Asylum and Immigration (Treatment of Claimants, etc.) Bill

Public Bill Committee, 8 January 2004.

Standing Committee B

Asylum and Immigration (Treatment of Claimants, etc.) Bill

Beverley Hughes (Labour, Stretford and Urmston)

I beg to move,

That—

(1) during proceedings on the Asylum and Immigration (Treatment of Claimants, etc.) Bill the Standing Committee shall meet when the House is sitting on Tuesdays and Thursdays at 9.10 a.m. and 2.30 p.m.;

(2) 12 sittings shall be allotted to the consideration of the Bill by the Committee;

(3) the proceedings shall be taken in the order shown in the Table below and shall (so far as not previously concluded) be brought to a conclusion at the time specified in the second column of the Table.

TABLE

ProceedingsTime for conclusion of proceeding Clauses 1 to 6.11.25 a.m. on Tuesday 13th January. Clauses 7 to 10; Schedules 1 and 2;6.55 p.m. on Tuesday 20th January. Clauses 11 and 12; Schedule 3; Clauses 13 and 14. Clauses 15 to 25; Schedule 4; Clauses 26 to 28; remaining proceedings on the Bill.6.55 p.m. on Tuesday 27th January. May I say what a pleasure it is to see you in the Chair, Mrs. Roe? I understand that Mr. Taylor will be sharing the orchestration of our proceedings with you. The matter has been fully discussed between the parties. The Programming Sub-Committee met yesterday, and there was no dissent. The Whip, my hon. Friend the Member for Nottingham, East (Mr. Heppell), made it clear that he is perfectly prepared to revisit the motion if hon. Members wish it. Mr. Humfrey Malins (Woking) (Con): I join the Minister in welcoming you to the Chair, Mrs. Roe. I also welcome both Ministers; this is not the first asylum Bill that we have dealt with together. I am slightly overwhelmed by the sheer number of hon. Members on the Government Benches, but I am glad to welcome to the Opposition Benches my hon. and learned Friend the Member for Harborough (Mr. Garnier) and my hon. Friend the Member for Upminster (Angela Watkinson). Although I welcome those on the Government Benches, I am surprised at the make-up of the Committee. I well recall that on Second Reading just before Christmas, many Members spoke whom one would naturally expect to have been members of the Committee, because they showed an interest in the subject. I wonder whether the Government have provided Committee members whom they think will make no objection to their plans. Mr. Jon Owen Jones (Cardiff, Central) (Lab/Co-op): I am sorry to intervene so early, but I take exception to that slight. The hon. Gentleman suggests that I and other Labour Members do not have a genuine interest in or a knowledge of the subject. I hope that he will make it clear that that is not the case. Mr. Malins: Yes, I do so willingly. For instance, the hon. Member for Dover (Mr. Prosser) clearly takes an interest in the subject, and I know that others have a close interest in the Bill and in the subject generally. However, it seems somewhat strange that the hon. Members for Islington, North (Jeremy Corbyn) and for Hackney, North and Stoke Newington (Ms Abbott), the hon. and learned Member for Medway (Mr. Marshall-Andrews) and the hon. Members for Lancaster and Wyre (Mr. Dawson) and for Leicester, East (Keith Vaz), who all spoke dramatically against the Bill on Second Reading, are not members of the Committee. Mr. John Heppell (Nottingham, East) (Lab): To save us from having a long discussion on the subject, I must make it clear that any hon. Member who asked to be on this Bill was put on the Committee. No one who asked was refused. Mr. Malins: I hear what the hon. Gentleman says. That gives me the opportunity to welcome to the Committee the hon. Member for Walthamstow (Mr. Gerrard). He has sat many times on Committees dealing with asylum matters, and his expertise is extremely well known. On the Second Reading of the Nationality, Immigration and Asylum Bill in 2002, he said: ''it almost does not matter what we do in terms of legislation, if the Home Office does not get its act together to make decisions within a reasonable time scale.''—[Official Report, 24 April 2002; Vol. 384, c. 387.] Like my hon. Friends, he seems to wonder why the Government legislate so often on asylum matters. He said that he had difficulty with every clause of the 2002 Bill. He thought that clause 7 was particularly harsh and described clause 10 as the worst. We look forward very much to the supporting comments—and the votes; we need them—of Government Members, and in particular those of the hon. Member for Walthamstow. I shall ask my hon. Friends to vote against the motion, because yet again we are moving with indecent haste on asylum matters. The ink is barely dry on the Nationality, Immigration and Asylum Act 2002. That legislation was in Committee only a year ago, and something in the order of 342 amendments and 25 new clauses were tabled by the Government between Second Reading and its final stages. That was an example of poor government, and it is much to be hoped that on this occasion the Government will not come up with a raft of new amendments and clauses as the Bill proceeds. We have not had the opportunity to consult widely about the many important issues raised in the Bill. The Home Affairs Committee was given a woefully short time to prepare its brief report. The consultation period for outside parties was a mere 15 working days, and the Bill was published only nine days after the closing time for responses. That suggests that the Bill had probably been drafted and was at the printers during the consultation period. The Bill is important, and contains issues that need to be discussed at some length. Those include clause 2, which concerns document offences, clause 6, on credibility, clause 7, on the withdrawal of support—an issue that has raised great anxieties—clause 10, on the cutting down of the appeal system, and clause 20, on Government charging for fees. There should have been wider consultation on all those important matters, not only with the non-governmental organisations but more broadly within the House of Commons, before this rushed Bill was brought before us. I want to point out the real problems in the asylum system, none of which has been dealt with in the Bill. As the hon. Member for Walthamstow has constantly pointed out, the question of the quality and speed of initial decisions is not addressed in the Bill at all. I pointed out on Second Reading that those who make the initial decisions in asylum cases are, generally speaking, Home Office officials of a junior grade. Their starting salary is only £15,500, and they have only 27 days' training. They are people who make life and death decisions. The average time for making initial decisions—not addressed in the Bill—has not significantly improved in the past two or three years. The current Minister for Trade and Investment, the hon. Member for North Warwickshire (Mr. O'Brien) observed: ''On average, the initial decision on asylum will be dealt with within two months and appeals within a further four months. We aim to reach that ambitious target by April 2001''. —[Official Report, Special Standing Committee, 30 March 1999; c. 495.] Did the Government reach that target? They most certainly did not. I received a parliamentary answer on 12 July 2002, 15 months later, which stated that the average time from date of application to initial decision in March 2002 was seven months. I give the Government credit for bringing the figure down since, but the target was not met. Beverley Hughes: This is a hotly contested area of policy, and rightly so, because it raises important issues. However, it is important that from the outset we try to debate this on the basis of facts and what is actually happening. Will the hon. Gentleman acknowledge that, for all of the last year, at least 75 per cent., and more recently 80 per cent., of new claims have been decided within two months? That is a very different record from that of his party when in government, when the average time was nearly two years. Mr. Malins: There have been improvements in the initial decision-making process. However, I have to point out that the Minister for Trade and Investment said that he hoped to meet his target by 2001, and that was never achieved. I also have to point out that, even in November 2002, the Government were forced to admit that the number of asylum applications awaiting an initial decision for more than six months—how can people wait for more than six months?—was estimated to be 19,600. Of those applications, after five years of the Labour party being in power, 15,800 cases were outstanding after more than 12 months. That simply will not do, and that is the first mischief in the asylum system that is not touched on in the Bill. The second mischief, which is not touched on in any way in the Bill, is the complete absence nowadays of Home Office presenting officers at hearings before adjudicators. Government Members who speak regularly to part-time and full-time adjudicators will know, I am sure, that the situation with regard to Home Office representation at hearings before adjudicators is becoming more deplorable by the month. Rarely, if ever, is the Home Office represented at those hearings. The third mischief is the Government's utter failure to enforce a removals policy. It cannot be right that the Government set themselves a target of 30,000 removals per year two years ago, that they abjectly failed to meet that target and then scrapped it altogether, and that they still have removed this year only about one in four failed asylum seekers. Nowhere in the Bill is that addressed, but it is one of the great scandals of the asylum system and it must be addressed. The Government have presided over an increase in asylum applications that is unprecedented in western Europe, reaching 110,000 in the last year for which figures are available. It is no wonder, with their inability to remove, that the Government had to grant amnesties just a few weeks ago, at the end of last year, to a further 50,000 failed asylum seekers. It brings shame on the system, a point echoed by all the NGOs, if it cannot work efficiently. That returns me to my basic premise: it is all very well for us to be here day after day, examining a Bill and thinking that legislating is going to cure problems, but in fact the problems are immense and untouched. I shall give one little example, if I may. A dominant theme in the 2002 Act, which has come to absolutely nothing, was that the much vaunted accommodation centres were going to solve the whole problem. The Government said that they would set up accommodation centres and put the asylum seekers in them, but they never took advice on whether those should be in rural or urban areas, or be large or small. Indeed, they ignored the advice given and decided to put the accommodation centres in rural areas with 750 asylum seekers in each.

May I say what a pleasure it is to see you in the Chair, Mrs. Roe? I understand that Mr. Taylor will be sharing the orchestration of our proceedings with you.

The matter has been fully discussed between the parties. The Programming Sub-Committee met yesterday, and there was no dissent. The Whip, my hon. Friend the Member for Nottingham, East (Mr. Heppell), made it clear that he is perfectly prepared to revisit the motion if hon. Members wish it.

Humfrey Malins (Conservative, Woking)

I join the Minister in welcoming you to the Chair, Mrs. Roe. I also welcome both Ministers; this is not the first asylum Bill that we have dealt with together.

I am slightly overwhelmed by the sheer number of hon. Members on the Government Benches, but I am glad to welcome to the Opposition Benches my hon. and learned Friend the Member for Harborough (Mr. Garnier) and my hon. Friend the Member for Upminster (Angela Watkinson). Although I welcome those on the Government Benches, I am surprised at the make-up of the Committee. I well recall that on Second Reading just before Christmas, many Members spoke whom one would naturally expect to have been members of the Committee, because they

showed an interest in the subject. I wonder whether the Government have provided Committee members whom they think will make no objection to their plans.

Jon Owen Jones (Labour/Co-operative, Cardiff Central)

I am sorry to intervene so early, but I take exception to that slight. The hon. Gentleman suggests that I and other Labour Members do not have a genuine interest in or a knowledge of the subject. I hope that he will make it clear that that is not the case.

Humfrey Malins (Conservative, Woking)

Yes, I do so willingly. For instance, the hon. Member for Dover (Mr. Prosser) clearly takes an interest in the subject, and I know that others have a close interest in the Bill and in the subject generally. However, it seems somewhat strange that the hon. Members for Islington, North (Jeremy Corbyn) and for Hackney, North and Stoke Newington (Ms Abbott), the hon. and learned Member for Medway (Mr. Marshall-Andrews) and the hon. Members for Lancaster and Wyre (Mr. Dawson) and for Leicester, East (Keith Vaz), who all spoke dramatically against the Bill on Second Reading, are not members of the Committee.

John Heppell (Labour, Nottingham East)

To save us from having a long discussion on the subject, I must make it clear that any hon. Member who asked to be on this Bill was put on the Committee. No one who asked was refused.

Humfrey Malins (Conservative, Woking)

I hear what the hon. Gentleman says. That gives me the opportunity to welcome to the Committee the hon. Member for Walthamstow (Mr. Gerrard). He has sat many times on Committees dealing with asylum matters, and his expertise is extremely well known. On the Second Reading of the Nationality, Immigration and Asylum Bill in 2002, he said:

''it almost does not matter what we do in terms of legislation, if the Home Office does not get its act together to make decisions within a reasonable time scale.''—[Official Report, 24 April 2002; Vol. 384, c. 387.]

Like my hon. Friends, he seems to wonder why the Government legislate so often on asylum matters. He said that he had difficulty with every clause of the 2002 Bill. He thought that clause 7 was particularly harsh and described clause 10 as the worst. We look forward very much to the supporting comments—and the votes; we need them—of Government Members, and in particular those of the hon. Member for Walthamstow.

I shall ask my hon. Friends to vote against the motion, because yet again we are moving with indecent haste on asylum matters. The ink is barely dry on the Nationality, Immigration and Asylum Act 2002. That legislation was in Committee only a year ago, and something in the order of 342 amendments and 25 new clauses were tabled by the Government between Second Reading and its final stages. That was an example of poor government, and it is much to be hoped that on this occasion the Government will not come up with a raft of new amendments and clauses as the Bill proceeds.

We have not had the opportunity to consult widely about the many important issues raised in the Bill. The Home Affairs Committee was given a woefully short time to prepare its brief report. The consultation period for outside parties was a mere 15 working days, and the Bill was published only nine days after the closing time for responses. That suggests that the Bill had probably been drafted and was at the printers during the consultation period.

The Bill is important, and contains issues that need to be discussed at some length. Those include clause 2, which concerns document offences, clause 6, on credibility, clause 7, on the withdrawal of support—an issue that has raised great anxieties—clause 10, on the cutting down of the appeal system, and clause 20, on Government charging for fees. There should have been wider consultation on all those important matters, not only with the non-governmental organisations but more broadly within the House of Commons, before this rushed Bill was brought before us.

I want to point out the real problems in the asylum system, none of which has been dealt with in the Bill. As the hon. Member for Walthamstow has constantly pointed out, the question of the quality and speed of initial decisions is not addressed in the Bill at all. I pointed out on Second Reading that those who make the initial decisions in asylum cases are, generally speaking, Home Office officials of a junior grade. Their starting salary is only £15,500, and they have only 27 days' training. They are people who make life and death decisions. The average time for making initial decisions—not addressed in the Bill—has not significantly improved in the past two or three years.

The current Minister for Trade and Investment, the hon. Member for North Warwickshire (Mr. O'Brien) observed:

''On average, the initial decision on asylum will be dealt with within two months and appeals within a further four months. We aim to reach that ambitious target by April 2001''. —[Official Report, Special Standing Committee, 30 March 1999; c. 495.]

Did the Government reach that target? They most certainly did not. I received a parliamentary answer on 12 July 2002, 15 months later, which stated that the average time from date of application to initial decision in March 2002 was seven months. I give the Government credit for bringing the figure down since, but the target was not met.

Beverley Hughes (Labour, Stretford and Urmston)

This is a hotly contested area of policy, and rightly so, because it raises important issues. However, it is important that from the outset we try to debate this on the basis of facts and what is actually happening. Will the hon. Gentleman acknowledge that, for all of the last year, at least 75 per cent., and more recently 80 per cent., of new claims have been decided within two months? That is a very different record from that of his party when in government, when the average time was nearly two years.

Humfrey Malins (Conservative, Woking)

There have been improvements in the initial decision-making process. However, I have to point out that the Minister for Trade and Investment said that he hoped to meet his target by 2001, and that was never achieved. I also have to point out that, even

in November 2002, the Government were forced to admit that the number of asylum applications awaiting an initial decision for more than six months—how can people wait for more than six months?—was estimated to be 19,600. Of those applications, after five years of the Labour party being in power, 15,800 cases were outstanding after more than 12 months. That simply will not do, and that is the first mischief in the asylum system that is not touched on in the Bill.

The second mischief, which is not touched on in any way in the Bill, is the complete absence nowadays of Home Office presenting officers at hearings before adjudicators. Government Members who speak regularly to part-time and full-time adjudicators will know, I am sure, that the situation with regard to Home Office representation at hearings before adjudicators is becoming more deplorable by the month. Rarely, if ever, is the Home Office represented at those hearings.

The third mischief is the Government's utter failure to enforce a removals policy. It cannot be right that the Government set themselves a target of 30,000 removals per year two years ago, that they abjectly failed to meet that target and then scrapped it altogether, and that they still have removed this year only about one in four failed asylum seekers. Nowhere in the Bill is that addressed, but it is one of the great scandals of the asylum system and it must be addressed. The Government have presided over an increase in asylum applications that is unprecedented in western Europe, reaching 110,000 in the last year for which figures are available. It is no wonder, with their inability to remove, that the Government had to grant amnesties just a few weeks ago, at the end of last year, to a further 50,000 failed asylum seekers. It brings shame on the system, a point echoed by all the NGOs, if it cannot work efficiently. That returns me to my basic premise: it is all very well for us to be here day after day, examining a Bill and thinking that legislating is going to cure problems, but in fact the problems are immense and untouched.

I shall give one little example, if I may. A dominant theme in the 2002 Act, which has come to absolutely nothing, was that the much vaunted accommodation centres were going to solve the whole problem. The Government said that they would set up accommodation centres and put the asylum seekers in them, but they never took advice on whether those should be in rural or urban areas, or be large or small. Indeed, they ignored the advice given and decided to put the accommodation centres in rural areas with 750 asylum seekers in each.

Beverley Hughes (Labour, Stretford and Urmston)

On a point of order, Mrs. Roe. I really do not want to stifle debate, but I think that hon. Members are anxious to do what they are here to do: to scrutinise this Bill. However, we have not only had a rehearsal of the issues raised on Second Reading but are now returning to issues raised by a previous Bill. Members are anxious to get down to the task of scrutinising and debating the substance of this Bill, rather than debating issues of principle under the programme motion.

Marion Roe (Conservative, Broxbourne)

Perhaps we can start to get back to the programme motion.

Humfrey Malins (Conservative, Woking)

I shall draw my remarks to a close, but I have the advantage, unlike the Minister, of being able to see the faces of Government Members, and I cannot see a huge anxiety to get to clause 1—although perhaps it is there.

My concluding remark on accommodation centres is that not one in the whole country is up and running. That just goes to prove that legislating is not the answer.

Again, we move with extreme haste. I venture to suggest that many Government amendments and new clauses will be tabled before the next fortnight is out. Because of the way in which this Government rush to legislate—five times now in the past eight years or so—it is important for us to register our protest. I shall ask my colleagues to vote against the programme motion.

David Heath (Liberal Democrat, Somerton and Frome)

I, too, welcome you to the Chair, Mrs. Roe, and I shall welcome your co-Chairman in due course. I have listened with great care to the comments, eloquent as always, of the hon. Member for Woking (Mr. Malins). Having listened to all his reasons for having difficulties with the Bill, I find that almost irreconcilable with the Conservatives' having voted for it on Second Reading. That point also occurred to me on Second Reading, especially when taken with the comments of the Leader of the Opposition in the Queen's Speech debate—but let us set that aside for a moment.

Before addressing the motion directly, I apologise for the absence of my hon. Friend the Member for Winchester (Mr. Oaten), who I hope will be doing a lot of work on the Bill, but who unfortunately cannot be with us today. Given the propensity of the Home Office and the Department for Constitutional Affairs to produce primary and secondary legislation, it is possible that I may be required elsewhere during some stages of our consideration of this important Bill, with which we have serious difficulties.

I will not be joining the hon. Member for Woking and his colleagues in voting against the motion, because the Liberal Democrats take a different view from the Conservative Opposition on such matters. We will vigorously oppose such motions when they curtail debate and make life difficult for the Committee, but it is a different matter when we are properly consulted and have the opportunity to make points about clauses that require substantial and careful scrutiny and about those on which we may be able to spend less time. When the Whip is the hon. Member for Nottingham, East—what I am about to say may occasion some blushes on his part—who has shown himself in previous Bills to be alive to the needs of Opposition parties to provide for proper scrutiny, I am prepared to accept an agreed programme. In this instance, there was prior consultation and we have what seems a reasonable arrangement for our discussions. Therefore, it is not for me to oppose the motion.

However, there are at least three points in the Bill on which we have significant differences with the Government. First, on clause 2, we accept that there is a mischief to be addressed, but we want to explore various ways of doing that and to examine carefully what the Government propose. Secondly, we have a serious difference with the Government on clause 7: we would not countenance the use of destitution as a tool against those seeking asylum or immigration, and in particular the destitution of children. We feel strongly on that issue and we will contest the proposal strongly in the Committee.

