3.19 p.m.
My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.
Moved, That the House do now again resolve itself into Committee.—( Lord Williams of Mostyn.)
On Question, Motion agreed to.
House in Committee accordingly.
[The PRINCIPAL DEPUTY CHAIRMAN OF COMMITTEES in the Chair.]
moved Amendment No. 114:
After Clause 59, insert the following new clause—
Non-Detention: Persons Under 18 Years
(" . A person who appeals under section 59 and who is under the age of 18 shall not be detained for any period while the outcome of his appeal remains undetermined.").
The noble Lord said: In moving Amendment No. 114, I wish to speak at the same time to Amendment No. 115. The amendments refer to the detention of children. Amendment No. 114 proposes that no child appellant under the age of 18 should be detained. That might be thought by the Government to be rather sweeping or even drastic, but then so is imprisonment, in particular for children. At present some are detained in detention centres, but from time to time some are detained in prison. Generally speaking, that is a much more traumatic experience for the children in question.
The amendment principally applies to unaccompanied children before an appeal is determined. If an appeal takes place and fails, and the child is to be deported, then the amendment would not prevent such a child being held in custody pending the deportation. I realise that the Government have said on a number of occasions that the power to detain children while an appeal is pending will be used only in exceptional circumstances. However, I gather that the Refugee Council has worked with around 80 unaccompanied children in the past two years. Some of them were aged 13 or 14, and some were detained in adult prisons, to which I referred.
It has been suggested that the detention of refugee children violates Article 37 of the United Nations Convention on the Rights of the Child, because it is unregulated and without judicial oversight. Furthermore, it violates Articles 22 and 39 of the convention. I hope that when the Minister responds, he will take the convention into account and consider how the powers in the Bill square up with it.
While I welcome the fact that children will be detained only in exceptional circumstances, nevertheless it seems to me that every effort should be made to avoid detention wherever possible, particularly as regards unaccompanied children. By definition, those children have known traumatic circumstances in their countries of origin, and by succeeding in gaining entry to this country, they have probably also been through great traumas and difficulties.
I was told by one of the children's organisations of a 13 year-old Nigerian girl whose parents were political activists in that country. Both had gone missing and were believed killed. The girl arrived here on a false passport, because that was the only way she could leave Nigeria. One of the false statements on the passport made her a good deal older than she was. Again, that was necessary if she was to succeed in her aim of escaping the country. Out of fear, she did not at first admit the false statement to the immigration officers. She was sent to a detention centre and held there for several months before eventually being released on bail on her 14th birthday. That case illustrates several of the issues behind the purpose of the amendment, and explains why I wish to draw attention to the matter at this stage.
A large number of unaccompanied children—probably the majority of those detained—encounter a dispute about what is their real age. Often they will have travelled on false documents, in much the same way as the young lady I referred to had done. That is where the second amendment, Amendment No. 115, comes into the picture. On an earlier amendment tabled by the noble Earl, Lord Russell, the subject was raised of what happens when the age is disputed. In those circumstances it can be very difficult to decide precisely what is the age of a child or a young person. Amendment No. 115 attempts to ease the situation, although obviously the basic decision will remain just as difficult, whatever the underlying law says.
The purpose of the amendments is not dissimilar to that of the Government; namely, to avoid as far as possible children—particularly unaccompanied children—finding themselves in detention, and especially, where it can possibly be avoided, finding themselves being held in adult prisons. In the vast majority of cases it should be possible to avoid that. I beg to move.
The noble Lord has made a strong prima facie case for action to be taken along the lines suggested in the amendments. However, I suspect that there are technical difficulties that may stand in the way of including the provisions in the Bill. No doubt my noble friend will advise the Committee of whether that is the case. However, I for one certainly view very sympathetically the suggestions put forward by the noble Lord. At this stage we would expect no more from the Government—I would not, although I do not know what the noble Lord would feel—than that the matter should at least be viewed in a sympathetic light. If there are technical and drafting problems, those may be dealt with at later stages of the Bill. The noble Lord has made a strong case for careful consideration of the issues.
I support the amendment. It is a sensible provision, and if there are technical reasons why it should not be included, then we shall want to know them. Equally, however, there is no reason why such technical difficulties cannot be overcome with appropriate wording.
I should declare once again my interest as a trustee of the Save the Children Fund and a number of other children's organisations. They have produced accurate material on the amendment. The provision refers to refugee children. First and foremost, they are children. The detention of refugee children raises serious questions about protection. Children can be detained in two circumstances: first, as unaccompanied children; and, secondly, as children in families. The noble Lord, Lord Cope of Berkeley, asked whether detention violates Article 37 of the UN Convention on the Rights of the Child. Perhaps I may also ask the Minister whether the detention of refugee children violates Articles 22 and 39 of the convention. It is always difficult to make distinctions on the matter of age. Its determination has raised a considerable amount of concern. We welcome the Government's declaration that unaccompanied children will be detained only in exceptional circumstances, and that the Government do not knowingly detain anyone under the age of 18. However, children's organisations have produced firm evidence on this point. I have been told that in 1996–97 the Refugee Council worked with 80 unaccompanied refugee children held in detention. Those are 80 too many. Some were detained in young offender institutions and others in adult prisons. Some of these children are as young as 13 or 14. It is clear that unaccompanied children are being detained for long periods, as revealed by the case of the Nigerian girl mentioned by the noble Lord. Other cases have been cited, for example, the Tunisian girl who was detained at Campsfield House. An intimate paediatric examination was required which determined that she was 17. I hope that the Government will give serious consideration to these matters, including the need to obtain appropriate paediatric reports for the assessment of age. But for as long as this matter still raises doubt it is right and proper that we should try to protect young people under the age of 18 from detention. I support the amendment.3.30 p.m.
I too hope that the Minister will be able to give the amendment serious consideration. The arguments have been well rehearsed, and I simply underline two matters. First, many of these children will already have suffered extraordinary trauma. To impose further trauma upon them is almost unthinkable. Secondly, to make arrangements for their detention, particularly in prison, at a time when the Minister is battling so valiantly against all that is wrong with our prisons and centres of detention for young people is highly questionable. If, in our prisons and centres of detention, the system operated perfectly, perhaps the situation would not be so alarming. I am sure that, whatever the technical difficulties, the Minister will give serious consideration to the amendment.
I support the remarks of the noble Lord, Lord Judd, in support of the amendment moved by the noble Lord, Lord Cope of Berkeley, to which I have added my name. The amendment asserts some important points about the way we treat children. I said in Committee on Monday—the noble Lord, Lord Dholakia, made similar points today—that we are considering children first and asylum seekers second. An absolute declaration of the Government's intention that no child should ever be held in a detention centre would be welcome. If it were possible to write on to the face of the Bill a safeguard along the lines set out in Amendments Nos. 114 and 115, that would be desirable.
The noble Lord, Lord Dholakia, referred to the case of a Tunisian girl who was given exceptional leave to remain at the end of the process. Other cases have been brought to our attention by Save the Children. The case of the Nigerian girl, to which the noble Lord, Lord Cope of Berkeley, spoke, was referred to that organisation by Amnesty International. That illustrates what can happen in these circumstances. In a further case, a Nigerian boy was held at HM Prison Rochester because of an age dispute. Despite the existence of evidence about the boy's age, the immigration service refused to release him. He was eventually released following a paediatric examination which confirmed that he was a minor. He was subsequently diagnosed as being severely depressed, with possible post-traumatic stress disorder compounded by his detention. He has been refused asylum and exceptional leave to remain in the UK. These are children first and asylum seekers second. I do not believe that there is a world of difference between all those who have spoken today as to the likely response of the Government. However, although I strongly welcome the assurance given by the Government in a Special Standing Committee on 18th May that children detained in social services care would be subject to Section 25 of the Children Act, I believe that the Committee would be assisted by clarification of that assurance; in particular, the conditions under which children would be detained outside that provision. That would go some way to meet the concerns raised by Members of the Committee.I speak to Amendment No. 115. Surely, there is total agreement that Amendment No. 114 is entirely right. I recall that in the debates on the 1996 Act we ran into the problem of how age was to be determined, especially in cases where youngsters arrived without any documents to support their age. In the event, the proposal for independent paediatric assessment was not accepted and, therefore, there was no provision in that legislation that children could not be detained. I believe that Amendment No. 114 is dependent entirely on finding a way to establish the age of a person, or making a reasonable assessment of age. I am informed by those who are authorities in this matter—I well remember the earlier debates—that it is extremely difficult to determine the age of a young person and that such an assessment may give rise to a discrepancy of anything up to five years.
Therefore, I believe that the core of Amendment No. 115 lies in subsection (1)(b); namely,As I understand it, it is not possible to reach any absolute judgment about age, and therefore the test of "reasonable likelihood" is perhaps the best solution. I support Amendment No. 115 because without it we stand very little chance of getting anywhere with Amendment No. 114."a finding of 'reasonable likelihood' from any such assessment shall be construed as though it were confirmation that the person is under the age of 18".
I too support Amendment No. 115, to which I have put my name. The Minister may he glad to know that I shall not attempt to repeat anything I have previously said on the subject. There are two pieces of information, widely separated, in the Ramsbotham report on Campsfield House. One is that no children had been admitted to Campsfield House; the other is that a large number—my memory tells me 49, but I do not swear to it—had been discharged from Campsfield House into the care of Bicester social services. Whatever the brewery advertisements suppose since none of us has yet discovered a way of getting younger, this suggests that the matter of the age of alleged children is open to some doubt.
Civil wars and civil unrest are not good for records, so the countries from which most asylum seekers come are likely to be in a state where the records are in more than usual confusion. That means that an independent paediatric examination is the only acceptable way of obtaining real evidence and that the test of "reasonable likelihood" in this amendment, however lacking in certainty, is the best we shall ever get. If it is the best we shall ever get, we had better take it.I warmly support these two amendments. I believe that the Government's White Paper refused to outlaw the detention of children, arguing that the power to detain had to be kept for limited circumstances. Have the Government considered or publicised the limited circumstances so as to provide guidance to those who have this responsibility? The detention of children is a very important issue. I am sure that all Members of the Committee agree that, wherever possible, we must keep the practice to an absolute minimum. Perhaps we should set out exactly the conditions in which it is absolutely necessary for the Government to detain children.
About 10 years ago I worked with Save the Children on a committee concerned with children in Africa. It was at exactly that time that the Children Act came into force and I became aware of how many organisations and individuals had worked on that legislation. The Minister will give us an assurance that the Children Act carries on. But why is it that so many of the same organisations, 10 years later, looking at this legislation, have decided that it is not adequate and that these new provisions should be inserted?
I fully understand the intention behind the amendments and although I am unable to support them I think that the Government's aims and those of the mover of the amendment and its supporters are very similar. The noble Lord, Lord Cope of Berkeley, seeks to deal with concerns about persons where there is no dispute about their being under 18 years of age and those where age is in dispute. It may be helpful to explain to the Committee the policy and practice in respect of unaccompanied minors and children in families, first, where age is not in dispute.
Unaccompanied minors are only ever detained where absolutely necessary, and even then only for a short period; for example, overnight following arrival if the local social services department is unable to offer immediate assistance. An unaccompanied child claiming asylum or one appealing against a decision to refuse asylum would therefore not be detained save in very limited circumstances until more appropriate care arrangements had been made by the relevant local authority. This position was confirmed in the White Paper; and I confirm it again today. The noble Lord, Lord Cope of Berkeley, says that every effort should be made to avoid detention of under-age children wherever possible. I agree, but we recognise that there are certain limited circumstances where it is not possible for a short period of time to avoid detention. In those circumstances, Amendment No. 114, which would prevent detention ever, is not appropriate. I give one example of the circumstances in which such detention might be appropriate. A child's application is refused. He lodges an appeal; he absconds; he sleeps rough; he comes to the authorities late one night; and social services cannot respond. Amendment No. 114 means that he could not be sent to a detention centre even for the night. Families are detained only as a last resort, most usually when removal directions have been set and it is clear that the family are unlikely to depart from the United Kingdom voluntarily. It would be most unusual for a family to be detained while there was an appeal outstanding against a decision to refuse asylum. Children will never be detained if they have one or both responsible parents to care for them outside detention. Furthermore, if we are advised that the best interests of a child would be met by separation from a detained family, the child will be referred to local authority care. It is our view that wherever possible the family should be kept together as a single unit unless the best interests of the child indicate otherwise. In family cases detention should again be for the shortest possible period, usually overnight prior to removal. If further representations are made which necessitate the deferring of removal it would normally be appropriate to release the family. A further consideration is that, as we currently have only one family unit at Tinsley House detention centre, there would be no operational benefit to be gained in using it to detain one family for a lengthy period and so prevent its use for other families who are removable and whose circumstances require short term detention. I hope very much that the assurances I have given will set noble Lords' minds at rest. I shall come to Section 25 of the Children Act in a moment.The Minister said that the normal situation would apply in the circumstances to which he alluded. Does he feel that in order to deal with the somewhat abnormal circumstances that can arise it would be helpful to offer some advice or directions to the authorities so that difficulties might be obviated without necessarily including such provisions in the Bill?
Following the remarks of the noble Lord, Lord Clinton-Davis, would the Minister make inquiries to see whether a small pool of foster parents could be recruited, living, if possible, near the principal airports, to meet precisely the emergency situations to which he referred earlier?
On the first point of the noble Lord, Lord Clinton-Davis, it seems obvious that guidance should be given to authorities dealing with the question of the detention of unaccompanied children. Perhaps I may make inquiries as to what guidance will be given. Putting children into foster care is a matter for local authorities to whom children may in certain circumstances be remitted in the context of an asylum application. I am unable to give the assurances that the noble Lord, Lord Hylton, seeks.
The second proposed new clause refers to detention in cases where a person's age is in dispute. The instance of asylum seekers claiming to be under 18 is rising. In age dispute cases it is our practice to detain for longer periods only where circumstances demand and we have reasonable grounds for believing that the person is 18 years or over. In reaching a decision on the age of an applicant, we take into account any medical or other information which suggests that the person is a minor. All cases involving minors are referred as a matter of routine to the children's panel of the Refugee Council. In cases of doubt the person concerned is given the benefit of the doubt and will be treated as a child, allowing for his or her release into appropriate care. As the noble Earl, Lord Russell, will know, assessment of age is, according to the medical profession, an inexact science. We have been in consultation with the Royal College of Paediatrics and Child Health on the subject of age assessments. It informs us that medical age assessments are very difficult to make and any statutory provision placing greater weight on medical assessments than is already given under current arrangements would be unwelcome within the medical profession. Amendment No. 115 in effect proposes that a paediatric assessment be done and particular weight given to it. On the basis of the advice we are receiving from the bodies that I have indicated, that would be unwelcome within the medical profession and I think that we are sensible to take its advice. In a recent case drawn to our attention by the Refugee Council a consultant paediatrician had assessed the young man's age as 17 years, plus or minus 1½ years. However, in a subsequent interview with an immigration officer, in the presence of his legal representative, the person confirmed that he was 21 years old. This fact was borne out by documentary evidence given by another member of his family. I hope that noble Lords are reassured by my assurance that the benefit of the doubt is given wherever possible in cases of age dispute. The introduction of the Government's proposed statutory presumption in favour of bail will provide an added safeguard in all cases, as will the new routine bail hearings provided by Part III of the Bill. Indeed, the special status of minors is to be reflected in the very narrow exception to be drafted to the statutory presumption in respect specifically of minors. Amendment No. 115 also proposes that Section 25 of the Children Act 1989 shall apply wherever a child under the age of 18 is detained. Section 25 sets out the circumstances in which a child who is being looked after by a local authority may be placed in secure accommodation and applies in this context without the need for any amendment along the lines proposed. Without going into the detail of it, Section 25 of the Children Act sets out very limited circumstances in which a secure accommodation order can be made in respect of a minor. The noble Earl, Lord Sandwich, asked passionately: why, if everything is all right, as I suggest, are these bodies complaining? I have gone through the arrangements carefully. I believe that if one considers the problems legitimately raised in relation to the detention of minors, the Government's thinking and that of noble Lords who raised the point are quite similar. The only difference between us is the body of thought which says, "You should never, come what may, even for a night, detain an unaccompanied minor." We think that there may be certain limited circumstances where that is necessary. As regards breach of the United Nations convention on rights of children, there is judicial oversight of detention. Not only are there bail applications, judicial review applications, and habeas corpus applications, but in future there will also be the routine bail applications referred to in the Bill. Indeed, there will he a presumption in favour of bail. In certain cases, it may be in the interests of the child to detain him or her for a short period of time until appropriate arrangements are made. Also, there are cases in which age is in dispute. In such cases, investigations are made, but we give the benefit of the doubt to the detainee. We do not see that in those circumstances there would he any breach of the United Nations convention or, in particular, of any of the articles referred to by the noble Lord, Lord Dholakia, in relation to the proposals we are making. In those circumstances, I hope that the noble Lord will be minded to withdraw his amendment.May I press the Minister on two points? The gap between the thinking of those of us who have tabled the amendments arid what the Minister has just said is narrow. I imagine that the question turns on whether it will be possible to indicate on the face of the Bill that only in exceptional cases would a minor be detained, instead of a broader expression of the situation with regard to minors.
On Amendment No. 114, would it be possible to indicate in circulars to local authorities that minors should not be put in custodial or similar accommodation, but in accommodation suitable for young people, as a way of dealing with children under the Children Act 1989? That would be a simple solution and would not require primary legislation. On Amendment No. 115, may I ask the Minister why the drafting of that amendment, in particular subsection (2), does not meet the exact point that he made—that the burden of proof should rest on the immigration authorities rather than on the child? Therefore, in cases in which paediatric specialists hold that there was a reasonable likelihood that the person was in fact under the age of 18, he or she should be treated as a minor.As far as the present law is concerned, it is for the courts to determine whether bail is granted. If they remit the child to the local authority, it is entitled to put the child into secure accommodation only if the conditions of Section 25 of the Children Act 1989 are satisfied. They set high tests before the court can make an order for secure accommodation. If an order for secure accommodation is not made, it is for each individual local authority to decide what to do. I hope that that meets the point.
No.
As I understood it, the point that the noble Baroness, Lady Williams of Crosby, was making was, "Please take care to ensure that children under 18 are put in appropriate accommodation and, in particular, not in semi-gaols by local authorities". Children can be put into secure accommodation only if the conditions of Section 25 are satisfied, and that is a matter for the magistrates' court rather than the local authority. Does that meet the point?
"Secure accommodation" is a term that can be interpreted in several ways. We are suggesting that secure accommodation should not be custodial accommodation; that is to say, it should not be a prison or a detention centre in any circumstances in which a local authority can provide accommodation more suitable for a minor—for example, local authority secure accommodation, which is not the same as a prison or a detention centre.
Such accommodation is still custodial. That very issue is dealt with in Section 25 of the 1989 Act. I am not sure what the noble Baroness is after on this point. The 1989 Act deals with the question of when local authorities can put a child into "secure accommodation", as defined by that Act. I do not see what more we can do in statutory terms to satisfy the point.
