned in the debate on carriers' liability.

Like the noble Lord, even if the road hauliers have a special case, I can see no apparent reason why the provision should extend to train operators if it does not extend to ships and aircraft. Unless there are other special provisions, about which the Minister may wish to inform us, I believe that the clause as it stands creates (to use a stupid phrase) a most uneven playing field for competing modes of transport. I support the noble Lord's amendment which seeks to make it even.

As the noble Baroness, Lady O'Cathain, will be aware and other members of the Committee may recall from earlier debates, I have had an interest in this issue for some time, although I have no personal interest in the industries involved. The airline industry in particular has had to carry out unpaid and unrewarded immigration responsibilities for many years. For example, at Kennedy Airport in the United States of America, which handles a massive number of passengers who travel to the United Kingdom, it is not an immigration officer but a British Airways member of staff who examines the immigration documents when checking in the passenger. I believe that for many years it did not even matter if British Airways carried to the UK a passenger whose documents were false but had all the appearance of legitimacy. However, when this was spotted by an immigration officer, as opposed to airline staff, on the passenger's arrival, a fine was visited upon the responsible airline. That applies not just to British Airways but to all airlines that bring passengers into the United Kingdom.

I was approached on this matter only a couple of hours ago and I have not had time to do the research. However, if I am right in my recollection and that Clause 32(6) is a new provision—perhaps my noble friend can assist—we should be grateful to the Government that in this Bill a concession is to be made when false documents are produced, which on reasonable examination appear to be legitimate, to an airline carrier and other carriers of persons who travel to the United Kingdom.

One further question arises. Another requirement on an airline that brings into the United Kingdom a person who is proved by the immigration authorities not to have proper documents is that the carrier must return that person to the place from which he or she came. In the short time available to me I have been unable to carry out research as to the amount of fines. My recollection—I look in the direction of the noble Baroness, Lady O'Cathain—is that penalties imposed on airlines amount to hundreds of thousands of pounds per annum. The noble Baroness is indicating millions. It is therefore an enormous penalty that is imposed on the airline companies.

I should be grateful if my noble friend could address the operation of subsection (6) and say whether the airline operator or other operators under subsection (2) are still exposed to the requirement, at their expense, of returning the passenger back to the country from which that passenger had come.

I am very pleased that my noble friend Lord Clinton-Davis has had support from the Cross Benches and from the Benches opposite. If he is right, there should be a level playing field, or a level cloud or a smooth level sea, with the same rules applying to all carriers.

Subsection (5) is a thoroughly fair provision. The train operator or the owner of the road passenger vehicle—and now my noble friend wants the provision to be extended to an aircraft operator and a ship—has to prove under paragraphs (a), (b) and (c) that they have made satisfactory arrangements; that all such practical steps were taken; and that the steps taken were practical steps to prevent A's (the offending passenger's) arrival where A refused to provide the required document or documents, or, if there are other reasons, that it appeared to the person who was responsible for bringing that person into the country that A may not have had the required document or documents.

I should be grateful if my noble friend could explain the operation of paragraph (c) because in the case of an airline operator or a ship there is an opportunity to look at the documents during check-in, providing the passenger does go through the check-in process.

What is the situation when a passenger stows away in a ship—effectively refusing to produce the documents—and where, therefore, the shipowner has no opportunity to examine those documents so that paragraph (c) cannot operate? The carrier has to satisfy all three paragraphs.

Stowing away in an aircraft by trying to hide above the wheels, as some passengers have sought to do, is very precarious and dangerous. Indeed, those who have attempted to do so have often lost their lives in the process. However there are other places in an aircraft where a person can skilfully stow away, notwithstanding controls at airports. There are ways of getting into an aircraft, prior to take-off, avoiding altogether the checking of documents by the airline. That is particularly the case at some airports which run less stringent security. I remember being at an airport on one main continent of the world—I will not name the country—where the airport security was extremely lax and where it would have been extremely easy to shuffle out to join an aircraft and not show documents. That is another reason why my noble friend should be supported. It is not a cut and dried matter of looking at documents. Similarly, with a ship, there are means of passengers boarding ships without going through the proper check-in processes.

I look forward to the Minister's reply. I have known him for many years and he is always very reasonable. I hope that he will agree to consider the matter and will not dismiss it outright.

We support the amendments of the noble Lord, Lord Clinton-Davis, which were so ably explained by the noble Lord, Lord Hacking.

We should like to put forward two further considerations. The airlines operate with sensitivity and at a speed which applies to virtually no other form of transport. We are all very conscious of the fact that they handle very difficult situations with great diplomacy and tact. I should like to thank the airline industry, not least British Airways, for the way in which they handle such situations with great courtesy and the minimum of disturbance. Nevertheless, subsections (5) and (6) should apply because of the efforts they make in this regard.

Unless railway trains come from the Channel ports, the chances are very high that they come through a third country. However, in the case of airlines, there is less likelihood that somebody will have passed through a third country and therefore it is very important that arrangements are in place. I reiterate that it is particularly important to the airline industry that genuine asylum seekers should be dealt with separately from those who are clearly not genuine. We support the amendments.

I have sympathy with the amendments. They emphasise the imbalance in regard to these matters between the different modes of travel. That is most starkly indicated if one compares subsection (4) with subsection (5). Subsection (4) states that no charge is payable in respect of any person shown to have produced the required document on a ship or an aircraft, and it clearly covers ships and aircraft in addition to road and rail vehicles, while subsection (5), for some reason which no doubt the noble Lord, in his reasonable way, is about to explain, does not include them. It seems only fair that, in addition to subsection (4), subsection (5) should also apply.

I am grateful for all the contributions that have been in support of the amendments. They concern the carriers' liability provisions in Clause 32. Much of Clause 32 is a repetition of existing carriers' liability legislation. Subsection (5) inserts a new defence against the imposition of a charge under the carriers' liability arrangements. The new defence will apply to a train operator or the owner of a road passenger vehicle. It has been inserted specifically to take account of the specific circumstances of those two forms of transport. I shall develop that in a moment.

Amendments Nos. 61A and 61B seek to extend the application of subsection (5) to aircraft and ships respectively. That does not put right an imbalance in the way the noble Lord, Lord Cope, outlined, but forgets the present circumstances.

Under the existing carriers' liability legislation, no charge is payable in respect of a person who is shown, by the owner or operator of the transport, to have produced the required travel document or documents to him or his representative when embarking for the United Kingdom. This defence is reproduced in subsection (4) of Clause 32. We believe that that has worked satisfactorily for a number of years for ships and aircraft. In France, in relation to trains, buses and coaches only, there are legal limitations on the ability of the staff of the company concerned to check travel documents. The position in Belgium is not quite so clear. It is therefore not possible for the owners or operators of train and bus or coach services in France to benefit from the defence, as can the airlines, under subsection (4) of Clause 32. Therefore, we are not perpetuating an imbalance. We are giving owners or operators of train, bus or coach services in France the opportunity to benefit from the defence.

Carriers' liability already applies to Eurostar services by virtue of an order made under the Channel Tunnel Act; but there is still doubt about the services from Belgium. We have therefore devised the defence contained in subsection (5)—which is narrower than the existing defence for trains—in order to cover the specific circumstances of passenger train and bus and coach services, but in a way which assists them in complying so far as possible. The defence for a train operator or the owner of a bus or coach is to demonstrate that it had satisfactory arrangements in place to prevent the carriage of inadequately documented passengers and had done everything practicable to carry them out.

The Government are determined to continue to use carriers' liability legislation in respect of passenger train services and bus and coach services from mainland Europe. If there is a legal limitation on the ability to check, we recognise this and that is why we have inserted subsection (5) as a new defence.

However, in the case of passengers travelling by aircraft or ship, there are no legal obstacles, in France, or elsewhere, concerning the checking of travel documents. In the case of air travel, international obligations require carriers to check documents. There is, therefore, no difficulty. We do not think that the extension which is attempted is needed because different circumstances obtain for airlines in terms of international obligations and in terms of the other carriers which are presently protected by subsection (4).

I am grateful to my noble friend for giving way. Have the Government, and his department in particular, engaged in consultations with shipowners and airline operators which must have explained their concerns to his department? A number of noble Lords have reiterated them today. If there has not been consultation on these matters, will my noble friend undertake that there will be during the Recess?

I am always happy at any time for officials, or myself as appropriate, to receive any representations. I think that we have a reasonable track record for listening to them. I take my noble friend's point.

My noble friend Lord Hacking asked about the operation of paragraph (c). I repeat: that is designed to reflect the fact that in France, and possibly Belgium, train operators and bus and coach operators cannot check documents but they may be able to determine whether or not travel documents were properly issued.

The noble Baroness, Lady Williams, asked about subsection (6). It relates to subsections (4) and (5). The noble Lord, Lord Hacking, asked whether or not the saver in subsection (6)(a) was new or simply recent. I believe that his recollection is right: it is recent. It repeats a provision in the Immigration (Carriers' Liability) Act 1987. However, in response to his further question, subsection (6)(b) is new. I hope that that is of further benefit.

Our approach comes from this: we want to have co-operative arrangements with all carriers. I endorse what has been said by the noble Lord who spoke first; namely, that the carriers have their own interest which they have sought to discharge in consultation with us. I am happy to reciprocate that. I repeat: a carrier's staff are not expected to be immigration officers but they are expected to make checks. As the noble Lord, Lord Hacking, said, they try to do that.

The immigration service is always ready on request to train carriers and their check-in staff abroad. We have already had well over 500 training trips for over 150 carriers in 90 countries. Our evaluation shows that the average reduction in the number of such cases can be as much as 30 per cent once the carriers are trained. I repeat: we are more than happy to continue that, so I think that our interest is a common one.

On the questions raised by the noble Baroness, Lady O'Cathain, and my noble friend Lord Hacking, we have airline liaison officers abroad. We do not have enough at the moment, I agree, but we are planning to increase the number of airline liaison officers abroad to about 20 by the end of the year. I think that it is generally true to say that all the Schengen countries have carriers' liability laws. In total, over 50 countries have such rules and regulations.

In summary, the reason that we have drawn the distinction is not to discriminate against one class of carrier or another, but simply to say that there are international obligations which bind the airlines. There are legal provisions in Spain which disentitle the other carriers. We have simply sought to deal in a balanced way with both sets of carriers.

I am grateful for the care with which the Minister has responded to this interesting and short debate. I am not totally convinced at present, but I appreciate that my noble friend said that, through his officials, he will entertain representations from those who feel that they are being prejudiced by the operation of the current situation and that involved in the Bill.

I do not want to exacerbate the situation of my noble friend. He is suffering enough already! I therefore beg leave to withdraw the amendment.

moved Amendment No. 62:

I hope that I am not being pedantic when I point out that the clause deals with,

"Charges in respect of passengers without proper documents".

It seems artificial that they should depend on the size of the vehicle. I therefore gladly support the amendment.

We are sometimes criticised for dealing with dangers that do not exist. We are trying to avoid making provision for issues that we have not found a problem with. We are extending carriers' liability to buses and coaches because of the significant increase in the number of inadequately documented passengers arriving here by bus or coach. We have not found a similar problem with taxis. It is very rare for taxis to carry fare-paying passengers to the United Kingdom. If they did, they would be subject to the normal checks made by ferry companies.

Clause 32 has been cast wide enough. From experience we see no need to extend the scope of the definition of road passenger vehicles contained in subsection (9). When my noble friend Lord Berkeley pointed out that we had not dealt with a particular type of rail freight operator, we beetled off immediately to include them, but this is not a problem that we have encountered.

If it is not a problem, perhaps I should have tabled an amendment to delete subsection (9)(b), which catches taxis. If they are not a problem, we do not need that paragraph, However, that is a debate for another occasion. I beg leave to withdraw the amendment.

moved Amendmem No. 63:

I hope that the amendment will not draw the same answer as the previous one, because it addresses a real mischief. I should like to tell the Minister a story that was told in this House by my noble friend Lord Harris of Greenwich. It is a story about carriers' liability that occurred before he was in this House.

There was a plane flying from Toronto to Copenhagen with passengers correctly documented for Copenhagen and with no plans for a stop in the United Kingdom. There was an onset of particularly severe weather and the pilot was warned that it would be unsafe to continue the flight. He was required to land at Glasgow. He waited for several hours and was advised that Glasgow would not clear him for take-off because the weather was still worsening. The passengers were put up in a hotel in Glasgow overnight and continued their journey the next day. The airline was fined £2,000 under carriers' liability. That was a deterrent to air safety. Today of all days we might take some account of that.

As well as the air safety argument, there is also the effect on British trade, which the noble Lord, Lord Cope of Berkeley, has mentioned. Transit passengers are a paying business for this country. They are a vital and growing part of the economy. We should not discourage them or penalise passengers who can have had no thought of making an illegal entry into this country because there was no prospect of their plane stopping here. The case that I have mentioned was legally in order under carriers' liability legislation. Care should be taken to ensure that the problem does not arise again.

For the reasons given by the noble Earl, Lord Russell, and my noble friend Lord Cope of Berkeley, I hope the Government think again about the clause. Subsection (1) says that:

"The Secretary of State may by order require transit passengers to hold a transit visa".

However, we are not told what will happen to the transit passenger if he does not hold a transit visa. It seems extraordinary to try to stop any transit passenger from moving away from this country and it is a great interference with their freedom. With the deepest respect, the clause will not do. However, my noble friend has driven some sense into it with his two amendments.

