asked Her Majesty’s Government:

Whether the United Kingdom breached European Union legal limits for air quality for sulphur dioxide and particulate matter in 2005 and 2006; and, if so, how and by when they will ensure that those limits are met.

Yes, my Lords. The Government reported breaches of EU limits for particulate matter and sulphur dioxide in 2005 and 2006. The sulphur dioxide breaches concerned a Bedfordshire brickworks. The Environment Agency, as the regulator, is managing the situation. Meeting limit values for particulate matter is a more general challenge associated with many sources including traffic in urban areas, and the UK air quality strategy sets out actions to be taken to achieve the limit values in the shortest possible time.

My Lords, I thank the Minister for that Answer. Is he aware of the Campaign for Clean Air in London and the fact that its one aim is to achieve at least the minimum World Health Organisation recommended standard for air in London? Is he aware that central London has the most polluted air in Britain, and that the whole of London is really in a bad way? Something should be done before the Olympics.

My Lords, what the noble Baroness said is correct. Of course if I had said it, there would be a bit of a problem. London is the dirtiest part of Britain. It is the capital. It is the largest city and the most dense. For that reason the air quality is the poorest in the centre, and action needs to be taken about that. The air quality is considerably superior to what it was 20, 30, 40 or even 10 years ago, and that has been dealt with by imposing limits. The Mayor’s low emissions project is receiving support from the Government, but the biggest problem we have to deal with is the pollution from urban transport.

My Lords, although there have been breaches in terms of sulphur dioxide, this has been one of the most successful programmes in reducing emissions worldwide, with huge reductions since the 1980s and improvement with regard to acid rain. The United States was the first country to introduce an emissions trading system for SO₂, which was remarkably successful. Should the Government not remind the United States of that success and press it to have a similar cap and trade system for carbon dioxide?

My Lords, that goes a bit beyond the geographical location referred to in this Question, but the noble Lord is right in the sense that we ensured that by 2001 there was 96 per cent less sulphur dioxide and 48 per cent fewer particulates than there would have been if we had not had policies for clean air. For the avoidance of doubt, by the way, although I read out the factual Answer regarding the Bedfordshire brickworks, the sulphur dioxide breaches there are based on a model. The actual measuring instruments around the outside of that brickworks, which are not owned by the Government, do not show a breach of the limits.

My Lords, I gather that the Department for Transport and their European colleagues are negotiating tighter emissions standards for light-duty and heavy-duty vehicles. Can the Minister say what percentage of reduction they are looking for?

The short answer to that question, my Lords, is no, I cannot.

My Lords, is it not the case that there are legal EU limits on nitrogen dioxide? The Minister has talked about the local authority and the brickworks dealing with this matter, but are the Government pressurising for these things to be done?

Yes, my Lords. The Question was about sulphur dioxide but there are limits for all kinds of things. The Question was in two parts and I have answered it in two parts. The only sulphur dioxide breaches in the country related to a brickworks. As I have explained, the figures were based on a model, not on the measuring instruments. That is a matter for discussion with the Environment Agency and the brickworks. We do not foresee a problem—there is no dispute between the Government and the brickworks’ owners.

On particulate matter, local authorities up and down the country have measuring instruments all over the place, as do central Government. Air quality is vastly superior across the country. Of the large urban areas away from the coast, Manchester is dirtier than Birmingham, while London is the dirtiest of the lot for the reasons explained in answer to the original supplementary Question.

My Lords, does my noble friend not agree that when, frequently, noble Lords opposite ask what use the European Union has ever been, this is one of the things that we should chalk up? We should regularly remind them that the setting of emissions standards is one of the great benefits that we have had from our membership.

Yes, my Lords, and I can give some figures to back that up. It is estimated that more than 4,200 premature deaths and 3,500 hospital admissions have been avoided, and up to 117,000 life years saved in 2001, compared with the scenario in which the policies for cleaner air had not been carried out.

My Lords, the Minister said that he replied to my Question in two parts because it was asked in two parts. I did not take in how and when this will be ensured. Will he repeat that part of his Answer for me?

My Lords, sulphur dioxide and particulate matter are separate issues and that is how I dealt with them. The Environment Agency, as the regulator, is managing the situation at the brickworks, where there were breaches in 2005 and 2006. Those breaches are based on a model, not on the measuring instruments around the outside of the brickworks. More instruments are being located around the outside. In other words, there is an issue between the model figures and the actual figures that were measured. The other issues are being dealt with by the UK strategy, which essentially means getting cleaner transport in our urban areas.

My Lords, I beg leave to ask the Question standing in my name on the Order Paper, having declared my interest on 3 July.

The Question was as follows:

To ask Her Majesty's Government whether, notwithstanding their assurances given on 25 June and 3 July, they will reassess the possibility that the omission from the protocol agreed at the June European Council of the reference in the Treaty of Rome to free and undistorted competition may be interpreted by the European Court of Justice as a change of policy.

My Lords, there is no need to reassess the situation. It is clear that the words used in the proposed protocol are substantially the same as the words used in the existing EC treaty. Moreover, the protocol is legally binding. Therefore, there has been no change of policy.

My Lords, I thank the noble Baroness for her reply. Was not the object of the omission of words which safeguarded the undistorted and free competition established by Article 85 to change EU competition law, as reported in Le Monde of 25 June, and enable Protocol 6 to foreclose on that fundamental principle to become but a matter for consideration, bereft of any legal efficacy, subservient to a series of obligations under Articles 1 to 3, which are wholly extraneous to competition law?

My Lords, it is difficult for me to put before your Lordships' House what the French president had in mind when making his proposals. There could have been a number of reasons—political, economic and other. The noble Lord’s underlying question is whether we are certain and secure in our understanding of undistorted competition. We agree with the Commission’s lawyers that, as a result not only of the protocol but of other articles in the proposed reform treaty, that remains the case.

My Lords, will my noble friend confirm that the competition rules of the European Union are not changed in any respect by the treaty that is under consideration? Will she go further into describing the circumstances in which President Sarkozy, doubtless to impress domestic opinion, put forward certain unacceptable ideas about changing competition references, and nobody else among all the leaders of government in the whole of the European Union supported him?

My Lords, my noble friend is absolutely right and is able to interpret perhaps more fully than me what was in the mind of President Sarkozy.

My Lords, will the Minister confirm that a majority of the 27 member states is in favour of a sharp competition regime—it is the French, the Germans, the Italians and sometimes the Spanish who hold out against it—and that the United Kingdom needs an active policy that promotes competition and builds alliances with other governments rather than the more passive policy that we have seen adopted by our Government on a large number of European matters in recent years?

My Lords, I agree with the noble Lord. The European Commissioner for Competition, Neelie Kroes, whom I had the privilege of meeting on a number of occasions in my previous role, was interested in the ways in which the UK was promoting competition. The noble Lord might like to talk to his colleagues about the Legal Services Bill. Neelie Kroes shares the Government’s wish to open up legal services to greater and appropriate competition; the Liberal Democrats do not.

My Lords, we are all extremely pleased that the Leader of the House has taken on the difficult, complex and important European Union brief. We look forward to her views on many other aspects of it in due course. However, I wonder whether she is completely right in this case. Have not the objectives of the European Union been changed by the proposal of Mr Sarkozy to remove from the protocol the reference to free and undistorted competition? We all know that the treaty is, according to the House of Commons committee, substantially the equivalent of the previous constitutional treaty, but it has in this case been made worse. Surely the judges of the European Court of Justice are guided by the objectives of the Union—they keep referring to them. When they find that the objectives have changed, how does she know that they will not change their judgments? She does not know.

My Lords, I am grateful to the noble Lord for his welcome. I am not taking on the entire European Union brief; I am keeping my hand in, partly because I shall be taking through the House the European Union legislation later in the year. Therefore, as Leader, I am answering Questions that may in some way be connected with that. My experience of working with the European Court of Justice and the European Union—the noble Lord will know that I served on the Justice and Home Affairs Committee for three years on behalf of the Government—is that there are many ways in which one is able substantially to protect important aspects of European Union law or the wishes of member states. Protocols are legally binding; I can find no precedent for the European Court of Justice saying that the protocol has less effect in a particular context than within the original articles. There may be a case in the future where the European Court looks at that matter, but we have no legal advice to suggest the opposite. The Commission’s lawyers, too, have no difficulty with this position.

My Lords, does not the noble Baroness agree that this whole matter shows how important strong institutions of the European Union are and that, in fact, the competition policy depends crucially on the attitude of the Commission? Therefore, the Commission stating that its powers have in no way been weakened is absolutely critical. Would she also be so good as to put in the Library of the House the study by the Dutch council of state that came to an exactly opposite conclusion to the scrutiny committee of another place—the Dutch council of state being a non-political body?

My Lords, the Dutch council of state has on many occasions been an important body in determining policy that comes forward from the Netherlands—but it is also, as the noble Lord said, an independent body. I agree that the Commission lawyers would look extremely carefully at the implications and impact of what was being proposed as they above any others would be mindful of the potential within the European Court of Justice and they are very clear that the protocol is legally binding.

My Lords, I am sure that my noble friend would be the first to accept that the Government have in mind the great difficulty of ever predicting any opinion that the European Court of Justice will hold. In that light, what is the Government’s confidence in predictions in this matter, given the arguments advanced in the European Court of Justice on the Viking case and other cases about to be decided by it, and confirmed by the Advocate General in that and another case, that the likely result will be that freedom of competition and so on will have to be balanced against a right to strike, used proportionately—whatever that means—at European level? That seems the view of most commentators who are expert in this field of what the court is likely to give as its reasons in the next month or so.

My Lords, it is very difficult to speculate on what the Court will or will not do in the next few weeks. Again, my experience of the European Court of Justice is that speculation does not necessarily lead to the final determining decision. As my noble friend said, we shall have to look at what transpires in that individual case.

As for the right to strike, noble Lords will know that in the protocol established around the Charter of Fundamental Rights those issues have been dealt with by the UK Government within the red lines.

asked Her Majesty’s Government:

What specific tasks are now being undertaken by members of the Armed Forces deployed to the Basra region of Iraq.

My Lords, British forces in Iraq continue with vital security sector reform tasks, including the mentoring and training of the Iraqi army, navy and border enforcement department, as well as providing support to Iraqi security force operations. They also undertake where necessary targeted strike operations and a range of force protection and logistic duties in support of the multinational forces mission.

My Lords, I am grateful to the Minister for that reply. He mentioned the Iran border enforcement. In the light of the continual risk to our troops from explosive devices and weapons apparently supplied from Iran, can he tell the House how many people found to be carrying equipment of use to insurgents British forces have detained? Will the Government now consider publicly displaying captured hardware when there is clear evidence of Iranian involvement?

My Lords, the noble Lord is right to stress this issue, which is of significant concern to Her Majesty’s Government. We have been focused on the whole issue of border control between Iran and Iraq and we have put a lot of effort into training the Iraqi army in its competence in border control. On the numbers of people, I shall look into the matter and write to the noble Lord. As for publicising in a more imaginative way the arms that we have successfully captured, that is something that I shall take back to the ministry and consider.

My Lords, press reports indicate that three rockets hit our base at Basra airport yesterday, thankfully with no casualties. As we approach what one hopes is the endgame, will the Minister assure the House that the maximum realistic protection will be given to our base at Basra airport, given that the situation may well be exploited for propaganda purposes by the insurgents?

Absolutely, my Lords. The noble Lord is right to focus on force protection. As we focus our operations from the main operating base at the airport, we are investing significantly in force protection. It is not just about hardened accommodation; it is about a number of different measures, some of them involving equipment that we are bringing into use. As regards development in the future, it is clear that we will need to continue to invest in force protection as the tactics of the enemy develop, as they have in the recent past.

My Lords, does the Minister recall that towards the end of the last Session very strong feeling was expressed in this House about the most unfortunate arrangement arising from the Cabinet reshuffle in which the Secretary of State for Defence was Secretary of State for Scotland as well? The Minister kindly undertook to convey those strong feelings. At a time of the greatest strain for our Armed Forces and for the Ministry of Defence, many in this House found that double-hatting arrangement unacceptable and we strongly urged that it should be corrected as soon as possible. What reply did the Minister get regarding his undertaking to convey those feelings? Could he lay to rest once and for all the issue that seemed to be difficult to answer yesterday in this House—the suggestion that the Secretary of State for Defence was not properly aware of the Prime Minister’s visit to Iraq before it took place?

My Lords, as regards the second half of the noble Lord’s question, from my recollection of yesterday’s Statement my noble friend the Leader of the House answered very clearly that question relating to my right honourable friend the Defence Secretary. On the first part of his question, I took back the strongly expressed views of the House. I have had conversations on the matter with my noble friend the Leader of the House and the Secretaries of State of both departments in which I have responsibilities. We continue to discuss this matter.

My Lords, in defining the new tasks of the Army in Iraq, which will result in a reduction in the numbers out there, will the Minister comment on whether the number withdrawn back to the UK will be deployed in Afghanistan, or can he reassure us that NATO is now pulling its weight in delivering the number of people required in Afghanistan for the operations there?

My Lords, as the noble and gallant Lord will know, our decisions relating to the two operations are completely separate, so I can assure the House that there is no linkage between the decisions that we have made in Iraq as the security situation has improved and the Iraqi forces have taken over responsibility and any decisions that we may make with our NATO partners with regard to the Afghanistan theatre.

My Lords, pursuant to the Minister’s response to the supplementary of my noble friend Lord King, when does he think that the conversations with the Leader of the House will bear fruit or, indeed, reach a conclusion?

My Lords, the House will know that I like to get a move on with things. Therefore, I hope that it will be possible to resolve them speedily.

My Lords, as regards the border between Iran and Iraq, when we have the 2,500 troops left in Iraq in the spring, as we hope, how many Iraqis will also be available for service there?

My Lords, the noble Baroness highlights the central importance of the capability of the Iraqi forces. That capability is focused mainly around two divisions of the Iraqi army: the 10th division, which we have now successfully trained, and the new 14th division. We are talking about tens of thousands of troops, which will make a significantly greater contribution than has been made by the British Army. The key role of the British Army and our forces is to mentor these troops. The key to this will be developments over the coming months, which we hope will allow us to make further drawdowns to 2,500, as the Prime Minister announced yesterday.

My Lords, how many troops do we now have in Kuwait and will the number be increased in the coming months?

My Lords, I am aware of the press coverage relating to the location of our troops in the region. I am not able to confirm whether we have troops located in Kuwait and whether that is likely to change in the future. I can say that as we make progress relating to the drawdown of our troops in MND (South-East), we expect there to be an increase of approximately 300 to 500 troops in the region, but at present I am not able to say in which countries that will occur.

asked Her Majesty’s Government:

What assessment they have made of recent developments in Burma (Myanmar).

My Lords, we condemn the violent manner in which the Burmese Government have dealt with recent peaceful demonstrations in Burma. The regime has again shown its contempt for human rights and democracy. We remain gravely concerned about the whereabouts and welfare of many of those detained. The UK has been working with others in the international community to put pressure on the regime to end the violence and engage in a genuine process of reconciliation.

My Lords, I thank the noble Lord for that encouragingly robust reply. I am sure that this House would endorse the comments made by his right honourable friend the Prime Minister in his statement of support for the courage of those who demonstrated peacefully and his deep concern about the SPDC’s brutal response.

Will Her Majesty’s Government raise as a priority the plight of some of the ethnic national groups? I was with the Chin people just over two weeks ago, and there is very grave concern about the plight of that group and others, such as the Karen, the Karenni, the Shan, the Kachin and the Rohingya peoples. They are trapped in closed areas and denied any access by international aid and advocacy organisations, and their situations may be even worse than that which has been reported for other people.

My Lords, we all share with the noble Baroness the reaction to those extraordinary sights of the monks confronting armed troops in Burma, but we also recognise that the groups to which she referred have had much less visibility and publicity for their very long multi-year struggle, and we will certainly make sure that in any process of reconciliation their interests are respected and that they are involved in any negotiations.

My Lords, we are all horrified by what has been going on in Burma, by what is happening now and by what may happen. I know that the Minister has been active in talking to various international leaders. Does he agree that the position of China, for which Burma is really nothing more than a client state at the moment, is absolutely crucial in this? If it can put pressure on, there will be real pressure, and without its help we will not get far. Does he further agree that Japan has a part to play in this? Japanese investment in Burma is enormous. At the moment, it does not have strong sanctions, if any. Will he ensure that he will include Japan in the list of people to whom he is talking? So far, he has not done so.

My Lords, the noble Lord makes a very important point. The big difference on this occasion versus the last time that there were these kinds of protests in Burma is the role of Asia. Last time, Asia generally passed by on the other side and turned a blind eye to what had happened. On this occasion, we have seen very strong statements by ASEAN, a constructive role by China in securing the ability of the UN envoy to visit, and the commitment of the new Government in Japan to work for a process of reconciliation. I add to the list the Government of India, which is also a major economic partner, and we hope that they will similarly express their support for reconciliation.

My Lords, my noble friend recently visited Beijing and noted the movement by the Chinese Government to a more internationally consensual position, for example, in respect of Zimbabwe. What further examples can he give of movement by China in respect of the Burmese situation, particularly as a result of it holding the Olympic Games?

My Lords, my noble friend makes a very good point. In addition to securing the visa and the access to Burma of the UN envoy, Mr Ibrahim Gambari, China participated last Friday in the debate in the UN Security Council and was again playing a constructive role. That mirrors action that we are seeing by China on issues such as Darfur and Zimbabwe. China is engaging and is becoming a more responsible international stakeholder.

My Lords—

My Lords—

My Lords, there is time for both, but the noble Baroness, Lady Park, has tried to speak a couple of times. She ought to be heard, and then the noble Lord, Lord Avebury.

My Lords, what plans have Her Majesty’s Government to respond to the humanitarian crisis in Burma and, in particular, to provide financial help and support generally on the border to the many displaced people? Moreover, can we be assured that when Mr Gambari visited Burma he asked to see the prisoners in the jails? If not, why not?

My Lords, the noble Baroness can be reassured that we are a major contributor of humanitarian assistance and are looking to see what more we should do; the Prime Minister referred to that in another place. I will need to look into the issue of visits to prisoners. I do not know about that detail of Mr Gambari’s visit.

My Lords, when the Prime Minister met some of the demonstrators last Saturday, he called for a stepping up of international pressure on the regime to end violence and to make genuine moves towards restoration of democracy. Would the noble Lord consider a suggestion made by Human Rights Watch in testimony before the US Senate that banking sanctions be imposed on the regime and its leaders, which has proved effective in North Korea?

The noble Lord mentioned in particular the violence against monks. Does he think that this matter can be referred via the United Nations Human Rights Council to the International Criminal Court, so that preparations can be made to prosecute the offenders who have been guilty of gross atrocities against the monk community in Burma?

My Lords, on the last point, that would require a reference by the UN Security Council as Burma is not a signatory to the ICC, I believe. All bets are off in terms of the right set of sanctions that may be required to put pressure on Burma. The noble Lord is right to draw attention to banking sanctions, which have proved enormously effective in North Korea and Sudan and should very much be on the table for discussion.

moved Amendment No. 1:

My Lords, as has been mentioned, this amendment follows quite a lot of discussion in Committee and on Report, and we have spent a fair time going over this ground. It is true that the Greater London Assembly is elected to represent the interests of the people of London, so it is rather silly that it can be over-ridden without a mandate. London does not have a presidency any more than the country does.

It is a great shame that the amendment was not able to be included in the Bill or accepted by the Government at an earlier stage. Perhaps this is one of the problems emanating from the Grand Committee procedure, whereby voting can take place only on Report. However, we have read the advice from the Clerks and I know that there is controversy over the admissibility of amendments at Third Reading when they have been debated at other stages. We shall need to reflect on this for the future, but I thought that I would tell the House that at this point, if the amendment is pressed, the Front Bench—or, rather, all of us—will have to abstain.

My Lords, I hope that my noble friend will not feel tempted to accept the amendment. As the noble Baroness who moved it rightly pointed out, we have discussed this matter again and again. I took the trouble to look up what we said in Committee and saw that on that occasion the wording was precisely the same as Amendment No. 2. We had a very thorough discussion about this in Committee and on Report, as has been said.

I was opposed to the amendment from the very beginning because it seemed to be an attempt to redefine the roles of the London Assembly relative to those of the Mayor. If we had wanted a more powerful Assembly, we should have opposed the abolition of the GLC. You cannot now write back into the powers of the Assembly powers that would have once belonged to the GLC or a similar body. We have a very different legislative framework now, which has been accepted by everybody, and I do not think that at this stage of the Bill we can revive this discussion, which has taken up quite a lot of time at each stage.

My Lords, I am concerned that requiring the Mayor to seek the Assembly’s advice before issuing a direction would add unwarranted delay to the planning process. New arrangements are being introduced to improve delivery, particularly of housing, and to speed up the planning process without adding undue complexity—an objective that I believe we all share. The new clause would undermine those objectives. The Mayor is the decision-maker, and we should not confuse this with the committee system in local authorities. Assembly Members can take part in the thorough consultation process which applications now undergo. It is absolutely right that they are also able to scrutinise the Mayor’s decisions, but it is not appropriate for them to be consulted in the way suggested in this amendment.

My Lords, I am puzzled by the persistence of the noble Baroness. The present procedure, which has run for a few years, and which is well tried and tested, has not inhibited her or her political colleagues at any level in severely criticising the actions arising from a direction given by the Mayor. They have not hesitated to make their criticisms public or to attempt to embarrass the Mayor retrospectively. The noble Baroness is now saying that they want the chance to do that prospectively.

