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UK Borders Bill

Volume 695: debated on Tuesday 23 October 2007

Read a third time.

Clause 16 [Conditional leave to enter or remain]:

1: Clause 16, page 10, line 32, after “condition” insert “, for which he must be provided with written reasons,”

The noble Lord said: My Lords, Clause 16 empowers the Secretary of State and his officials at the Border and Immigration Agency to impose residence and reporting conditions on any person whatever granted leave to enter or remain in the UK unless that grant is for an indefinite period. Those who could be subjected to these conditions in theory include refugees, international students, work permit holders, highly skilled migrants, tourists and other visitors, and family members of those who are already settled here.

Although none of these groups has been identified as a target, the potential was expressly conceded by the Government in Committee when the then Parliamentary Under-Secretary of State at the Home Office said:

“we have not named students with limited leave as one of the categories that we will apply the provisions to at this stage. However, the power is broad and we do not deny that these measures could cover anybody with limited leave”.—[Official Report, Commons, UK Borders Bill Committee, 13/3/07; col. 302.]

So hundreds of thousands of immigrants therefore face the possibility that they may be required to report monthly, weekly or even daily to an immigration officer, to reside at a specified address or to be present at that place of residence at particular times. This follows from the drafting of the clause, which leaves the purpose for and the circumstances in which the conditions may be set wholly at large. Such conditions might be highly intrusive with the potential to disrupt studies, work and other economic activity, and ordinary family and private life.

The clause does not explain what its true purpose is or why, if the limitations on its use in practice are to be those that were outlined by the Minister in Grand Committee, they could not have been written into the Bill. We know that the intention is to apply the conditions—initially, at any rate—to UASC and foreign prisoners, though not those covered by the Criminal Justice and Immigration Bill now in another place. Since the clause is far wider than that, however, there has to be accountability if and when it is used for other categories of person.

That is the immediate thrust of the amendment, but it also allows us to remind the Minister of the assurance he gave at the end of the debate on a previous amendment on conditions on 12 July in Grand Committee. He promised “something comprehensive” and said that the department,

“ought to be able to provide some sort of feedback through the LGA from local authorities about the desirability … of specialist local authorities”.—[Official Report, 12/7/07; col. GC 261.]

Noble Lords who are interested in children will remember that there was a consultation in progress on the Government’s planning for better outcomes and support for unaccompanied asylum-seeking children under which it was proposed that these children should be concentrated in 40 to 50 local authorities, with responsibility each for about 100 children, in four regions that were outside London and the south-east, where they are concentrated at the moment. However, in the Minister’s letter to me of 19 July following that session of Grand Committee, although he gave me a lot of information about the numbers of UASC and the need for better management of contact with them—and we hope the letter was useful to some of the agencies with which we shared it—he did not mention the specialist authorities. It was not until 18 September that he wrote again to say that the responses to the consultation, which were originally planned to be published at the end of August, had been delayed so that the Government could announce their decisions arising out of the consultation at the same time. The target date is now the end of November, which effectively prevents your Lordships from making any contribution, as we could otherwise have done to the debate on the treatment of UASC if the original timetable had not been scrapped.

At what point was the decision referred to in the letter of 19 July taken? It must have been before the end of August, so why were noble Lords not informed until three weeks later? Does the Minister not agree that his undertaking to provide feedback from the LGA on the specialist authorities idea—given in Grand Committee and therefore, I hope, equivalent to an undertaking given on the Floor of the House—should have been honoured irrespective of what was decided about the rest of the answers to the consultation? When a Minister says he will produce something in any debate and the information is available, does he have the right to delay the publication for three months on the grounds that he wants it to appear simultaneously with something else? As the Minister knows, we are sympathetic to the concept of the specialist authorities, and we can see that paragraph (v) will be necessary to make it work. That is why our amendment asks only for written reasons to be given for the reporting, not the residence, condition. If all the UASC were concentrated in the 40 to 50 authorities, contact management could be improved significantly, and should any child abscond or go missing the authority concerned should know about it immediately and inform the BIA accordingly without disrupting every child’s education and other activities by requiring him or her to attend the nearest BIA office. I beg to move

My Lords, written reasons are just about always desirable when a decision is taken that has a strong bearing on personal and individual liberty. The subject matter of this clause enables me to mention the subject matter of exceptional leave to remain. This used to be a large category of decisions in asylum cases but in recent years it has been squeezed almost out of existence. I say that having it in mind that many applicants probably do not deserve full refugee status. On the other hand they have a serious need for humanitarian protection; for example, because it will be impossible for them to return to their own country, or if not impossible, highly risky and dangerous, so I urge the Government to do whatever they can to make greater use of exceptional leave to remain.

My Lords, I am grateful, as I have been throughout the Bill’s passage, to both noble Lords who have just spoken. I pick up an implication in the early part of the comments of the noble Lord, Lord Avebury, in support of this amendment. Those at the sharp end of this whole system often experience it as one example after another of arbitrary, oppressive exercise of power. This amendment is one small contribution to lessening that experience and to ensuring that those at the basic levels who have considerable power over vulnerable people’s lives set out exactly why they are making this requirement or another. I hope that the House will accept the amendment.

My Lords, I am grateful to noble Lords who contributed to this short debate. I will set out our thinking on this issue as best I can and try to deal with some of the questions that have arisen in this and earlier discussions.

The noble Lord, Lord Avebury, tried to flush out more of the purpose of Clause 16. It is designed to allow the Border and Immigration Agency to monitor and maintain contact with certain individuals who have been granted limited leave to remain. That is its primary purpose. As I explained to noble Lords previously, we will grant leave with reporting conditions only where this is justified by a need for close monitoring of an individual.

We want to be able to apply the clause to former foreign national prisoners, who have been released from prison but who cannot be removed at present due to legal barriers. The need to monitor all such people with a view to their eventual removal is clearly in the public interest. I should have thought there would be common agreement on that point.

We also propose to apply the clause to certain young people under the age of 18 where it is considered there is a need to monitor them. Principally we aim to monitor all former unaccompanied asylum-seeking children who are granted limited leave to remain in the United Kingdom due to the lack of reception facilities in their home countries, but who nevertheless need to be prepared for return to their countries once they are old enough or the appropriate reception arrangements are in place. There is a clear need there.

Conditional leave may also be used to monitor young people given limited leave other than with their parent or legal guardian, who have not identified themselves to the welfare, health and education agencies but with whom we have reasons for wanting to stay in touch until we are satisfied that the child is being cared for properly. The provisions may also be used to monitor those young persons who have been in the care of local authorities but have since opted out of that care. Again, there are good reasons. I should like to reassure noble Lords that we would only apply the conditions reasonably. Our general duties in public law require us to use all our powers rationally and reasonably.

I have concerns regarding the amendment, particularly in relation to ensuring consistency with the way we currently manage foreign nationals with leave who are placed on similar conditions. There is no general legal duty to provide detailed written reasons in respect of decisions to impose the existing conditions on leave under Section 3(1) (c) of the 1971 Act. To introduce a new duty in these circumstances runs counter to existing practice. It is not necessary and could prove disproportionate.

We would set out in correspondence to the applicant the general principles which are applied when considering whether to place these conditions on leave.  Separately, the specific reporting arrangements that are put in place for an individual placed on conditional leave will be looked at on a case-by-case basis. For example, in the case of reporting arrangements involving a former unaccompanied asylum-seeking child who was in care we would consider the resource implications for any local authority. We would aim to keep face-to-face reporting to a minimum and would use telephone or video contact where possible and practicable.

In addition, we will continue our discussions on this issue with the Association of Directors of Children’s Services during the implementation of this provision, and ensure that its views on frequency and the nature of reporting are taken into account when drawing up advice to BIA caseworkers on handling former unaccompanied asylum-seeking children. I believe that those are good reasons for adopting the approach that we have.

The noble Lord, Lord Hylton, asked about the greater use of exceptional leave. Exceptional leave has now been replaced by humanitarian leave and discretionary leave, which are much more widely used. The noble Lord, Lord Avebury, asked when this decision was made. I shall have to write to him because I do not have that information today and would like to give the matter further thought. I appreciate the noble Lord’s patience, but we try to ensure that we give timely responses, and give proper and appropriate advice on the development of policy. I apologise to the noble Lord for that.