The second point made by the noble Baroness, Lady Williams of Crosby, was why we did not make it clear that it was for the immigration authorities to establish the position. First, there is a statutory presumption in favour of bail, so a reason must be given why—in the circumstances of the case and even if age is disputed—bail should not be granted. Secondly, the immigration authorities, as a matter of practice in cases of doubt, treat the person as being under 18. I should have thought that those two factors met the point.The evidence that we have received from the Refugee Council and others, including the Save the Children Fund, suggests that the immigration authorities do not always interpret the situation in the way that the Minister suggested. The noble Lord, Lord Cope of Berkeley, and others gave several precise examples. The noble Lord, Lord Alton of Liverpool, gave another, and we could give more. In such cases, the immigration authorities have insisted that someone appeared to be over the age of 18. Although it turned out that they were not over that age, they were detained for some time while the argument continued. The examples given (of a Tunisian girl and a Nigerian boy) did not match the Minister's description of how the immigration authorities proceed.
It will always be possible to give examples in either direction. I have cited—although I do not rely too heavily on it—the case in which someone asserted that they were under 18 and had paediatric evidence to support it, but they turned out to be 21. Where does either sort of example get us? There will always be cases on either side of the line. There will be many cases in which there is a genuine dispute about age and we must grapple with those cases in the statutory procedure we set out.
These are extremely important points. The Minister mentioned the Children Act 1989. What will be the position of children in Scotland under Scottish legislation? Is it the same? If the Minister has not ascertained that, I should be grateful if he could perhaps write to me. We have to keep an eye on such things these days.
The noble Baroness is absolutely right to raise the matter. I am afraid that I am not in a position to give her an answer and I shall write to her with the details.
I shall attempt to be helpful. The Minister asked where all this has got us. That is a fair question and it deserves an answer. In relation to Amendment No. 114, the Minister gave the example of the child who absconds and is found late at night. There are much neglected powers in Section 51 of the Children Act 1989 to send children to a children's refuge, where they may stay for two weeks while their best interests are investigated. Those are important and valuable powers, about which the noble Earl, Lord Listowel, knows much more than I do in connection with his work with Centrepoint. I am glad to observe that he nods. Those powers would be one way to deal with the situation. They would meet the Minister's argument that there are cases in which detention might be in the child's best interests, and would meet also our argument that even if detention is in the child's best interests, it should not be detention under the immigration and asylum legislation, which is not necessarily the most satisfactory form of detention in our legal system.
On the point about proof of age, the Minister said that determination of age was an inexact science. I have already said as much myself. I understand and respect the doubts and hesitations of the medical profession, but there is sense in Aristotle's maxim that we should seek for no more certainty in any matter than the nature of the matter will admit. Paediatric examination is the greatest certainty available, no matter how small it may be. If the Minister will not accept Amendment No. 115, can he think of a better way to achieve our aim?4 p.m.
The problem is that if one takes a child to a children's refuge, there is nothing to stop him running away immediately. Secondly, not all the country is covered by children's refuges. Thirdly, paediatric assessments will not always be the best means of determining age. It will depend very much on the circumstances. For example, in some cases, certain documentary evidence will be more compelling than paediatric assessments. We should be wrong in statute to focus on one particular method of proof which may be the most effective only in certain cases.
The Minister will appreciate that there is concern not only on the Floor of the House, but among highly respected organisations outside, not least the Save the Children Fund. The organisations which have supported the amendments include UNICEF, Barnardo's, the Children's Society and the Refugee Council's Children's Panel. Would it not be helpful if between now and the Report stage the Minister would agree to meet representatives of those organisations in order to assess whether there is a way to address the paramount issue of the needs and interests of the children? The Minister has conceded that the children's interests should be paramount, which is what the organisations are calling for. The Minister shakes his head and indicates that the children's interests will not be paramount. I find that surprising—
I have set out the limited circumstances in which children will be detained. Of course we shall be willing to meet representatives of any organisation which has suggestions to make. The organisations which the noble Lord listed are of the highest repute and one would imagine that they do have specific suggestions to make.
In going through the amendments that have been made, I have tried carefully to analyse the problems and to see whether more needs to be done in the statute to deal with them. As the noble Baroness said, it is a narrow point which comes down to the question of whether the position is such that no child should ever be detained. While recognising that to do so should be exceptional, we realise that there are limited circumstances where it is necessary. If I am wrong, please come and tell us. I accept the invitation and my noble friend Lord Williams will see such people. However, what has not been put forward in the debate is a reasoned argument as to why those limited circumstances are not preserved. If there is such an argument, tell us and we shall listen. As yet, it has not been put. The noble Lord, Lord Alton, asked whether we should say that paediatric assessment will provide a way out as regards age. We thought very carefully about that and took advice from the Refugee Council and medical bodies. They tell us that that is not necessarily the most reliable way to determine someone's age; it will depend upon the circumstances. If there is a better view, let us know, but that is the view that we have formed. We have not been told why it is wrong.I am grateful to the noble and learned Lord for his response and to Members of the Committee who have taken part in this short debate. The Minister was right to emphasise what the noble Baroness said; that the gap is relatively narrow. After all, the Minister's reply was in its tone sympathetic to the points which have been made. He gave two examples, among others, of exceptions of detention which did not appear to stand up. The first related to a child being kept overnight in a detention centre because suitable local authority accommodation was not available. It did not strike me that legal custody was required in that case. Clearly, a place for the child to stay was required and it might conveniently be a detention centre. That is different and I should have thought being detained in custody may not amount to much in practice if a child is sleeping in the same bed in the same room, but it is a legal distinction.
Another example he gave related to the period prior to removal. Amendment No. 114 was successfully framed so as not to affect that. As regards the assessment of age, I understand that sometimes documentary evidence will be available, but sometimes it will be unreliable. I gave an example of false documents, which is highly likely to be the case in the circumstances, particularly in relation to younger children. We recently saw the deliberate destruction of documents in the former Yugoslavia in order to make life difficult for those who would become asylum seekers. It was sometimes done by themselves, sometimes by other people. The statutory presumption in favour of bail, which has been introduced into the Bill, is a safeguard in these circumstances, and that is helpful and welcome. The Minister did not refer to young children or to those under 18 being detained in prison, which sometimes occurs. I am sure that he would deplore that, except in circumstances where it may be avoidable. We shall come to that in a later amendment. Finally, the Minister seemed to say that Section 25 of the Children Act applies if a local authority is involved, but by implication it does not apply if the child is detained somewhere else; for example, in a detention centre or prison. I must read the Minister's reply carefully in order to make sure that I have understood it correctly. Clearly, these are matters of great concern not only to me but to others who have added their names to the amendments. We shall need to return to them at a later stage when we have fully digested the Ministers comments and considered them with others. We are grateful to the Minister for volunteering the services of the noble Lord, Lord Williams, to receive representatives of the organisations concerned. The noble Lord has been extremely generous in giving such assurances on his own behalf so I am sure that he will not mind. Subject to what those who have been kind enough to add their names to the amendment may say, I beg leave to withdraw Amendment No. 114.Amendment, by leave, withdrawn.
Clauses 60 and 61 agreed to.
[ Amendments Nos. 115 and 116 not moved.]
Clause 62 agreed to.
Clause 63 [ Limitation on further appeals]:
moved Amendment No. 117:
Page 41, line 20, leave out ("On the issuing of a certificate by the Secretary of State") and insert ("If the Adjudicator agrees with the opinion of the Secretary of State as expressed in a certificate issued").
The noble Baroness said: At first glance, the amendment may look a great deal less significant than the one that we have just debated. However, it has a considerable bearing on the fairness and justice of the Bill. Clause 63 deals with people who have reached the final appeal stage; that is, who had a first hearing, then an appeal which may have been dismissed.
Amendment No. 117 deals with the question of whether an applicant will be treated as having already made out his case in an appeal in such a way as not to entitle him to any further appeal. In general, we on this side of the Committee agree that the appeal procedure can be abused and that there is a great deal to be said for limiting the number of appeals to those which can receive a final judgment.
However, Clause 63 enables the appeal finally to be determined either on the ground that the case has already been heard or on the ground that it was not heard or advanced but could have been. What then happens is that the Secretary of State is permitted to issue a certificate signed by himself, on the strength of which he is able to argue that the appeal will be either upheld or rejected. We are greatly concerned that that makes the Secretary of State the judge of his own court.
The purpose of the amendment is to make the adjudicator the person who makes the decision on the basis of the certificate. Then, and only then, will the certificate hold on the basis of the opinion of the Secretary of State. In other words, the Secretary of State could not on his own issue a certificate which would end the process of appeal, given that that is the applicant's last chance, without the agreement of the adjudicator.
It seems to us absolutely critical that the adjudicator should be brought into the process and that the matter should not be left wholly to the Secretary of State. If the Secretary of State were the sole issuer of a certificate, he would in a sense be both judge and jury. Therefore, the amendment seeks to provide that the adjudicator must agree to the issue of the certificate. Again, I remind the Committee that that brings the whole process to an end. I am particularly concerned that some appellants, especially those without legal advice, may be unaware of the complex grounds on which an appeal can be made; for example, with regard to the European Convention on Human Rights, or other international conventions. I therefore repeat that in our view it is absolutely critical that the adjudicator should be part of the process and that only with his agreement can the whole matter be brought to a conclusion. I beg to move.
I rise to support the amendment. Looking at the matter, it seemed to me to be the case that one party to the granting or otherwise of the possibility of an appeal was to make the decision rather than the adjudicator who is the judicial authority in this case. Not being highly legally educated, I could not think of any other example in British law in which one of the parties—in this case, the Secretary of State—made the decision as to whether or not the appeal should be allowed. If there are other examples, no doubt the Minister will point them out to us.
Perhaps I may ask the Minister a question which I am sure he is legally well qualified to answer. Will he explain why, in the Government's opinion, this provision does not lay the Secretary of State open to judicial review as being judge and party in his own court? If he is any danger from that, my noble friend's amendment would save him from it. I believe that he ought to be grateful.
The purpose of the amendment is to remove the Secretary of State's ability to thwart repeat appeals, which the noble Baroness condemned, by certifying that the grounds for further appeal contain nothing which has not already been considered. Clause 63(6) states:
I emphasise the next words—"On the issuing of a certificate by the Secretary of State under subsection (5), the appeal"—
The circumscription is there, and it is deliberate. It means that we are looking to a new system to prevent people making a series of appeals on the same issues. I am sorry to repeat that again. I must say—I hope that it will be to the comfort of the Committee—that where a genuinely new situation arises after the determination of the appeal, we cannot and should not deny a fresh hearing if a further right of appeal exists. I give the Committee an example. A person may make a further claim, having already failed to become a refugee here, if there has been a coup in the country of origin. That would not disentitle any application or appeal to be brought forward by virtue of the Secretary of State's certificate. I am quite unable to accept that there should be a fresh hearing if all the issues have already been determined by the appellate authority. If the amendment were accepted, there would have to be a hearing in every case for the adjudicator to agree the Secretary of State's certificate—in other words, a completely pointless exercise. If the proposal of the noble Earl, Lord Russell, were to be accepted as a protection for the Home Secretary from legal challenge, I should be the first to accept it. But I must point out that although the certificate is expressed in the way that it is expressed, judicial review can be brought against the issue of the certificate on the normal grounds for judicial review. Bearing in mind the emphasis I have given to those grounds, we are really saying that if the grounds are the same, and they have been fully ventilated, the Secretary of State is entitled to certify that. If he behaves in a way which is susceptible to judicial review, that remains."so far as relating to those grounds, is to be treated as finally determined".
4.15 p.m.
I am generally puzzled by the Minister's response. Perhaps he may be able to help me to understand it better. Like the Minister, we do not want to see a system under which people may appeal on grounds already advanced; nor do we want to see a system where someone may appeal who could perfectly well have advanced those grounds earlier but chose not to do so. We fully share the Minister's desire to conclude the process. However, with respect, our argument is different; namely, that in concluding the process, the Secretary of State should not be the sole decision-maker, but should couple with his views those of the adjudicator, who will, for those purposes, be treated as independent of the immigration authorities in a way that no Home Secretary can be as they are answerable and accountable to him.
We have no desire to prolong the appeal process, provided that the adjudicator and the Home Secretary are of one mind. If they are not, in our view the matter should not be concluded. An exact parallel can be drawn with paragraph 9 of Schedule 4, the wording of which we drew on for our amendment. In respect of convention cases, paragraph 9(2) states:In other words, that is another instance of certification which brings to an end the process of appeal. In this case, the issue of judge and jury in one's own court is properly dealt with because the adjudicator must agree with the certificate. That is all that our amendment seeks to achieve. With great respect, I did not follow the Minister's argument on that point."If, on an appeal to which this paragraph applies, the adjudicator agrees that the claim is one to which this paragraph applies, paragraph 22 does not confer on the appellant any right to appeal to the Immigration Appeal Tribunal".
I am sure that that was my fault. I was trying to say that we believe that the certification by the Secretary of State is perfectly rational and can be upheld as a system, because he is required to certify that all the grounds have been considered earlier and that there is nothing further on which the adjudicator needs to decide. There is no live issue left.
The consequence of the noble Baroness's amendment, were it to be accepted, would simply be a further spinning out of the process. As I said earlier, there would have to be a hearing before the adjudicator—As the Minister has twice mentioned a hearing, will he confirm that there is nothing in the amendment which says that the adjudicator must have a hearing for the purpose of reaching his decision? My noble friend is suggesting that he should confirm that the grounds on which the appeal would be based are a repetition of those which have been heard earlier. He is simply confirming the opinion of the Secretary of State that that was the case. Surely he can do that without a hearing.
I imagine that the legal approach in those circumstances would be what we have already discovered. If the adjudicator comes to a view, both parties will be entitled to be heard by him in that judicial context. I have no doubt that that would he used yet again as a device to spin out the procedures in a way that is quite illegitimate. I stress that we are dealing with a certificate that is judicially reviewable. It is a certificate from the Home Secretary to say that the matter has already been considered.
I shall certainly give some thought to the matter. I can give no more favourable reception than that. The circumstances envisaged by paragraph 9 of Schedule 4 are different. Before we look at sub-paragraph (2) of paragraph 9 we need to examine the context—convention cases and those involving removal from the jurisdiction. There are quite different circumstances, which is why we have adopted a different approach. I shall give careful thought to what the noble Baroness said. I believe that we have struck the right balance to give people fair hearings, fair opportunity and fair legal representation, but, at the end of the day, we can say that all the matters have been adjudicated upon and there is nothing new in the appeal.Many of us welcome the fact that the Minister has said that he will look at the matter again without commitment. The Minister must recognise that none of us favours an endless series of appeals on precisely the same issue. Clearly, that would be an abuse of the system.
I want to raise two points. First, I would be grateful if the Minister could answer the point put to him by the noble Lord, Lord Cope of Berkeley. Is there a precedent for the power being given to a Minister to bring an appeal process to an end? That may be impossible to answer, given the constraints of time. Secondly, like my noble friends Lord Avebury and Lady Williams of Crosby, I believe that the adjudicator could be the person to make the determination rather than the Secretary of State. Otherwise, there will inevitably be a belief that the Secretary of State is acting as judge in a matter in which it would be inappropriate for him to make the final judgment. I can see no difficulty about allowing the adjudicator to make that decision. I do not want to press the point today, but I hope that the noble Lord, Lord Williams, will review the matter. Inevitably we shall want to return to it on Report. The quality of the Bill might be improved if the Government were to make concessions, which would be welcomed by all.That is a most generous approach, as I invariably expect from the noble Lord. I shall certainly look at the proposal. Any tinkering is likely not to produce the result that we all want. All noble Lords who have spoken have adopted that view.
Perhaps I should respond to the wholly unfair question from the noble Lord, Lord Cope, and the noble Earl, Lord Russell, accusing me of possessing a vast reservoir of legal knowledge. Experienced as I am in paddling in extremely shallow waters, I shall take up what the noble Lord, Lord Harris, said and carry out some research. I am sure that there are examples—I can think of one or two—but, to my mind, they may not be the most compelling. I shall certainly look into the matter. I am sure I can find some. I almost said dredge some up. I shall look at them and take up the offer of the noble Lord.I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
moved Amendment No. 118:
Page 41, line 34, at end insert—
("(11) Nothing in this section shall apply to an appellant who was not legally represented at the time of his original appeal.").
The noble Baroness said: Amendment No. 118 is simple but, like the last amendment, important. It provides that the dismissal of the entire appeal process, implicit in Clause 64, will not occur if the original appeal has been held without the applicant having legal advice.
In the course of the Bill we have discussed the extreme importance of the applicant having legal advice. All noble Lords recognise how incredibly complex immigration law has now become, made yet more complicated by the incorporation of the European Convention on Human Rights into British law. Anyone familiar with immigration laws knows that they need a comprehensive understanding of British law, some understanding of European conventions, some understanding of international conventions and some understanding of the immigration rules, which are being revised at the present time, as well as codes and conducts of practice.
That means that someone who may not be an English speaker, who may have arrived in this country in a state of great stress and strain and who has little knowledge of any of the matters I have briefly outlined, is in no position to make out his or her own case, however strong that case may be. That is why on these Benches we strongly accept and support the idea that legal aid should be given only to recognised and registered practitioners and to well established centres of legal advice.
We recognise that the sheer complexities of immigration law are an open door to some of the most dubious, racketeering and undesirable practitioners of the law that one could want to meet. Incidentally, some of them hang around ports in the hope of persuading innocent asylum seekers to accept their services. Often those services are not worth the time of day, let alone the considerable costs which asylum seekers are driven to pay. We are all familiar with such terrible cases where the legal representative does not show up or does not give the proper advice, or does not bother to try to give the proper advice. In all those matters we are wholly on the side of the Government.
The point of the amendment is that if an asylum seeker tries to handle his own hearing, perhaps because he cannot afford legal advice or does not have a decent legal adviser, he will find it extremely difficult to make out a case in a way that fully reflects the facts of that case. If he attends an initial hearing, where he will probably not be represented, and continues to a first appeal, where again he may not be represented—this amendment deals only with people who have no legal advice—the curtailing of appeal rights will mean that he can have no further voice in the matter and will be deported to a country where he may be at risk of life and limb. We believe that that is acceptable only in a situation where the asylum seeker has had decent legal representation.
The purpose of the amendment is to propose that while we accept the curtailing of the appeal process to a single one-stop appeal, we do not feel able to accept and support that position in the event of an asylum seeker having no legal advice at all at either the first or second and final stage of the hearing. I beg to move.
It is suggested that we discuss Amendment No. 120, standing in my name and that of my noble friend Lord Astor, together with Amendment No. 118. My only hesitation about giving total support to Amendment No. 118—I hope the Minister will not think it unfair of me—is that it goes some way to making the use of lawyers compulsory. I am hesitant about that. I accept the point that immigration law is now incredibly complicated, made more so as a result of these provisions, but Amendment No. 120 suggests that when an immigration officer serves a notice on an applicant, the notice should specifically advise that legal advice should be sought on receipt of such a notice. That does not make it compulsory but it encourages applicants to go for legal advice and makes clear that it is legally advisable before they become entangled in the appeals process, which might have enormous consequences for them.
4.30 p.m.
I support the tenor of the remarks of the noble Lord, Lord Cope of Berkeley, though his amendment does not go as far as I would wish. Telling people that legal advice is available is a useful first step; but in most cases, as the noble Baroness, Lady Williams of Crosby, said, it is desirable that an appellant should be properly represented at a hearing.