With great respect, this is a time-wasting, additional layer of bureaucracy, which the Liberal Democrats are constantly telling us they wish to see removed. That is a laudable objective, but in the light of the experience of the noble Baroness and her colleagues in the Assembly, I hesitate to believe that what she proposes will move forward one jot the quality of the oversight that they have had over the Mayor. I shall not say that the amendment is a waste of time, but far better things can be done in the Assembly than to call for this pre-direction scrutiny.

My Lords, noble Lords clearly recall our debates on this issue on Report, when I opposed this approach on two grounds. First, as my noble friend Lady Turner has said, it seeks to redefine the relationship between the Mayor and the Assembly. It is extremely important that the Assembly should focus on retrospective scrutiny of the Mayor’s decision, and should not confuse its role by becoming embroiled in operational decision-making. Secondly, as the noble Baroness, Lady Valentine, said, it would lead to unacceptable delays in issuing time-critical directions.

I want to address the point raised by the noble Baroness, Lady Hamwee, especially since we seem to have inspired it from our own Front Bench. In courtesy, therefore, I am happy to address it. The noble Baroness has attempted to address the notion of the time-critical element in the new clause by including a new stage in the process. Under Amendment No. 1, the authority’s monitoring officer may now allow the Mayor to issue a direction without first sending it to the Assembly if he deems that any delay would be against the public interest or prejudice the interests of the GLA or the body to which the direction will be issued.

I wish that I could be more gracious but I believe that the additional step adds another layer of complexity and bureaucracy to a proposal that has little benefit in practice. With the best will in the world, I cannot see how this can do anything but add further to the delay in issuing directions and guidance. An equally important point is that it would place the authority’s monitoring officer in a rather hapless way into the process. It requires him to adjudicate between hierarchies of different directions, some of which may seem to be more significant than others. It puts him in the position of arbitrating between the Mayor and the Assembly. I do not think that, with the best will in the world, that will help.

There is another problem: the definition of “direction” in Amendment No. 2 includes directions and guidance issued by the Mayor. Here we have the prospect of another avalanche of internal documents and bureaucracy. All that adds up to a clear threat to the business of getting on with operational delivery. I shall expand a little on that.

These amendments would mean the Assembly engaging in executive decision-making proactively rather than retrospectively. As my noble friend Lady Turner said, noble Lords know that the GLA model of government, which is successful, is built around a strong, decisive mayor who is able to take often tough or difficult decisions and an Assembly which holds him publicly to account for those decisions. A fundamental principle is that the Mayor should be able to take operational decisions, including directions, without first having to refer to the Assembly. An Assembly power of call-in at that late stage would serve only to slow down the process and make it more bureaucratic and less efficient. The Mayor’s powers to issue directions and guidance to three of the functional bodies—TfL, LDA and, through Clause 29, LFEPA—are crucial for ensuring that those bodies deliver the Mayor’s priorities for London, the priorities that Londoners elect the Mayor to fulfil.

The Mayor also has specific direction-making powers. For example, on transport, the Mayor issues directions under Section 174 of the GLA Act in relation to setting TfL’s public transport fares. On planning, the Town and Country Planning (Mayor of London) Order 2000 specifies that the Mayor has 14 days from being notified of a borough’s decision on a planning application to decide whether to direct the borough to refuse the application. The Government are proposing a similar timetable in relation to the Mayor’s new power under the Bill to direct a borough that he will determine a planning application of potential strategic importance. The Mayor has used his powers of direction proportionately since the GLA was established, but I stress that directions do not come out of the ether from nowhere because the policies underpinning many operational directions have already been subject to the authority’s internal process of policy development, debate and scrutiny—there is no more active Member of the Assembly than the noble Baroness—which is where the Assembly scrutinises them.

Allowing the Assembly to influence the Mayor’s operational decisions at this late stage serves only to blur the boundary between the Authority’s executive and scrutiny functions. It is a clear risk that the Assembly would end up scrutinising the outcomes of decisions that it had helped to make. There are parallels to be drawn with the issuing of directions and guidance to non-departmental public bodies by the Secretary of State. In such circumstances, Ministers rarely consult Parliament before they exercise such powers and fully expect Parliament to scrutinise their actions retrospectively, should it so wish. I believe that the principle of retrospective scrutiny of operational decisions with a clear separation between executive and scrutiny functions is the right and consistent approach for the GLA. I hope the noble Baroness can be persuaded that there is a good case for withdrawing her amendment.

My Lords, I am grateful for the comments and for the compliments that, I think, came from one or two noble Lords. However, the fact that the Assembly has been doing its job well does not deter me from my argument that this additional tool would be useful. As I hope I made clear, the wording is not the same as in previous stages of the Bill; it has benefited from the debate on the amendment. It does not amount to a veto; it is a pause for reflection. In connection with the planning process, I have dealt with the position on applications, and in the context of a substantial and significant application, 14 days would be a short time. I resist any suggestion that from these Benches we would attempt to block the provision of more affordable housing in London. I led a lot of people through the Lobby, with the Government, on that issue at the previous stage. Consultation, to which the noble Baroness referred, is a different matter. The noble Lord, Lord Graham, says that the Assembly has not been inhibited in its criticism. I will take that as a compliment rather than as an answer to the amendment.

On the point about bureaucracy, this version of the amendment was drafted by the then monitoring officer, the whole Assembly having considered that it wanted to pursue the matter. Perhaps monitoring officers look for bureaucracy. I do not believe this one did. Certainly she was used to arbitrating between the different arms of the Greater London Authority. By definition, because of subsections (2) and (3), it could not add time. Also by definition, and this is where I shall finish, any matters which would be subject to this would be controversial. The fact that the Mayor has to issue a direction to a functional body—a functional body over which he has so much influence, indeed I would say control in a couple of cases—would indicate that the direction was controversial. The Greater London Authority Act 1999 does not require the Assembly only to deal retrospectively with matters. Section 59(1) says:

“The Assembly shall keep under review the exercise by the Mayor of the statutory functions exercisable by him”.

That does not read to me as precluding prospective action. Therefore, while understanding precisely the advice about what one should do at Third Reading, I wish to test the opinion of the House.

moved Amendment No. 3:

My Lords, I shall certainly try to set the noble Baroness’s mind at rest because it is important to be clear on these things. She explained the precise position for reserved matters. On the other matters that the noble Baroness wants to clear up, we have always been clear that the Mayor should take only the decisions that are appropriate for him to take. The noble Baroness’s Amendments Nos. 3 and 4 relate to her concern that the Bill does not provide for any decisions over the subsequent approval of details required under conditions and consents, et cetera, attached to planning permissions to be delegated to the relevant borough instead of being decided by the Mayor. Let me reassure her on this point.

We have provided in Clause 33, under new Section 2C, for decisions on the approval of specifically defined reserved matters related to outline planning permissions granted by the Mayor to be delegated back to the borough. But it is not necessary to do the same in relation to any subsequent approvals required by planning conditions attached to outline or full planning permissions. The wording of the individual condition will set out who will be responsible for making the subsequent decision. The wording of any planning condition attached to a planning permission is the responsibility of the decision maker. If the decision maker is the Mayor, he will take account of any conditions that the borough has asked him to impose on any permission as well as any he wishes to impose. Therefore, if the condition requires subsequent approval of a detail which is best decided at the local level, such as approval of external materials or design issues, the Mayor can specify in the wording of the condition that it is to be the borough, rather than him, that is to be responsible for dealing with that approval. This applies equally to any conditions attached to conservation area consents where approvals may be required.

As I have said, we do not consider it appropriate to put in place a blanket provision that all approvals of details will be dealt with by the borough instead of the Mayor because it is right to allow discretion to the decision maker. However, we are absolutely clear that the vast majority of such decisions will be appropriate for the borough rather than the Mayor. In order to make this absolutely clear, we will put it into the circular that will accompany the new powers, which will in turn be subject to consultation.

My Lords, I thank the Minister for that reply. There is a danger of confusion here. There is danger of people assuming that others will do things and that perhaps the Mayor may take more responsibility than he may need. If it is made clear in the circular, which the Minister has put on the record, that satisfies me for today. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 4 not moved.]

moved Amendment No. 5:

My Lords, very similar issues arise on the noble Baroness’s Amendment No. 5, which would provide for the Mayor to delegate any decisions on subsequent approvals required under hazardous substances consent and conservation area consent to the relevant borough. As I said previously, we are concerned that decisions are made at the right level. For the reasons I gave in relation to Amendments Nos. 3 and 4, it is unnecessary to say anything in the Bill in relation to the delegation of subsequent approvals under conditions and conservation area consents. That can be dealt with in the wording of individual conditions. It is also unnecessary to say anything more on hazardous substances consent because new Section 2B(5)(b) in Clause 33 already makes it clear that the Mayor will be the hazardous substances authority only for the purposes of determining the hazardous substances consent connected with the planning application before him. That is where his role as hazardous substances authority formally ends.

If the Mayor attaches any requirements for subsequent approvals to the hazardous substances consent—for example, the specification of containers for storing the substance—they will automatically fall to be considered by the local authority, the borough, acting as the hazardous substances authority. The borough is defined as the authority under the Hazardous Substances Act 1990, but it will of course have to act on the advice of the Health and Safety Executive. That, I hope, puts the position on the record. Again, if there is any possibility of confusion, we will make sure that it is included in the circular.

The noble Baroness did not ask about our specific reference to listed building consents requiring subsequent approval of details in this part of the Bill, but I will set out the position. This procedure is specifically identified under the Listed Buildings Act and may be used, for example, where specific detailed additional information is needed before a listed building can be altered. In this Bill we are seeing the interrelationship between several different pieces of legislation which ascribe responsibilities and actions to different bodies as appropriate. That explains why the position is slightly more complex.

My Lords, I thank the Minister for that reply and we now have the explanation on the record, which is what is required. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 35 [Amendments of section 106 of TCPA]:

moved Amendment No. 6:

My Lords, I have sympathy with both of these amendments, but I think that they would be better dealt with in guidance rather than in legislation. On Amendment No. 6, it is not appropriate that legislation should seek to effect the transfer of Section 106 funds to a borough, which would create unwarranted bureaucracy. I agree that the Mayor should transfer Section 106 funds to the body responsible for delivery. That might be a borough, but it might also be Transport for London or a training provider. Given that, these arrangements should be addressed in guidance.

On Amendment No. 7, given my experience of the Mayor in his planning role, I am unable to envisage a circumstance where he would not be looking for Section 106 money. However, the important issue raised is that the Mayor should have regard to the borough’s priorities for Section 106 money. That is a valid point and again should be addressed in guidance.

My Lords, I am sorry that the noble Baroness did not receive the letter of 9 July; I should have made sure that she did. I am happy to put on the record what the letter said in relation to the commuted payments. But, as the noble Baroness, Lady Valentine, has raised the principle of the main amendments, I will briefly address those amendments and then come on to the detail.

We debated both amendments on Report and I shall not repeat the reasons why I cannot accept them but, for the record, obligations are private agreements which are usually negotiated between local planning authorities and developers, or offered unilaterally by developers, for the benefit of the local planning authority. As the noble Baroness knows well, their purpose is to mitigate harm that would arise from a planning proposal and make acceptable in planning terms a proposal that otherwise could be refused planning permission. Therefore it is entirely logical and necessary that where a planning application is determined by a London borough, it should be the responsibility of the borough to lead on the planning obligation; and when it is the Mayor who is determining an application, it should be him who leads.

As regards Amendment No. 6, it is wrong to assume that all the impact arising from a development would necessarily be local or that all the required mitigation would be provided by the boroughs. Each circumstance will determine and depend on the individual development proposal, obviously, and each planning obligation will clearly set out in terms the details of the mitigation to be provided, who will provide it, when it will be provided and the level and timing of funding for the mitigation.

But clearly it is the responsibility of the local planning authority—whether that is the Mayor or the borough—to distribute any sums that are due under the obligation in accordance with the terms of the agreement or according to the undertaking. For example, the Mayor acting as the local planning authority may agree that it is necessary for the developer to contribute financially to the provision and maintenance of open space. Providing that open space could be the responsibility of the borough and, if so, the Mayor would pass the agreed sum received from the developer to the borough in accordance with the obligation. But these could be, for example, a large development which could affect the capacity of the strategic road network and the terms of the obligation could require funds to be made available to carry out improvements under the control of TfL. In that case, clearly, the local planning authority—whether it is the Mayor or the borough—would pass the moneys on to TfL to carry out the works. The noble Baroness’s amendment would simply add delay while the money moved from the Mayor to the borough and then might need to pass back to the Mayor or another party. I do not think that is sensible.

Amendment No. 7 would require the Mayor to have due regard to the views of the borough which would have decided the application if the Mayor had not taken it over before he decides not to modify or discharge an obligation under Section 106A. I understand the intention behind the amendment. I fully agree that it is important that the Mayor should take account of the views of the local authority in considering whether to modify or discharge an obligation he has been responsible for agreeing. That is why the Bill sets out in Clause 36(4) a new subsection (12) which requires the Mayor to consult the local planning authority before exercising any function under Section 106A. We are clear that our wording requires the Mayor to consult the borough and take account of its views before he reaches a decision on whether he will or will not agree to modify or discharge an obligation. Essentially, the Mayor is making a planning judgment. This means that he must take account of all material considerations, including the response to consultation. Therefore I believe that the wording achieves the effect the noble Baroness wants to see.

I turn very briefly to the noble Baroness’s concern about how commuted payments for off-site provision of affordable housing, and pooled payments, where the combined impact of a number of developments creates the need for infrastructure, would be dealt with under the new arrangements where the Mayor acts as a local planning authority. She was particularly concerned about whether funding provided through Section 106 agreements for off-site provision of affordable housing would be spent within the borough where the development was sited. I can reassure her on this point. One of the things that has happened in the past few months is that we have issued planning policy statement 3 on housing. That makes clear at paragraph 29 that,

“off-site provision [of affordable housing] or a financial contribution in lieu of on-site provision … may be accepted as long as the agreed approach contributes to the creation of mixed communities in the local authority area”.

I shall be very happy to send the noble Baroness a copy of that.

On the pooled contributions, Circular 05/05, which sets out government policy on planning obligations and applies to local planning authorities, including both the Mayor and the boroughs, states at paragraph B21 that pooled contributions may be acceptable where the combined impact of a number of developments creates the need for infrastructure. It goes on to say that pooled contributions can take place between developments and between local authorities where there is a cross-authority impact. However, before pooled contributions can be sought, whether by a borough or by the Mayor, the need and justification for the infrastructure should be set out in advance in development plan policies, which undergo rigorous independent testing. That requirement ensures that pooled contributions can be sought only in appropriate circumstances.

Circular 05/05 also puts in place a further series of safeguards. Paragraph B21 makes it clear that there should be a clear audit trail between the contribution made and the infrastructure provided, and paragraph B24 says that, in the event that contributions are made towards specific infrastructure but that infrastructure is not provided within an agreed timetable, arrangements should be made for the contributions to be returned to the developers. I will send the noble Baroness a package of information—the letter that she never received, planning policy statement 3 and Circular 05/05—which I hope will take care of her questions.

My Lords, I am grateful to the Minister for that. As she identified, the most controversial situation is likely to be where there is off-site provision or provision not geographically adjacent to the site—highway infrastructure, for instance. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 36 [Planning obligations: further provision]:

[Amendment No. 7 not moved.]

Clause 40 [London Waste and Recycling Board]:

moved Amendment No. 8:

My Lords, I support the noble Baroness in this amendment; it is right that she brings it to the attention of the House after our previous debates. As I understand it, the Mayor says that he is taking his bat and ball home because this proposal is not workable. What is sad is that that response is something of a self-fulfilling prophecy. It is not the Government’s responsibility to get the Mayor out of a pickle, but this is strong leadership which needs redirection.

My Lords, I have taken an interest in these matters before. It puzzles me that the noble Baroness believes that the amendment will bring about the solution. Surely the solution is to have amity between all the parties concerned. The parties may in due course be faced with a direction from the Government through legislation that the Mayor of London should chair the board, regardless of who they think might be appropriate for the position. Given the personalities involved, I do not think that that course of action is likely to make much progress.

I have already declared my interest as joint president of London Councils. I have not had any representations from it on this matter, unlike the noble Baroness—she has received many representations, so she has an advantage. I should have thought, given my close association with the London Borough of Enfield and London Councils as a body, that the concern and agitation that she describes among the London councils would have been brought to my attention. It is not a happy situation: the Mayor of London and others are playing politics and attempting to use their muscle by contributing and withdrawing their powers. However, I am not certain that the amendment will help us to achieve the objective of finding—sooner rather than later, through discussion, agreement and perhaps compromise—a basis for making progress.

In reminding us of the words of the noble Lord, Lord Rooker, the noble Baroness offered a perfectly sensible way forward. I took a close interest in the Bill at its previous stages and read all the documentation. I accepted the argument that we needed to move from where we were to where we hope to be, but the move favoured by the Mayor was not acceptable to the London councils. I hesitate to say that what we have now is a compromise or a halfway house, but it is politically as far as we are likely to get. I am pragmatic about these matters; it is no good wasting time or money here or in any other forum by conducting an exercise in power. I await the Minister’s thoughts on the amendment. Although the current situation is not ideal, it will not be improved by the amendment.

My Lords, when the noble Baroness read out my words, I hoped that there would be no hostages to fortune in them. It is clear that what I said on Report is the position that we have reached today. We have before us a Bill and not an Act. The board is about joint working. We want it to deliver change in waste management and it has been created to help to deliver the Mayor’s strategy and the boroughs’ functions. We therefore want the board to determine its own priorities; they will not be set out by the Government. It must adopt a partnership approach, but the amendment is unquestionably anti-partnership. If there is a partnership approach and good-quality leadership, there will be success; if there is no partnership and poor-quality leadership, there will be failure. It is a simple as that. That applies to all the parties concerned.

We want the Mayor to chair the board to give it strategic direction. It would be an excellent vehicle for delivering real change and taking forward his strategy. As soon as the Bill receives Royal Assent, we will work closely with willing partners to ensure that, by next April, the priorities in and methodology for disbursing the fund, whatever sum of money is involved, are agreed. I know nothing about the announcements being made in the other place today.

We cannot support the amendment because it is anti-partnership. If the Mayor does not wish to participate, that is ultimately a matter for him and not for the Government. We have set out the framework in the legislation. We believe that, with good leadership and willing partners, the board can be a success, but we cannot determine from the centre its priorities and its chairmanship. We would rather the Mayor chaired it, but if he chooses not to do so, that is his decision, for which he, not the Government, is responsible.

I do not criticise the noble Baroness for coming back to the matter at this late stage of the Bill, but it makes no difference to our position. I have nothing to add to what I said on Report about either the money or the structure. I cannot comment on what was done or said during the Recess. When the Bill receives Royal Assent, the Government will seek to work with willing partners to bring about a successful outcome. A successful arrangement next April is in the interests of the Government and the boroughs. Work will commence once we have Royal Assent. Although the legislation predates my taking over responsibility for it in Defra, I understand the background to it. Once the Bill becomes an Act, changes may be made by the parties concerned.

My Lords, I understand that the £19 million was subject to the Comprehensive Spending Review, which is being announced today. It was a pretty firm commitment from the Minister that the Government had already committed £19 million for 2008-09. That is the basis of the fund as I understand it.

The amendment is technical, as I am sure the Minister understands, because the matter needs to be brought back to the House. The fact is that this is something that the House is willing to happen because of the lack of consultation between the departments. That question was raised in this House. The fact is that something has been willed, but now it looks as if the Mayor is withdrawing from the whole scheme. The Minister has not really addressed that.

In September this year, only two months ago, the Mayor announced—he did not slither it out but actually announced it—that he was withdrawing all support and co-operation from the London Waste and Recycling Board. As we know at the moment, because we are going through the Local Government and Public Involvement in Health Bill, there is plenty of legislation in which things happen well in advance of that legislation becoming an Act. It was clear to me when we discussed this that it was very much the Government’s intention that this board and the fund should be there. This is a large sum of money just to be wafting away on the back of the suggestion that things will come together when the Bill is an Act. The Mayor has said that he will not support this board. That is what I am asking the Minister about. What action will be taken to bring this board about and to secure the money for the waste disposal fund to support the Government’s initiatives on waste disposal for London, as we all discussed? This is going awry.

The amendment is the only way in which I can get the matter before the House, but I may have to bring forward other questions in future. For the moment I am asking the Minister why this has gone awry and whether he is aware that it has gone awry. What will be the outcome of the money that has already been committed and I hope will continue to be committed in the Comprehensive Spending Review today? If the money is there, a fund is needed to put it into and a board is needed to run that fund. The board has been set up within legislation but appears to be falling apart. I do not know whether the Minister can answer any of that. The matter needs further discussion, but I thought that it was appropriate to raise it today in view of the legislation that is going through the House.

My Lords, this is not a criticism because this is part of our process, as the House returned from recess only yesterday, but I understand that the amendment was tabled only yesterday. It is fairly narrow—and I have come briefed only on that narrow question. It does not raise the issue of the money or other matters, although with the statements made over the summer I fully accept that those issues are bound to be germane to the argument. When the Bill has Royal Assent we shall use our best endeavours with the willing partners to get the board set up. We want to do that as soon as Royal Assent is achieved.