Thirdly, clause 10 is a serious point of contention. We have great differences with the Government's view about the removal of higher-level appeals. We have to consider the clause in conjunction with the other responsibilities of the Under-Secretary of State for Constitutional Affairs in respect of curtailing the provision of legal aid, which will seriously affect the support of good and well-qualified lawyers, as opposed to those who wish to exploit the system. That is not a matter for debate on this Bill, but hon. Members on both sides of the Committee will wish to keep it at the back of their mind, and we will seek to explore it in other ways.

For those reasons, and for many of the reasons outlined by the hon. Member for Woking, we are not persuaded that the Bill addresses some of the key issues in our asylum and immigration policy. Whether or not he was speaking appropriately to the motion, he was right to say that many of the changes needed are administrative. What we have, I fear, is a series of measures that seem to be predicated more on the needs of the leader writers of the Daily Mail than on an attempt to improve the efficiency, effectiveness and—an often forgotten word in this area—justice of the system. To paraphrase a famous parliamentarian, the Home Office likes to jaw, jaw then law, law. It would be better to look at the matter the other way round and consider how the operation of the system could be more effective and thus deal with many of the problems that arise as a result of its inefficiency. I shall not oppose the motion in a Division, but I am anxious to move on to the meat of the discussion, particularly the three key areas that we have identified which will require our closest scrutiny.

Edward Garnier (Conservative, Harborough)

I join my hon. Friend the Member for Woking, the hon. Member for Somerton and Frome (Mr. Heath) and the Minister in welcoming you to the Chair, Mrs. Roe. It is a pleasure, as always, to see you there.

Perhaps the interesting thing that I have learned from our discussions so far is that while I accept the analysis of the Bill made by the hon. Member for Somerton and Frome I cannot reach the same conclusions about whether it was right to support the Bill on Second Reading and whether it is right to vote for the motion. I voted in favour on Second Reading because although the Bill is desperately deficient in a great many aspects—particularly those he outlined in clauses 2, 7 and 10—some aspects are worth

supporting. A general message needs to be got out to the potential asylum or immigrant population outside these shores that some policies in the Bill are worth having.

When I come to unpick the analysis that the hon. Gentleman accurately set out for us this morning, as did my hon. Friend the Member for Woking, I am led to a different conclusion from the one to which he came. It would be improper, and indeed a breach of principle, to vote in favour of the motion. I can say that with some freedom, as I was not a member of the Programming Sub-Committee. Even if I had been, I do not imagine that my voice would have had any influence on the Government's majority on that Committee, any more than my voice today will have any influence on the Government's majority in this one.

My voice will not have any influence on Report or Third Reading either, but it is my duty as a member of the Opposition and as a representative of my constituents to say what I believe. I believe that the aspects of this Bill that are most revolting and objectionable come starkly up against the very principles that we as a civilised nation should stand up for. The people who come to this country to seek asylum do not do so to see the judicial process stripped out of a proper asylum system. They do not come here to see themselves judged by civil servants, without a proper right of appeal to a proper judicial system.

It becomes all the more absurd when those who are escaping tyranny and seeking a safe haven are faced with a Government who, whatever their motives, have produced a mechanism that is wholly antipathetic to their ostensible policy. For those reasons, if for no other, I simply cannot bring myself to support the motion, however efficient or mechanistically comfortable it may be for the Government and their business managers. Although I agree with the analysis of the hon. Member for Somerton and Frome, I fear that he has reached the wrong conclusion, at least in respect of the motion. I will happily join my hon. Friend the Member for Woking in voting against it.

Annabelle Ewing (Scottish National Party, Perth)

I, too, welcome you to the Chair, Mrs. Roe. I am pleased to have been selected to serve on this Committee on this important Bill. I have tried to take an interest in asylum issues since my election to the House. Like the hon. Member for Somerton and Frome, I may have to be absent from time to time because of other duties: we are a group of only five Members, and I have many other portfolios to cover—but I will try to attend the Committee assiduously.

I am also somewhat surprised about the make-up of the Committee on the Labour Benches, but I am pleased to see that the hon. Member for Walthamstow is present, because his commitment to the respect of the human rights of all individuals is well known. I have similar concerns to those that have been expressed about specific clauses, and in particular clause 7, which is demeaning, and clause 10, on the constraints on the right of appeal. I look forward to the debates on those clauses.

Finally, regarding the motion, I would like to get on with the debate, so I do not intend to oppose it.

Bob Blizzard (Labour, Waveney)

I welcome you to the Chair, Mrs. Roe. I apologise for the effects of my cold.

I speak as a veteran of a former asylum Bill, which became the Immigration and Asylum Act 1999. It was much longer than this Bill, and it was preceded by a Special Standing Committee, on which we took a lot of evidence—which is still relevant to much of what we are discussing today. There has been a lot of scrutiny and debate about some of the principles underlying the Bill.

With the previous Bill, I noticed that there was a great difference between what Conservative Members said in Committee and what their spokespersons were saying out there to the general public. All I have heard since I became a Member of Parliament in 1997 is cries from the Opposition of, ''Get tough on asylum. Do this, do that, do everything you can to keep people out.'' Then, in Committee, when we introduce sensible proposals, they are all opposed and we get the kind of speech that we have just heard from the hon. and learned Member for Harborough, who was basically saying that he wanted to weaken the Bill and undermine it. I do not see how that adds up. I hope that on this Committee we do not see that marked difference between what is said in this Room and what is said outside it—probably for the Daily Mail.

Beverley Hughes (Labour, Stretford and Urmston)

I have heard the debate and, having taken up with the hon. Member for Woking his extended discussion on matters extraneous to the Bill, I do not intend to repeat my comments.

I welcome all hon. Members to the Committee, and I take the view that every member of the Committee wants to make an important contribution to improve the Bill, if possible. I want the Bill to work. I want the Government's policy to be implemented effectively, so I am more than happy to consider any sensible suggestions of merit, and I am sure that others will attend our deliberations in the same spirit.

As hon. Members have pointed out, this is the third phase of reform and transformation of the asylum system. I would like simply to remind colleagues that that is an important strand of Government policy, which, in the interests of our constituents and asylum seekers, I strongly feel that we cannot duck in any way. It is important to put that strand of policy in the context of wider Government policy. In a way, that is what divides us from the Conservative party: we want to increase migration. We are in favour of legal migration, but we must have a rational system that supports that and does not allow abuse of the asylum system. We also want to encourage resettlement of refugees, but we cannot defend that policy unless our asylum system is above abuse.

Substantial progress has been made. I make that point because it is important to base our discussions on fact. The hon. Member for Woking said that he did not think that anything in the Bill was relevant to some of the necessary continued improvements in the system. That is wrong, and we will see what his position is on

those clauses that, for example, have direct relevance to our ability to remove people. Shortly, we will get to clause 2, which requires that people do not destroy documents, without which we cannot return them very easily.

Humfrey Malins (Conservative, Woking)

It does not say that.

Beverley Hughes (Labour, Stretford and Urmston)

When we get to that clause, I will explain to the hon. Gentleman, if he does not understand, why asylum seekers providing documentation when they present themselves is crucial to the end of the asylum process and returning them if their claims fail. When—

It being half an hour after the commencement of proceedings on the motion, The Chairman put the Question, pursuant to Sessional Order C(9) of 6 November 2003 relating to Programming Sub-Committees.

The Committee divided: Ayes 11, Noes 3.

Marion Roe (Conservative, Broxbourne)

I remind the Committee that there is a money resolution and a Ways and Means resolution in connection with the Bill. Copies of them are available in the Room. I also remind Members that adequate notice of amendments should generally be given. My fellow Chairman and I do not intend to call starred amendments, including any that may be reached during an afternoon sitting of the Committee.Clause 1 Assisting unlawful immigration

Clause 1 - Assisting unlawful immigration

Beverley Hughes (Labour, Stretford and Urmston)

The clause is a technical amendment designed to include Norway and Iceland as Schengen signatories, and any new Schengen signatories in the future, under the provision in section 25 of the Immigration Act 1971. Section 25 creates an offence of facilitating the commission of a breach of immigration law. Immigration law means a law that has effect in a member state and that controls entitlement to enter, transit or be in the state.

David Heath (Liberal Democrat, Somerton and Frome)

Will the Minister confirm that the clause is needed solely because of an omission or oversight in the Nationality, Immigration and Asylum Act 2002?

Beverley Hughes (Labour, Stretford and Urmston)

Yes, it corrects an omission so that countries can be included that cannot formally be designated as member states but that none the less are Schengen signatories.

The clause allows the Secretary of State to make an order prescribing additional states that are to be regarded as member states for the purposes of the section, if he considers it necessary for the purpose of complying with the United Kingdom's European Union obligations. The nationals of these states are also to be deemed to be citizens of the EU for the purposes of section 25 of the 1971 Act. This is necessary to comply with the EU Council directive and the EU Council framework decision relating to these matters. The directive and associated framework decision require member states to create the offence of assisting a person who is not a national of a member state to enter or reside in a member state contrary to the laws of that state. The offence must apply in relation to Norway and Iceland as well as to the member states of the Union.

Subsection (2) makes a minor amendment to section 25C of the 1971 Act to make it clear that the references to ''member State'' and ''immigration law'' in subsection (9)(a) have the same meaning as in section 25.

David Heath (Liberal Democrat, Somerton and Frome)

I am grateful for the Minister's explanation and her confirmation that this should have been in the 2002 Act and that its omission was an oversight. I am not absolutely clear about the necessity for subsection (2), given that section 25(2) and (7) are there. Why has that wording any significance? Can she enlighten me? It seems entirely otiose, as the wording already says

''within the meaning of section 25''.

Both definitions are contained within section 25, so why is the legislation changed in that respect?

Beverley Hughes (Labour, Stretford and Urmston)

I can only say to the hon. Gentleman that our legal advice is that, to ensure that we get it right on this occasion, we need to make it clear that those two definitional phrases, ''member state'' and ''immigration law'', have the same meaning as in section 25. If it is helpful, I shall write to him with a detailed explanation.

Question put and agreed to.

Clause 1 ordered to stand part of the Bill.

Clause 2 - Entering United Kingdom without passport

David Heath (Liberal Democrat, Somerton and Frome)

I beg to move amendment No. 49, in

clause 2, page 2, line 2, leave out 'A person' and insert 'An adult'.

Marion Roe (Conservative, Broxbourne)

With this it will be convenient to discuss amendment No. 63A, in

clause 2, page 3, line 15, at end add—

'(12) No prosecution shall be brought against a child in respect of the offences contained in this section.'.

David Heath (Liberal Democrat, Somerton and Frome)

I hope that this is a simple starter for 10 for the Committee. I believe that my amendment is entirely in tune with what I hope is the Minister's intention with the Bill; I cannot believe that she anticipates that the offences created under clause 2 would be applicable to a child entering the country unaccompanied. There is, of course, provision for a child who is dependent on another person entering the country but it would be entirely inappropriate for a child entering the country unaccompanied, who had been told by a carrier to destroy their passport, to be subject to the criminal law.

Amendment No. 49 would establish that, in this instance, the term ''person'' refers to an adult. The terms ''adult'' and ''child'' are well construed in immigration law, so I do no think that there is a need for subsequent definitions of those terms. I seek from the Minister reassurance that it would not be appropriate to use the clause against a child, who may have been pressured or may have misunderstood what to do. A child could certainly not be held responsible for maintaining the accuracy of their immigration documents. An adult could, quite properly, be held responsible for destroying their passport or other travel documents. We accept that principle.

Can the Minister reassure me of her intention? I hope that she will accept my amendment. If not, could she explain why there is an understanding that ''person'' in this instance means an adult, rather than an adult or child, which would be that phrase's normal construction?

Edward Garnier (Conservative, Harborough)

I wonder whether the hon. Gentleman has looked at subsection (4). Can he construe that subsection in the context of his arguments? It says:

''It is a defence for a person charged with an offence under subsection (2) in respect of a child to prove''

and so on. I accept that the language is somewhat difficult and complicated, but might not that provide some sort of let-out for an unaccompanied child? Perhaps the language should be sorted out. I fully accept the difficulties for unaccompanied children that the hon. Gentleman is describing. They are proper concerns. However, I wonder whether I have been obtuse in failing to understand the clause, or doubly obtuse in failing to understand whether he has taken into account subsection (4). Perhaps he could help us before he finishes speaking.

David Heath (Liberal Democrat, Somerton and Frome)

The hon. and learned Gentleman is never obtuse, but I think that he is wrong in interpreting subsection (4) in that way. It refers to subsection (2), which relates to the instance of a person who arrives and is travelling with a dependent child. Therefore, that would not apply to an unaccompanied child without another dependent child in tow. There is a problem, but I am hopeful that the Minister can solve the riddle without our having to take a great deal of time over it. I feel strongly that a child should not be put in peril of the offence. From the hon. and learned Gentleman's intervention, I suspect that he agrees with that point.

Beverley Hughes (Labour, Stretford and Urmston)

I hope that I can satisfy the hon. Gentleman with regard to what I think is the spirit of his intentions but, for reasons that I shall outline, I cannot accept the amendment. First, it would mean that, unlike in the rest of criminal law, this offence could be committed only by an adult—a term, in addition, that is not defined. There is a different approach in the rest of the law, under which we do not make that distinction. There is an age of criminal liability, and a judgment is made on the basis of the circumstances of the case as to whether a prosecution should be brought. The amendment would mean an entirely different approach from that which we adopt in relation to children in other parts of the law.

Jon Owen Jones (Labour/Co-operative, Cardiff Central)

Is it the Minister's opinion that the amendment would mean that traffickers would tell 17-year-olds that they could destroy their documents with complete impunity?

Beverley Hughes (Labour, Stretford and Urmston)

My hon. Friend anticipates my second point. The first point was the difference that the amendment would create from the rest of the law. The second point is that there is obviously considerable variability in the circumstances in which unaccompanied asylum-seeking children enter this country. There is a great deal of difference, as my hon. Friend points out, between a 17-year-old turning up in the country and deliberately destroying his passport, knowing the impact and effect of that, and a situation involving a younger child.

Jon Owen Jones (Labour/Co-operative, Cardiff Central)

To continue the point, is it not true that, if the amendment were accepted, not only a 17-year-old but someone saying that they were 17 would be able to get away with that?

Beverley Hughes (Labour, Stretford and Urmston)

My hon. Friend races ahead of me again, because that is my third point. On the second point, we clearly need the ability to consider whether a prosecution would be right for a 17-year-old who deliberately destroyed his passport so that he could evade proper immigration control and, at the end of the process, removal. It would not be acceptable if we could not take action against an individual in those circumstances.

The third point is that such an inability to act would provide a huge incentive for the phenomenon that we already experience of adults coming into the country claiming to be under 18. We have enormous difficulty, particularly with people who are on the cusp of that age, in establishing whether they have reached the age of majority. To be unable to prosecute in the relevant circumstances would send an entirely wrong signal.

David Heath (Liberal Democrat, Somerton and Frome)

The Minister has introduced to a raft of material, to which I shall respond in due course. I want to refer to her first comment on what I have suggested, which was that it would introduce a new anomaly. However, that is in the clause now. Already, children accompanied by an adult are not criminally responsible and would not be charged with the offence set out in clause 2. The distinction is in the Bill, but the Minister would withdraw it in the absence of a suitable adult who could be indicted in the relevant circumstances.

Beverley Hughes (Labour, Stretford and Urmston)

There is a well accepted principle that, if an adult and child are together and an offence is committed, in most circumstances, the adult would be subject to the law. However, we believe that the framework of the law should include the potential to prosecute an older young person who enters the country alone and deliberately destroys their documents.

Humfrey Malins (Conservative, Woking)

I accept that latter proposition about the destruction of documents. However, there is a big difference between destroying documents and not having any. As far as I can see, both are offences under the clause. Every year, there are in the world 50 million births that are not registered—that is 30 per cent. of all births. An awful lot of children do not have birth certificates, which means that they cannot obtain any documents. Children need to be considered very carefully. The difference between tearing documents up and not having any comes into play in that context.

Beverley Hughes (Labour, Stretford and Urmston)

I certainly agree with that point. It is a fundamental point in the clause generally in relation to adults as well. However, it is not the point that we are debating on the amendment. We are debating whether children should be removed completely from the effects of the clause.

Having explained why we do not want to accept the amendment, I want to assure the hon. Member for Somerton and Frome that I accept that some individuals, particularly younger children, will be more likely to follow the instructions of facilitators. Because of their vulnerability, they should not, when they act in that way, be caught by the clause. It is not our intention that vulnerable people and, in particular, younger children should be convicted of the offence in question.

Annabelle Ewing (Scottish National Party, Perth)

The Minister referred to older young people. Presumably, that leaves another category of younger young people. Will she define the ages of majority and of criminal responsibility being used in this context? Of course, as a Scots MP, I know that different ages apply north and south of the border but in relation to the age of majority I wonder what is meant by older young people.

Beverley Hughes (Labour, Stretford and Urmston)

We clearly cannot define rigid age thresholds. I was going on to say that the prosecution would need to take into account the circumstances of the case—the alleged age and what is established to be the child's age—in determining whether to bring a prosecution. Guidelines will be needed and they will be defined with reference to the police, the immigration service and the Crown Prosecution Service. They will attend carefully to issues relating to the prosecution of children.

The Committee cannot, even in the Bill, establish in any a priori way the age thresholds. That must be done in relation to the circumstances of the case. I gave the example of a 17-year-old who, it was felt, had knowingly and deliberately disposed of or destroyed their documents. We need the option to consider a prosecution in those circumstances. On other cases,

when the factors are different, the authorities will have to judge whether a prosecution is both relevant and appropriate in the circumstances.

I hope that the hon. Member for Somerton and Frome accepts my assurance about our intention concerning children and that it is right to have the facility in certain circumstances to consider a prosecution for people aged under 18. With that assurance, I hope that he will withdraw his amendment.

Edward Garnier (Conservative, Harborough)

Again, I do not want to detain the Committee longer than is strictly necessary. This intervention demonstrates the futility of some of my interventions.

I assure the hon. Member for Somerton and Frome that I fully accept his concern but, surprisingly—the Minister may be shocked to hear this—I broadly agree with what she said in her response. Throughout the criminal law, we tend not to make a distinction in the definition of the offence based on age. It is an offence to commit theft. It is an offence to burgle. It is an offence to commit murder. The age of criminal responsibility in England and Wales—it is different in Scotland—is determined. If a six-year-old in this country commits theft, the police and the Crown Prosecution Service will not prosecute because they are below the age of criminal consent. It would overburden the Bill to set out age ranges when they are already in our criminal justice system.

The Crown Prosecution Service, the immigration officer, the police or whoever is conducting the inquiry will make a judgment based on the apparent age of the child or young person. They may have to engage in an investigation to establish as best they can the age of the child—I agree that a great number of people who come to this country look 25 when they are only 16. The hon. and bearded Member for Brent, North (Mr. Gardiner) is an example of that. Many hirsute people from overseas are rather hairier than their English and British contemporaries. That is just a niggle that we must deal with and I am not sure that we need to overburden the legislation with the sort of detail that my temporary hon. Friend the Member for Somerton and Frome is asking for. I ask him to allow discretion on prosecution to those who are prosecuting and to the courts, rather than put too much detail in this part of the Bill. The time will come during our discussions when he and I will be inseparable in our opposition to some aspects of the Bill, but on this occasion I am inclined to agree with the Minister, who invited him to withdraw his amendment.

Humfrey Malins (Conservative, Woking)

I, too, say gently to the hon. Member for Somerton and Frome that I share the opinion of my hon. and learned Friend the Member for Harborough. I completely understand the hon. Gentleman's thinking on the matter but I, too, take the view that the prosecuting authorities should have discretion with some children, as there is in the existing criminal law, under which those who take such decisions approach the matter sensitively.

I leave the Minister with the thought that, as we shall discuss later, there is a big difference between the wilful destruction of documents, which is terrible, and travelling without documents, which is an offence in the Bill. We need to look at that more carefully. The discretion to which she referred is appropriate in respect of the Bill and I do not support the amendment, although I completely understand the way in which he has approached the matter.