My difficulty with Amendment No. 118 is that it could lead to circumstances where someone deliberately chose not to be represented so that the other parts of the section in which this was included would not then apply. It could therefore be used as an instrument of obstruction and achieve some of the undesirable possibilities described by the noble Baroness that she would not want to support. The basic argument that someone should be properly represented during proceedings is the right one and if a more felicitous form of wording could be devised to ensure that it is not open to abuse, it is an argument which we should take seriously.I am grateful for what has been said. I do not believe that there is a fundamental difference of approach between us.
If Amendment No. 118 was adopted, the mischief identified by the noble Lords, Lord Alton of Liverpool and Lord Cope, would be available. We are looking to prevent repetitious or late claims of no merit. It would be wrong to avoid further opportunities by allowing someone to say, "I do not want to be represented". I am happy to remind the Committee that when notices of an appealable decision are served, the applicant has to be given, by virtue of the Immigration Appeals Notices Regulations 1984—I repeat, "must" be given—details of how to obtain free representation. It is not right then that applicants can deliberately avoid the consequences of Clause 63 simply by electing to represent themselves. Taking up the point made by the noble Baroness, there is nothing to stop the unscrupulous adviser acting outside the system taking rapacious amounts of money and saying, "My best advice to you is to turn up without representation". That is an obvious mischief which could be the consequence of her amendment. But I ought to go further and say what the practice is. Adjudicators will not normally allow a case to proceed without representation unless satisfied that the appellant is able to argue his case—I take her point about him not being familiar with the English language. Sometimes the case is adjourned for representation to be arranged; on other occasions a duty counsellor is called in. That is what happens at the moment. I hope I have been able to reassure the Committee as to how the system works; how it is intended to work in the future; and how Amendment No. 118 would produce undesirable consequences. I am entirely in agreement with what has been said in relation to Amendment No. 120; that those who are given notice: should be advised to obtain legal assistance. But we go further and say that the legal adviser must be a qualified person by virtue of Clause 74, about which we have spoken on earlier occasions. Clause 64(9) provides for regulations to prescribe the procedures for serving notices. It is more appropriate for this point to be covered in regulations and I am happy to undertake to the Committee that that will be done.I thank the Minister for that explanation, which goes a long way to meet the concerns I expressed. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 63 agreed to.
Clause 64 [ Duty to disclose grounds for appeal etc.]:
moved Amendment No. 118ZA:
Page 42, line 2, at end insert—
("() This section also applies if—(a) the Secretary of State has decided to make a deportation order against a person under section 5(1) of the 1971 Act as a result of his liability to deportation under section 3(5) of that Act; and (b) that person, while he is in the United Kingdom, is entitled to appeal against that decision under the Special Immigration Appeals Commission Act 1997 or this Act.").
On Question, amendment agreed to.
[ Amendment No. 118A not moved.]
moved Amendment No. 119:
Page 42, line 3, leave out subsection (3)
The noble Lord said: In moving Amendment No. 119 I shall speak also to Amendment No. 121. I can he brief because this amendment flows from the report of the Delegated Powers and Deregulation Committee and its comments that the House may wish to consider whether the Bill should be amended to place the categories concerned on the face of the Bill, leaving the regulations to make any necessary adaptation. My amendments crudely followed up the point made by the committee. The reason I can be brief is that both amendments have been supported by the Minister on the Marshalled List. I have every hope therefore that he will speak in their favour. I beg to move.
This group consists of Amendments Nos. 119, 121, 121A, 122D, 207B and 210B. I am grateful for the explanation of the noble Lord, Lord Cope of Berkeley, and, as he said, we are in agreement with the principle. We accepted with gratitude the recommendation of the Select Committee on Delegated Powers and Deregulation in respect of the regulation-making powers in Clause 64. But we tabled additional amendments to go a little further than Amendments Nos. 119 and 121.
The new clause following Clause 64 sets out the categories of case to which the regulations would have applied the one-stop procedures. Much of it simply reflects the equivalent provisions of Clause 64, which the Committee has already agreed. The additional categories are illegal entrants, overstayers and port applicants without a form of pre-clearance on arrival. The one-stop procedures will apply to those if, and only if, they make a claim that removal or requirement to leave would be contrary to either the refugee convention or the human rights convention. The purpose is to ensure that such persons do not claim under one convention and, if that claim is refused, claim under the other. Amendments Nos. 122D, 207B and 210B are consequential. They essentially speak for themselves and I am happy to accede to the noble Lord's invitation and commend the amendments.I am also grateful to the Minister, in particular for his response to the report of the Delegated Powers and Deregulation Committee. However, will the regulations under the new Amendment No. 121A following Clause 64 be subject to the affirmative or negative resolution?
I believe our present experience is described as a "short hiatus" while I obtain confirmation that what I am about to say is accurate. I do not want to give misleading or incomplete information. I understand it is negative, but wanted to be sure.
On Question, amendment agreed to.
[ Amendment No. 120 not moved.]
moved Amendment No. 120YA:
Page 42, line 14, at end insert ("and, where the applicant is a child, such period shall take account of any relevant circumstances applicable to the serving of the notice").
The noble Baroness said: The amendment speaks for itself and I shall not waste the time of the Committee. We simply ask that the period shall take account of relevant circumstances because repeatedly UNICEF, Save the Children Fund and others have pointed out that it often takes a good deal longer to obtain information from a child than from an adult, particularly where there may have to be the establishing of some sort of relationship of trust between the child and the person questioning that child and trying to put together a case. I beg to move.
This group consists of Amendments Nos. 120YA, 120ZA and 122. Perhaps I can deal with our response generally.
We want to avoid unnecessary delays and this group of amendments, if accepted, would provide that the serving of a statement from a child applicant to the Secretary of State might, without penalty, exceed the period prescribed. I share the concern underlying these amendments relating to children, which is the same fountain of concern which caused the more lengthy discussions when my noble and learned friend Lord Falconer was dealing with earlier amendments. I hope that I can persuade the Committee that these amendments are unnecessary. I am happy to repeat that each application will be considered on its merits. Generally speaking, a failure to meet a deadline by a person who genuinely could not comply with it for reasons beyond their control would be considered a "reasonable excuse". I remind the Committee that that saver is to be found in Clause 65(3)(b). Children, in particular those without a responsible adult acting for them or assisting them, may well come within the category of those persons who had a reasonable excuse for not meeting the deadline. That is one of the reasons why we have the "reasonable excuse" saver. I personally believe that it is better to have that general discretion rather than try to limit matters. I hope that I have been able to satisfy the noble Baroness that that would be a saver which would enable children in those circumstances to be given decent consideration.Amendment No. 120ZA in my name, although it is worded slightly differently, goes to the same point. I am reassured by what the Minister has said. The noble Baroness may wish to withdraw her amendment.
I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[ Amendments Nos. 120ZA and 120A not moved.]
moved Amendment No. 121:
Page 42, line 26, leave out subsection (10).
On Question, amendment agreed to.
Clause 64, as amended, agreed to.
moved Amendment No. 121A:
After Clause 64, insert the following new clause—
Duty To Disclose Grounds For Entering Etc The United Kingdom
(" .—(1) This section applies if a person who—
makes a claim for asylum or a claim that it would be contrary to the United Kingdom's obligations under the Human Rights Convention for him to be removed from, or required to leave, the United Kingdom.
(2) The person responsible for the determination of the claim must serve on the claimant and on any relevant member of his family a notice requiring the recipient of the notice to state any additional grounds which he has or may have for wishing to enter or remain in the United Kingdom.
(3) The statement must be—
(4) Regulations may prescribe the procedure to be followed in connection with notices given and statements made in accordance with this section and, in particular, may prescribe the form in which such notices and statements are to be given or made.
(5) Regulations may prescribe the persons who, in relation to a claimant, are relevant members of his family.
(6) Regulations may provide that, if a claim is determined against the claimant, prescribed provisions of section 63, 65, 66 or 67 are to apply to an appeal against that determination by a person on whom a notice has been served under subsection (2), with such modifications (if any) as may he prescribed.").
On Question, amendment agreed to.
Clause 65 [ Result of failure to comply with section 64]:
[ Amendment No. 122 not moved.]
Clause 65 agreed to.
Clause 66 agreed to.
Clause 67 [ "One-stop" appeals: other cases]:
moved Amendment No. 122A:
Page 44, line 5, leave out ("Special Immigration Appeals").
On Question, amendment agreed to.
Clause 67, as amended, agreed to.
Clause 68 [ Transfer of appellate proceedings]:
moved Amendment No. 122B:
Page 44, line 10, after ("2(1)") insert ("or 2A").
The noble Lord said: In this group we find Amendments Nos. 122B, 122E, 217A and 217B. I speak first to Amendment No. 217B, which relates, as the Committee will have seen, to Schedule 13 to the Bill. That schedule concerns consequential amendments to other Acts as a result of provisions in this Bill.
Amendment No. 217B concerns a consequential amendment to the Special Immigration and Appeals Act 1997. It puts into the 1997 Act a new Section 2A, which gives jurisdiction to the Special Immigration Appeals Commission to hear appeals concerning claims that an authority acted in breach of the appellant's human rights appeals. It is clearly vital that, in a case where SIAC is involved, it is possible for it to take into account any claims based on human rights grounds. At the moment, by virtue of Clause 55, it is not possible and that is why this amendment is necessary.
Amendments Nos. 122B and 122E are consequential amendments to Clause 68 of the Bill, inserting a reference to the new Section 2A of the 1997 Act. Those are the purposes of those amendments. Amendment No. 217A is also in this group. It relates to the fact that under the present legislation in Section 2(1) of the 1997 Act, there is a right of appeal to the SIAC only in cases covered by Section 13(1) of the Immigration Act 1971, which deals with refusal of leave to enter, and not to cases covered by Section 13(2) of the 1971 Act, which deals with refusal of entry clearance.
The Government's intention is to make similar provisions in this Bill. The current text of paragraph 100 of Schedule 13 inadvertently extends jurisdiction to the refusal of entry clearance. Amendment No. 217A puts that right. In other words, no right of appeal is being removed. It is simply a continuance of the present circumstances. Accordingly, in due time I shall move those amendments formally. I beg to move.
On Question, amendment agreed to.
4.45 p.m.
moved Amendment No. 122C:
Page 44, line 12, leave out ("Special Immigration Appeals").
The noble Lord said: I beg to move.
I apologise if I failed to follow the Minister's exact words. Can he remind the Committee by whom the appeal will be heard after transfer? It will not be the Special Immigration Appeals Commission. Therefore, to whom will the appeal be passed as a result of this amendment since the phrase now remaining is simply "commission" with no reference to what commission?
I shall take instructions on that. In maintaining the status quo I should have fully familiarised myself with that under the 1971 Act. Perhaps the Committee will allow me a moment to take those instructions. I know that they are coming hot-foot. Entirely as I anticipated and as I said earlier, this is simply a drafting amendment. One finds the definition of "commission"—I should have known this—in Clause 155. Therefore, I hope that the answer to the question from the noble Baroness is to be found in the definition in that clause.
I am grateful to the Minister. I suggest he amends his remarks by removing the word "entirely".
On Question, amendment agreed to.
moved Amendment No. 122D:
Page 44, line 15, after ('64") insert ("or ( Duty to disclose grounds for entering etc the United Kingdom)").
On Question, amendment agreed to.
moved Amendment No. 122E:
Page 44, line 16, after ("2(1)") insert ("or 2A").
On Question, amendment agreed to.
moved Amendment No. 122F:
Page 44, line 19, leave out ("Special Immigration Appeals").
On Question, amendment agreed to.
Clause 68, as amended, agreed to.
Clause 69 agreed to.
Clause 70 [ EEA nationals]:
moved Amendment No. 122G:
Page 45, line 6, after ("national") insert or a member of the family of an EEA national,").
The noble Lord said: In moving this amendment I shall also speak to Amendments Nos. 122H, 122J, 122K, 122L and 122M. These amendments relate to EEA nationals and their family members. Amendment No. 122H, if it is accepted, extends the circumstances in which provision for appeals may be made under the regulations to include entitlement conferred under agreements by which the United Kingdom is bound. That will ensure that we can fulfil our obligations to provide appeal rights whether they are contained in agreements to which the United Kingdom is a party or in agreements by which the United Kingdom is hound, although not a party; for example, certain agreements between the Community and third countries. Such agreements may already be in existence or may come into existence in the future.
Amendment No. 122J allows for regulations to make any necessary amendments to the provisions of the Special Immigration Appeals Commission Act 1997 and the Immigration (European Economic Area) Order 1994. Amendment No. 122K removes from the definition of an "EEA national" a person who is, or who claims to be, a family member. This is because Amendment No. 122L requires a person claiming to he an EEA national to produce certain documents, which will not necessary be relevant to family members. It was, therefore, inappropriate to include family members within the definition of "EEA national". However, Amendment No. 122M enables the regulations to prescribe who, in relation to an EEA national, is a family member and to make provision for establishing how such family membership is to be established.
Amendment No. 122L requires an EEA national to produce a valid passport or national identity card issued by an EEA state in order to exercise a right of appeal under Clause 70. This is to prevent a person claiming that he is an EEA national and being afforded a right of appeal, even though no proof of his alleged status has been seen. The effect of subsection (8B) is to clarify that a passport or an identity card, produced for the purposes of subsection (8A), will be regarded as genuine unless its falsity is reasonably apparent, or unless it is reasonably apparent that it relates to another person. I ask Members of the Committee to accept these amendments. At this point, I beg to move the first of them.
Perhaps I may ask a small question about Amendment No. 122M. This is the amendment which relates to membership of a family being defined in such a way "as may be prescribed". The question relates more to drafting than substance. I wonder whether prescription by regulation is the correct way to proceed in this case, or whether it would be better to leave it to be established in the courts or in tribunals, according to precedent. That would apply especially to the families of asylum seekers, which are likely to be fractured.
Families may take unexpected forms. The case occurs to me of a Kosovar child accompanied by an aunt, the parents being dead. They claimed to be a family, but there was some problem in getting the authorities to accept this. If one proceeds by simple, total enumeration by regulation, one may be liable to miss some quite unexpected family forms which stress may produce. Would it not be better to leave the judicial authority to recognise a family when it sees one, rather than being quite so prescriptive through regulation? This point runs through the drafting of a great many different statutes. I raise the matter at this point because this is one of the many places where I believe that the question applies. I hope that the usual process of osmosis, by which information reaches Ministers in this Chamber, has run its course.I am most grateful to the noble Earl for speaking with such extended clarity; indeed, the osmotic process was about to take its course. The noble Earl has made a fair point. However, one has to balance the benefit of regulation and prescription because it does give clarity and, therefore, certainty to those who may otherwise be uncertain. Nevertheless, I take the noble Earl's point that, sometimes, one does not want over-prescription. I shall certainly think about what he said, but the balance is quite a difficult one to strike. The noble Earl is quite right. Family circumstances do change, not simply in the international connection but also in the domestic connection; and what one feels ought to be a familial relationship—and was such in 1849—is not necessarily so in 1999.
We need clarity and certainty. That is why we have taken this route. Of course, any prescription by way of regulation would be obliged to comply with EU law; indeed, that may be another aspect that we shall need to consider. I recognise that there is an underlying validity to what is really a philosophical approach by the noble Earl. Perhaps I may think about it. If he returns to the question on Report, I imagine that we shall have a concluded view at that stage. That view may remain unchanged, but it will not remain unconsidered.I understand that a change has been made to a schedule to the Bill as regards removing the words, "child of a head of a family or his or her spouse", which does in fact widen the area within which family members can be included. I speak with some feeling here because two members of my own family have become family members because of the unexpected deaths of my brother and his wife; indeed, they are effectively my son and daughter. Will the Minister consider the possibility of picking up the phraseology used in the schedule and, possibly, translating it into this part of the Bill?
It seems to me that if we stick to the regulations path, as is more likely than not to be the case, it might be appropriate to pick up the references in the schedule and place them in the regulations. I do not put forward that suggestion as a nit-pick; I am simply saying that there is virtue in what the noble Baroness has said and that we might also need to consider that possibility. However, I think that it would end up in regulations rather than in this clause of the Bill.
On Question, amendment agreed to.
moved Amendments No. 122H to 122M:
Page 45, line 14, at end insert ("or by which it is bound").
Page 45, line 25, at end insert—
("() The regulations may—(a) amend sections 2 and 2A of the Special Immigration Appeals Commission Act 1997 (appellate jurisdiction of the Commission); (b) amend or revoke the Immigration (European Economic Area) Order 1994.").
Page 45, line 30, leave out paragraph (b).
Page 45, line 32, at end insert—
("(8A) If a person claims to be an EEA national, he may not appeal under the regulations unless he produces—(a) a valid national identity card, or (b) a valid passport, issued by an EEA State other than the United Kingdom.
(8B) For the purposes of subsection (8A), a document—(a) is to be regarded as being what it purports to be unless its falsity is reasonably apparent; and (b) is to be regarded as relating to the person producing it unless it is reasonably apparent that it relates to another person.").
Page 45, line 33, leave out subsection (9) and insert—
("() Regulations may—(a) prescribe the persons who, in relation to an EEA national, are the members of his family; and (b) make provision as to the manner in which membership of a person's family is to be established.").
On Question, amendments agreed to.
moved Amendment No. 122N:
Page 45, line 37, leave out subsection (11).
On Question, amendment agreed to.
Clause 70, as amended, agreed to.
Clause 71 [ Grants to voluntary organisations]:
[ Amendment No. 123 not moved.]
Clause 71 agreed to.
Clause 72 [ Interpretation of Part V]:
moved Amendment No. 124:
Page 46, line 6, at end insert—
(""business" excludes any registered or exempt charity;").
The noble Viscount said: In moving this amendment, I shall speak also to Amendment No. 141. These are both probing amendments, so I can be very brief. The first amendment seeks to ask the Minister whether charities have to register as a "qualified person" to provide immigration advice or services. We should also like to know the difference between, say, a charity doing this and a legal adviser or, indeed, a business. Can the Minister say how that works?
The second amendment slightly widens the question and also concerns advisers and voluntary organisations. It probes what the commissioner may, or may not, have to take into account with regard to voluntary organisations. We seek a brief explanation from the Minister. I beg to move.
I support these amendments. I believe that an explanation in this respect would be very helpful. Although we are trying to regulate those who exploit asylum seekers, especially as regards heavy financial charges, we should bear in mind that one of the difficulties here is that there are some legitimate bodies, including charities, which perform a very useful task. I have in mind students' unions, for example, which students quite often consult for advice and help. There are also a number of local bodies with no financial interest whatever in such matters which are able to offer assistance, or at least to direct individuals in the right way to approach their particular case. We want to know how such exemptions will apply to bodies which are genuine. In trying to regulate those who exploit, we do not want to harm those who carry out very valuable work in this particular field.
Can the Minister remind us of the position in this respect of Members of this and another place?