The amendments are desirable and I support them. They would remove much of the bureaucracy relating to transit passengers at airports and would remove much of the immigration service's need for special facilities and extra manpower. The consequences of our insistence on protecting ourselves from uninvited people and, perhaps, of the lack of attention to the issue by others must be borne to some extent by the taxpayer and not wholly by affected businesses. Provided that airports can segregate transit passengers properly and keep them airside, why should such passengers need visas?

I also support the amendments. I do not understand why Clause 33 is in a Bill on immigration and asylum. No doubt the reason will become apparent in the supplementary regulations to be made under the clause.

Many people who have to pay for a transit visa feel aggrieved and regard it as a fine for passing through this country. The provision brings a lot of opprobrium on this country. I have encountered similar provision in other countries. I do not like it and I am sure that nobody else does. The amendments would help to improve the situation.

In answer to the specific question put by the noble Lord, Lord Renton, the clause simply repeats Section 1(1)(a) of the Immigration (Carriers' Liability) Act 1987, which was introduced by our predecessors in the Asylum and Immigration Appeals Act 1993. I recognise that the fact that our predecessors did something is not necessarily a knock-out blow in the context of argument. Indeed, the noble Baroness might think it is a knock-out blow the other way.

There is a point to the measure and I shall develop it because serious issues have been raised. If Amendment No. 63 were passed, it would disentitle the Secretary of State from imposing the requirement to obtain a transit visa on transit passengers—I stress, on transit passengers—who hold valid travel documents which allow them entry into another country. That means that there would be an end to the UK system of direct airside transit visa regimes and it would significantly affect our immigration control powers.

The United Kingdom visa requirements cover 106 countries. All but five of those are countries on which all EU member states impose a visa regime. The vast majority of visa nationals do not require a visa to transit the United Kingdom and benefit from a concession, known as a "transit without visa concession". It is an important concession for reasons that I shall develop, but it enables nationals to enter and transit the United Kingdom without obtaining a visa provided that transit is by air throughout; that they have an onward booking by the next available flight within 24 hours; and that they have the necessary documentation for their destination. That is a concession which we give and which has proved effective in practice in terms of the management of business, not overlooking our commercial interests which are extremely important.

In answer specifically to the concern raised by the noble Lord, Lord Renton, that concession is withheld from nationals of just 16 countries. That is because the concessions have been abused in the past. The countries are Afghanistan, China, the Democratic Republic of the Congo (Zaire), Eritrea, Ethiopia, the Federal Republic of Yugoslavia, Ghana, Iran, Iraq, Libya, Nigeria, the Slovak Republic, Somalia, Sri Lanka, Turkey, Uganda and holders of documents issued by the so-called "Turkish Republic of Northern Cyprus" and the former Socialist Federal Republic of Yugoslavia. Therefore, there is a small list of countries about which we have been sufficiently concerned to make that requirement. The overwhelming majority of countries and their nationals have that concession.

However, given the UK's importance as a transit hub, we seek only to impose a direct airside transit visa regime where we have found there to be no other solution. It is used as a last resort only, and only where we have had evidence of extensive sustained abuse of control.

The effect of Amendment No. 63A would be that the Secretary of State would have to exempt holders of either an entry permit to reside in, or a visa to enter, a state of the EU from a requirement to obtain a transit visa. As I have explained on a number of occasions, we have no objection in principle to a system of exemptions from the direct airside transit visa requirement. However, we need to be sure that such a system would not be open to abuse. There are some permits from EU member states which are easy to forge. In our judgment, they are not sufficiently secure to safeguard our legitimate rights.

I hope that I have been able to indicate in particular to the noble Lord, Lord Renton, that his fears are misplaced. It is a continuation only of the existing system. The visa requirements cover 106 countries and we found abuse in only 16 countries. I am pleased to have been able to explain the situation at some length and I believe that we are right to seek to continue these measures. It is a fact that countries change and it is necessary to keep a list up to date, sometimes by deletions and sometimes by additions.

I am grateful to the Minister for that full explanation. However, I am still perplexed by the expression "transit passengers" in the first line of the clause. I tried to find a definition of that in Clause 35, the interpretation clause, but there is none. If a passenger is a transit passenger and described as such, what is the purpose of requiring him to hold a transit visa? If he is a transit passenger, it must be assumed that he will move on anyway. Therefore, I believe that the use of the word "transit" in that line makes the Minister's explanation difficult to follow.

I take his point about the 16 countries from which people come here without permission, perhaps trying to call themselves "transit passengers". However, they are not transit passengers: they would be illegal immigrants, which is different.

The noble Lord finds the definition of "transit passengers" in Clause 33(2). Here, we are dealing with people who ought to be transit passengers—in other words, who come for a short time and move on—because we are a very important transit hub. We have no problem at all with that, but we must have a limited regime; limited to 16 out of the 106 countries where we have found evidence of abuse. Therefore, the general concession is not given to those from a limited number of countries. To put it crudely, if people want to come here using, say, Heathrow as a transit hub—in other words, an intermediate point—we are happy for them to do so provided that they depart. We have limited the number of countries in respect of which we do not give the concession.

I agree that the definition of "transit passengers" appears in subsection (2) and I have seen it. However, we are merely given a view of the type I have described; namely, people,

"who on arrival in the United Kingdom pass through to another country without entering the United Kingdom".

If that is the position, surely we should just let them through. To require them to have a transit visa as well is somewhat bureaucratic, adding to the troubles of airport immigration officers in particular. I was most familiar with that many years ago when helping to pilot the Commonwealth Immigrants Act 1962. It is as old as that!

Perhaps I can help to defuse the situation. Would the Minister be so good as to say that the Government will interpret Clause 33(3)(c) as widely as possible so that the minimum number of people are caught?

Of course, one wants to catch the minimum number of people, but I return to what was said by the noble Lord, Lord Renton; that we want them to come here and transit. No one would be happier than I if they did come here and transit, hut we are worried about the people who come here and have no intention of transiting.

We would be perfectly happy for someone to travel here on a transit basis from one of the 16 countries with a ticket to the United States. However, we would not be happy for people to come here with no restriction of the kind we are considering. If someone does not have a transit visa of the sort being discussed—as raised by the noble Lord, Lord Renton—he will not be allowed to board the plane to the United Kingdom. We have found abuse by some nationals from those countries. We have limited the abuse to a small number, but some people will come here pretending to be transit passengers when they have no intention of taking an onward flight.

I do not know the details of the example raised by the noble Earl, Lord Russell, but it is unlikely to have been caught by the kind of regime we are discussing. I am more than happy to look into it if the noble Earl gives me the details of the case.

I am grateful to the Minister. I am also interested in what the noble Lord, Lord Hylton, had to say about Clause 33(3)(c). Will the Minister consider using that clause for the protection of people whose aircraft are unexpectedly delayed in the United Kingdom for reasons of air safety only?

I have already said that the example given is unlikely to be caught by this regime. The noble Earl said that there may be a storm or lightning, requiring passengers to land at a point where they never intended to go. I do not believe that that situation will be caught by this regime. If I am advised that it may be, I shall look into it further.

I heard the noble Lord, Lord Waddington, tell the Committee, quite rightly, that that situation would be caught under carrier liability.

I am not always in perfect agreement with everything that the noble Lord, Lord Waddington, says. I shall certainly look into the matter.

I normally agree with my noble friend Lord Waddington. On this occasion I have found the Minister fairly persuasive, not least in his reference to the previous government, who were right at the time, although the situation may have changed since. There may be difficulties in preparing an order under Clause 33(3)(a), which specifies a description of persons by reference to their origin but not by reference to their race. It is extremely difficult to think what "origin" can mean that is different from the meaning of "race", but I shall not press the Minister on that point as it is not raised by my amendment. For the moment, I beg leave to withdraw the amendment.

moved Amendment No. 64:

I support Amendment No. 64 in the name of the noble Lord, Lord Cope of Berkeley. I hope I have pronounced his name correctly. I believe my pronunciation is better than the American pronunciation attempted by my noble friend.

I have no problem with the first part of the amendment concerning those who, effectively, exploit illegal immigrants and bring them into the country for vast sums of money. If they are caught, the transport is confiscated. If charges are not paid, it is right and proper that the property is sold on the open market in a way that achieves the best possible value so that any refund due can be paid to the individuals.

I am concerned about Amendment No. 65 which is grouped with Amendment No. 64. It refers to those who may be found not guilty of a particular offence. In that situation the Home Secretary is not legally liable, even if proved wrong in terms of confiscating someone's property. These powers are far in excess of what a court of law in this country imposes. If the Home Secretary is found to have been unlawful in the way in which he detained the property, it is right and proper that the individual should be repaid the money due to him. On the other hand, if it is proved that the individual was guilty of a particular offence, there is no problem.

We are talking about the rules of natural justice. It is right and proper that individuals who are found not guilty are able to claim the money back from the Home Office. The provision gives a draconian power to the Secretary of State. I hope the Committee will support the amendment.

Can the Minister explain the reason for the distinction between the powers to detain and sell off the assets that we are discussing under Clause 34 and the regulatory powers which we considered when debating Amendment No. 56? Why is it possible to put on the face of the Bill the detail of powers to detain these particular items which are described as "transporters" and to sell them under the specialised circumstances when powers to deal with rail freight wagons are to be put into regulations? It seems illogical to treat rail freight wagons in such a different way from all the other methods of transport covered in Clause 34.

These are two important amendments, given what a number of us were saying earlier on the Government's new clause in relation to draconian penalties.

I refer to line 43 of page 24 where a period of 84 days is specified in the Bill. In my commercial experience—now a few years ago—it was not uncommon for government departments in this country to take 90 days and more before paying their bills to commercial organisations. Therefore, 84 days may be a little on the low side.

The part of the Bill to which Amendment No. 65 relates may bear particularly harshly on owner-operators of single vehicles. Perhaps the Government will take that into consideration.

I understand the anxieties being expressed; but if one looks at the scheme in Clause 34, they are not justified.

The reason we have regulations for rail freight wagons—the point of the noble Lord, Lord Avebury—is that we need to adapt provisions of part of the Bill to the specific circumstances of the rail freight industry. Clause 34 deals with a justifiable regime to allow the immigration service to detain and sell transporters to recover unpaid charges imposed under Clause 32.

First, therefore, a charge needs to have been imposed "under section 32", as indicated in Clause 34(1) which states:

"A senior officer may, pending payment of any charge imposed under section 32, detain … the transporter".

That is the first safeguard. In other words, anyone subject to a charge "under section 32" can pay, in which case Clause 34 does not begin to bite at all.

Secondly, the other safeguard to which I ought to draw the attention of the Committee appears in subsection (3):

"The court may release the transporter if it considers that—

(a) satisfactory security has been tendered … or

(b) there is a significant doubt as to whether the charge is payable and the applicant has a compelling need to have the transporter released".

If the court then has not ordered the release of the transporter—this is "court" intervention which is available—84 days beginning with the date on which detention began (that is quite a long time) have to pass before the Secretary of State can dispose of the transporter.

The amendments fall into two categories, clearly approaching the matter from two different bases. I understand the point of the first amendment; that is, we have to obtain the best price—I believe that is a fair summary. But that is exactly the duty that is set out on the face of the Bill. At paragraph 3 of Schedule 1 (on page 105) a specific duty is set out as follows:

"If leave for sale is given, the Secretary of State must secure that the transporter is sold for the best price that can reasonably be obtained".

That is a better safeguard, in some circumstances, than simply saying, "on the open market". As I see it, the Secretary of State has a wider duty there.

In relation to Amendment No. 65, Clause 34(5) makes the detention lawful even if it subsequently transpires that the imposition of the charge was ill founded. But that must be read in conjunction with subsection (6), which states:

"But subsection (5) does not apply if the Secretary of State was acting unreasonably in imposing the charge".

Therefore, if one takes subsections (5) and (6) together, which one has to, one sees that the detention of a transporter is not lawful unless the Secretary of State was acting reasonably. So all those safeguards are built in.

Turning to the question of the noble Lord, Lord Hylton, a period of 84 days was suggested when this part of the Bill was considered in the Commons. We consulted industry. I am told that it was thought appropriate and therefore an amendment was brought forward in the Commons to deal with this point.

Bearing in mind all these interlinked safeguards, not least the question in Schedule 1, this is not at all unduly draconian. However, I perhaps should say this, because it may be to the advantage of the industry generally and I say it deliberately. The immigration service envisages these powers being used sparingly and only when other attempts to recover accumulated debt have failed. It is important that where the Secretary of State acted reasonably, he and the taxpayer should receive some protection. In balancing this against the interests of the carrier, I can assure the Committee that detention will be instigated only after the most full and careful consideration of the circumstances—I should perhaps emphasise the next words—including representations from the carrier. I am happy to give that assurance.

Can the Minister confirm that these assurances will extend to rail freight wagons and that the detention of rail freight wagons, under the regulations which have not yet been issued, will at least be expressed in the same terms; that is, that it will be pending the payment of any charge and that the courts may be able to release the rail freight wagons in like circumstances to those of this clause?

I shall certainly give that point proper consideration. I cannot commit the Government on the hoof, but it is a fair inquiry and I shall give it careful thought.

If it was found that the Secretary of State was acting unreasonably, would it mean that, as a result of that action, he would reimburse the carrier for any expenses incurred as a result of the detention?