David Heath (Liberal Democrat, Somerton and Frome)

This debate has been important and useful. I intended to find out from the Minister what her intentions were with regard to prosecution. I hoped that she might have said explicitly that the enforcement and prosecution guidelines would clearly state when it was appropriate to use this offence against someone who was under 18. I believe that hon. Members on both sides of the Committee agree that there are many circumstances in which such a use would be entirely inappropriate.

I share the concerns of the hon. Member for Woking about people who are fleeing from areas where it is impossible to obtain travel documents—the Democratic Republic of the Congo or Somalia come to mind—although that matter is outwith the precise terms of the amendment. We will return to it at a later stage in our consideration of the Bill.

There is an uneasy connection between clauses 2 and 4. We have already outlined one of our principal concerns—the ability to apply duress to a vulnerable person, be that a person who is under age or someone who is vulnerable in other ways. The result of that would be that the person who destroyed the documents—the victim of duress—became the offender. There are wider arguments about consideration of someone's true age. In such cases, the credibility of the applicant would be the better way of dealing with the matter. I understand that that is the way in which that difficult matter is dealt with under Canadian legislation—a country with a legal system that is not dissimilar to ours—without recourse to a provision such as this.

I understand the problems, and although some of the arguments that were advanced were not entirely cogent, I recognise that it is better not to make a distinction between an adult and a child in terms of offence—the point made by the hon. and learned Member for Harborough. If it is clear that guidance will be given in the prosecution guidelines—the Minister nods, so I invite her to intervene and to say so explicitly, because that would be helpful.

Beverley Hughes (Labour, Stretford and Urmston)

I did not intervene because I thought that I had said explicitly in my contribution that there would be guidelines for the police, the immigration service and the CPS, and that those guidelines would pay particular attention to the circumstances in which it was appropriate to consider an offence against a child. There will be prosecuting guidelines, as there always are.

David Heath (Liberal Democrat, Somerton and Frome)

The degree of explicitness related to the Minister's wish that they would take that into account and whether that would be written into the guidelines.

I am grateful to the Minister for giving me that assurance and I therefore beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Humfrey Malins (Conservative, Woking)

I beg to move amendment No. 3, in

clause 2, page 2, line 3, leave out 'in the United Kingdom' and insert

'at a United Kingdom airport'.

Marion Roe (Conservative, Broxbourne)

With this it will be convenient to discuss the following:

Amendment No. 50, in

clause 2, page 2, line 3, after 'arrival', insert 'at an airport'.

Amendment No. 53, in

clause 2, page 2, line 7, after 'arrival', insert 'at an airport'.

Humfrey Malins (Conservative, Woking)

This is an important clause, which makes it a criminal offence, punishable by up to two years' imprisonment on indictment, not to have and present to an immigration officer on arrival in the United Kingdom an immigration document that is in force. In general, my colleagues and I understand why the Government have introduced the clause. We believe the general message behind it to be a good and powerful one, and we are likely to support the Government on its general principles. However, in five different groups of amendments, I have sought to improve and to tighten the clause. Those groups involve the scope of the clause, the strict duty on the potential defendant, the document type, the defences, and the question of the punishments.

I said that we recognise only too well the mischief that the Government are trying to deal with. Like the Government and any right-thinking people, we think that boarding an aircraft having produced documentation and a passport—false or not—and then at some time between boarding the aircraft and reaching immigration control at an airport destroying the documents, cannot in any circumstances be excused and should be punished as a criminal offence. Of that there can be little doubt. Those who destroy documents should not have our sympathy.

The purpose of the amendment in limiting the clause's scope to airports will become apparent when the Committee realises that the destruction of documents, which is the principal mischief that we are seeking to redress, nearly always—no amendment is perfect— applies to those who travel by air rather than in other ways.

Gwyn Prosser (Labour, Dover)

Is the hon. Gentleman aware that in the port of Dover there is regular evidence—not just hearsay—of passports being torn up, destroyed and stuffed down the back of the transport that takes people from the ferries to the immigration service? Just before Second Reading, I was sent two such documents anonymously, which had been picked up by the bus driver. It is a real issue, but it is not limited to airports. Perhaps he should reconsider.

Humfrey Malins (Conservative, Woking)

The hon. Gentleman makes a good point. I slightly pre-empted him by pointing to the imperfection of my amendment. It is important to add

that we are dealing not just with airports but possibly with ports such as Dover in some respects. He referred to the same situation on which I am focusing: people who destroy, hide or throw away existing documents. Why are the documents necessary? When one makes an application for asylum, it is important and helpful to the receiving country to have something that says, ''This is me, this is my passport, this is the country from which I have come, this is my nationality and this is my background,'' to avoid the terrible mischief that the Home Office faces much of the time with people who destroy documents and stay quiet, putting it in a difficult position.

Jon Owen Jones (Labour/Co-operative, Cardiff Central)

Surely everyone who gets on to a ferry legally does so by displaying documents, whether they are forged or otherwise? They should therefore have those documents when they come off the ferry.

Humfrey Malins (Conservative, Woking)

The hon. Gentleman points out the ferry position, which is true. I imagine that the type of documents required for a ferry are perhaps not scanned or looked at as carefully as those at airports. Nevertheless, there is a document requirement. Judging by the hon. Gentleman's interventions so far, I owe him an apology for my earlier observations about no contributions and the lack of interest from Government Members. As soon as I said it, I wished I had not but that happens to me quite a lot.

There is a difference between the people whom we want to deal with in terms of that mischief, and the other group of people who do not have documents. It is well known that some 80 per cent. of applicants for asylum both at port and in country do not have documents. For example, there is the group of people to whom I referred on Second Reading. The hon. Member for Dover will recall the incident all too well. In 2000, some 58 young Chinese people who were probably going to claim asylum in this country—who knows?—were found suffocated in the back of a van at Dover. Their background contrasts with somebody who, for example, boards an aeroplane and then destroys their document.

Those young people were probably fleeing persecution from a ghastly regime and never had documents. Far from going to an airport or boarding a ferry, they were smuggled across Asia to Europe, in the back of a van throughout, by the snakeheads or the triads—I think that $16,000 was the price in June 2000.

I seek in the amendment to distinguish sharply between the tearer-upper of documents at the airport, for whom I have no sympathy whatever and on whom I am trying to focus the clause, and those who have never had or could not obtain documents and who arrive by other methods—to be blunt, illegally. I do not want them all necessarily to be guilty of a criminal offence, which they would be as the clause is phrased. We have a duty in Committee to tease out the different levels of mischief and that is what I am trying to do.

Tom Harris (Labour, Glasgow Cathcart)

I entirely agree with the hon. Gentleman's comments that the amendment is not particularly appropriate to the clause. In his view, how can an officer interviewing an asylum seeker who has perhaps arrived 24 or 48 hours beforehand be certain that that person arrived by air, if they are no longer at the airport? His amendment does not take into account people who claim to have arrived by other means. As we all know, if people are not telling the truth about having papers, they may not be telling the truth about the point at which they arrived.

Humfrey Malins (Conservative, Woking)

Interviewing officers must make their judgment based on what they believe to be the credibility of the applicant at the time. That point applies not only to the interviewing officer and the person who makes the initial decision but to the adjudicator.

I do not pretend that those judgments are easy but I return to the central point, which I hope Government Members understand. The clause as drafted penalises, with up to two years in prison, someone who does not have the relevant documents when making an application for asylum. If the clause is not limited, it could penalise genuine refugees and expose them to the risk of prosecution. The clause does not necessarily reflect the true context of refugee flight, to which I referred earlier. Some of the strongest claims to asylum have been from individuals who have been forced to enter either on invalid documents or, more often, with no documentation whatever. In a way, the more the Government tighten the system with juxtaposed controls and so on—the right thing to do—the more people are driven into the hands of smugglers and Chinese gangs.

I hope that we will move in due course to clause stand part, because there are matters that I should like to raise then but will not raise in my remarks on the amendment. I want to discuss, for instance, article 31 of the refugee convention, which offers a protection for people who are undocumented, as well as other criminal offences that could be brought into play. I hope that there will be a stand part debate in which I can raise those matters.

I am concerned that the clause will punish not only those who are, in the minds of all right-thinking people, doing something nasty, evil and wrong by destroying their documents at the airport, on the plane or between the two—those who, as the hon. Member for Dover rightly says, are seeking to deceive the system by destroying, hiding or throwing away documents, perhaps at the port of entry. No decent person could have any sympathy with that. I am trying to distinguish between that and the policy approach, and the genuine, poverty-stricken refugee who flees in the back of a lorry from some godforsaken regime elsewhere, who has never had a document and could never get one—I referred to birth certificates—and who may find themselves subject to the offences listed later in the clause. Such a person is to be criminalised, whatever discretion the Minister may say is included in the clause. That could create a sad situation, which is the reason for the amendment.

David Heath (Liberal Democrat, Somerton and Frome)

Amendments Nos. 50 and 53 are almost identical to amendment No. 3. They were prepared and tabled at similar times, and seek the same objective. I do not disagree with anything that the hon. Member for Woking said. The Minister's intention is clearly to deal with mischief that we all accept needs to be dealt with. We need to deal with someone who has a passport and travel documents, boards a plane—they cannot do so without them, so there is no doubt that they have them—and then destroys those documents on the flight or at the airport, before their first interview with immigration officials, with the express intention of deceiving the immigration officer or creating a delay in the process. What the Minister has said suggests that the clause is designed principally to deal with someone who can be shown to have had travel documents at their point of embarkation but who does not have them at the point of disembarkation.

I must say straight away that my amendments, like those of the hon. Member for Woking, do not deal specifically with ships and boats arriving in the country, a circumstance to which some of the same provisions can be said to apply when we are talking about someone who is a legally documented passenger as opposed to a stowaway. That is an imperfection in our amendments. However, a serious question remains. The clause appears to apply to those who cannot be reasonably expected to have any documentation, who may never have had any documentation, or who, because of the terms of their flight from the part of the world they came from, would have nothing to substantiate their claim. It is almost impossible to board a plane without such documentation because of the way in which airports and embarkation are organised. Indeed, many of the problems are caused by the effectiveness of some existing measures. People who genuinely seek asylum often find it very difficult to get as far as a British port of disembarkation. Barriers at the other side of the English channel or at the airport prevent from them from doing so.

The hon. Member for Woking asked almost in parenthesis about article 31 of the refugee convention. Article 31 is crucial to our understanding of the clause and the amendments to it. We have the bizarre situation whereby someone can travel properly on a falsified passport or other document and board a plane. Provided that they do not destroy that false passport on the way, they are not committing an offence when they arrive in this country, and they are secure, as we know from previous court cases, from prosecution under the convention and can be dealt with properly. But if they had a genuine passport and put it in the bin on the way, they would be subject to prosecution. That seems a bizarre set of circumstances.

Edward Garnier (Conservative, Harborough)

Is the hon. Gentleman saying that to travel on a forged passport is not a criminal offence? If that is the case, I have wrongly sent people to prison.

David Heath (Liberal Democrat, Somerton and Frome)

That is not what I am saying. I am saying that a person who travels on such a document, provided they do not destroy it in the process, will be

properly considered for asylum in this country and that it will not be an impediment to their consideration, because the Government lost a case on exactly those grounds in the 1980s and as a result had to pay compensation to a considerable number of people. My concern is simply that we use the power in the way I believe the Government intend and not against those to whom it cannot be reasonably applied.

I have said ''at an airport'', as the hon. Member for Woking has. We accept that documents may be destroyed at ports. If the hon. Member for Isle of Wight (Mr. Turner) were here and had tabled his amendment in time, he would be extending the provision to tractors arriving in the Isle of Wight and rockets—so ET beware. If an extra-terrestrial happens to land in the Isle of Wight, he had better have his travel documents in proper order.

That amendment is not under consideration within this group, but there is a serious point that I ask the Minister to consider. She has given us to understand her intentions. She also gave evidence before the Select Committee on Home Affairs that reinforced that view. We now need to have that view clearly expressed in this Committee, so that we are clear about the Government's intentions. Although we may still have misgivings that we have a blunderbuss approach, which is intended to hit a fairly narrow target, we will be reassured if the Minister gives us a clear indication of how she anticipates the provision will be used.

Beverley Hughes (Labour, Stretford and Urmston)

Amendment No. 3, and some of the following amendments, rightly—I understand entirely why—attempt to clarify, as the hon. Members for Woking and for Somerton and Frome have said, the Government's policy intention. Our intention is to be able as a result of this clause to prosecute people who deliberately destroy or dispose of their documents between embarkation and claiming asylum in this country. It is absolutely not our intention to try to prosecute people where we believe that they never had documents in the first place or that they have not destroyed documents, whether false or not.

I do not accept that the clause is a blunderbuss. We have a difficulty. If we circumscribe the clause's formulation so tightly that it applies only to circumstances at airports where we can be very sure that someone started their journey with a document, we will exclude from the potential offence in the clause other groups of people who deliberately destroy or dispose of their documents. Hon. Members have mentioned sea travel and ferries, which is an obvious example. My hon. Friend the Member for Dover has considerable experience, as he outlined, of people destroying the documents with which they have boarded a ferry. Eurostar is another method of travel where people board with documents and then at the end of the journey say that they do not have them. There are circumstances in which we would want the opportunity to prosecute people who turn up at a screening unit and say that they have no documents.

On most occasions, there is no problem when people turn up in the country with no documents and we cannot establish that they ever had any: we shall not prosecute in such circumstances. However, we have

been working for some time on intelligence that tells us that there are certain groups of people—sometimes groups that have already been granted refugee status in another EU country—who come into the UK with bona fide section 51 documents, turn up at Croydon to claim asylum and say that they have no documents. That is organised, sophisticated activity.

We are taking clear action against such groups of people, where we have the intelligence. We fingerprint them when they claim and try to match those fingerprints where other EU countries have fingerprint records, to enable us to return those people. Because some people will have been given refugee status before other EU countries started to fingerprint, we cannot, in many instances, make that match. That is one example of a category of people whom it would be right to prosecute under this offence. We must send a strong message, both to organised criminals and ordinary people, that they cannot abuse the system in that way.

Humfrey Malins (Conservative, Woking)

I am grateful for the Minister's last few observations, which make good sense. The policy that she outlines is right. Such conspiracies must go on—we do not dissent from that at all. However, it is difficult in practice to distinguish between those who behave so appallingly and those who tell the truth that they have never had any documents. I am not yet sure how we can surmount the difficulty of deciding whether to prosecute.

Beverley Hughes (Labour, Stretford and Urmston)

What I am trying to clarify is that we expect that the criminal offence will, in practice, be most commonly applied in ''on arrival'' cases, when people arrive by plane. We want that facility for other means of transport into the country. Our policy intention is to prosecute people who are deliberately getting rid of their documents. As I have explained, we have the intelligence and the suspicion that people have entered the country with documents but have destroyed them. We think that the offence ought to apply to such groups of people.

David Heath (Liberal Democrat, Somerton and Frome)

I am listening carefully to the right hon. Lady and I understand the points that she made. However, will she consider whether there is scope within the framing of the offence for a requirement of evidence, at least, that a person had travel documents at some a stage in their transit? Our greatest difficulty is that it is an absolute offence. There is no requirement for evidence to be adduced that a person ever had travel documents. All of us want to do something about those who deliberately destroy documents, but many of us feel that there needs to be some evidence, either that a person legally boarded a ferry or aeroplane, or presented documents at some stage to an immigration official, before it can be reasonably assumed that they destroyed them.

Beverley Hughes (Labour, Stretford and Urmston)

The difficulty is where hon. Members want to put the responsibility for establishing that evidence. I understand from the hon.

Gentleman that he would like the clause to be formulated in such a way that the authorities—the police, the immigration service, the Crown Prosecution Service—were required to have evidence that someone had a document at the start of the journey. That links to a point relating to other amendments, but I shall make it briefly now. The difficulty is that the evidence as to whether someone had a document is in the claimant's head. The authorities cannot easily establish it. That is precisely why parliamentary counsel—understanding completely our policy intention, which I have outlined clearly—formulated the clause in this way. It was done primarily because of that difficulty.

The clause provides for a defence, which is that the claimant has a reasonable excuse for being unable to present a document. Clearly, never having had a document would be a reasonable excuse. Placing the onus on the authorities here to establish the veracity of the detail of people's histories in countries far from this one would be unreasonable and make it very difficult to bring any kind of prosecution.

I hope that hon. Members are assured as to the policy intention and have understood that there are categories of people outside those who arrive by plane to whom we want the clause to apply.

Angela Watkinson (Conservative, Upminster)

The clause is intended to include people who arrive by sea. We heard evidence from the hon. Member for Dover that there are people who destroy documents on arrival, but there is also the very big problem of people arriving without documents, having stowed away in the backs of lorries. A big challenge in dealing with asylum and immigration is the huge volume of people to deal with. Would it not be better if that category of people were prevented from even embarking on to ferries by the more efficient checking of lorries for stowaways at Calais? I understand that only 12 per cent. of lorries are checked for stowaways. Checking 100 per cent. of lorries would be an obvious way to reduce the number of people who need to be dealt with when they arrive at Dover.

Beverley Hughes (Labour, Stretford and Urmston)

I agree that the prevention of illegal immigration is an important objective in its own right, quite apart from how we deter unfounded asylum claims. The Government have been actively pursuing that through the detection equipment that we have instituted in France and the move towards full juxtaposed controls, which will commence in February this year, now that the French have passed their legislation. That is unprecedented. It will mean that British police officers and immigration officers will in effect move our border to Calais and be able to inspect all passengers before they come on to British soil. That work is ongoing.

The hon. Lady's figures about the extent to which lorries have been surveyed are not correct. I understand that, through the work that P and O has done and the detection equipment that we have provided to the French authorities, the vast majority of lorries, through one or other of those systems, are screened. Those screening methods, whether they

involve CO2, heartbeat or the passive millimetre-wave machines, are not 100 per cent. effective, but certainly the majority of lorries are screened.

The hon. Lady's point is rather different from that made by the hon. Member for Woking. He made a point about whether the offence would catch people who might get through in the back of a lorry and say that they never had a document. He wants reassurance that the offence will not apply in those circumstances. I have been trying to assure him of a quite different point, which is that unless we are fairly sure that someone had a document and deliberately destroyed it we do not intend to pursue a prosecution under clause 2.

Edward Garnier (Conservative, Harborough)

It may be that I am making a third and very different point. However, am I right in thinking that there are United States immigration officials based in, for example, Heathrow and Gatwick, and that before people board flights to places such as New York those officials go through an immigration exercise in the United Kingdom? The advantage of that is of course that if they are dissatisfied about someone's travel status that person does not leave the United Kingdom. The problem is contained here, as far as the United States authorities are concerned, and there is no need to deal with those issues at the arrival airport, whether that be John F. Kennedy or Dulles. That point is perhaps similar to the one made by my hon. Friend the Member for Upminster, but surely there are plenty of practical approaches to the issue.

As to the absence of evidence, the Minister may have misunderstood what my hon. Friend the Member for Woking was saying. There must be plenty of occasions when the prosecution has to rely on circumstantial evidence to build an inferential case, albeit that there is no direct evidence of a crime being committed by a particular individual. There seems to be a perfectly respectable way through the problem that the Minister appears to be having trouble with.

Beverley Hughes (Labour, Stretford and Urmston)

On the first point, and to conclude this rather diversionary discussion about what we are doing about illegal immigration, the action that we are taking in France will achieve—and indeed has been achieving—the same thing. In advance of our obtaining full juxtaposed control and the legal power for our officers to operate in France, the French authorities have taken responsibility for all the relevant people detected in France.

This year, several thousand people have been detected in France, who would have entered the country in the back of lorries had we not instituted the detection regime and provided the equipment. Juxtaposed control will increase the potential for that. The French authorities have also accepted responsibility for anyone on their side of the channel who is prevented from entering the UK.

Humfrey Malins (Conservative, Woking)

If the controls on the French side become, in the Minister's words, watertight, will the controls at Dover, such as heartbeat and other machinery and checks, be removed entirely? If not, why will they still be necessary?