My Lords, the noble Lord has gone some way towards satisfying us on this by saying that the Government would give reasons in writing, but that they would be of a general nature and would not be applied in the particular circumstances of the individual. At least, any person required to report to an immigration office under new Section 3(1)(c)(iv) of the Immigration Act 1971 would know the general background which led to this condition being imposed.

However, I am disappointed that the noble Lord could not say more in response to my request for information, which he had previously undertaken to give us, on the attitude of the LGA to the specialist authorities. That is critical to the residence conditions. If the 6,000-odd UASC are to be concentrated in 40 to 50 local authorities in specified regions outside London and the south-east, it would mean a major reform to the system. When UASC arrive, presumably, as we did with adult asylum seekers under the NASS system, they would be directed to a particular locality where the authority had spare capacity and is experienced in dealing with this group of young people. It is perfectly reasonable for there to be residency conditions for all UASC. When they reach their destination they will normally be in the care of the local authority and the local authority will have the prime responsibility for seeing that they remain in the accommodation provided for them, be it local authority accommodation or a foster home. They will break those responsibilities if they are not fully aware of the location of the children at any moment, and should have first knowledge of any child who absconds or, for one reason or another, is not residing in the place allocated to him.

We still consider that the prime duty should be laid on the local authorities, and that they are perfectly capable of telling the BIA when there is any breach of the residence conditions. We accept that close contact with UASC needs to be maintained for all the reasons given by the noble Lord. We have never opposed that project. We asked repeatedly for more information about how it was to operate; we are still waiting for that information. Obviously, I have to withdraw the amendment at this stage, but I regret that during this Bill we have not been able to have the thorough discussion that would have arisen if the original timetable had been adhered to, and responses to the consultation published on 30 August. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

2: After Clause 16, insert the following new Clause—

“Detention of vulnerable asylum seekers

When the Secretary of State is considering whether to detain an asylum seeker who is a vulnerable person, he shall take into account the special needs of that asylum seeker and ensure compliance with Article 17 of Council Directive 2003/9/EC of 27th January 2003 laying down minimum standards for the reception of asylum seekers and the Asylum Seekers (Reception Conditions) Regulations 2005 (S.I. 7/2005).”

The noble Lord said: My Lords, on Report the noble Lord, Lord Bassam, gave me four separate assurances. He said that the Government intended to narrow the gap between policy and practice in deciding who was to be detained. He spoke of reviewing the guidance to staff. Amendment No. 2 gives him the opportunity to honour his words. It has the incidental merit of enshrining this year’s High Court decision of Mr Justice Wyn Williams in case CO/9745/2005.

The amendment also removes the worrying doubt about whether the assurances given by Ministers in both Houses over a long period have any meaning at all. We have all been repeatedly told that vulnerable people would not be detained, other than in the most exceptional circumstances. In practice, we find that it happens all too often without the least apology, let alone compensation.

Finally, my amendment removes doubt as to whether this country is complying with the relevant EU directive. Noble Lords will note that the directive lays down minimum European standards for the decent treatment of vulnerable people. My advice is that Britain has not opted out or derogated from this directive. I concede that it is likely that this amendment does not cover asylum applicants who have been rejected, or who have exhausted all rights to appeal. I am happy, however, that it protects bona fide applicants and those in the process of determination. We all agree that vulnerable people should not be detained, and that debatable cases should be verified at the earliest possible moment.

My amendment would do much to enhance the reputation of the Government and the credibility of Ministers. I urge the Government and the House to put it in the Bill. I have spoken to my amendment as concisely as I could, and I hope that subsequent speakers will amplify the case for it. I beg to move.

My Lords, I support my noble friend in his striving to improve standards for those seeking asylum. Sadly, we know that some economic migrants claim torture, but the tragic reality is that there are people who have undergone the most terrible types of torture, have suffered things that the rest of us are unable to imagine are possible, have suffered rape, are left extremely vulnerable and are broken. Many do not even make it to our country; they die in their place of origin or en route.

This country has a long history of taking in those who have been broken elsewhere by the cruelty and inhumanity of others. The amendment would impose a minimum standard of how we manage people who have already been broken, so that we do not break them further and break the last bit of humanity left in them. For that reason, I support my noble friend’s amendment. The European Community has made a stand, and we should reinforce it in the Bill.

My Lords, I am very glad that the noble Lord, Lord Hylton, has returned to the subject of the detention of torture victims and other vulnerable people. Apart from other considerations, it enables me to clarify the purpose of Amendment No. 26, which we debated on Report. I hope that the Minister will assure the House that we are attempting to comply with Article 17; unfortunately lapses occur from time to time, which the BIA is doing its best to address. I take it that is government policy, and we need an assurance from the Minister that that is what they are trying to do. If that is the case, there is no reason why the Minister should object to including those words in the Bill.

I concede, as the noble Baroness, Lady Finlay, has just done, that not everyone who claims to be a torture victim or to have some other vulnerable characteristic, such as pregnancy, should be released solely on the basis of that claim. In the case of torture victims, there is a recognised procedure for notifying the caseholder of an allegation by letter under Rule 35 of the Detention Centre Rules. I have already expressed our thanks to the Minister for his letter of 9 October, in which he said that a central log of those letters has to be kept at every IRC, and that BIA staff have been reminded to acknowledge the letters and to take them into account in deciding whether detention should be maintained.

On Report, the Minister referred to “agency staff”, but it would be preferable for the duty to be laid on a specific individual who is responsible for that asylum seeker all the way through the process. I would be grateful for the Minister’s comments on that point—that we do not lay the duty on the BIA as a whole but on the specific caseholder. On Report, the Minister said that the caseholder was required to acknowledge receipt of the Rule 35 letter and to do so promptly. He then added:

“It may be that the response to the doctor should go beyond a simple acknowledgement. The agency will look at the current guidance to see what more could be said, subject to any issue of confidentiality. For example, the response could indicate to the doctor whether the information about the claim of torture is already known to the BIA and has been considered or whether it is being considered as part of the individual’s asylum application”.—[Official Report, 11/10/07; col. 358.]

Of course, it ought not to be considered solely as part of the asylum application, because there is a specific duty to consider whether continued detention is justified in the case of torture victims, quite apart from the examination of the asylum claim itself.

The caseholder is the official who will recommend whether the person is to be released or is to continue to be detained; alternatively, he may decide that there is insufficient information in the Rule 35 letter to enable him to reach a decision. The Medical Foundation comment on the Yarl’s Wood inquiry report at the beginning of the month accused the Home Office of failing to act when told that a detainee had a history of torture, and it is with that in mind that I asked the BIA to go further than a simple acknowledgement. Perhaps the solution would be to invite an independent person such as Stephen Shaw to carry out a quick audit of the procedures, to see whether the review mentioned by the Minister had adequately addressed the criticism made by the chief inspector, who gets to examine particular IRCs only every few years. Her most recent report on Yarl’s Wood was over 18 months ago, so the situation may well have improved; I hope that it has.

However, the fact that, apart from torture survivors, other vulnerable people such as mothers with small babies are still being detained there is a cause for concern. The Rule 35 procedure should be extended to other categories of vulnerable people mentioned in Article 17, and responses should be similarly required from the caseholder. Since the doctor has to examine every person who comes into the IRC, it should not create much of an additional burden for either the doctor or the caseholder, particularly if, as we assume, the individual’s vulnerability has already been considered by the caseholder before the decision to detain was made.

The inquiry into procedures at Yarl’s Wood highlighted the IND’s failure to act when told of allegations of torture, a criticism that the Medical Foundation had been levelling at the Home Office for many months. The last report by the chief inspector, who had been the first to draw attention to the problem, related to February 2006. I would be grateful if the review that the noble Lord mentioned following that report could be placed in the Library of the House. I personally have not seen it, although maybe I have not done my homework properly.

Unfortunately, many vulnerable people are still being detained, such as mothers with small children, for whom Yarl’s Wood is a totally unsuitable environment. If the Minister wants first-hand evidence of that statement, from the Black Women’s Rape Action Project and other women’s organisations that gave stark evidence at a packed meeting in Committee Room 13 a few weeks ago, I would be ready to let him have it. My suggestion is that the Rule 35 procedure be extended from torture survivors to all other categories of vulnerable people. I hope that the Minister will consider that.

My Lords, we cannot let the efforts of the noble Lord, Lord Hylton, to get vulnerable people considered in this Bill go unremarked. Clearly, he has pursued this with great diligence all the way through our consideration of the Bill.