I do not want to go picking over what was said during the Recess. I have just been handed a note that tells me that the £19 million for 2008-09 is secured and committed subject to the details of the CSR. In fact, that does not make sense; if it is secured, why is it subject to the details of the CSR? Do we have the £19 million or not? I do not hear a voice from my officials. That is why I did not want to go down this road on the money side of things, because it was not part of the briefing. The Chancellor of the Exchequer has made his speech in the other place and I have nothing to say other than what I said in the summer, which I said in good faith because I read out what was put in front of me.

We want this board set up; that is in the interests of London. Who chairs it and what its priorities are will be up to the board. In answer to the earlier question, the money is secured for 2008-09. I thought that I should make that clear. That money is there. I cannot comment on the £6 million. It is our wish that the Mayor should chair the board. If he does not, that is up to him. Immediately Royal Assent is obtained, we and all the willing partners involved will use our best endeavours to try to get the board set up so that it is a success for London. In many ways, this is a final opportunity to comment on the matter in the context of the Bill, but if we do not get it right there will be opportunities to ask questions about it, and I have no doubt that I would rightly be hauled back before the House.

My Lords, I thank the Minister for that reply. We shall probably ask questions to get to the bottom of what is going on and to secure the Government’s support for the fund—which I know that we have—and for the Mayor’s contribution to it. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 49 [The Board's expenditure: transfer of powers and other provisions]:

moved Amendment No. 9:

My Lords, as on the last occasion when we debated the subject of this amendment, I declare a non-financial interest as a former Member of Parliament for the City of London. My noble friend Lord Jenkin has most effectively drawn attention to a number of important issues during the consideration of this Bill by your Lordships’ House. The continued independence of the Museum of London, as he said a moment ago, and in consequence the need for equidistance between the museum’s two sponsors in the future oversight arrangements are certainly of importance. Those of your Lordships who know the museum will need no convincing of its value to London and indeed to the community as a whole.

As my noble friend Lord Jenkin said, this Bill repeals Section 5 of the Museum of London Act 1965, which provides oversight by Parliament. Ultimately, that section made the museum susceptible to scrutiny through the Public Accounts Committee. As your Lordships know, that is a House of Commons cross-party forum where officials are questioned on the public expenditure of the bodies for which they are responsible. It is, if I may put it this way, an “on the merits” forum. It is important that future arrangements proceed on the same basis. Like my noble friend, I welcome the progress that has been made in seeking to resolve this matter.

I will raise one point with the Minister by way of follow-up to what my noble friend has said. Under the legislation as it will be when the Bill is enacted, the City and the GLA will, albeit as a result of different legislative provisions applying to each, have similar powers of oversight of the museum. That is clearly the Government’s intention and is, I believe, a common goal shared by all. If—I repeat, if—for any reason the arrangements were found to require refinement, could the Minister indicate her preparedness to review them in the light of experience? I posit that not as an expectation but simply as a question. Like my noble friend, I welcome the progress made on this issue, and I ask this question in that spirit.

My Lords, I thank the noble Lords, Lord Jenkin and Lord Brooke, for tabling the amendment and giving me the opportunity to give further assurances to the House on the future governance of the museum and to clarify matters further—which is wholly appropriate at Third Reading. I know that the noble Lords have a number of concerns on this issue. I am glad that they feel that progress has been made during the summer and I hope that I can offer the assurances that they require.

The Government intend to resist the amendment, as it is not necessary. The terms in which the Bill amends the Museum of London Acts 1965 and 1986 are very specific and clearly set out. For the most part, the Bill merely amends the 1965 Act to replace references to the Secretary of State with the GLA, and makes other changes consequential to this transfer of responsibility.

As we have made clear during the passage of the Bill, it does not give the Mayor and the GLA any greater power in respect of the Museum of London than the Government currently have under the 1965 Act. I emphasise that this Bill does not take away any of the rights, powers and responsibilities which the City of London Corporation and the Museum of London board of governors have under the 1965 Act.

I assure noble Lords that the City corporation’s major powers of control and scrutiny in relation to the Museum of London are unaffected by the Bill. I make specific reference to scrutiny because, as noble Lords have said, there are concerns that the powers available to the City corporation may not be sufficient to enable it to scrutinise the Museum of London, particularly as the London Assembly will have powers to do so under the Greater London Authority Act 1999. Under the Museum of London Act 1965, as noble Lords have said, the City corporation has major powers of approval over the museum’s expenditure, any acquisition of land by the museum, the terms and conditions of its employees and officers, how many employees and officers the museum is to have, and over the appointment of the director.

In the exercise of these powers, and as a condition of its financial support, the City corporation is wholly entitled to require the governors and senior staff of the Museum of London to report to it and provide it with full information on matters relevant to its decisions. There is nothing in the Museum of London Acts to prevent the City corporation from doing this—I am happy to put that point on record. These powers, therefore, enable the City corporation to scrutinise the activities of the museum, just as the London Assembly will have powers to scrutinise the museum. None of these powers is affected by this Bill.

The 1965 Act is quite clear in setting out the functions and powers of the board of governors of the Museum of London in relation to its operations. These include all matters relating to the care and display of collections, the employment of staff, the loan, acquisition and disposal of objects, and the provision of archaeological services. Again, none of that will change as a result of the Bill. The Museum of London will continue to be a separate and distinct legal entity from the Greater London Authority and the City of London Corporation and will, for example, continue to produce its own report and accounts and other corporate documents.

My Lords, I can do nothing but express my gratitude to the noble Baroness, Lady Morgan of Drefelin, for, once again, having put the matter clearly and emphatically in a way which I am sure will reassure those who have expressed anxiety in the past. I hope that she is right that there will be no need to revisit this matter and that the arrangements that have been made will work. Certainly, that would have my complete support. With that, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Schedule 1 [Confirmation hearings etc: Schedule 4A to the GLA Act 1999]:

moved Amendment No. 10:

My Lords, government Amendments Nos. 11 and 12 seek to make it easier for the Assembly to fulfil its functions in the confirmation hearing process within the three-week period specified in Schedule 1. They amend paragraph 9 of the schedule to enable the Assembly to delegate to its chair the decision in paragraph 6(4) on whether to request documents from a candidate for a post subject to confirmation hearings.

These amendments respond to concerns raised on Report by the noble Baroness, Lady Hamwee. She may say that it is a mundane point, but it is an important point which we have considered. We believe that delegating this function to the chair of the Assembly will provide more flexibility for the decision to be taken quickly. It should allow more time for the Assembly to focus on the hearing itself and to promptly make a recommendation to the Mayor.

Amendment No. 10, tabled by the noble Baroness and the noble Lord, Lord Tope, has a slightly different effect from the government amendments by enabling the Assembly to delegate its functions under paragraph 6 of Schedule 1 to any of its Members. I am resisting this amendment as I believe that it is more appropriate for the Assembly to delegate these functions specifically to its chair. In allowing the Assembly to delegate all its functions under paragraph 6, the Government are meeting the spirit and broad aims of the amendments, which I hope the noble Baroness will withdraw.

Before I sit down, perhaps I may say on behalf of my noble friend Lady Andrews a few words of thanks to noble Lords opposite for their spirit of great co-operation throughout the Bill’s passage. I also thank Members around the House for helping to make our debates so constructive. My noble friend and I particularly thank the Bill team for their expert help and advice throughout the Bill’s passage in your Lordships’ House.

My Lords, we cannot allow “thank yous” to be one-sided. This Bill has been rather fun, and it has been fun basically because of the Ministers. I thank them, too, for being positive. We have had our disagreements, some of which have not been resolved, but it has been a pleasure to take part in the Bill’s passage.

My Lords, for the record I should add that the officers at the Greater London Authority—I did not consult them on this—have been particularly grateful to the Bill team for their assistance. It has been a very open process and very much a model of how these things should go forward. In that spirit of amity, I beg leave to withdraw my amendment.

Amendment, by leave, withdrawn.

moved Amendments Nos. 11 and 12:

My Lords, I beg to move that this Bill do now pass.

Moved accordingly, and, on Question, Bill passed, and returned to the Commons with amendments.

My Lords, before I call Amendment No. 1, may I point out that Amendment No. 1A is an amendment to Amendment No.1? That is not clear from the Marshalled List.

moved Amendment No. 1:

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

My Lords, I hope that noble Lords will forgive me for being a little confused. I thought that his amendment dealt with designated officers being fit and proper for the purpose and being suitably trained. However, I still think that this is the point at which I would like to talk through the thoughts I have on Report.

The Minister will have been aware from our exchanges in Grand Committee that it was likely that we might return to the devolution issues as Clauses 1 to 4 will not apply to Scotland. The noble Lord in his reply on our last day in Committee promised us that there was no problem in the lack of powers being granted in the Bill to immigration officers in Scotland. He said that,

“police officers will attend and deal with those identified as liable to arrest”.

What then of the other powers the immigration officers in England, Wales and Northern Ireland will have to search and deal with those who assault or obstruct them? One has a vision of every immigration officer in Scotland having to be issued with a mobile phone programmed to speed dial 999 the minute somebody becomes a bit difficult.

At the end of July, the Minister emphasised how closely the Government are working with the Scottish Executive and ACPO Scotland, via, he said,

“the border management programme to agree a suitable framework”.

Perhaps he could inform the House of the outcome of that work and the structure that is envisaged, either today or before Third Reading.

Perhaps the other, rather more worrying aspect, was the Minister’s phrase on that day that,

“the view has been taken that the activity of immigration officers is also a devolved matter.”— [Official Report, 25/7/07; col. GC 203.]

Does that mean that the activities of immigration officials will be subject to devolution issues procedure under the Scotland Act? Noble Lords will be aware that that means that if you disagree with an immigration officer you could take a case to the Judicial Committee of the Privy Council. If the Minister wishes to stand by the meaning of that statement, where is the amendment to the Scotland Act that will bring immigration officers into the devolved structure? Surely this will add complications to the training of these officers—and means in reality that the UK Borders Bill is no longer a borders Bill for the UK but just for England, Wales and Northern Ireland—by adding confusion to the rights of immigrants and also to the powers of immigration officers.

My Lords, I support my noble friend Lady Hanham in her amendment. When the issue was raised by my noble friend Lady Anelay in Grand Committee, the noble Lord, Lord Bassam, said that it was eye-catching but that it ignored the complexity of the challenge. Some of the complexity of the challenge has just been illustrated by my noble friend the Duke of Montrose. I appreciate that this is not a simple matter, but it is very important. The noble Lord, Lord Bassam, said in Grand Committee that the Government,

“retain an open mind regarding the longer term but, at this point, we are not persuaded”.—[Official Report, 2/7/07; col. GC 36.]

I suggest to the noble Lord that it is high time that the Government were persuaded. If we are to have proper control of our borders and to know who comes across our borders anywhere in the United Kingdom, we simply must do better than we are at the moment. We must have a more foolproof method. Whether my noble friend’s proposal is precisely the right one, I do not know, but we really need something better than we have.

Following from what my noble friend the Duke of Montrose said, there is still a remarkable lack of appreciation of the seriousness of the matter in Scotland. That is reflected in the Scots Parliament and by the present Administration. It is rather strange that the Liberal Democrats are moving the amendment to the amendment today, yet their colleagues would not pay any attention to the matter when they were in power in Scotland. It seems that they were remarkably unaware of the seriousness of the position.

Now, the Scottish National Party Executive are saying that they do not want Clauses 1 to 4 to apply in Scotland. That means that they do not want special immigration officers to have police powers anywhere in Scotland. I was speaking to two of our Scottish National Party Members at Westminster only yesterday. They are unaware of what is going on about this. It seems to me that the matter is in fact quite serious. If Scotland is wide open to anyone who comes, the whole of the United Kingdom is wide open, and vice versa. The pressure in Scotland is less at the moment because there is more room for newcomers and there is less concentration of immigrants, so there is less anxiety in Scotland.

The Scottish National Party Administration is very keen to co-operate with the Westminster Government where that is necessary. Mr Salmond has said that over and over again. He is quite right and it seems to me necessary here. Can the Minister tell us exactly where the Government are now with Mr Salmond and his Administration; whether Clauses 1 to 4 will apply to Scotland; and, if not, what is the reason for that? It seems to me that any reason that there was is no longer valid, so I support my noble friend’s amendment.

My Lords, when my noble friend the Duke of Montrose drew my attention to the fact that the Government had said that border controls were a devolved matter, I assumed that there must be some mistake. It is quite extraordinary to have a Prime Minister making speeches telling everyone that they must put flags in their garden and how important it is that we support the United Kingdom and the concept of Britishness and, at the same time, have a Government who are saying that border controls, of all things, should be devolved. Surely border controls are an issue for the United Kingdom as a whole. As my noble friend said, allowing this matter to be left unattended by the Scottish Parliament is leaving the back door—or the front door, as I prefer to see it—open on the United Kingdom.

My noble friend Lady Carnegy is much more tactful than I am. I know exactly what Alex Salmond’s intentions are: to break the United Kingdom and create differences between Scotland and England which will enable him to achieve that by referendum. It is a matter of great dismay that this Government of all governments, with this Prime Minister, should be proceeding in a way that means that the control of our borders is subject to a different view north of the border, as my noble friend the Duke of Montrose said.

My Lords, this Scottish view is most instructive and I look forward to hearing the Minister and being further instructed. I hope that it is in order to refer to Amendment No. 1A before us, which is not to belittle the Scottish questions that have just been raised.

Amendment No. 1A is clearly to be preferred. If I look at the first page of the Marshalled List, I find that paragraphs (a) and (c) of subsection (2) of the proposed new clause in Amendment No. 1 are quite specifically focused in the direction of “illegal overstayers” and “illegal immigrants” and in the case of paragraph (c), the employers of the latter. Of course those are significant questions and I have no doubt that were the House, as I hope it will, to prefer Amendment No. 1A, those would be among the functions that the Secretary of State would by order determine. However, Amendment No. 1, in putting first what it puts first and then adding to it with paragraph (c), contributes to the anxiety around the country and in sections of the press about this whole question.

It is a real question and there are real difficulties both for the country as a whole and for those, as we shall find later in this discussion, who are thought to be illegal overstayers or illegal immigrants. But to list them in this new clause in effectively four points, because subsection (5) is a catch-all, contributes to the danger of ratcheting up anxieties that are much better cooled and taken rationally. I prefer Amendment No. 1A to Amendment No. 1 for those reasons.

My Lords, we seem to be discussing differences and problems that arise between the various jurisdictions in the United Kingdom. I therefore ask the Minister whether he is satisfied that humane practices are now in place when asylum seekers are being transferred from Northern Ireland to Scotland for purposes of detention. There was a very bad case when a pregnant woman was handcuffed on the ferry during her transit from one jurisdiction to another.

Is the Minister also satisfied that the authorities in Northern Ireland are fully on the alert to the possibility of both adults and children being trafficked through the Republic of Ireland into Northern Ireland and thus into the UK? I understand that there was some suspicion of that arising at the Irish port of Rosslare very recently. I apologise for not having given notice of these points to the Minister, but I hope that he will do his best with them.

My Lords, I support the amendment of my noble friend Lord Avebury. Like the noble Baroness, Lady Hanham, I am new to this brief. It is a tall order to take this on part of the way through the Bill, but I have the enormous advantage and privilege of being able to listen and learn from my noble friend Lord Avebury who has worked for so long on these issues. That is what I shall be doing.

My Lords, first, I congratulate the noble Baroness, Lady Hanham, on her tour de force today and for taking on an additional brief with such courage. I also express my thanks to her predecessor in this post, the noble Baroness, Lady Anelay, for the helpful, constructive and forensic way with which she dealt with the issues that this Bill encapsulates and many of the other issues which one might describe as coming within the criminal justice field. I have enjoyed my working relationship with her over many years—answering her questions, dealing with her points and taking on some of the issues that she has raised. I am sure that I shall enjoy working with the noble Baroness, Lady Hanham, who is a redoubtable compatriot and, occasionally, an opponent, and whose company I greatly enjoy.

Having said all those very constructive things and supporting others in making their constructive observations, we should give consideration in detail to the very important amendments moved by the noble Baroness, which have been variously supported and amended in the discussion from the noble Baroness’s colleagues on the Liberal Democrat Benches.

These amendments raise a very serious issue, from which no one dissents; namely, how best to protect the United Kingdom’s borders. For that reason, we believe that not only does the amendment deserve very careful consideration but also all that lies behind it deserves such consideration. I should congratulate the noble Baroness on having moved her amendment in, I think, two minutes. But, in a sense, that reflects on perhaps where we have got to in this debate. I think that the amendment deserves more time than that, certainly in the way in which I shall respond. I apologise to your Lordships' House for the length of time that it will take me to go through some of the issues which have been raised.

The House will know that on 25 July my right honourable friend the Prime Minister announced the Government’s decision to integrate the work of the Border and Immigration Agency and Customs and UK Visas, and to establish a unified border force. The noble Baroness said she thought it would be a useful move, but perhaps does not go far enough. The Prime Minister recognised that other issues have to be resolved and that there may need to be further consideration on how we may integrate that work, move forward and consider other ways and agencies which might be involved in that activity. To that end, he invited the Cabinet Secretary to report on implementation and to examine the case for going further. Noble Lords have observed that in an earlier discussion on this Bill, I expressed some sympathy for the direction of travel in which these amendments take us.

A key aim of the Prime Minister’s announcement was to make the controls over the movement of people to and from the United Kingdom by air, sea and rail more effective, more flexible and more visible. I am grateful for this opportunity provided by the noble Baroness to update the House on that work. The Cabinet Secretary is expected to report to the Prime Minister at the end of this month. His review team has drawn on the experience of all the key departments and senior police officers. For example, the president of ACPO, Ken Jones, is providing very valuable advice. I know that other senior police officers are similarly providing advice.

Decisions on the shape and scope of the unified border force will be taken once the Cabinet Secretary’s report is completed. The future roles of the police, Her Majesty’s Revenue and Customs, the Border and Immigration Agency and other agencies and their position within the unified border force, or in relation to it, will be addressed in the report, along with any considerations about changes to legislation. Importantly, the review will focus on the benefits and costs of structural changes and the wider implication for public services. I believe therefore that it would be inappropriate to pre-empt the outcome of the Cabinet Secretary’s report by accepting the amendments on offer.

I am aware that the establishment of a border police force has been a preoccupation for the opposition parties for some time. I understand that the noble Lord, Lord Stevens, is producing a review on behalf of the Conservative Party. I am sure that he, too, would confirm that this is a complex task. So in one sense I am rather surprised and a fraction disappointed that the House has been presented with what are somewhat ill-considered amendments— indeed, amendments that are exactly the same as we have seen tabled at each stage of the Bill. We as a Government have moved on with our thinking and we would invite others to do the same.

Let me stress that the problems with the amendments are not just legal niceties capable of being put right by parliamentary draftsmen; they go much deeper than that. It would seem that after a couple of years of thought, some significant gaps remain in the analysis we are being invited to consider with regard to powers, composition, accountability, direction and leadership in the model on offer in these amendments. The noble Baroness, Lady Carnegy of Lour, is often wise in your Lordships’ House and she was certainly wise today when she reminded us of the complexity of the issue. Other noble Lords, with their long experience of Scottish institutions, have added to that reminder.

On powers and functions of the border force proposed in the amendment, as drafted, the new force appears to have no responsibility for deportation or the operation of our offshore borders through the visa system. The amendments are silent on whether the new force will have prosecution functions. A number of the bodies from whom officers of the new body are to be drawn have prosecutorial functions. Will these remain within the existing organisations? If so, will that merely become a source of inefficiency in the new body proposed? There is nothing about how the new force would make decisions because no head or management structure is to be established. Is the new force to be a Crown body? Does it have a legal personality? Can it own property? Can it be sued? Who will decide who it can employ, the terms and conditions for its officers, what its rates of pay will be and other such matters? The amendments are silent on tax and revenue issues, and here we are seriously considering adding powers of taxation and revenue collection by secondary legislation. I would suggest that that is not an appropriate way to move forward.

While of course subsection (2) of the amendment proposed by noble Lords on the Liberal Democrat Benches includes a wide power for the Secretary of State to determine additional functions by order, I think that if we were putting this forward as a model, it would be argued from the Benches opposite that it was wholly inappropriate as a mechanism to deal with such serious issues. Further, subsection (3) would provide the Secretary of State with unlimited flexibility to add new organisations and officers to the new body in a completely untrammelled fashion. Those are sweeping powers indeed. They would allow the Secretary of State to create additional functions for a law enforcement body without the full parliamentary scrutiny that is the normal course in such significant matters. I would ask the House to consider whether providing the Secretary of State with the ability to make such wide provision by secondary legislation is either right or appropriate. I also ask how the Delegated Powers and Regulatory Reform Committee of this House would react to such a proposition.

On composition, while subsection (3) provides that the new body will be comprised of officers from existing bodies, who will constitute the membership of the UK border police force? There is no mechanism for actually appointing them, and no indication of who will do it or any notion of how the test for that would apply. The existing bodies will continue to exist with their current overlapping functions. No provision is made for the cross-designation of powers. Would officers of the new force continue to exercise their existing powers, and if so, where is the benefit in bringing them together? The amendments do not appear to increase the flexibility of the existing agencies to enable resources to be deployed when and where they are needed. They do not create additional powers for officers of the new border force. Again, without such provision, where is the benefit? What impact would the creation of the new force have on in-country policing in the wider communities in which ports are located? How would the relationships work, and information about the complete police intelligence picture be shared?