Beverley Hughes (Labour, Stretford and Urmston)

No, they will not be removed entirely. However, the hon. Gentleman is right to suggest that our intention is to put the emphasis and effort on the other side of the channel. I am grateful that the French have agreed to that, and have legislated accordingly. The reason, as the hon. Gentleman will know, is that we are an island and once someone reaches here and claims asylum we must deal with them. Our agreement with the French, by which we are effectively moving controls on to their soil, includes an agreement that they will deal with anyone who is detected or stopped as a result of the measures.

I do not, as was suggested, have difficulty with the clause. I am trying to explain why the clause is formulated as it is. Our declared and clear policy intention is that it should be directed at those who deliberately destroy or dispose of their documents. However, the nature of the activity and the fact that evidence about whether someone possessed a document in the first place is not easily available to authorities in this country, but is easily available to the claimant, have led us to formulate the clause to provide a general offence, with a defence for the claimant.

Now that I have made our intentions clear and given some assurances, I hope that hon. Members will not press their amendments. I hope that they can see that they would circumscribe the application of the offence so tightly as to exclude some important groups of people whom we should be able to prosecute because they are destroying documents, which all hon. Members who have spoken so far concede is unacceptable. It is important that we send deterrent signals to claimants themselves, but we should also try to break the power of the facilitators and the agents who instruct claimants to do that because it helps their business.

Indeed, it makes it very difficult for the authorities here to identify people, and that is partly why it is so difficult to remove people to their homeland if and when their claims fail. Quite understandably, other countries want assurances that the people we want to sent back to them are indeed their nationals. We would want that assurance, and it is difficult to remove people if we cannot give it. For all those reasons, I hope that the hon. Gentleman will withdraw the amendment.

Humfrey Malins (Conservative, Woking)

This was a probing amendment, and as a result we have had a most informed and informative debate. The hon. Member for Dover properly pointed out a deficiency in my amendment. It does not include ports, where the mischief of which we all complain can equally apply. I also found the Minister's comments on the conspiracy among certain gangs and groups to destroy documents after arrival and then to present without documents most helpful and persuasive. I now realise that the amendment in its present form is too narrow.

I am really grateful, a feeling that I am sure is shared by the whole Committee, for the Minister's acknowledgement that the principal mischief that she is trying to address is the one that we all know about:

destroying documents is a nasty and improper thing to do. She made helpful comments about the approach that she and those responsible for the administration of justice would take in the cases of those to whom I alluded who are fleeing for their lives and who do not have, and have never had, proper documentation. The debate will show to the outside world that there is, as is often the case, a great deal of common feeling across the Committee about this. The matter will probably come up again on Report or in the other place. It is a debate worth continuing. I thank the Minister for her response and I beg to ask leave to withdraw the amendment

Amendment, by leave, withdrawn.

Humfrey Malins (Conservative, Woking)

I beg to move amendment No. 2, in

clause 2, page 2, line 3, after 'him', insert

', or fails to produce to an immigration officer within three days,'.

Marion Roe (Conservative, Broxbourne)

With this it will be convenient to discuss the following amendments:

No. 6, in

clause 2, page 2, line 9, after 'him', insert

', or fails to produce to an immigration officer within three days,'.

No. 58, in

clause 2, page 2, line 38, leave out

'to an immigration officer on request'

and insert

'without reasonable excuse following a request from an immigration officer, within a reasonable period, which shall be no less than seven days from the date of that request.'.

No. 16, in

clause 2, page 2, line 39, at end insert 'or within three days'.

Humfrey Malins (Conservative, Woking)

This is a very brief amendment. We have already discussed much of the general principle, although I hope not too much, Mrs. Roe, or you would not allow a stand part debate. The amendment seeks to permit the production of the appropriate document to the immigration officer either, as the clause requires, at the first interview, or ''within three days''. I have in mind the following possibility, which I want to be sure is covered. A person from a perfectly safe country comes into this country entirely lawfully on a visit. If the situation in that person's country so changes for the worse during that visit, following pronouncements by some frightful dictator about the persecution that will follow against that individual or his type, a valid claim for asylum may arise while he is lawfully here. He may go to the appropriate Home Office outlet in Croydon, explain that he had come here on a flight, but that the position in such-and-such country is now so bleak that he wants to claim asylum.

As I understand it, if that person is not in a position to produce his or her documents on the spot, he or she commits an offence under the Bill. That situation will not arise very often, but the amendment would allow for a person who has left their documents at the home of a friend 100 miles away to be told, ''Bring them back in a couple of days and we'll see then.''

There is a slight parallel with motoring law. Many of us carry our driving licences on us—perhaps to boast of endorsements in the past—but many of us do not. When a policeman taps us on the shoulder and says, ''Could you just produce your driving licence?'' many of us do not have it with us. Of course, one is issued with a HORT1—the Home Office road traffic document—which requires one to produce one's licence within seven days. One then produces it within seven days, and that is the end of the story—no crime has been committed. This is a debate for another day, but I also wonder what will happen regarding the ability to produce identity cards on demand or within three days.

I tabled my narrow amendment because I want to be sure that the Bill will protect a person who is here lawfully with documents, but whose position at home changes. He may claim asylum, but forget to take the documents, although he could produce them two or three days later. That is perhaps a fanciful example, but it is not intended to be. Under the Bill as it stands, that person commits an offence.

Tom Harris (Labour, Glasgow Cathcart)

I will make a few brief comments in response to the hon. Gentleman. I would have framed my remarks in the form of an intervention, but as the idea went through my head I realised that it would have been out of order to make such a long intervention.

I have some sympathy with what the hon. Gentleman said, but also some concerns. First, I wonder whether including the proposed time scale in legislation, so that someone could claim asylum and then have three days in which to provide papers, would be an invitation to certain individuals to approach people on the black market for false documents. I do not know whether the Home Office has any intelligence to justify that concern, but the amendment gives rise to it.

Secondly, if an individual who approaches an officer to claim asylum but falls foul of the legislation as it stands can produce legitimate documents at a later date, it is surely for a court to decide whether that is a legitimate defence. I am not sure whether establishing such provisions in legislation is necessary, because it is not assumed by the Home Office or in the Bill that every person who is prosecuted in such circumstances will automatically be found guilty. After all, everyone has to go to court to plead their case, and they will be given the opportunity to mount a defence. Even if someone who has their documents falls foul of the procedure, they will be able to appeal to the discretion of the court, and their case will, I hope, be given a fair hearing.

I ask the hon. Member for Woking: if someone was in this country on holiday or business, circumstances changed in their country back home and they felt that they needed to apply for asylum, why would they do so without taking with them the documentation with which they arrived in the first place? If people are in this country, for whatever reason, they must be aware of the need to have brought their formal legal documentation with them.

I find it hard to believe that any individual, after seeing television pictures of their home country and realising that things have gone from bad to worse, would approach the asylum service to ask for asylum without realising that they should produce a passport or other travel documents to do so. I will be interested to hear what my right hon. Friend the Minister has to say. I just wanted to put on record my concerns about the amendments.

David Heath (Liberal Democrat, Somerton and Frome)

I will speak to amendment No. 58, which I tabled and which is similar to No. 2. It specifies a different time frame, but that is immaterial to the argument.

It was interesting to listen to the hon. Member for Glasgow, Cathcart (Mr. Harris), as he expressed some sensible views. However, there is a difficulty. In the previous debate, the Minister explained how she anticipated that the provisions would operate well beyond ports of entry to deal with other areas where there is evidence or anticipation of malpractice. In subsection (6) there is an instantaneous presumption of guilt, and because of how the whole clause is formulated, at the point at which a person does not produce the document, they are effectively guilty of not having a document. Subsection (8) allows for a power of summary arrest at that point without warrant. Therefore, if somebody cannot produce a document, they are presumed to have committed an offence and are subject to immediate arrest.

That process opens up an unintended scenario of problems. It is reminiscent of the old sus laws in terms of how it might apply to those who are in this country without having yet gone through the asylum and immigration system. We must be extremely careful. I understand the practical difficulties that the hon. Member for Glasgow, Cathcart has outlined, which is why more careful thought may be needed as to how we deal with the problem in light of the practical difficulties that he correctly identified.

Humfrey Malins (Conservative, Woking)

The hon. Gentleman is making a good point. He alluded to the fact that such a person would be liable to immediate arrest and would be taken into custody. He might agree that the position is even more draconian, because it is not just a properly trained police constable who can make the arrest and take the person into custody, but an immigration officer as well. That is something of a departure.

David Heath (Liberal Democrat, Somerton and Frome)

The hon. Gentleman tempts me into debating a later group of amendments, but I will resist that temptation. He is right, and we will return to that subject in a moment.

Bob Blizzard (Labour, Waveney)

Looking at subsections (6) and (8), I see no mention of guilt. Subsection (6) is a definition of what it means not to produce an immigration document, and subsection (8) talks simply about arrest, which is not guilt.

I draw the attention of the hon. Member for Somerton and Frome to subsection (3)(b), which refers to ''a reasonable excuse''. I put it to him that the circumstances outlined by the hon. Member for Woking would constitute a reasonable excuse. Given

those circumstances, what would happen to a person—if they were not arrested—during the three days? Would such a person be free to go, and to disappear? The person would surely have to be detained, given that they would have three days to produce the documents. What is the difference between that and an arrest?

David Heath (Liberal Democrat, Somerton and Frome)

First, the presumption of guilt is made by the arresting person and not the court. Unless the arresting officer presumes guilt, an arrest should not be made. That is the premise on which a person is arrested and brought for indictment.

Secondly, the hon. Gentleman is right to say that there is a defence of reasonable excuse, but that would be a difficult defence for a person in those circumstances to make. I accept his premise that the courts will determine whether the fact that travel documents were in the possession of, perhaps, another family member who cannot be contacted at short notice constitutes a reasonable excuse. Under the circumstances, it would not be easy for a person to prove that they have put their passport into Auntie Flo's handbag and that she has disappeared to the far end of the country. Given the adverse presumption that is inherent in the clause, how on earth could that be established to the satisfaction of a court?

The amendments simply suggest allowing an amount of time to produce the documents. After that, the process of arrest and of bringing someone to trial for an offence would resume. The practical difficulty—and it is a genuine one—concerns the two scenarios described by the hon. Member for Glasgow, Cathcart: a person in that intervening time will either find a way of producing false documents or abscond and be untraceable. I accept that that is the problem, and I want the Bill to strike the proper balance between the human rights of individuals and the need for the system to be effective and to counter possible abuses. I am simply suggesting that we might not have that quite right.

Neither amendment—No. 2 or No. 58—necessarily offers an answer; we may need to find another path. The issue needs to be examined carefully and the Minister needs to engage with it. The hon. Member for Waveney (Mr. Blizzard) has a touching faith in the system and those who run it, which I do not always share. Many officers are doing an extremely good job, but on occasion there are abuses on the official side by those who are not doing their job as well as they might. I do not want to allow scope for that as a result of badly drafted legislation. I want the legislation to be as well worded as possible.

Edward Garnier (Conservative, Harborough)

I am grateful to my hon. Friend the Member for Woking for moving the amendment in the way that he did. This short debate provides us with an opportunity to point out the potential for injustice—I say no more than potential—caused by the perhaps necessarily tight drafting of the clause. I fully accept the points made by the hon. Members for Glasgow, Cathcart and for Waveney, but they do not undermine

my point that there is a potential for injustice, as my hon. Friend the Member for Woking and the hon. Member for Somerton and Frome suggested.

The problem could arise from the wording of subsection (1), which states:

''A person commits an offence if when he is first interviewed by an immigration officer after arrival in the United Kingdom''.

I suppose that it depends on how one defines an interview. Is arrival at the airport passport desk deemed to be an interview, or is the interview something rather more formal? Is it done under caution, or is it simply a conversation between a man in a suit on one side of a desk or screen and the traveller on the other side? Using the adjective ''first'' in front of the verb or participle ''interviewed'' needs careful thought, especially when considered in the context of the phrase

''after arrival in the United Kingdom''.

As my hon. Friend the Member for Woking pointed out, many people who arrive in this country go through the green box and are not interviewed because they come from friendly countries with a democratic system of government. Such people do not need to be interviewed, in any sense, by the immigration official at the port of entry. However, circumstances may change—and the relationship that the traveller has with his own country, and therefore with this country, may change with them.

David Heath (Liberal Democrat, Somerton and Frome)

The hon. and learned Gentleman and I share a concern over the definition of ''first interview''. Indeed, he may care to cast his eye over amendment No. 60, which deals specifically with whether the first interview is conducted under proper regulation.

Edward Garnier (Conservative, Harborough)

I am grateful to the hon. Gentleman for pointing that out.

I do not want to be accused of being excessively pedantic, but I want to frame my earlier remarks in this context. I accept that a defence is provided under subsection (3). For instance, a person charged with an offence under subsection (1) has a defence under paragraph (b) if he can show

''that he has a reasonable excuse for not being in possession of a document of the kind specified in subsection (1).''

I do not want such people to have to advance a defence. I want the system to work much earlier than in court proceedings, and a defence cannot be operable until the person has been charged and brought to court. I want the immigration officer to be persuaded, one way or the other, without the need for proceedings. A defence is a defence to a charge, not a refutation of a reasonable suspicion; and it is the immigration officer's ''reasonable suspicion'' that will lead to arrest and detention under clause 8. Draconian powers are available at an early stage on the basis of reasonable suspicion, but the reasonable excuse may not bite upon the mind of a reasonably suspicious immigration officer and may not prevent uncalled for or unforeseen detention.

Tom Harris (Labour, Glasgow Cathcart)

Does the hon. and learned Gentleman agree that if the interviewing officer were to be given discretion on whether to charge someone—the Bill does not do so as it stands—it would give asylum seekers one more reason to dispose of their documents? They might prefer to take the chance of being able to persuade the interviewing officer that they had a reasonable excuse for not having documents. In other words, the provision would not provide the intended disincentive if people thought that they had the opportunity of persuading the interviewing officer to use his discretion.

Edward Garnier (Conservative, Harborough)

I do not dissent from that. Indeed, I accept the policy behind the clause, which is to prevent people from cheating the system by dishonestly destroying their travel documents. That is an acceptable end for the Government to want to achieve. However, I am concerned about a potential for injustice that is curable. The point of Committee discussions is to alert ourselves and the Government to niggles that ought to be ironed out before the Bill is enacted. I hope that the hon. Gentleman will agree that our present discussion is part of that process. We want to be able to leave this building once the Bill has received Royal Assent knowing that we have done something useful.

I should like to highlight further points where potential injustice lies. The maximum penalty of two years under subsection (7)(a) is not for indictment for illegal immigration, but for not being in possession of a document, which is quite a draconian penalty.

Beverley Hughes rose—

Edward Garnier (Conservative, Harborough)

I am about to be corrected.

Beverley Hughes (Labour, Stretford and Urmston)

The focus of the whole clause is on those who are not in possession of a document without a reasonable excuse. As I have made clear, the intention is for the offence to bite on people who deliberately destroy and dispose of such documents, not on those who simply do not have them.

Edward Garnier (Conservative, Harborough)

Again, I accept what the Minister's policy is, and I can see that it has merit, but I am concerned that people could arrive in this country, for good or ill, and in theory be sent to prison for two years for not possessing a document. That needs to be thought about before we pass it into law. There may be good reasons for sending people to prison for illegally entering this country, but we should be careful before we pass into law a provision that says that because a person does not have a document when an immigration officer first interviews them, they can be sent to prison for two years.

Some people might think, ''Well, that's a jolly good thing. Anyone without a relevant document in front of an immigration officer should get five years.'' I happen to disagree, but in any case, if we are to go down that path, for goodness' sake let us be clear in our language, so that there is not an injustice. My hon. Friend the Member for Woking was quite candid: to paraphrase him, he accepted that there will be very few cases in which his concerns ought to be considered with care.

However, it does not matter whether there is one case or a thousand. If we legislate and create a potential injustice, we should do so deliberately, because we have thought about it and are prepared to be unjust—either that or we should legislate in another way.

My plea to the Government is to look carefully at what they are doing in the clause before they nail themselves to that cross. If they can justify the proposals in their own mind and demonstrate that they are fair and meet their policy goals, that is okay—they should go ahead and introduce them. However, they should do so not by mistake but on purpose, and be clear about what they are doing. They should understand that people could go to prison for two years for not having a document, which in certain circumstances would be unfair. The potential for injustice is there and I simply point it out. I accept the Government's policy behind the clause and I thank my hon. Friend the Member for Woking for providing me with this opportunity to set out my concerns.

Beverley Hughes (Labour, Stretford and Urmston)

As hon. Members have made clear, the amendments would limit the circumstances under which the offence would apply. A person could avoid committing the offence if they produced an immigration document immediately or within either three days of an immigration officer making the request, as suggested by the hon. Member for Woking, or seven days, according to the hon. Member for Somerton and Frome. I entirely understand and concur with the wish for the law not to penalise those who are not seeking to frustrate immigration controls. However, I hope that I can assure hon. Members that the amendments that they seek for assurance on that point are not necessary and, for reasons that my hon. Friend the Member for Glasgow, Cathcart identified, would not be appropriate.

In other debates hon. Members have acknowledged, and I have agreed, that the majority of cases to which the clause is likely to apply are those in which a person comes in at a port. People arriving by plane, sea or Eurostar would need an immigration document to begin their journey, so they should have it with them to present themselves to UK immigration control.

I am sure that hon. Members will accept that in those cases, the introduction of a three or seven-day period of grace is simply not appropriate. Everybody has to present their documents at immigration control. We are talking about the unlikely event—I am grateful that the hon. Member for Woking acknowledged that it is unlikely—of a case in which a person might have a reason for not having an immigration document either on arrival at an airport or, more likely, in country.

By providing the defence of ''reasonable excuse'', the clause allows for those unlikely cases in which someone at an airport might be able to argue that they had bribed someone to get them on to the plane—I am not sure: there is a possibility. However, in the example outlined by the hon. Member for Woking, who sought certain assurances, we are probably talking about people who turn up in country and do not have the

document with them at that time. He hypothesised that such a person might have, or would say that they had, the document elsewhere and could obtain it. In such circumstances, because of the requirements on the immigration service in subsections (6) and (8), immigration officials would, if they accepted such an explanation, say to them that they could produce their document on another occasion—obviously, in a day or two.

Subsection (6) does not assume guilt. It states:

''A person shall be presumed for the purposes of this section not to have a document with him if he fails to produce it''

That is self-evident: the person does not have a document. Subsection (8) states that if the constable or official

''reasonably suspects that a person has committed an offence . . . he may arrest the person''.

If the official is given an explanation why the person does not have a passport—for example, ''It is 100 miles away; I can get it to you in two days,'' it is questionable whether the official can reasonably suspect that an offence has been committed. In those circumstances, we would expect that if the immigration officer believed that person—there would be an issue of credibility—they would have the power not to arrest that person, and to allow them leeway and more time to produce the document. We have to allow officials the discretion to make such reasonable judgments on the basis of whether the facts given by a person add up to a coherent explanation, which it would be reasonable for the officer to believe, and thus allow the person more time to present the document.

For those reasons, I ask both hon. Gentlemen not to press their amendments. The clause as drafted, with the assurances that I have given, should enable hon. Members to feel that in those circumstances in which it is clear that someone is not trying to frustrate or deceive immigration control, and has given a reasonable explanation that the officer finds credible, an arrest is not required. In such circumstances, the officer has the opportunity to allow a document to be produced, and I expect that that would happen.

Humfrey Malins (Conservative, Woking)

This has again been a useful debate, but towards the end of her remarks, the Minister seems to have been mildly confused about the two uses of the word ''reasonable''. I return to my example of the person who flies in and arrives lawfully with a passport, but the situation in the home country changes dramatically—I accept that the hon. Members for Glasgow, Cathcart and for Waveney made valid points on this—and on reading about it, the person, who has left his document at home with his auntie 100 miles away, makes an application for asylum. The problem about the use of the word ''reasonable'' is that the Minister started to say, in effect, that if in the official's mind the person concerned had a reasonable excuse, they would not be arrested. We need to be careful about that, because the question of a reasonable excuse does not come into play until the court hearing is under way and the case is before the district judge or a jury, not before an immigration officer.

What comes up before the immigration officer is a reasonable suspicion that the person has committed an offence. That is where the word ''reasonable'' comes in; of course, it is not only a reasonable suspicion that a person has committed the offence but a blinding certainty if they turn up without a document. It would be an interesting immigration officer who did not have a reasonable suspicion that a person did not have a document with them if indeed they did not have it with them. It would be rather strange not to have a reasonable suspicion in those circumstances.

Bob Blizzard (Labour, Waveney)

The hon. Gentleman is assuming automatic prosecution. Is he right to do so?

Humfrey Malins (Conservative, Woking)

I understand the hon. Gentleman's point but we must be clear what the Bill states. There was the same problem in the Criminal Justice Bill last year about under-age teenagers kissing each other. It is no good the Government putting something in statute and then saying, ''We shall issue guidance to say never prosecute.'' That is not a satisfactory way to proceed. It would be better to make something clear in statute rather than relying on guidelines.

David Heath (Liberal Democrat, Somerton and Frome)

The hon. Gentleman makes exactly the right point. The problem with the clause is that the offence is not having the document; there is no reasonable excuse at that point. Under subsection (6) a person shall be ''presumed'' not to have a document if he does not present it at first interview; the immigration officer is allowed no discretion then. The only point at which the arresting officer can use his discretion is when he reasonably suspects that a person has committed the offence, which, as the hon. Gentleman says, he clearly has if he has not complied with the previous subsections.

Humfrey Malins (Conservative, Woking)

To put it another way, I would be amazed at the calibre of an immigration officer who did not have a reasonable suspicion that a person has committed an offence when they do not produce a document, as the Bill states that that is an offence.

Beverley Hughes (Labour, Stretford and Urmston)

Does the hon. Gentleman accept that in the wording of subsection (8), if the officer reasonably suspects that a person has committed an offence—that is, he does not have the document—he may proceed to arrest? If, as in the hon. Gentleman's example, the person then says, ''Ah, but I do have a document and I can produce it,'' there is a question whether the officer is reasonable in his suspicion. That is what I was trying to explain. The officer then has to make a judgment as to whether the claim to have a document that is producible is credible. It is credible if, in the circumstances that the hon. Gentleman outlined, the officer believes that a document can be produced. It clearly would not be in the public interest to proceed to arrest in those circumstances rather than to allow that document to be produced, because if the document can be produced, an offence has not been committed.

Humfrey Malins (Conservative, Woking)

It is true that it would be in the public interest for the officer not to make an arrest, but the officer does not have the opportunity to engage in beliefs about whether or not the document is in Solihull and can be produced tomorrow morning. The officer is concerned only with the offence. Later, the district judge will be concerned with the reasonable excuse. We shall discuss what is an interview in another debate. I will not steal the thunder of the hon. Member for Somerton and Frome, but if I were that person from Zimbabwe, when making my application for asylum and being asked for my document, I would be frightfully tempted to say, ''I haven't got it, it is back in Tunbridge Wells. I'm going to go home and get it.'' On being told, ''You can't do that. You have committed an offence,'' I should be further tempted to say, ''I withdraw my application for asylum,'' and make it next week. What will be done then?

Beverley Hughes rose—

It being twenty-five minutes past Eleven o'clock, The Chairman adjourned the Committee without Question put, pursuant to the Standing Order.

Adjourned till this day at half-past Two o'clock.

Standing Committee B

Clause 2 - Entering United Kingdom without passport

Marion Roe (Conservative, Broxbourne)

I remind the Committee that with this we are discussing the following amendments:

No. 6, in

clause 2, page 2, line 9, after 'him', insert

', or fails to produce to an immigration officer within three days,'.

No. 58, in

clause 2, page 2, line 38, leave out

'to an immigration officer on request'

and insert

'without reasonable excuse following a request from an immigration officer, within a reasonable period, which shall be no less than seven days from the date of that request.'.

No. 16, in

clause 2, page 2, line 39, at end insert 'or within three days'.

Humfrey Malins (Conservative, Woking)

I was about to give way to the Minister just before the lunch break, so I will do so now.

Beverley Hughes (Labour, Stretford and Urmston)

The hon. Gentleman said that, in the circumstances that he outlined, an immigration officer at a screening unit who was presented with somebody without a document would, in practice, invariably arrest that person on the reasonable suspicion that they had committed an offence by not having a document. Does he not accept that where a person claimed that they had entered the UK lawfully and had, therefore, used a passport, the official would check the facts, assess the story's credibility—including claims that the situation in that person's country had changed substantially—and make a judgment? Does he not accept that immigration officials make judgments about credibility all the time, at every stage of the process? If there were no reasonable suspicion that the person had no document, the reasonable thing—this is what I would expect—would be to allow that person to produce the document that they claimed to possess.

Humfrey Malins (Conservative, Woking)

The Minister is right to the extent that where an in-country applicant who claimed asylum was asked to produce a document and said, ''I've left it back at home, a hundred miles away, but I'll have it here by tomorrow,'' the immigration officer would inevitably have the good sense to say, ''Go and fetch it and bring it back tomorrow.'' However, I fear that the Bill is drafted in such a way that the immigration officer would undoubtedly have a reasonable suspicion that an offence had been committed; he would not be concerned with a reasonable excuse, and could—though, in practice, he surely never would—make the arrest and take the person into custody.

We have had a good debate about whether to allow someone to produce a document within three days. I remain of the view that no harm or mischief would be caused by agreeing to the amendment. As I said, there are reasons why in-country applicants, in particular, may not have the relevant documents when they are first interviewed by an immigration officer. They may simply have left them at home or in the safekeeping of a family member. They may, indeed, have left them with a court or even with the Home Office in connection with a family member. Such documents may also need to be obtained from abroad from time to time. To return to the parallel with the driving licence—it is perhaps not the best parallel—there is an argument for saying, ''If you don't have the document on you, produce it within a few days.'' That is what happens in the motoring world.

Having said that, I think that the Minister understands the thrust of our arguments. I am reassured by one or two of her comments, if not by the totality of what she has said. In those circumstances, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Humfrey Malins (Conservative, Woking)

I beg to move amendment No. 4, in

clause 2, page 2, line 4, after 'immigration', insert 'or other'.

Marion Roe (Conservative, Broxbourne)

With this it will be convenient to discuss the following amendments:

No. 5, in

clause 2, page 2, line 5, after 'is', insert 'or has been'.

No. 52, in

clause 2, page 2, line 6, leave out 'and' and insert ','.

No. 54, in

clause 2, page 2, line 9, leave out 'an immigration' and insert 'a'.

No. 7, in

clause 2, page 2, line 9, after 'immigration', insert 'or other'.

No. 8, in

clause 2, page 2, line 10, after 'is', insert 'or has been'.

No. 55, in

clause 2, page 2, line 11, leave out 'and' and insert ','.

No. 61, in

clause 2, page 3, line 10, leave out from 'time)' to end of line 15.

No. 62, in

clause 2, page 3, line 12, leave out paragraphs (a) and (b) and insert

'any document which contains sufficient information to identify that person or dependent child or their nationality or citizenship.'.

Humfrey Malins (Conservative, Woking)

I welcome my hon. Friend the Member for South Norfolk (Mr. Bacon) to the Committee.

Amendment No. 4 relates to the production of identification documents. It would permit the applicant at the first interview to produce another document that has been in force even if it is not currently in force. The purpose is straightforward. Why is it necessary for someone to produce a document when first interviewed by an immigration officer? The obvious answer is to establish who that person is. That is the mischief of which the Government complain in the explanatory notes on clause 2. By destruction of documents or something similar, too many people do not give immigration officers or other officials a clue as to who they are and where they are from.

Can that be cured? Yes. Can it be cured by the production of an immigration document, which according to the explanatory notes is effectively a passport or ''equivalent document'', whatever that may mean? Yes, that is one possible cure. Is it possible or sensible to amend the clause to give the person presenting himself the opportunity to present, if not a passport or other equivalent document, some other satisfactory means of identification? It would be all to the good if that was possible.

As I mentioned earlier, a huge proportion of births across the world go unregistered, meaning that the person has no birth certificate and it is difficult for them to get a passport. Huge numbers of people would not have a passport or equivalent document, such as travel permission from their country, but such people may have a document that can satisfactorily identify them. Some countries may, for example, have a military call-up document. We all carry documents that can establish who we are to a reasonably satisfactory degree. There is a variety of such documents in the UK.

If, on first interview, an asylum applicant was unable to produce a passport or relevant travel document, because they had never had or been given one, would it be satisfactory if they said, ''This is me, here is another document that adequately establishes who I am, and I am doing my best to co-operate with the authorities''? My amendment would allow them to do that.

The same general point emerges from amendment No. 5, which would allow someone to use an immigration document that either is or has been in force, by which I mean an expired document. It is a question of slightly widening the range of documents that are satisfactory on first interview.

David Heath (Liberal Democrat, Somerton and Frome)

I have tabled a series of amendments in the group, and they fall into two distinct sets. One set would achieve exactly the same as the amendments tabled by the hon. Member for Woking (Mr. Malins), so I will not expand at length. Amendment No. 52 would delete the word ''and'' in the phrase

''identity and nationality or citizenship''.

In the absence of something that specifically refers to nationality or citizenship, and given that the one should and could lead to the other, that would allow

for another acceptable means of properly identifying a person. Replacing the ''and'' with a comma would extend the range of documentation that is appropriate for the identification of an individual, which seems right. The argument is exactly the one that has been expounded by the hon. Member for Woking, so I shall not repeat it. I hope that that is sufficient to explain amendments Nos. 52, 55 and 62.

I confess that I am slightly puzzled about why amendment No. 51 was not selected, as it is analogous to amendment No. 54 but relates to a different subsection. It was an attempt to improve the Bill's structure. I do not claim superiority of any kind, but I find it puzzling that the term ''immigration document'' is used in two consecutive clauses but defined differently. That is confusing and unnecessary. If you would give me the leeway, Mrs. Roe, I would like to explain what amendment No. 51 would have done had it been selected, as it will help the argument. I hope that I shall not be straying too far from the scope of the group.

Amendment No. 51 would have removed ''immigration'' from subsections (1) and (2), so the clause would have read ''if he does not have with him a document which (a) is in force, and (b) satisfactorily establishes his identity and nationality or citizenship.'' The clause would define the document for the stated purpose. Such wording would have avoided difficulties that might have arisen because the same term is defined in two different ways in two consecutive clauses. If the provision were self-defining, one would not need the definition of an immigration document in subsection (10).

I am not going to die in the ditch over that, but it might improve the Bill's structure, which should avoid later difficulties. I would be grateful for the Minister's consideration of whether that might be appropriate.

Edward Garnier (Conservative, Harborough)

I do not want to die in any ditches either, particularly after today's rain, but I invite the Government to have another think.

I want to deal with the question of the immigration document. The hon. Member for Somerton and Frome (Mr. Heath) pointed out that there is a different definition for ''immigration document'' in clause 2 from that in clause 3. Clause 3(3) amends the Forgery and Counterfeiting Act 1981 so that ''immigration document'' means a

''card, adhesive label or other instrument''.

Applicants for asylum who go before the immigration officer may not have a piece of paper that comes under the definition of a passport or a document that relates to a national of a state other than the United Kingdom and is designed to serve the same purpose as a passport. However, to use an historical example, what would happen to someone who escaped from a Nazi concentration camp during the second world war but had an identity number tattooed on his arm? Is that not one way of establishing the identity of the bearer of that tattoo? But it is not a document. Had the Bill been in force in 1940 to 1945 or thereabouts, that person would not have been able to establish to the

satisfaction of the immigration officer that he had a means of identification that came within the terms of the Bill, still less within the terms of clause 3.

We need to be a little more imaginative about ways of establishing identity. That is our important objective here. We want to prevent people from presenting themselves at ports of entry and deceiving immigration officers about their identity. It is unimportant whether they have a passport or some other means of identification—what is really important is who they are and whether that can be established to the officer's satisfaction. Passports can be forged. Other documents can be forged. We need to consider other means of establishing identity.

Let me give another example. What about a military dog tag? Soldiers in action have around their necks a chain with a brass plate engraved with their name and military number. If a Government lose their authority because of a rebellion or a revolution and a former member of that country's armed forces ends up at Heathrow, is he to be denied the right to establish his identity simply because he can produce only a military dog tag? I ask the Committee to forget about all the difficulties of getting on a plane without a passport and so on. I merely mention the problem to show that while subsections (1) and (10) and clause 3(3) look neat and tidy they may produce opportunities for the sorts of injustices that I was describing before we adjourned this morning.

It is easy to dismiss my concerns as mere debating points, but I hope that the Minister will take them rather more seriously than that. Even if she does not accept my detailed examples, perhaps she will accept my motive for presenting them, so that she can deal with them rather more cogently than I have. There it is. The Bill, whatever its general policy, throws up some problems, and it is the duty of all members of the Committee to consider them. I trust that the Minister will be able to deal with the points that I have raised.

Tom Harris (Labour, Glasgow Cathcart)

I rise briefly in defence of the comma, and specifically to talk about amendment No. 52. One of the joys of serving on Committees is that, as someone who is not a trained lawyer, and therefore probably in a minority, I find it interesting to look at how syntax and punctuation can change the meaning of sentences. I was given as a Christmas present by my son a book by Lynne Truss called, ''Eats, Shoots & Leaves''. At the risk of boring the Committee, I should explain that the title is based on a story of a panda who walks into a cafe, orders and eats a sandwich, and then stands up, takes out a gun, fires two shots in the air and walks out. When the waiter asks him why he is doing that, the animal says, ''I'm a panda, look it up,'' and throws the waiter a badly punctuated dictionary. The definition of panda says, ''Eats, shoots and leaves.'' Amendment No. 52 would insert a comma after the word ''identity'' which would render the sentence completely different from that in the clause as drafted and mean that establishing the person's identity would be an option. We should not frame measures that allow people who come into

the country to establish which country they came from and perhaps their citizenship but not to establish who they actually are. Surely, the point of the Bill is to identify who individuals are. It is far easier to impersonate a citizen of a specified country than it is to impersonate a specific individual. If the amendment were accepted it would undermine the point of the clause.

Beverley Hughes (Labour, Stretford and Urmston)

The amendments would make it not an offence to arrive without a valid passport or other document for that purpose if a person can produce some other documentation, including an out-of-date passport, which satisfactorily establishes identity and nationality or citizenship for themselves or their children. That would mean that a person could produce any sort of document purporting to establish their identity, nationality or citizenship.

I shall make some specific points, but it is important at the outset to go back to the intention of the clause, which we discussed this morning: it is to catch those who deliberately destroy the documents that they used for embarkation to the UK in the first place. It is not to catch the people who may be able to arrive here without the passport or other documentation that enables them to travel but perhaps with some evidence of experiences testifying to their claim to be refugees and in need of asylum. The clause is not to catch those people; it is precisely to catch people who we believe have deliberately destroyed their documents.

There are several reasons why accepting the amendments would compromise the intention of the clause. First, if someone could produce any other sort of document to establish their identity, nationality or citizenship, the task for the immigration service, the police and the prosecution would be to prove beyond a reasonable doubt that the documents did not establish any of these, or indeed were forgeries. Given that the documents could come from any part of the world, possibly from different kinds of organisation, and by definition, in comparison with a passport, could be easily forged, the burden of proof beyond reasonable doubt on our prosecuting authorities would be very difficult and unreasonable.

Secondly, even if we or the courts were satisfied that the documents established identity, nationality or citizenship, there is no guarantee at the end of the asylum process, if people's claims are not accepted, that the country of nationality or citizenship would be satisfied that that document was sufficient for them to accept back a person whom we needed to return.

I made it clear to hon. Members that as well as trying to change people's behaviour so that they do not destroy documents, one of the main purposes of the proposal is to ensure that, at the point of claim, by avoiding the destruction of documents, as far as possible we can identify a person and establish their nationality with a high level of credibility. Thus we can do what hon. Members on both sides of the Committee want: return more people whose claims fail. That would be very difficult if we accepted at the outset of the process a document that the very countries from which those people came would not accept as sufficient proof of nationality.

Jon Owen Jones (Labour/Co-operative, Cardiff Central)

My right hon. Friend stated that all hon. Members present want to ensure that we can send back people whose claims are false. Presumably, at some point in our proceedings, some parties will table amendments that are designed to help us in that process. It is early days yet, and so far all the amendments have been weakening amendments, but at some point certain parties may table strengthening amendments.

Beverley Hughes (Labour, Stretford and Urmston)

I am sure that, in saying that, my hon. Friend has in mind the comments made at the outset by the hon. Member for Woking that there is shame on any system if people are not returned successfully when their claims fail. The intention of the clause is that at the point at which we receive people, when we know that they had a document at embarkation, they retain that document, precisely so that we can return people. I would be interested in any amendments from any quarter that help us to strengthen the potential of the clause.

The amendments would have problematic consequences in terms of the overall intention and objective of the clause. Let us consider the amendments from another point of view. Widening the scope of the clause in this way might have unintended consequences, even given what may be the hon. Gentleman's objectives. Let us say that the clause was amended to include other documents, and we applied the same approach to other documents as the clause applies to passports and the rest of the documents identified in subsection (10). A much wider group of people—the kind that he described, who perhaps had never had a passport but could be expected to have another kind of identity document—could be at risk of prosecution if we thought that they should have had a lesser identity document but had destroyed it en route.

Let us suppose that people entered the country clandestinely, hidden in a vehicle, and did not have a passport, but we reasonably thought that they might have had some identity document. They then claimed asylum in country at a screening unit and either admitted that they had destroyed such a document so that we could not identify them, or were believed by us to have done so. Such people would, under the amendment, be within the scope of prosecution under the clause.

I have made it clear that, according to the limits of the definitions in subsection (10), the clause is intended to catch only people who deliberately destroy either a passport or another travel document of the same level of authenticity.

David Heath (Liberal Democrat, Somerton and Frome)

The Minister is right in saying that, but it does not actually concern me, because the purpose of the clause seems to be to deal with those who deliberately destroy the documents on which they would otherwise rely to establish their identity and citizenship. It is immaterial to me whether that is a passport or, in the case of someone who does not have a passport, for whatever reason, another document. If they destroy those documents deliberately to mislead

the authorities, it is right to prosecute them on the basis of the clause, but if they do not do so deliberately and have an alternative means of identification on which they rely to establish their identity, it is equally right not to prosecute them simply for not having a passport.

Beverley Hughes (Labour, Stretford and Urmston)

I return to the point that I made at the outset, which is that the intention behind the clause is to be able successfully to prosecute people who deliberately destroy documents that we know that they had on embarkation. Someone getting on a plane, a sea ferry or Eurostar would not be able to embark on those methods of transport unless they had a valid travel document. For most of the citizens that we are discussing, that would not normally be some form of identity card. It would be a passport, or a document equivalent to a passport.

For those reasons, the clause as drafted rightly specifies immigration documents to a high standard. We can be sure that people had a document at the point at which they got on, for example, a plane. They could not get on a plane with some other form of identification, such as a birth certificate. They would have to have a passport or a document that satisfied the requirements in subsection (10)(b). To widen the scope of the clause to other documents would not only frustrate its intention but muddy the waters as to whom we are intending to prosecute with the offence.

Edward Garnier (Conservative, Harborough)

We are trying to prevent people pretending that they are one sort of person when they are another. We are trying to prevent people coming into the UK claiming to be asylum seekers when, in fact, they are economic or other migrants. A passport, or in the absence of a passport or travel document, some other document such as that referred to in subsection (10)(b), will not help the Government to establish the proper status of a person presenting themselves at the port of entry.

The Minister is allowing herself to be seduced into confusing the way in which she and I might accept a passport with the question of identity. A passport may not help us to establish a person's identity. It may simply be a document containing a self-serving statement, ''This is me, and I'm telling you it's me.'' Someone cannot really corroborate their own evidence in that respect. We should be careful that we are not lazily accepting that the passport or its equivalent is the best and only way of establishing identity. If we concentrate on the evil that we are trying to prevent, rather than on the means of establishing identity, we will reach a better conclusion. At present, the Minister is more concerned with process than with substance, although I accept that process is often important.

I agree that personal reminiscences are not always helpful when we are trying to establish law, but I shall recount a brief anecdote. I was able to travel from a hotel in Spain across the border to Gibraltar and back to Gatwick airport and home on no more than a Barclaycard—I had left my passport in the hotel in Spain. I was travelling within the European Union but, none the less, my identity could not be established

except by the fact that I said I was who I was. I said that my name was Edward Garnier, and the only way in which I could ''prove'' it—it was no proof—was to say, ''Here is a credit card, with my illegible signature on the back, and E. H. Garnier printed on the front.'' No one bothered to check whether I was Edward Garnier, and my wife—no doubt for good reasons—was not admitting that I was Edward Garnier. I think that I have just demonstrated why it is not always helpful to include personal reminiscences in matters such as this—although I am still married to her, by the way.

That anecdote demonstrates to me that we should be careful about getting too excited about particular sorts of documents. We are trying to establish the real identity, in so far as one ever can, of the individual claiming to be an asylum applicant in front of the immigration officer.

Beverley Hughes (Labour, Stretford and Urmston)

As the hon. and learned Gentleman rightly admitted when he was recounting the anecdote, the journey that he undertook was by an EU citizen entirely within the EU. For that purpose, there are various mutual recognition agreements between EU countries on a number of documents that are not passports. However, that is not relevant in this context.

We are not discussing issues concerned with the validity of the claim. Identity is important, and it is one of the reasons we want to introduce clause 2. We want to try to preserve information where we think people have started a journey with a record of identity, even if it is a false record or passport, because it helps us to track the route they came from and therefore their probable country of origin.

The primary purpose of the clause, however, is to change people's behaviour—to stop them destroying documents, because that makes it more difficult for us to identify people. Hon. Members must remember that if we want to prosecute people we will have to take cases through courts of law. In those circumstances, it seems important that we restrict the cases, as we said that we largely would do, to those circumstances where we are sure that, because of the mode of travel—or, in some special circumstances, because of intelligence we have received—the person embarked with a document that met the requirements of the country they were leaving and their immigration control. That is a passport or a document that relates to a national of a state, as outlined in subsection (10)(b).

In order to be able to apply the clause successfully and to be able to take cases successfully to the courts, it is important that we restrict our definition of ''immigration document'' to those documents that are internationally recognised as authentic documents for identity, nationality and the purposes of travel. It is in that way that we can successfully apply the clause, obtain some successful prosecutions and therefore reinforce the signal we are trying to send. Destroying documents is not acceptable behaviour and we will respond to that behaviour with prosecutions and therefore, I hope, start to break the power of the facilitators, who often tell people to destroy their

documents. If people keep their documents, we will be able to identify them and take them through the process in a better way.

David Heath (Liberal Democrat, Somerton and Frome)

The Minister has not addressed the—what was intended to be helpful—drafting of my amendments. I pull her up on that. She has partly answered them en passant in saying that she needs the definition of a passport or something similar. I hope that she might agree that it is still unhelpful to have the term ''immigration document'' in consecutive clauses defined in different ways. In this clause, she is talking about a travel document, not an immigration document as defined in clause 3. Will she look at the matter to see if there is a more felicitous way of wording the two clauses?

Beverley Hughes (Labour, Stretford and Urmston)

I raised the matter myself. As Members will have discovered for themselves as they have gone through the Bill in some detail, although superficially it looks confusing that ''immigration document'' is defined one way in clause 2 and another in clause 3, that is because the documents referred to in those clauses are completely different documents.

David Heath (Liberal Democrat, Somerton and Frome)

Exactly.

Beverley Hughes (Labour, Stretford and Urmston)

But I do not think that it is unreasonable. The term ''immigration document'' is a generic term used in the legislation, but within the confines of each of those clauses it is defined specifically. Here, as the hon. Gentleman rightly says, it is restricted to a travel document that would be accepted internationally, but in clause 3 it refers to additions to travel documents such as cards, stickers and vignettes.

It is right that the different definitions are pointed out. ''Immigration document'' is a very wide generic term. It could mean many other things besides those referred to in clauses 2 and 3, but in each of those clauses there is a specific definition to say which immigration document is being referred to for the purposes of each of the two clauses. With that, I hope that I have reassured the hon. Gentleman that to go down the route of the amendments would not achieve what he seeks. It would muddy the waters on the clause's implementation. I respectfully ask him not to press the amendment.

Humfrey Malins (Conservative, Woking)

I am not convinced by the Minister's reply. Periodically, during her speech, she said that the Government's intention is only to catch people who destroy documents that we know that they had. We all agree with that. I assure the Minister—let her be in no doubt—that no member of the Committee dissents from the view that those who destroy their travel documents with the intention of denying to the host country the ability to find out who they are, should be punished for that. However, that is not what the clause says. If the clause said what the Minister says she has in mind as the mischief, we should understand it, but the clause does not say that at all. It does not use the phrase ''destruction of documents''. It uses the phrase

''does not have with him''

an immigration document. That is potentially a different scenario.

As I told the Minister earlier, there must be thousands of genuine refugees who have never had a passport, and cannot get one or its equivalent. When they arrive in this country, there is no doubt that, under the clause, they will be guilty of an offence. Is the Minister seeking a method whereby people's identity must be known to the immigration officer? Is not that what she wants? The immigration officer must know with whom he or she is dealing and from what country they come.

What about Zimbabweans, for example? Removals to Zimbabwe have been suspended for, I think, a couple of years. However, what about somebody who is a member of the opposition party, the Movement for Democratic Change, and is being prosecuted? First, they cannot obtain a passport in Zimbabwe—end of story. Secondly, they cannot obtain the equivalent of a document giving them lawful permission to travel. So what do they do? They go over the border to South Africa, usually. They will probably obtain a visa to enter the UK and buy a South African passport or travel document. Interestingly, their genuineness as a refugee may not be open to doubt, but they will arrive at Heathrow with a false travel document and passport from South Africa in their pocket. It will become plain within hours, from documentary evidence, that they are a leading member of the Zimbabwean opposition and undoubtedly entitled, as such, to have their asylum claim heard and decided. The lack of flexibility in the clause means that they cannot pray in aid their proof that they are a member of the Zimbabwean opposition. They have not, by the way, destroyed their passport or travel documents, but those are not valid. They cannot be enforced, because false documents cannot be enforced.

My amendment seeks to highlight the problem of those tens of thousands of people who cannot obtain the documentation that the Minister requires of them because, under the clause, an immigration document is a passport or a document that is designed to serve the same purpose as a passport. Thousands of people who are genuine refugees have never had such documentation and cannot obtain it. What does the Minister want from them? She does not actually want a passport. She does not actually want a travel document. She wants proof of who they are, which is what is required.

All my amendment seeks to do is to widen the clause a little to enable people, through another document, to prove who they are, because they cannot obtain the first two documents. That is what the Minister wants and my amendment would help towards that end.

Edward Garnier (Conservative, Harborough)

Even though the Zimbabwean opposition member to whom my hon. Friend refers has a defence under subsection (3)(b), which is that

''he has a reasonable excuse for not being in possession of''

the limited sort of identity document that is required under the Bill, we are wasting a lot of time and public money, when the evil that we are trying to stop is the improper use of our safe haven system. Surely no one with any common sense would expect the Zimbabwean official opposition member to be taken to court, so that he could raise the defence of having a reasonable excuse for not being in possession of a Zimbabwean travel document, be it a passport or something else. We all know that he could not have obtained one legitimately as a member of the MDC or another party that is antipathetic to the current regime in Zimbabwe.

It is no good for the Government to say, ''Just look at clause 3'', when all they would be doing is wasting time and public money, not dealing with the criminal behaviour that we all want stopped.

Humfrey Malins (Conservative, Woking)

My hon. and learned Friend is absolutely right. It is probably plain that, under the subsection, there would be a defence. We would not expect the immigration officer to make a judgment on such a difficult issue. It would have to go before a court. Otherwise, the immigration officer would be setting himself or herself up as judge and jury. The matter of whether such an excuse is reasonable would have to go before the district judge or jury. I believe that such an excuse would be reasonable, but much time, money and effort would be wasted. The issue that we are considering is proof of identity. My amendment is concerned with proving who a person is.

Bob Blizzard (Labour, Waveney)

Under the system that the hon. Gentleman is describing, what would be the safeguard against someone who was not a member of the Zimbabwean opposition, who does not have a good case for asylum and is trying to play the system to enter the country, after which time he proves to be impossible to deport because he does not have a passport, so it cannot be known from where he came? What would the safeguard be against such action under the system proposed by the hon. Gentleman?

Humfrey Malins (Conservative, Woking)

There is no safeguard under any system against a false claim. It is up to the adjudicator and the tribunal to decide the merits of a claim. My narrow amendment would merely help the Government with the vexed issue concerning those who chuck away, burn or tear to bits any documentation in their possession, whether it was a genuine passport or travel document or other genuine documents that prove who they are. All the amendment seeks to do is to help the Government. The mischief that we are trying to deal with is that carried out by the person who destroys such documentation. The clause is about that. I need also, however, to protect from time to time those people who have not ever been able to obtain a passport or travel document, but who can prove who they are. They should not be subject to a criminal charge.

Beverley Hughes (Labour, Stretford and Urmston)

Does the hon. Gentleman accept, in terms of the first scenario to which he referred about the Zimbabwean person, that a person who arrives

with a false passport, does not destroy it and produces it at immigration control would not be caught by the Bill? That person would have a reasonable excuse for not having a valid passport in the first place. Does he not agree that his amendment would allow somebody who embarked with a valid passport and destroyed it before presenting themselves to an immigration officer, to present another, lesser, possibly forged form of identity, thereby potentially taking themselves outside the scope of the offence? It is precisely that latter group of people to whom we want the offence to apply—those who deliberately destroy their document.

Humfrey Malins (Conservative, Woking)

The point was made earlier by my hon. and learned Friend the Member for Harborough that the issue of a reasonable excuse, which is a defence to a charge, is something that that Zimbabwean might well, should well and would well raise in court, where it would have to be decided by the judicial authorities. However, reasonable excuse does not come within the purview of the decision making of the immigration officer. That is a matter for the court to decide further down the line.

David Heath (Liberal Democrat, Somerton and Frome)

I am delighted to oblige the hon. Gentleman, as he has obliged me. The debates we have had so far on the various groups confirm, in my view, that the Minister could satisfy many of the issues that the hon. Gentleman raised, and might have raised, by simply changing the point of insertion of the reasonable excuse to qualify the initial offence, rather than be a defensive law at the point of trial. Does he agree?

Humfrey Malins (Conservative, Woking)

The hon. Gentleman makes a fair point. It follows from what my hon. and learned Friend and I said that the reasonable excuse position currently under the clause, operates down the line when the matter gets to court. It is not for the defendant in this case to put his reasonable excuse to the immigration officer, because the immigration officer would then have to judge reasonable excuses in relation to the rest of the criteria in the clause. The immigration officer is not concerned with these matters. Rather, the immigration officer is concerned with the issue of whether there is a reasonable suspicion that the person has committed an offence. Of course there is reasonable suspicion that a person has committed an offence if he or she turns up without the document. That is as far as the immigration officer can go.

The immigration officer is not expected to make judgments about whether the document was destroyed for a reasonable cause. Those are matters for the courts. I believe that the hon. and learned Member for Somerset and Frome may have a point. It is a matter for the drafting of the Bill and if the issue of reasonable suspicion came up at the first stage, it might be more helpful. Is it not within the powers of those who draft Bills for the Minister to understand the purpose of our amendment? Are the parliamentary draftsmen capable of understanding the points that have been made by the hon. Gentleman? If they follow it and believe that

we are on to something, it must be possible for them to come forward at a later stage during the proceedings, with suitable draft amendments.

I do not want to labour the point further. The Minister knows exactly where we stand on it. It is deeply unsatisfactory to have the clause in its present state. She knows that it is deeply unsatisfactory for her simply to say to us, ''Listen, the purpose of this is only to deal with people who tear up their documents''. Whether that may be the purpose of the clause, it is not what the clause says. Therefore, changes must be made to the clause on this and other areas between now and Report. Meanwhile, having flagged it up, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Beverley Hughes (Labour, Stretford and Urmston)

I beg to move amendment No. 67, in

clause 2, page 2, line 15, after 'national', insert—

'(aa) that he is a member of the family of an EEA national and that he is exercising a right under the Community Treaties in respect of entry to or residence in the United Kingdom,'.

Marion Roe (Conservative, Broxbourne)

With this it will be convenient to discuss Government amendment No. 68.

Beverley Hughes (Labour, Stretford and Urmston)

I hope that these amendments will be satisfactory to the Committee. As hon. Members will be aware, as the provision is drafted, being an European economic area national is a defence in clause 2. EEA nationals may exercise treaty rights to stay in the UK and, therefore, would be unlikely to destroy documents in order to evade immigration control. As I keep rehearsing, that is the behaviour that we are trying to tackle.

The amendments bring family members of European economic area nationals in line with EEA nationals themselves. Those family members also have derivative treaty rights under EU law, and it would not be appropriate to exclude them from the scope of the defence that the Bill would provide. I hope that that is sufficient explanation for what is a fairly technical amendment.

Amendment agreed to.

Humfrey Malins (Conservative, Woking)

I beg to move amendment No. 9, in

clause 2, page 2, line 17, at end insert

', or

'(c) that he has not, in the last five years, possessed such a document.'.

Marion Roe (Conservative, Broxbourne)

With this it will be convenient to discuss amendment No. 10, in

clause 2, page 2, line 22, at end insert

', or

'(c) that the person has not, in the last five years, possessed such a document.'.

Humfrey Malins (Conservative, Woking)

We now come to the part of the clause that deals with defences. To be clear, we are talking about a defence in a court of law, not a defence to be considered by the immigration officer. I will not labour amendment No. 9, which would give a reasonable excuse to a person who could show that they had not possessed such a document in the last five years, on the

basis that many of those acting in good faith may never have had—or may not have had for years—the sort of document required.

Amendment No. 11, which deals with whether there should be a defence where a document has been destroyed under duress, is more interesting and has not been debated. The clause states that it is not a defence to say that such destruction resulted from complying with instructions or advice given by another person. I think that, if a document is destroyed by somebody as a result of duress from others, there are occasions on which that should be a specific defence. As the Minister knows, people frequently set out from their country of origin—say, the far east—with documents, perhaps a passport if not a valid travel document, and come under the influence of criminal gangs that move them from A to B.

Like the Minister, we want to destroy the influence and unpleasantness of those gangs, which exploit people, take money off them and often have a long-term hold over the victims or their families either in this country or abroad. They often make threats of violence or worse, not to the victim alone, but to their family in the UK or in their country of origin. Those threats can last for years. That is nasty and ties in with cases in which victims of the smuggling gangs set out with such documents as they have, perhaps including a travel document, but during the journey are told by the gangs to destroy them under some sort of threat—hence the reference to duress as a defence.

The amendments are merely a peg on which to hang a shortish argument, and a way of bringing into play the issue of criminal gangs and the influence that they have over some of the people whom they transport. I hope that we will hear more from the Minister on that subject.

Marion Roe (Conservative, Broxbourne)

It might help the Committee to consider also amendment No. 11 as it is similar to the amendments in this group. Of course, if the hon. Gentleman wants to have a vote on it later, he could.

Humfrey Malins (Conservative, Woking)

I am grateful to you, Mrs. Roe. I think that I strayed on to amendment No. 11.

Marion Roe (Conservative, Broxbourne)

I am formalising the matter.

Humfrey Malins (Conservative, Woking)

That is extremely kind of you, Mrs Roe. There is no question of wanting a vote on either amendment. One of the difficult things about Committee work is getting one's pagination, numbering and all the relevant bits of paper in the right place at the right time. I strayed on to the next group of amendments, so thank you for your indulgence, Mrs Roe. These are probing amendments and if the result of a short debate is a little more explanation and background, all to the good.

David Heath (Liberal Democrat, Somerton and Frome)

I was not intending to speak to this group, but as we have now included amendment No. 11 and the hon. Gentleman strayed on to it, I want to add an observation. I broadly support the hon.

Gentleman's points, and we will return later to the business of trafficking and the subject of destroying documents under duress, which we all accept happens.

One of the tragedies of having stricter arrangements for preventing people from exercising any rights that they may claim under the convention on refugees within our shores is that people are pushed into traffickers' hands. If there is no legitimate way of them reaching United Kingdom shores to have their claim addressed, they are far more likely to find themselves in the hands of those who are unscrupulous, manipulative and seeking to make money out of other people's distress, and who will employ the sorts of measures that are the subject of the amendment. We need to recognise that, when framing legislation, the more effective we are at preventing people from making legitimate claims, the more likely it is that they will use illegitimate routes to make a claim.

If we are to have a humane, appropriate and responsive immigration and asylum policy, we must strike a balance between bearing down hard on those who wish to exploit people in distress and leaving a door open for those legitimately seeking asylum on our shores. I am not sure that that door is open, and that is a great concern.

Annabelle Ewing (Scottish National Party, Perth)

When the Minister responds, can she tell us why the Government chose the words ''reasonable excuse'' over the equivalent language in the 1951 convention, ''to show good cause''. I wonder what the thinking was behind the UK Government's failure to incorporate that specific language into the Bill. Is she also able to tell us what kinds of situations would be viewed as meeting the requirements of the defence of reasonable excuse? Does she foresee what kinds of situations would be deemed to fall outwith that defence?

Beverley Hughes (Labour, Stretford and Urmston)

First, I will deal with amendments Nos. 9 and 10, which seek to add a defence of not having possessed a passport, or a document for the same purpose, for the last five years.

I should start by repeating what I have said a number of times: it is not our intention to penalise people who began their journeys without passports and where it would be a reasonable excuse for them to show that they did not begin their journey with a document. The test of whether to proceed along the lines of arrest and possible charging will be, ''Could this person have begun their journey with a passport—would they have had to have done so?'' If the answer to that is no, we do not intend to use the power in this clause. If the answer is yes and they then present without documents, that is the group for whom clause 2 has specifically been designed. Somebody who has not had a passport for five years or less prior to the journey would have a reasonable excuse.

However, during the debates on the last few amendments, I have been thinking about this matter. It is clear that Opposition Members want more reassurance: although ''a reasonable excuse'' is written into the legislation with regard to the stage at which a court may deliberate on individual circumstances, they are not reassured at present about two things. First,

what will be the behaviour of an immigration officer or police officer towards a person who presents with no documents, and in most cases where somebody appears without a document will the immigration officer proceed to arrest? Secondly, if somebody is arrested, what will be the criteria that the police and prosecuting authorities will use to judge whether to proceed to charge and prosecution? If it will be helpful, I am willing formally to write to Committee members to set out what we expect will be the case in both of those circumstances.

I think that Committee members are most exercised by the first circumstance: how will immigration or police officers behave when presented with an individual and what will be the criteria they use to decide whether to arrest a person?

Tom Harris (Labour, Glasgow Cathcart)

The Minister may have to reserve some of her comments for the letter which will be useful. However, I seek clarification about the argument that she is making. It seems to me that the hon. Member for Woking is right: whether or not a person is arrested by the officer is almost immaterial. As the Bill is currently drafted, someone breaks the law by simply turning up without a passport. There is then the option whether to make an arrest, but whether or not it is made is irrelevant to the fact that someone who turns up without a passport is currently committing an offence regardless of their background or their reason. I am concerned about that. Can my hon. Friend tell me if I am misinterpreting this matter?

Beverley Hughes (Labour, Stretford and Urmston)

My hon. Friend is right, although I would add another word. As the clause is currently drafted, a person who presents without their documents is potentially committing an offence unless they can establish a reasonable excuse. The clause goes on to define what will not be accepted as reasonable excuses in some circumstances. Technically, at the point at which a person presents without documents, they are potentially liable to be arrested for an offence.

Richard Bacon (Conservative, South Norfolk)

Will the Minister give way?