I hope that the Minister will be able to reassure us on the Immigration Service’s proper compliance with Article 17. There are clearly a number of things to do with that article, one being how it defines “vulnerable people”. Perhaps the Minister can elaborate on that. Although people who have suffered torture certainly form one aspect, and pregnant people are another, a whole host of people could be described as vulnerable. It would be interesting to know how many categories fall under that definition.

Could the Minister also give us just a little more information on which reporting mechanisms are in place to ensure compliance with the directive? The noble Lord, Lord Avebury, has just suggested that there be a reporting mechanism to the agency, but how do the Government and the Home Office pick up on the details there?

My Lords, I support the noble Lord, Lord Hylton. I do not see any grounds whatever for objecting to the inclusion of Article 17, as the amendment suggests. Perhaps I may elaborate on what is included in Article 17. It states:

“Member States shall take into account the specific situation of vulnerable persons such as minors, unaccompanied minors, disabled people, elderly people, pregnant women, single parents with minor children and persons who have been subjected to torture, rape or other serious forms of psychological, physical or sexual violence, in the national legislation implementing the provisions of Chapter II relating to material reception conditions and health care”.

It adds that the paragraph,

“shall apply only to persons found to have special needs after an individual evaluation of their situation”.

I suggest that the Minister should be only too happy to accept the amendment, because it reinforces the general principle already stated in Article 17.

My Lords, that reading of Article 17 underlines a matter that we have discussed during earlier stages of the Bill. On the one hand, under the procedures laid down it is necessary that people coming into the asylum system—in particular, those coming into detention—should have the opportunity for the most careful medical examination, if they are vulnerable in any way; on the other hand, there is the experience that that is not happening in a significant number of cases. From what the noble Lord, Lord Roberts, has read out, my understanding is that the amendment of the noble Lord, Lord Hylton, would contribute at that point.

My Lords, I thank the noble Lord, Lord Hylton, for tabling an amendment on this issue. He has been indefatigable in following up this matter and he made a brave effort to tempt me to accept the amendment; I congratulate him on that. Sadly, I think that I will ultimately frustrate him, although I hope that on the journey to that point he will be persuaded by what I have to say. He was right to remind your Lordships’ House that, as I said earlier, we are trying to ensure that we close the gap between our stated policy objectives and where we end up in practice, because it is practice that we are trying to affect. The noble Baroness, Lady Hanham, was right to remind us of the need to raise standards, because that is what we strive for—it is a noble objective—and we should have in the forefront of our minds at all times the need to do exactly that.

The noble Lord, Lord Hylton, tabled amendments on this subject in Grand Committee and on Report, when, he will accept, he widened his proposal to include pregnant women and those with serious health problems. I set out in detail during the debates on those earlier amendments why they were not acceptable to the Government. I intend to elaborate a little more, because I can see that there is a thirst in your Lordships’ House for more information.

The amendment would require the Secretary of State to take account of and comply with Article 17 of the 2003 European Council directive on minimum standards for the reception of asylum seekers and the Asylum Seekers (Reception Conditions) Regulations 2005 when considering whether to detain an asylum seeker who is a vulnerable person. Both Article 17 and the 2005 regulations are primarily concerned with support arrangements for asylum seekers and define a “vulnerable person” as a minor, a disabled person, an elderly person, a pregnant woman, a lone parent with a minor child, or a person who has been subjected to torture, rape or other serious forms of psychological, physical or sexual violence, and who has had an individual evaluation of their situation that confirms their special needs. Those must then be taken into account in relation to material reception conditions, healthcare and in deciding whether to provide support.

Regulation 4 of the Asylum Seekers (Reception Conditions) Regulations 2005 requires the Secretary of State to have regard to Article 17 when providing support or considering whether to provide support. Article 17 applies only to those persons found to have special needs after an individual evaluation of their case has been completed. The relevant regulation does not require the Secretary of State to carry out, or arrange for, an evaluation of a vulnerable person to determine his special needs.

To return to the specific question of detention, it is already the case that those persons defined as “vulnerable” by the reception directive and the 2005 regulations are subject to particular guidance in relation to whether or not they should be detained. They are already subject to that guidance, which makes it clear either that such persons should not be detained—unaccompanied minors, for example—or that the reason for their inclusion among those defined as “vulnerable” should be a factor arguing against detention, with a requirement that all factors arguing both for and against detention are considered. The latter position would, for example, apply to individuals with a history of torture.

Where it is decided that such individuals should be detained, their special needs are identified at the point of initial detention—or as soon as they become known thereafter—and are communicated to those responsible for their custody so that appropriate arrangements for their care may be put in place. For example, in the case of pregnant women, this would include access to midwives and health visitors or, in the case of a person with a disability, ensuring that appropriate facilities were available. Where information on an allegation of torture or some other factor that might argue against detention comes to light only after detention has been authorised, it will be passed to the agency so that consideration can be given to whether the person’s detention should continue.

I explained at some length during the earlier debates why we could not accept a blanket ban on the detention of individuals who are or who claim to be torture victims, or on other individuals such as pregnant women and those with physical or mental health problems. I will not repeat those arguments today, not least as the noble Lord appears to have changed his own approach to that issue. However, I reassure noble Lords that we already comply with Article 17 of the reception directive, as we are legally obliged to do. Furthermore, the 2005 regulations on reception conditions are concerned with the provision of support rather than detention. The amendment is therefore unnecessary, as what it seeks to achieve is already happening in practice.

The noble Lord, Lord Avebury, asked who was to respond to Rule 35 letters, on allegations of torture, from removal centre doctors. Case owners are clearly responsible for considering Rule 35 letters. The noble Lord also made a point about HMCIP criticism and asked whether there should be an independent review. HMCIP regularly inspects all removal centres and short-term holding facilities and therefore has ample opportunity to look at issues such as Rule 35 letters—and it does so often. He also asked whether we would publish the review into Rule 35 and the Detention Centre Rules. I can tell the House that the review will be a quick, informal exercise to see whether changes can be made to the existing content of responses to Rule 35 letters. The results, and any changes that might be made, will be included in published guidance.

The noble Baroness, Lady Hanham, asked for further elucidation, too, and asked whether the Government will ensure compliance with the 2003 directive. We are already required to comply with that directive, which is implemented through the Asylum Seekers (Reception Conditions) Regulations 2005; so we are complying with it.

I think that that concludes consideration of most of the questions that were asked. I make the further point that cases are very carefully audited and we seek to ensure compliance through that audit process. That is another very important check, because the quality of decisions taken in the asylum process is very important. Senior caseworkers, who are embedded in the original asylum teams, currently order some 20 per cent of interviews and decisions with their teams, using a decision-quality assessment form jointly designed with the UNHCR, so there is a good deal of audit and quality processing. Those forms are collated by BIA, which looks for trends across the region. We believe that that form of monitoring provides us with valuable intelligence about the quality of caseworker decisions. Noble Lords who are concerned about this issue should take some comfort from that.

My Lords, I asked a second question, which was about how the Home Office itself monitors compliance with Article 17 of the directive. I do not think that the Minister gave me a response.

My Lords, I am not sure whether I did give the noble Baroness a response. The auditing process should pick up those issues. I will provide more information later, because setting this out this afternoon in the way in which the noble Baroness suggests involves quite a lot of detail. I would quite like to share that process with all noble Lords who have taken part in the debate.

My Lords, that may well be the case. That may be an avenue that we seek to use. It is certainly one of the avenues.

My Lords, may I press the Minister a little further about ensuring compliance and about the audits that he has described? Do these take account of reports coming in from other agencies, such as the Medical Foundation for the Care of Victims of Torture? Are they considered in these audits and audit reports?

My Lords, the Medical Foundation’s services are available to asylum seekers, and are very valuable. The foundation also provides medico-legal reports to support asylum seekers making asylum-seeking claims. It works on instruction from an applicant’s legal representative. Clearly, the sorts of things that the Medical Foundation provides to the BIA and so on help us to get a better feel for how the system is working and what its perfections and imperfections are. That provides us with very valuable intelligence to ensure that we are properly compliant.

My Lords, I thank all those who have either spoken in support of my amendment or commented on it. My noble friend Lady Finlay speaks with enormous authority, drawn from her distinguished medical experience. The noble Lord, Lord Avebury, has an unrivalled knowledge in your Lordships’ House of immigration and asylum matters. I particularly welcomed his suggestion that there should be an audit of the current procedures, particularly under Rule 35, of the detention and removal centres. That, of course, will affect matters only once a person has been detained. I suggest that it would be very much better to prevent them being detained in the first place. That, I think, was the intention of the right reverend Prelate the Bishop of Winchester, to whom I am grateful for that point.