If I understand the noble Lord correctly, I believe I dealt with this point earlier in the proceedings on the Bill. The noble Lord, Lord Cope of Berkeley, asked whether Members of Parliament—I beg their pardon, I meant Members of another place—might he liable to criminal sanction if they were carrying out their ordinary constituency business in such circumstances. With a certain measure of regret, I had to tell him that Members of the House of Commons would not be liable to criminal sanction because they would not be discharging their functions in the course of a trade or a business. I believe that that answers the noble Lord's question.
I am grateful to Members of the Committee for the questions which have been put, and especially for the way that the issue has been approached. I believe that we are absolutely in agreement. I am also grateful to the noble Viscount for saying that these are probing amendments to ascertain the Government's view on this matter. The noble Lord, Lord Dholakia, made exactly the same point. Amendment No. 124 would exclude any registered or exempt charity from the requirements of Part V of the Bill. As the Committee knows, Part V is critically important. I was grateful to have the support of the noble Lord, Lord Dholakia, on this matter. He has made his position absolutely plain in the past. We want to stop unscrupulous and incompetent advice being offered. Obviously if it is unscrupulous advice which is being used to prey on people, that is morally wrong. However, incompetent advice is also a scandal as regards those who are far away from their own homeland in a country which is foreign to them in every respect. I am happy to be able to say that Home Office officials have on a number of occasions met representatives of the voluntary sectors who provide immigration advice and services. The voluntary sector recognises—most responsibly, I think—that some organisations are well meaning but are simply not competent. I believe that it is accepted by the voluntary sector generally that such organisations need to be regulated. Exemption is allowable under paragraphs (a) and (d) of Clause 74(4). What we have done so far—I am happy to repeat this commitment—is to work with the voluntary sector and with the education sector on the exemption process. As I have said, we have had a series of meetings. We are developing the possible criteria for exemption. We do not want to exclude charitable organisations in this area, but we want to exclude incompetent advice. We do not think that one ought to exempt a body until that body has demonstrated that it meets the proper criteria for exemption which I mentioned a moment or two ago. There will be a lead-in period between the commencement of the scheme and the prohibition on the provision of immigration advice and services to allow persons to seek either registration or exemption. I am sorry to say that some voluntary bodies although well meaning are just not competent. In the particular context of Amendment No. 141, I do not think it is right or properly protective of those who need protection to allow incompetent activities to go unregulated for a period of three years.5 p.m.
I hope that the. Minister will allow me to intervene. I think that he agrees that this is an important point. I have considered paragraphs (a) and (d) of Clause 74(4). In the absence of the right reverend Prelates. I ask the Minister about the position of the Churches and visitors to detention centres as regards this matter. If a member of a church—let us say a priest, vicar or rabbi—is approached by an asylum seeker (as they often are because, as the Minister will know, they work closely with them) and is asked for advice on, for example, making an appeal, to what extent would the Bill as it now stands catch what is, as it were, friendly advice from someone whom the asylum seeker considers is unlikely to be a dubious figure? Obviously it is part of the job of such a member of a religious faith to offer such help and advice. He may, unwittingly, give incompetent advice because he may not be fully cognisant of immigration law.
Those who visit asylum seekers were, quite rightly, praised at an earlier stage of the Committee. They, too, are often asked for general help and advice; for example, advice on obtaining legal representation. To what extent would that kind of well meaning help—offered by people who are not likely to seek registration because this activity constitutes only a small part of their normal activities—be caught by the Bill?I shall expand on the rather Delphic answer I gave to the noble Lord, Lord Avebury, because I had dealt with the matter at greater length when replying to the noble Lord, Lord Cope of Berkeley, on an earlier occasion. I hope that I can reassure the absent right reverend Prelates through their present earthly representative!
I think that the answer is to be found in Clause 72, the interpretation clause. Clause 72(1) defines "immigration advice". I do not think it is helpful to the Committee to read that out as it speaks for itself. "Immigration services"—another aspect that the noble Baroness mentioned—are also defined there. However—I think this is of comfort to the noble Baroness—Clause 72(2) states,I cannot see that a voluntary visitor to an asylum seeker in detention is offering advice or services,"In this Part, references to the provision of immigration advice or immigration services are to … and in the course of a business carried on (whether or not for profit) by him or by another person".
nor would the members of a church be providing advice,in the course of a business";
That is the same general saver, as it were, that I mentioned when the noble Lord, Lord Cope, asked me about the position of a Member of the Commons going about his constituency business. I believe that this is the same point as was raised by the noble Lord, Lord Cope, some days ago and by the noble Lord, Lord Avebury, this afternoon. It is now raised by the noble Baroness."in the course of a business".
I hope that the Minister can clarify a point for me. Is a charity carrying on a business? I am not sure whether a charity or a voluntary organisation that is offering advice would be carrying on a business under the Minister's definition.
Some charities carry on businesses. One thinks, for example, of charity shops. Those are undoubtedly businesses. I repeat that the scheme we are discussing does not seek to catch the well meaning Member of Parliament, Member of this Chamber—I refer to the point made by the noble Lord, Lord Avebury—or members of organised religious bodies, as mentioned by the noble Baroness. There are capacities and capabilities for exemption, but it is right that—in order to protect people who need protection—such bodies should be able to meet the relevant criteria. I stress that the relevant criteria and the methods of examination, as it were, are the subject of continuing dialogue with charitable and voluntary organisations. I have no doubt at all that many charitable and voluntary organisations will be exempt from the measure. However, a minority of them are well meaning and good-hearted but have disastrous effects.
I hope that I may press the Minister a little further. Earlier I mentioned the Legal Aid Board which has sent a document to the noble and learned Lord the Lord Chancellor and has made a number of recommendations to him. I understand that some discussions have occurred on access to quality immigration services. I do not expect a reply to that point now, but it may be helpful to know the Lord Chancellor's reaction to that document. I hope that the Minister will write to me on that point and place a copy of the letter in the Library.
I shall certainly do that. When the noble Lord raised this matter on a previous occasion, I believe that I said that discussions were still continuing. However, I shall try to establish the up-to-date position before we rise for the Summer Recess. Of course, I shall, as always, place a copy of my letter to the noble Lord in the Library.
I am sure that the Committee is grateful to the Minister for his reply to these amendments. I believe that voluntary organisations will want to consider whether or not they are carrying on a business. However, I also believe that this issue will become clearer as the summer progresses. No doubt if there is a problem here, we shall have an opportunity to return to the matter on Report. As I said, I am grateful for the Minister's reply. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
moved Amendment No. 124A:
Page 46, line 15, at end insert—
(""designated judge" has the same meaning as in section 119(1) of the Courts and Legal Services Act 1990:").
The noble Lord said: With this amendment are grouped Amendments Nos. 125A, 126, 128, 128C, 129A, 131A, 131B, 132, 144A, 145, 145A, 149 and 149A. Therefore, this is quite an extensive group!
Amendment No. 125A requires the Secretary of State to consult the Scottish Ministers prior to appointing the commissioner. This amendment is being made to match the requirement on the Secretary of State to consult the Lord Chancellor prior to the appointment of the commissioner. We think it is right that he should consult the appropriate body in Scotland prior to this appointment.
Amendment No. 126 would have the effect of requiring the Secretary of State to consult the Advocate General for Scotland about the appointment of the commissioner. Government Amendment No. 125A requires consultation with the Scottish Ministers so the present amendment is unnecessary. I hope that the amendment will not be pressed—not because it was a wrong approach, but because we have dealt with it in an appropriate way.
Amendment No. 128 would require the immigration services commissioner to consult each of the designated professional bodies and other persons appearing to him to represent the views of persons engaged in the provision of immigration advice or services as he considers appropriate before making or altering the commissioner's rules.
The commissioner's rules apply to those who are registered with the commissioner. Practising members of the designated professional bodies are not required to register with the commissioner and are therefore not affected by any rules which the commissioner may make in respect of registered persons.
The commissioner is already required to consult those persons appearing to him to represent the views of such persons engaged in the provision of immigration advice or services as he considers appropriate. He may choose to consult the designated professional bodies, but there is no obligation on him to do so. Given that the legal professions are, to a large extent, unaffected by the rules in respect of registered persons, I do not understand why he should be specifically obliged to consult them. In due course, I shall invite the Committee not to accept this amendment, if it is moved.
Amendment No. 128C requires the commissioner to consult the designated judges, the Lord President of the Court of Session and the Lord Chief Justice of Northern Ireland before issuing or altering the code of standards.
There is already a requirement on the commissioner to consult the designated professional bodies, as I indicated earlier. We consider that it is useful and necessary for the commissioner to consult the designated judges and the Lord President in this regard. "Designated judge" is defined in Amendment No. 124A and has the same meaning as in Section 119(1) of the Courts and Legal Services Act 1990. This includes the Lord Chief Justice, the Master of the Rolls, the Vice-Chancellor and the President of the Family Division. I shall in due time commend to the Committee both of these amendments.
Amendment No. 131A requires the Secretary of State to consult the commissioner before making an order to extend the code of standards to a designated professional body. It also requires the Secretary of State to consult the Legal Services Ombudsman, or her territorial equivalents, prior to making an order. Amendment No. 129A is consequential to Amendment No. 131A.
Amendment No. 131B has been tabled to require the Lord Chancellor to consult the designated judges or the Lord Chief Justice of Northern Ireland and to require the Scottish Ministers to consult the Lord President of the Court of Session before approving an order to extend the scope of the code of standards to a designated professional body. We think that it is right that those persons should be consulted.
Amendment No. 132 requires the immigration services commissioner to consult each of the designated professional bodies and such other persons appearing to him to represent the views of persons engaged in the provision of immigration advice or services as he considers appropriate before establishing a complaints scheme. If a scheme is to work effectively, the commissioner will have to work closely with the disciplinary bodies of the designated professional bodies to develop such a scheme. Officials from the Home Office and the Lord Chancellor's Department have met representatives of the legal professions on a number of occasions to discuss how a complaints scheme might operate. One possibility which has been discussed is the drafting of a memorandum of understanding between the commissioner and the professions. We are happy to accept this amendment.
Amendment No. 144A requires the Secretary of State to consult the Legal Services Ombudsman for England and Wales, or the territorial equivalents where he is proposing to make an order to remove a body from the list of designated professional bodies. The Legal Services Ombudsman, or equivalents in the territories, has a duty to oversee and report on the legal professions. In view of the role of the ombudsman, it is only right that the Secretary of State should consult her prior to making an order to remove a body from the list. I ask the Committee to accept this amendment.
Amendment No. 145A requires the Lord Chancellor to consult the designated judges or the Lord Chief Justice of Northern Ireland before giving his approval to the Secretary of State to make an order removing a body from the list of designated professional bodies. It requires the Scottish Ministers to consult appropriately. We have been asked by the legal professions to include this amendment. It is right and appropriate that we should do so. In due time, I shall invite the Committee to agree the amendment.
Amendment No. 145 requires the Secretary of State to have the approval of the Legal Services Consultative Panel and the designated judges prior to making an order of removal. The Secretary of State is required to have the approval of the Lord Chancellor before making an order, or of Scottish Ministers. Government Amendment No. 145A requires the Lord Chancellor to consult the designated judges prior to approving an order of removal.
There is nothing to prevent or preclude the Lord Chancellor consulting the Legal Services Consultative Panel. However, I am happy to take this idea away and to consider whether this should be placed on the face of the Bill. For the moment, therefore, I ask that the amendment is not pressed. Obviously, I shall consider it with an open mind.
Amendment No. 149A requires the Lord Chancellor to consult the Scottish Ministers before making or altering the rules of procedure for the immigration services tribunal. It is right that the Scottish Ministers should be consulted in this regard. This corresponds to the other amendments which have been tabled in respect of consultation. In due time, I shall invite the Committee to agree the amendment.
Amendment No. 149 would require the Lord Chancellor to consult the Lord President of the Court of Session about making rules as to the procedure and practice to be followed by the immigration services tribunal. In fact, it is appropriate for the Lord Chancellor to consult the Scottish Ministers, not the Lord President of the Court of Session. That is the subject of the previous government amendment to which I spoke, Amendment No. 149A. Bearing in mind that Amendment No. 149A is now in this group of amendments, I shall ask the noble Lord not to move his amendment because we have dealt with the matter appropriately.
I am sorry to have taken the Committee through the amendments in a little detail. However, they are matters of importance because they relate to appropriate consultations. I hope that Members of the Committee will think that we have got the right balance and that we have paid proper attention to the representations made. I beg to move.
5.15 p.m.
I am not clear why we are looking at the list in a different order from the Minister. Will the Minister go back a page and consider what he said in relation to Amendment No. 132? I can then deal with the other amendments standing in my name.
I shall do that at this stage. I said that we would accept Amendment No. 132, and were considering the possibility of a memorandum of understanding. I am quite happy to accept Amendment No. 132.
I am very grateful. I was so surprised to have an amendment accepted; I just wanted to check that I was right.
Perhaps the noble Viscount should sit down now.
I did not want to thank the noble Lord for accepting an amendment and then find that I had made a terrible blunder.
Perhaps I may now deal with my amendments. I am entirely happy not to move Amendment No. 126 because I think that Amendment No. 125A covers its point. As to Amendment No. 128, I am satisfied by the Minister's answer. Again, I am grateful for his acceptance of Amendment No. 132. I am extremely grateful for his offer to consider the issues raised by Amendment No. 145, which stands in my name and that of the noble Lord, Lord Dholakia. No doubt he will wish to say something in a moment. I am concerned about Amendment No. 149. Perhaps the Minister will consider one point. I should say at the outset that I am no expert on the Scottish system of law and that my noble and learned friend Lord Mackay of Drumadoon is not in his place. I am afraid that I am rather inadequately filling in for him. If the rules and practice are to operate efficiently in the Scottish system, it would seem sensible for the Lord Chancellor to be able to take advice from the Lord President of the Court of Session. The Minister might say that in the normal circumstances the Lord Chancellor would do so; I am not clear about the interaction between the Lord Chancellor and the Lord President of the Court of Session. If the noble Lord cannot respond now, I should be happy for him to write to me.Perhaps I may attempt to be helpful. The only difference between us on Amendments Nos. 149 and 149A is that Amendment No. 149A requires the Lord Chancellor to consult the Scottish Ministers, including those whom I mentioned earlier. Thereafter, it is for the Scottish Ministers to decide whom to consult. If they wish to consult the Lord President of the Court of Session, they would be able to do so. We are simply saying that, constitutionally, it is appropriate for the Lord Chancellor to consult Scottish Ministers about what will be procedure and practice within the Scottish jurisdiction.
Perhaps I may intervene as my name is attached to one of the amendments. The Minister seems to have recovered from his flu and he is fairly generous today. I do not want to pursue any further points. I am delighted with his explanation and his acceptance of some of the suggestions that have been made.
On Question, amendment agreed to.
Clause 72, as amended, agreed to.
Clause 73 [ The Commissioner]:
moved Amendment No. 125:
Page 47, line 24, leave out ("the Secretary of State after consulting").
The noble Viscount said: This is again a probing amendment. Clause 73(2) states that,
"The Commissioner is to be appointed by the Secretary of State after consulting the Lord Chancellor".
The words which the amendment seeks to delete seem unnecessary. If the Lord Chancellor wants to consult whomsoever he wants to consult, he will no doubt do so. Obviously, the Secretary of State has an interest, but it is one of which the Lord Chancellor would be bound to take account in any event. I shall be interested to hear the noble Lord's reply. I beg to move.
My noble friend Lady Williams has her name to the amendment. I referred to the Minister's generosity. Perhaps I may now press him further.
There is nothing new in what is sought in the amendment. As early as 1987, the rule-making powers in relation to the immigration appeals process, including in respect of the judicial leadership of the Immigration Appeals Tribunal, were transferred from the Home Office to the Lord Chancellor. The principle proposed in the amendment is therefore consistent with that approach. The principle is simple. The amendment is intended to ensure the independence of the immigration services commissioner. It would avoid the question of the Secretary of State having the power to appoint the commissioner, who effectively controls the "opponents" of the Home office in immigration arid asylum cases. The Lord Chancellor already appoints immigration adjudicators. The Bill provides that the commissioner should be appointed by the Secretary of State. That breaches the principle of natural justice. The amendment is intended to ensure the independence of the immigration services commissioner as the proposed regulator. The advisers and representatives whom the commissioner will regulate will be in an adversarial relationship with the Secretary of State. As I said, it would be inappropriate for the Secretary of State to have the power to appoint the commissioner, who will effectively control the "opponents" of the Home Office in asylum and immigration cases. He will have too close an interest in the outcome of cases on which the advisers may be assisting. The Bill proposes a quasi-judicial function for the immigration services commissioner. The commissioner should therefore be appointed by the Lord Chancellor. If the amendment is made, a number of consequential amendments will be necessary, including amendments relating to the various administrative provisions concerning the commissioner, his status, remuneration and staff under Schedule 5. Those administrative provisions should also be independent of the Secretary of State for the reasons that I have cited. Amendment No. 144 deals with the same aspect and will give rise to consequential amendments.Is it really necessary to stipulate in a statute that one Minister should consult another? Does not the ordinary machinery of government take care of that? I know that the Treasury is deeply wedded to reiterating in statute after statute that nothing must be done without consulting the Treasury. That is bad enough. It is all quite unnecessary. But need we go beyond that, having allowed for Treasury paranoia?
This is one occasion when no Treasury paranoia can be pointed to, because the Treasury is not concerned in this aspect at all. What we have done—rightly, I believe—is to provide, in Clause 73(2), for the commissioner to be appointed by the Secretary of State after consultation with the Lord Chancellor. That is a perfectly sensible way of proceeding. The noble and learned Lord, Lord Simon of Glaisdale, will say that that is excessively cautious. However, in a sense we are in new territory here, and it is wise to place upon the Secretary of State for the Home Department the duty of consulting the Lord Chancellor.
I turn to the burden of the remarks of the noble Lord, Lord Dholakia. We must bear in mind that the role of the commissioner is wholly administrative. He has no judicial function; therefore, it does not fall for the appointment to be made by the Lord Chancellor. I agree that members of the immigration services tribunal will exercise a judicial function, and for that specific reason their appointment will fall within the remit of the Lord Chancellor. That is why we make provision for it. The noble Lord, Lord Dholakia, raised the important point of independence. That is why I invite the Committee's attention to paragraph 11 of Schedule 5. The safeguards are built into the paragraph. There is a defined term of office; namely, five years, subject to resignation; and there are severe limitations on the Secretary of State as regards dismissal. The noble Lord, Lord Dholakia, was right to raise this issue. I am happy to give that reassurance, with specific reference to paragraph 11 of Schedule 5. Amendment No. 144 deals with a different theme. It gives a power to the Lord Chancellor to make an order to remove a designated professional body from the list of designated professional bodies in the clause. The power is with the Secretary of State. He has the responsibility for the scheme to regulate advisers. It seems to me only sensible, in terms of coherent administration if nothing else, that he should have the responsibility for making the order for removal. However, I must underline the fact that, before an order is sought, the Secretary of State must consult the commissioner; he must notify the body concerned of the proposal, and must give a reasonable period within which representations may be made; and he must consider those representations. He must also have the approval of the Lord Chancellor or the Scottish Ministers if the order relates to a designated professional body in Scotland. Although I understand the motives behind the amendments, they should not be pressed. I invite the Committee not to agree to them if they are.I have followed what the Minister has said. The situation needs to be carefully monitored over a period of time.