Subsection (5) gives the protection of lawfulness in terms of detention. It does not apply if the Secretary of State acted unreasonably. If one detains another's property and it is not on the basis of law, the owner of the property has the usual remedies from the court which fall to be determined in the usual way on the usual principles.

In relation to Amendment No. 64, I had not observed that Schedule 1(3) applies in such cases. I entirely agree with the Minister that it is a better formulation and I am content with that.

In relation to Amendment No. 65, the noble Lord made some interesting points, but it may be a matter to which we shall want to return at a later stage. For the moment, I beg leave to withdraw Amendment No. 64.

moved Amendment No. 66:

moved Amendment No. 67:

Before Clause 36, insert the following new clause—

I am glad to be able to support the amendment moved by the noble Baroness, Lady Williams of Crosby, to which I have added my name. The amendment concerns the provision of legal aid and seeks to give proper legal representation at a bail hearing. I welcome the requirement in the Bill that reference shall be made to the court for the purpose of determining whether release on bail should be provided.

The whole matter of detention has aroused widespread dismay, especially the arbitrary way in which detention has been used. It has been difficult to determine on what grounds detention has been used. It is not clear why some are detained while those in almost identical circumstances are not detained. I therefore welcome the provision of these bail hearings.

As the noble Baroness, Lady Williams of Crosby, has argued, these hearings will meet the widespread concern in this area only if there is proper legal representation. In some cases this can be provided. Reference has been made to bodies such as the Immigration Advisory Service and the Refugee Legal Centre. I am glad to hear that there may be possible additional funds available to them. However, although they are publicly funded, the level of public funding is dependent upon decision of the Home Office. It is perhaps a somewhat curious situation that the Home Office can decide the level of support that is to be given to these bodies which are arguing the opposite case to the Home Office itself.

It is clear that at the present level of support these bodies cannot possibly meet all the demand. As has been said, they are already overstretched. The Asylum Rights Campaign estimates that possibly some 10 per cent of those who need to be represented at bail hearings could be represented by these publicly funded bodies. Therefore, the extension of legal aid to cover these bail hearings seems to be of great importance. It is clear that many, probably most, asylum seekers are not able to afford any kind of legal aid which they pay for. If legal representation is not available to an asylum seeker, it is difficult to see how his or her case is to be properly argued. Effectively, the detainee is unable to make a case. The noble Baroness, Lady Williams of Crosby, argued that such a person is likely to be in a particularly fragile condition. I make the additional point that most of us who have to argue a case before the courts in this country have some kind of support. We may belong to a professional organisation or a trades union. However, there is no such support available to an asylum seeker.

Therefore there must be a real question to be addressed in relation to the European Convention on Human Rights. As has been pointed out, Article 6 entitles all to a fair trial. Without proper legal representation it seems to me perfectly possible to argue that this right is not being provided. I am aware that there is a question mark about whether Article 6 should attend to asylum seekers, but I am also aware that a recent decision in the courts seems to indicate that in present circumstances it is likely to apply to asylum seekers. I quote from the Asylum Rights Campaign and the document Immigration Detention and Human Rights which states on page 35:

"Assuming that the determination of asylum law issues can be within the ambit of Article 6, the present scheme may he wanting in so far as it appears to deny many applicants a right of access to the Courts".

The document further states that it is possible to argue that an applicant,

"had been effectively denied access to a Court because legal representation was required … and the applicant could not afford it and was not able to obtain legal aid".

I should be grateful to hear the Minister's view on how Article 6 of the convention is to be met unless there is proper legal representation at a bail hearing.

Although asylum seekers may not have—as the right reverend Prelate said—any trade union or professional association looking after their interests, they do have the services of the Association of Visitors to Immigration Detainees who do an excellent job in putting asylum seekers in touch with relevant organisations, including those which have been mentioned several times; namely, the IAS and the Refugee Legal Centre. Therefore people do visit detention centres and other places where asylum seekers are held and attempt to put them in touch with those who are capable of providing them with this legal representation. I thank the Home Office for providing a certain amount of support for these bodies which enables them to do their work.

All those who have looked at this subject have commented that the £5.9 million allocated by the Home Office for the provision of legal services by these two organisations in the year 1998–99 is grossly inadequate. It is already quite insufficient to enable them to deal with the appeals. They have only the capacity to look after a fraction of the asylum seekers who come to them for assistance. If the additional work of looking after the bail applications is now being placed on them, they will be totally unable to cope.

Even if, by some act of great generosity, the Home Office was able to assure the Committee that the money available was sufficient, I believe that it would still be difficult for these two services to expand the provision of advice to cope with the system of bail once it is introduced. It will take them quite a long time to recruit the necessary lawyers and so on. I would like to see the two organisations handling the bulk of the cases. I believe it is a fact—perhaps the Minister will comment—that because of their general competence and knowledge of the situation of asylum seekers, acquired through great experience of dealing with such cases, they score a much higher percentage of success in cases taken before adjudicators or the tribunal than run-of-the-mill solicitors. I do not mean to disparage solicitors; I say only that most solicitors do not have the detailed expertise that resides in these organisations. Therefore the organisations are more successful in appearances before adjudicators and tribunals. For that reason I think it would be highly desirable if they could cope with the bulk of the applications for bail which will be made after this Bill comes into force.

However, when we see what is said in the White Paper, one cannot be too optimistic. The White Paper states at paragraph 7.26,

"The Government is determined to bring this use of legal aid under tighter control. It cannot be right that legal aid is so freely available at the taxpayers' expense to those whose claim to remain in the UK is unfounded".

How do we know that a claim is unfounded until it has been tested before the courts? It is not a good start for the Government to adopt the attitude that because some of the cases which will be presented for bail are not well founded we should look carefully at the amount of money that is being spent and try to force it down.

The matter was raised in the Second Reading debate, and the Minister was kind enough to write to me. I wish to quote from the Minister's letter to place it on the record. He wrote:

"You also raised the issue of legal aid for detainees in connection with routine bail hearings and the funding arrangements for both the IAS and RLC. On the first of these points I am happy to reassure you that it has always been our intention to ensure that detainees could obtain free representation for routine bail hearings".

I am glad to have that on record. The letter continues,

"We do not however feel that it would he appropriate for detainees to have access to legal aid. Given that there are already Government funded organisations who can give free representation in connection with appeals and related questions of bail under the 1971 Act, it seemed most sensible to provide a similar provision for routine bail hearings. As well as representation at the hearing itself, funding will be available for these organisations to visit the detainee to take instructions. Officials within the Immigration Service have consulted and met both organisations to discuss concerns about representation and funding. Clearly both organisations will need an increase in their grant in aid payments to enable them to provide a service to all detainees irrespective of where the person is detained".

That is very good as far as it goes. Can the Minister give an assurance not only that the money will be increased but that the two organisations which will be in receipt of these grants will be given the opportunity to build up their staff so that they can cope with the expected flood of applications for assistance with regard to bail hearings? If the RLC and ILS tell the Minister that they cannot immediately put themselves into gear to take into account all the cases that will be submitted, can the Minister assure us that at least those which they cannot accept for the time being will be the subject of legal aid for the interim period before they get into full gear?

I rise to speak to my Amendment No. 85, which is included in this group. It is most important that detained people whose cases have not yet been determined should have representation in addition to advice before a bail hearing. It is essential if, as often happens, those persons have no English or very poor English. All sides of the House—including the Government—are agreed on the need to keep the use of detention to the absolute minimum.

We are faced with a situation where we have three alternative amendments in virtually the same terms. One or other them may be better—perhaps the Government will express an opinion—but I urge the Government to accept at least the principle of the amendments and, if they wish, to come forward with a better form of words.

In any case, it must be made crystal clear that representation and advice in bail hearings should be available to asylum seekers as well as to other kinds of immigration cases. If this principle can be adopted there will be very considerable savings to the public purse in view of the very high cost of detaining a person for even as long as a week.

I support this amendment and the case made out by my noble friend Lord Avebury and the noble Lord, Lord Hylton. One of the problems is that there are very few bodies offering advice in terms of immigration and asylum matters. They are inundated with work and there is considerable pressure on their particular resources. I am grateful to the noble Lord, Lord Williams, for having put in a considerable amount of work in terms of bail and related matters.

No one can dispute that if Article 5 of the ECHR is to be satisfied a detained person must have access to legal representation at hearings where his liberty is in question. Although it can be argued that organisations can be funded exclusively under Clause 45 to provide legal representation, that might not always be the most efficient use of public funds. For example, if a solicitor has already been instructed by a detainee, it would be a more efficient use of public funds for the solicitor to represent the detainee at the bail hearing rather than for a file to be sent to the Refugee Legal Centre or to the IAS. If bail hearings are to be held infrequently in more geographically isolated courts, people at local level may provide a more efficient service.

I understand that some representation was made by the Legal Aid Board to the Lord Chancellor on this matter. It would be very helpful if it could be indicated precisely what the representations were and the outcome of the discussions with the Lord Chancellor's office.

We on these Benches support the amendment standing in the names of the noble Baroness, Lady Williams, and the right reverend Prelate the Bishop of Ripon.

Amendment No. 67A, standing the name of my noble friend Lord Cope of Berkeley, is a small and technical one. Under the Immigration Act 1971 only hearings before an adjudicator would be provided for. The wider definition of "Immigration Acts" would enable representation to be provided at the bail hearings. The noble Lord, Lord Dholakia, mentioned the strain on representation and the need possibly for voluntary bodies to be involved. Nevertheless, if a detainee has a solicitor, it enables that solicitor to be present at an early stage in the hearing.

Perhaps I may speak also to Amendment No. 97. This amendment seeks to further tighten the definition of authorised advocate by reference to the definition of "qualified person" under Clause 74(2) of the Bill. The amendment bears in mind the purpose of the Bill to regularise the professional representation of asylum seekers.

I wish to speak in support of Amendment No. 99, which is included in this group. It stands in the name of the noble Lord, Lord Cope of Berkeley. I thank him for his kind words about our amendment and I would like to support this one standing in his name. It seeks to provide that,

"the Secretary of State shall ensure that such advice and assistance for detained persons is available in Northern Ireland".

It is not in this group.

Is that amendment not in this group?

No. It comes later.

I beg the Minister's pardon. It was in my grouping, which must be out of date.

My noble friend Lord Glentoran will be speaking to the amendment later in the debate.

I sympathise with many of the questions that have been put. I hope to be able to reassure the Committee about the scheme we have in mind. I cannot support any of these amendments but perhaps I ought to make our position plain. The Government intend to ensure that legal assistance is funded throughout the bail process by means of Clause 45 of the Bill. As the noble Lord, Lord Dholakia, pointed out, this supplements the funding already given for bail applications under Section 23 of the 1971 Act.

It perhaps will be helpful if I make it quite plain that we are working with the organisations currently funded under Section 23 to ensure adequate representation in all parts of the country. The Refugee Legal Centre and the Immigration Advisory Service have been, and will continue to be, involved in assessing the funding and personnel resources required to ensure that every detainee has representation at bail hearings. The Refugee Legal Centre and the Immigration Advisory Service will be part of the project group in implementing this part of the Bill. We could not have included them more fully.

I do not have precise figures but I can confirm from my own experience and from comments by various tribunals that they provide an extremely good service. When the noble Lord, Lord Avebury, said that very often the expertise is more concentrated there, that is absolutely so. There is a serious danger of other practitioners, apparently qualified, lacking the expertise to deal with these difficult matters—not least with the problems of language and culture. The Refugee Legal Centre and the Immigration Advisory Service are well equipped to deal with such problems but many barristers and solicitors are not.

The right reverend Prelate the Bishop of Ripon raised the question about whether or not these arrangements would be consistent with Article 6. Article 6(3) deals only with those charged with a criminal offence; it does not therefore go to the question with which we are dealing. However, I recognise his underlying purpose. Article 5 does not provide a funding right either. I am not saying that on the rather ignoble basis that we are not obliged to do it, therefore we shall not; quite the opposite. I am proposing that we are not obliged to do it, but we certainly shall.

Amendment No. 97 is in a distinct category. I agree with its purpose but I do not believe it is necessary. The requirement that "immigration advice" may only be given by a "qualified person" is already prescribed in Clause 74(1) of the Bill. We need to go to Clause 72(1) to see the definition of "immigration advice"; it includes advice in connection with an application for bail under the immigration Acts or Special Immigration Appeals Commission Act 1997. At the moment we are checking whether this is sufficient to cover routine bail hearings under this part of the Bill. If it is not, I intend to make appropriate changes to Part V of the Bill.

On legal aid generally, the Committee will recall that it is available in habeas corpus or judicial review proceedings challenging the legality of detention. Of course, that is on the basis of challenging the lawfulness of detention in accordance with Article 5(4) of the ECHR, to which the noble Lord, Lord Dholakia, referred.

The specific question was raised about the Legal Aid Board's consideration of representations. The board is considering Section 23 at the moment. We shall pay careful attention to any recommendations and if we need to make any further consequential changes, we shall give them every consideration. To summarise, I believe that the organisations we can fund, and with which we are working closely, should be able to offer a decent, effective and appropriate service to every detainee at bail hearings. I hope that my answers have reassured the Committee.

The noble Lord, Lord Avebury, made the point, as did several other noble Lords, that the organisations helping asylum seekers are very stretched and there is some doubt about whether they can meet the increased demands. The noble Lord, Lord Avebury, suggested that legal aid might be made available in an interim period until the organisations were fully able to take up the load. I wonder whether the Minister could respond to that point.

I have dealt with that point, which was raised by the noble Lord, Lord Avebury, and by the right reverend Prelate the Bishop of Ripon. I am happy to repeat that the Refugee Legal Centre and the Immigration Advisory Service have been involved, and will continue to be involved, in assessing the funding and personnel resources required to ensure that every detainee has representation at bail hearings. They are to be part of the project group that will implement this part of the Bill. I believe that we should put funding into those organisations, which have the expertise and experience, because we require good service. They give good service, but they could do better if they had better personnel and financial resources.

The Minister did not deal with a point that I raised in the same context. In a case that has been going on for some months or even years, with a legal representative who is himself on the registered list—that is to say, satisfies the requirements of Part V—would it be acceptable for that case to be continued, at least in the interim, through legal aid, because the legal representative is a recognised practitioner, to avoid the possibility of duplication, with the entire case being reconsidered from the beginning? Would the Minister's remarks about Clause 45 apply to new cases only, or to existing cases as well?

I shall look into the question of existing cases. It is possible that there may be some, but I cannot give a commitment on behalf of my noble and learned friend the Lord Chancellor, who is rightly determined to get the legal aid system into some sort of sensible shape. That point was also raised by the noble Lord, Lord Hylton, and I shall look at it without commitment.

The Minister has pointed out that the existing voluntary organisations are somewhat stretched in their capacity to deal with all the casework. Would he therefore consider whether Asylum Aid might be a suitable organisation to add to the list? I have no personal connection with the organisation. It was not established directly or indirectly by a government and, as far as I know, it does not receive a large government grant at the moment. On the other hand, it has a good track record in dealing with cases of asylum seekers who have received an initial refusal.

I am happy to look into the detail of that, but I must repeat that it is the present organisations which have the Section 23 funding that we shall consider in closer detail.

I thank the Minister for his most helpful reply to Amendment No. 97.

I also thank the Minister for his kind reply. Will he bear in mind the case of Amuur v. France, which we are advised raises the issues of legal aid on ECHR Article 5 cases? I believe that the judgment in that case held that a legal regime covering detention carried with it the right to consideration on grounds of arbitrariness. That point was not directly caught by the Minister's reference to criminal proceedings. I beg leave to withdraw the amendment.

moved Amendment No. 68:

I rise to support the amendment moved by the noble Lord, Lord Hylton. It would have the effect of extending routine bail hearings so that they lasted throughout the period of detention, as opposed to just the first month. A number of immigrant advisory services strongly support the extension beyond the first six months.

In a letter of 9th July, the noble Lord, Lord Williams, suggested that no useful purpose would be served by such an extension of routine bail hearings. I do not think that this is correct. First, he indicated in the same letter that he does not intend to make legal aid available for representation at bail hearings, and free representation can be provided under Clause 45 only for routine bail hearings. After the first month, only those detainees who can pay for representation are in any position to challenge their detention. It should also be remembered that not all detainees have legal representatives and that some representatives fail to make applications for bail, which involve a considerable amount of preparatory work.

The question of appropriateness of detention will also become an issue the longer a person is detained. A magistrate may consider it reasonable to hold someone for a short time to check documents but not to hold him for months.

The length of time in detention may also exacerbate the effect on the detainee's mental health or lead to those effects becoming more pronounced. The White Paper stated that mental and physical health should be a consideration in deciding whether or not to detain. The state of health may change over the period in detention and if health deteriorates, that may lead the magistrate or adjudicator to take a different view as to whether or not detention is appropriate.

As drafted, the Bill allows for only two routine bail hearings. The effect of the amendment is to ensure that the routine hail hearings continue at monthly intervals, although those detainees with representatives may apply for bail at any time but those without good representation may remain in detention.

Given that the figure of six months for completion of consideration of an asylum claim and all appeals is an average and that detainees are prioritised, it is likely that there will be only one or two further routine bail hearings. It is also an incentive for the Home Office to ensure that the cases of detainees are dealt with quickly.

The principle underlying the amendments seems to me to be admirable. What is the Home Office principle on reviewing cases of detention? It seems to me absolutely right that they should be reviewed every month and that representation should be available when the asylum seeker attends any such hearing.

I do not expect the Home Office to like that because additional costs will be involved. But it seems to be that it is well worth while to embody that principle in the law. Perhaps the Minister will tell us what is the present Home Office attitude and what is its practice in that regard.

In supporting the amendment in the name of the noble Lord, Lord Hylton, perhaps I may deal also with Amendments Nos. 70 and 75 which have been suggested by the Law Society of Scotland and achieve the same ends.

Amendment No. 70 ensures that those persons detained under immigration and asylum legislation are treated no less favourably than those accused of a crime in Scotland. There is a provision in Scots law for an accused person who is remanded in custody on a criminal matter to be brought before a court on the next lawful day. This amendment would bring the terms of the Bill into line with those criminal provisions.

Amendment No. 75 will ensure that the detained persons are brought before a court to make a bail application on the day following their detention. Both the amendments together ensure that a person is not deprived of his liberty without recourse to the courts as soon as is reasonably practical.

The purpose of Amendments Nos. 77A and 77B is to provide sufficient safeguards for immigration detainees. Those two basic amendments would enhance their rights without doing any harm to the scheme of immigration control. They would also serve to make the introduction of statutory bail hearings a meaningful rather than a cosmetic change in the law. Those two amendments simply serve to emphasise the Secretary of State's accountability in ensuring that routine bail hearings take place within the stated time constraints. Since there is no penalty for failure to act within those time constraints, it would be fairer—and seen to be fairer—for the courts to be permitted to take into consideration any undue delays when deciding whether to grant bail. They are designed to be more specific about the Secretary of State's duties under Clause 36(11) to notify the courts in cases of undue delay.

I support Amendment No. 68, moved by my noble friend Lord Hylton, and Amendments Nos. 70 to 77, 77A and 77B to which the noble Viscount, Lord Bridgeman, has just referred.

In supporting these amendments, I wish to draw to the Minister's attention a letter which I received today from Mr N J P Bond of Barking in Essex and evidence which he drew up for the Special Standing Committee for the Bill when it was being considered in another place.

He has given me specific examples of people suffering in detention and the problems that they have been caused because of, in part, the delays which they have experienced. Before I turn to those examples, perhaps I may quote from his covering letter which states:

"Whereas great caution is to be used before detaining paedophiles and people with personality disorders, before they have committed an offence, it seems that children and torture victims can be detained for merely seeking refuge in this country with very few if any effective safeguards or restrictions".

In the series of six suggestions that he makes for improvement to the legislation, at point 4 he says:

"Detainees should be told what the maximum duration of their detention will be".

Falling short of that, the amendment in the name of my noble friend at least gives us the opportunity to review on a regular basis those cases which are not dealt with expeditiously.

In case any of us should be under any misunderstanding about the appalling situation in which some detainees find themselves, the three examples which my correspondent, Mr Bond, draws to my attention describe far more eloquently than I could the circumstances in which people find themselves. Mr Bond is a computer programmer who spent 18 months visiting both DA and JA blocks of Harmondsworth Immigration Detention Centre on most Tuesday evenings, as part of a voluntary group, from May 1997 to November 1998. Therefore, this is not hearsay and anecdotal examples; they are his personal experiences.

He says:

"V.S. was detained in JA block, before being transferred to DA block, before a final period at Campsfield, before being released. His detention lasted for 18 months. He had been struck across the nose and over his left eye, with a gun, leaving a scar along a line approximately 30 degrees above the horizontal. He had cigarette burns on his arms and said that he had been tortured in other ways that he did not wish to talk about. He started as one of the more outgoing detainees, hut over the months you could see his soul bleeding to death almost to the last drop before your very eyes. Eventually he was released and I believe he has been allowed to stay in this country".

The second case referred to by my correspondent concerns A.B. He writes:

"A.B. was a giant of a man, reduced to a kind of shuffling about like a baited bear. He had asked for asylum at the airport and had been immediately detained in Rochester Prison for 3 weeks where he had no visitors. Shortly arriving in JA block at Harmondsworth, he wandered into the visitors room. I approached him and said that I was part of a visiting group. He said 'Please could somebody visit me?'. He had been tortured. We discovered that we were both Christians. He asked if I could bring him a bible, which I did the next week, but he had been taken somewhere else. Nobody seemed to know where".

The third example concerns someone called I.U. in JA block who had twice been tortured in detention. The letter states:

"When I met him he had just attempted suicide. He had a white bandage on his left fore-arm. He told me how he feared for his life if returned to his own country. He said that I was the first person in this country to have shown him any courtesy or respect and he thanked me warmly. He showed me his papers from immigration service …One of the papers declared that he was extremely unlikely to be a genuine refugee as (a) he came from a designated list country (white list) and (b) he arrived with a false passport. The following week he had been deported".

Those cases graphically illustrate the force of not only this amendment but also the amendments standing in the names of other Members of the Committee. When the Minister replies, I hope that he will recognise the force of the arguments which I place before him on behalf of my correspondent and the force of the argument that detainees are treated worse than criminals because they have no idea for how long they will be held. Many detainees complain that the uncertainty is like mental torture. Even a high maximum duration would be better than none. The amendment goes some way towards dealing with that question.

I rise to support the amendment from my experience of Campsfield House. The noble Lord, Lord Alton, put forward moving examples which are not isolated examples, moving though they are. Well documented evidence, surveys and research have shown the deleterious effect of detention upon the mental health of detainees. The longer they are detained, the worse is the effect on their health.

As the noble Lord, Lord Hylton, emphasised, we are dealing with people whom we must presume innocent. Therefore, if we are to detain them, it is extremely important that the detention should be reviewed regularly.

I support the general tenor of the debate. It is encouraging that all sides of the Committee should express concern about the deprivation of a basic human right. I shall not weary the Committee with my own experiences of dealing with these matters when I was in another place and when I practised as a solicitor in criminal law; suffice it to say that the experiences related by the noble Lord, Lord Alton, and referred to by other noble Lords, were commonplace. I am not sure how commonplace they are today.

I hope that in his response my noble friend will give credence to the support that has been expressed. I am sure that the Government are sympathetic to the plight in which these unfortunate people find themselves, largely through no fault of their own. Of course, there are some people who abuse the law. But there is no good reason for keeping them in detention for a long period of time. If they have abused the law, the quicker they are dealt with, the better.

The case that has been made is deserving of close investigation by my noble friend. I am sure that he will reply sympathetically on this point. It is important for the reputation of this country that we deal fairly and promptly with people who find themselves in this position. Promptness and fairness are all too often synonymous in such cases.

Perhaps I may add to the remarks of my noble friends Lord Alton and Lord Hylton. There are cases that stretch the patience of those who work with refugees. Many of those workers are friends of Members of this place. Many people cannot understand why the Home Office has not devised a regime for asylum seekers which is not the same as that for common criminals.

I visited a Roman Catholic priest who had recently been to the centre at Haslar. He was struck by the number of innocent asylum seekers who are overcome by the system and who simply do not fight. They feel lost. He said that there is no concept of how to deal with those people. There is no training within the centres for those who supervise the detention.

In supporting my noble friends, I refer the Committee to Chapter 12 of the White Paper, which emphasises that detention should be at the end of the legal process. Information from Bail for Immigration Detainees and other organisations indicates that the opposite is the case. All these matters are connected. It is a case of looking further into the future, to what will happen in five years' time, rather than merely at what happens today.

Perhaps I may set out our intention in setting time-limits for routine bail hearings and their determination. One element that is lacking in the present system—I do not disagree with what has been said in part—is any degree of certainty or structure with regard to bail hearings. We intend that the first routine bail hearing—to use the word "routine" is not to play down its importance, but to underline the fact that it must be regular—should take place about seven days after the original detention. That timing is to ensure that the court's time is not wasted on dealing with bail in respect of the vast majority of people, who are detained for a few hours or days only, particularly at ports of entry, for the purpose of further examination or removal from the UK. It also gives time for most detainees to go from short-term holding facilities to the immigration service detention centres or discrete holding units. That will mean that the conduct of hearings by designated magistrates' courts close to such centres or units can be carried out by magistrates who will have been trained in that work.

The Government propose that there should be two days either side of the seven-day target to provide flexibility for listing and to take account of weekends and public holidays. That will also allow for arrangements to be made for the escorting of detainees from detention centres to the court.

In order to ensure that the bail hearing is determined by the ninth day, it was necessary to prescribe that the Secretary of State should make his reference to the court no later than the eighth day so as to allow the court time to set up and hold the hearings within the nine-day limit. In practice, the reference will normally be made much earlier.

We aim that the second routine hearing should be heard around 28 days after the first; that is, 35 clays after initial detention—again allowing two days either side to provide flexibility for listing. The time-limits for the second reference are such as to ensure that bail is determined by the 37th day at the latest.

The second routine bail hearing could have been timed earlier or later. We thought that 28 days seemed about right in the likelihood of significant changes in circumstances having taken place. For example, a person may well have moved into the appeal process by that stage. Application of a 28-day period avoids an unnecessary volume of bail hearings of people who are likely to have been given temporary admission or release before the 35th day.

I now turn to an important point, and one that has not been made. Detainees will be able to apply for bail between the first and second routine hearings. Detainees who remain in detention after the second routine bail hearing will also be able to reapply for bail, although they will not be able to use the same arguments of fact and law more than twice. That is the same as obtains in the criminal system at present for those who apply for bail on a number of occasions.

Amendment No. 68 appears—although it may be that we are at cross-purposes—to require the Secretary of State to review monthly the case of a person who is refused bail at a routine bail hearing. It may be that the intention of the amendment was to require the court to review the case; we have taken it as requiring the Secretary of State to review the case. I accept that that may simply be a misunderstanding between the drafter of the amendment and those who scrutinised it.

I am happy to tell the Committee that each case where a person is detained is reviewed monthly to ensure that there is a continued need for detention. It is conducted administratively at increasingly higher levels as the period of detention lengthens. There will therefore be regular administrative reviews, two routine bail hearings and a person's intact right to apply for bail. I believe that those circumstances are adequate.

Amendment No. 77 in the name of the noble Baroness, Lady Williams, would require a bail hearing within three days of the further references proposed in Amendment No. 76. I hope that my explanation shows that neither is necessary.

Amendments Nos. 72 and 74, in the name of the noble Lord, Lord Hylton, would shorten the time-scale between initial detention and the second routine hearing by about five days. I believe that the safeguards that I have described mean that the amendments are unnecessary.

Amendments Nos. 70 and 75, originally in the names of the noble Lord, Lord Cope and the noble and learned Lord, Lord Mackay of Drumadoon, would require an initial bail hearing on the day following detention. For those detained at ports of entry, that would hugely increase the number of people entitled to routine bail hearings for no good purpose, as most are granted temporary admission or temporary release after a few hours or days once initial examination is complete.

Amendments Nos. 70 and 75 would require the training of magistrates in the handling of immigration work at courts adjacent to all the ports and immigration enforcement officers throughout the United Kingdom. We are looking at the possibility of training magistrates to specialise in this work in a small number of designated courts.

In Scotland, the area of interest of the noble Viscount, Lord Bridgeman, it is proposed that because of the small number of bail hearings, they should be heard before adjudicators. My advice is that, if these amendments were passed, they could cause severe practical difficulties in transporting detainees from the more remote locations to the adjudicator hearing centres. Such hearings would not be helpful. In Scotland, as in the rest of the United Kingdom, most people who are detained are also released within a few hours or days. Unlike criminal offenders, to which reference was made, many inadmissible passengers have no UK address and their identity, nationality and true reason for seeking to enter are not always clear.

I have explained our intention in requiring the first and second routine hearings within those time-scales and the need to allow the courts at least 24 hours in which to set up a routine hearing following a reference. I have also repeated the assurance that a detained person can apply for bail outside those hearings. An administrative review of detention is undertaken by the immigration service, with the frequency I indicated.

Amendments Nos. 77A and 77B are different. They would require the court, when deciding whether to grant bail, to take into account whether the time-limits imposed by the clause had been complied with by the courts or the Secretary of State. I understand the desire to impose a sanction, but I do not believe the amendment is relevant when considering whether to release a person on bail. I suggest that it would be wrong to release a person with a history of absconding purely because the courts failed to determine a routine hearing within the time limits imposed by the clause.

I hope that the explanation is of some comfort to the Committee. I am unable to accept the amendments. Before I leave the subject of bail, quite apart from the first routine hearing and the second routine hearing, Section 23 of the 1971 Act will still provide funding for the other bail applications.

I am grateful to the considerable number of Members of the Committee who have spoken in support of my amendment, Amendment No. 68. I draw to the Committee's attention the scientific study on a small sample of detainees of the impact of the detention on their mental health. It was carried out recently by a doctor whose name is, I believe, Pourgides and it has been published. She is based in Birmingham.

I am grateful to my noble friend Lord Sandwich for what he said about the training of people responsible for detainees. It is a most important point, but however good the training, it is liable to be defeated if, as has happened and continues to happen, detainees are moved around the system. They are transferred from detention centres to prisons and back again and that is where individuals are at risk of being lost in the system.

I am also grateful to the Minister for what he said about the escorting of detainees to specialised magistrates' courts, and for his reference to the nine-day limit and the second hearing 30 days after the first hearing. He also told us that detainees could make a new application for bail on their own account between the first and second hearings. No doubt the noble Lord also made an important point about how much extra work and hearings could be generated as a result of court cases.

I am inclined to think that we are likely to have to return to the subject on Report. Meanwhile, I beg leave to withdraw the amendment.

moved Amendment No. 68A:

I am grateful to the Minister for answering most of the points under Amendment No. 68C. We were concerned that on each and every occasion of a hearing the detainee must give notice that he does not wish to appear before the court. I believe that the Minister answered the point.

moved Amendment No. 68B:

moved Amendment No. 69:

I wish to speak to Amendment No. 198 which is grouped with Amendment No. 69, moved by the noble Lord, Lord Hylton. My amendment concerns the setting of an absolute limit of six months to the period which someone can spend in a detention centre. We should not forget that people in a detention centre under this Bill will not be there for any criminal reasons but will have been detained as an administrative procedure.

Perhaps I may say a word about the astonishingly dedicated and committed work done by many of the visitors to detention centres to which the noble Lord, Lord Alton, and others referred. Many of us in the Committee are most grateful to them for the time they give up in an often extremely depressing and sometimes troubling public task. My noble friend and I recently visited the Gatwick detention centre. We were pleased to see the friendly reception given to the Gatwick detainees' friends and to note the amount of work done by those who ran the centre. I believe that it is probably one of the best in the country.

However, those involved in the voluntary organisations have made it plain to us and to other Members of the Committee that there is a limit to how long they can sustain the morale of those in detention. In the most complicated cases—not necessarily those involving the greatest doubts as to validity of the case of the asylum seeker—as month follows month, gradually the morale of the asylum seeker leaks away. Finally, towards the end of a long period of detention, people sink into something close to apathy or sometimes despair.

One characteristic of a tyrannical or dictatorial regime is that it detains innocent people without any indication as to how long they will be detained. A few months ago, I had the obligation of visiting the last standing prison under the gulag archipelago system, Perm 65 in the Soviet Union as it then was, now Russia. I discovered that the most dreadful agony faced by people who had been at that detention centre was not knowing if or when they would ever get out. There was no clear procedure.

An obligation rests upon those of us who are more privileged in a democratic society to limit that sense of being almost totally lost within the system—not knowing when, if ever, the procedures will be concluded. The main purpose of the new clause is to limit that period to a maximum of six months.

I have served at the Home Office and know that when the law says that there will be a limit to the amount of time that somebody can be kept in detention, the Home Office will find ways of making sure that he not be kept beyond that time. If the Minister believes that a slightly longer period would be better, we would accept that—albeit reluctantly. I hope that he will recognise that the badge of a society such as ours is to give certainty to people who find themselves in that dreadful situation—and recognise that they need to maintain their morale, to make their case in the proper time and way. I hope that the Minister will look sympathetically on Amendment No. 69, accepting that the drafting may be less than perfect. Above all, we need to recognise that there must be a limit to how long any human being not charged with a criminal offence should be kept in a state of imprisonment against his wishes and estranged from all who care for him.

I first encountered the phrase

"detained during the King's pleasure"

when I was seven. I supposed that one was let out as soon as the king became unhappy. Alas, I have learnt better. Detention without clear judicial control tends to prolong itself simply for reasons of inertia.

In paragraph 1.24 of Sir David Ramsbotham's report on Campsfield, he draws attention to a case where someone was detained for more than two years. Mention of Campsfield immediately brings me to the thanks that we owe the Minister for the progress that has been made with the Bill, an extremely helpful series of replies and a great deal of hard work. If I did not mention that on Second Reading, it was because my speech lasted 22 minutes and I did not want to prolong the debate.

He would not have minded.

The Minister might not have minded but certain others might have done. One has an obligation to the whole House.

Although things are better, the noble Lord will forgive my saying that no Minister is omnipotent within his own department. A great deal still needs to be done.

I draw the Minister's attention to two cases—Amuur v. France in 1996 and A. v. Australia in the UN Human Rights Committee in 1997. I have the opinion, which we had before us in the Campsfield case, from Mr. Nicholas Blake, QC. He pointed out that one of the key points in the Amuur case was that to satisfy the proviso that detention should be according to law within the UN convention, it is not enough that it should be according to the law of the country concerned. It was resolved that the act of seeking asylum is not an attempt to gain unauthorised or unlawful entry. It would only become so if an asylum claim was being made with a view to evading immigration control and remaining illegally.

That point is of some importance. At paragraph 50 of the Amuur judgment the UN Court of Human Rights held that the ground of detention must be sufficiently accessible and precise to avoid all risks of arbitrariness. The court further held, at paragraph 53, which relates specifically to the amendment, that detention in the Amuur case was incompatible with Article 5.1 of the European Convention on Human Rights—because at the material time, none of the tests or administrative circulars allowed the ordinary courts to review the conditions under which aliens were held or, if necessary, to impose a limit on administrative authority regarding the length of time for which aliens were held. Those are important words because they indicate that acceptance of Amendment No. 69 could prove crucial for convention compliance.

As part of the judicial oversight to which the Minister has made such a distinguished contribution, it is likely to be necessary to include the power to fix a time limit. I take my noble friend's point about the need to discuss what that should be. As the Home Office has been talking of disposing of all cases in six months, that seems an appropriate point from which to start the discussion. I look forward to the Minister's response.

I support the amendment and strongly endorse everything said by the noble Baroness, Lady Williams of Crosby, about the Gatwick detention centre. I have also visited it and was very impressed with how it was managed and the attitudes of the staff and detainees to whom I talked.

Can the Minister say how many people are at present being detained in excess of six months? That could be relevant. A UN working group on arbitrary detention stated last December that the maximum period for the detention of an asylum seeker should be specified in national law. That makes a great deal of sense.

The Minister may say that there are occasions when it is impossible to reach a decision within six months and that there must be the power to extend that period. If so, I am sure that the Committee would be prepared to consider such a term—but whether the period is six months or has to be eight or nine months, it should be specified in law.

I strongly endorse also from experience everything that has been said about the psychological harm done to detainees by having no idea how long they may be detained. I would like that problem overcome.

The noble Viscount, Lord Brentford, and the Baroness, Lady Williams of Crosby, paid tribute to those who administer detention centres and the voluntary organisations that support them, and I associate myself with those remarks.

Amendment No. 69 fits hand-in-glove with my noble friend's earlier Amendment No. 68, which sought to impose a one-month limit, to ensure that there would be a review of cases where detainees were kept for a longer period. Amendment No. 69 seeks to ensure that after being held for a six-month period, detainees would be released. The noble Earl said that would ensure that the Government would be more likely to be in compliance with their obligations under the appropriate conventions. I entirely agree.

I was also struck by the noble Baroness's remarks about the nature of civilised societies in the way that they administer their affairs. The idea that someone should be held in a detention centre indefinitely, without a limit being placed on the maximum duration of their stay, strikes me as uncivilised and typical of the tyrannical regimes that the noble Baroness described. If six months is not to be the upper limit and the Government feel that there is a sell-by date beyond which a person should not be kept in a detention centre—and beyond which the Government think that it would be unreasonable to do so—perhaps it would be possible to reach agreement without having to press the amendment to a vote this evening or on Report.

I should like to ask the Minister about specific categories of people who are held as detainees in detention centres. One of those categories comprise people who beyond doubt have been tortured before their arrival in the United Kingdom. Should they be held for any period at all in a detention centre if they have clearly experienced physical torture? Perhaps the Minister in reply will set out the position of the Government in that regard.

I also worry about children who are held in detention. In my earlier contribution to the debate on Amendment No. 68, I referred to the first-hand account of a visitor to one of these centres. He described how he had encountered children on a visit to a centre. Elsewhere in correspondence, he detailed other examples of children being held in detention during his visits. It is extraordinary that children should be held in detention centres at all. Can the Government consider providing more family-friendly facilities where children are involved?

Does the noble Lord agree that a number of victims of torture are also held in prisons where, if anything, even fewer facilities are available to deal with the particular matter to which he refers?

I am grateful to the noble Baroness for making that point. The position in detention centres is bad enough, but it is worse in prisons. Most noble Lords who have visited prisons at one time or another will be aware that, as Brendan Friel and others have described, in some cases it is impossible for people to be reformed and it is more likely that they will follow criminal paths. For people to be placed in criminal surroundings, when they have committed no criminal offence at all but have suffered grievously at the hands of regimes from which they have fled, beggars belief. I hope that the Minister accepts that if such categories of people—victims of torture and children—are to be placed in either detention centres or prisons, it should be done with the express permission of at least a Home Office Minister, if not the Home Secretary himself.

Finally, I should like to ask the Minister about how detainees may be shunted from detention centre to detention centre. Can that form part of Ministers' overview when they consider how detainees are held? The Minister will be aware from his distinguished career in the law that a frequent complaint of lawyers who work with detainees—it was one regularly made to me in my days as a constituency Member of Parliament—is that detainees are moved from detention centre to detention centre with the purpose, so it seems, of wrong-footing both lawyers and visitors. Although I do not want to believe that to be the motive of those who make such decisions, that complaint has been made to me previously, and in correspondence received today, by those involved in this area. Perhaps the Minister will address that matter when he replies.