The noble Lord, Lord Bassam, has just about satisfied me that the Government and the BIA are complying with the EU directive. Perhaps he will write to me subsequently to tell me whether I am right in thinking that the directive applies after an asylum decision has been taken. I agree with the noble Lord that it is vital to raise standards to ensure that official policy and actual practice are the same things. Having made those points, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 19 [Points-based applications: no new evidence on appeal]:

3: Clause 19, page 12, line 23, at end insert—

“(aa) was submitted no later than the notice of appeal was lodged in order to correct a mistake or misunderstanding at the time the application was made,”

The noble Lord said: My Lords, when the Minister confirmed in answer to my question on Report that a 28-day grace period would be provided in the Immigration Rules, thus allowing applications for renewal of leave to remain to be submitted within that period after the expiry of an existing leave to remain, I thought that it would take care of the mischief that we had identified. On further reflection I am afraid that it does not seem entirely to cover the matter.

As the Minister will recall, we are concerned about the person who submits an application in time which, through some mistake or misunderstanding either by that person or by his legal representatives, does not include an essential piece of evidence that is necessary to grant the extension sought. I thought that the Minister was saying that in those cases, after being refused because of an error or a missing piece of information, the person would be allowed to lodge a new application within the 28-day period that we were discussing.

I am now informed that the existing extra-statutory concession which the Minister said would be incorporated into the Immigration Rules allows for the application itself to be lodged within the extension time, but not for corrections to be submitted to a document bundle that has been properly lodged within the permitted leave to remain period. It therefore does not cover the examples we discussed in earlier stages of people such as students or work-permit holders whose original application was refused because of some mistake or misunderstanding in putting together the application itself or its supporting documentation, but which is out of time to correct the error in a new application.

I draw your Lordships’ attention to a point raised by the noble Baroness, Lady Anelay, on 18 July. She raised the particular case of a person who is refused as a result of producing in good faith a document containing a significant error. On that occasion the Minister said in his reply:

“Proposed new Section 85A(4)(c) allows evidence to be submitted at the appeal to rebut a decision by the BIA that a document is not genuine or is invalid … We would envisage evidence being produced by the applicant to correct that kind of clerical, typographical or administrative error. I think that it would fall within that exception. The interpretation is sufficiently broad to enable that to be the case”.—[Official Report, 18/7/07; col. GC 74.]

As I read the let-out in Clause 19(2), new evidence can be produced—I should be grateful if the Minister would pay attention to what I am saying, because I hope that I will have an answer from him. If he could defer his conversation with the noble Lord for a few minutes I would be extremely grateful.

As I read the let-out in Clause 19(2), new evidence can be produced only if it,

“is adduced to prove that a document is genuine or valid”,

whereas in the noble Baroness’s example, which I have just mentioned, the document was clearly invalid because of the errors. I respectfully ask the Minister to consider that his interpretation of proposed new Section 85A may not have been correct, because it does not allow the application to provide information that the original document failed to give in error or to expunge incorrect information that the document gave also in error.

The difficulty that both we and the Government seek to address is best achieved by adding to the list in proposed new Section 85A(4), as in our amendment, so that it is included in the Bill alongside the other rules on the circumstances in which the tribunal may consider new evidence. In many cases, that wording would allow the matter to be disposed of earlier than under the 28-day extension because, if there is an error of the kind that we are thinking about, the BIA would presumably spot it and refuse in good time for the applicant to correct it well before the 28-day limit. I beg to move.

My Lords, I made it clear at Report that I had a great deal of sympathy for the amendment of the noble Lord, Lord Avebury, as I have for the one that he moved today. For a whole new application to be required because of a simple misunderstanding is counterproductive, and an appeal which must consider the facts presented in the original case is no way of ensuring that procedural errors can be rectified before final judgment is given. I hope that the Minister managed to hear most of the comments made by the noble Lord, Lord Avebury, and is able to respond to them.

My Lords, most of the cases that come to my notice, where people request that I write to the Minister to ask him to use his discretion, involve mistakes and misunderstandings. Most asylum seekers’ first language is not English, and even when they have learned a little, they do not always get the correct advice. Our immigration advisers are not always competent in making sure that no mistakes are made or in understanding what has been said. The amendment would cure much of my correspondence with Ministers of State about misunderstandings and errors. If, as the noble Lord suggested, further evidence emerges within the notice of appeal that can help to provide correct information in cases which would otherwise be turned down because of incorrect information, my sense tells me that that would be the best way to proceed. I support the amendment.

My Lords, I am grateful to noble Lords who contributed to the debate and to the noble Baroness for her reminder to address the issue. I shall try to do exactly that. I want to take noble Lords through how the process works and try to offer some measure of reassurance.

Clause 19 would ensure that in appeals brought against refusals of applications made under the points-based system, the appeals system considers the facts which led to the decision being appealed and will not be an opportunity for applicants to patch up failed applications with new evidence. That is the purpose of Clause 19.

The appeals system exists so that any errors made by the Border and Immigration Agency in considering an application can be corrected. The amendment would lead to it being used to correct errors made by the applicant in applying. That is not the purpose of the appeals system as it exists. The noble Lord is rightly concerned that migrants who make mistakes in their applications will be unduly penalised. I hope I can offer some reassurance when I say that the points-based-system application process will be much clearer than the existing one about the evidence that applicants must submit.

Applications under the points-based system will be made online, not through filling in long forms where the applicant has to identify the relevant boxes. The online system will guide applicants carefully through the process and signpost the way. Applicants will fill in a self-assessment form before making their formal application so that they know whether they are likely to qualify. When they complete the application online, they will indicate the categories in which they believe they qualify for points. The website will then tell them exactly what evidence they need to send to the BIA in order to prove that they qualify for the points. For example, if they claim points for having a degree, they will be told to send in their degree certificate. There will also be a call centre that they can phone if they are unclear. Therefore, there will be far less scope under the points-based system for migrants to send in the wrong evidence or to make the kind of mistakes that the noble Lord is concerned to prevent. Those who do make mistakes in their application despite the additional information and help that we will provide will have to make a new application. We do not believe that that is unreasonable, especially given the lengths to which we are going to make the requirements clear.

The Border and Immigration Agency will have to make a new decision on the new evidence and it is only fair that the applicant should pay the cost of the administration. Concerns have been raised that the applicant will not be able to make a second application if they make an innocent mistake. It has been suggested that, by the time the mistake has been identified, they will not have any leave and their applications will be out of time. If a person applies to extend their stay and they are applying after their leave has expired, it is correct that they would normally be refused. However, where their leave expired less than 28 days previously, the Immigration Rules will provide a grace period. By that I mean that a migrant who does not have leave to be here will still be able to have his or her application considered provided that his or her previous leave expires 28 or fewer days before they make the second application.

My Lords, this is the vital point. If the applicant had previously submitted a document that contained a clerical error and he has already been refused, is he, having had that application rejected, then entitled to submit a new application enclosing the correct documentation or correcting the error made in the form within 28 days after the expiry of his existing leave to remain?

Yes, my Lords, that is what I am saying. The Government believe that the points-based system will provide an adequate remedy for migrants who have made mistakes in their application, which is the point that noble Lords have made.

My Lords, it is fair to say that assistance is given to applicants so that they can comply with the application process. Advice will be available to them to ensure that their application is not defaulted, as it were, because they do not have a full and ready command of the English language.

My Lords, that point, among many, seems critical. Can it really be that the noble Lord does not have friends whose first language is English and who are familiar with computers but who get into stews of one sort or another when faced with long documents and the need to press the right buttons at the right moment? Yet he and his department are putting a lot of faith in people, at a point when they are under great pressure, filling in forms correctly and getting all the things in the right boxes.

Does the noble Lord remember that the original White Paper had the word “fair” in it? The detail with which we are dealing here seems likely to be anything but fair, especially when, at point after point in the process of these last months, we have noted the significant extent to which there are real inadequacies in the provision of legal services at the right moment and around people having sufficient time with a lawyer—we have heard of people who have had perhaps a quarter of an hour or 20 minutes with one. We have heard about the real difficulties with translation services and with people getting to the right detention centre and so on. It seems extraordinary that, at point after point, the noble Lord and his predecessor have seemed utterly determined on this, as if there were brownie points for getting through one of these sittings without giving anything away. That is the impression with which I am left after sitting through hours of this process. I would like him to consider especially the presence of that word “fair”.

My last point concerns the consistent reiteration of the noble Lord, Lord Judd, who unfortunately is not in his place today, of the effects on cohesion when people feel themselves constantly to be treated unfairly in the process. Their friends, relatives and compatriots receive an impression of an unfair and oppressive system.

My Lords, the reason for having a points-based system is to ensure that there is greater transparency—that is how I can best put it. As I explained earlier, applicants will have a much clearer idea of what is expected of them in making the application because the points-based system spells it out. On the issue of fairness, that is obviously the most important point.

We make every effort all the way through the process to ensure that applicants are not disadvantaged because of issues of language and understanding. Of course we expect the application to be completed in English, but we need to remember that we are talking about people who are coming here to work and study. In any event, those coming to do skilled work will need to speak the English language. However, advice and assistance are quite properly available so that applicants can deal with any difficulties that may arise in how the application works.

I had rather hoped that noble Lords would let me take them through the process. By following it, they may have a clearer idea of what we are trying to do with the new points-based system. I would argue that the proposed amendment will not work within the framework of the appeals system. It is designed to allow the Border and Immigration Agency to reconsider its decision at the point when a notice of appeal is lodged rather than when it is actually heard. Even if we had the resources to make new decisions without charging a second application fee, we would still find it impossible to make new decisions before the hearing. A notice of appeal is lodged directly with the Asylum and Immigration Tribunal, not the Border and Immigration Agency. The tribunal lists the appeal for hearing 28 days from receipt of the notice of appeal. By the time the agency receives a notice of appeal, there is simply not enough time to make a new decision without causing other delays to the appeal system.

Finally, it is worth saying that there is a risk that if this amendment was adopted, everyone who wished to put in new evidence at the appeal stage would claim that they have made a mistake. We would not want to enter into complicated litigation over whether a mistake was made, whether it was inadvertent or whether the entire basis of the application had changed. However, this amendment would encourage exactly that. For those reasons, we believe that the amendment is unnecessary and potentially harmful to the success of the points-based system, which generally has been accepted as being a fairer means of making an assessment and coming to a conclusion.

I believe that there is an outstanding question from the noble Lord, Lord Avebury. He asked about the scope of Clause 19(2). If the BIA rejects a document as invalid or not genuine because of an administrative error, we believe that in most cases the exception in the relevant section will allow evidence to correct the error to be admitted, as it will be evidence that the document is valid. I hope that that answers the noble Lord’s point.

My Lords, the new subsection states clearly that new evidence can be considered only if it,

“is adduced to prove that a document is genuine or valid”.

We are considering a case where a document is manifestly not genuine or is invalid because of an error. It could be that the person has put the wrong piece of paper in the post or there is a clerical error on a particular form. It is the other way round from the circumstances described in the particular subsection I mentioned.

My Lords, I do not necessarily agree with the noble Lord. In most cases it will be acceptable. I understand the level of concern about this matter but we have a process here which should work better and which is fairer in the way it operates. I hope that I have answered the various points about fairness, language and access and so on. Those are important to this matter. We need to bear in mind the nature of the applicant that we are talking about.

My Lords, is the Minister asking the BIA to consider any old evidence that the applicant may submit at his own discretion, which he is for some reason pretending to be an error or omission? If the Minister says that it is not the purpose of the BIA to be punitive for applicants who patch up submissions that are incorrect, that means that it will be able to exercise discretion between cases where somebody submits a piece of evidence along the lines of our suggestion and those where somebody is simply trying to find a lever to reopen the case as a whole. I do not agree with the Minister that it would be difficult to make this distinction.

I am grateful to the noble Baroness, Lady Hanham, and to the most reverend Primate for the support that they have given the amendment. The most reverend Primate has emphasised that errors and misunderstandings inevitably occur—that is the case in any large system. Our experience—as his is—is that this occurs constantly in the immigration and asylum system.

I have no doubt that the points-based system will be clearer and that errors are going to be rare, but that does not mean that they will not occur. As I understand the Minister, the person will be able to complete all the questions online and—assuming all the information that he has given is correct and that he has not mis-keyed and typed an “I” where he meant a “7”—will then get a response from the system which is either favourable or not. In a sense, he is able to test the arithmetic of the application but not to verify that the documents to be submitted with the application—the noble Lord gave as an example a degree certificate—will satisfy the requirements. It is those cases—where there might be an error on the certificate from the university that he submits, for example—that we are anxious about, but we are not going to get any further with this matter this afternoon.

I express some gratitude to the Minister for at least saying—as I had originally thought—that if a person submits an incorrect application that is considered within time and the notice of refusal is served on the applicant, and if it turns out that refusal was based on some error or misunderstanding on his part, he will still be able to submit a fresh application within the 28-day grace period after his existing leave to remain has expired. That is not what the extra-statutory concession allows, but having the Minister’s assurance in Hansard will help to ensure that the final wording in the Immigration Rules satisfies what we had originally intended. I beg leave to withdraw the amendment.

Amendment, by leave withdrawn.

Clause 21 [Children]:

4: Clause 21, page 13, line 31, after “shall” insert “—

(a) ”

The noble Lord said: My Lords, I am not going to crow at this point, but the right reverend Prelate the Bishop of Winchester accused me earlier of not making any concessions. Here I am going to make a concession, and I make it as graciously as I can. I pay tribute to noble Lords on the Conservative Benches. The noble Baroness, Lady Hanham, and her predecessor in this brief—the noble Baroness, Lady Anelay—both pressed me on this issue. We had a very constructive discussion on it on Report and I am grateful to all those who have helped us perfect the amendments.

The amendment tabled by the noble Baroness, Lady Hanham, required that contractors providing services for the Border and Immigration Agency should have to follow the same code of practice on keeping children safe from harm as the BIA. I said at the time that the Government sympathised with the amendment and that they had inserted a section to that effect in the code of practice. We have now considered the amendment put forward by the noble Baroness, and the two amendments to Clause 21 tabled by the Government have the same effect. Importantly, they also make the Border and Immigration Agency responsible for ensuring that those with whom it makes arrangements to provide services follow the code of practice. This is in contrast to it being simply the responsibility of the contractor alone. This now puts it beyond all doubt that those providing contracted services on behalf of the BIA have exactly the same responsibilities towards children as the Border and Immigration Agency’s own staff. I beg to move.

My Lords, I thank the Minister for listening to us on this issue. In an area as sensitive as the one we are dealing with, where the Government are relinquishing their responsibility into the hands of agents, it is right that those agents should have to conform to the same practices as other people.

I am grateful to the Minister for having taken the matter away and looked at it, and I am particularly grateful for the fact that it is now on the face of the Bill rather than only in the code of practice. We have not won on very much, so in thanking the Minister I will quit while we are winning on this one.

My Lords, we are also grateful to the Minister for one of only a handful of concessions that have been made by the Government all the way through the Bill. None the less, the amendment is welcome. I also thank him for his letter of 18 October following our discussion on the extension of the obligations in the code to private contractors.

When we first raised the issue, we pointed out that many of the existing contracts had years to run and we asked whether the obligations would apply to them as well. I do not wish to repeat the examples that I gave except to mention Yarl’s Wood, the IRC where there have been major concerns in the past. The management was awarded to a new contractor in the spring and we were informed that one of the first things it did was to get rid of some 50 members of staff. To an outside observer, it was not clear how this would result in better compliance with the obligations in the code. But if it is not to be applied to that new contractor—if it is only to be applied to existing contracts when they are renewed—it will have two and a half years in which to get its act together, which would take a lot of the gilt off the gingerbread of this clause.

We also hope that there will be a formal system of recording alleged breaches by contractors of the code of practice and of having them investigated, presumably by the BIA chief inspector, in collaboration with an appropriate independent agency such as the Children’s Commissioner.

I accept that the code should not apply to fostering of UASCs, as I had suggested previously, because those arrangements are made by the local authority rather than the BIA. They would therefore be subject to Section 11. That was not entirely clear from the Minister’s previous answer and I would be grateful if he would comment on it.

My Lords, I, too, am grateful that the Minister has brought forward this pair of amendments; I accept that it is some response. As the saying goes, one swallow does not make a summer, but I thank the Minister.

On Report and at earlier stages, the noble Lord, Lord Avebury, and many others asked the Minister a series of questions about the code of practice, the point at which it was issued and, in particular, its development from the form in which it appeared in whatever kind of a draft it was reported to be in. A fortnight on, it would be interesting to know how that process is going, when it will be available and when Members of the House who have taken an interest in it might be able to see it. The character of this code of practice and the extent to which it covered what it was thought it needed to cover was of considerable interest and some concern on Report.

My Lords, I am sure the Minister must think that today is his birthday, with everyone applauding his new amendment. I join those who are saying that they appreciate it. My only point with regard to the amendment is this: how is it possible to include those who have current contracts as well as those who will have contracts in the future, so that the code will apply to those involved in this work at present? If the Minister could reply to that, I would be very appreciative.

The greatest possible care for our children and young people has featured prominently in our debates. I do not think we will be voting on the Bill today, but it does not get our whole hearted support. It could have been so much better if we had looked at the problem of asylum seekers and at giving them some opportunity to earn a living, thus helping them to establish themselves rather than undermine our economy. We will still be sad about the most unacceptable Section 9 of the Asylum and Immigration (Treatment of Claimants, etc.) Act. Many organisations, especially those involved with children, will regret that it is still on the statute book and can in certain circumstances force people into destitution.

Some people ask what the Liberal Democrats are for. On this sort of Bill, you know exactly what we are for: civil liberties and humanitarian issues. I think it was Andrew Rawnsley who wrote in the Observer on Sunday that if we did not exist we would have to be invented. We are still here. I thank my colleague who has again led on the Bill, my noble friend Lord Avebury, for his considerable contribution over so many years. He won a by-election in 1962, and for 45 years since then he has battled on these humanitarian issues. It has been a great privilege to be able to share the Bill with him. He has had a noble and notable career that we should all applaud, particularly the most vulnerable in our society who have benefited from his campaigning over many years.

We are happy with this amendment, but sad that others have not been accepted which could have been so beneficial to so many people.

My Lords, I have missed out on quite a number of the goings-on in here, but I am surprised that the clause on children has no reference to the Children Act, which is one of the best pieces of legislation in the land. Why is Every Child Matters not forming the background to dealing with children of asylum seekers and immigrants? There is a sense in which the Bill, with its points system, is going in the right direction, but it surprises me that those wonderful pieces of work do not somehow have an echo within the Bill.

My Lords, I am going to take the responses to this amendment as a compliment. I have been accused of not giving too much away; if that is the case, I take that as a measure of success from the Government’s perspective. I am grateful to the noble Lord, Lord Roberts, for his observations. He tempted me with the question, “What are the Liberal Democrats for?”. I am not going to provide an answer from the Dispatch Box. With the current state of play, it would be too much of an open goal to punt towards.

I will try to respond to some of the points that have been made. As regards whether the code of practice can apply retrospectively, the advice that we have received is that it can be applied to existing contracts through the notice of change procedures already in place. We intend to ensure that the Border and Immigration Agency has a system of monitoring contractors’ performance by measuring them against a set of standards devised for the specific activities that they carry out for the agency. There is already a set of standards for activities involving families, but we will also consider whether new standards for children are needed when the code is formally introduced. Noble Lords should be reassured by that because it goes back to the issue that we discussed earlier about standards.

The noble Lord, Lord Avebury, asked about private fostering. The draft code states that local authorities will be notified of private fostering arrangements, so there is ample scope for dialogue on that issue. The right reverend Prelate the Bishop of Winchester invited me to comment on the current position with regard to the code of practice. We intend to issue a formal version for full public consultation. We are extremely grateful to noble Lords and to the various organisations that have contributed during its iteration for helping us to perfect a code which will be worthy of the name. We intend to involve children’s charities and NGOs in a further round of consultation. We fully recognise and appreciate the value of their work and their input in perfecting the way in which we perform.

The most reverend Primate the Archbishop of York said that there was no reference in the code to the Children Act. As I said, we are consulting NGOs about incorporating some of the concepts and policy intentions behind the Children Act, including those in Every Child Matters. The consultation is directed less at the legislation itself than at its spirit, which we are trying to incorporate. That is the most important thing and is urgently needed. We need to ensure that we carry on raising the threshold and the standards. I am grateful to noble Lords for their generally supportive comments.

On Question, amendment agreed to.

5: Clause 21, page 13, line 31, at end insert “, and

(b) take appropriate steps to ensure that persons with whom it makes arrangements for the provision of services have regard to the code.”

On Question, amendment agreed to.

Clause 60 [Extent]:

6: Clause 60, page 32, line 2, leave out “1 to 4,”

The noble Baroness said: My Lords, despite discussion of this matter at previous stages, I make no apology for raising it again, because crucial uncertainties remain and require urgently to be clarified.

The amendment was incorrectly worded when it was tabled last week. I asked for it to be redrafted and the new wording was tabled yesterday. I hope that that did not inconvenience noble Lords too much, particularly the Minister and his advisers.

If accepted, the amendment would ensure that Clauses 1 to 4 extend to the whole of the United Kingdom, not just to England, Wales and Northern Ireland. That is important for the security of us all. If we are to have the protection of designated immigration officers who, if police are momentarily absent at the point of entry, can stop and search and, if need be, detain a suspect for up to three hours until a policeman arrives, we need it at every point of entry throughout the United Kingdom, not just at some entry points. That seems to me patently obvious.

This measure may be only an extra failsafe mechanism, but it is important. As your Lordships know, the Scottish Executive have until recently taken the view that at the seven main points of entry in Scotland the police are always present, so this failsafe mechanism is unnecessary north of the Border. However, during the passage of the Bill, it has emerged that, from time to time, as elsewhere in the United Kingdom, the police at these points are briefly absent. In any case, there are a number of vulnerable Scottish entry points beyond the seven already looked at by the Scottish Executive.

Despite the fact that immigration is not devolved, but is reserved to Westminster, the Government have decided to leave this matter to the Scots Parliament. Therefore, we come to the need for clarification. On Report, the Minister said:

“We have had no commitment as yet from the Executive to legislate on this area; they are considering whether they need to. Border controls are not devolved, but crime is a devolved matter”.—[Official Report, 9/10/07; col. 161.]

In the light of that statement, the clarification that I want to ask of the Minister is threefold. First, does the Scots Parliament have the power on its own to implement these measures at all? Secondly, in view of the legislative procedure there, if the Executive have the power and succeed in legislating, how long would it take until the whole United Kingdom is protected? The Law Society of Scotland points out that there could be quite a long delay—of some two years—because of that legislative process. Thirdly, what happens if the Scottish Executive have the power but, being a minority Administration, fail in their attempt to legislate?

I have given my questions to the noble Lord and I wonder whether he can answer them. In the light of those answers, how do the Government intend to fulfil their responsibility under the Scotland Act to protect the borders of the whole of the United Kingdom? Would it not save everyone a great deal of trouble if the Minister accepted this amendment to the Bill now? I beg to move.

My Lords, I support my noble friend Lady Carnegy of Lour. On Report—again, on 9 October, at col. 161—the Minister was very clear when he said that immigration officers are not a devolved matter. The other reassuring element that he emphasised is that the power of arrest for assault will be transferred to immigration officers throughout the United Kingdom. The Minister went on to try to explain:

“It is in the conferral of functions that police officers engage in a devolution issue, in the sense that they will act in Scotland to support the Immigration Service”.—[Official Report, 9/10/07; col. 161.]

That phrase skirts around the question; “a devolution issue” does not pin down for us whether it is a devolved issue or a reserved issue. However, so far so good; the police are to act in support of immigration officials, as they do now and, as this Bill seems to contend, they will do so for some long time. As my noble friend said, we have been led to believe that, with the best will in the world, the legislation will not be put forward before March 2009.

Unfortunately, it appears that we did not go into the fine detail of the powers required for immigration when we debated paragraph 7 of Part 1 of Schedule 5 to the Scotland Act. So it is all the more important that our discussion today should make the issue absolutely plain. When this provision was before the House, we looked at other aspects to which it applied. The noble Baroness, Lady Ramsay of Cartvale, said:

“We fully accept the importance of ensuring that in all parts of the UK there is a common system to govern”.—[Official Report, 21/7/98; col. 869.]