I found the Minister's answer convincing. It convinced me that I had got the amendment wrong. However, it also convinced me that an amendment was necessary. I understood him to say that the commissioner did not have a judicial function. Therefore, it seemed to me that instead of taking out,
the phrase should read,"the Secretary of State after consulting",
Then we would take out,"by the Secretary of State".
It seems to me that that is unnecessary and I am grateful to the Minister for giving me guidance as to what amendment to put forward at the next stage of the Bill. I beg leave to withdraw this one."after consulting the Lord Chancellor".
Amendment, by leave, withdrawn.
moved Amendment No. 125A:
Page 47, line 25, at end insert ("and the Scottish Ministers").
On Question, amendment agreed to.
[ Amendment No. 126 not moved.]
5.30 p.m.
moved Amendment No. 127:
Page 47, line 27, at end insert ("and, in particular, to ensure that only those who are trained to do so provide such advice or services in respect of children").
The noble Lord said: This amendment is very much a probing exercise at this stage. The Minister will not be surprised that a number of children's organisations have a vested interest in what is being proposed. The purpose of the probing amendment is to obtain information about how the Government envisage the requisite expertise, skill and sensitivity to deal with asylum-seeking children.
We welcome the move to regulate immigration advisers and service providers designed to improve the quality of legal representation for asylum seekers. However, we are concerned that legal representatives must be suitably trained in representing children. This opportunity is taken to do so.
There are a number of organisations which firmly believe that child asylum applicants require specialist legal advice and legal services such as they already receive in other areas of law. For example, members of the Law Society's Children's Panel act for children in proceedings under the Children Act 1989.
The issues of concern are not only on the representation of children but also the importance of developing child-sensitive legal representations whenever required. It is also a matter where we need to communicate with child clients. Children may express themselves differently from adults and have greater difficulty in expressing wishes and needs. How will those factors be taken into account? Children's sense of time can be different from adults' and waiting to hear about a decision can be disturbing to them. They need regular reassurances about their claim.
Child-specific requirements for legal representation mean knowledge of special rules, procedures and policies that apply to unaccompanied children, knowledge of child-specific forms of persecution, knowledge of the Children Act 1989 and skills in communicating with and interviewing children and young people.
It is not the intention of the amendment to restrict the number of advisers who can represent children. It is only to ensure that those who are the most vulnerable within the system receive the best possible advice, for which people are appropriately trained. I beg to move.
We support the amendment in so far as it will enable the Minister to explain how the Government envisage that the expertise, skill and sensitivity to deal with asylum-seeking children will be assured in all the aspects of the provision of the immigration advice services. We look forward to the Minister's explanation.
These are important questions and I shall spend a moment developing and explaining our thinking on this. I entirely appreciate the thinking behind Amendments Nos. 127 and 142.
One of the main objectives of the regulatory scheme which the Committee has generally approved in concept is to ensure that we provide or have provided competent immigration advice. The matters raised by noble Lords are matters which the immigration services commissioner will wish to consider, including in the code of standards and rules. That is the proper place for them, rather than on the face of the Bill. We are conscious of the particular needs of children referred to by the noble Lord, Lord Dholakia. He knows that we in the Home Office fund a scheme under which the Refugee Council provides representatives to act on behalf of unaccompanied children. So there is a substantial body of expertise that we are keen to use. Finally, on the general point put by both noble Lords who spoke, I return to Clause 73(5). There is the very important obligation in the present context under that subsection that,then we reach the two critical matters in the context of children—"The commissioner must exercise his functions so as to secure, so far as is reasonably practicable, that those who provide immigration advice or immigration services"—
I entirely agree with what the noble Lord, Lord Dholakia, said: children have different requirements whenever one represents them. Secondly, those who provide services must,"are fit and competent to do so".
That is extremely important and it is the basis on which we approach matters. I reiterate that I am sure that the immigration services commissioner will want to consider those matters for inclusion in the code of standards and rules."act in the best interests of their clients".
I am grateful to the Minister for his explanation and beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 73, as amended, agreed to.
Schedule 4 agreed to.
Schedule 5 [ The Immigration Services Commissioner]:
[ Amendment No. 128 not moved.]
moved Amendment No. 128A:
Page 114, line 43, at end insert—
(" .—(1) The Commissioner's rules must be made or altered by an instrument in writing.
(2) Such an instrument must specify that it is made under this Schedule.
(3) Immediately after such an instrument is made, it must be printed and made available to the public.
(4) The Commissioner may charge a reasonable fee for providing a person with a copy of the instrument.
(5) A person is not to be taken to have contravened a rule made by the Commissioner if he shows that at the time of the alleged contravention the instrument containing the rule had not been made available in accordance with this paragraph.
(6) The production of a printed copy of an instrument purporting to be made by the Commissioner on which is endorsed a certificate signed by an officer of the Commissioner authorised by him for that purpose and stating—
is evidence (or in Scotland sufficient evidence) of the facts stated in the certificate.
(7) A certificate purporting to be signed as mentioned in sub-paragraph (6) is to be treated as having been properly signed unless the contrary is shown.
(8) A person who wishes in any legal proceedings to rely on an instrument containing the Commissioner's rules may require him to endorse a copy of the instrument with a certificate of the kind mentioned in sub-paragraph (6).").
The noble Lord said: Amendments Nos. 128A, 203B and 203C are in the next grouping. Amendments Nos. 203B and 203C are tabled to clarify that the immigration rules and the commissioner's rules are not subject to the provisions of Clause 154. They are not to be made by statutory instrument.
Amendment No. 128A makes further provision for the commissioner's rules. It stipulates that the rules must be made or altered by an instrument in writing and that they must stipulate that they are made under Schedule 5. They must be printed and made available to the public subject to a reasonable fee.
The amendment also provides for a person not to be taken to have contravened a rule made by the commissioner if it is shown that at the time of the alleged contravention the instrument containing the rule had not been made available. It provides for a printed copy of the instrument certified by an officer of the commissioner to be taken in evidence that the instrument had been duly issued.
This amendment therefore places essential requirements on the commissioner with regard, first, to the promulgation of the rules and, secondly, that those who are registered will he aware of the rules. I beg to move.
Could not these rules be placed on the Internet like so many other documents nowadays? That means they would be readily available to anyone who has the necessary Web address. It could be held to constitute publication.
What the noble Lord said has a good deal of validity. We have been much more open-minded in the Home Office to the noble Lord's more recent request about the provision of material in that way. I shall give it careful thought and write to him. We are looking for the bare minimum that anyone likely to be affected by something is entitled to have it in writing available to the public at a reasonable fee. I do not dissent from the noble Lord's general approach.
On Question, amendment agreed to.
moved Amendment No. 128B:
Page 115, line 7, leave out from ("services") to end of line 9 and insert ("other than—
The noble Lord said: I beg to move.
Included on the Marshalled List with Amendment No. 128B are Amendments Nos. 129, 130, 130A and 131. I believe the Minister and I have the same groupings. I do not know whether he would like to speak to Amendment No. 128B before we start.
I am happy to do that and I am grateful for the suggestion. The noble Viscount is quite right that Amendments Nos. 128B, 129, 130, 130A and 131 are all in this group.
Amendment No. 128B clarifies who is not caught by the commissioner's code of standards. They are persons authorised to practise by a designated professional body, those working under the supervision of such a person and those mentioned in Clause 74(6). Amendment No. 130A is a drafting amendment tabled to ensure consistency with the language of Section 74(2)(c). Amendment No. 129 would remove the provision for the extension of the commissioner's code of standards in part or whole to designated professional bodies. It is intended that the provision would be used if a professional body was failing to regulate its members effectively in the provision of immigration advice or services. It is a useful interim measure. If the provision was removed, the first option would be for the commissioner to seek the removal of a body from the list of designated bodies and require every member of the body offering immigration advice to register individually. That would work to the disadvantage of the professional body, because it would not be given what most people would regard as a fair opportunity to improve its regulation following the application of the code of standards to it. I ask the noble Viscount not to press it for that reason. It offers the "nuclear option" as the only alternative. Where the commissioner's code of standards is extended to a designated professional body, Amendment No. 130 would require the body to take account of the code rather than requiring its members to comply with the code. It is intended that the provision could he used if a professional body is failing to regulate its members effectively. In the event of such a failure, it would be inappropriate and ineffective to require a professional body to take account of the code of standards rather than expecting its members to comply with it fully. Amendment No. 131 is consequential on Amendment No. 130. For the reasons that I have given, I ask the noble Viscount not to press them.I understand the Minister's argument. Perhaps a brief explanation would help. I realise that the amendment is flawed because it goes wider than was intended. It arose from the concerns expressed by the Law Society of Scotland, which already has its own code of conduct and code of practice to cover solicitors practising in that area of the law. It felt that another code was not necessary. I am grateful to the Minister for his reply. We shall consider it carefully. I shall not be moving any of the three amendments in my name.
On Question, amendment agreed to.
moved Amendment No. 128C:
Page 115, line 14, after ("bodies;") insert—
- ("() the designated judges;
- () the Lord President of the Court of Session;
- () the Lord Chief Justice of Northern Ireland;").
On Question, amendment agreed to.
Before calling Amendment No. 129, I advise the Committee that if it is agreed to. I cannot call Amendments Nos. 129A to 131B inclusive due to pre-emption.
[ Amendment No. 129 not moved.]
moved Amendment No. 129A:
Page 115, line 21, leave out (", after consulting the Commissioner,").
On Question, amendment agreed to.
[ Amendment No. 130 not moved.]
moved Amendment No. 130A:
Page 115, line 24, leave out from ("to") to ("and") in line 25 and insert ("practise as a member of the profession whose members are regulated by that body;").
On Question, amendment agreed to.
[ Amendment No. 131 not moved.]
moved Amendment No. 131A:
Page 115, line 26, at end insert—
("() If the Secretary of State is proposing to act under sub-paragraph (11 he must, before doing so, consult—
On Question, amendment agreed to.
moved Amendment No. 131B:
Page 115, line 31, at end insert—
("() Before deciding whether or not to give his approval under sub-paragraph (2)(a), the Lord Chancellor must consult—
() Before deciding whether or not to give their approval under sub-paragraph (2)(b), the Scottish Ministers must consult the Lord President of the Court of Session.").
On Question, amendment agreed to.
Amendment No. 132: Viscount Astor?
Not moved.
Amendment No. 133: Viscount Astor?
Paragraph 4 of Amendment No. 133 gives the commissioner the power to investigate complaints on a number of matters. Sub-paragraph (2)(c) refers to an alleged breach of the code. This clarifying amendment matches the corresponding provision in sub-paragraph (2)(d) in relation to a complaint that the commissioner's rules have been breached. It could not have been intended that any persons not subject to the code—
We have been moving with some rapidity. I think that the noble Viscount wanted to move Amendment No. 132, because, to his surprise and justified delight, I had agreed to it. We have skipped over that too quickly.
I am very grateful to the Minister. Having been offered an amendment, I seem to have missed it. I am delighted to move Amendment No. 132 formally.
moved Amendment No. 132:
Page 115, line 35, at end insert—
("(1A) Before establishing the scheme or altering it, the Commissioner must consult—
On Question, amendment agreed to.
5.45 p.m.
moved Amendment No. 133:
Page 115, line 42, at end insert ("by a person to whom the Code applies").
The noble Viscount said: I apologise for jumping the gun and nearly ruining my modest success.
Paragraph 4(2)(c) refers to an alleged breach of the code. This clarifying amendment matches the corresponding provision in sub-paragraph (2)(d) in relation to a complaint that the commissioner's rules have been breached. It could not have been intended that any persons not subject to the code should be investigated on the basis of an alleged breach of it.
Under Amendment No. 134, the immigration services commissioner would have the power to refer any alleged breach by a member of a designated professional body of that body's rules to the relevant professional body. The Office for the Supervision of Solicitors will be given additional powers of investigation under the Access to Justice Bill. The aim of the amendment is to avoid the unnecessary conduct of two investigations on the same alleged breach.
Amendment No. 135 is designed to ensure the referral of complaints about members of professional bodies to their relevant professional body for investigation. The aim is to ensure that all complaints relating to members of one body are conducted by the same body and to avoid members being subject to the unnecessary conduct of two investigations by their professional body and the immigration services commissioner.
The aim of Amendment No. 137 is to ensure that the exercise of the powers to set targets is consistent with that conferred on any legal services complaints commissioner under the Access to Justice Bill. There is also a requirement for consultation on the approach to the drawing-up of directions setting a timetable to be followed by a designated professional body. A reasonable timetable should be based on the principle that matters should be handled with all due despatch.
Amendment No. 143 is intended to ensure consistency with the powers conferred on the Lord Chancellor and any legal service complaints commissioner appointed by him under the Access to Justice Bill. I beg to move.
This is an intricate group of amendments. Amendment No. 133 stipulates that a complaint is relevant if it alleges a breach of the code of standards by a person to whom the code applies. Paragraph 2(3) of Schedule 5 already makes it clear to whom the code of standards is intended to apply, so the amendment is not necessary.
Amendment No. 134 is a little different. It would remove an alleged breach by a member of a designated professional body of one or more of the rules of that body from the definition of a relevant complaint. It would provide for the commissioner to bring to the attention of the designated body any complaints relating to the competence or fitness of someone working under supervision or employment. I believe that we have been unanimous in our discussions on these matters. We must control the behaviour of unscrupulous immigration advisers. The Government feel—and I believe that the Committee has agreed—that the best way to achieve this is to have a statutory regulatory scheme. It is unfortunately true that some extremely bad examples of unscrupulous behaviour have been perpetrated by members of the legal profession. In those circumstances I believe it is entirely wrong that a complaint made against a member of one of the designated professional bodies would not, were this amendment to succeed, be regarded as a complaint to be investigated by the commissioner. I have to say that I quite fundamentally part company with the noble Viscount on that point. In respect of complaints about breaches of the rules of the regulatory body of a designated profession, it is intended that the commissioner should pass such complaints to the relevant regulatory body once he has conducted an investigation himself. Paragraph 8(1)(c) of Schedule 5 enables the commissioner to determine complaints against members of the designated professions and then refer the complaint and his decision to the relevant regulatory body. The amendment runs contrary to the spirit of a regulatory scheme. I shall give the Committee an example. If, for instance, a solicitor or a member of the Bar has behaved in a quite disgraceful professional way and he is subject to the sanction of the commissioner in the immigration context, in some circumstances it may well still be entirely appropriate that his own professional body should consider whether to impose different sanctions if the unprofessional behaviour is proved. Amendment No. 135 provides for the commissioner to bring to the attention of a designated professional body complaints made against a member of that body which relate to the competence or fitness of a person, or of those working under his supervision or employment, to provide immigration advice or services or a breach of one or more of the relevant rules. The commissioner already has a similar power under paragraph 8(1)(c) of Schedule 5. He may determine a complaint and refer the complaint in his decision to the relevant regulatory body. It is important that the commissioner should be able to form a preliminary view on the complaint before referring it. He is an independent regulatory authority and can add value to the process. The Bill contains a provision already allowing the commissioner to give directions setting a timetable to be followed by a designated professional body in considering a complaint referred to it by the commissioner. If accepted, although I ask the Committee not to accept it, Amendment 136 would limit the commissioner to requiring a body to provide an explanation where a complaint is made to him about the time taken by the body to deal with the complaint and to give him a timetable within which the complaint will be dealt with. If the body then failed to adhere to the suggested timetable, the amendment would allow the commissioner to set a timetable. Again, there is a difference in our approach. W e believe that it is only right that all professional bodies should deal with complaints in a reasonable time. It is true to say that the record in terms of timeliness when dealing with some complaints against some members of the legal profession has not been a happy one. Very often the delay causes such grievance that, even if the complaint is upheld, members of the public rightly feel that their complaints have not been given decent, focused attention. It is perfectly reasonable to give the commissioner the power to set a time-scale for the conduct of an inquiry into complaints against members of the legal professions. The purpose of the scheme is to make it as certain as possible that people receive quality immigration advice, are not overcharged for it and that complaints are effectively investigated within a reasonable time-scale. A reasonable time-scale introduces structure and discipline and is itself important in maintaining standards. The amendment would have the effect, in the case of some complaints, of lengthening the time-scale for effective resolution. Amendments Nos. 143 and 137 would mean that the commissioner could not set a timetable unless the Lord Chancellor had first made a direction. Amendment No. 137 also provides for the bodies to make representations to the commissioner before targets are set. They should not need that. As an article of faith, all professional bodies ought to be able and willing to deal with the idea that complaints should be dealt with in a reasonable time. The amendments give further powers to organisations sometimes wrongly described, I am sure, as "conspiracies against the laity". However, they do not need any more powers.What will happen if a person makes a complaint simultaneously to the commissioner and to a professional organisation? Would the two investigations proceed in parallel; for example, an investigation by the commissioner and one by the Law Society? How would priority be given to one rather than the other?
No priority would have to be given. However, I can envisage circumstances where the Law Society or the Bar Council professional conduct committee might reasonably say that they will wait to see what the commissioner has to say. That, I believe, provides the added value I referred to. It is more a case of looking at the individual circumstances but avoiding delay at all costs.
The amendments to which I spoke arose from concerns expressed to us by the Law Society of England and Wales and indeed the Law Society of Scotland. Far be it from me to accuse the Minister of being a poacher turned gamekeeper. However, I am convinced by his arguments, and I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[ Amendments Nos. 134 to 137 not moved.]
moved Amendment No. 138:
Page 119, line 15, leave out sub-paragraph (3).
On Question, amendment agreed to.
moved Amendment No. 139:
Page 119, line 21, leave out (", with the approval of the Treasury,").
On Question, amendment agreed to.
moved Amendment No. 140:
Page 121, line 10, at end insert—
("Disqualification for Scottish Parliament
23A. After section 15(1)(d) of the Scotland Act 1998 insert—
Disqualification for National Assembly for Wales
23B. After section 12(1)(d) of the Government of Wales Act 1998 insert—
The noble Viscount said: This amendment is needed to fill a lacuna in the drafting of the Bill. As it stands, the immigration services commissioner and the deputy immigration services commissioner would be disqualified from membership of the House of Commons and the Northern Ireland Assembly. However, there is no provision for disqualification from the Scottish Parliament or the Welsh Assembly. I beg to move.
I understand the apparent gap. However, the reason for it is that should the Parliament in Scotland and/or the Assembly in Wales wish to disqualify, that would be a matter for them as part of their internal regimes to bring about the disqualification. That is a necessary part of the post-devolution settlement.
The Minister has made the position clear. However, the Bill covers asylum and immigration matters for the whole country. I wonder whether the Government would find it uncomfortable if the commissioner were a member of the Scottish Parliament. I shall ponder the Minister's reply, and in the mean time, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Schedule 5, as amended, agreed to.
Clause 74 [ Provision of immigration services]:
[ Amendment No. 141 not moved.]
On Question, Whether Clause 74 shall stand part of the Bill?
My Lords, I should like to address the Minister on two points. First, I join with the noble Lord, Lord Dholakia, in saying how delighted I am, as I am sure is the whole Committee, to see the Minister back on true form.