On accountability and direction, while the amendments create a new corporate body, there is no accountable Minister, no accountability to Parliament and no ministerial direction of the new force’s priorities. Is the suggestion that responsibility for the UK’s borders requires no ministerial oversight and no reports to Parliament? These are serious and profound questions. Each of the existing organisations has its own separate oversight arrangements. Where are the oversight arrangements for this new force? Without these, there is potential for misalignment and confusion. Who is to fund the new body? No provision is made for any kind of funding arrangement. On leadership, the amendments do not establish a head of the organisation and make no provision for funding; nor do they create planning obligations or provide for a mechanism for it to report on its progress and accomplishments.

Those noble Lords who have brought forward these amendments may answer that these many defects could be addressed in secondary legislation. I go back to the argument I made earlier: we do not consider that this would be an appropriate way to deal with these matters if they were to create a new body to perform these functions. Matters of such importance should be provided for through full parliamentary debate and consideration, and amendment provided for in the form of a discrete Bill.

I ask the House to compare this with the establishment of the Serious Organised Crime Agency. That required some 59 sections and two schedules in an Act which dealt with establishing the body, its functions and powers, the powers of individual officers, annual plans and reports. It provided for a description of the relationship with the Secretary of State for the Home Department and other bodies; it provided for inspection and oversight, for financial provision, for operational matters, for the use and disclosure of information and a range of other relevant operational matters. This is testimony to the complexities involved in bringing separate and already established agencies together for a particular purpose in a new organisation.

My Lords, would the noble Lord apply what he is saying about the creation of new organisations to what happened when NOMS came into existence? Can he tell the House how many clauses were needed to bring NOMS into existence in the first place?

My Lords, I do not have that information at my fingertips but I will be happy on another occasion to detail the way in which NOMS was established.

The point I am making is a very serious one. If we are to create a new force of this nature, then clearly it will be complex, clearly it will require detailed legislation and, more appropriately, it will need a very full consideration. It should be based on a well thought through and constructed review—which, of course, my argument suggests is being conducted and which we should await. The Prime Minister has made a very clear commitment in this area and it would be wrong to pre-empt the Cabinet Secretary’s review.

I am, as ever, grateful to the noble Baroness and other noble Lords for raising the issue, but they will have to accept that there are some flaws in their approach; indeed, flaws of such gravity that the amendments risk running the accusation of being somewhat of an insult to the issue and of undermining the general direction in which we have been progressing for some time. The effect of the amendments would be to create an organisation without a head, an organisation without new powers, an organisation which is accountable to no one and an organisation which does not have a proper money order attached to it. Constructive consideration has to be given to those issues and, for those reasons, I would argue that the amendments are not fit for purpose—although, of course, I fully accept that they are brought forward in the spirit, which is shared across your Lordships’ House, of where we see potential for development.

My Lords, if this review is of such importance and will bring forward good ideas as to what should happen on the borders, why are we holding this discussion today? Should we not have held over our Report stage until we had this information?

My Lords, the noble Duke asks a very good question. I assume we are having this discussion today because this is seen by the party opposite as being a political priority. Of course, it is quite right to prioritise these issues; we have been doing exactly that as a Government for some time. We should of course give further consideration to the report when it is produced; I am arguing precisely that. That is why I do not believe it is right for us to accept an amendment of such a wide-sweeping enabling nature as the one we have before us today. While we have made progress in that direction, we should await the outcome of the review.

Then we will have to consider what kind of legislation we need to bring forward—because it will certainly require complex legislation. As I have described, in setting up SOCA we had to introduce a Bill with 59 clauses and two schedules. If we do not have legislation that has been properly and appropriately considered by the House, then the force that noble Lords opposite are seeking will not have been given thorough consideration.

My Lords, the Minister will recall the discussion that we had in Grand Committee on an amendment tabled by the noble Duke, the Duke of Montrose, concerning the lack of powers in Clauses 1 to 4 for immigration officers north of the Border. The issue was not that the functions were devolved, but simply that immigration officers, particularly those operating in remote areas of Scotland such as Shetland, did not have these powers conferred on them and would therefore always have to wait for a police officer to arrive when it was necessary to arrest someone.

While that may not have mattered very much in the past, there was a particular case—which I think the noble Duke raised—of a person who arrived by cruise liner in Shetland, where there was one immigration officer to deal with several thousand individuals on the ship. This passenger slipped past the Immigration Service and committed a serious crime in Aberdeen, which was highlighted in the Scottish press at the time. So the question was: have the Government had further discussions with the Scottish Executive on whether these powers should be extended to Scotland or on whether they will be capable of dealing with the changed situation in some of the ports in Scotland where a large number of people are presenting themselves to a small coterie of immigration officers who do not have the backing of the police on the spot? I hope that I have interpreted what the noble Duke said with sufficient accuracy.

My Lords, I know that we are on Report, but these detailed points illustrate to the Minister that Clauses 1 to 4 are rather an important matter in Scotland. There is also the fact that one noble Lord, who regularly takes a firearm for sporting purposes to Glasgow Airport, says that he has to wait for 20 to 25 minutes for a policeman to be found to identify his gun. It is not much good waiting that long if you think a terrorist just got off an aeroplane and no policeman can be found. The immigration officer could not stop and search or arrest that person for up to three hours, although he could do if Clauses 1 to 4 were implemented. This is an important matter in Scotland, but that does not seem to have been recognised by the Scottish Executive. The Minister should proceed with speed to ensure that Clauses 1 to 4 apply to Scotland, either in this Bill or by the Scottish Executive themselves legislating, as he has just suggested they might.

My Lords, I express my gratitude to the noble Lord, Lord Avebury, for reminding us of the detail of the discussion that we had at an earlier stage. He is quite right to do that. I understand and appreciate the issues that he raised, echoed by the noble Baroness, Lady Carnegy of Lour. She is precisely right: that is why I made the point about the Scottish Executive confirming that they are giving the matter further consideration.

The issue raised by the noble Lord, Lord Avebury, about a particular individual was clearly an operational one. I raised it with officials, who told me that they were generally satisfied with the working relationships between the Immigration Service and the police service and the support given by the police in those sorts of instances. On the cruise ships visiting the islands around Scotland, I understand that work on checking those on the manifest is generally undertaken at an earlier stage and that most of the issues that would potentially arise are resolved far earlier. This particular incident was of special concern, and the authorities are well aware of that. We continue to work with the Scottish Executive to resolve these issues. This is clearly an important matter, of which we are apprised. I am confident that we can secure the necessary co-operation in the future, as we have in the past, and that the arrangements should work well.

I said something a while ago that I ought perhaps to correct for the record, relating to my observations on the Immigration Service and how it acts being a reserved matter. I should have said that the conferral of functions on immigration officers to detain a person pending the arrival of the police is devolved. That clarifies that issue. Of course, immigration officers in Scotland have full powers to deal with immigration and immigration offenders, so there should be no confusion on that issue.

My Lords, I am grateful for the Minister’s comment that he may inadvertently have made a slip. In Grand Committee, he said that,

“the view has been taken that the activity of immigration officers is also a devolved matter”.—[Official Report, 25/7/07; col. GC 203.]

I can see that that was a slip and how the Minister meant it in context. I am grateful to him for making the position clear; that caused my earlier intervention.

My Lords, the slip was indeed inadvertent. I was making a point in the context of a rather broader decision. I apologise to the House for that; I wanted to set the record straight.

If the noble Lord, Lord Hylton, will allow me to absorb the details that he has provided to the House, I will write to him on the specifics. That would be the fairest way to deal with that.

This has been a constructive debate; I have certainly tried to join the debate in a constructive way. We are making progress. I am just not sure that, in the end, we are motivated by the same spirit. I hope that, for the specific, technical and detailed reasons that I have outlined to your Lordships’ House, the noble Baroness and the noble Lords on the Liberal Democrat Benches will feel able to withdraw their amendments this afternoon. I certainly see this as a work in progress.

My Lords, I thank the Minister and the noble Lord, Lord Avebury, for welcoming me to my new brief. I can see that the Bill will test me at these late stages. I am glad that we have provided another opportunity for discussion of devolved matters. The noble Duke, the Duke of Montrose, the noble Lord, Lord Forsyth, and the noble Baroness, Lady Carnegy, had an opportunity to open discussion on the fact that matters as important to the United Kingdom as immigration have been left, as I understood it from questions and responses, hanging in the air. I hope that those matters will be less in the air before the Bill completes its passage as a result of discussions that will take place.

The Minister was stinging about the amendment. He was stinging not about the proposal, but about how it was being put forward. Everybody is probably beginning to wonder whether rather more is required for patrolling our borders than an immigration officer with the powers to summon a constable. If the Cabinet Secretary is undertaking a review, why are we proceeding along the route set out by the Bill when it is clear that another Bill is waiting in the wings to roar along behind when the Cabinet Secretary has discussed the matter and made his views known? It seems strange to be proceeding in two stages. We will welcome the Cabinet Secretary’s review and look forward to seeing what it contains, but we have laid down a marker during the two previous stages of the Bill and said that we do not believe that an immigration officer alone, with the power to call in a constable, is sufficient to deal with all the issues that we see as being problems.

I accept that there are deficiencies in the amendment. I am afraid that we are not in the position to summon up 59 clauses and 49 schedules to deal with the matter and to delineate exactly how a border police force would work, but we are laying down a marker and saying that something like that will be necessary rather than the provisions in the Bill.

I accept that the amendment is not entirely what is required. It sounds as though we will have much more discussion on the way in which the borders are patrolled and the powers and responsibilities of a border force. We will come back to the matter at some stage, but not today. I shall therefore withdraw my amendment in due course.

My Lords, the Minister was a little ungracious. He cannot expect Members of the Opposition to draft amendments that extend to 79 clauses and eight schedules; we would not be thanked by your Lordships if we were to proceed in such a way. The normal method is for the principle to be established and then, if that is agreed, for the Government to go away and draft something that meets the agreed intentions of the House; it is not for proposals to be developed fully by those of us who do not have the resources of a whole department on which to call.

I had hoped that the Minister would respond to my intervention on NOMS. When NOMS was introduced, no legislation was in place; it was simply announced. A new entity which was supposed to cover end-to-end management of persons sentenced by the courts was being created, but it was not until long afterwards that we knew what NOMS was, how it would work, or the Government’s intentions for its management. So if that was what NOMS was meant to be—and I am not sure that one could say that about it—we are following a good precedent.

We also endorse the approach taken by the Government. We look forward with great keenness to the report mentioned by the Minister and think that it proceeds to some extent down the lines that both the Conservatives and we advanced at Second Reading and this afternoon. There is better integration and more co-operation between the agencies involved in controlling entry and residence in our country and, to that extent, we are of the same mind as the Government. So it is right that at this stage I should beg leave to withdraw the amendment.

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

My Lords, I beg leave to withdraw the amendment.

Amendment No. 1, by leave, withdrawn.

Clause 2 [Detention]:

moved Amendment No. 2:

My Lords, this is the same as the amendment debated in Grand Committee, when it was grouped with an amendment that we tabled on applying PACE to designated immigration officers. We have not retabled that amendment now because we were reasonably satisfied with the Minister’s explanation of how these powers were to be used and with the draft standard operating procedures for designated immigration officers for the BIA that were placed in the Library, which the noble Lord analysed in some detail. However, as he said, the draft indicated that the procedures were to be developed to a greater level of detail in collaboration with the police and other stakeholders. Like him, I was unsuccessful in searching for the final version on the web. If it has not been published, as the noble Lord implied, I should be grateful if the Minister, when he replies, would say when we can expect it. It is unfortunate that we do not have an opportunity to scrutinise it when deciding these matters, and this is probably the last opportunity that we shall get. I have to say in passing that the BIA website is not well designed. I very much hope that if he has not already used it, the Minister will spend a few minutes looking at it and, if he agrees with me, will ask officials whether work is in hand to improve it. Web design for ease of use is particularly crucial when the information being presented is of such great importance to the future prospects of hundreds of thousands of people.

The designated officer who detains a person has to issue a written notice explaining the reasons for the detention, using an interpreter where necessary to explain the notice. He must seek the voluntary co-operation of the person being detained, and if reasonable force has to be used, must complete the “use of force” log and get it countersigned by the chief immigration officer. He must give particular consideration to the needs of children, vulnerable adults, pregnant women, and others where there is evidence of physical or mental ill health. The draft says that detention of children should occur only in the most exceptional and rare circumstances, which were to be defined in further consultation with the police. It would be helpful if the Minister could tell us what progress has been made on that issue and when the final version will be published. Can we have an assurance that these documents will be available on the BIA website, and although they are not subject to parliamentary scrutiny, will the Government ensure that after a suitable period of operation, they will provide a formal opportunity for the Refugee Children’s Consortium and others to make suggestions for improvements and amendments? One advantage of using non-statutory operating procedures could be the greater flexibility to accommodate outside advice, given the willingness to do so which is not invariably to be found in the Home Office and its agencies.

In his letter of 5 July after the first day in Grand Committee, the Minister said that there were regular monthly opportunities for discussion of operational practices regarding children among designated officers with the minors' team, headed by an immigration inspector, at each port of entry, and there is also a border control and young persons working group which feeds issues back to the port and to the BIA's children's task force. These procedures sound thorough, but they are not transparent. How can children's NGOs, or the Children's Commissioner for that matter, be satisfied that, subject to the need to enforce immigration control, the best interests of the child are always observed in these procedures?

One point that the Minister did not pick up in that letter was whether the remit of the chief inspector of the BIA would cover the use of the new detention powers, no doubt because the matter was still under review as he mentioned in Committee. Why should there be any reservation on the chief inspector's power to examine the operations of the BIA, any more than there is with other chief inspectors such as those for prisons or probation? Has the Minister any further news on the matter this afternoon, and if it has not yet been decided, can he explain the reasons why these powers might be singled out from all the rest of the BIA's functions as closed to scrutiny by the chief inspector?

My Lords, some may think that the noble Lord, Lord Judd, went into too much detail on this matter. However, it seems to me that it is of very great importance that the Government should get behind them the support of as many people as possible who think about these things because the problem arises when something goes wrong when a mistake is made. The police have rightly had great problems as a result of making a mistake when they shot somebody dead in the Underground. If a designated immigration officer stops, searches and arrests somebody who turns out to be completely innocent and the matter becomes public and an issue, the whole process will be brought into disrepute. It is bound to happen sometimes. It is very important that the details of the procedures are right so that they can be defended when mistakes are made. That is an important point. It is all right when they have hit on the right person; everybody is probably very pleased that they have been caught and the police can take over, but if a mistake is made, there will be great trouble. Therefore, the noble Lord, Lord Judd, is right to make these points although I hope that he will not divide on the matter because I do not think that it is a dividing issue.

My Lords, I support the amendment. I, too, am a member of the Joint Committee on Human Rights. I am very grateful to the noble Lord, Lord Judd, for spelling out in detail why this issue is important. These are very wide powers of arrest if they include—as they seem to—the power to strip search people. There is tremendous scope for individual judgment. We have already heard that interpreters may be used. Therefore, we are talking about situations where people do not immediately understand each other. There is a possibility of racial profiling. Why would it be such a bad idea for the standard operating procedures to reach the standard of the PACE codes? Why would it be a bad thing if Code G of the PACE codes was in place, explaining that the power to detain interferes with the right to liberty and should be used only when the necessary objectives cannot be met by other less intrusive means? I agree very much with the noble Baroness, Lady Carnegy of Lour. It seems to me that immigration officers are protected as well if they work within a clear framework such as the PACE codes, which have stood the test of time, and where there can be no misunderstanding about what is acceptable practice when people are detained and subjected to invasive procedures such as strip searching.

My Lords, if I understand correctly what was said by the noble Lords, Lord Judd and Lord Avebury, this is another occurrence in a very short time of a major piece of germane work not being before us as we work on the Bill. As it is the second time that this appears to have happened in an hour and a half of debate this afternoon, it seems extraordinary that we are in a sense shadow boxing without the information being before us.

That said, I draw attention to the fact that some of the things that have been noted will come up later in our discussion. I refer to the amendment of the noble Lord, Lord Hylton, on vulnerable adults and the questions immediately before us about children, which underline the importance of the points being made on this amendment.

In Grand Committee some very important questions were asked about training, the continuing education of the people involved and conditions of custody. Probably most of us in the House at the moment have listened to those most affected by this issue. We have very difficult stories to tell—that may be the reason we are involved with this Bill—about conditions of custody, even for short periods and about the way that people are treated, translation facilities and so on. How can the Cabinet Secretary’s work, and the work to which the noble Lord, Lord Judd, and others referred, be incorporated in the Bill so that we do not find ourselves, as the noble Baroness said, dealing very soon with another Bill to amend this one?

My Lords, I have a drafting point on Clause 2. On page 1, line 14, there is the word “thinks”. I can be quite brief, as we have had this many times before, in this Bill and in other legislation. “Thinks” is too vague. It would be much better to have “is satisfied”, particularly in view of the serious consequences that can flow from an immigration officer using these powers.

My Lords, I have not been involved with this Bill so far, because I have had other commitments. I wonder whether the Minister would explain precisely what is meant by “designated immigration officer”. I remember discussions some while ago on previous immigration legislation, when I had concerns because there was provision in that Bill for the Secretary of State to contract out part of the Immigration Service. That meant that the work could be contracted out to people who had not had the professional training that was required for people doing this work as public servants. I would like to know what designation involves. Does that mean that the people concerned would have the specialist training that surely would be required if they are going to be able to use reasonable force and where they have quite wide powers? Will my noble friend tell us exactly what that means?

My Lords, this is the UK Borders Bill, and therefore it does not just relate to Great Britain but to the whole of the United Kingdom. Will there be any immigration officers on the land boundary between the United Kingdom and the Republic of Ireland? If not, will the Republic of Ireland apply the same entry requirements as immigration officers will require when people enter Great Britain? If not, people will enter the Republic of Ireland—as they now do—and move freely across the land border into the United Kingdom. Therefore, the impact of this Bill will be null and void.

My Lords, as ever, I congratulate your Lordships’ House on dreaming up many questions relating to an amendment; and very helpfully so, because clearly noble Lords have pondered these issues. I am grateful to noble Lords, in particular to the noble Baronesses, Lady Stern and Lady Carnegy of Lour, for their very thoughtful contributions.

This Government have listened very carefully during the Bill’s passage to the points that were put forward calling for the provisions of the PACE framework to apply in respect of the detention at ports provision. We had some useful discussions in Grand Committee, and I engaged in some detailed correspondence with noble Lords trying to set out for them how these matters were to work. I thought that we had covered most, if not nearly all, of the points that were raised. I apologise if that is not the case. I thought that we had satisfied most noble Lords on these issues. I am grateful to my noble friend Lord Judd for bringing back his amendment because it allows me a few moments to set out some issues and concerns and answer some additional points.

The Government are not in vast disagreement with the spirit or principle that lies behind the amendment. For that reason, we felt able to set out at an earlier stage some detailed consideration of those issues. We entirely understand that there needs to be a mechanism in place to oversee the use of these powers by designated immigration officers—that is officers who are designated to deal with these issues, to answer the point made by my noble friend Lady Turner—but we maintain the view that this mechanism can sufficiently, and most appropriately, be provided in the form of clear and specific standard operating procedures, or SOPs.

The noble Lord, Lord Judd, reminded the House that we are conducting reviews in this area. I take the point made by the right reverend Prelate that we are considering an issue that has some bearing on these reviews, but that is often a fact of life when dealing with legislation. Things move on during the passage of a Bill, and other issues come into play, and there may need to be some further consideration at a later stage. It is an iterative process, which is not unknown to many of us in dealing with legislation. Those two key reviews that the Government are conducting will, as the noble Lord, Lord Judd, rightly said, have an impact on this to a greater or lesser degree.

On 25 July, my right honourable friend the Prime Minister made a Statement in the other place primarily focusing on security issues. He announced a review that would consider how the vital work of the Border and Immigration Agency, Customs and UK Visas, overseas and at the main points of entry to the UK, in due course may become a unified border force. In instigating that review, a view has to be taken on some of these other issues. A small border review team, led by the Cabinet Office and composed of people from the departments and agencies involved, is now progressing that work. The team’s conclusions will have an impact on the fundamental shape and nature of frontier control and on the way in which the border agencies will exercise their functions.

The second key review is of the Police and Criminal Evidence Act 1984—the PACE provisions—which was launched on 16 March. That was an open, extensive process, inviting comments on the need for revision of the 1984 Act and the PACE codes. A summary of responses was published by the Home Office Policing Powers and Protection Unit in July. In general terms, there was,

“an admiration for the framework that PACE provides and for its pivotal status setting out the rules and procedures that must be followed in the investigation and prosecution of crime”.

I pay tribute to the noble Baroness, Lady Carnegy of Lour, for her telling observation that processes are important and getting the procedures right in detail is absolutely key. I completely share that view, and that is why we are approaching this matter with some considerable care. Responses clearly favoured the codes of practice being produced in,

“a format and style which improved their accessibility, their use and their applicability to the user”.

The next phase of the consultation programme will consist of a series of regional seminars with stakeholders and practitioners and a programme of bilateral meetings with key stakeholders. The contents will be subject to a final phase of consultation in spring 2008 to consider the final proposals for legislative and administrative change.

The outcome of those reviews may have significant implications both for front-line functionality and for the format and style of the PACE codes. It is important, therefore, that we await the outcome of those reviews before considering any fundamental change in our position on the application of the PACE codes of practice to the detention at ports powers. For that fundamental reason, I invite noble Lords to consider withdrawing the amendment. That does not in any way, shape or form undermine the importance of the issues that the noble Lord, Lord Judd, has raised, and I fully acknowledge their importance.