In this case, she was referring to the import of illegal drugs, but perhaps the Minister can understand why some of us are puzzled about why the Government have had a change of heart when it comes to immigration officers.

We are told that the Scottish Parliament will legislate, but Clauses 1 to 4 deal with the powers of immigration officers, not those of the police. Can the Minister explain a little more about the mechanism that is proposed to achieve this transfer of powers in the Scottish context? I am sure that the Minister is aware that Section 29 of the Scotland Act says:

“An Act of the Scottish Parliament is not law so far as any provision of the Act is outside the legislative competence of the Parliament”.

Surely if the Scottish Parliament passed a Bill conveying the same powers as are in this Bill, further down the line a smart immigration lawyer will take an appeal, as is allowed under Section 102 of the Scotland Act, to “any court or tribunal” and contend that in this matter the Scottish Parliament is ultra vires. We will be back to calling on the supervisory powers of the Court of Session to try to sort it out.

The mischievous side of my nature says that if Scottish law is currently considered adequate to enforce our borders, what is so deficient in English law as to make Clauses 1 to 4 necessary? Of course, in principle, our party is anxious to see that our borders are regulated as properly as they can be. If any other route of allocating powers is used, surely it will mean that immigration officers will not have the same powers in Scotland as they have in the rest of the UK. The only way to guarantee that they have the same powers is to pass my noble friend’s amendment.

My Lords, my name is added to this amendment, in support of my noble friend. At this stage it would be extremely helpful if the Minister would clarify exactly how the Government intend to resolve the inconsistencies within the Bill, which change immigration procedures for half—or two-thirds—of the country, but not for the remainder. There has been, as the Minister may be aware, surprise and dissatisfaction among bodies in Scotland, because the Government do not appear to have acknowledged that they have only a minority in the Scottish Parliament and so cannot pronounce on what legislation it might or might not be able to pass.

The Scottish Law Society has pointed out that, whatever the results of the current review in Scotland, legislation takes time to be drafted, debated and implemented. A period of at least two years is likely to elapse before any significant legislation can be produced. In that time there will be differences between the Scottish immigration procedures and those in the rest of the United Kingdom.

Both my noble friends Lady Carnegy of Lour and the Duke of Montrose have given clear explanations of what is now wrong with this Bill. Although this matter has been raised previously, the Minister now has chapter and verse on what is wrong with it and why the exclusion of Scotland from Clauses 1 to 4 will be so detrimental to the control of our borders. I very much hope that he will be able to give a satisfactory response.

My Lords, this is the third time that we have dealt with this matter. The noble Baroness has really put her finger on something that requires attention even at this 11th hour and 59th minute. As I understand it, under the extent clause, Clause 60, Clauses 1 to 4 apply only to England and Wales. Therefore, the powers of immigration officers in those clauses are not operative in Scotland. Because immigration is not a devolved matter, I invite the Minister to agree that extending those powers to Scotland could be done only by the United Kingdom Parliament and not by the Scottish Parliament, which is not enabled to legislate on the functions of immigration officers any more than it does any other immigration matters. Although it was originally said that it had been agreed between the Labour Party in England and its counterparts in Scotland that if the Labour Party had won the election in Scotland it would have introduced legislation in the Scottish Parliament, the Labour Party might have been advised, had it gone further down that road, that that was legally impossible.

We are confronted with a situation now where immigration officers have the powers in England and Wales to detain and search a person for up to three hours, pending the arrival of a police officer, but in Scotland they cannot do so. Yet, as we heard at earlier stages of the Bill, it may be even more necessary in some of the ports of entry in Scotland for that power to be exercised. There may be only one immigration officer—for example, in Shetland—and the police officer may be nowhere near the airport. I do not know what the immigration officer would do if he was confronted with a situation in which he would have exercised those powers had they been available to him, but he could not do so because the Act did not apply. If a police officer cannot be on the spot within the few minutes that it takes for the immigration officer to decide that a person ought to be detained—no doubt the person will abscond when he realises that this is the objective—it will be too late. The Minister needs to confront the situation and explain the long-term answer. Are we going to have to wait for further legislation in the United Kingdom Parliament before we can put this right?

My Lords, as ever, I am grateful to the noble Baroness, Lady Carnegy of Lour, for her very subtle and well informed interventions in this Bill and in other Bills. She always makes useful and constructive contributions to our debates. I am grateful to her for providing me with a bit of time and advance knowledge of some of the questions that she has quite rightly and properly asked this afternoon. I know that she and the noble Duke have a keen interest in ensuring that there is no compromise in border security in Scotland as a result of the measures in the Bill, and I assure the House that the Government are more than equally committed to that objective.

The amendment would extend the provisions in Clauses 1 to 4 on detention at ports to Scotland. This matter has been aired in this House and in the other place on more than one occasion. Before dealing with the substance of the amendment, I stress that Clauses 1 to 4 do not change any arrangements for controlling immigration or for regulating our borders. Immigration officers in Scotland have the same immigration powers as those elsewhere in the United Kingdom, and the clauses do not alter that.

The provisions in this Bill, in substance, deal with criminal justice matters and not the control of immigration, which is, of course, a reserved matter. The Sewel convention states that the UK Parliament will not legislate in a devolved area without the consent of the Scottish Parliament. That is quite proper. The Government remain fully committed to respecting the devolution settlement.

We have discussed in some detail, during debates in Grand Committee and at Report stage, the detention at ports provisions and their non-application to Scotland. I am sorry that I have not yet been able to allay all the concerns expressed on this issue. In seeking to do so now, I will address the fact that, during our previous discussions, some of the debate—

My Lords, if an immigration officer wishes to detain somebody, how does that become a criminal justice matter? I do not fully grasp that.

My Lords, it may well be that the person whom they are seeking to detain has effected a criminal offence. If your Lordships will let me carry on with the flow of the argument, I want to address—

My Lords, I am sorry to interrupt the Minister again. He said that it may be that the person who is detained has committed a criminal offence, but it may be that he has not and is just a suspect. Could the Minister answer the question of my noble friend the Duke of Montrose?

That is the point, my Lords; there may be many reasons for a detention. I would quite like to proceed through answering the questions. I want to address the fact that during our previous discussions the provisions in Clauses 1 to 4 were viewed by some as being a proxy in some way for the unified border force. They are not. Decisions on the shape and scope of the unified border force will be taken only 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 that report, along with any considerations about changes to legislation.

I will explain why we do not agree with the noble Baroness, Lady Carnegy, that the amendment is necessary or appropriate. Although immigration is a reserved matter, the detention at ports power will be used by designated immigration officers at ports to allow for the detention of people pending the arrival of a constable. I stress again that this is not about border controls; immigration officers in Scotland will continue to have the full range of powers under immigration and, importantly, terrorism legislation.

Furthermore, these clauses do not concern the power of immigration officers to arrest individuals for immigration offences, or to arrest a person whom they have reasonably suspected of assaulting an immigration officer. All those powers apply in Scotland as they do in England and Wales. These powers are not for the reserved purposes of immigration or terrorism, but for the purpose of assisting the police for general policing. In Scotland that is a devolved matter. The rationale is that the border is a convenient pinch point for identifying those who may be liable to arrest. This power will assist the police in delivering that objective and will most likely impact on British citizens and EEA nationals as we increasingly merge police databases with immigration watch-lists under our e-borders programme.

As noble Lords will know, responsibility for policing is devolved to Scotland. It is for the Scottish Executive and the Scottish Parliament, not the UK Parliament, to determine the level and type of policing in Scotland and how best to use resources, including whether to enlist the assistance of immigration officers in this way. On the introduction of this Bill, and following discussions with the Association of Chief Police Officers in Scotland, the previous Scottish Administration concluded that an alternative non-legislative approach was sufficient to deal with people liable to arrest. That involves the routine deployment of police officers at Scottish ports to deal with those identified as liable for arrest for non-immigration purposes.

I understand that the new Scottish Administration have given a commitment to review, in consultation with ACPOS and the Border and Immigration Agency, whether the support of immigration officers is necessary in Scotland and, if so, how any legislative solution should be taken forward. That is the Scottish Administration’s commitment to review.

My Lords, perhaps I may follow up what the noble Lord has been saying and try to get some clarification. Clause 2(6) states:

“Detention under this section shall be treated as detention under the Immigration Act 1971”.

Presumably that is a matter not of criminal justice but of immigration law.

My Lords, the clause to which the noble Duke refers, if I am following him correctly, deals with what the designated immigration officer may do. The designated immigration officer,

“must arrange for a constable to attend … may search the individual for, and retain … must retain anything found on a search”,

and so on. When the constable arrives, the designated immigration officer must,

“deliver to the constable the individual and anything retained on a search”.

That, as I explained, is the way in which it is anticipated the detention clause will operate.

Perhaps I may continue my response to the amendment. Until that review has been carried out a commitment to replicate the provision in Scotland cannot be given. If legislation is necessary, either the Scottish Parliament could introduce its own legislation or provisions could be brought forward in UK legislation following a legislative consent Motion. For those reasons, I hope that the noble Baroness will feel able to withdraw her amendment.

I wish to pick up some of the other points raised by the noble Baroness, Lady Carnegy of Lour. I have made it clear that the Scottish Parliament has the power to legislate on the matter. That is what it has agreed to review. It is also our understanding that the legislative programme for the coming year in the Scottish Parliament is tight and further inclusions would need to be discussed and agreed by the First Minister and the First Minister’s Cabinet. I have also indicated that this is not the only option. Provisions could be brought forward in future UK legislation, again following the consent of the Scottish Parliament. Alternatively, the Scottish Executive may conclude that further legislation is not required.

As I said, the deployment of police resources at Scottish ports is a matter for the Scottish Executive and Scottish Parliament. I therefore cannot accept the amendment, because it would be improper to do so. The security of our ports is delivered by a number of agencies—government departments, port operators and the police. The Government take most seriously their responsibility for protecting the borders of all of the UK. That is why issues such as transport security, terrorism and allied matters are reserved to the United Kingdom Parliament in the interests of national security. There will be no compromise in the security of UK borders as a result of these provisions not applying to Scotland.

There was a question on immigration powers and so on. The powers are there for the use of custody officers, for use in detention facilities, and for escorting, but they do not affect the underlying purpose of detention, which is to act in support of the police service.

My Lords, can the Minister clarify a matter regarding Clause 2? Am I right in thinking that the purpose of the clause is to extend the powers of immigration officers as such not to immigration but to criminal justice? That would be clear from subsection (1), which gives the circumstances in which the immigration officer may exercise the powers conferred by Clause 2. That is a criminal justice matter. Is that right? On the point raised by the noble Duke, the Duke of Montrose, on subsection (6), is this provision to regulate the detention of the suspect while the police arrive in relation to their criminal justice powers?

My Lords, I do not know what other noble Lords think but to my mind the Minister’s replies have to some extent muddied the waters. The previous Lord Advocate, who has just spoken, said one or two things which, I am sure, from his deep experience and skill as a lawyer, have clarified some points. I found it difficult to follow them and shall not try to respond to them.

The Government seem convinced that the Bill will extend to Scotland some functions of immigration officers that apply to criminal justice but not to immigration. That is difficult to understand. They are trying to enable these immigration officers to hold things up until the police come, to help frustrate someone who is trying to immigrate and should not. I take it that the Government have taken advice on that and are convinced. I just hope that they will continue to be convinced and that we shall not have, as someone said earlier, challenges to the law on this point. It is very difficult for a lay person to see that what the Government are saying is so, but one must accept that they have taken good legal advice and that it is correct.

The Minister did not give much encouragement on the length of time that the Scottish Parliament will take to plug the gap in the arrangements. He says that its programme is tight, and I am sure that it is. I expect that it has a fast-track system and that, if it does, it will be required to use it. I think it was the noble Lord, Lord Avebury, who said that half the United Kingdom is vulnerable if Scotland does not legislate quickly on the point. He is probably right: Scotland’s population is not half of the United Kingdom population but its coastline must constitute, if anything, more than half. The vulnerability must be very great before Scotland has legislated.

We have discussed this fully and given the Government every opportunity to see the problems. The Minister has been no more responsive to the questions on this matter than he has on many others. I hope that when the Home Secretary reads the debates on the Bill, particularly at this stage, she will look at what was said by the most reverend Primate the Archbishop of York and the right reverend Prelate the Bishop of Winchester. They were very critical, but very politely, about the Home Office in relation to the Bill. I hope that the Home Secretary will read that with care. I do not blame the Minster here for not giving in; he has no power to do so and is told what to do by those at the other end of the building. However, we are rather shocked at the way in which the legislation is being dealt with, particularly as it affects vulnerable people.

I thank everybody who has spoken in the short debate on this amendment. I hope that the Government will not rue the day when they see the result of leaving things to the mercy of the Scots Parliament. I do not understand the argument that gives the Scots Parliament the power, but I hope that it is correct and that the Parliament will get on with it quickly. I am informed that it is now understood in Scotland what the Bill is about and that something has to be done. It is the whole of the United Kingdom’s safety that we are talking about, not just Scotland. It is with the greatest reluctance that I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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

Moved, That the Bill do now pass.—(Lord Bassam of Brighton.)

My Lords, I briefly make two points. I have given prior notice of them and am advised that they are within the restrictions imposed by the Companion. We have worked long and hard on the Bill, with extra time both in Grand Committee and on Report, but with precious little to show for all that effort. The chances of making significant improvements were reduced by the decision to parcel the Bill off to a Grand Committee, combined with the latest restrictions on amendments that can be moved at Third Reading. Although a Bill goes through six different stages in this House, in the circumstances of the Bill the main arguments can be brought to a vote only on Report. This may be all very well for some legislation, but it was clearly inappropriate in this case; so the procedure for sending Bills to Grand Committee needs to be reviewed, and consideration needs to be given to whether the latest restrictions on amendments at Third Reading should apply to Bills that do go to Grand Committee.

Secondly, in passing this Motion, the House is relying on codes of practice that deal with critical matters such as the safeguarding of children, which have been published only in draft, and on the many assurances given by the Minister about the way in which the Government are going to use the extensive powers that they are taking in secondary legislation. The Minister said that he would give thought to our suggestion that there should be pre-legislative scrutiny of some codes of practice, and I hope that the same reasoning can be applied to orders. The affirmative procedure, to be used for instance for biometric identity cards, does not provide adequate parliamentary oversight, and the more we hand over powers such as this, which have large implications for our civil liberties, the greater the need for pre-legislative scrutiny of controversial secondary legislation.

My Lords, I am sorry if there is a feeling in the House that the Bill has suffered in any way as a result of its Committee stage not being held on the Floor of the House. I disagree with the noble Lord. The quality of scrutiny in Grand Committee is in many ways as thorough as it can ever be on the Floor of the House, because a lot more time is given to very careful consideration and there is a much more iterative process. All Members, even sometimes passing trade, can participate and fully exploit the opportunity to ask the most detailed questions. It is perhaps worth reflecting just how much time we took in Grand Committee. We sat for six days, having allocated an additional day. More than 23 hours were spent on the Bill. In general, those who have participated will agree that the discussion was not only wide-ranging but profound and that the Bill has greatly benefited from that engagement. Although some of the comments made this evening by the noble Lord, Lord Avebury, have been adverse, when we discussed many of those issues in Grand Committee compliments were made about the thought and clarity and careful consideration that we in the Government were giving to those very difficult and sometimes very sensitive issues.

The Bill’s process was, of course, agreed through the usual channels. I understand that the noble Lord’s party was fully consulted and that, on its initiative, efforts were made to review the way in which the allocation was made. That is its entitlement, and it was quite right to exercise it. I am afraid that the Government do not get what they wish through the House of the Lords, as I and other noble Lords, particularly those who represent the Government as Ministers, have experienced on many occasions. That is the privilege of the House and the way in which it operates, and that is the way it should be.

There were 14 Committee sittings in the other place, of which four were public evidence sittings, so there was the opportunity to interrogate precisely on the childcare and other issues that have so exercised noble Lords. I also understand that the total amount of Committee time on the Bill was some 29 hours, and that Report in another place lasted four hours and 45 minutes. In your Lordships’ House, we had 23 hours in Grand Committee and a further 13 and three-quarter hours on Report. Noble Lords have detained your Lordships’ House this afternoon for a further two hours. Therefore, I argue that we have very thoroughly considered this Bill. While noble Lords might not like the outcome, we have given it a thorough going over.

My Lords, before the noble Lord sits down, will he accept that the complaint is not so much about discussion and scrutiny as about the opportunity to have votes on important amendments?

On Question, Bill passed, and returned to the Commons with amendments.