Secondly, the clause deals with prohibitions on giving advice. I trust that the Minister is aware, given his many years of experience with the Financial Services Act, that the lessons of the pitfalls in that Act must by now have come to light. They should be borne in mind when drafting the provision.I am happy to give a positive and affirmative response to both of the points raised by the noble Earl, and I am happy to accept his gracious remarks.
There are lessons to be learnt about regulation, and one would be a fool not to keep one's mind constantly open to lessons which could have been learnt in earlier years.Clause 74 agreed to.
Clause 75 agreed to.
6 p.m.
Schedule 6 [ Registration]:
had given notice of her intention to move Amendment No 142:
Page 121, line 21, at end insert ("which, in the case of applicants proposing to provide advice or services to persons under the age of 18, shall include evidence of appropriate training and experience").
The noble Baroness said: Further to the kind remarks of my noble friend Lord Dholakia and those just made, I suggest that the noble Lord, Lord Williams, informs the Committee how a person can recover from 'flu within 24 hours. That would be helpful to us all.
It may be that Amendment No. 142 is more appropriately related to paragraph 1(2) of Schedule 6 which makes plain that,
"the Commissioner may require the applicant to provide him with such further information … as [he] may reasonably require".
Amendment No. 142 is related to those who give advice to children. We have already discussed children a great deal in Committee and recognised that the expertise of a person who deals with minors is rather different from that of a representative who provides advice to adults. In particular, we are concerned that the advice or service given to such young people should be given by individuals who have some training in the whole area of advising and consulting youngsters. It may be that the Minister will respond by saying that that is a matter which the commissioner can take into account.
If the noble Baroness is now speaking to Amendment No. 142, I believe that she may have been absent when the noble Lord, Lord Dholakia, and I had an extensive discussion on Amendments Nos. 127 and 142 which are in the same grouping. I tried to be as helpful as possible to the noble Lord. If the noble Baroness is dissatisfied with what I said—I do not believe that she will be—I am more than happy to discuss it with her.
[ Amendment No. 142 not moved.]
Schedule 6 agreed to.
Clause 76 [ Designated professional bodies]:
[ Amendments Nos. 143 and 144 not moved.]
moved Amendment No. 144A:
Page 49, line 27, at end insert—
("() consult the Legal Services Ombudsman, if the proposed order would affect a designated professional body in England and Wales;
() consult the Scottish Legal Services Ombudsman, if the proposed order would affect a designated professional body in Scotland;
() consult the lay observers appointed under Article 42 of the Solicitors (Northern Ireland) Order 1976, if the proposed order would affect a designated professional body in Northern Ireland;").
On Question, amendment agreed to.
[ Amendment No. 145 not moved.]
moved Amendment No. 145A:
Page 49, line 35, at end insert—
("() Before deciding whether or not to give his approval under subsection (5)(a), the Lord Chancellor must consult—(a) the designated judges, if the order affects a designated professional body in England and Wales; (b) the Lord Chief Justice of Northern Ireland, if it affects a designated professional body in Northern Ireland.
() Before deciding whether or not to give their approval under subsection (5)(b), the Scottish Ministers must consult the Lord President of the Court of Session.").
On Question, amendment agreed to.
I must inform the Committee that if Amendment No. 146 is agreed to I cannot call Amendments Nos. 147 or 148 due to pre-emption.
moved Amendment No. 146:
Page 50, line 8, leave out subsections (8) to (10).
The noble Viscount said: In moving Amendment No. 146 I should like to speak also to subsequent amendments. Amendment No. 146 removes the power of the commissioner to levy a fee against a designated professional body and to recover that fee as a debt due. This is a Scottish concern. It is not apparent why such fees should be payable in Scotland, especially as Scottish solicitors already pay subscriptions to maintain, inter alia, the disciplinary system. I am informed that the annual subscription paid by each solicitor is £375. That maintains the Law Society of Scotland and its consumer protections, such as the Guarantee Fund, the Master Policy and the system of complaints adjudication.
Amendment No. 147 is designed to ensure that the annual fee payable by a designated body is based on the costs incurred by the commissioner in relation to that body's members. When the Bill passed through another place the Government did not explain their thinking on how a self-financing scheme could be effected. We seek an undertaking that the annual fee relates only to the actual and reasonable costs of the commissioner's activities in relation to the members of a designated body.
Amendment No. 148 is intended to ensure that the Government's indication to the professional bodies that no charges will be made to the legal professions in the first year will be recorded on the face of the Bill. I beg to move.
All members of the Law Society or Bar Council in the jurisdictions of England and Wales are required to provide an annual subscription. Part of that subscription is used in internal disciplinary complaints procedures. I do not believe that the Law Society of Scotland is in any different position. However, I can be helpful to the noble Viscount to the extent that we have written to the professional bodies to inform them that they will not be required to pay a fee in year one of the scheme. In year two they may be required to pay a fee. I am happy to confirm that any fee will be based on an estimate of the likely regulatory activity carried out by the commissioner in year two in respect of each body.
The noble Viscount wanted me to say—I do so—that each professional body would not cross-subsidise the regulatory activity of the commissioner in respect of any other professional body or those registered or exempted from the scheme. It is only right that each body should be expected to pay a fee for any regulatory activity that is carried out by the commissioner on behalf of that body. Amendment No. 147 is not, strictly speaking, needed. The commissioner may not charge the legal professions for services which he does not provide in respect of them under the terms of the scheme. I hope that I have dealt with the concerns raised by the noble Viscount, not least specifically those relating to Amendment No. 148. We have been able to write to the professions concerned and inform them that they will not be charged financially in year one.I am grateful for the Minister's response to Amendment No. 148. No doubt his reply to Amendment No. 147 will be closely studied north of the Border. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[ Amendments No. 147 and 148 not moved.]
Clause 76, as amended, agreed to.
Clause 77 agreed to.
Schedule 7 [ The Immigration Services Tribunal]:
[ Amendment No. 149 not moved.]
moved Amendment No. 149A:
Page 123, line 38, at end insert—
("() Before making or altering any such rules, the Lord Chancellor must consult the Scottish Ministers.").
On Question, amendment agreed to.
moved Amendment No. 150:
Page 124, line 5, after second ("party") insert ("having been given due notice of the hearing").
The noble Viscount said: Amendment No. 150 provides that there should be clear proof of the fact that all parties to a tribunal have received fair notice of the time, date and place of a hearing before the tribunal can proceed in the absence of any relevant party. The amendment attempts to ensure that protection is afforded to all parties to the proceedings so that an unscrupulous person cannot take advantage of the tribunal system and seek to proceed in the absence of the other party without first showing that due notice has been given to that other party. This is an important point which I am sure the Minister will want to consider carefully. I beg to move.
I understand the purpose of the amendment. The amendment stipulates that appeals should be determined only where a party has failed to appear and that party has been given due notice of the hearing. I am happy to tell the Committee that this point is already covered. The determination of an appeal is allowed only where a party has failed, without reasonable excuse, to comply with any reasonable direction. If one has not been told, self-evidently there is a good case for saying that there is a reasonable excuse for not complying. It is worth ventilating the point, but ultimately I believe that this is a matter for the procedural rules, not the face of the Bill. However, I am happy to give the noble Viscount that reassurance.
I am grateful for the Minister's reassurance and explanation. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Schedule 7, as amended, agreed to.
Clause 78 agreed to.
Clause 79 [ Disciplinary charge upheld by the Tribunal]:
moved Amendment No. 150A:
Page 51, line 26, leave out ("fine") and insert ("penalty").
The noble Lord said: Amendment No. 150A is a drafting amendment. On reflection we thought that it should be a penalty which is directed rather than a fine. A penalty is more apt in the context of a disciplinary charge; the term fine is more appropriate for offences.
Amendment No. 150B enables a direction given by the tribunal to a person who has been found to have charged unreasonable fees for immigration advice or services to repay to the clients concerned a portion of the fees or to pay a penalty to the commissioner; and, if it is a penalty to the commissioner, to be enforced by the clients concerned or the commissioner as if it were an order of a court, or, in Scotland, as if it were an order of the Court of Session. So in the first instance it is almost a conceptual variation; and, secondly, it gives teeth to the scheme which has been generally welcomed. I beg to move.
On Question, amendment agreed to.
moved Amendment No. 150B:
Page 51, line 27, at end insert—
("() A direction given by the Tribunal under subsection (5) (or under subsection (6)) may be enforced by the clients concerned (or by the Commissioner)—(a) as if it were an order of a county court; or (b) in Scotland, as if it were an order of the Court of Session.").
On Question, amendment agreed to.
Clause 79, as amended, agreed to.
Clause 80 [ Orders by disciplinary bodies]:
Before calling Amendment No. 150C in Clause 80 I remind the Committee that if Amendment No. 150C is agreed to I cannot call Amendment No. 151 due to pre-emption.
moved Amendment No. 150C:
Page 52, line 4, leave out ("by a designated professional body").
The noble Lord said: In moving the amendment, I speak also to Amendments Nos. 151 and 151 A.
Amendment No. 150C is linked with Amendment No. 151 A. These amendments are designed to ensure that all regulatory bodies set up for the purpose of heating disciplinary charges against members of a designated professional body, including those set up in statute, are included in the definition of "disciplinary body". That is their purpose and I invite the Committee's assent.
Amendment No. 151, in the names of the noble, Lord Cope, and the noble and learned Lord, Lord Mackay of Drumadoon, would widen the definition of "disciplinary body" to include those bodies set up under statute. The current definition is a body which appears to the Secretary of State to be established by a designated professional body for the purpose of hearing disciplinary charges against members of the body and specified in an order. Having considered Amendment No. 151, we accept that clarification is needed here. This is the purpose of government Amendment No. 150C, which achieves the same effect but in the technically correct manner. Therefore, the point of Amendment No. 151 having been attained, I invite the noble Lords to withdraw their amendment, and ask the Committee to approve my amendment.
As drafted, the Bill does not provide for disciplinary bodies established by statute, or the professional body itself, such as the Scottish Solicitors' Discipline Tribunal which is established by Section 50 of the Solicitors (Scotland) Act 1980. I presume that Amendments Nos. 150C and 151A cover that point in the way I sought to do in my amendment. If the Minister confirms that, I shall be happy not to move Amendment No. 151.
Yes, I do.
On Question, amendment agreed to.
[ Amendment No. 151 not moved.]
6.15 p.m.
moved Amendment No. 151 A:
Page 52, line 6, leave out ("the") and insert ("a designated professional").
On Question, amendment agreed to.
Clause 80, as amended, agreed to.
Clauses 81 to 83 agreed to.
moved Amendment No. 152:
Before Clause 84, insert the following new clause—
Secretary Of State To Ensure Actions Of Officials Promote Asylum Seekers
(" . It shall be the duty of the Secretary of State to make arrangements with a view to ensuring that officials of hi;; department and all other providers of assistance to asylum seekers and their dependants operate the provisions of this Part of this Act and exercise their functions in such a way as shall best promote the welfare of asylum seekers and their dependants, if any, who requite assistance under this Part of this Act.").
The noble Lord said: In moving this amendment, I speak also to Amendment No. 153.
We turn now to Part VI of the Bill and the support to be made available to asylum seekers. Before doing so, it is worth reiterating the concerns that I and many other Members of this Chamber raised at Second Reading about the impracticality, the bureaucratic nature, and undesirability of the voucher system. We expressed anxieties about the inevitable creation of destitution, pitifully meagre levels of support, dispersal of vulnerable families, the forced co-option of church and voluntary organisations as arms of the state with requirements to fulfil tasks which are not and never have been hitherto their responsibility, and the duty that, as legislators, we have towards children who are caught up in these nightmare situations.
Amendments Nos. 152 and 153 go to the heart of those issues in setting out the duty of the Secretary of State towards asylum seekers. Amendment No. 153 deals with his specific duty towards children.
At Second Reading, the Minister graciously promised anyone who was a Member of this House or of representative organisations dealing with issues concerning asylum seekers that he would make himself available to discuss their concerns. My noble friend, Lord Sandwich, and I took him at his word, and he kindly made time available to us last week. We were accompanied by the indefatigable Mr Mike Kaye from the Refugee Council who has done so much during the proceedings of the Bill to keep the Committee alerted to the practical effects of many of the clauses we have been discussing.
Following that meeting, notwithstanding 'flu—his extraordinary power of recovery this week has been commented upon—the Minister found time to reply to some of those questions and to set out his reasons for questioning the desirability of placing a duty in the Bill. He has placed a copy of the full response in your
Lordships' House. Perhaps I may be permitted to refer to the second paragraph of that letter. The Minister says:
"You asked why we had framed the provisions on the support for asylum seekers as a power rather than a duty. We feel that a power gives us rather more flexibility in the manner in which we set up the support arrangements. But this does not in any way lessen our commitment to ensuring that proper support arrangements for asylum seekers are developed. We have made clear commitments on our plans both in parliament and elsewhere. Indeed, it is inconceivable that with all the provisions we are building into this Bill, we would not be planning to establish proper support arrangements. While I understand your concern about the nature of the Government's commitment, I doubt that changing a power into a duty would significantly affect this. What you and others will quite properly want to look at is the way in which the support is delivered and the practical safeguards for asylum seekers within this".
The argument, therefore, revolves around whether it is desirable to give Ministers and the Home Office the flexibility to which the Minister refers in that response, or whether we should instead place a proper duty on the Minister. That is what Amendment No. 152 seeks to do.
It is not that anyone doubts the sincerity of this Minister of State, nor indeed the Home Secretary, Mr Jack Straw. But they will not always be in office. It is, therefore, important to place on the face of the Bill more than goodwill and more than just an expectation that because they are benign others in the future may not be malign in their interpretation of the legislation. Therefore duties do count. We place duties on Secretaries of State in other legislation. I know that the Minister is not keen to use legislation as a system of semaphore. Nevertheless, it sends signals that if Ministers do not accept a duty in this regard, it will be assumed that they are trying to avoid their commitments to the most vulnerable in our midst.
The purpose of Amendment No. 152 is to impose a duty on the Secretary of State to operate the system to the benefit of its recipients. The wording of the amendment derives from the former government's legislation underlying the supplementary benefits legislation which was in force from 1980 until 1988. The aim is to ensure that, notwithstanding the temporary nature of the support on offer and the fluctuating numbers of recipients and other practical difficulties likely to be encountered, those who operate the scheme do not lose sight of the fact that they have been entrusted with the welfare of vulnerable human beings.
In answer to the amendment that was tabled in the Special Standing Committee in the other place—on its 24th sitting on 18th May, columns 1588 and 1599—the Minister, Mr Mike O'Brien, stated that it was unacceptable because it did not make reference to the interests of the taxpayer and provide for them to be weighed in the balance. I shall return to that point. But when I examined further the Minister's comments, I was concerned by two statements. On the then Clause 76, he said:
"If we allow things to remain the way they are, all sorts of legal challenges may be mounted under the Children Act…to undermine the way in which the Asylum Support Directorate provides accommodation in particular areas, offers financial support and operates the dispersal policy".
On the then Clause 99, he said:
"Everything would be subject to judicial review. The state would have to be far more careful about decisions to offer accommodation and take much greater care in its analysis of circumstances".
The Committee will understand that comments such as those further make the case for reminding the support directorate, which it is intended will have responsibility for people who have been tortured, for children and for others who have fled persecution, that it has a duty and a responsibility to those people, all of whom are reliant upon it and a substantial proportion of whom will receive recognition as refugees or grants of exceptional leave to remain and hence the opportunity to remain in and contribute to this country.
The new clause makes reference to provision in Part VI and to the functions of the officials concerned, and thus it recognises that a duty exists within the statutory framework of the obligations on a government department to spend money wisely. Therefore the Minister's earlier comment about getting value for money does not apply. There is always a duty on the Government to obtain value for money, but refugees should not simply be viewed through the prism of expenditure. Treasury interests must be held in tension with our duty to care for the vulnerable.
The purpose of Amendment No. 153 is to require the Secretary of State to have regard to the standards of the general law in respect of children. The wording of this amendment derives from Section 1 (1) of the Children Act 1989. The onus should surely be on anyone who wishes to assert that the welfare of the children of asylum seekers merits a lower standard of consideration to justify that position. The onus therefore is not on those of us who support this amendment but on the Government to say why the safeguards that have always been in place have been removed. The status of the child should not be inferior because he or she is a refugee.
The world can be a hard and bitter place for a child. We have only to consider the situation of children in countries such as Colombia or the Philippines to know the truth of that. As I said on Second Reading, a few weeks ago I was privileged to be part of an Anglo-Israel Association visit to Jerusalem. While we were there, we visited Yad Vashem. That memorial contains a special sanctuary to the memory of the 1.5 million Jewish children who died during the Second World War which brings home to one the need in every generation to renew our sense of duty and commitment. Recorded at Yad Vashem is the story of how the British people through the Government of the day turned back a boat carrying children which was fleeing from Vichy France. As a consequence of our actions, the children were eventually deported to Auschwitz. In every generation, we have a duty to safeguard the welfare of children above all other interests.
In the past 10 years we have seen a fascinating shift in perceptions about rights and duties, not least because of the work of men such as David Selbourne in his excellent book The Principle of Duty. That much-needed shift should also be recognised in the sense of duty and responsibility that governments must have as we try to displace some of the flaccid language of rights.
Among the groups supporting Amendment No. 153 are some of the most respected organisations that deal with children's issues in this country. The Children's Society states:
"The Children's Consortium … supports this amendment which would place a duty on the Secretary of State to take the welfare of any child involved in asylum proceedings into active consideration when exercising his powers under Part VI of the Bill. The amendment would do much to assuage many of the Consortium's concerns in relation to part VI of the Bill, as it would ensure that the Asylum Support Directorate was obliged to actively consider and act in the best interests of children at all stages of its proceedings".
It continues:
"This amendment would bridge this gap between promoting children's welfare and preserving the integrity of the asylum support system, by ensuring that the Secretary of State has a duty to actively consider and safeguard children's welfare in providing support for families. As such, it would ensure that the Secretary of State has a duty to consider compassionate circumstances when determining support arrangements for children and families".
The amendment is also supported by the Medical Foundation, which helps the victims of torture. It states:
"The Medical Foundation considers that this amendment should in no way be regarded as controversial. It echoes the Children Act 1989, and the government has claimed that provision under the Support Directorate will place children in a position no less favourable than they would be under the Children Act".
If that is so, why can we not incorporate this as a duty in the legislation?
The Medical Foundation states that in its evidence to the Special Standing Committee it expressed its concern that the impact of the UK reservation to the UN Convention on the Rights of the Child—which was criticised by the Committee on the Rights of the Child as apparently incompatible with the convention and which allows us to legislate on immigration without regard to the convention—could be extended to the detriment of asylum-seeking children by the inclusion of welfare matters within the province of the Home Office and of immigration control. The foundation states that it continues to call for the UK to remove the reservation which puts both children and this country's international reputation at risk.
UNICEF states:
"The United Kingdom ratified the Convention in 1991, simultaneously entering several reservations including one pertaining to nationality, immigration and asylum. In effect, the reservation has severely limited the operation of the Convention in several areas, with the effect of impeding the three theoretically inalienable guiding principles of the Convention: those of non-discrimination … the primacy of the best interests of the child"—
a point that the amendment tries to draw out—
"and the importance of the child's wishes in matters that concern him/her".
It continues:
"British law has in these ways had the effect of depriving many children of the fundamental rights set out in the UN Convention on the Rights of the Child, both directly through discriminatory or inappropriate legislation and indirectly through insufficient provision of protection for vulnerable children in difficult situations".
The opportunity exists in Amendments Nos. 152 and 153 to put that situation right and I commend them to the committee.
I have much sympathy especially with Amendment No. 153. The noble Lord, Lord Alton, makes a powerful case and I find it difficult to understand why the issue should not be the paramount consideration in the exercise of the Secretary of State's powers. The case is reinforced by several respectable organisations that deal with the rights of children.
I am not sure whether the provision in Amendment No. 152 should be a duty or a power. One must ask, what is the difference? I ask my noble friend what are the sanctions for an unreasonable failure to exercise a power on the part of the Secretary of State. Is there a major practical difference between the two consequences? Of course, there is a failure to exercise the duty, but, in practice, would a failure on the part of the Secretary of State to exercise a power amount to something similar? What rights would be conferred on the persons who would be prejudiced by that failure? That is the major criterion here. Perhaps in practice we are not talking about two distinct issues. Perhaps the situation will be unnecessarily complex, but it is for my noble friend to answer that point. In my view, the position in relation to Amendment No. 153 is different. The compelling arguments put forward by the noble Lord, Lord Alton, deserve careful consideration by the Committee and my noble friend.6.30 p.m.
I shall be brief in my support for Amendment No. 153, which relates to a duty to ensure the welfare of children. I should like to bring a particular instance to the attention of the Committee. When people see Kosovar refugees begging, many become annoyed and say, "They are receiving fair benefits, so why should they be begging?". However, on numerous occasions I have seen such people dragging tiny, barefooted children who can hardly walk. They are in dense traffic, stopping at cars and certainly putting the children at considerable risk. They do so not only for a couple of hours but for the full length of the day. I cannot: imagine that anything less than a duty on the part of those responsible would be acceptable.
I am grateful for what was said by the noble Baroness, Lady Oppenheim-Barnes. I, too, should like to turn to the argument advanced by the noble Lord, Lord Alton. Perhaps we may go back into the history of the Home Office. The Minister and those associated with the Home Office will recall that at one time it was responsible for children's officers. They were an impressive part of the Home Office's responsibility at that time.
As a result of decisions made about the allocation of duties between that department and the Department of Health and Social Services, the children's officers were moved into the DHSS with a serious loss to the Home Office in terms of a balancing professional concern unconnected to services related to law and order. Many of the amendments are rightly concerned with how the asylum support directorate will carry out its duties and obligations, not least because for a generation that department has had no direct experience of running such a directorate. Many of us are concerned that the new directorate will not have the experience or awareness of how to deal with asylum seekers and refugees in the position in which they will find themselves as a result of the legislation. Like the noble Lord, Lord Alton, I was concerned about the remarks made by the Secretary of State in another place. He was right and fair to say that the concerns of taxpayers must be borne in mind. It would also be fair to say that a good deal of Part VI is about that. But that is not the whole story. I was particularly concerned with the statement he made in the Special Standing Committee, which examined Clause 99. He stated:I fully accept that phrase; it is a good argument for passing the amendment before us. Amendment No. 152 balances the directorate's responsibilities in terms of administration and saving public money with a recognition that it also has a duty towards the welfare of asylum seekers. I understand that a power is enabling and that a duty is an obligation which cannot be left to discretion. It is a duty which must be carried out by the department in all circumstances. That is what we are seeking: that the asylum directorate will balance the welfare of asylum seekers against the other considerations that it takes into account relating to administrative convenience and taxpayers' concerns. With regard to Amendment No. 153, I want strongly to underline what the noble Lord, Lord Alton, said. In the White Paper, the Government stated that they wanted to ensure that,"If this kind of provision was passed, the state would have to be far more careful about decisions to offer accommodation and take much greater care in its analysis of circumstances".
That is a useful and powerful commitment. Many of us believe that it could properly be borne on the face of the Bill and that is what Amendment No. 153 would do. I hope that the Government will give careful consideration to these two amendments, which set a framework within which the asylum directorate would be working. As a form of guidance, it would be useful to it in its work. Finally, I strongly support what was said by the noble Lord, Lord Alton, about the position of children today. One of the problems about our world is that increasingly children are used as weapons of war. The Minister will be familiar with the terrifyingly changed ratio on the loss of life of civilians and of soldiers in today's battles. We now know, for example, that in the Yemen children are regularly seriously mutilated as part of a political purpose. In such a situation, we, as a civilised country, must put at the forefront our concern for the next generation. I believe that Amendment No. 153 would be in the best traditions of this country and would stand to the credit of the Government if they accepted it."the needs of children are fully respected and their welfare and rights respected.".
I congratulate the noble Lord, Lord Alton, on tabling the amendment. It goes to the kernel of the legislation. In some ways, this is a Second Reading debate.
I am not a lawyer and in the detail of the Bill legal minds are most important. However, I chair the refugee sub-committee of the Parliamentary Assembly of the Council of Europe and I have spent most of my life working in humanitarian agencies. For those of us who are carrying out such tasks, the amendment is highly relevant. Perhaps I may underline why. First, the noble Baroness made the point that there is a growing and deep concern among all of us in humanitarian agencies about the effect of conflict and repression on children. It leaves psychological scars for the rest of their lives. There is a need for counselling and psychological support, which do not exist. In that context and in the administration of this part of national policy, we should wholeheartedly fulfil our responsibilities by ensuring that the humanitarian dimensions of what we are trying to do are second to none and that our commitment to children is self-evident. As regards Amendment No. 152—and as we discussed a great deal in the Council of Europe sub-committee—we must examine legislation in the context of the culture in which it is being applied. We all know that the number of refugees and asylum seekers with whom governments are grappling is out of all proportion to anything imagined in the immediate post-war period. We also know that there is abuse. There is no argument about that. We also know that there is a responsibility to the taxpayers. There is no argument about that. But we also know that everything that the political leadership of post-war Europe was about was the humanitarian responsibility for refugees and asylum seekers. That is why we introduced human rights provisions and legislation in this area. Because of the preoccupations with the other elements to which I have referred, when a Bill such as this is being debated it is very important to reassert the primary commitment to genuine refugees and asylum seekers. We should be sending that message strongly as a message of support to those in the front line who are administering the policy. They should understand that that is what Parliament wants: to see the issue dealt with generously and openly, while the other points are taken into account. My fear, which is shared by my fellow members of that sub-committee of the Council of Europe, is that in one country after another the more negative aspects which I have described are becoming so preoccupying that the primary purpose is overlooked. That is why anything that my good and noble friend the Minister can say tonight to help to strengthen and reassure us all, and to set the tone for what is being done in the name of the Bill, will be tremendously important.As the noble Lord has just said, this debate has turned into something of a Second Reading on Part VI of the Bill. I am not complaining about that. It has happened in a general sense. The noble Lord, Lord Alton, referred to some general points relating to this part of the Bill at the start of his remarks. I shall not follow him into that matter. We have made clear our general position, which is that we want to see genuine asylum seekers properly looked after, particularly the children, but at the same time we recognise the Government's duty to deal with the problem of bogus asylum seekers which is, as the noble Lord said, generally accepted.
The only general point which I would make, as I do not believe that it is raised under any of the following amendments, is that I am not persuaded that the 300 proposed staff of the new support directorate will prove anything like sufficient to carry out the duties which the Committee seeks to place on them in this part of the Bill. I shall not develop that point. I am sympathetic to the arguments advanced by the noble Lord, Lord Alton, and by the others in the debate, particularly on Amendment No. 153. Looking at the next few pages of the Marshalled List, I note that a number of other groups of amendments touch on the same point in specific ways, but it is made in a general way in Amendment No. 153. The noble Lord, Lord Alton, was quite right to say that, were Amendment No. 153 or a similar amendment to be tabled at the start of Part VI of the Bill, there would be far less need for the other, more specific amendments at later stages. I am not very qualified to judge whether the precise wording is correct or could be legally improved. However, I support the sentiment behind inserting a general provision to put the consideration of the child's welfare in the minds of everyone concerned with those matters.6.45 p.m.
The noble Lord, Lord Cope, is right. The debate is in the nature of a Second Reading revisit to Part VI. I have no complaint about that at all. I should like to take slightly more time than is usual at this stage in dealing with the general questions, but shall not then return to the general questions on every specific subsequent amendment, if that is acceptable to the Committee.
Amendment No. 152 would place on the Secretary of State a duty.I hope that I am not being harsh in saying that that would give primacy to the welfare of asylum seekers, however that is defined—it is not defined in the amendment, but that is not an essential part of my argument—at the expense of all other considerations, such as cost and competing legitimate aspirations that others who live in this country may well have. I believe that it is important to set the issue in that context. I shall cover Amendments Nos. 152 and 153 in rather more detail in a moment. The scope of Amendment No. 153, which has had the general approval of a number of noble Lords who have spoken, is very wide. It states:"to make arrangements … and exercise … functions in such a way as shall best promote the welfare of asylum seekers and their dependants".
That means that all other considerations, whether of cost or more widely, would have to be subordinated to that single test. I appreciate that that is a reflection, of a sort, of considerations in the Children Act, but that consideration in the Children Act is utterly and completely different from the context with which we are dealing, as I hope to demonstrate in a moment. The approach of my noble friend Lord Judd is a correct one. We have no doubt at all of our obligations under the 1951 Convention on Refugees. I agree with him that the scale of recent, almost volcanic, movements is perhaps one which we had not anticipated. By "we", I mean all governments in different countries who are faced with those problems. We need and want to ensure that a person seeking asylum is not prevented pursuing the claim by virtue of destitution. Hence our commitment to provide support in terms of accommodation and essential living needs for destitute asylum seekers. We want to do that efficiently and humanely. We have not succeeded in that in the past. I repeat what I have said on a number of earlier occasions: delay and uncertainty are no friends to those who will, in the end, be successful; nor are they helpful daily companions to those who are going to fail. I do not believe that anyone can dispute that we currently have ramshackle, incoherent, unstructured and unsatisfactory arrangements which have been developed over the years, significantly, on an ad hoc basis. The question of whose fault that is is utterly beside the point. The fact is that that is an accurate description of the present situation. I return to the point made by my noble friend Lord Judd. He is quite right in saying that we want to promote the welfare of asylum seekers. We shall ensure that desk instructions to our own staff will make that perfectly plain. The obligations imposed on our contractors will lay emphasis on the need—I am happy to re-affirm that again to my noble friend—to have full regard for the welfare of asylum seekers. That means that they have sufficient support; proper access to medical and other facilities so that they are able to cope in a strange society; and that they are protected from harassment or other threats. We shall have a budget of £300 million to provide that support during the first full year. I take the point made by the noble Baroness about people who claim to be from Kosovo—whether they are or not, I do not know in every case—who beg with small children in the street. When the point was last raised by the noble Baroness, Lady Trumpington, I pointed out that most of us have had that experience. That point does not derive from whether or not the arrangements will put the interest of children paramount. Social services departments have a proper role to play in cases where children are at risk as a result of behaviour, some of which, without being uncharitable, is certainly questionable to many of us as to whether it is based on true need as opposed to organised begging, which sometimes comes close to intimidatory behaviour for some people. I do not believe that the noble Baroness and I disagree on that point. Whether or not we reach conclusions agreeable to all Members of the Committee, we have been prepared to listen. I invite noble Lords to look at the letter to which the noble Lord, Lord Alton, was kind enough to refer. It is quite extensive and deals with concerns raised by him, the noble Earl, Lord Sandwich, and Mr Kaye. We have replied to it in some detail. I hope we have been able to give some detailed replies to the noble Lord, Lord Dholakia and the noble Baroness, Lady Williams. I know that a good deal of concern was expressed at Second Reading and in conversations with colleagues on all sides of the House about the level of support. We shall consider support levels in more detail. Perhaps I should tell the Committee one or two of our developed thoughts. We have decided, after listening carefully over a period of weeks, that the provision of spending power in respect of children under the age of 18 should be set at a level that is the current equivalent of income support personal allowance for children. At present values that would increase the spending power of a family of four—two adults and two children—from about £90 a week to £106 a week. Some of that will be paid in cash and the remainder in vouchers. We propose that the provision for adults should be on the basis that there will be a combination of cash— I mentioned the increase a second ago—and vouchers. However, we should not overlook the "in-kind" provision: accommodation that is furnished, fuel and power paid for; the full range of domestic utensils, linen, pots and pans and so forth. I can fairly say that that will broadly represent what those adults would receive on income support. Following what I have said, I do not think it will be easy to say that we are offering something less than comparable with what would be available on other support systems. I repeat that we have listened carefully to what has been said in another place, here and in discussions with officials and colleagues. I do not want to be unkind or to be seen to be harsh. We cannot discharge any governmental duty—I hope that does not sound too pompous a phrase—to one section of those who are worthy, without considering the interests of all. We see others in our society begging in the streets, sleeping rough and close to destitution. Others in the community are near destitution and we have to consider fairly the cost of providing support. We need to ensure that the arrangements provided support those in genuine need. Therefore, we are trying to secure that the asylum seeker will broadly be in the same situation as a local person who is similarly destitute and who is receiving income support and other social security benefits. I do not believe that that is an unreasonable or ignoble stance. The different way of providing benefit to asylum seekers reflects our concern. To have a separate system of support for asylum seekers we have to cater—to take up the point made by my noble friend—for the particular needs of people who arrive in this country often with no possessions, and without the normal means of coping independently in a strange environment. I believe that to accommodate sensitively people from a particular linguistic, ethnic or cultural group in an area where there are others of the same linguistic, ethnic, cultural or national group is a generous step, rather than dumping them in anonymity, as has often happened, in a place where there is no local, friendly hand to be stretched out to them. I cannot accept either of the amendments, but I am spending a little time—as I promised—giving the reasons. I do not think that Amendment No. 152 achieves the necessary balance between the welfare of asylum seekers, on the one hand, and proper alternative considerations which we need to have—I have mentioned them briefly—on the other. In relation to Amendment No. 153, I respect the concerns, as always, of the noble Lords, Lord Alton and Lord Dholakia, who tabled the amendment. The welfare of children should never be treated lightly. Of course, as the noble Lord, Lord Alton, said, this is a reflection of what is found in the well known words of the Children Act. The paramount description in the Children Act is used in a specific limited context and refers to the considerations that the court must have in mind in making an order in respect of a child. That is the context and that is the derivation. That is quite different from the wide context which is proposed in Amendment No. 153. I understand perfectly well why it is introduced in Amendment No. 153. However, if that is to be construed, as it must be, in the ordinary meaning of words, the child's welfare, irrespective of all others, must be the paramount consideration. We could not deliver that. We have to have sensible regard to cost; we have to have sensitive regard to the legitimate, sometimes competing, often distinct demands of others, who are not necessarily all well off and who have financial deprivation to deal with as part of their every day existence. I repeat that assistance to children of asylum seeker families will continue to be available under the Children Act. I do not believe that any government could deliver on Amendment No. 153. I turn to a specific point, which I hope has not been overlooked. Clause 113 places a clear duty on the Secretary of State. I turn to some of the themes developed by my noble friend Lord Clinton-Davis. Subsection (3) of Clause 113, on page 70 of the Bill, states:"When any question arises with respect to a child, or with respect to any household which includes a child, the child's welfare shall be the Secretary of State's paramount consideration in the exercise of his powers under this Part of the Act".
So the duty is in Clause 113(3). There is a further duty in Clause 113(4) which states:"If it appears to the Secretary of State that adequate accommodation is not being provided for the child, he must exercise his powers … and if his offer is accepted by providing or arranging for the provision of, adequate accommodation for the child as part of the eligible person's household".
I believe my noble friend Lord Clinton-Davis is quite right. We are looking at different concepts. We say that we have the power and we have the obligations under Clause 113, but we cannot have a duty which is as widely put as this because that would mean there would be enforceable sanctions on the Secretary of State irrespective of other considerations. I repeat, I hope not harshly or with any hard feeling, that no government could operate on that basis. Again my noble friend Lord Clinton-Davis is quite right in respect of the difference between a duty and a power. The exercise of the power, or non-exercise, would be subject to judicial review on the usual basis of rationality or irrationality. We want to exercise our powers in a decent and sensitive way. I hope that some of the things that we have done, even the announcement that I have been able to make to the Committee this evening about the difference in support, reflect that we have been listening. I cannot accept any amendment that would require the Secretary of State to give primacy to one consideration, even the welfare of a child, above all others. I repeat that I am not aware of any government that can deliver on that. We are making the provision because we want to make sure that children and families are properly and decently cared for. I repeat the commitment—I hope at not too great a length—that if the average time for processing the initial application for asylum by a family is not down to an average of two months by 1st April 2000—that is not far away—we shall not bring families into the new support arrangements at that time. In future, families will rely and will need to rely on the new support arrangements for a fairly short period of time. Within that time period we shall make arrangements to ensure that families with children will be entitled to the full range of support and assistance, including education, free school meals, milk vouchers, healthcare, free prescriptions and access to social services. In other words, we shall take full account of the welfare needs of the child. I go back to my noble friend Lord Judd. We shall want to reflect those matters in the guidance that we give to case workers and those providing services on the ground. I can go no further than that. It is a reasonable point to have arrived at. I am perfectly happy, as always, to consider detail, but I repeat, I hope without discourtesy, that we cannot go further than that."he must exercise his powers … by offering … essential living needs for the child as part of the eligible person's household".
7 p.m.
Before my noble friend sits down, perhaps I can say that some of his remarks go a long way to meeting my point. I thank him for that, though we shall want to see the guidance and the spirit in which he spoke put into words. However, I hope my noble friend will forgive me if I pick up on two points.
The first is a specific point dealing with what the noble Baroness, Lady Williams, said. The complaint is not whether in the aggregate vouchers and money reach the same level as would be available to destitute people in this country, though that is a pretty minimalist approach. My noble friend talks genuinely about the "real" refugees and the "real" asylum seekers. We have to recognise that people who have been through that situation are looking for security. They are desperately affected by the stigma of vouchers. They do not have the cash in their hands to the same extent as an English person would to give them even that degree of confidence. Their vulnerability and insecurity are accentuated. That is why there is concern on that issue. The second point is more about presentation. My noble friend is someone I greatly respect and I am glad he is in the work he is in. But I wonder whether he will read some of the comments he made tonight. He is inclined to say, "Yes, we will do this. Yes, we have this commitment. But we must remember that we have other responsibilities". Some of us would say that that is exactly what is wrong. We should be saying, "Of course we have responsibilities to the taxpayer. Of course we have responsibility for dealing with people who are abusing the system. But we must remember that we have our commitment to the refugees and asylum seekers and that must be the guiding principle". It is a balance of language and I ask the Minister, as a friend, to look at some of the things he said tonight to see whether in the future the balance of language can be changed.I wonder whether my noble friend would agree with this. It is not so much a question of a balance of language; it is a balance of commitment and attitude. The way in which certain Ministers in the Home Office in the past dealt with their responsibilities, in my view, fell short of what is desirable or even acceptable. I do not know how we legislate for that situation.
I have every confidence that, as a Minister, my noble friend shows every indication of sympathy for the arguments adduced on these issues. I am sure that in so far as it falls to him to administer these matters, they will be dealt with sympathetically. I would feel aggrieved, in fact, if any Minister in this Government adopted any position other than that. The difficulty arises in being able to formulate this commitment in a statutory form acceptable to the community at large. It is important that we generate within the community a respect for and understanding of the way in which refugees arrive in this country. We must not do anything to create a rift or lack of understanding— there is enough misunderstanding already. It is the job of government to try to deal with that situation, but not necessarily by statute. That is the appeal I make to my noble and good friend Lord Judd. I share his sentiments, though I am not sure I arrive at the same conclusions in relation to whether or not the statutory form giving rise to those sentiments can be set out. There is considerable difficulty in imposing that duty. My noble friend dealt adequately with that point and I accept his reasoning in relation to it. I hope that the noble Lord, Lord Alton, will accept that I agree with much of what he expressed but do not feel that he necessarily chose to go down the right route.Perhaps I can add a further question to that asked by the noble Lord, Lord Judd. Will the Minister accept that we are dealing with an unusual situation? We have a backlog of between 70,000 and 80,000 asylum applications. Many of them, on his own estimate, are people who may be economic migrants to this country. However, the present Bill locks all doors through which asylum seekers can come to this country. At some stage, before long, we shall be dealing with only a handful of refugees and asylum seekers. Why therefore do we need a voucher system which has not worked in other parts of the country? Why do we need effectively to create a bureaucracy on the basis of the inability of the previous and present governments to clear the backlog and one that will cost more to run than the system presently available to asylum seekers?
As we seem to be putting a number of questions to the Minister at this stage, perhaps I can press him on one further matter in relation to the figures with which he provided the Committee on the levels of benefit. He claimed that with additional resources being made available the benefits payable were largely comparable to those being paid to people on income support in this country. He will be aware that those figures are contested.
I believe I am right in saying that with the additional provision, the Minister said that around 90 per cent of the true benefit is being paid. The claim is being made elsewhere, on good grounds, that that figure should be 80 per cent. Furthermore, that is a level of income benefit which is widely recognised as being inadequate for the proper and reasonable support of people in this country. The Minister is therefore taking a figure which is widely regarded as low and reducing it further. Under those circumstances, is it not going to be difficult for people to maintain, with any dignity and reasonableness, the kind of life to which they ought to be entitled in this country?My noble friend is itching to get back on his feet once the Minister has sat down. I shall try not to anticipate what he is going to say.
What is not in dispute is the courtesy of the Minister; a courtesy which, as my noble friend said, was shown when we came to see him in his office. But he did not use the big guns that he has just brought out; he was using more moderate tones and, in particular, as my noble friend said, the word "flexibility". But it was the noble Baroness, Lady Oppenheim-Barnes, who suddenly brought me back from the idea of flexibility to the principle that we are facing when we are thinking of the universality of children and the best interests of the children. Those phrases lead me back to the Children Act; they do not lead me to the asylum support directorate. We are talking about a different kingdom when we go along that route. I recall the words of the noble Lord, Lord Judd. He asked what signal the Government were sending. I refer briefly to one small signal in Written Answers this week in reply to the noble Baroness, Lady Jeger. On the question of free school meals for children of asylum seekers, the noble Baroness, Lady Blackstone, saidThe Minister continued,"If the Asylum Bill currently before Parliament is enacted, it will remove the right of asylum seekers to claim these benefits".
Children have the same basic living needs whether they are asylum seekers or resident. This kind of signal to the Committee and society at large seems to me to be in contradiction of the principles agreed under the Children Act."However, their children and unaccompanied children seeking asylum will be eligible for free school meals".—[Official Report, 19/7/99; col. WA 86.]
Before the noble Lord, Lord Alton, considers his final remarks in response to the Minister perhaps I may raise another issue. The Minister has quite fairly pleaded with us to limit ourselves very much to particular points in further amendments. Therefore, in a sense he has invited us to talk more widely on these two amendments and to limit ourselves thereafter. I shall abide by that.
There is one other issue which is very close to the one raised by the noble Earl, Lord Sandwich, which relates again to children. We welcome what the Minister has said so far. But one of the assumptions made in the provisions for support within Part VI of the Bill is that there will not need to be replacement of the possessions of asylum seekers in this country. My noble friend Lord Dholakia has pointed out that in the much more stringent system which this Bill will introduce those who are likely to arrive in this country will probably be the most extreme cases of desperation among refugees. This country responded relatively generously to the refugees from Kosovo. They were literally run out of their homes, some with 10 minutes notice, and took nothing with them. Evidence has attested to the fact that they did not even bring another set of clothes, a pair of shoes, a handbag or anything of that kind. More than anyone else, children require the replacement of essential articles. Children grow out of their shoes. They need replacement nappies. They need new clothes as they grow. They need to attend school without being stigmatised as the kid that comes wearing nothing but a pair of old gym shoes with holes. That is another aspect of our concern about children. The replacement of goods for children is particularly acute. Alas, the singling out of children by their peer group is often an act of common child cruelty with which most of us are familiar. The right reverend Prelate pointed to the way in which vouchers stigmatise children and so they do. Yet, if the noble Earl, Lord Sandwich, is correct, they will have no access to school meals and there will be problems in receiving the kind of support they need. In his response perhaps the Minister can address this aspect of a problem which concerns many of us.7.15 p.m.
I shall. I hope that I shall not be accused of bringing up the big guns. I am saying that we have to bear in mind that there are competing demands that need to be attended to. A great number of the questions which have been raised I addressed in a quite lengthy letter to the noble Lord, Lord Alton. I shall come back to them because it may be that some Members of the Committee have not seen them.
In the second paragraph of the letter I set out the nature of the accommodation that will be provided. It states,That is dated 15th July and today I have given an indication of what we are going to do about increasing the cash. Questions have been raised about the accommodation of asylum seekers in unsuitable areas. I said in that reply,"Some asylum seekers will be given hostel accommodation with full board and lodging, and will need cash only for incidentals. Where they are given self-catering accommodation, this will come with the utilities paid for, and with full equipment (which a normal tenant might be required to provide for himself) provided by the Home Office. Taking these factors into account we are clear that our support would generally be equivalent to around 90% of what is available to people on income support. But we are thinking carefully about whether the present package will meet all the needs of asylum seeker families".
If anyone suggests that that is not true they are living in a different world. I did not put that in the letter. That is my observation and it is true."we are genuinely concerned about the pressures that current arrangements are placing on housing in London;".
All those points depend entirely on the points that the noble Lord, Lord Judd, raised. I did not read them all partly because I sent the letter so recently. I do not believe that one can say that one is bullying, intimidatory or using the big guns. I am simply saying that we are approaching this matter in a humane way. I turn to one or two other points that were made. There are other questions discussed in our meetings with the noble Baroness, Lady Williams, about access to medical attention and care. The noble Lord, Lord Dholakia, also raised them. I hope to be able to give some positive news about some of their queries. Perhaps I may deal with one or two questions and phrases used. The noble Earl, Lord Sandwich, asked about school meals. I intend to bring forward at Report stage an amendment to allow asylum-seeker children free meals. I am not claiming that as a virtue; I am simply saying that we have genuinely listened to the kinds of questions, including the general spectrum, raised recently by the noble Baroness, Lady Williams. When I was replying at some length earlier I said that we would be looking to provide a full range of support and assistance, education, free school meals, milk vouchers, healthcare, free prescriptions and access to the social services. Both my noble friend Lord Judd and the right reverend Prelate said that some of the figures were in dispute. I do not believe that an up-to-date calculation has been made on the figures that I gave this evening because it was not possible to do it. Both the right reverend Prelate and my noble friend Lord Judd said that I was comparing something that I was offering with something which is fairly minimalist anyway. That underlines my point. In this country we have a system of support for those who would otherwise be destitute. I am saying—I hope not in a disagreeable way—that what we are trying to offer people who come to these shores in need is something roughly comparable in terms of support to what we give our own citizens who are also destitute and who can sometimes be seen sleeping rough in London or begging at railway stations. When I say that no government can deliver what Amendments Nos. 152 and 153 demand, I am simply telling the truth. It may be a disagreeable truth, but I am not prepared to say things which are hopelessly unrealistic and which raise and then cruelly shatter people's hopes. I appreciate that we are discussing amendments, although by general consent we have gone off into a wider review on a Second Reading basis. As regards Amendment No. 153, the child's welfare should be the paramount consideration. But it is not unkind or threatening to say that no government that I know of can deliver that. There is no point in putting matters in Bills which become Acts of Parliament to make us all feel better. That helps no one."these are unsustainable in anything but the short term. We therefore feel it would be better to re-house the asylum seekers in areas of the country where there is less pressure on housing. We envisage that the areas we select will build on the experience that the Local Government Association and local authorities are now developing…. As we indicated some months ago, our criteria for areas suitable for receiving asylum seekers will be, firstly, that there is a reasonable supply of suitable accommodation; secondly, that there is a viable multi-ethnic community or at least a history of racial tolerance in the area; thirdly, that there is a potential for developing viable support arrangements for asylum seekers. Certainly we do not wish to see asylum seekers left isolated or at risk of threat or attack".
I am grateful to the Minister for giving way. The amendment does not say '"In any question". It states,
In other words, it is part of a hierarchy of considerations that the Secretary of State will take into account, but above all others his paramount concern will be the welfare of the child."the child's welfare shall be the Secretary of State's paramount consideration".
I may have misread the amendment. It states,
I do not believe that I have a wrong copy of the amendment. I am simply saying as gently as I can that no government will be able to deliver that provision. I repeat as kindly as I can that putting things in Acts of Parliament to make us all feel better and all the more humane is not to the point. What is to the point is achieving a regime which is fair and decent, which does not make people destitute, but which has to be looked at in the context of a country in which other people live. Members of the Committee may find these truths to be disagreeable. Perhaps I may, for example, turn to the remarks made by the noble Baroness. I should point out that I am trying to answer a number of different questions, and I know that the noble Lord, Lord Alton, has the infinite benefit of the last word. The noble Baroness said that no one wants children to be stigmatised and no one wants to see them going to school with raggedy clothes. Of course they do not. I am putting forward the generally comparable nature of what we are offering to asylum seekers as being truly generally comparable with what we offer our own citizens. That is not a perfect answer. Indeed, the noble Baroness might say, although she is too generous, that that is an ignoble answer. I am simply saying that what we provide for people in the difficult circumstances described by noble Lords has to have an appropriate measure in the context of what we offer others. The noble Baroness said, as we all know, that when children grow up their feet grow at an alarming rate and they need new shoes every five minutes. Indeed, they also need changes of clothing, as do working parents in this country and those who have no employment. People who sleep along the Embankment feel the cold and the rain in the same way as we do. Therefore, in every instance I do not think that the responses have been proportionate to what we are doing, as opposed to what people say we are doing. I return to Amendment No. 152. What we have here are really declarations of desired objectives. I do not believe that there is any sentient being who would not regard these objectives as being desirable. I am simply saying that if one puts such provisions in the Bill, they are not capable of being delivered. I personally think that the best way forward is to listen carefully to what noble Lords say in this Chamber and elsewhere to see what we can manage to achieve. If the noble Baroness and the noble Lord, Lord Dholakia, will not mind, perhaps I may take just one example. They were particularly concerned about access to specialist medical attention—I know that the noble Earl has also raised this matter—for those who are victims of torture. We shall deal with that issue later this evening, but I believe that we have been able to think carefully and constructively in that respect. That is the way to get a better outcome."When any question arises with respect to a child, or with respect to any household which includes a child, the child's welfare shall be the Secretary of State's paramount consideration".
Does the Minister concede that some of us on this side of the Committee have pressed very hard for what we regard as a somewhat better deal for those wearing raggedy clothes among our own citizens?
Of course I do. I have always recognised that fact. I am simply pointing out that as we have to deal, by and large, with the world we recognise rather than the world which we wish to inhabit—though the two may not always be enormously different—any government have to consider how such provision will fit into the general social context. My noble friend Lord Clinton-Davis is absolutely right. Anyone we assist from foreign countries is not coming here to live in a bubble or a balloon; he or she will live in a community.
My noble friend is also right to say that one wants to be as constructive and moderate in language as possible. I did not regard my language as at all incendiary or disagreeable, although my noble friend Lord Judd chided me about it. If one is poor and one's life is pretty disagreeable, someone will have to answer the perfectly fair question: "Who's paying for all this?" Everyone in this Chamber has a duty to answer that, and pretending that the question is not there does no one any service.Perhaps I may ask the Minister whether I could possibly be dispensed from his request to make general remarks on this amendment. I would prefer to make my remarks on Amendment No. 156 for two reasons. First, they are germane to that argument and wide of this one; and, secondly, I missed the beginning of the debate on this amendment and, therefore, have remained silent. I hope that that is agreeable to the Minister and the Committee.
I am here to serve the Committee. I shall do my best to reply to amendments. However, I think that I serve the Committee best by replying to specifics rather than generalities. The debate has ranged widely, and that is perfectly reasonable. Indeed, I do not criticise noble Lords for doing so. I have been longer in my response than I normally hope to be. However, I cannot be expected to deal with every general review of the wider panorama when dealing with each specific amendment in Committee. I believe that that is fair.
We have had a wide-ranging debate. I am sure that we look forward to hearing the noble Earl, Lord Russell, on subsequent amendments. I am sure that he will, as always, ensure that his remarks are in order and that they will be pertinent enough to require relevant replies from Ministers. The noble Lord, Lord Cope of Berkeley, said that this had been akin to a Second Reading debate. I think that it has almost been a pre-emptive clause stand part debate. There is perhaps something to commend the idea of looking at the sections of this Bill, or Bills like it, in the way that we have done. In that way, we would look at Part VI in some thorough detail, thereby setting the scene, and could then contextualise the amendments which follow. There is merit in that approach.
However, as we have moved from the generalities to the specifics of the two amendments, it has been difficult. Therefore, in my short reply I shall deal with the two amendments under consideration and the actual words which appear in the Marshalled List. The Minister is far from being "disagreeable"—the word that he used in response to his noble friend Lord Judd. The problem with the noble Lord is not that he is disagreeable but that he is an eminent lawyer and knows his way around statutes probably far better than anyone else in this Chamber. I am sure that people in the past have paid him substantial sums of money for presenting the argument in the very eloquent way he has done tonight. I am sure that we get him very much on the cheap. No doubt the Committee will agree that we are privileged to be able to listen to him dealing with these questions from the Dispatch Box. I should like to take the noble Lord back to the remarks he made about Amendment No. 153.1 pointed out to him that the amendment does not say, "When any question arises with respect to the child … this will be the paramount consideration", in the sense that anything at all that is raised concerning a child will outweigh any other consideration. I felt that the noble Lord used his eloquence as a lawyer to put forward his argument. In fact, he persisted throughout the debate in suggesting that in some way this provision would place an unspeakable duty on all of us which was undeliverable. Indeed, he said that this was something which could not be delivered. He also said that no government could operate on that basis. However, that is not what we are asking for in Amendment No. 153. It refers to,It is specific to the issues that affect children arising under this Act. The amendment does refer to "paramount consideration"; in other words, we would not ignore every other consideration, not least those which are imposed on the Secretary of State to get value for money. As regards the Minister's slightly wider comments when talking about vouchers, I should point out that the Secretary of State also has a duty to get value for money. As the noble Lord, Lord Dholakia, and others suggested, we are left high and dry as regards knowing what the costs involved will be of the voucher system. For example, in a Written Answer to me early last week, the Minister said:"any question [which] arises … in the exercise of his powers under this Part of this Act".
All of us would like to know what this will cost; and what the opportunity costs involved will be which could be used on processing applications. That, too, is a value for money argument. However, although it is an important consideration, it is not the only one. The Minister also referred us to Clause 113 and pointed out that there it is in statute. He said that there are obligations placed on the Secretary of State in subsection (3). If it is not possible for us to impose a duty in the way suggested during the debate, why it is possible for this subsection to state,"It is not certain at present how many personnel will be required solely to administer the voucher system. It is intended that the administration of the voucher scheme will be contracted out and contractual negotiations will take place during the Autumn. A small number of staff in the Asylum Support Directorate will be responsible for administering that contract".—[Official Report, 15/7/99; col. WA 59.]
in other words, there is real duty and obligation expressed there in terms? Although I am open to the argument that, of course, the suggested provision could be rephrased in words that would be more acceptable to the Government, all that I am seeking to do in this amendment is to ask the Minister to accept the arguments put forward by the noble Lords, Lord Judd and Lord Clinton-Davis, and others from this side of the Committee. Here is a duty that ought to be written on the face of the Bill. I give way."If it appears to the Secretary of State that adequate accommodation is not being provided for the child, he must exercise his powers under section 85";
In one case that the noble Lord cited there is a discretionary element, whereas the other issue is mandatory. I do not think that the noble Lord is drawing a distinction between the two.
The distinction that I am drawing is that there ought to be a mandatory requirement on the Government to have a duty towards the paramount interests of the child. This is not something that we should just leave to the discretion of Ministers. Elsewhere in the legislation mandatory obligations are laid down. I have just mentioned the one—to which the Minister referred—in Clause 113 as a model for dealing with this matter. It states that we should require the Secretary of State to exercise his powers under this part of the Bill in a way that puts the interests of a child at the top of the hierarchy of considerations.
The same kind of words are used in Amendment No. 152 which states,That does not, of course, mean that that provision will exclude all other considerations. However, the amendment seeks to place a provision on the face of the Bill that simply to take into account all the other factors that appear in these 148 pages of legislation will not be the sole preoccupation of the Home Office but there will also be a clear duty to take into consideration the way in which this legislation will affect the interests of the asylum seeker and the refugee. We have had a useful debate. Many good points have been made, not least by the noble Baroness, Lady Oppenheim-Barnes, who talked about the sight of tiny children in their mothers' arms. The noble Baroness, Lady Williams of Crosby, reminded us of the bench-mark in the Government's own White Paper. A series of other points were made, including that made by my noble friend Lord Sandwich on the question of school meals, to which the Minister responded. I was grateful for that response. I know that my noble friend will also be grateful for it. These are questions that go to the heart of the support that is given to one of the most vulnerable groups of people. Every one of the children's organisations that I mentioned in introducing the amendments said that they supported the terms of these amendments and that they would wish to see them incorporated in this legislation. With the passage of this Bill we should not leave the situation any less favourable than that which applied under the terms of the 1989 Children Act. My fear is that we have taken away the safeguards of that legislation and we have put nothing else in its place. The words I have suggested may not be the best words, but I hope that between now and Report stage the Government will give further consideration to these issues. They have already said that they will meet the children's organisations to discuss related questions. I hope that they will discuss these matters with them too and perhaps when we reach Report stage the Government will bring forward their own amendments. I beg leave to withdraw the amendment."exercise their functions in such a way as shall best promote the welfare of asylum seekers and their dependants, if any, who require assistance under this Part of this Act".
Amendment, by leave, withdrawn.
[ Amendment No. 153 not moved.]
I beg to move that the House be now resumed. In moving this Motion I suggest that the Committee stage begins again not before 8.35 p.m.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.