Beverley Hughes (Labour, Stretford and Urmston)

If I may, I will develop this argument. Unfortunately, the hon. Gentleman did not hear most of the points that I made this morning, and I would like to complete my remarks on this topic.

I understand that hon. Members are concerned and want more detail on how the immigration officer's decision about whether to proceed to arrest will be made on the basis of the facts presented by the claimant. In fairness to myself, I have already said that the immigration or police officer will act reasonably. Under the Bill, they may proceed to arrest if they have a reasonable suspicion, and they will have to satisfy themselves, as public servants, that that suspicion is reasonable. However, I understand that hon. Members will want further detail about how we envisage those decisions being made. Generally, we expect immigration officials to act reasonably—and I will spell that out in writing. They will have guidelines on what to consider before deciding whether to make an arrest.

If a person were undocumented, there would be no arrest if it were clear that there would be a reasonable defence, for example, if they have never been documented, if they claim that they could bring a passport in one or two days—we have heard an example of that today—or if the circumstances arising from their not appearing with a passport that day are credible. A person may, for example, have already come into the country legally. I am happy to put that in writing. If the reasonable excuse were not clear-cut, the immigration officer might decide to proceed to arrest so that the process of testing it could proceed.

I do not share some hon. Member's concerns about what might happen if an arrest were made. We are talking about a situation that applies whenever a person is arrested for a particular offence. The police and prosecuting authorities consider the evidence, the likelihood of a successful prosecution and whether it is in the public interest to proceed to a prosecution. I hope that hon. Members accept that there ought to be less concern about that stage of the process, because it will mirror what already happens when people are arrested for every other kind of offence. I am willing to put in writing what we expect of immigration officials at the point at which they are presented with somebody without documents and hear an account that is put forward as an excuse.

Richard Bacon (Conservative, South Norfolk)

The Minister has provided some explanation and a degree of reassurance. None the less, she said that in subsection (1) a person potentially commits an offence. However, that subsection is a complete sentence, which says that

''A person commits an offence if when he is first interviewed by an immigration officer after arrival in the United Kingdom he does not have with him an immigration document''.

Then such a document is defined. The subsection does not say, ''potentially''; it says, ''commits an offence''. As the hon. Lady said a minute ago, the act of turning up in the United Kingdom without an immigration document is an offence, not a potential offence.

I take note of what my hon. and learned Friend the Member for Harborough (Mr. Garnier) said about the danger of personal reminiscences. Nevertheless, I sought to go to Brussels a few months ago and was not able to, because I had forgotten my passport—I left it at home. Although I never left the UK, colleagues of mine say that they have, on occasion, succeeded in going to Brussels for the day without a passport. If I had got to Brussels without a passport—which is possible—according to the Bill, the moment that I returned I would be entering the UK without a passport and would have committed an offence—full stop. That is what it says at the end of subsection (1).

Beverley Hughes (Labour, Stretford and Urmston)

The point at issue in my response to my hon. Friend the Member for Glasgow, Cathcart (Mr. Harris), was whether somebody would be potentially guilty of that offence. Of course, subsection (1) must be read in conjunction with further subsections that clearly provide for a defence in law against that offence and only prescribe certain circumstances that will not constitute an offence. I

accept, to a point, that the clause is formulated in a particular way—if that is the point that the hon. Gentleman is making.

This morning, I gave some of the reasons why parliamentary counsel formulated the clause in that way. They concern an issue that we will come to later: the issue of evidence, and where the burden of evidence inevitably has to lie because of such situations. If the clause had been framed much more directly and said that a person commits an offence if he disposes of documents prior to arrival in the UK, the burden of proof would be solely on the authorities in a situation in which the ability or access to the facts to establish beyond reasonable doubt would be outside the province of the authorities.

My advice from parliamentary counsel is that the provisions are the only reasonable way to fulfil our policy intentions without imposing upon ourselves a burden or something that is almost unachievable in terms of proof, and which means that there cannot be successful prosecutions.

Bob Blizzard (Labour, Waveney)

I wonder whether I may contribute a personal travel anecdote. I discovered on Friday that it is possible to fly from Turin to this country without a passport. I had my passport with me, but no one asked to look at it until I arrived in this country. It occurred to me while I moved through Turin airport and when I was on the plane that that was a loophole that someone seeking illegally to gain entry to the country might exploit.

My constituents would be relieved and reassured that the line proposed is being taken to ensure that such latitude—or the system within the EU, or whatever it is—will not be an undesirable means by which people who want to exploit the system might gain entry to this country.

Beverley Hughes (Labour, Stretford and Urmston)

I thank my hon. Friend for that helpful interjection. I suspect that, before we finish the Bill, we will hear anecdotes of travel experiences from most members of the Committee.

I agreed that I would allow the hon. Member for Perth (Annabelle Ewing) to intervene, and I apologise for not having done so.

Annabelle Ewing (Scottish National Party, Perth)

I will spare the Committee my travel anecdotes—

Tom Harris (Labour, Glasgow Cathcart)

Go on.

Annabelle Ewing—not least because I am not sure whether it would get me into difficulties with the law and being a lawyer and an officer of the court. I do not want to go down that route. I am sure that the hon. Member for Glasgow, Cathcart would have been particularly interested in my anecdote.

The Bill introduces a statutory offence, and as a lawyer I think that it is important to try to work out, as far as possible, what the scope of the statutory defence would be. The Minister mentioned that ''reasonable excuse'' was defined, but of course it is not defined per

se; it is defined only with respect to the deliberate destruction of documents. It may be that the Minister did not mean to say that, but that was what might appear on the record. However, I assume that that is not the case. It is simply with respect to the deliberate destruction of documents that we have any indication as to what ''reasonable excuse'' is, or is not, to mean.

Looking to the future, what are the courts to do under the Bill? Obviously, we are talking about a question of fact, but that question of fact will, I imagine, presuppose a particular knowledge of a particular country's situation. If the courts are to receive no guidance from the Bill, what are they expected to do when hearing such defences?

Beverley Hughes (Labour, Stretford and Urmston)

We can, as we do with other offences, trust the courts to avail themselves of all the relevant information that they need to make a judgment as to whether the excuse that a person put forward for appearing without a document was reasonable. Also, if someone claimed that they had to destroy the document—they admitted destroying it but said that they had a reasonable cause for doing so, or said that it was beyond their control—the courts are there to evaluate the credibility of that person's evidence against the facts presented, including country information and any other information that may be relevant.

I am sure that once there have been some test cases, a body of case law from court judgments will build up, as it always does, on what would be accepted as reasonable cause in relation to such destruction, or what would constitute reasonable excuse in terms of someone arriving without a document.

David Heath (Liberal Democrat, Somerton and Frome)

Will the Minister help me with one matter raised by the Law Society in terms of reasonable cause for destruction? It posited an instance where someone deliberately destroyed their documents because they had a well-founded or other belief that to do so would protect the interests or safety of people in the place of origin. It questioned whether that would be included within the errors that might be considered reasonable cause for the destruction of documents. Does the Minister have a view?

Beverley Hughes (Labour, Stretford and Urmston)

I will not be drawn on that point for the reason that I have just outlined. By the time a case gets to the point at which the claim of reasonable cause is invoked by someone who has admitted destroying documents it is for the courts to start to evaluate and to establish case law for everyone that can then be used in the future to inform decisions about whether to prosecute. We need to depend on the courts for that.

Humfrey Malins (Conservative, Woking)

I suppose the Minister will tell the Committee that under this clause, strictly speaking, once a case has gone to the Crown Court it could go to the Court of Appeal and then the House of Lords, in stark contrast to clause 10. Is that right?

Beverley Hughes (Labour, Stretford and Urmston)

I need to take advice on the matter. Unlike myself, the hon. Gentleman is trained in the law. Clearly, any case in which a person is

charged with an offence under the law can proceed in so far as the appellant obtains permission to proceed to the next stage. It is possible within the framework of our legislation, if someone received permission to go to a higher court, for the case to go to a higher court. It is within the province of the judges whether they give permission.

Humfrey Malins (Conservative, Woking)

Except under clause 10.

Beverley Hughes (Labour, Stretford and Urmston)

We will come to clause 10 later. Amendment No. 11 raises an important issue, which I am glad the hon. Gentleman raised, about situations where people may be acting under duress, and whether that could be relied on as good cause for the deliberate destruction of an immigration document and therefore be an excuse for not being in possession of one. I agree entirely that where a person destroys a document because they are under duress, they should not and will not be guilty of an offence. That is already the case. Acting under duress is materially different from following instructions or advice, so we consider that someone genuinely acting under duress in destroying a document would not be excluded from relying on the reasonable excuse in subsection (5). Someone acting under duress would therefore not be guilty of that offence because destruction in those circumstances would be either for a reasonable cause or beyond their control. The amendment adds nothing to the availability of a defence of duress already inherent in the clause.

For those reasons, and in conclusion, I ask the hon. Member to withdraw his amendment.

Humfrey Malins (Conservative, Woking)

Again, this has been a useful debate. On this occasion I find myself accepting much of what the Minister said and, certainly, the way in which she said it. On that basis, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Amendment made: No. 68, in

clause 2, page 2, line 20, after 'national', insert—

'(aa) that the child is a member of the family of an EEA national and that the child is exercising a right under the Community Treaties in respect of entry to or residence in the United Kingdom,'.—[Beverley Hughes.]

David Heath (Liberal Democrat, Somerton and Frome)

I beg to move amendment No. 56, in

clause 2, page 2, line 22, at end insert—

'(4A) Where a person is charged with an offence under subsections (1) and (2), and relies on a defence under subsections (3) and (4), if the person adduces evidence which is sufficient to raise an issue with respect to the matter, the court or jury shall assume that the defence is satisfied unless the prosecution proves beyond reasonable doubt that it is not.'.

I am indebted to the Immigration Law Practitioners Association for suggesting the amendment, and to my noble Friend Lord Goodhart, who has taken an interest in the Bill. The amendment concerns the burden of proof, to which the Minister has already alluded. I understand that the Minister does not want to be in a position in which prosecutions cannot succeed because the evidence on which they are based cannot and will not be available to the prosecuting authorities. However, that must be balanced with the

fact that we are dealing with a criminal offence in the United Kingdom against an individual where there must be a proper defence.

The Minister sets out, quite properly, the statutory defences that subsections (3) and (4) make available to a citizen who is charged under clause 2. I do not accept that, simply because it is difficult to find appropriate evidence, the burden of proof should be moved to a lower level in order to establish an easier route to prosecution. The amendment seeks to apply a burden of proof of an appropriate criminal standard to the defences available, so that if a point of law is successfully raised in court, there is an obligation on the prosecution to prove beyond reasonable doubt that such a defence is not appropriate for the court to uphold.

The words may seem familiar to the Minister—I hope that they will—because they closely mirror section 118 of the Terrorism Act 2000. Bizarrely, we are currently prepared to allow a greater procedural safeguard to a terrorist than to an asylum seeker who finds himself in difficulties under the measure. My amendment would bring the two to an equivalent standard. That does not seem to be an unreasonable request. I hope that I am not unfairly anticipating the Minister's response by saying that she has already suggested that the difficulty is that the prosecuting authorities will find it hard to establish why somebody has no appropriate identity document and that they had one at the point of departure.

The Committee will debate amendments later that would improve the evidence available to the authorities of whether somebody had a passport or other travel document at the point of embarkation. I do not want to pre-empt that, but I think that we can trust the courts to take appropriate action when they consider such cases. If a defence is cogent, it would be entirely reasonable that if the prosecution wishes to argue with that defence—the defence of ''reasonable excuse'' to destroy documents—it must provide significant evidence to support its contention. My amendment would provide for that. I should be interested to hear the Minister's response; I may have misjudged her intention. I repeat that it seems perverse in law to treat a fact in the case of somebody seeking asylum in this country as requiring a lower standard of proof than the proof of a fact in the case of a terrorist facing action under the Terrorism Act 2000. It seems perverse and I hope that that is not the way that the Government will run this country's affairs.

Neil Gerrard (Labour, Walthamstow)

I have some sympathy with the points that the hon. Gentleman has just made. We return to the question of what is reasonable doubt, what is a reasonable excuse and where the burden of proof should lie. Some of the points that have been made have rather ignored other parts of the law. One could find substantial pieces of legislation that talk about reasonable excuse as a defence. I do not want to anticipate what the Minister will say in her letter to us, but I expect that the Crown Prosecution Service, in deciding whether to bring a

prosecution, will consider the strength of the case. It will look at the possibility of a conviction, how the evidence that the prosecution may wish to bring stands up and how it relates to what may be a possible defence.

The question of the burden of proof, which amendment No. 56 addresses, is quite important. Who must produce the evidence? I can think of several reasons why someone may not have a document or may destroy a document, which may or may not be reasonable excuses. People may destroy documents because they know that if they are found in their possession it would harm their claim. We have talked throughout the debate as if this were entirely about asylum, yet the clause does not mention asylum at all. The person who is being questioned about their immigration documents does not have to be an asylum seeker to fall under the provisions of the clause.

The word ''asylum'' is not used in the clause. It could be anyone who is seeking to enter the country for any reason and who is subject to immigration control, including, on the face of it, a British citizen. A British citizen would not normally be interviewed by an immigration officer after arriving in the UK. Some people may think that they should destroy false documents because having them may cause a problem. The Minister said in earlier debates that not having documents at all and not being able to have those documents would be a reasonable excuse.

The burden of proof seems quite important. How does one prove that one could or could not have had access to those documents? I can recall seeing cases of people whose asylum claims have been rejected on the grounds that they had certain documents. It was argued that the fact that they had those documents showed that they had not been threatened in their country of origin. Possession of documents can sometimes work in the opposite direction.

One of the big questions about the clause is: how often will it be used? Figures, which I believe came from a Home Office consultation document, suggest that in the first nine months of this year there were around 13,000 inadequately documented arrivals in the UK, 8,000 of whom were undocumented. I cannot believe that we will have 8,000 or 13,000 prosecutions under the clause and that every person who arrives will be prosecuted. It is important to know what the criteria will be, how the clause will be applied, what will be regarded as reasonable doubt and where the burden of proof will lie.

Jon Owen Jones (Labour/Co-operative, Cardiff Central)

My hon. Friend makes a reasonable point. But surely the purpose of this legislation—indeed, any law—is to dissuade people from breaking it. The current rate, without such legislation, is 13,000 or whatever. Presumably the purpose of the legislation is for the number to be far lower.

Neil Gerrard (Labour, Walthamstow)

I take the point that that is the purpose of the legislation, but I am not necessarily convinced that that will be its effect. The two are not quite the same. Let us say that we go down the road of making

what we are discussing a criminal offence. First, I am not sure that six months, which is the penalty on summary conviction, will necessarily be much of a deterrent to some highly organised people. Secondly, I suspect that more people who seek to come in by totally illegal routes will avoid airports and immigration controls where they may be asked to produce documents. There will simply be more pressure on other illegal forms of entry.

We must also be careful about confusing issues about someone's credibility in their asylum claim with the question of documentation. Many of the same issues will arise under clause 6. We should be thinking about whether we want criminal offences, or the possibility of a criminal offence, to apply to large numbers of people. We should, where possible, decide on the asylum claim and, if it is not valid, enforce the decision of removal, rather than keep people in prison for a couple of years. There are questions about how the clause should be used. How decisions to prosecute will be taken and where the burden of proof will be is a major issue. That depends on the scale on which the clause is used. I do not believe that it can be used on a large scale, and that is when those decisions become critical.

Annabelle Ewing (Scottish National Party, Perth)

There are not enough prison spaces.

Neil Gerrard (Labour, Walthamstow)

Indeed, there are not enough prison spaces.

Humfrey Malins (Conservative, Woking)

This has been an interesting debate and I have little to add to it, but we are moving into interesting territory of where the burden of proof lies in a case in which a reasonable excuse is offered. The standard position is that in every single criminal case, it is for the prosecution to prove the defendant's guilt. The burden is on the prosecution from beginning to end; it is, and remains throughout, with the prosecution. The defendant does not have to prove anything. Furthermore, the standard is high. A case can be found to be proved only if the court is sure of guilt. Those standard directions are given by any judge in any case, but of course there are interesting cases in parallel to what we are discussing in which slightly offbeat rules apply.

Let us take the case of an assault in which the defence is self-defence. The law is clear that if an assault is in self-defence, it is not an offence, so the standard direction to a jury in a case involving self-defence is as follows. The defendant, charged with punching someone, has raised the issue of self-defence. That issue having been raised, he does not have to prove it. It is for the prosecution to prove that self-defence did not exist. That is the subtle difference. There is a shift.

That is an interesting parallel to the situation that we have been discussing. In effect, the amendment says the same thing: once the proposition of a reasonable excuse is put forward, it is for the Crown to prove that it does not exist. That is a nice parallel with the position on self-defence. Indeed, I can see no other logical way forward than that proposed in the amendment. Once the matter is raised, it is for the

Crown to prove that it does not exist, rather than the other way round. I congratulate the hon. Member for Somerton and Frome on the careful drafting of his amendment and the excellent way he spoke to it. It is always a privilege to hear what the hon. Member for Walthamstow (Mr. Gerrard) has to say on these matters.

Beverley Hughes (Labour, Stretford and Urmston)

This has been a useful and interesting debate. I hope that I can convince the hon. Member for Somerton and Frome, who anticipated my response correctly, that the amendment would in practice make completely impotent the intention of the clause. I remind hon. Members that its sole intention is not to prosecute inadequately documented arrivals—people who arrive without any documentation and who never had any—but to prosecute people who deliberately destroy their documents. They leave country A and arrive in the UK and destroy the documents they must have had in order to start their journey.

Humfrey Malins (Conservative, Woking)

Is the Minister specifically saying that the clause will be used only to prosecute those who destroy documents? Is any discussion about non-documented arrivals who have not destroyed documents worthless? Is it only those we know have destroyed them, or can it be others?

Beverley Hughes (Labour, Stretford and Urmston)

I said, and I say it again, unreservedly, that our intention is only to prosecute people who deliberately destroy documents.

Humfrey Malins (Conservative, Woking)

The Minister should have said so.

Beverley Hughes (Labour, Stretford and Urmston)

I have said so many times during the debates on amendments. We drafted the clause only to prosecute people who deliberately destroy documents. I have been at great pains to explain why we are not interested in prosecuting, nor could we in practice prosecute, people who simply arrive without documents because they did not have to have a valid travel document at the start of their journey in order to get on to the mode of transport that brought them to the UK. That being said, the amendment would mean that the prosecution would have to prove beyond reasonable doubt that any defence raised by the defendant did not amount to a reasonable excuse for not having a document. As the hon. Gentleman said, in the clause as drafted it is for the defendant to prove the existence of the defence on the balance of probability. I alluded to the point earlier and I repeat: we drafted the offence in that way because of the particular circumstances peculiar to when the offence occurs and because of the extent of the problem of people destroying their documents.

When someone has a reasonable excuse for not having a document on arrival, the details of that excuse will in almost every case be solely within the knowledge of the individual. If, for example, the individual had been smuggled on to a plane by a corrupt official and had never had a document, only he or she would know how and when that happened. In those circumstances, I do not think it is unreasonable to ask the defendant to prove, on the balance of probability, not beyond reasonable doubt, that that

occurred. That is why it is justifiable in those circumstances to require the defendant to prove it him or herself.

Annabelle Ewing (Scottish National Party, Perth)

The Minister referred to the fact that in her understanding of the Bill, the reasonable excuse would require to be proved only at the level of the balance of probabilities. Where does it say that in the Bill?

Beverley Hughes (Labour, Stretford and Urmston)

I will need to check that point, but the reverse burden, which is what is required in this case, is on the balance of probability. As I understand it, that is always the case. If it is not included in the Bill, that may be because it is not necessary to do so. In those circumstances, that may be the level of proof required; the burden is on the applicant to establish the defence.

Humfrey Malins (Conservative, Woking)

The hon. Lady makes an interesting point. The normal position in criminal proceedings—and we are dealing with crime—is that proof, unless otherwise stated, is to the criminal standard. Perhaps it should be otherwise stated in this case, so that we know that the proof has to be only on the balance of probability.

Beverley Hughes (Labour, Stretford and Urmston)

That is a technical point related to the law, which I am happy to—and would want to—establish for myself. If necessary, I shall respond to that point on Report.

My hon. Friend the Member for Cardiff, Central (Mr. Jones) raised an important point about the extent of the problem. It is not simply one of inadequately documented people or people arriving who have never had documents, but of people deliberately destroying documents: sometimes because they are told to, but often because they do not want their identity to be easily established.

In response to the point made by my hon. Friend the Member for Walthamstow, I do not believe it necessary for every one of the many tens of thousands of people who could be prosecuted for destroying their documents to be prosecuted. The successful prosecution of a number of cases will start to achieve what we want the clause to achieve, which is not to trammel the resources of the police, the immigration service and the Crown Prosecution Service in thousands of cases, but to demonstrate, perhaps in a few high profile cases, that we are prepared to prosecute and thereby start to change people's behaviour, so that they stop destroying their documents. We do not want to achieve thousands of prosecutions under the clause, but we want to convince people that they must keep hold of the documents with which they leave a country, and present those same documents when they arrive in the UK.

I hope that the hon. Member for Somerton and Frome will withdraw his amendment. I hope that he accepts that if he were to persist with it and we were to accept it, it would neuter the clause.

Jon Owen Jones (Labour/Co-operative, Cardiff Central)

Would it not be reasonable to make the assumption, if someone is shown to have deliberately destroyed their documents, that their reason for doing so was that their claim for asylum was false?

David Heath (Liberal Democrat, Somerton and Frome)

There is no need to bother with the courts at all.

Beverley Hughes (Labour, Stretford and Urmston)

We have not taken that further step of linking in law the deliberate destruction of documents with an adverse presumption about someone's asylum claim. However, my hon. Friend makes a good point, to the extent that many people destroy their documents in order to make it more difficult to assess the validity of their claim.

The hon. Member for Perth made the point about the burden of proof not being included in the Bill. I am informed that the speculative answer that I gave her, based not on legal expertise, but on common sense, was correct. It is established law that where an offence is structured in the way that clause 2 is, the defence should be established on the balance of probability. That is different from the requirement on the prosecution. In conclusion, I ask the hon. Member for Somerton and Frome to withdraw the amendment.

David Heath (Liberal Democrat, Somerton and Frome)

We have had a useful debate, but the Minister's parting shot has left me more confused than I was at the beginning. She has stated that it is sufficient for the defence to establish on the balance of probabilities that there is a defence available under the clause. The corollary of that should be, under normal criminal procedure, that it is for the prosecution to establish beyond reasonable doubt that that is not the case. Yet she says that that would destroy the efficacy of the clause, were it to be the case as a result of the amendment.

Humfrey Malins (Conservative, Woking)

The hon. Gentleman must be right. I return to the defence of self-defence in a criminal assault case: the direction there is that, the defence having raised the matter, it is for the prosecution to make the jury sure that the defendant did not act in self-defence. Those are the words—''sure that'' self-defence did not apply. The hon. Gentleman has the right point and the Minister has the wrong one.

David Heath (Liberal Democrat, Somerton and Frome)

I am delighted to have the hon. Gentleman's support, because he is a lawyer and I am not. I always feel at a distinct disadvantage when I attempt to deal with legal concepts.

If that were the case, my amendment would either be accepted and acceptable, or it would be redundant because it would already be the case. The Minister has argued that the amendment is not accepted, acceptable or redundant, because it would harm her intention in the original wording. Therefore, I must assume that the circumstances that I have suggested do not apply and that it is for the prosecution to establish beyond reasonable doubt that the defence is not acceptable in law. That worries me because it means that the procedure for such criminal trials is different from that of the generality of criminal trials, and that we have changed the burden of proof for these particular

defendants in a way in which we would not for other defendants in other criminal cases. We will have to return to that.

The matter is complex and I sympathise with the Minister, who is as untrained in law as I am. We are both reliant on advice from others; I do not expect her to give a definitive response today. Having looked at the record, we may both have to reflect on the matter.

Tom Harris (Labour, Glasgow Cathcart)

The hon. Member for Somerton and Frome will know that previous legislation in this Parliament has also gone into the area of changing the burden of proof. I refer to the Proceeds of Crime Act 2002.

Annabelle Ewing (Scottish National Party, Perth)

Exceptional circumstances.

Tom Harris (Labour, Glasgow Cathcart)

The Hon. Lady says ''exceptional circumstances'' from a sedentary position—of course they are exceptional circumstances. However, these are also exceptional circumstances and we have already started going down that road. We make such a change where the problems that we face seem insurmountable under the current legal framework and we have to make radical changes. I would hope that the hon. Gentleman's party would table at least one amendment that would strengthen the Bill rather than weaken it.

David Heath (Liberal Democrat, Somerton and Frome)

I believe that one strengthens the Bill if one provides for justice to be done. I am grateful to the hon. Gentleman for his contribution; at least he gets my constituency right, which is not always the case with hon. Members.

It is worrying if Government Members go down that road with open eyes, saying, ''Well, yes, we have changed the burden of proof for such cases, and we are doing so again. There are probably more cases for which we need to remove jury trial or reduce the burden of proof, because we are not getting enough prosecutions. It would be better if everyone went to prison, wouldn't it? Then we would be in a safe society.'' Illiberal Governments do that and it should be resisted by members of the legislature, who should look carefully at what Executives propose. They should take such action in the interests not only of their constituents, but of justice. That is what we are about in respect of the Bill. If Labour Members are not, it worries me. However, I do not believe that that is the case. I know the hon. Member for Glasgow, Cathcart sufficiently well to appreciate that he takes an intelligent interest in such matters, but he gave the impression that it did not matter if we just gently rubbed the edges off the justice system until we achieve what we want. Such action needs to be resisted.

Annabelle Ewing (Scottish National Party, Perth)

The Proceeds of Crime Act 2002 was referred to a moment ago, but the analogy was not a good one. The confiscation proceedings with respect of the seizure of assets obtained via illegal activities are civil proceedings. That is different from what we are discussing, which is the creation of a statutory offence. To play fast and loose with the burden of proof is not the way forward, and certainly not so in relation to the principles under Scots law. We have a separate

criminal, legal system. The hon. Gentleman's amendment No. 56 is extremely important and I am certainly happy to support it.

David Heath (Liberal Democrat, Somerton and Frome)

I am grateful to the hon. Lady. She is right. The constant confusion in the mind of the present Government between civil and criminal law and the standards of proof is a great cause for concern. I do not expect the Home Secretary to understand such matters. In his every utterance, he makes it absolutely plain that he is determined not to understand, which is one of the reasons why I advocate the establishment of a Ministry for justice to take away such matters from the responsibility of the Home Secretary. The problem is that the Lord High Chancellor does not understand such matters either. Given his background as a civil lawyer, he makes it clear that the balance of probabilities is sufficient if it provides for successful prosecutions. We have a serious problem with the Government. We want them to understand the basic legal concepts of which even a layman, such as myself, has some grasp. However, it seems that some hon. Gentlemen who are lawyers do not. Clearly, we must return to such matters.

Jon Owen Jones (Labour/Co-operative, Cardiff Central)

In defence of my colleague, the hon. Member for Glasgow, Cathcart, we share the experience of dealing week in, week out with large numbers of asylum seekers in our constituencies. Surely there is no justice in a system which is completely ineffective in separating those with reasonable and just claims for asylum from those who do not. The hon. Member for Somerton and Frome referred to a balance. That would come about by having a legal system that is fair and that works. If so many safeguards are introduced, they will ensure that the legal system is inoperable. It may not be making unfair decisions in one direction, but it will destroy the legitimacy of the asylum system itself.

David Heath (Liberal Democrat, Somerton and Frome)

I hear what the hon. Gentleman says. He prays in aid his experience. Of course, he is right. There are huge inadequacies in the present asylum and immigration system. I do not deal with many immigration cases in my constituency compared with the hon. Gentleman or the hon. Member for Glasgow, Cathcart. I will not claim that I do. However, given the number of cases with which my hon. Friend the Member for Southwark, North and Bermondsey (Simon Hughes), who previously spoke on home affairs, has to deal, we could outflank the two hon. Gentlemen combined. He would make the same arguments as I am today. Indeed, the hon. Member for Walthamstow, who has much experience in such matters, has put forward similar arguments to mine.

We do not improve administrative systems by introducing bad law. That is the crux of our argument and why we oppose the Bill. It is not because we do not want improvements to be made to the asylum and immigration system or that we do not recognise some of the problems to which the Minister alluded. It is simply that we do not think that the results of the Department's labours are an appropriate response to the problems that we face.

I do not want to take up any more of the Committee's time. I can promise the Minister that we will return to the subject in the later stages of the Bill. We will do so on Report, and I have absolutely no doubt that we will do so with still greater vigour in the other House.

Mr. Garnier rose—

David Heath (Liberal Democrat, Somerton and Frome)

Does the hon. Gentleman wish to intervene?

Edward Garnier (Conservative, Harborough)

I was hoping to catch the Chairman's eye in due course.

David Heath (Liberal Democrat, Somerton and Frome)

I was about to withdraw my amendment, so it might be better for the hon. Gentleman to intervene on me now—or perhaps I should sit down and allow him to make a contribution.

Edward Garnier (Conservative, Harborough)

If the hon. Gentleman has finished, I shall speak now. I must apologise for not catching the first part of the debate, owing to duties elsewhere. I am provoked to speak because I read amendment No. 56 before the debate and, from what the hon. Gentleman says and from a private conversation with my hon. Friend the Member for Woking, it strikes me as strange that the Government find anything objectionable in amendment No. 56. The hon. Member for Somerton and Frome is not introducing a new concept into criminal law; he is merely reinforcing the existing state of affairs.

My hon. Friend the Member for Woking said that he has already mentioned what happens when the defence of self-defence is raised in a criminal case in this country. He and I, if I may modestly say so, have some experience of trying criminal cases. Both of us are Crown court recorders, so have to deal from time to time with cases in which the defendant is required to raise an issue in order for it to be considered by the court. Self-defence is, of course, the obvious example—and the hon. Member for Somerton and Frome mentioned it—in which, the issue having been raised, it is for the Crown or prosecution to prove its unavailability as a defence on the criminal standard of proof.

The clause gives us another example of a defendant being provided with a statutory defence. Clearly, it is for him to raise the issue to show that he had a reasonable excuse. On the usual principles of criminal law—which I had hoped were universally accepted—the issue having been raised, it is clearly no good for the defendant to stand up in court and say, ''I've got a reasonable excuse''; he has to explain himself. He has to do more than simply use those words. So long as there is sufficient material upon which the court can bite, it is up to the Crown to adduce material that knocks out that defence and persuades the jury, or tribunal of fact, that that defence is not available. It must be persuaded beyond all reasonable doubt—or, as we say nowadays, ''so that it is sure''—that that defence is no longer available. That is not new.

The hon. Member for Somerton and Frome is not doing anything radical or anything that destroys the policy behind the Bill. I am happy to say that I agree with him and I want to provoke him into inviting us to vote on the issue, so that we can demonstrate where the division between civilised and uncivilised conduct lies when it comes to the discussion of matters of justice. I hope that I do provoke him, because if he is not provoked by me, I shall provoke myself into pressing the amendment to a Division, because I think that the issue is sufficiently important as a matter of principle.

We are to create new criminal offences in order to deal with things that we all accept are wrong—and we all accept that cheating the immigration and asylum system is wrong, because it damages worthy asylum seekers' applications and it brings into disrepute the whole country's immigration system. If we are to criminalise those whom we think ought to be criminalised, we should have the self-confidence to do so in a way that is just, and not to catch people unjustly under a new criminal offence.

I again apologise for not being here at the outset. It means that I have not heard what the Minister had to say in defence of the allegations that I am making. I am sure that she thinks that she is behaving in an entirely civilised and proper way. I am no longer surprised, but I am none the less shocked by some of the things that this Government do in the field of criminal law and justice. The ends do not always justify the means. If we are to maintain a reputation for being a safe haven for those fleeing despotism and tyranny, we should not undermine the very thing that reinforces our reputation: a proper justice system. If one says to a person that they can go to prison for two years for not having a document, the least that we can do is place the burden on the Crown to disprove to the requisite standard of proof. Having got that off my chest and having apologised for the third time, this cock will sit down and stop crowing.

David Heath (Liberal Democrat, Somerton and Frome)

I am glad that I allowed the hon. and learned Gentleman to make his contribution, because I now find that I have the support of two recorders and an officer of the court of Scotland. That gives me a great deal of confidence that my points are appropriate.

I am entirely unpersuaded—indeed, worse than unpersuaded—by what the Minister and her colleagues have said. The more I consider the Minister's response, the more I think that what she has said has made things worse rather than better. It is clear that this is not an error of drafting or anything other than deliberate; it is a determination to reduce the standard burden of proof in a prosecution to achieve easier prosecutions and thereby will erode the British criminal legal system. I cannot accept that.

The hon. and learned Gentleman gives me a problem. This is such an important issue that I want the advice of the House. Indeed, I am determined to have it. Dividing on this amendment this afternoon may make it difficult to do so on Report, but I am determined that we shall.

Edward Garnier (Conservative, Harborough)

It is not for me to give the hon. Gentleman advice on the procedures of this House; there are better and other sources of advice for that sort of thing. However, as I understand the position, the Speaker will not inhibit a further debate along these lines simply because we have voted on it in Committee. I am also happy to say that we are not yet a unicameral Parliament, so there is another place that should be encouraged by the stand that the hon. Gentleman, my hon. Friend the Member for Woking, my other two hon. Friends, the hon. Member for Perth and I have taken. I cannot believe that the Speaker would be advised that it was a good idea not to allow a discussion about justice in a Bill as important as this. I therefore say to the hon. Gentleman: go for it.

David Heath (Liberal Democrat, Somerton and Frome)

I am much emboldened by the hon. and learned Gentleman's advice. This is a crucial matter for us, which is why we tabled an amendment. The benefit of the debate over the past few minutes has been to emphasise the fact that this matter will not go away, which might assist the Speaker in selection at a later stage.

Question put, That the amendment be made:—

The Committee divided: Ayes 6, Noes 9.

Beverley Hughes (Labour, Stretford and Urmston)

I beg to move amendment No. 69, in

clause 2, page 2, line 24, after 'destroyed', insert 'or disposed of'.

Marion Roe (Conservative, Broxbourne)

With this it will be convenient to discuss Government amendment No. 70.

Beverley Hughes (Labour, Stretford and Urmston)

These are technical amendments that ensure that individuals who hand their passports to someone else, rather than destroy them, cannot rely on the defences set out in subsection (5). Although I believe that the drafting already allows for that, it would be nonsensical if a person who had destroyed their passport were treated differently from someone who disposed of it or handed it to someone else. It is sensible to make it plain that we intend such cases to be treated in exactly the same way. I beg to move the amendment.

Amendment agreed to.

Amendment made: No. 70, in

clause 2, page 2, line 26, after 'destruction', insert 'or disposal'.—[Beverley Hughes.]

David Heath (Liberal Democrat, Somerton and Frome)

I beg to move amendment No. 57, in

clause 2, page 2, line 28, leave out from 'offence' to end of line 36.

Marion Roe (Conservative, Broxbourne)

With this it will be convenient to discuss the following amendments:

No. 12, in

clause 2, page 2, line 33, leave out from 'application' to end of line 36.

No. 13, in

clause 2, page 2, line 34, leave out 'instructions or'.

David Heath (Liberal Democrat, Somerton and Frome)

Amendment No. 57 deals with the exclusions from the reasonable cause for deliberate destruction or disposal of travel documents. It might be helpful if I say from the start, to pace the hon. and learned Member for Harborough, that I do not intend to press the amendment to a Division. I want the Minister to consider the matter carefully. I have grave concerns about whether these exceptions can be of any value in a court of law in providing for a defence or a prosecution. Let me explain why I take that view.

Subsections 5(b)(i) and (ii) require the court to take a view about the purpose of the person involved in destroying their travel documents. How could that purpose be determined? It could, perhaps, be determined by an admission by the defendant under caution—if we are indeed dealing with a first interview under caution under the Police and Criminal Evidence Act 1984. If that person were to volunteer the information that the reason he or she had destroyed the documents was in order to delay the handling or resolution of a claim or application, or the making of a decision—or, alternatively, to increase the chances of success of a claim or application—the court could properly take the view that that was an established cause that did not constitute a reasonable cause. However, in the absence of that, we are dealing entirely with an assertion by an immigration officer or a police constable that that is what they believe might have been the person's purpose in destroying the documents. I do not think that that adds in any way to the court's consideration, under subsection (5)(a)(i), of ''a reasonable cause''. In the absence of a clear admission under caution, how would a prosecution set about establishing that the purpose was subsection (5)(b)(i) or (5)(b)(ii)?

Subsection (5)(b)(iii) deals with an important issue, which we have already touched on, when the trafficker or facilitator requires or advises the person who is entering the country to destroy the document. It is clear that additional evidence could be adduced—evidence from a third party, written material, and so forth. We have established that it would not be used when duress was involved. The unequal balance of power between the person seeking entry to the country and the person who is facilitating that entry would often constitute duress. Few people would have the economic or psychological power to resist what they are told to do by somebody who is facilitating their entry to the country.

This is where we get into difficulties with article 31 of the 1951 convention. It could be said that if, because of what are clearly identified within the scope of the

convention as being possible circumstances for a person who is appropriately seeking asylum in this country—they arrive without papers because of the circumstances of their form of transport and the fact that they have illegitimately entered the country, and part of the process of doing so was that they destroyed their travel documents on the advice of an operator—there is immediately a conflict. This proposal suggests that that then invalidates a defence that the person may have reasonable cause for destroying the documents, and it puts the Government in the position of facing a challenge about whether they are fully complying with article 31.

For both those reasons, I ask the Minister to consider carefully how these provisions could be used by the court in a valuable way, and whether they might make life even more difficult for both the prosecution authorities and the defendant, who would be deprived of what might in fact be valid arguments in their defence.

Humfrey Malins (Conservative, Woking)

I will speak briefly to amendment No. 13. I tabled it because I can foresee situations in which a defendant wants the court to be told that he destroyed his documents because he was instructed to do so. ''Instructed'' is an interesting word. The Minister might want to expand on whether it means instructed with threats, forced or encouraged. There are subtle differences between a number of terms, ranging from orders down to instructions—are they the same?—and advice given, and so forth. The defendant who wants to make that case, unless I am mistaken, finds himself precluded from doing so because it says specifically under the statute that complying with instructions given by a person is not a reasonable excuse. That would, I think, preclude him from raising the matter, which might be grossly unfair. If I am wrong about that, I will be corrected. There may be occasions when, if a person is complying with instructions—whatever instructions are—that could, or possibly should, amount to something that they can put before the court as a defence.

Edward Garnier (Conservative, Harborough)

The hon. Member for Somerton and Frome wants to delete quite a large chunk of subsection (5). Up to a point, I can see that that is not unreasonable—if I can use that adjective. If the passage in subsection (5)(b)(i), which reads

''delaying the handling or resolution of a claim or application or the taking of a decision,''

were to be permitted, it would amount to abuse of process. I cannot believe that any court would allow an abuse of process defence to destroy its purpose. To place the argument in context, the subsection says that, for the purpose of a defence under the earlier subsections,

''the fact that a document was deliberately destroyed is not a reasonable excuse for not being in possession of it, unless it is shown that the destruction was . . . for a reasonable cause''.

Paragraph (b) states that

'''reasonable cause' does not include the purpose of . . . delaying the handling or resolution of a claim or application or the taking of a decision''.

That hardly surprises me. I do not know that we need to have it spelled out that anyone who abuses the process—which, by implication, he must have accepted by making the application for asylum in the first place—and abuses the court system by which he wants his claim to be handled or judged, and then says that that amounts to a reasonable cause, is wrong. I agree with the hon. Gentleman to the extent that we do not need paragraph (b)(i).

The rest of the debate is in Hansard.