My Lords, I thank everyone who has contributed to this important discussion. I am sure that I am not alone in thanking the Minister for the thoroughness and conscientiousness with which he always tries to take up every point made in the debate. He is a model performer in that respect. The trouble is that he does not always convince us or answer the points raised, while one cannot fault him for recognising that they have been made.

I am uneasy about the situation and again I wish to explain why. We are going to introduce legislation that will put immigration officers in the front line of carrying out the policy that we are making. It is terribly important in that work, which can become emotional and fraught, that there are absolutely specific and clear guidelines regarding what is permissible, what is not permissible and why that is the case. That is something that strikes me about the PACE codes—they explain why particular restrictions on activity are necessary.

I heard my noble friend say that there will be a review covering all of these matters and everything else, but the Bill will become operative before that happens. I am sure that the right way to have proceeded would have been to say, “We are going to have a review and if something more appropriate and special is necessary for this operation, we can look at that after the review”. But meanwhile, because the front line of border controls will have powers, I stress, not just in connection with immigration offences, but criminal offences, it is amazing that we do not say that, therefore, as this is a police function, the code of conduct appropriate for the police will apply to those operating in this way.

My two more philosophical points are also acutely important in terms of the realities. First, we must not become slipshod in our commitment to the highest standards in the defence of liberty. We simply must not let them be eroded by the back door. Secondly, reference is constantly made—including by the Prime Minister and by other Ministers—to their commitment to winning the battle of hearts and minds in all the challenges and tensions that confront us. The noble Baroness was right to say that it is when things go wrong that we discover that we have not been adequate, and that if we have a chance to be adequate at the time of the legislation, that is the time to do it. It is in these kinds of areas that ill will builds up, and that turns into alienation from the direct experience of the people going through the process and plays into the hands of the extremists who are out to recruit people for extremist action.

That is why it is vital that we have the highest standards and that we support those who we ask to carry out duties on our behalf by making sure that what is required of them is explicit, clear and not one thing in one organisation and another in another organisation. I shall go away and think hard about what my noble friend said, because I respect him. I cannot say that I am going away thinking, “Well, that issue is solved”. I do not think that it has been; but at this stage, it is probably appropriate that I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

moved Amendment No. 3:

My Lords, we are much indebted to the noble Lord, Lord Judd, for the detail with which he has supported the amendments. What I want to say depends largely on that, but I shall make a number of summary points. Those of us, of whom there will be many in this House, who have seen something of the inside of one or more detention centres will have rapidly formed the impression that these are no places for children and young people. On the whole they are simply not happy places; they are places of tension and anxiety. They are also places where rarely, if ever, are there separate facilities where young people can be assured of protection in all senses of that word. Young people and children are put in such places where there are often, if not always, inadequate educational facilities. In the light of what the noble Lord, Lord Judd, said about the length of time that children are in such places, it is clear that they are torn from their schools—if they are in school, as one hopes they will be—and torn from their friends.

Those are serious matters. As the later amendments tabled by the noble Baroness, Lady Hanham, and others bring home, such detainees are not specifically protected by the Children Act or the UN Convention on the Rights of the Child. All that would be serious enough, but then there is the experience of so many people with a great deal more knowledge at first hand than I have—and I have some. Whatever the good intentions of the Home Office and of many of those working in the system, it appears to be constantly shot through at best with a lack of imagination and, with awful frequency, serious degrees of inhumanity.

Amendment No. 4 is most important; if it were to fail, Amendment No. 5 would be most important, too. Underlying Amendment No. 4 are some of the stories that one has heard at a range of points—in Grand Committee and in another meeting in this House called by the noble Lord, Lord Avebury; it was not part of this legislative process, but took place during it. We heard then, and I have heard elsewhere, tragic stories of parents separated from young children and young children separated from parents. Those stories and realities may arise out of the conviction that such places are not for very small children, which underlies elements of Amendment No. 4. For all those reasons, these are serious matters that the noble Lord, Lord Judd, and the noble Baroness, Lady Stern, have brought to our attention.

My Lords, it may be necessary to detain families from time to time in the interests of an effective immigration system. I support the amendment because of my experience in having visited Yarl’s Wood on a couple of occasions. The last time I visited that centre, I spoke to a 16 year-old who had been detained there for five months with her eight year-old sister. A mother I spoke to said that she and her two children had been detained for two months. The Minister pointed out in a letter today something that we hear repeatedly, when he said,

“that the vast majority of families with children spend 7 days or less in detention”.

I welcome that, but clearly from the figures given by the noble Lord, Lord Judd, numbers of children stay in detention for considerable lengths of time. I was struck when speaking to the 16 year-old girl how bitterly she felt about being detained in this way. She had committed no crime. What sense of the adult world does a young person have if they are detained for five months without any conviction or without having committed a crime, even in the most civilised and sanitised of settings? I recognise the challenges faced by the Government but wholeheartedly support Amendment No. 4, which would put a definite limit on the time that children can be held in such settings.

My Lords, I agree with the noble Earl that it is impossible to say that we can avoid detaining children altogether, but I disagree that we can place on it a statutory time limit of seven days. I am sorry to have to say that because I bow to nobody in my hatred of the need to detain children in whatever circumstances, but if we are to have effective immigration control, there are relevant circumstances, such as when a family needs to be detained together to facilitate its removal. We shall come on to that when we think about alternatives, because my noble friend will move an amendment to implement the destruction of Section 9. You cannot say that we will not bring extreme pressure to bear on people to depart voluntarily if you destroy the ability to remove them compulsorily. One has to consider the two propositions at the same time, however much we loathe the idea of bringing children to a place such as Yarl’s Wood.

I agree with the right reverend Prelate, but it was not my meeting that we both attended. It was organised by a number of women’s groups to hear from people who had to put up with the conditions in Yarl’s Wood and who gave some pretty scarifying stories about them. Every one had a heartbreaking story to tell about their own experience and that of their families—their children, generally speaking. Of course, there was the extreme case that the right reverend Prelate will remember of Janipher Maseko, who was detained apart from her two children. They were separated from her at the time of her arrest and not restored until an enormous fuss was made by various women’s organisations such as Baby Milk Action, Black Women’s Rape Action Project and so on.

The awful thing was that we already had an undertaking from the Minister that women would not be separated from breast-feeding infants except in the most extreme and exceptional circumstances. Yet, after two cases had been reported to the Minister, a third happened under our noses. That was so horrendous to all of us who listened to the facts that we could not believe that a civilised agency of the Government was capable of perpetrating such an injustice. Now, thank goodness, the instruction is embodied in the operational enforcement manual that women who are breast-feeding infants will not be detained separately from their children, except under extreme and exceptional circumstances, and we hope that that will be observed. One of the problems is that these things are put into documents—guidance or instructions—and then something goes wrong, and it does not happen at the coal face. From the stories that I have heard about Yarl’s Wood—I dare say that it is exactly the same in any of the other establishments one looks at, whether Campsfield House, Harmondsworth or Tinsley House—things go wrong, so one should keep the detention of children to a minimum.

My Lords, I say “Hear, hear” to the last two sentences of the speech by the noble Lord, Lord Avebury. It will be very interesting to hear what the Government say in reply. The noble Earl, Lord Listowel, is right, and the noble Lord, Lord Avebury, echoed him: it is not, alas, possible to say that children should never be in detention and it is probably not possible to say that they should never be in detention for longer than seven days. There is the question of separating families: if the parents are not to disappear—if the father is not to disappear—the children may have to be in detention for the briefest possible period. The important thing is how they are treated when they are in detention. That is what we will come to with Amendments Nos. 5 and 16, which are extremely important.

The idea that a teenager should be detained for five months in this context is horrifying. I am glad that the noble Earl pointed that out. That is what happens with systems—they go wrong. It is the Government’s responsibility to try to prevent them going wrong. We all owe it to children to do that. However, it is not possible for me to follow the noble Lord, Lord Judd, in the Lobby.

My Lords, I am grateful to all noble Lords who took part in this debate for the thoughtful and constructive way in which they approached things. The issues that the amendment raises are important. The detention of children is a highly emotive subject and not one that the Government, or anyone else involved in this debate, approach lightly. However, it is regrettably necessary in certain circumstances to detain children, and I welcome this opportunity to set out the Government’s position on the issue.

Amendment No. 3 would prevent the detention of children in all circumstances other than where their detention was authorised under Schedule 3 to the 1971 Act in connection with deportation. There are two limited circumstances in which children may be detained under immigration powers: first, and most commonly, as part of a family group whose detention is considered necessary, usually as a prelude to their removal; and secondly, where it is necessary, wholly exceptionally, to detain a child while alternative care arrangements are made, normally just overnight. This requirement is likely to arise in situations where, for example, unaccompanied children are encountered at ports of entry or during enforcement operations and there are no responsible adults in whose care they might immediately be placed. In such cases, it is sometimes necessary to detain children very briefly, usually for a few hours or no more than overnight, until alternative arrangements for their care can be made, either with relatives or social services. Such detention is wholly in the interests of the safety of the children concerned.

In the more usual case of families with children, they may be detained in line with our published detention criteria, which are: initially, while identity and basis of claim are established; where there are reasonable grounds to believe that the family will abscond; as part of a fast-track asylum process; or to effect removal. In practice, the detention of families with children is most often used to effect their removal from the United Kingdom, and usually takes place just a few days before removal. It lasts for as short a time as possible and most families are detained for a small number of days prior to their removal. We would naturally far rather that families with no lawful basis of stay in the United Kingdom left voluntarily, but where they do not do so we must take steps to enforce their departure, which requires the support of detention. Where it is necessary to detain a family, we consider that it is generally better for children to stay with their parents. In the past, your Lordships’ House has realistically supported that view.

However, we are not complacent about the concerns surrounding the detention of children. I confess that from time to time errors are made, things go wrong and matters are not dealt with properly or appropriately. That is one reason why we have taken the significant step of seeking to place the Border and Immigration Agency’s responsibilities towards children on a statutory footing through the requirement to have regard to a code of practice to keep children safe from harm.

As was referred to by the noble Lord, Lord Avebury, a draft of the code has now been made available to noble Lords. I apologise for the late circulation of that document but it is in a process of change and amendment. As noble Lords will no doubt have seen, the code contains specific reference to the arrangements for taking decisions to detain and the provision made for families with children while detained.

I remind the House that the Government are responding positively to the calls to explore more alternatives to family detention. The agency has developed arrangements with Migrant Helpline to provide an alternative to detention for families with children, and Members of the House have broadly welcomed that.

I can give some more details. The pilot scheme, which will see families housed in a hostel in Kent, is due to begin in November and is scheduled to last for one year. If it proves successful, it will be rolled out nationally. The test will be whether families placed in the hostel take the option of leaving the UK voluntarily. There will be support staff from the voluntary sector and the International Organisation for Migration available to give advice to the families in the pilot on voluntary return packages. If successful, the key benefits of the scheme will be to reduce the number of families needing to be detained, coupled with an increase in the number of families choosing to return home voluntarily.

Where detention is necessary we constantly strive to ensure that detained children spend as little time as necessary in detention and that satisfactory arrangements to monitor their welfare are in place. At Yarl’s Wood removal centre this now includes, as one or two noble Lords have mentioned, full-time, on-site professional social work support. Detention of families with children is a regrettable but necessary element in maintaining effective immigration control and a robust but fair asylum system. This proposed new clause is incompatible with both those aims.

The noble Lord, Lord Avebury, made the point again today—he wisely made it in Grand Committee—that “to prohibit detention” of children,

“entirely would make immigration control impossible and, in the case of arrivals, in many cases it would be manifestly contrary to the interests of the child”.—[Official Report, 23/07/07; col. GC 154.]

That is the Government’s view too.

We fully understand the legitimate concerns and unease about the detention of families with children. That is why we are keen to ensure that families are detained only when necessary, that detention operations are conducted intelligently and sensitively, that families are detained for the shortest period necessary, that they are cared for appropriately while detained, and that alternatives to detention are explored. But ultimately we must retain that ability to detain.

Amendment No. 4 seeks to place a time limit of seven days on the detention of persons accompanied by dependent children, and would impose a requirement for a social services welfare assessment to be conducted before any lesser period of detention could be authorised. I have made the point many times that we have no wish to detain anyone, least of all families with children, for any longer than is necessary. But individuals and families are detained only for as long as is reasonably necessary to achieve the purpose for which detention was authorised, which is usually in the case of families about to be removed from the United Kingdom.

We are keen to ensure that detention lasts for a short period. That is particularly so for families with children. In practice, most families are detained for a small number of days, usually just before their removal. However, we have made plain on many occasions—most recently in the context of discussions surrounding the draft EU returns directive—that we cannot accept a fixed upper time limit to immigration detention, whether for families with children or for single adults. Our position on this issue has remained consistent over a number of years.

While we agree with the premise underlying this amendment that families with children should be detained for a short period, and aim to do that in practice, setting a statutory upper time limit would remove the flexibility to detain families for longer periods when necessary. A fixed time limit, which would be out of step with long-standing UK law and policy and go beyond the requirements of ECHR Article 5, would also simply encourage the families concerned to frustrate and delay matters to exploit our inability to detain beyond the seven-day point, and thus secure their release from detention and avoid removal. That is not acceptable.

The separate requirement that there should be a “satisfactory” social services welfare assessment before any period of detention is authorised is impracticable. It is not clear from the terms of the amendment who is to be assessed, although I assume it is meant to be the dependent child. The detention of families with children is usually a planned exercise which will take into account any welfare issues that might be present, but it will not always be so. Detention may be unplanned and, in such circumstances, it would not be possible to arrange a formal welfare assessment beforehand. In other cases the assessment could well increase the risk of families absconding, or of failing to comply with reporting instructions, if they believe removal to be imminent. More generally, I do not think local social services departments would thank us for imposing this added burden on them.

Children detained with their families are given a health-led initial assessment on arrival in detention, and their welfare is monitored routinely thereafter. Welfare concerns about a detained child are brought to the attention of the caseworkers managing that family’s detention, to consider whether continued detention is right. Detention is kept under rigorous and frequent review at successively higher levels within the Border and Immigration Agency and, ultimately, by Ministers in those exceptional cases of detention beyond 28 days. This ensures that any welfare concerns can be taken into account in deciding whether detention should continue.

I have made the point many times: the detention of families with children is an important element in maintaining an effective immigration control system and a robust but fair asylum system. As with Amendment No. 3, this proposed new clause would seriously hamper our ability to use detention effectively in relation to families, so would be incompatible with those aims.

I well understand the motives and the spirit of generosity in which the amendments have been spoken to but, in terms of the practical application of immigration law and—as I think the noble Lord, Lord Avebury, said—to retain a robust immigration system, we cannot accept them.

My Lords, before the Minister sits down, will he say where in the code of practice on children detention is mentioned? I read the code through before coming to the Chamber and I could not find it. My noble friend has now read most of it and he has not been able to find it. We do not think that detention is mentioned in the code of practice, except where the introduction indicates that the intention is to develop practices regarding detention. Therefore, there is nothing substantive for us to get our teeth into.

My Lords, I am grateful to the noble Lord for taking the time and trouble to go through the code. I, too, intend to give it further perusal. I cannot precisely answer his question. I do not have a copy of the code in front of me, but I take his point and I shall reflect on it.

My Lords, once more I thank all those who have participated in the debate. I have listened carefully to the strictures on some of the arguments that I put forward. Because they come from people whom I respect, I will of course weigh them carefully. However, I do not think that we agree about this. It seems to me that there is a world of difference between what we are saying—that the objective is that no child shall be detained and that detention is no place for a child, just as a prison is no place for a child. Sometimes an exception may be necessary, in which case all the emphasis is on establishing specific, special arrangements in that instance.

The moment that one concedes the principle about the detention of children, the doors open. One must be realistic about the pressures on the people operating on our behalf in the front line of our immigration policy. I have a great deal of sympathy with them. They are under terrific pressure. But that is where the firm intentions, the firm objectives and the firm principles should not be hedged around with people saying, “but of course”. It should be said quite simply that if in certain specific circumstances a child needs to be detained, special arrangements must be made and a special case established. That I would certainly sympathise with. I also think that we muddle in our thoughts the difference between care and detention. We are often talking about children who are in a great deal of need of particular care.

I feel passionately about this. We have hummed and hawed and hedged on the issue of prisons, let alone detention centres, for as long as I can remember in politics. We have never grasped the nettle. The driving force should be that prison is not a place for a child. Has anyone visited an adult detention centre? It is not a place for a child. We should ensure that this is not slipped into because pressure makes it necessary to say, “The legislators left the door ajar and the opportunity open”.

I make no apology for re-emphasising my commitment on that score. I am a little disappointed that some of those in this House whom I deeply respect do not see this point and come behind it full-heartedly. I am also a little disappointed that some children's organisations in this country are not as radical on this point as I believe that they should be.

I listened carefully to what my noble friend said. I said at the outset when introducing my amendments that I was very interested by the amendment standing in the name of the noble Baroness, Lady Hanham. As I said, I will listen to her argument with great attention; I will also listen to the Minister’s reply. In the mean time, I fear that I have to show my weakness—I am a political realist—so, at this stage, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 4 not moved.]

moved Amendment No. 5:

My Lords, on behalf of the Liberal Democrats, I support the new clause to safeguard and promote the welfare of children. Who could vote against such a clause? As with so much else in the Bill, we are here concerned with the effect on children. In previous debates and many questions about ratifying completely the United Nations Convention on the Rights of the Child, we always come to the argument that any ratification should not undermine the United Kingdom’s immigration policy. I think that we can resolve that issue once and for all in the Bill.

Are our commitments to the United Nations and in European conventions to take our place on the international stage 100 per cent, or do we continue to pick and choose and to refuse to ratify certain protocols? We have an opportunity here not only to safeguard children but to reinforce our commitment to international obligations. If we continue to say, “We will ratify this but not that”, we are telling all nations, “You can pick and choose also. If you do not want to approve a certain part of a treaty, there is no need, you can pick and choose”. If we want to lead internationally—this is surely an opportunity for Her Majesty's Government to do just this—in the global sphere, we have the opportunity to do so by saying, “Yes, we will put our obligations to children above that to any United Kingdom policy”.

Noble Lords on the opposition Benches who are not Liberal Democrats might find it difficult to take that point of view, but those treaties were hard fought. The conventions were argued through and through on the international stage. Now, in the 21st century, we can say that our obligations at this level must be agreed to and reinforced. Our obligations towards children in the Children Act 2004, for example, must be enshrined on an international level. We must promote children’s welfare and all ways of safeguarding children. In so doing, we take another step towards international understanding and international action. Two things are involved here: the welfare of the children and the UK taking a lead on a world level. I support the amendment.

My Lords, I have spoken enough on these issues. We are having a complicated evening because the same points will crop up in different contexts all the time. Therefore, many of the arguments that I deployed earlier are highly relevant here.

The amendment is not as strong as I would like, but it goes further than the present situation and in that context I positively welcome it. However, I want to draw to the attention of the House the point about the National Asylum Support Service, the Immigration Service and an immigration removal centre. If we are trying to make a success of social policy, we must get this straight. When dealing with human trafficking, we must see women as victims. Very often what we are dealing with is crime and the victims of crime rather than primarily an immigration problem. In this case, we are dealing with children and the needs of children who are caught up in an immigration problem. If we are going to get social policy towards children right, there is something to be said for ensuring that you have the maximum number of relevant agencies on board in terms of recognising their responsibility for delivering the right results.

My Lords, I also support Amendment No. 5 to which my name is attached. Our discussions arise from Section 11 of the Children Act 2004, which put a duty on all authorities with any responsibility for children to safeguard and promote their welfare. Schools are excluded from that Act, but they are covered by a different provision. Children in prisons and police stations are covered. The only children not covered by that protection are children in the immigration system.

The history of this approach dates from 1997. The Government charged Sir William Utting to produce a report following many years of scandals in children's homes. The report was People Like Us: The Report on the Review of Safeguards for Children Living Away From Home. In his report he placed strong emphasis on ensuring that:

“Departments of State, and agencies with responsibilities for children, should include safeguarding and promoting the welfare of children in their principal aims”.

The amendment would ensure that the Bill would promote the welfare of these children.

Sir William developed his principles further in later reports. He recognised that safeguarding had to be an active process. We must strive to create an overall environment of excellence if we are to succeed in protecting our children where we have failed in the past. Your Lordships may be aware of the Yarl’s Wood detention centre where families have been held for two years. Originally, it was a category C prison and was simply converted to take families and single adults caught up in the immigration system. Staff from Yarl's Wood were drawn from the custodial sphere. There was little understanding of children in its setting up. It is an example of where children are protected from harm—staff are not allowed sexually or physically to abuse those children, so they are safe enough in that sense.

However, it manifests an active process. One should be thinking, “We are setting up an establishment here for very vulnerable children and families. How can we make sure that the welfare of those children is promoted as far as possible given the circumstances? Of course, we must ensure that there is a strong emphasis on social care professionals in setting up this institution. We would not dream of putting these children in a converted category C prison that has bars”.

I am pleased to hear about the hostel that the Government now propose to move families into. But we should be using that active process and thinking through what we should do if we really want to protect children—if we are serious about that. That is what is omitted at the current time and needs to be caught.