The noble Lord, Lord Alton, referred to people being shunted from detention centre to detention centre, or from detention centre to prison. In one particular case—one of the Campsfield five—the detainee wrote to me and by the time I replied he had been moved to Rochester. The letter was returned to me marked "Address unknown" because the authorities had been unable to discover where the person had been sent. Not infrequently, people who advise detainees and try to help them are unable to communicate with them because the detention estate and the prisons do not seem able to communicate with each other. They are not aware when a person is posted from one part of the estate to another what has happened to him.

We are not talking about people who are accommodated in special detention centres constructed for the purpose of housing asylum applicants. We are considering a total of over 900 people, 500 of whom are accommodated in the prison estate; only 400 are in detention centres. As the Minister will recall, in a recent report on Campsfield, Sir David Ramsbotham said that the point should be reached where no detainee was accommodated in a prison. I believe that the Home Office agrees with that recommendation and is moving to a situation in which all such people can be kept in special detention centres. As the Minister announced at Second Reading, a new detention centre is to be built at Aldington on the site of the present prison.

I raise this matter now rather than later when the Committee comes to consider my amendment, which provides that people should be accommodated only in detention centres, because the period for which people are kept in detention is critical to the size of the estate. If we did not keep people for longer than six months and if we knew that the whole group of people whose detention extended from six months to over two years had to be released, what impact would that have on the total number in detention? It would be helpful if the Minister in reply could tell the Committee by how much the numbers in detention would be reduced if there was a maximum of six months. Perhaps we could have the same figures for a shorter period; for example, four months.

After all, if the Home Office is successful in its policy to bring the whole period for asylum determination and appeal down to a maximum of six months, no one can be detained for anything like that period. The maximum length of detention would be whatever was left of the period from first arrival in the country to final refusal, less any period of temporary release. It would be very helpful if at the conclusion of this debate the Minister could give the Committee the prognosis. How many places will it be necessary to provide—after all, this must be part of the public expenditure review—if the Government accept Sir David Ramsbotham's recommendation that people should be accommodated only in the detention estate and no longer in prisons?

The noble Lords, Lord Alton and Lord Avebury, have made some important points about children which will come up later in Committee. I detect from the earlier replies of the Minister that he has a time-limit very much in mind. We look forward to his reply and to the point being addressed at later stages of the Bill.

The effect of this amendment seems to be wholly right in moral and practical terms. When the moral and practical come together, it seems to me that a strong case is made. The point made by the noble Lord, Lord Alton, and earlier by the right reverend Prelate the Bishop of Oxford, is that the effect on those in a disturbed mental state of being kept in detention for more than six months is well documented and is not just a matter of anecdote. In addition, one must consider the cost to taxpayers, which presumably would be considerably reduced if the amendment was accepted.

I support my noble friend Lord Avebury. Those who repeatedly deal with immigration and asylum cases have difficulty in making representations on behalf of applicants. My noble friend Lady Williams and I visited the Gatwick detention centre. One problem encountered by detainees that repeatedly surfaced was the uncertainty as to how long they would be there. In some cases, those looking after the detainees have not had a clue about what will happen to them.

I wrote to the Minister some time ago about the case of a detainee in one of Her Majesty's prisons. He had written because he was absolutely desperate to know what was going to happen to him. The noble Baroness, Lady Williams, and I received separate letters. We wrote back to him. Two days later, there was a letter from the prison department saying that he had been deported. One felt disgusted that he had been deported; I was on the verge of tearing up the letter. Then I saw a headline in the Guardian that that detainee had been transferred to another prison where he had tried to commit suicide.

Cases like that, where people ask for help but letters never reach them, cause considerable concern. People must know what is happening to them. I should prefer people to be deported much earlier rather than being kept in detention centres for an indefinite period. There should be a time-limit so that everybody would know the outcome of the case, and they should be released at the end of that period.

A number of noble Lords have suggested a maximum period. The two amendments are different in that Amendment No. 198 refers to an absolute maximum period, and Amendment No. 69 refers to a maximum period of continuous detention. I understand that the thrust behind both is the same.

The noble Lord, Lord Alton of Liverpool, and other noble Lords, spoke of people being shunted around between different places of detention. I simply point out that we are trying to stop people being shunted about. The group of amendments starting with Amendment No. 79 would provide humane, decent opportunities for people to have their bail applications heard without being shunted about, but at least two noble Lords—namely, the noble Lords, Lord Clinton-Davis and Lord Hylton—want to bring about a situation where that could not happen.

During the next three years we shall build two new purpose-designed centres to replace the facilities at Harmondsworth and Rochester. Following David Ramsbotham's critical report, it is fair to say that the Government accepted the principle that no detainee ought to be kept in the prison regime. That cannot be brought about overnight, but we accepted the principle immediately and there was not the slightest demur. David Ramsbotham was absolutely right, and we said so at the time.

The noble Viscount, Lord Brentford, asked me about the up-to-date figures for those who have been held for more than six months. May I research those figures and write to him as soon as I may, and deposit a copy of my letter in the Library?

The average time spent in detention, according to my information, is about 63 days. It is therefore unlikely that spaces would be created by a time-limit of six months. That does not go to the fundamental point made by the noble Baroness and the noble Lord, Lord Hylton; it is simply designed to deal with the question put to me by the noble Lord, Lord Avebury.

In reply to the remarks made by the noble Lord, Lord Dholakia, there should be as short and certain a period as possible. That is why we have said that for families it should be two months, with an opportunity to appeal in a further four months; and that if that is not achieved, the new scheme cannot be made to operate. That is a discipline we would be imposing on ourselves. We are setting ourselves ambitious targets which we believe are deliverable. No one wants anyone kept in detention for longer than possible. The right reverend Prelate mentioned the public expense involved. None of us wants that; we all want certainty and efficiency. However, quite a lot of people do not want their cases to be determined finally in a short period of time, and it is quite easy for them to manipulate the system.

Reference was made to Mr Nicholas Blake's views. The noble Earl, Lord Russell, will remember his intervention in the case of Chahal, which led to the first Bill I introduced after the election. The Bill was intended to provide an appeal system for people like Chahal. The Strasbourg court held that in extreme cases involving national security, detention may be justified, and be compatible with the section referring to the lawful arrest or detention of a person to prevent him effecting an unauthorised entry into the country, or of a person against whom action is being taken with a view to deportation or extradition. That does not go to the heart of the matter because we are all adept at producing, not quite Biblical quotations but at least Conventional quotations, to suit our arguments.

The subjects of torture and children were raised by the noble Lord, Lord Alton. I again draw the attention of the Committee to paragraph 12.4 of the White Paper, which states:

"Evidence of a history of torture should weigh strongly in favour of temporary admission".

Paragraphs 12.5 and 12.6 state that children are detained only in exceptional circumstances and as close as possible to the removal at the end of the process, and that unaccompanied minors are detained exceptionally. According to my information, that means only overnight detention, pending removal or placement into care.

Either Amendment No. 69 or Amendment No. 198 would set the target date, which is, of course, a target date for the Government and for those who have to go through the processes; but they would also set a target date for those who want to abuse the process. It is not unknown for people to apply, to appeal, to try for judicial review and to manipulate the system with applications and representations, or simply non-co-operation. Once someone has got beyond the six months they have to be released, unfortunately often with little safeguard for the public.

There will be some instances in exceptional cases (where there is perhaps a history of absconding or breaches of national security or public order) where people may, if they do not co-operate with the system, be able to manipulate the system. No legal system can work without a degree of co-operation.

We have allowed two months for married applicants with children and four months thereafter for appeal. We believe that that is an achievable target.

It has been suggested that nobody should be kept for more than six months without Home Office or ministerial approval. I understood the whole thrust of the debate was that no one should be kept without judicial approval; yet noble Lords are urging that the matter should go back to the executive. There is a well meaning contradiction there. The noble Baroness spoke of the Gulag. There is no automatic application after seven days paid for at public expense, nor after the further period paid for at public expense. No reasons are given in writing. There is no presumption of bail. I take the point, but we have produced a series of circumstances which are infinitely better than that. They are very significant advances. We seek to attack a machine which is not subject to judicial overview or written reasons without a presumption of bail. Without the automatic first and second routine bail applications, applications for bail can be made, or applications for judicial review.

There is some virtue in applying our minds very carefully to the terminal point, which is a very fair point, as to how long in almost all circumstances it is legitimate to detain people. I shall invite officials to consider that point. I doubt whether it will ever be set in statute or stone, but it is a fair question that requires a reasoned answer when we return to it on Report. It may not be entirely satisfactory—and it may be that I shall by then have obtained more material about how very few people are, in fact, detained for more than six months—but I promise to deal with that issue in my reply to the noble Viscount, Lord Brentford.

At the moment and for the future, I cannot anticipate the amendments being accepted in their present form.

I thank all noble Lords who have supported the amendment. Every person who has given a good deal of thought to the matter has been in favour of the amendment. The Minister is in a minority of one. I sympathise with him—I know that he has a heavy cold—hut it is not a happy position in which to be. He was not quite up to his usual form in suggesting that a considerable number of people are in the prison system because that is what they prefer.

With the greatest respect, I did not say that. I said some will have to be kept perhaps for beyond six months on national security or public order grounds; and some—I did not say that there were hundreds of them—undoubtedly manipulate the process; and I believe that that is right.

I do not deny that people who manipulate the process exist. However, I have heard of only two cases where people remained inside for a very long time, for reasons of their own. One was the case of Chahal referred to by the noble Lord. The other was a man from Hong Kong who held the record, I think, for the length of time spent in our prisons before eventually being extradited. There may have been some cases of non-co-operation, but they are not as widespread as the Minister implies.

I was grateful for the remarks of the noble Baroness, Lady Williams of Crosby, on torture cases. There is a linkage between previous torture cases and attempts at suicide. We know that the Minister is a prison reformer and wants to eliminate, if possible, the incidence of suicide in prison. It is perhaps even more important in the context that we are discussing today. I and others have detected a tendency within the Home Office to deny that torture has occurred in asylum seeking cases. It likes to water the matter down and talk about ill treatment. I hope that that will be corrected, because there is no doubt that torture occurs.

The Minister did not seem able to answer the question about when prisons will cease to be used for detentions under the immigration legislation. Perhaps that will be forthcoming. Perhaps the noble Lord will write to me.

As regards children and young people, the noble Viscount, Lord Bridgeman, correctly pointed out that we shall return to the issue on Amendment No. 114—to which I have added my name—and Amendment No. 115. I am grateful to the noble Lord, Lord Avebury, for his remarks about the shunting of people from one place to another and the harm that that practice does to the preparation of their cases in particular for asylum. I believe that those movements lead to the multiplication of appeals and to an increased number of cases for judicial review.

Detention before individual cases have been decided is a blot on the landscape. It is a matter of which we should be thoroughly ashamed. There is an urgent need for a time limit. It is a matter to which we shall have to return at the next stage of the Bill. In the meantime, I beg leave to withdraw the amendment.

moved Amendment No. 77C:

had given notice of his intention to move Amendment No. 78:

moved Amendment No. 79:

I recognise the force of the remarks of the Minister about people being shunted to and fro. In reply to an earlier amendment he said that if neither prisons nor detention centres were thought to be proper places in which to hold hearings it would mean that people would again have to be moved around.

However, there is a balancing consideration. It was mentioned by the Minister of State, Home Office, at Committee stage in another place. He acknowledged that it was important that bail hearings should be conducted in public. The Minister will know that with some detention centres, and even more prisons, it is difficult to make access easy for the public. It is sometimes difficult to enter prisons without undergoing a fairly lengthy procedure.

When the Minister responds, perhaps he will say whether, as far as possible, bail hearings will be avoided in detention centres, and in particular in prisons. If not, will access be made available for the public to attend given the importance of the principle of a public hearing?

The noble Lord, Lord Hylton, and I were gently assailed—it is the only type of assailing my noble friend the Minister knows—on the amendment. The point that the noble Baroness, Lady Williams, has just made is the reason why I wanted to probe my noble friend's thinking on the subject.

The attendance of the public at court hearings is essential in ensuring that justice is done. That is why our criminal courts are rightly open to the public. The right of a defendant to be heard and the right of the prosecution to outline why a person should not be free are essential to our democratic structure. If there is an overwhelming reason for departing from that principle, I should be interested to hear it. I assure my noble friend that from my point of view, as a supporter of the amendment, it is merely a probing one. I shall listen with interest to what he says. If he wants to assail me in the future, I do not mind.

I hope that I do not embarrass the Minister by saying that I hope that he does not accept the amendments and that he agrees that the clause should stand part. It would save a lot of travelling for people in a prison or detention centre who want bail if their hearing could be heard wherever they are rather than having to go some miles to the court at which the case had been heard and where the application to a court of similar standing could be made. If the case had been dealt with at a court where a High Court judge was sitting—that would not usually happen unless there was another serious charge involved—a considerable distance might need to be traveled, involving a great deal of public expense. The clause could be helpful to all concerned.

Before the noble Lord sits down, would he extend that argument to ordinary criminal proceedings?

It is arguable that that could be done. I have not seen a similar clause on bail before. I do not know whether that is due to my ignorance or whether this is a precedent. If it is a precedent, it is a good one.

The important issue is whether the representatives of the asylum applicant and their friends and supporters in the community will have easy access or whether the new courts to be opened in the detention centres will be so remote that there are difficulties for the whole process. Perhaps the Minister will tell us whether the Home Office's plans for the reconstruction of Aldington include provision for a court and what facilities there will be for the attendance of the applicant's representatives and their friends among the public. I am not familiar with the geography of the area and I do not know how easy it is to get to Aldington. I know that it is somewhere in the Rochester area. If it is possible to get there by public transport without great difficulty—there is a very good service from London to Rochester—there is no major objection in principle to having hearings there. However, if a new detention centre was built in a remote part of the country and a court was put there for the purposes of such hearings, that would be a different kettle of fish. This is a practical question rather than one of principle.

I hope that the amendments are not accepted and that the clause stands part of the Bill. I hope that the flexibility in the clause will be maintained. I have particular regard to the desirability of minimising long-distance transportation in Black Marias. As was mentioned on the previous amendment, it is particularly important that children should not have to travel long distances in such confined accommodation.

My noble friend Lord Clinton-Davis was right and I am entirely happy to agree with him. Clause 41(4) deals with his point about open justice. It requires magistrates to seek an open court unless the interests of justice require otherwise or, as we plan to amend it under Amendment No. 96C, compelling reasons of confidentiality apply. I can envisage some circumstances in which a hearing might need to be held in private to protect the bail applicant. For example, they might be fearful of pursuit.

I am happy to repeat the important point that if arrangements cannot be made to hold a routine bail hearing in a convenient courtroom, the alternative of conducting hearings in a detention centre should be available. Such facilities should be used only if they maintain the independence and dignity of the court. Those qualities depend substantially on access by the public and by representatives and supporters. Our intention is that hearings would be held in detention centres only if a suitable hearing room was set aside, public access was assured and representatives had all the appropriate facilities for consulting with their clients. In most cases that would require discrete construction work. If Aldington is to replace Rochester, as we anticipate, we shall be looking for provision to be made for discrete facilities for hearings, external access and good hearing rooms to avoid the cost and inconvenience of escorting.

The motive is not to avoid cost. But we should not overlook the point made by the noble Viscount, Lord Bridgeman. Travelling distances in what is called a sweat wagon is a very disagreeable experience. Even sitting in one for half an hour on a hot day—which I have tried—is very demoralising. We are talking about unusual circumstances. When appropriate, subject to the safeguards I have accepted, hearings in the detention centre will be available as an alternative. Given that explanation, I hope that the amendments will not be pressed.

Before the Minister sits down, I wonder whether he will look at Clause 41(4) for a moment as he has referred to it. It says:

"A magistrates' court dealing with a reference under Section 36 must sit in open court unless"—

I want to emphasise this point—

"it considers that the interests of the administration of justice require it not to do so".

The interests of the administration of justice include the cost of administration. Should not the provisions of Clause 37 apply?

I do not regard cost as enormously persuasive when considering the interests of justice. I was saying, to some agreement across the Committee, that in some circumstances the interests of justice require a private hearing, but the overwhelming presumption should be that when someone applies for bail the public should have access.

I thank the Minister for what he said about access to detention centre rooms. Can he say how long it is probable that people will be detained in prisons where public access is difficult to achieve?

I cannot, except to say that, in principle, our approach is to look for discrete accommodation. If I have any more up-to-date material, I shall provide copies in the usual way. Belmarsh Prison, for instance, is high security. It has access from the prison to a court to which the public have usual access. That is not a perfect rejoinder; there is no perfect analogy because this has not previously occurred. I believe that with the appropriate safeguards identified by my noble friend Lord Clinton-Davis, this is a more civilised way of dealing with people who are in difficult circumstances.

I draw encouragement from the Minister's reply, in particular that there would be a presumption in favour of hearings in a normal courtroom. I take on board his remarks about flexibility. Perhaps I may draw him out further by referring to page 28, line 3, of the Bill. It deals with "particular premises or rooms." Does one understand that as the expression is in the plural there will be several rooms not only for the hearing but also for solicitors, advisers and their clients?

The position is as I have already indicated. One cannot have these provisions unless appropriate arrangements are made for private confidential instructions to be taken by the legal representatives and an opportunity of private conversation in the usual way between the applicant and the person advising or representing him. That is what we have in mind.

I thank the Minister for that answer. I beg leave to withdraw the amendment.

moved Amendment No. 80A:

I am sorry to have to enter a slightly discordant note. The first criteria in subsection (2) refers to:

"fail to comply with one or more of the conditions of bail or of any recognizance or bail bond".

As Members of the Committee may be aware, that is always quoted by immigration officers in declining to give temporary admission. They state that in their opinion the individual concerned is unlikely to comply with one or more of the conditions of bail or of any recognizance or bail bond. If it is simply down to the opinion of the immigration officer, we have moved on no further. The unsupported opinion of the immigration officer will carry weight in determining whether bail is granted and the court will not go behind that opinion and ask why it is held. If that were the case, no more people would be released than at present. The use of the bail provisions would therefore be nugatory.

It is for the court to say, which the noble Lord, Lord Avebury, omitted to mention. The situation is no different from that in the criminal courts. Often, such an objection is raised by the police and a magistrate or another judge will take appropriate notice based on the evidence or not. I do not know what more the Government can do than to insert that saving provision.

I am encouraged by the insertion of the words "substantial grounds" in subsection (2). They will have to appear to be substantial to a court and I hope that the Minister will be able to reassure us further.

However, I am concerned about subsection (3)(a):

"he is or has been knowingly involved with others in a concerted attempt by all or some of them to enter the United Kingdom in breach of immigration law".

I should have been happier if the Minister had used the words "immigration or asylum" because it has been commonplace in our debates that what is unlawful entry in terms of immigration is lawful and normal entry in terms of asylum. I am sorry to look a gift horse in the mouth, but it would be helpful if the Minister could assist us just a little further.

I thank the Minister for being kind enough to see us at short notice last week to discuss the amendment. We welcome the provision. I shall be brief, but I want to raise aspects, particularly of subsection (3), which are unnecessary. The first relates to those suffering from mental disorder. That is obviously lifted from paragraph 30 of Schedule 2 to the 1971 Act, which predates the 1983 Mental Health Act. The problem is that if someone is suffering from a mental disorder to such a degree that he is a risk to himself or others, it would be far more appropriate for that person to be dealt with under the Mental Health Act rather than Schedule 2 of the Immigration Act.

Secondly, under the Children Act, a duty is placed on the local authority to make inquiries and take appropriate steps to provide care for the child where it has reasonable cause to suspect that a child found in its area is suffering or is likely to suffer significant harm. Could not such a provision be used instead of that specified under subsection (3)(c)?

Subsection (3)(d) relates to those whose cases are still being investigated. The provision is drafted so widely as to catch almost anyone arriving in the UK. We accept that it may be necessary to conduct further investigations into a person's identity, but it is unlikely that such an investigation will be resolved after several days. If the immigration service cannot carry out its investigation due to lack of co-operation from the detainees, the decision to maintain detention could easily be justified under subsection (2)(a).

Finally, the removal direction could potentially cover a large number of asylum seekers and others. We accept that it may be the case that a person is unlikely to comply with a removal direction. If that is the case, the situation is better dealt with under subsection (2)(a) and compliance with any removal direction may be made a condition of bail. I do not expect the Minister to go into detail in relation to the suggestion that I have made hut, given the opportunity, perhaps an appropriate amendment can be made on Report.

Once again I thank the Minister. Treasure in heaven requires to be burnished only a little in order to achieve the delights that he would like us to see. We would like to see reference to other Acts in relation to voluntary cases, particularly mental disorder cases, which may help to identify more closely the cases that the Minister has in mind. We are extremely grateful to him.

Having heard three noble Lords and one noble Baroness from one party I wonder whether I dare rise to my feet.

Subsection (5) reads:

"'Immigration law' means any provision of the Immigration Acts"

—that is clear enough—

"or any similar provision in force in any part of the British Islands".

There was a time when the whole world considered that the whole of Ireland was part of what was called the British Isles or the British Islands. Presumably, since the Irish Free State became an independent country it will not accept the proposition that it is part of the British Islands. Therefore, this provision refers to the United Kingdom, the Channel Islands and the Isle of Man only. Technically, I believe that should be the position, but the matter should be clarified.

Like other noble Lords, I am grateful to the Government for bringing forward this new clause. However, there are one or two points that still ought to be raised.

One concerns subsection (2)(c), which reads:

"be likely to cause danger to public health".

That may lead one to consider that anybody entering the country who may be HIV positive or suffering from AIDS or another serious communicable disease should remain in prison. I noted what the noble Lord said about substantial grounds, but perhaps it may be better to put on the face of the Bill that the substantial grounds in this instance must at least be supported by a doctor's certificate.

I now turn to subsection (4), which seems to be capable of including young offenders and first offenders. Therefore, that may be a bad omen for Amendments Nos. 114 and 115 which seek to prevent the detention of persons under the age of 18. I look forward to the comments of the noble Lord.

With the greatest respect, to a court substantial grounds are grounds supported by evidence. This is not something about which a court will be unconcerned. I would have thought that it would be much better to leave the provision as it is. In relation to causing danger to public health, I would have thought it was better that that is included in the matters that the court should consider, subject to the proviso that there are substantial grounds, as already stated, and that there is evidence to support that view.

On this side we are in agreement with the basis of the amendment, subject to the request of the noble Baroness, Lady Williams.

This is positively the last time I attempt to be helpful!

My noble friend Lord Clinton-Davis has put his finger on the point. One needs to look only at the wording to see that there is a presumption of release. That presumption need not be given effect if the court is satisfied that there are substantial grounds.

If someone makes an assertion of an opinion, the simplest thing to do if you are appearing for someone who is applying for bail is to cross-examine as hard, as bitterly and as viciously as possible to see whether there are any substantial grounds. With great respect, that is why the court is there. I put that point similarly in relation to a doctor's certificate. Magistrates are judicial officers and do not simply accept assertions.

I take the point about mental disorder and the Children Act. I shall look at that. Just before breaking for dinner, I am happy to be able to trump the noble Lord, Lord Renton, because the phrase "British Islands" is defined, as he will remember, in the Interpretation Act and that definition does not include the Republic of Ireland.

Perhaps I may be allowed one last self-indulgence before we break. If I accede to the seductive invitation of the noble Earl, Lord Russell, and put in the words "or asylum", many people would be caught whom he does not want caught.

I beg to move that the House do now resume. In moving this Motion, I suggest that the Committee stage begin again not before 8.40 p.m.

My Lords, I beg to move that the Commons amendments be now considered.

My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 1. The simple aim of this amendment is clarification. It removes a possible misunderstanding of the use of the term "government agency" by making clear that the Disability Rights Commission may make proposals or give other advice to any government agency or other public authority.

Noble Lords will recall that the Bill, as originally introduced, enabled the commission, for purposes connected with the performance of its functions, to give advice as to the practical application of any law. During the passage of the Bill in this House, subsection 2(2)(b) was inserted to make the power explicit in relation to a government agency. However, the term "government agency" is not entirely clear and could have inadvertently suggested that some public authorities would not be covered. The amendment extends the provision to include "other public authority" so that it is apparent, beyond doubt, that such a body is covered.

My Lords, I rise to say that I welcome the extension of the definition of "public authority".

My Lords, I am delighted to support Amendments Nos. 1 to 32 en bloc. As I and other noble Lords have said on a number of occasions, I am heartened that the Government have sought to drive through a piece of legislation which will fundamentally enhance the lives of millions of disabled people by seeking to ensure the delivery of full comprehensive civil rights.

In particular, I should like to thank the Minister for the way in which the Bill has been shaped and improved by the willingness of the Government to bring forward amendments in the interests of improving the remit and operation of the commission. In earlier deliberations on the Bill, we were assured that the commission will provide or arrange any support that any disabled person may require in their dealings with the commission, including the provision of advocacy support for people with learning disabilities and communication support for those with sensory impairments. I am certain that the commission will implement those commitments in practice.

We were also assured that it is inconceivable that the first chair of the commission will not be a disabled person. That is an important statement which will send a positive message to industry and should allow the commission to be headed up by an excellent authoritative figure. In terms of the appointment of individual commissioners, we have heard that applications from disabled people will be encouraged, including people with learning disabilities. We would warmly welcome such appointments.

The duty of the commission has been extended to include a duty to promote good practice in all fields of its activity. That will enable business and employers to access high quality advice and support in meeting their obligations under the Disability Discrimination Act. Before us today we have amendments which were accepted in another place, including amendments to improve non-discrimination notices and to enable the commission to issue injunctions to prevent persistent discrimination.

I fully support these amendments and look forward to them being encompassed into statute. The effects of the Bill should not be underestimated; nor should this Government's indisputable commitment to the civil rights of disabled people. I look forward to April 2000 when the commission will be up and running, helping to ensure that communities never again treat disabled people as second-class citizens.

My Lords, I beg to move that this House do agree with the Commons in their Amendment No. 2.

In moving this Motion, with the leave of the House I shall speak also to Amendments Nos. 3, 6, 9 and 12 to 32. This group of government amendments was tabled to address three commitments I gave in your Lordships' House to give further consideration to amending Clause 4 to define the scope of non-discrimination notices on the face of the Bill; amending paragraph 8(4) of Schedule 3 to require the commission to give reasons in writing if it refused to receive oral representations from a person it considered to be unsuitable; and arranging for the removal of a non-discrimination notice from the public register when the action required by the notice had been complied with. I shall deal with each commitment in turn.

I begin with the commitment to consider defining the scope of non-discrimination notices on the face of the Bill. Clause 4 originally contained a regulation-making power which would have allowed the Secretary of State to define the scope of non-discrimination notices. The noble Baroness, Lady Blatch, and my noble friend Lord Ashley were keen to ensure that the scope of non-discrimination notices was defined on the face of the Bill. Unfortunately, my noble friend is not able to be with us tonight and asked me to give his apologies.

I am pleased to say that Amendment No. 2 would in fact define the scope of non-discrimination notices on the face of the Bill. Amendment No. 25 sets out the detailed procedure to apply to finalising action plans. Amendments Nos. 3, 6, 9, 12 to 15, 17, 19 to 23, and 26 to 32 are consequential to those amendments or have been tabled to tidy up the drafting of the Bill. It may be helpful if I outline the key elements of our proposals in relation to non-discrimination notices, as they would make some fundamental changes to the process for issuing and enforcing the requirements in such notices.

However, perhaps I may start by saying that we developed our proposals with a view to addressing the shortcomings which both the Equal Opportunities Commission and the Commission for Racial Equality identified with the existing process in the light of experience. We believe that our proposals go a long way to strengthening the effectiveness of non-discrimination notices in tackling the causes of discriminatory acts that might have been committed and in putting them right. Our proposals have also been developed to take account of the real concerns that we understand have been expressed by businesses and their representatives—the Confederation of British Industry and the Institute of Directors—which have said that it would not be appropriate to allow the commission to prescribe what changes an organisation might need to make.

I now turn to the key elements of our proposals. The amendments would give the commission a new power to identify in a non-discrimination notice, policies, practices, procedures and other arrangements which it believes have led, or contributed, to unlawful acts being committed, and to recommend what changes need to be made to address the unlawful acts and the time-scales in which those changes might be made. The amendments would also give the commission a new power to require an organisation to produce an adequate action plan within a prescribed period which would address within a reasonable time the unlawful acts that have been, or are being, committed. The action plan would be legally binding once final and its implementation would be enforceable by the commission through the courts.

It would be up to the organisation to produce the action plan, taking into account the commission's recommendations. We believe that this is the right approach. The ownership of the action plan must rest with the organisation. However, we have built sufficient opportunities into the process to allow the commission to comment on a draft action plan and provide further comments and recommendations if it thought it appropriate. Ultimately, the commission would be able to challenge through the courts whether an action plan would adequately address the unlawful acts identified in a non-discrimination notice.

As I said in my opening remarks, we believe that the amendments relating to non-discrimination notices would strike the right balance between strengthening the commission's powers to ensure that effective changes are made by an organisation as a result of a non-discrimination notice being issued, and giving the organisation ownership of its action plan.

Turning to Amendments Nos. 16 and 18, during our earlier debates I undertook to consider further an amendment tabled by the noble Baroness, Lady Blatch, which sought to amend paragraph 8(4) of Schedule 3 to require the commission to give reasons in writing where it refused to receive oral representations from a person to whom it reasonably objected as being unsuitable. I am pleased to say that Amendment No. 18 would require the commission to give reasons in writing. Amendment No. 16 is a consequential amendment which places a similar requirement on the commission to give reasons in writing in relation to paragraph 3(7).

Finally, Amendment No. 24 was tabled to address a commitment I made to give further consideration to an amendment tabled by the noble Baroness, Lady Blatch, which sought to arrange for the removal of a non-discrimination notice from the public register when the action required by the notice had been complied with. Amendment No. 24 would require the commission to put a permanent note on the public register when the requirement in a non-discrimination notice to produce an action plan has been met. As my noble friend Lord Hunt said during our earlier debates, we were sympathetic to the idea behind the amendment tabled by the noble Baroness, Lady Blatch, but it raised a number of practical difficulties.

Perhaps I may explain the reasoning behind Amendment No. 24 and why we have taken a slightly different approach from that in the amendment originally tabled by the noble Baroness. First, it is important to maintain the historical accuracy of the public register. That is why we do not favour an approach which would involve removing names from the register. Secondly, we also believe that it is virtually impossible to note compliance with the primary requirement not to commit unlawful acts in a non-discrimination notice. That requirement is an ongoing requirement. Although it may be possible to say at a particular point of time that there appears to be compliance with a requirement, continuing compliance is much more difficult to show. It may be helpful if I give noble Lords an example.

It may be that a non-discrimination notice includes a finding that an organisation has committed an unlawful act by not providing access to a disabled lavatory. To deal with this, the action plan may state that the organisation would provide a disabled lavatory by a certain time. The organisation may comply but then decide that as that lavatory was not used very often, it should be used as storage space. This would constitute committing an unlawful act of the same kind as that stated in the original non-discrimination notice and would be a contravention of the notice.

We believe that any attempt to try to note compliance with the primary requirement not to commit unlawful acts is likely to lead to arguments and even litigation about whether an organisation has complied with the non-discrimination notice and whether it continues to comply with it. The option proposed in Amendment No. 24 is, we believe, a simpler and more objective test for noting the register.

Finally, it is helpful to remind ourselves of the experience of the existing equality commissions with non-discrimination notices. If we look back at the sex and race legislation, it is, I am glad to say, very rare that organisations are so resistant to advice on how to adhere to the legislation as to have a non-discrimination notice issued. The CRE has only issued 32 non-discrimination notices in the past 20 years or so. I very much hope and believe that that is likely to be the case with the DRC.

Given the fact that non-discrimination notices will only be issued to organisations which are being pretty resistant when all other attempts to resolve matters have failed, we believe it is right that they should be put on a public register. However, by bringing forward Amendment No. 24, we are ensuring that where an action plan is produced by an organisation, that is also on the register. I commend the amendment to the House.

My Lords, I am enormously grateful to the noble Baroness for the care with which these amendments have been explained. Indeed, one thing occurred to me during the course of the introduction of the amendments to the House; namely, the characteristic influence that this place has had on yet another piece of legislation. I think the quality of the attention and care taken by Members of this House really bears considerable fruit when such issues arrive in another place. It is worth recording that fact.

I am delighted to see that the definition is now clear on the face of the Bill by way of the earlier amendments. The refusal to receive oral representations, and to have reasons why that should be, is also very important. However, I must stress just a little disappointment about the removal of names from the register. I can think of a number of examples where that action would be fairly straightforward. I could take the example used by the noble Baroness, but there are others. I have in mind putting in a lift or some means of getting from one floor to another, or indeed installing toilet facilities. All those examples seem to me straightforward. Where an employer very quickly understands that deficit and very readily puts it right, it seems a great pity that the name cannot be removed from the register. After all, some people in this country commit quite serious crime but, after a certain period when the penalty has been paid, that is removed from the records. It is most unfortunate that such names will not be removed from the register.

Nevertheless, I do not wish to sound churlish at this stage of the proceedings. I believe that the Government have gone some way to recognise that where a company is readily compliant and where that compliance is sustained, there is at least a record to that effect; and that record will remain. It is just a pity that there cannot be complete removal from the register. I support these amendments.

My Lords, the noble Lord, Lord Rix, said that he would like to support these amendments en bloc. Generally speaking, I support virtually everything that appears on the Marshalled List. I may have one or two small disagreements about how things might have been done better or sooner but, on the whole, we have achieved much of what we aimed for throughout the proceedings on the Bill. I am very glad to be able to welcome these amendments. In future, when a Bill starts in this House, I hope that we will not have to wait for the matter to go the House of Commons before we receive such welcome news.

My Lords, I, too, should like to welcome the amendments which have been brought forward tonight. They will make the Bill much more practical and a very much better and workable piece of legislation. People out in the wide world will be able to understand it much more easily than was the case when the Bill left this House.

My Lords, I am very grateful to the noble Baroness, Lady Blatch, and to the noble Lords, Lord Swinfen, Lord Addington, and Lord Rix, for what they have said. In particular, the noble Baroness, Lady Blatch, emphasised the fact that this House has always shown a tremendous commitment to issues surrounding disability. I think that the work that was done in this House on the Bill is just a symbol of that commitment. When these issues were discussed initially in this House, I said that we would look at them again. We have been able to do so, and I am very glad to hear the welcome that has been given to the changes we have made.

My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 3, to which I spoke when moving Amendment No. 2.

My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 4. In speaking to this amendment, I shall speak also to Commons Amendments Nos. 5 and 7. This group of amendments concerns written agreements. Amendments Nos. 4 and 5, taken together, allow the DRC and the organisation to enter into a written agreement at an earlier stage than originally provided for and make clear what terms may go in written agreements. They also define more fully on the face of the Bill the scope of written agreements. Amendment No. 7 is a technical amendment.

My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 5 to 7.

My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 8. This new clause is intended to give the commission the power to take direct action where an organisation persistently discriminates. This would apply where an organisation had had served on it a non-discrimination notice or had had a tribunal court judgment against it. Where that was the case, the commission could seek an injunction against the organisation if it believed that, without such an injunction, the organisation could commit further unlawful acts.

The court or tribunal judgments that I refer to are in respect of unlawful acts under Part II and Part III of the Disability Discrimination Act. The clause includes a regulation-making power to extend the scope of unlawful acts beyond this. That is consistent with other provisions in the Bill, which provide for the range of unlawful acts to be extended.

Such provisions already exist for the Equal Opportunities Commission and the Commission for Racial Equality. Although these powers have been used rarely, I understand that those commissions have found it helpful to have such powers. I am confident that the disability rights commission will also find such a provision helpful.

For the avoidance of any doubt, I should make it clear that this provision is aimed at persistent discriminators; that is to say, those who have already been through a fair and thorough legal process and have already been judged to be in default of the law. That is why the power to seek an injunction to prevent further unlawful acts—in effect, a speedy way to bring the matter to the attention of the court—is deemed appropriate in this particular set of circumstances. I commend the amendment to the House.

My Lords, my only concern about this amendment is the test for persistency. I do not invite the noble Baroness to elaborate any further this evening; indeed, I accept in good faith that it will be a fairly stringent test and that there will have to be very real, persistent non-compliance. However, it would be helpful to employers to know that it will be an objective judgment as opposed to a subjective one, and that there will not be too much variance between one person's judgment and that of another. Having said that, I have no objection in principle to the amendment.

My Lords, I believe that this amendment is quite important because it has some teeth—a little bit of bite to back up the bark. As to the last comment of the noble Baroness, I, too, think that that is a very reasonable fear. Nevertheless, I had assumed that it would be taken into account.

My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 9.

My Lords, I beg to move that the House do concur with the Commons in their Amendment No. 10.

This subsection was introduced as a privilege amendment when the Bill was previously before this House. It reflected the fact that it was beyond the scope of noble Lords' powers to impose or vary charges on people or on public funds. The Government's amendment in another place to remove the clause was in recognition that no such constraint applied there. The amendment was purely a matter of form.

My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 11. It requires the commission to produce a list of organisations it has consulted and make it publicly available.

This amendment was tabled by the Government in response to concerns raised by Opposition Members in another place. In framing it, we considered carefully the administrative burden it would place on the commission and sought to minimise this where it was practical to do so. We have, after all, said that the commission will not tie itself up in red tape; nor will it waste resources.

The list should be useful as a point of reference and provide transparency about whom the commission consults. It is intended to cover organisations only and should not therefore include contacts with particular individuals—such as general practitioners—in response to a particular case.

The key features of this amendment are that the list would be publicly available on demand. The commission would decide the best way to make it available which could, for example, include posting it on the Internet. The list will need updating to get rid of "dead wood", for example organisations which no longer exist. The amendment allows the commission to take organisations off the list if they have not been consulted in the previous 12 months, but does not require it to do so. That would mean that the commission was neither obliged to start from scratch every year nor to keep the list under continuous review, both of which might be rather administratively burdensome. Organisations would not be included in the list if they had been consulted only for the purposes of a formal investigation or in relation to the DRC giving an individual assistance in relation to the proceedings. I do not believe that would be desirable given the confidential nature of such contact.

Moved, That the House do agree with the Commons in their Amendment No. 11.—(Baroness Blackstone.)

My Lords, I am slightly puzzled. I understand the arguments for removing "dead wood" from the list. The amendment states that the commission,

"shall maintain a list of the organisations".

The list will in the first instance comprise organisations that the commission believes that it should consult generally. Presumably, given that there is provision for removing organisations from the list, there ought to be provision to add organisations to the list. Just as organisations cease to exist new ones come into existence. I assume that although the Government have seen fit to include a specific power to remove organisations from the list, there is no specific requirement continually to add to the list and keep it current and relevant as regards those who should be consulted on an issue. I imagine, too, that some organisations should be consulted on a particular issue and others should be consulted on other issues. I seek some assurance that it is as important to add to the list as to delete organisations from it.

My Lords, once again the noble Baroness has made a valuable point. Generally speaking it will be helpful to have a list and to encourage the flow of information. Parliament is in a self-congratulatory mood as this is a good piece of legislation, but the next struggle will involve enforcement. Organisations need to have access to the full information available. Without the co-operation of those organisations it will be much more difficult to make this legislation work. I welcome the provision although, as I say, I believe that the noble Baroness has made a relevant point.

My Lords, I am grateful to the noble Lord, Lord Addington, and to the noble Baroness, Lady Blatch, for their welcome of the measure. I confirm that we shall expect the commission to update the list from time to time. The noble Baroness is absolutely right that new organisations are formed, and that old ones sometimes die off.

My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 12 to 32.

My Lords, I beg to move that the House do now adjourn during pleasure until 8.40 p.m.