The noble Baroness, Lady Hanham, referred to the Government’s concern about judicial review and the legal opinions that have been brought forward by the Refugee Children's Consortium. Of course, the Government have recently tightened restrictions on judicial review. The Government should be reassured by those steps that their concerns are not well founded.

The difficulty is that we are distinguishing these children from all the other children in this country. We say that “every child matters”. The Government’s legislative framework for children in this country is probably the best in Europe in terms of legislative protection, but then we single out these children from all the other children in the country. That cannot be helpful. We are stepping away from the bitter experience of all our failures in the past in children's homes and other settings, which has informed the thinking that found its fruition in the Children Act 2004. To my mind, it would be most ill advised of Her Majesty's Government to choose at this time to separate the safeguarding and welfare promotion in their thinking about protecting children. I hope that the Minister can move some way forward on that. I welcome Clause 21, which is a step in the right direction.

My Lords, as I said before, I support the amendments. The noble Earl said some important things about them.

In its leader today, the Guardian was rather rude about my party and said that it was weak on this subject. I hope that when these amendments are read, particularly if the Government are persuaded to accept them, the Guardian will appreciate that my party minds very much about what happens to the children of aspiring immigrants. There are huge problems about how you deal with the matter, but we try very hard. The amendments are a good attempt to make sure that all the agencies that are dealing with the matter have regard to safeguarding and promoting the welfare of children.

The amendments add to what the Government have already done in Clause 21 by issuing a code of practice. They also add to and amend the Children Act 2004. However, they are faulty to the extent that they do not also amend the Scottish children's Act, which they would have to do. Should the amendments be accepted, the Government could no doubt attend to that because the principle would be there. I support the amendments.

My Lords, I am delighted that the Conservative Party has embraced these amendments. There is huge support in the country for them and the Minister will have to take note of that. We need this in legislation. When the noble Lord, Lord Avebury, asked whether the Minister had read the code and had found the words “children in detention”, I could not help but look at the Bill and I could not find anything about children in detention. I do not think that the Government have grasped this potentially major election issue. I hope that the Minister will not give us a smokescreen. The draft code of practice is a smokescreen and not the real thing.

Who are these children? I shall comment briefly on them because I have just returned from Afghanistan. My eye was caught by the Home Office statistics for the first quarter of this year which shows that 1,000 Afghan unaccompanied asylum-seeking children are coming here every year, amounting to 38 per cent of the total and the highest percentage in eight consecutive quarters. Having just come back from that country, I appreciate why families are trying to get away. I do not appreciate why the Government are not taking account of individual groups of children. Perhaps the Minister can make reference to that.

There is a duty of care. I mentioned a case from Kosovo in Grand Committee where a family was divided in a dawn raid and taken to Yarl’s Wood in various components—some were in hospital and some were not. The Home Office is not taking this issue seriously enough. I warmly support the amendment.

My Lords, this has been a particularly striking section of this debate. Among the many remarkable speeches, I felt especially privileged to hear the speech made by the noble Earl. I hope very much that the Government will accept these amendments, particularly Amendment No. 5.

I shall make three observations on what the amendment suggests to me. I hope that the first will not undermine the Government’s preparedness to accept it. The language of,

“to safeguard and promote the welfare of children”,

must include the agency’s thinking as it prepares, as it sometimes does, with the courts to argue for the deportation of children as well as adults to places to which people should not be deported. I shall say no more than that, but I have had a good deal of experience this year of that set of questions, particularly in relation to the DRC.

Secondly, I wonder about the language of,

“an individual who is less than 18 years old”.

I hope that it is not mistaken to mention the number, as I have heard and read, of plausible stories of agencies seeking to age children by means that are not fully usable or responsible and even agencies—social services as well as perhaps the Home Office—which have aged children as more than 18 years old when they are less than 18 years old by most likely estimates.

Thirdly, of course there has to be a cut-off point, which, under the Children Act, is 18 years old. I also have evidence of young people who, straight after their 18th birthday, are taken in and proposals are made to deport them to places where, because they have been entirely brought up in this country, they do not speak the language and deportation would be entirely unsuitable. There is also a question of safeguarding and promoting the welfare of children which cannot stop the day after their 18th birthday.

My Lords, this amendment, combined with Amendment No. 16, is helpful. I support it and I urge the Government to accept it. Perhaps I may be allowed to make a tiny drafting point. The last line of Amendment No. 5 would be improved if it read a “child means a ‘person’”.

My Lords, the right reverend Prelate has a point when he says that the conditions of a country of origin should come into considerations of the welfare of the child. When the noble Baroness was moving her amendment, she was very assiduous in underlining the fact that we are talking about the way that the Border and Immigration Agency carries out its duties and not the primary functions it has to discharge in pursuance of the Immigration Act.

We should maintain that distinction in our minds. As the right reverend Prelate correctly feared, it is this point which makes the Government reluctant to accept the wording of the amendment. They will say that if this is on the statute book, people will not be able to deport children and that they would have to cope with massive judicial reviews immediately prior to the exercise of these functions. I prefer the interpretation of the noble Baroness, Lady Hanham, of the amendment; namely, that it applies to the way in which the BIA discharges its duties and not those concerning its primary statutory functions as safeguarding the immigration control of this country. If we make that distinction there will be no problem, but if we fail to separate the two things in our minds and we allow the Minister to claim that we are enabling a coach-and-horses approach to JR, we will never be able to persuade the Government to accept it.

I wish to emphasise one other point. I agree with the noble Baroness about bringing in the contracted-out functions under subsection (1)(b) of the amendment. An increasing number of duties placed on the BIA are contracted out to private organisations. It is important that they should be constrained by the same rules as those who exercise these functions on behalf of the BIA. Detention centres are all managed by independent companies—for example, Yarl’s Wood, Tinsley House and Harmondsworth. I think that every one is managed for the BIA and not by the BIA. Therefore, it is essential that this clause should apply to them as it does to the BIA.

Finally, the contracted-out functions also are not in the code of practice. I am afraid I have to say that this document is a great disappointment. I am not altogether surprised that the Government made it available to us only at 3.14 pm. They presumably did not really want anyone to pick holes in it during these proceedings. If this is what the final document is to be like, it is an enormous disappointment and Clause 21 will be an equal disappointment to your Lordships if it is found to be a false prospectus. I hope that that is not the case and that this draft can be considerably improved before we see the final version.

My Lords, I, too, support Amendment No. 5 and wish to add to the evidence produced by noble Lords on the needs of those who are not eventually deported. My experience has been with families and children who have spent time in detention but who for a variety of reasons have not in the end been deported. I have had contact with their teachers in the community and have heard of the damage which their teachers believe has been done to those children during the time that they have spent in detention. While it may not be possible to avoid that, a clause like this would provide some defence against the treatment which those children have experienced.

We have heard a lot about extreme circumstances and the wholly exceptional. My difficulties are with those circumstances that do not seem to be extreme or wholly exceptional, but in which people are taken into detention and there is no clear indication that they are actually going to be deported at the end of that time. It adds to the evidence which noble Lords have produced that we really do need a clause to provide real protection for children. If the Minister cannot accept the amendment in this form, I hope that he can indicate what provision he will be able to make for children who come into the detention sector in this way.

My Lords, I thank all noble Lords who have contributed on this important set of proposals with their usual thoughtful observations. I recognise completely that this is a sensitive issue and one which obviously excites all those concerned about the welfare of children. I am entirely at one with the motive behind the amendments, even if I cannot find myself in agreement with them. We must all make sure that we do the best for those that come into our care, and I understand why noble Lords have been so exercised on this issue.

Before I go into the detail of the amendments, it is worth responding to the general point made by the noble Lord, Lord Avebury, about the draft code which has been circulated. I answer the question about why the code does not refer to detained children in this way: the code does not make a specific reference because it has been designed to cater for the multiple circumstances and situations where BIA staff come into contact with children. The code states clearly that it will identify those specific situations which will include detention and then issue instructions to ensure that staff are responsive to the needs of children in those particular circumstances. Perhaps I may also make another point regarding the document. In bold and at the top it states:

“This document represents a high-level draft which may be amended before being issued for formal consultation”.

So it is at a stage before it is put out for formal consultation. In that context, I should say that we are extraordinarily grateful to the children’s charities—I will not draw attention to individual charities—for their help and assistance in our thinking on this issue. Their knowledge and insights are valuable and inform us on our approach.

I am sure that noble Lords who have considered the issues presented by these proposals will share my view that it is a question of means and not just ends. Many measures that have the effect of safeguarding children are already in place and have been so for many years. Noble Lords will be aware of those measures from our debates in Grand Committee. I should like to focus on what the Government are proposing to do next so that we can make things better in the light of an up-to-date appreciation of children and migration issues. Amendment No. 5 seeks to amend Clause 21 so as to broaden the scope of the Border and Immigration Agency’s duty in relation to children, bringing it into line with the safeguarding duty in Section 11 of the Children Act 2004. It also seeks to impose the same broad duty on contractors providing services on behalf of the Border and Immigration Agency. A number of noble Lords made reference to that. I ought to make it clear at this point that we sympathise with the part of the amendment which seeks to secure that contractors providing services on behalf of the agency should have the same responsibilities in respect of children, but not with the nature of the responsibility proposed. I ought also to make clear that this is a point I shall return to when we come to debate Amendments Nos. 23 and 24 to Clause 21, which I hope is of assistance.

On the other hand, Amendment No. 16 seeks simply to make the Border and Immigration Agency subject to Section 11. Essentially, admirable though the Section 11 duty is at the level at which it has been introduced, it creates uncertainty as to how it can and should be applied in the immigration context. That uncertainty is undesirable both for applicants and for those who have to implement legislation. That is why the Government believe that a code of practice both standardises what the duty actually is and makes more transparent our commitment to safeguarding children. It is the most appropriate means by which to deal with the issue.

Before I come to the code, I would like to make some points about the amendments. First, it is inaccurate to insist that these amendments are necessary to avoid children being left unprotected. The legislation that currently provides protection for children operates regardless of a child’s immigration status. Secondly, we do not think it appropriate for the Border and Immigration Agency to have a duty which requires it to have regard to ensuring that children are growing up in circumstances consistent with the provision of safe and effective care and to undertake that role so as to enable those children to have optimum life chances and enter adulthood successfully, as the statutory guidance accompanying the duty requires. While the duty is not intended to interfere with the performance of the agency’s primary functions, we are very concerned that the breadth of the duty would invite challenges to our decisions on the basis that they do not promote a child’s welfare. Experience shows that many of these challenges would be made simply as a means of frustrating the implementation of quite legitimate immigration control. They could add to the already frequent attempts to delay removal or hinder other aspects of immigration control functions. For those reasons, I must resist the amendments.

However, it may be helpful to explain in more detail why the agency cannot take on a wider welfare role such as that envisaged by Section 11. The primary function of the Border and Immigration Agency is to protect UK borders by implementing and enforcing immigration legislation. This involves determining whether someone in the UK is lawfully here or not. Durable solutions for a child’s future can be made by the agencies principally charged with those responsibilities. In reaching that determination, the Border and Immigration Agency must ensure that it looks after children quite properly. However, it cannot realistically assume a responsibility for promoting the welfare of children in the longer term, given that its primary purpose is to ascertain whether the child’s presence in the UK is lawful and to take appropriate action on that basis. It is therefore appropriate to define the agency’s responsibilities towards children in terms of keeping them safe from harm.

It is important to be clear what this means, and the code of practice that we are proposing will do this in detail. The proposed code of practice commits the Border and Immigration Agency to doing the following things. We will identify specifically those situations where we come into contact with children, whether face to face or on paper, and we will ensure that we handle those situations in ways responsive to the needs of those children. We will keep staff informed of the professionally accepted signs and indicators that help to identify when a child may be at risk of harm and give them the confidence to take action. We will take action where relevant by referring a child to the appropriate agency—that with the principal statutory responsibility, usually the local authority.

While we cannot anticipate fully the areas of work of the independent Border and Immigration Agency inspectorate, we can and will encourage the chief inspector to look at the reasons for detaining families with children, the way in which they contribute to the outcome of the immigration process, and the nature and quality of the recorded information about detention. We will consider and evaluate alternatives to detention. We will require all staff to undertake an introductory training course in how to identify and be responsive to children and their needs. That training has of course been prepared with input from groups outside the agency, and is ready to be introduced. We will identify and train a children’s adviser in each business unit to act as a point of reference when an issue involving a child arises, such as whether to refer to another agency or not. We see the creation of this role as an important part of embedding a change of culture and approach to children within the agency. We will increase our participation in the local safeguarding children’s boards and will develop and keep up to date a protocol with the family courts on how to approach cases where a child subject to immigration control is likely to be made the subject of a care order. We will take part in appropriate information sharing with other agencies that have responsibilities for safeguarding children.

The code is a significant programme of work for the agency where the aim is to encourage staff to realise how they can become more responsive to the needs of children. It also requires staff to be vigilant and to make every effort in their work to keep children safe from harm.

My Lords, I thank the Minister for his reply and I thank all of those who have contributed to the debate and who have supported my amendment. I am grateful to the Minister for letting us have a copy of the code of practice, but it is a bit late. After listening to what he said in his response, it seems to me that what we have got is probably not complete. It categorises itself as a high-level document and some of the criticisms which have arisen from the noble Lord, Lord Avebury, and one or two others, are probably brought about by the fact that it clearly does not quite cover all the areas that it is going to cover. I gather from the way the Minister has put his points when talking about the future that indeed there is far more to be done on this code of practice than is here before us. So it will not help a great deal as we consider whether the amendment should continue to be moved.

I think I am grateful for the Minister’s sympathy with the contracting-out aspect. I hope in expressing that, he means that he will come back at a later stage with something which will help us with that issue. Where other agencies are involved, it is terribly important that they are covered by this code of practice. It is essential that anyone dealing with children under these extremely difficult circumstances should at least be following a common line so that all agencies know what they are doing and are all doing the same thing. That may or may not be covered—it was not absolutely clear whether it would be—but I hope that later on in the Bill the Minister will be able to help on that issue, although I am not going to count on it.

I turn now to the main part of the amendment which concerns the safeguarding and welfare of the child. Again, I hear what the Minister says—that the Border and Immigration Agency cannot have a responsibility for the welfare of the child—but if the agency does not have responsibility for the welfare of the child, who on earth does? The children are within its control and within its remit. It may be that that throws it a little wider as far as responsibilities are concerned under the Children Act, but at the moment these children are outside all the areas that will keep them safe from harm and look after their welfare.

I thank the Minister for his rather limited response to the amendment. Clearly, it is too late for us to give proper time to the code of practice as it appears at the moment. As the Minister is absolutely adamant about not including a duty to promote the welfare of the child, I wish to test the opinion of the House.

My Lords, I beg to move that further consideration on Report be now adjourned, and in moving this Motion suggest that the Report stage should recommence at 8.46 pm.

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

asked Her Majesty’s Government what is their assessment of anti-Americanism in the world.

The noble Lord said: My Lords, I am most grateful to the usual channels for arranging this debate, and I thank noble Lords who are here to speak today. I am looking forward to the contributions of distinguished speakers and, with great anticipation, to hearing the responses of my noble friend Lord Howell and the Minister. I also thank the House of Lords Library and the Politeia think tank for their help with preparatory research for this evening’s debate.

Americans today may be perplexed and confused about the way in which America is perceived in the world. They may feel like Josef K in Kafka's The Trial. Noble Lords will recall the opening lines:

“Someone must have laid false accusations against Josef K because one morning he was arrested without having done anything wrong”.

Accusations against America have spread into a global phenomenon, crossing borders, classes, religions and generations. A Pew Trusts research poll in 2005 concluded that anti-Americanism is deeper and broader than at any time in modern history.

America’s critics can be heard everywhere. This is how they make their points—I have heard every one of them myself. America is too in love with money, worshipping the god of the market place, the golden calf. It has too much money: seven of the top 10 banks, eight of the top 10 companies, and so on. It is too stingy, giving away less of its wealth to poor countries than others. It is vulgar, a rich barbarian. It has a lowly culture yet practises cultural imperialism. It makes people dread “Americanization”. It is arrogant and condescending to what were called the “little monkeys” from other cultures. It is too religious, saying “God Bless America” once too often. It has too much power, spending more on arms than the rest of the world put together. It is a hypocrite, disguising its wars of self-interest as humanitarian interventions and exporting democracy at the point of a bayonet. It is inconsistent, agitating for regime change in some undemocratic countries but to others giving arms, aid and trade.

So it goes on. America has an incoherent foreign policy. It abandoned the “no first strike” principle which kept the peace for decades; pre-emption replaced deterrence but has no basis in international law. It is too close to Israel. It resists multilateral solutions, preferring unilateralism, hegemony, a sheriff strategy—“In guns we trust”. It has aroused the envy of Europeans, causing them to want to form a rival power bloc. It has hit an ideological brick wall: the Great Wall of China, where state capitalism works. It has not solved the mystery of Islam. And it is not even a democracy, as a 44 per cent turnout in presidential elections proves.

The accusations against America are endless. I have heard them all, all over the world. Speaking up for America has become a lonely ordeal. Perhaps the accusations are all untrue. Josef K protested his innocence on the basis that he was a victim of false perceptions; perhaps America could do the same. Unfortunately for America, all of us know the power of perception over reality, which is why David Kilcullen, seated at his desk in the counterinsurgency section on the second floor of the State Department building in Washington, was right to point out that, like the IRA before them, America's enemies today are “armed propaganda organisations”.

The jury of world opinion is no different from the jury in a court of law: it seeks motive and intent. It wants to hear America's true motive, and it wants it to be something good in the moral sense. We recall Alexis de Tocqueville’s conclusion at the end of his famous voyage around America:

“America is great because she is good. If America ceases to be good, America will cease to be great”.

That was why President Reagan, when he addressed another place, asked Americans never to allow themselves to be placed in a position of moral inferiority.

Today, whether the American motive is pure or not, the one certainty is that, in recent times, America has proved unequal to the task of expressing it. Before globalisation it was possible—at least in theory—for America to be isolationist. It was possible to say of another nation, as Prime Minister Neville Chamberlain said about Czechoslovakia in 1938, that it was:

“a faraway country of which we know little”.

Now there are no faraway countries, and there never will be again. Each day, we have a clear, stark and often alarming view of our multi-ethnic planet. Americans once brilliantly transcended the inherent fragility and insecurity of their own multi-ethnic community. In George Washington's own words:

“The bosom of America is open ... to the oppressed and persecuted of all Nations and Religions”.

Woodrow Wilson called it,

“the great melting-pot of America”,

and made it the prototype of a diverse society. E pluribus unum: one out of many. My main point is that it is to the new melting pot of the world that America can bring, if only it can find a way to express it, its unique message.

America, as we know, was born out of a desire for self-determination, a longing for the human dignity that only independence can bring. That is what the pilgrim fathers hoped when, inspired by the scriptures, they announced their aim to create,

“a City upon a Hill”,

their new Jerusalem. Americans of all national origins, religions, creeds and colours would hold in common the ideals of the essential equality of all human beings, of inalienable rights to freedom, justice and opportunity. America would embrace meritocracy before hierarchy. Its frontier spirit would mean anyone could do well if they were determined. In America, nothing would be impossible. Americans would breathe free, with freedom of speech and thought for all men and women. These were the motives that made America the inspiration for so many millions of people: not its wealth, but its intense belief in its moral purpose.

Does the Minister agree with me that to disarm its enemies and defeat its rivals, America has only to focus its intellectual energy and vast economic resources on the policies which would help the world follow its lead; to find the language to project its founding ideology beyond its own shores; and to remind the world of its ultimate belief in self-determination, individuality and independence, and in democracy only as a means to that great end? To do that will require a marching tune that people can respond to, so that Americans can once again, as the pilgrim fathers intended, show the world the American way.

The outcome of the battle of ideas between Americanism and anti-Americanism will set the tone of the 21st century. It will be the decisive ideological struggle of our times. America has a fine ideology, but it has forgotten either what it is or how to express it. America today is a sleeping beauty. It is time to wake her up.

My Lords, I congratulate the noble Lord on his speech and his fascinating choice of subject. I shall share three brief reflections.

First, is there a generalised anti-Americanism, or is there a core, much of which would attach to any superpower and which contracts or expands according to particular events such as the Iraq war? Indeed, one might also ask how much anti-Americanism today is generated by the Bush Administration, which one did not see, for example, in the time of President Clinton. In any event, it is probably more valuable not to examine specific examples of anti-Americanism, as the phenomenon varies so much between, for example, Latin America—from the Monroe Doctrine on—to the Middle East, where there are specific issues. But whatever the faults of the US, in my judgment they are more than counterbalanced by the vibrant democracy which certainly de Tocqueville saw, the values of which we mostly share. If there has to be a world hegemon, there are probably few better candidates than the US.

Secondly, since the noble Lord selected this subject, an issue of Newsweek has appeared, on 10 September, the cover of which read:

“The end of anti-Americanism: Europe tires of bashing a lame-duck President, and rediscovers the upside of American power”.

There is also some evidence of a greater recognition by the US that the reluctant sheriff cannot do it alone. He needs allies, and unilateralism does not work. There have certainly been important changes in the European Union as well, particularly with the newer countries. One thinks, for example, of the Czech Republic and Poland allowing missile bases on their own territory. Chancellor Merkel is a vast improvement in this respect, on policies such as that towards Russia, over Chancellor Schroeder. President Sarkozy and Foreign Minister Kouchner symbolically took their holidays in the US. President Sarkozy spoke warmly of the transatlantic relationship in his remarkable speech to French diplomats at the Elysée on 27 August, and has given hints of movement on French policy with regard to NATO.

Thirdly, and finally, it is possible to detect a rethinking of the United Kingdom’s attitude to our bilateral relations, a questioning of whether in the post-Cold War period it is in our interests—or, indeed, those of the US—that we should be, to coin a phrase, joined at the hip. I cite in support David Cameron, although his speech was somewhat marred by a negative attitude to the European Union; David Miliband’s speech at Chatham House on 19 July; and the inaugural lecture, and the refined article which followed in International Affairs, of Dr Robin Niblett, director of Chatham House. From these speeches, I draw two conclusions: we need to maintain close and warm links with the United States, our key bilateral ally, particularly in areas such as counterterrorism; but our interests over great swathes of policy put us closer to the European Union than to the United States. I think not just of international trade issues but areas of growing importance such as climate change, weapons proliferation and Iran. And, of course, for the United States, dealing with Islamic terrorism is a threat to be countered abroad, whether in Afghanistan or Iraq, but for us and our EU allies it is a sensitive domestic issue. It therefore makes sense for us and our European partners to co-ordinate our policies before agreeing on terms in the transatlantic area. Surely it benefits the United States that we and Europe increase both our hard and soft power and extend our external influence by closer co-operation, and it is not anti-American to say so.

My Lords, I congratulate my noble friend Lord Saatchi. As always, he has approached this subject with flair, originality and imagination.

A former president of Mexico once described his own country as “so far from God, so near to the United States”. Anti-Americanism has always existed, a mixture of envy and other factors. I wanted to speak in this debate as someone who has been passionately pro-American all his life. As a young man at university I was obsessed by America. But I have to confess that in recent years I have become more and more disillusioned with American policy. It is absurd to talk about anti-Americanism in the sense of its people, because one cannot be against a people. One can be against a country’s policy at a specific time. Although that policy will change, a lot of disillusionment with American policy is felt today.

My noble friend instanced several things that we all admire about America, including its history of religious freedom and the melting pot of cultures. I would cite as a wonderful example of American freedom the invitation to President Ahmadinejad to express his extraordinary views at Columbia University. It was remarkable.

Alexander Hamilton’s idea of American exceptionalism has always been a historical myth. America, like other countries, was formed by blood, iron and conquest; its history is not untainted by colonialism. But why has anti-Americanism increased today? Why is it no longer the city on the hill to which my noble friend referred? America is increasingly perceived as just another nation state pursuing its own national interest in a rather ruthless way. It is ironic that America wanted to promote early international institutions such as the League of Nations and the UN to curb European power and that the European powers wanted to avoid them. We seem now to have moved to a world that is the other way round, where America wishes to avoid international institutions.

Henry Kissinger once observed that, given the preponderance of American power, the United States did not need allies but needed to pretend that it did. That pretence seems to have gone in recent years. Britain has been a good friend to the United States in recent years but has not received much in return. In the venture in Iraq, it has gained very little influence in return for the great investment that it has made. At times, it seems that diplomacy is relegated to a minor role. I was astonished to see the applause that greeted Barack Obama’s threat to bomb Pakistan without consulting and against the wishes of the Pakistani Government. He seemed to think that it was legitimate for the United States Government to be able to do that. What was the reaction of the press? The Wall Street Journal applauded Obama because he showed that he was prepared to use force—which is not the criticism that people usually level against the United States. I fear that America has squandered the almost-universal sympathy for it that was felt after 9/11, partly because of its tactics in the war on terror and the use of overwhelming military force, sometimes deciding that it is justifiable to flatten a whole village even though there may have been just one suspected terrorist in it.

The reputation of the United States has been harmed above all by the departure from its own values and standards—the episodes of rendition, the secret prisons and events in Guantanamo Bay and Abu Ghraib. It is astonishing that an 80 year-old man and 15 year-old children should have been released from the detention camp in Guantanamo Bay. We have to look at how these things appear from the other side of the world. I remember visiting Tehran two years ago. In the middle of its skyscrapers were massive photographs of Abu Ghraib. Every one of those pictures was taken from western newspapers. Tremendous and unprecedented damage has been done to America’s reputation by America itself. However, it is not a lasting thing, and things will change. Another Administration and another policy will arrive and America will once again be a city on the hill.

My Lords, I join other noble Lords in thanking the noble Lord, Lord Saatchi, for gaining time for this debate. I initiated a similar debate in the other place nearly 25 years ago, since when the general arguments have changed little. Anti-Americanism in Europe has existed for a long time. It began to take shape at the moment when President Wilson invited Congress to declare war in 1917, altering the course of American foreign policy. George Orwell observed just after the last world war that,

“the orthodoxy, the parrot cry of the moment is anti-Americanism”.

Anti-Americanism has never been confined to the left; many leading figures on the right have nursed a social and cultural disdain for what they perceive as the excessive individualism of the American way of life, and they resented American hostility to our empire. Now some serving politicians in the United States and Britain, lacking historical knowledge or imbued perhaps with doctrine, have tried to counter anti-Americanism by subscribing to the artificiality of the special relationship, which was described by Raymond Seitz, a distinguished United States ambassador to London and known by many of your Lordships, as,

“a knee-jerk catchphrase, almost like an advertising jingle”.

He added:

“The two countries have never been diplomatic doppelgangers”.

Anti-Americanism should not be confused with candid friendship or opposition to a particular American policy, as the noble Lord, Lord Lamont, argued. Until recently, British Governments were clear eyed about this form of diplomacy. Winston Churchill, half-American by birth, saw red with Administrations in Washington. Harold Wilson kept Britain out of the Vietnam War, to the anger of Lyndon Johnson. At Reykjavik, our then Prime Minister challenged conventional wisdom in Washington and was respected for it. Britain’s candid friendship contributed to the end of the Cold War.

However, the post-Cold War world did not lead to the emergence of a single great power, although that view was lost on the neocons in the United States as well as some politicians here. They have since learnt that America can no longer pretend to be an independent actor on the world stage. Its military limitations have been shown up in Iraq; its relative economic strength is on the wane. We reside in a multi-polar world, with a loose European federation, a reviving and distrustful Russia concerned about encirclement, radical Islamists, China and India emerging as leading contenders and Iran playing all sides against the middle. The surge of capital flows is beyond the control of any single Government, however powerful.

In this unfamiliar landscape, anti-Americanism mounts by the month. We as candid friends must strive to persuade the next American Administration that the multi-polar world requires Washington to follow more sophisticated diplomacy unilaterally, with partners, and through established international institutions, most of which were created by the United States in any event.

The new multi-polar world presents a subtle tapestry. It must seem puzzling to clusters of policy makers, because, by nature, Americans look for instant solutions, which do not exist in this case. The British Government must be a candid friend. They must perform that duty to help curb the scale of anti-Americanism after the catastrophe of the joint venture in Iraq.

My Lords, I congratulate the noble Lord, Lord Saatchi, on initiating this debate. I assure him that I am a paid-up member of the AAA; that is, I am certainly anti-anti-Americanism. Anti-Americanism, as the noble Lord, Lord Lamont, hinted, is an incoherent phenomenon a little like anti-globalisation, if only because the United States is such a diverse and contradictory society. I become irritated by far-left critiques of America, because America is the source of some of the most important radical movements of modern times, including environmentalism, modern feminism, civil rights movements, freedom of speech movements, gay rights movements and many others.

Of course, anti-Americanism, as has been said, has a long history. It goes back to the early 19th century. In Europe, you find a strong strand of it in the relationship between the French and the Americans. Talleyrand said that he had never met an Englishman who did not feel at ease among Americans and had never met a Frenchman who did. A book called L’ennemi américain documents that long history.

As other noble Lords have said, something different is happening now; there is a tremendous surge of distaste for America around the world. It certainly involves the sorts of things to which the noble Lord referred, but it would be foolish not to recognise that what passes for anti-Americanism today is the result of recent foreign policy, specifically the foreign policy of the current Administration—not so much on Iraq but in their philosophy of international relations as announced by President Bush in his speech at West Point in 2001. He said that international relations should be defined as a system of power, that America would be the pre-eminent power and that no country would be allowed to rival America militarily. Condoleezza Rice spoke, too, of the “illusory international community”. That philosophy systematically undermined the previous commitment that the United States had to a multi-polar world, which also explains a good deal about the surge in anti-Americanism. As the Pew and Marshall foundation surveys have found, that is something new, and I think that it is strongly influenced by that philosophy of foreign policy.

I am 100 per cent behind other noble Lords who have said that, although the relationship with America will be slow to repair, it can be repaired by a return to Wilsonian ideals and the framework of co-operation that America built in the post-war period. That is surely the future in a globally interdependent world. I, along with other noble Lords, hope that the President of the United States will return to a Wilsonian framework of co-operation and be prepared to help to rebuild the United Nations as a focus of world influence.

I conclude by asking a question of the Minister. It has been reported in several newspapers over the past week that the Prime Minister is prepared under certain circumstances to accept American military intervention in Iran. I would like him to reassure me that those reports are false.

My Lords, I, too, thank my noble friend and congratulate him on initiating this debate. The beginnings of the tide of anti-Americanism can be found in Europe soon after the end of the war. I am not discussing the state-generated antipathy of the communist bloc, which has left its legacy for two ensuing generations. I am talking about the attitude of the French, as did the noble Lord, Lord Giddens, particularly under de Gaulle. While the rest of Europe was gratefully accepting American largesse to assist in reconstruction via the Marshall plan, de Gaulle was still smarting at the way in which those whom he called “the Anglo-Saxons” had attempted to sideline him in the battle for Europe. De Gaulle’s attitude effectively kept France out of NATO for a long time.

But all of that was nothing compared to the ever increasing swell of anti-Americanism engendered by America’s support for the state of Israel. It is totally wrong to suggest that Arab anti-Americanism is caused by the recent invasions of Iraq and Afghanistan, although they certainly have not helped. Two American embassies were blown up in Africa, one American barracks was blown up in Lebanon, an American warship was attacked and badly damaged in the Red Sea and the World Trade Centre was attacked twice—once with the devastating effect that we all know—before the Americans invaded Iraq. Of course, it was a mistake at the end of the first Gulf War not to have dealt with Saddam Hussein then and there. The Americans held their hand and contented themselves with simply booting the tyrant out of Kuwait rather than crushing him completely, in order not to offend the Arab world. Unfortunately, that was regarded as a sign of weakness.

We are dealing with regimes that regard the British and American concept of democracy as a complete anathema. The Americans made a fatal diplomatic error in backing the Shah of Persia against the no less despotic theocracy that took his place and then backing Saddam Hussein in his war again Iran. No wonder the Iranians are anti-American. The turmoil in the Middle East has given rise to a brand of Islamic fundamentalism that preaches the overthrow of everything that is not Islamic, and America is not the only victim.

Then there is the anti-Americanism to be found in South America, stirred up by the communist state of Cuba, to which the Americans behaved foolishly at its inception. Cuba had every reason geographically to want to be friendly with the United States of America, but American foreign policy drove it into the arms of Russia, and it was used as a staging post to corrupt the friendly relations that America had enjoyed with its South American neighbours because of America’s benign application of the Monroe doctrine. The problem in South America was further exacerbated by America’s self-defence against the drug cartels operating there.

I need not say anything about the disaster of America’s intervention in Vietnam, which was the result of its fear of a so-called domino effect that might have turned parts of Asia into another communist fiefdom. The Americans have paid heavily for that—in lives, in reputation and in social unrest at home and anti-Americanism abroad. I find it paradoxical, however, that apparently 60 per cent of South Koreans consider the USA a colonial power when little over 50 years ago they were begging the Americans to rescue them from North Korea and China.

The straightforward fact is that the world is a better and safer place because America is the one superpower. The world would be a more dangerous place if what happened in the 1930s was repeated and America was driven back into isolationism and persuaded to pick up its football and go home. Cheap jibes at occasional American heavy-handedness and cheap jibes about its presidents, not just the present one, are all too easy. Western democracy needs a strong America. Indeed, the whole world needs a strong America, and we should support it.

My Lords, I congratulate my noble friend Lord Saatchi on securing this debate, which focuses on an important issue affecting all parts of our society today. The special relationship between this country and the United States has been of great importance to this country for many years.

First, we need to be clear about definitions. It must be possible to question the approach of the Bush Administration without being labelled anti-American. Similarly, it must be possible to support the policy of the Administration without being labelled America’s poodle. A mature debate is essential.

We must return to the best traditions of the special relationship, which means being a critical friend and not one who occupies the role of unconditional associate in every circumstance. We need to be solid but not slavish in our approach to the United States. In regard to the real value of our special relationship, we can tell the truth candidly and boldly without damaging that relationship. Historically, we may be the junior partner in the relationship but that should not reduce our strength. I emphasise the contributions made by Winston Churchill with President Roosevelt, Margaret Thatcher with Ronald Reagan and John Major with George Bush Sr. These Conservative Prime Ministers undertook this with skill and success. I agree with David Cameron that we have recently lost that art.

One of the prime reasons for any ill feelings towards America is its recent foreign policies, particularly the invasion of Iraq and subsequent lack of adequate planning. There was a detailed programme yesterday on BBC2 on the torture and inhumane treatment of prisoners at Bagram, Abu Ghraib and Guantanamo Bay. Some of the people who were tortured were innocent. There has also been disquiet relating to the rendition programme.

For America to gain the support of the various communities in this country and abroad, there needs to be an orderly withdrawal from Iraq and America needs to use its influence in finding a solution to the problems in Palestine. There needs to be a peaceful resolution of the nuclear issue relating to Iran.

I commend and appreciate the gentle side of America. My wife and I, with other Muslims, were entertained by the American ambassador in breaking the Ramadan fast last week. Everyone at the American embassy was very polite and courteous. I chair the Conservative Muslim Forum; we have built a very healthy relationship with the cultural attaché at the embassy and we have held some fruitful meetings.

My Lords, I did not recognise much of what the noble Lord, Lord Saatchi, said. His statement that Americanism versus anti-Americanism is the defining theme of the 21st century seems to me simply not to be the case. We face a whole range of challenges in the 21st century: climate change, global development, population growth, terrorism and the relations between different civilisations. The idea that we can divide the world into simple dichotomies—black versus white, good versus evil—is part of what has gone wrong with Bush and the neoconservative foreign policy. President Bush has said that those who hate freedom oppose the United States. The assumption is that the United States represents good and freedom and that those who oppose the United States and oppose American policy hate those very things. I have heard neoconservatives talk about the United States as a righteous nation, assuming that everything that the United States does is righteous and that those of us who criticise US policy are therefore necessarily unrighteous.

When I first went to the United States in 1962, the same sort of tactic was being used against liberals and Democrats—they were called “un-American” if they criticised the views of the American right. I spent three very happy years working and studying in the United States, in the immensely optimistic period of President Kennedy and then of President Johnson. I went back two years later, as things began to go bad with Vietnam. I have seen a lot of the United States since then. In 2002 I was invited to introduce a session at a National Intelligence Council conference on anti-Americanism. There was a much more nuanced discussion among the American intelligence community about the differences between generic anti-Americanism—from those who naturally feel opposition to the dominant power, whichever the dominant power may be—and the specific anti-Americanism that it was recognised had grown in opposition to American policies.

We have heard in this debate what has led to this surge in opposition to American policies, although not to the United States as such: the denial of climate change, the opposition to international law and the international institutions, the in-your-face nationalism of people such as John Bolton, the Guantanamo Bay experience, the whole Middle East policy and the aggressive anti-Europeanism that many have had. I recall people from the American Enterprise Institute and the Heritage Foundation saying, when I published an article in Foreign Affairs in 2001 suggesting that the United States still needed a partnership with Europe, that to make that argument was anti-American in itself. We need to move beyond that.

What worries me are the cheap jibes that we see in the British press against France and Germany. It is easy in Britain to be acceptable when you make anti-European jibes. We should be much more critical and careful about how we approach both our American partner and our European partners. I regret that the Murdoch press has managed to distort the foreign policy debate in this country to suggest that we should always follow the United States and should always be opposed to what our French and German partners appeal for, with the Conservative Party on occasions vowing its loyalty to follow American policy wherever it may lead. I recall the Financial Times saying of William Hague that he appeared to be dedicated to pursuing the national interests of another country. The United Kingdom should be a critical friend of the United States, not a loyal follower.

My Lords, my noble friend Lord Saatchi has promoted a really worthwhile debate on an important issue, although of course it is absurdly short. We need much more time to do the subject justice. It is worth while because our attitudes to America are central to our own United Kingdom concerns. Our transatlantic relations define our own stance in the world, our role, our purposes and our identity in this nation. We are reaching—maybe this debate is a signal of it—a moment of sea change in these matters.

As we have been reminded, for 50 years after World War 2 the USA, which had saved us from fascism and secured our liberties, was the dominant world nation, by far the biggest economy and the central pillar of an empire of freedom. We hardly needed to argue that; it was assumed. What is more, America and its leaders used this dominant position, most of the time, with grace, wisdom, generosity and respect for many friends and allies and for its former foes as well. Of course, there was anti-Americanism, there has been all along, at present especially in France, as my noble friend Lady Miller reminded us. But it was patchy and spasmodic, and it was not the dominant culture of the time. On the whole, America stood for freedom, for a better life against the dark and shoddy values of communism and Soviet oppression.

We have to concede that today that is no longer the apparent position. America’s reputation is at rock bottom, its influence has been weakened, and at home it is a divided and doubting nation, unsure which way to turn, as any recent visitor to any part of America would confirm. Indeed, it would not be inaccurate to say, borrowing Dean Acheson’s phrase, that today America has lost an empire and not found a role. There are many reasons for that sad development, many of which have been outlined in this debate.

The noble Lord, Lord Wallace, made the valid point that we must distinguish between the US Government and the US people; between the Administration of George Bush who, frankly, have at times, however well they mean, struck a simplistic note in their assessment and their policies and uttered harsh rhetoric on the one hand, and the American nation and the economy, which is still the world’s finest, still the world’s most powerful, imbued with immense generosity and kindness and a wish to do well in the world and imbued with America’s true values, which are our values as well.

Why has all this happened? It has been suggested that it is because of the recent foreign policy difficulties and the Iraq failure, but at root we must look deeper and see that it is about the march of technology and the microchip and the colossal dispersal of power today, both to the rising nations of Asia and through the world wide web to a billion desktop and laptop computers, to new groupings, good and bad, and to state interests alike that have weakened the concept of the mighty hegemon. Power has shifted from the USA, the West and the Atlantic community. Small weapons can now match big weapons through technology, and e-enabled terrorism can now outwit armies and rockets; and has done so. It is no good thinking only in terms of rebuilding America’s military might or, indeed, our European military might, to re-establish influence and reputation in these new conditions. For us, the Atlantic bond remains vital and we should fully support America in its difficulties—but we should support it as a friend and an equal, not as a compliant satrapy or lap dog. True friends, as the noble Lord, Lord Ryder, said, should be ready to speak with candour, rather than with dutiful and automaton assent.

In today’s world there are no top dogs. Some of my noble friends may disagree, but there are no hegemonies left and no hyper-powers, whatever some French leaders may have said in the past—although those leaders are changing. There is no new role. There is only one intricate global network in which we are all equal, large and small; we all need each other and we must all work together. I hope that this very short debate has helped to remind us that, while there is no call for prejudiced anti-Americanism—and we should dismiss it where we see it—there is a need for candour and realism in our changing relations with the USA. These factors should be reflected at the heart of our foreign policy in a way that I fear they are not at present.

My Lords, I thank the noble Lord, Lord Saatchi, for giving the House the opportunity to explore this Question, and I thank noble Lords present for the wisdom of the debate this evening. We have all agreed that this is an important subject—its implications are far-reaching and it is right that we should debate it to the full. I agree with the noble Lord, Lord Howell, that perhaps this debate is a little brief to consider such a large subject. Although critical things have been said tonight, one thing unites every speaker—all of us are America’s friends and we speak with a candour that comes from friendship and respect for that great country.

In a sense, the central contention behind the debate is one of pessimism derived from opinion polls. Perhaps, like others this week in another House, rather than being driven to decisions by opinion polls, I will try to focus on the principles of our relationship with the US. America matters, whatever the polls currently say. Many noble Lords have pointed out the ways in which the United States remains a force for good in the world. There are so many practical examples of that support that one is reluctant to make sweeping assertions.

One of America’s greatest qualities is the vibrancy of political debate at home. Many opinions that are quickly branded by some as being anti-American would brand many Americans as anti-American. Across all Administrations, I cannot recall a debate more robust and critical of American policies than those occurring in America itself.

Before we assess the views of others, let me make clear the view of Her Majesty’s Government. It was set out by my right honourable friend the Foreign Secretary in his speech at Chatham House on 19 July. He said America is,

“our single most important bilateral partnership”.

At its core, the relationship has always been built on shared values, a commitment to freedom, equality, liberty and the rights of man. The Prime Minister said in July this year that it is because ours is a “partnership of purpose” founded on values that it has lasted.

Perhaps to stray too far into the roots of current anti-Americanism, as some of the other speakers have been able to, is not a luxury that a Minister can afford, particularly one with well known views on this subject. Nevertheless, our policy evidently cannot be formed in isolation from global or British public opinion. That is why we need to articulate the benefits of US engagement to the British people and beyond.

Others have touched on that history of engagement, which perhaps starts with Europe. A vital lifeline was provided to a besieged Europe during and after the Second World War, and US military, economic and political leadership continued throughout the Cold War, bringing it to a successful conclusion and allowing a Europe to exist today that could not have existed without American leadership.

That US involvement has continued well beyond 1989 with support for the enlargement of NATO and support to help the former communist countries to rebuild their economies and reform their Governments and security structures. The enlargement of the EU and NATO has been an example of transformational diplomacy at its best.

It was President Clinton’s leadership within NATO—in partnership with the United Kingdom—that helped us to put a stop to ethnic cleansing in Kosovo and led eventually to the downfall of Milosevic in the former Yugoslavia. That US commitment to Kosovo remains to this day, although it seldom gets the attention that is paid to other American overseas commitments. It is there still in terms of troops deployed and of an extraordinary diplomatic capital invested in the final status process.

Much closer to home, I think that we are all aware of the role that the US played in securing a lasting peace in Northern Ireland. The momentous progress that the people of Northern Ireland have achieved could not have been made without the unerring support of successive US Administrations and of Congress.

But this debate is not just about what the United States does around the world; it must also be about how the US acts as a model for others and how it impacts on the lives of so many in the world. Having just returned from living for 21 years in the US and having entered a British Cabinet, if America were a company and not a country, I should probably have to confess to a conflict of interest. My wife and children are American, I built a successful business there and the American dream is unashamedly real to me. I have benefited from and watched up close America’s dynamic economic model; I have watched it being emulated around the world. Its research, innovation and creativity spread far beyond US borders. The interlocking levels of government provide a fertile testing ground for new ideas of public policy. A high level of migration to the United States—itself a compelling example of pro-Americanism—has led to the development of a vast multicultural society which encompasses citizens of all backgrounds and faiths, and which, as has been said, should serve as the example of a melting pot for us all.

Again, as the noble Lord, Lord Saatchi, said, we should not overlook the appeal and influence of US culture, be it music, literature or film. We cross several generations in this House but if I point to a country that has produced Elvis Presley and John Ford, I think we can all agree that its cultural richness is beyond compare. Yet, as the noble Lord said, how come a country which is so good at telling the story of other people is not able to tell its own and communicate it persuasively to the world?

Perhaps I may pick up what the noble Lord, Lord Lamont, said—a point that was echoed by several other speakers. We must never confuse anti-Americanism with anti-administrationism. I do not draw attention to any particular Administration but, again, insist that this has been a phenomenon of American political debate at home and abroad throughout many different UN General Assemblies. Long before John Bolton, I watched American delegates criticised by countries for American over-reach and over-assertion of its powers. Through the thick and thin of that, we in the United Kingdom have stuck true to what my right honourable friend the Prime Minister has described as the partnership of purpose. We see it today in Afghanistan—a country that symbolises our common goal of protecting our national security and promoting human rights. We see it in the common challenges that we seek to meet together in Africa. US leadership has been critical in keeping the world’s focus on Darfur. Its leadership on HIV/AIDS and malaria has been justly applauded—an issue on which President Bush has taken a direct and personal role. We are delighted that he has joined this Government in the Prime Minister’s call for action on the millennium development goals.

The list continues. In the six-party talks on North Korea and on Iran, I hasten to tell my noble friend Lord Giddens that in another place today the Foreign Secretary reaffirmed that we are committed, as are our partners, including the United States, to a diplomatic solution to the crisis on Iran’s nuclear programme. We share a commitment to a new trade round, to the reform and reinvigoration of the UN, and to the continued transformation of NATO. None of these challenges could possibly be solved without the involvement of the United States. US leadership, even if sometimes we feel it is not there for us as forcefully as we would wish, is vital and indispensable, and will continue to be so. That is why the US remains our most important bilateral relationship in the world today.

References to the city upon the hill in a sense sums up the dilemma and sometimes contradiction in our relationship with the United States, just as the United States and the politicians who are often collectively referred to as representing the Wilsonian tendency in American policy look to the world and expect an ideal world that will act according to American values and hopes for democracy and the rule of law. Sometimes we look to America in a similar idealised way and are disappointed if America shows the same commitment to interests and politics in its international relations that other countries demonstrate. Friendship also requires realism; this is a marriage not a romance, one might say.

In conclusion, the challenges that we face at the beginning of this century are, as the noble Lord, Lord Wallace, said, different from our immediate past. The challenges are issues such as climate change, poverty, crime and migration—and, of course, terrorism. They are not just different in terms of issues. In the age of globalisation they require global responses. They are not ones that any nation, even the United States, can solve alone. Rather, in an era of the rising powers of Asia, which has been referred to, they require us all collectively to adopt new approaches as we strive for global security. Even with power dispersed to a billion laptops—a magnificent phrase—and to the emerging powers of Asia, the United States remains indispensable to solving these new problems as it was to solving the older ones. Indeed, multilateralism without the US is a chair without a leg. It is important for all of us to make the case for American engagement in the world as a force for good and to rebut the promoters of anti-Americanism. Nevertheless we need to be a candid friend as we seek to encourage the US, this Administration and the one to come, to engage in the world around the values that we share. We need to work with the US because there can be no more powerful exponent of our values and no more powerful partner in making a new global, multilateral world work more effectively.

My Lords, before moving the Motion, I wish to apologise to the noble Lord, Lord Bew, who informed me that he would not be speaking in the gap. I informed the Table but I forgot to inform the noble Lord, Lord Wallace.

I beg to move that the House do now adjourn at pleasure until 8.46 pm.

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

[The Sitting was suspended from 8.44 to 8.46 pm.]

moved Amendment No. 6:

My Lords, I am glad that the noble Lord, Lord Judd, has tabled the amendment again because there seems to be some confusion about the Government’s intentions with regard to the order in which persons subject to immigration control will be required to register. In Grand Committee, the Minister said that initially BIDs would be issued to persons renewing leave to remain, such as students from outside the EU—I suppose he meant the EEA—persons asking for settlement after the five-year qualifying period, applicants seeking to extend work permits and those applying for leave to remain on the basis of marriage to a British citizen.

The noble Lord said that those categories would be used to trial the biometric recording and card production processes. The Explanatory Notes say that the first documents will be issued to those who pose the greatest risk to immigration control. When I said that the Minister's remarks indicated that there had been a change of policy since the Explanatory Notes, and that we were hearing about it for the first time, he initially made no comment. Then in his letter of 7 July, dealing with points raised in the second Grand Committee sitting, he reverted to the narrative of the Explanatory Notes. Although the precise order of priority for the rollout still had to be determined, the prime consideration was—I quote from his letter—

“the latest risk assessment to understand where there is abuse of immigration control”.

So who is at the front of the queue? The persons renewing or varying an existing leave to remain on whom the procedures would be tested, or the nationalities subject to the highest refusal rates on the basis of experience?

The Minister said that it was unnecessary to consider having a separate monitor to look at the rollout process particularly to ensure—to answer the concern of the noble Lord, Lord Judd—that it was not discriminatory or in breach of data protection legislation, because the chief inspector of the BIA would have that responsibility and would be required to report to Parliament on those issues. I hope that to some extent that reassures the noble Lord, Lord Judd, because presumably the chief inspector would be able to look at the process and satisfy himself that there was nothing inherently discriminatory in it.

Then the Minister said that employers would not be acting lawfully if they required the BID to be produced on the basis of a person's appearance. In the next breath he said that if a job applicant appeared to be a Somali—that was the example I had given on 23 July at col. GC 149, a category that might be among the earliest holders of BIDs if the Explanatory Notes rollout criteria are followed—it would be very sensible for the employer to ask the applicant whether he had a BID.

Then the Minister said that persons of Somali appearance applying for jobs would not “necessarily” be asked to produce a BID. A “verifiable form of documentation”, he said, would do. A minute later he mentioned the national insurance number. I then put it to him that any person who had previously been in employment should be able to satisfy an employer of his right to work and his eligibility by giving his NI number, so only those looking for their first job after leaving school or university would have to use a BID to satisfy the employer of his legitimacy as a person who had the right to reside and work in the UK.

I have no doubt that this will all be made clear to employers in due course when they receive guidance on how to carry out their duties under the Bill, but it is slightly alarming that the Minister was not able to clarify the matter while we were talking about it in Grand Committee, and I hope that he will be able to do so now.

My Lords, it may seem slightly eccentric to raise an issue concerning the Republic of Belarus on this amendment. However, I do so because biometric visas are involved. It may have been more appropriate to raise it under Amendment No. 9, but I shall go ahead nevertheless.

I have been aware for some years that children and accompanying adults have been coming to this country from Belarus because they were suffering from a variety of radiation-induced diseases and illnesses—for example, leukaemia. In Wiltshire, the county next door to where I live, there has been a very active group of concerned citizens who have been arranging holidays, care and treatment for those children. They are concerned, and so is the Belarusian ambassador in London, that the introduction of biometric visas will seriously prejudice the work that has been going on successfully for quite a long time.

I would like some reassurance from the Government that charges for biometric visas and the bureaucracy and complication entailed in producing them will not upset what I consider—I am sure that many of your Lordships agree—a very useful and quite important little voluntary scheme.

Many of us have pretty strong views about the nature, character and operations of the current Belarus Government. What has been happening to provide care and some degree of treatment has established links between our two countries which it would be tragic to prejudice by the introduction of biometric visas. I hope that the Minister can give me some good news on that subject.

My Lords, I support the amendment moved by the noble Lord, Lord Judd, my colleague on the Joint Committee on Human Rights. There is a real problem of confusion of immigration, asylum-seeking and any person from an ethnic minority, however British, and a real danger that the Government’s policy in this respect could contribute to racial feeling. The Joint Committee on Human Rights was alarmed by the Government's proposal to bring in biometric registration in stages, because of the danger of discrimination on the grounds of nationality and the danger that it will be known that certain people from ethnic minorities have to have those documents, so that it is assumed that everyone from an ethnic minority has to have one and therefore people are asked for them even when that is completely inappropriate. It would be very helpful if the Minister could say how far, in devising the proposal to introduce this in stages, the implications for racial harmony and the need to avoid discrimination on the grounds of nationality have been considered.

My Lords, I am grateful to noble Lords who have placed the amendments before the House this evening. It has been a useful debate because it has flushed out some issues of concern. That is always very helpful and will enable us to set out the Government's intention. I listened with care to what the noble Baroness, Lady Stern, had to say about the issues surrounding race and what the Joint Committee on Human Rights had to say on that matter. I certainly well understand those worries, but I think that they can be well matched by our approach to the biometric immigration document rollout. Clause 5(2)(a) is designed to ensure that it could be done incrementally. The noble Lord’s amendment would mean that regulations would have to require everyone subject to immigration control to apply for a document at the same time.

During earlier debates in Grand Committee, Committee Members requested more details about the roll-out of the BID’s process. We plan to roll out the biometric immigration document incrementally by application type over three years, starting with a small pilot in spring next year followed by a rollout in the year following. There are several reasons for that. It will enable the introduction of a pilot to test the business processes using this legislation. We want to introduce biometric immigration documents gradually. A gradual ramp up in the process is less risky for us to implement. I hear the comments and criticisms about the use of new technologies. In addition, rolling it out incrementally should minimise the burden on businesses or other organisations that may be required to use it, such as employers.

Rolling out by application form will ensure that the application process is simple for customers—it will be clear who will be required to have their biometrics recorded and who will not. Since each application type carries its own unique application form, it will be clear on an application whether a customer’s biometrics will be required, without reference to caveats or supplementary rules. We will gradually build familiarity and consistency into the implementation. That is an important issue. We have used this same gradual method many times—for instance, when introducing the knowledge of life tests and perhaps more pertinently, biometric visas overseas.

We have created a consultative document for the Commission for Equality and Human Rights and the Equality Commission for Northern Ireland, and this will be sent out on 16 October. This document provides an opportunity for comment and engagement by the CEHR and ECNI, and an undertaking to consider and respond to any concerns that they may have. In addition, the consultation seeks specific feedback on the aspects of indirect discrimination that may arise under the current rollout plan.

My Lords, it would be very helpful if the noble Lord could say something about charging and whether charges will be waived in humanitarian cases.

My Lords, I cannot give the noble Lord an answer: I should like to reflect on the issue. I shall be more than happy to correspond with him on that and will share that response with other noble Lords who have been involved in this discussion. My noble friend Lord Judd was concerned about visible ethnic minorities being subject to greater checks, which prompted the amendment. Public service providers and employers when requiring proof of immigration status will have to do so compatibly with the Race Relations Act 1976 and its subsequent amendments.

In the employment context, prospective employees must already provide documents to establish that they are entitled to work. A code of practice sets out how employers should do so in a non-discriminatory fashion. The introduction of the BID will not change that. It will instead provide a simpler and, one can fairly argue, much more secure means for employers to check that a person is entitled to work in the UK.

The noble Lord, Lord Avebury, reflected on comments made in Grand Committee on the requirements on employers to check eligibility. Under Section 8 of the Asylum and Immigration Act 1996, an employer commits an offence if he employs someone who is not entitled to work in the UK. The employer has a defence if he takes steps to check and copy certain documents, including, for example, a British citizen’s passport. To ensure that employers do not discriminate, Section 8A of the same Act provides for a code of practice for employers to avoid discrimination. Similar provisions are in place to avoid discrimination in the forthcoming civil penalty regime under the Immigration, Asylum and Nationality Act 2006. The introduction of the BID does not affect the existing provisions in any way, which is extremely important. We must ensure that our anti-discrimination legislation is effective in this policy field as much as anywhere else.

My Lords, I am sure that guidance has been given to employers on how they should carry out their responsibilities to check that someone is entitled to work in the United Kingdom. Will any variation in the guidance be issued as a result of BIDs coming into force or are they simply ignored in the advice given to employers?

My Lords, I am not aware that there is a variation involved. It is desirable for us to ensure consistency, so I will check on the point and advise the noble Lord.

My Lords, I thank all those who have participated in our brief debate on this vital issue. I also thank my noble friend for his characteristically full reply. This is the second time that we have dealt with the matter today. On the broader issue of the new powers for immigration officers, there is an anxiety that the standard operating arrangements will not be as specific as the PACE regulations for the police. The PACE regulations spell out that the police must be conscious of the danger of racial profiling and take steps to avoid it. We have anxieties about the biometric arrangements that are to be introduced. While I am absolutely convinced of my noble friend’s commitment, I believe that there has to be strong leadership at all levels, starting at the most senior political level, to ensure that at the top of the list is the commitment that we will not get involved in racial profiling.

This matters fundamentally in terms of human rights, but I shall make the point ad nauseam that it also matters in the battle for hearts and minds. Racial profiling plays into the hands of extremists; it does not play for those of us who want to preserve a decent society. We must be aware of this. I shall read what my noble friend has said more carefully in the morning but I plead with him to make certain that he and all his friends do not underestimate the challenge to their leadership on this issue. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

moved Amendment No. 7:

My Lords, the reference to international agreements, of course, would also cover the United Nations Convention on the Rights of the Child, a convention to which we are required to respond and which we are required to fulfil. I have here a copy of it—I have read it quite thoroughly—and one can question whether we are complying with, accepting and making effective article after article of the convention. I shall not take too long on this—I shall not go through all the articles—but Article 2 requires states parties to,

“respect and ensure the rights set forth in the present Convention to each child within their jurisdiction without discrimination of any kind, irrespective of the child’s or his or her parent’s or legal guardian’s race, colour, sex, language, religion, political or other opinion”,

and so on. So there is to be no discrimination at all and every child is to be treated in the same way.

I think of the children I know who play on the beaches of north Wales and who climb the hills of Snowdonia. Are they as restricted as those who are in detention centres or in immigration centres, or who are in hiding because they fear the knock on the door and their enforced deportation? Under Article 2 of the convention, I would question whether we have the right to deal in this way with children.

Article 3 states that everything shall be done in,

“the best interests of the child”.

We have argued on this before and this debate has become very much a debate on children and on their opportunities and freedoms. Imagine the trauma of being a child who is forced, with his or her parents, to flee from a very unfriendly country. Perhaps we should put ourselves in the shoes of these children. I have grandchildren and others here have grandchildren whom we would protect with our own lives, yet such children are subject to traumatic experiences in the countries from which they come. I am told that there are one or two countries in Africa where you can buy a child for £10. There is suffering and poverty there, but perhaps that is for another debate.

As to the process of leaving their country, how are they carried? What happens to them on that journey from their country of origin to this country? How are they to survive here? Is it a sort of Anne Frank subsistence in hiding? How are they fed? How are they cared for? What hope do they have? In all things we try to build a world fit for children to live in—I have said this before—because that is one of our greatest responsibilities. Nothing should clamp down on the hope and joy of childhood. But there is no joy in a detention camp. There is no joy in the back of a lorry fleeing from a country. When we look at this, we cannot claim that what we are doing is in the best interests of a child, if we keep that child in situations here that are totally contradictory to the United Nations convention.

Article 5 deals with the rights and duties of parents. The whole set-up of immigration centres leads to fear and dread about what will happen to their children and what tomorrow will bring. I imagine that some of our children are afraid of the dark, but life is nearly all dark for these children. Article 6 says that,

“every child has the inherent right to life”.

But what sort of life is it—a life of fear, poverty and general hopelessness?

I was looking at the evaluation report for Section 9. I saw these children’s countries of origin to which they would be deported. The country that came up most often was Pakistan. Yes, you can perhaps send a family back there. The next country was Somalia. Do you send a child back to Somalia with his family? The third most popular was Zimbabwe; after that was the Democratic Republic of Congo. Then it was Angola and Iran. When we talk about people going back to their countries of origin, these are the countries that we mean. If we say that we are supporters of the United Nations convention, we must look carefully at what we are doing with these families when they are not allowed to stay here. Article 9 says that,

“a child shall not be separated from his or her parents against their will”.

So let us go to Section 9, which I expect we will deal with on Thursday.

My Lords, I understand the noble Lord’s concern, but he is making an argument that seems to be a long way away from what we are discussing, which is the content of a biometric immigration document and what it might contain by way of information. I urge the House to keep to the subject.

My Lords, I am doing this because of the mention of international organisations. I realise that perhaps I should be speaking about it on Thursday. I am tempted, if the Minister agrees, to repeat this speech then. The international organisations that we are dealing with demand a certain standard of response, which means that we have to act in a certain way. Going through the Convention on the Rights of the Child, I see that we are often in breach of various of its articles.

My Lords, I apologise for interrupting the noble Lord. It is not something I would normally do, but we should try to focus on what is actually on the Marshalled List. In general terms, though, I am grateful to both noble Lords for tabling the amendment because it enables us to explain a little more about how we intend BIDs to work.

In our view the amendment places an unnecessary restriction on what information may be recorded on the biometric immigration document. It would further limit the development of BIDs, particularly if the document is to be combined with another document such as an ID card or where we wish to tailor the information on the card for national purposes. Limiting the information on the document could restrict our ability to take up some technological advances, as we would be unable to add contents to the card unless there were either international agreements or EC regulations that permitted such developments. That seems to be an unnecessary fetter on our ability to improve the quality of information on a card. It is slightly bizarre to suggest that we would have to wait for yet another international agreement or EC regulation.

The amendment may mean that we could not combine the biometric immigration document with any other document, such as the ID card, if the other document is required to contain information not covered by an EC regulation or under international treaties to which the UK is party. For example, this could include the holder’s national insurance number. I am sure that that is not the intention of the noble Lord, Lord Avebury, in moving the amendment. If it is, then the noble Lord has clearly found a clever way of inflicting some damage on an important element of our policy.

In making his argument, the noble Lord rather suggested that it would allow the Secretary of State to collect unlimited information and to keep unlimited information on the BID. I must refute that; it is not the case. The power to require the provision of information must be read in the context of the purpose of a biometric immigration document; that is, a document which is connected to proper immigration control, providing evidence of immigration status. The provisions do not give a power to collect unlimited information which has no relevance to immigration at all. The noble Lord was citing health details. I cannot think of circumstances where they would be terribly relevant to immigration status; there may be some, but it is not a licence to collect unlimited data. In addition, the processing of personal data must be done compatibly with the Data Protection Act. Together with the Human Rights Act, that of course provides particular and specific safeguards which I am sure noble Lords quite appreciate.

So I do not accept the noble Lord’s argument. If we were to go with the amendment as it is, it would fetter our ability to develop the card and unreasonably restrict the amount of information we could place on it. Of course, the precise format of the BID will be determined by the forthcoming EU regulation on biometric residence permits, expected to be finalised in November, which I guess is the cleverness in the amendment. It will require member states to issue a biometric residence permit, which of course will be the BID in the UK to a specified uniform format.

From our understanding of the draft regulations, we are planning for the BID to appear as a highly secure polycarbonate standalone card which will contain a tamper-proof embedded chip. It will have a definite menu of information—with which we are familiar—listed on it, most of which will be compatible in some way or other with the sort of information one would expect to be collected on other documents such as passports. I must resist the noble Lord’s amendment, but this has been a useful, short debate.

My Lords, I am happy to accept the noble Lord’s assurances, which it is useful to have on the record. We look forward to further scrutiny of what is to be in the document when we get the regulations. I repeat that if we are not satisfied when we get the regulations, there will be nothing we can do about it at the time because, in spite of the Minister’s arguments in favour of the power of such regulations, they very seldom get voted down, as he knows perfectly well, and they cannot be debated on the Floor of the House.

However, it has been useful to get on the record what the Minister has said about the limitations to be built into the biometric immigration document. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

moved Amendment No. 8:

moved Amendment No. 9: