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

Public Bill Committee, 22 January 2004.

Standing Committee B

Clause 11 - Unfounded human rights or asylum claim

David Heath (Liberal Democrat, Somerton and Frome)

I beg to move amendment No. 150, in

clause 11, page 13, leave out lines 9 and 10 and insert

'entitled to reside in the State or part and that the claimant—

(a) confirms that he is within that description, or

(b) can be shown by documentary evidence to be within that description.'.

Good morning, Mr. Taylor. I welcome you to the Committee. It is also good to see the Minister of State back in her place.

The clause deals with the so-called white list. Liberal Democrat Members have serious reservations about the white list process and the change that the Government propose to that process. Our amendment is narrowly drawn. It would simply leave out lines 9 and 10 and insert a slightly crisper and more evidentially based form of words.

I shall not digress into the consequence of the clause in totality. That can be properly debated under later groups of amendments. At this stage, I shall say simply that we are seeking to put at least some constraint on the discretion of the Secretary of State to form an opinion and, on the basis of that opinion, to apply that part of the clause.

If the amendment were successful, there would have to be some substantiated evidence for the Secretary of State's opinion. It could be argued that the Secretary of State's opinion could be challenged in any case if it were held to be improper by judicial review, but I am trying to obviate that process. We should not encourage matters to be challenged in the courts. I would expect the Secretary of State to have a degree of evidence for his assertion that a person was of a particular group before making the declaration that is inherent in the operation of clause 11.

That is a brief explanation of the basis for the amendment. I hope to widen the scope of the debate under later amendments with regard to what the Government intend but what I have said so far is sufficient to introduce the debate.

Beverley Hughes (Labour, Stretford and Urmston)

Before I deal with the amendment, it may be helpful to make some general comments about clause 11. It provides for a relatively modest extension of the powers in section 94 of the Nationality, Immigration and Asylum Act 2002, under which a state or part of a state can be designated as safe if certain conditions are met. Hon. Members may

be aware that there are two tests for that. One is that there is, in general, no serious risk of persecution of those entitled to reside in the state. We are talking about that issue now, rather than a safe third country, to which the next clause relates. The other test is that removal of a person entitled to reside in the state would not, in general, contravene our obligations under the European convention on human rights.

Since section 94 came into force, 14 states have been designated by order under that provision. Those are in addition to the 10 EU accession states included in the 2002 Act, which a later amendment to clause 11 would remove. Designating a country does not mean that a person's asylum or human rights claim will not be considered on its merits. Every claim is given an individual assessment, taking account of all the facts, but if a claim is refused—this is the law we have now—it must be certified as clearly unfounded, unless the Secretary State is satisfied that it is not. Such a certification prevents a person from lodging an appeal until they have left the United Kingdom. These provisions have been working extremely well.

David Heath (Liberal Democrat, Somerton and Frome)

The right hon. Lady has just mentioned the capacity of appeal from abroad, which certainly exists technically. Will she tell me how many appeals have so far been lodged under that measure because, by March 2003, in the first two months of operation, there were no appeals at all.

Beverley Hughes (Labour, Stretford and Urmston)

There certainly have been some since, and I will get the number for the hon. Gentleman before we end this debate.

Clause 11 will enable a country or part of a country to be designated, for the purposes of section 94, in respect of a ''description of person'', where the Secretary of State is satisfied that the refugee convention and the ECHR tests that I have outlined apply to the description of person in the country in question. This provision will give us greater flexibility in respect of section 94 powers. We may not consider that the two-part test set out in the section has been met when taking all the population of a given country together, but there might be occasions when it would be useful and appropriate to designate that country with regard to a specified group of persons for whom that test is met.

New subsection (5C), inserted into section 94 by clause 11, details that to which a ''description of person'' may refer. We have listed seven specific examples of attributes or circumstances that we think are most likely to be relevant to this particular power. We have added a final category covering any other attribute or circumstance that the Secretary of State considers appropriate. We will consider that list in debates on later amendments.

Amendment No. 150 requires that, for the Secretary of State to be satisfied that a person is within one of the given descriptions, the person must confirm that, or there must be documentary evidence to that effect. I can understand the general principle that we should proceed on the basis that a person is within a given description only if we have good reason to do so. We have no intention of proceeding on any other basis. That principle is already reflected in the clause,

because it requires the Secretary of State to be satisfied that a person is within a given description—this necessarily imports a requirement of reasonableness on the part of the Secretary of State.

However, I do not think that the limitations imposed by the amendment are appropriate. I understand that the Liberal Democrats are opposed in principle to the mechanism of designating countries as safe—they opposed it in the debates on the 2002 legislation and some of the amendments they have tabled to this clause obviously underline that opposition. In fact, the operation of the non-suspensive appeal mechanism that follows from the certification power in section 94 has been phenomenally successful in reducing unfounded asylum claims from the countries concerned. In respect of the first-wave countries, the accession countries, there was a dramatic reduction in unfounded claims as a result of that measure within the first three months of implementation of the Act.

It is at this point that I would like to raise the sights of the members of this Committee from the rather forensic attention to detail that we saw in the debate on clause 10. I remind them of the other context in which we are operating. While the Opposition clearly have a duty to scrutinise the principle and the practice of the Bill, to make their points and to ensure that the provisions are operationally feasible and logistically possible, they also have an obligation to understand the context in which we are working—the fact that the vast majority of unfounded claims are fuelled by organised crime, and people are exploited by being sold a service; they are told that they can get here and that they claim support under the asylum system as a means of staying here while their claim is assessed. This situation is a huge disadvantage to people who are genuinely fleeing persecution. It undermines public confidence in the asylum system and damages race relations in the community.

I made these points at the start of our debates on the Bill, but I have to remind Members that we are trying to strike a balance. We have had to fight tooth and nail with Opposition Members to put measures on the statute book that are now showing themselves to be effective in striking that balance.

Humfrey Malins (Conservative, Woking)

Not me.

Beverley Hughes (Labour, Stretford and Urmston)

I agree that the hon. Gentleman did not oppose this particular measure in principle, although I recollect that he had some comments to make during the passage of the Nationality, Immigration and Asylum Bill. To the Liberal Democrats I simply say, in a spirit of trying to work together, that we have to remember the big picture and what we are trying to achieve here. Like some of my hon. Friends, I would like to hear some comments from Opposition Members that reflect their concern both for genuine refugees and a system that works for them and for the people whom they represent, the members of the British public, many of whom are from minority ethnic groups and whose relationship with their communities is being damaged because people do not have confidence in the system.

The limitations imposed by the amendment are not appropriate. Some examples will quickly illustrate that. Were the amendment to be passed, an applicant could simply deny that they were a man. They might look like a man but they could say that they were not, and the clause would be inoperable as most asylum seekers have no documents with them that would tell us legally that they were a man. A similar argument could apply where a person simply denied that they spoke a certain language and refused to speak. How could we make them? We have no documentary evidence that they speak that language.

The right way to approach the matter is to place a general requirement on the Secretary of State to be satisfied that a person is within a given description. That is how section 94 of the 2002 Act operates, where a Secretary of State is deciding whether a person is resident. Clearly, unless we are satisfied that that condition is met, we will not proceed. As the hon. Member for Somerton and Frome (Mr. Heath) acknowledged, a condition not being met is a matter that can be raised in court and in tribunal proceedings.

Nothing in clause 11 affects the current position that every asylum or human rights claim is considered, and will be considered, on its individual merits. Therefore, when a person is a resident of a country designated in respect of certain categories of person and fits one of those categories, their claim will still be properly assessed. The consequence of fitting one of the categories is that, if the person's claim were refused, it would have to be certified as unfounded, with the consequential impact that that would have on any appeal.

On that basis, I urge the hon. Gentleman to withdraw the amendment. I cannot accept it, and I hope he can see from some of the examples I have given that it would make section 94 and clause 11 inoperable.

David Heath (Liberal Democrat, Somerton and Frome)

It is nice to return to crisp debate and clarity of purpose. I understand exactly what the right hon. Lady is saying. As she knows, I do not agree with her. We must agree to differ.

We have serious doubts about the operation of section 94. The particular instances that she prayed in aid as areas where it would be impossible to have some identification or identification through documentation, are exactly the areas that I do not believe should be added to the clause. We have tabled amendments in a later group to remove those simply. We do not think that they are appropriate grounds for that blanket clearance.

If my amendments were taken in totality—if I dare use the word ''totality'' nowadays—the Minister would see that they are internally consistent, and that therefore the argument she advances is not appropriate. However, we must agree to differ, and there is little point pursuing the amendment further. I believe that it is an important matter, but I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

David Heath (Liberal Democrat, Somerton and Frome)

I beg to move amendment No. 151, in

clause 11, page 13, line 12, leave out paragraphs (a) and (b).

David Taylor (Labour/Co-operative, North West Leicestershire)

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

No. 92, in

clause 11, page 13, line 17, leave out 'or other'.

No. 93, in

clause 11, page 13, line 17, at end insert 'or'.

No. 94, in

clause 11, page 13, line 18, leave out from 'opinion' to end of line 20.

David Heath (Liberal Democrat, Somerton and Frome)

This is perhaps the point at which to expand the argument to discover what the Government intend to achieve through the expansion of section 94 of the Nationality, Immigration and Asylum Act and the white list. We have established that the Minister believes the white list to be a valuable aid to the administration of the system, but we are suspicious of it. I would like to believe that each asylum case is treated on its own merits before the white list is considered in proceedings, but I suspect that an asylum application from a white list country is less likely to be examined in the same way. The Minister will obviously deny that, and I have no evidence to substantiate it—it is merely my suspicion and concern.

We have always been concerned about the proposal. It is unlikely that the first tranche of EU and accession countries will pose a significant problem, and that someone from one of those countries will have a well founded claim of persecution. If that were the case, that country's continuing membership of the EU and commitment to human rights legislation would lack serious credentials, which should be brought up in another place. Therefore, I understand why fast-tracking applicants from fellow EU countries might be appropriate.

When the 2002 Act was introduced, the Government responded to our concerns by accepting that conditions in a country ought to be vetted, and agreeing to set up an independent panel to examine country information. However, before they did that, they extended the list with no benefit of advice from the panel. The Minister has already referred to the countries that were added, although not explicitly, and they are an interesting bunch. Now included in the section 94 list are Albania, Bulgaria, Jamaica, the Former Yugoslav Republic of Macedonia, Moldova, Romania, Serbia-Montenegro, Brazil, Ecuador, Bolivia, South Africa, Ukraine, Sri Lanka and Bangladesh.

I shall not question the credentials of those countries individually, but the hon. and learned Member for Harborough (Mr. Garnier) has already provided an eloquent exposition of the position of his constituent in Ecuador. However much we wish the Government of Bangladesh to succeed, we have concerns about local conditions there. There is clear evidence of human rights abuse in Ukraine. If I were a journalist in Ukraine, I would be horrified to know that I was living in a safe country according to the Home Office designation. Tell that to those journalists who have fallen foul of the president of Ukraine and have disappeared. If I were living in the main part of

Moldova, I would have little concern if I were Moldovan, but genuine concerns if I were ethnically Russian. If I were living in Transnistria, I would have little concern if I were an ethnic Russian, but serious concerns if I were an ethnic Moldovan.

Those are countries that, according to Foreign Office advice, are unsafe to travel to. I obtained the current version this morning and the list of countries to which the Foreign Office advises against all travel includes Albania and Sri Lanka, while Moldova and Serbia and Montenegro are on the list of countries to which it advises against travel unless on essential business. The Home Office is saying that those places are safe while the Foreign Office is saying that the places are so dangerous that people should not even visit them. I find those positions difficult to reconcile, so I wonder how the advisory panel on country information is operating. Does it take advice from the Foreign Office, the Department for International Development and human rights organisations? Are the countries on the list ever reviewed because circumstances change?

I have serious concerns. Clause 11 will extend the way in which section 94 can be used to include not just a country, but parts of and specific groups within it. I am not sure why that should happen. The proposition is that someone will be considered to be safe if they fall into a certain category, even if they come from a country with a current record of human rights abuse. That is an unsafe proposition to make from a distance.

Andrew Turner (Conservative, Isle of Wight)

The hon. Gentleman's argument sounds convincing at first, but could the Government be saying that a country such as Moldova is unsafe for non-nationals but safe for nationals?

David Heath (Liberal Democrat, Somerton and Frome)

Yes. I accept that there are countries where it is bad to be British or American but which are safe for their own residents. However, if a country is on the Foreign Office list, it is an indication of violence or a climate of danger, which might properly cause someone to claim asylum. That is my only point: not that someone's claim is substantiated, but that it is not clearly unfounded. We are being asked to agree that someone's claim for asylum is clearly unfounded if they come from a country to which the Foreign Office nevertheless advises people not to travel. At the very best, that is an unsafe proposition.

The Government see the provision as a useful administrative tool, but we do not agree. How often and under what circumstances are the countries reviewed? What advice does the Home Office receive before making its decisions? There seems to be a mismatch between the advice of those who are best placed to give it and the advice that is generated in this country.

Mark Oaten (Liberal Democrat, Winchester)

As my hon. Friend speaks, another point occurs to me. Is it not possible that an individual from one of the listed countries could come to this country, take a positive pro-British stance on a controversial law and, ironically, be in danger going back to that country because of that support?

David Heath (Liberal Democrat, Somerton and Frome)

I was going to come on to that point, and my hon. Friend is right. Being a member of a particular ethnic group in a country that is exercising human rights abuses is not necessarily a safeguard against being a victim of those abuses.

Let us return to the example of Moldova. I presume that Moldova is a country that may be classified in the way proposed in clause 11. People in Moldova from one racial group in one part of the country would be considered safe and those from another racial group in another part of the country would be considered safe, but they would not be considered safe in the contrary positions. What about someone who is an active campaigner for human rights on behalf of the other ethnic group? How will he prove that that is so, to the satisfaction of the Secretary of State, when he is told that he is in a safe group? That would be very difficult, but he may be genuinely in fear of his life and there may be clear evidence of abuse in that country.

Will the Minister substantiate how she intends to use the descriptions under new subsection (5C)? I could just about understand if the Minister was proposing the five reasons that are in the refugee convention. That would be logical. Asylum applicants under the refugee convention must show that they fear persecution for the reasons of race, religion, nationality, political opinion or membership of a particular social group. If those reasons were listed under new subsection (5C), although I would not agree, I could accept that there was a logic in identifying those areas, because they are the grounds for claiming asylum, from which the Minister can identify whether a country is ''safe''. She has decided not to use those five reasons, but to extend them by including gender. It has been established under case law that gender can be a social group for the purposes of asylum, so its inclusion is otiose, unnecessary and confuses matters. I believe that the case law referred to the position of women in Pakistan, although I may be wrong about the country of origin.

Language is also included. It is impossible to prove what language a person speaks or whether they are being persecuted on the grounds of speaking that language. We therefore have a nebulous concept that should play no part in the legislation. In polyglot countries, exclusively monoglot people are rare, yet the Secretary of State can ascertain that fact, form an opinion and use that information as grounds for an unfounded claim. I reject both those grounds, which is the basis of amendment No. 151.

Paragraph (f) of new subsection (5C) refers to

''membership of a social or other group''.

I question the words ''or other''. What do they mean? What does the Minister have in mind? Which groups are not social, religious, national, racial, or concerned with language or political opinion? What are those other groups which might lead to persecution and can they be identified?

Andrew Turner (Conservative, Isle of Wight)

Lawyers.

David Heath (Liberal Democrat, Somerton and Frome)

The hon. Gentleman from a sedentary position suggests lawyers. I can understand the persecution of lawyers. It is a commonly held view that lawyers should be persecuted. However, in this

instance, we are asked to assume that lawyers are not the persecuted group but the unpersecuted group, and that they have immunity from persecution. I find it hard to identify another social group other than the head of state that is immune from persecution to the satisfaction of the Secretary of State and from whom any asylum claim would be unfounded. The Minister must enlighten us.

Tony McWalter (Labour/Co-operative, Hemel Hempstead)

I am tempted not to make this point on the basis that the amendment is rather trivial. However, some states have persecuted anchorites—people who are deliberately antisocial—and that would constitute another group.

David Heath (Liberal Democrat, Somerton and Frome)

The hon. Gentleman provides the reciprocal argument to what the Minister is saying. The problem is that we are not identifying groups that can be persecuted, but those that cannot be persecuted. The right hon. Lady suggested that she could identify groups—not social groups or any of those other sorts of groups—which are not, and will not be, persecuted in a particular country. The hon. Gentleman has therefore assisted my argument by suggesting that, however unlikely that group, it might be persecuted by an Administration that determine to do so. Although he made what I think was intended to be a light-hearted intervention, he has proved the point. I should like the right hon. Lady to clarify the matter.

The right hon. Lady should also explain paragraph (h). Whenever I am a member of a Committee and we are considering a Bill that allows the Secretary of State to think afterwards of anything that they might want to think of and make it law, I reject that and will oppose it. That is not how to make law. If the Minister cannot think now of this ''other attribute or circumstance'', she should not be allowed to think later. She must come back and create law. I will not sign blank cheques for the Government in this Committee or any other. The right hon. Lady should explain what she wants from paragraph (h) and how she intends it to be used, although even after she has explained it I shall reject her explanation, so she is on to a loser.

I hope that that has explained what we intend to achieve by tabling this group of amendments. We seek to probe what the Minister's intentions are. We do not agree with the principle on which she has based the clause, but we want to understand her reasons. The Minister is particularly good at explaining what her intentions are, even when we do not agree, so I look forward with interest to her response.

Neil Gerrard (Labour, Walthamstow)

I want to comment briefly on some of the points that the hon. Member for Somerton and Frome made on the amendments. It must be acknowledged that the availability of the country information that is used by the Home Office in making decisions is vastly better than it used to be. It is now possible to go on to the internet and look at the country information that is used by Home Office officials in making decisions.

I have talked to a particular group in my constituency that had concerns about the information relating to their country of origin, and

was able to direct them to the information on the Home Office website. I then talked to the Home Office and, as a result, changes were made to that country information. When one compares that with the situation six or seven years ago, when it was impossible to see the country information, it should be acknowledged that there have been significant improvements on that front.

Humfrey Malins (Conservative, Woking)

My own experience suggests that what the hon. Gentleman says is right and there have been significant improvements.

Neil Gerrard (Labour, Walthamstow)

The questions then arise of how that information is used and how decisions are made. We have had some discussion about the quality of decision making. I have always had concerns about decisions that parts of countries are safe. That is not a new problem. Other hon. Members in the Committee have taken an interest in Sri Lanka and, over a number of years, will have seen cases in which it was decided that it was safe to return someone who was Tamil to Sri Lanka. The argument that there was fighting going on and that there was complete disruption in the north of Sri Lanka was not accepted. The Home Office advanced the argument that it was perfectly safe for someone who was Tamil to go back to Colombo, even though, at that time, there were some serious concerns about human rights abuses of Tamils in Colombo.

Some of the Sri Lankan groups in the UK were seriously concerned about Sri Lanka being added to the list of designated countries. Although talks have been going on for some time now between the Liberation Tigers of Tamil Eelam and the Sri Lankan Government it is questionable whether those talks will lead to a long-term solution and there are questions about the current political situation in Sri Lanka. As the hon. Member for Somerton and Frome said, situations in countries change. Once a country is on the designated list, there is a tendency for it to stay there indefinitely.

Finally, I should like to talk about the operation of section 94 in general and the non-suspensive appeal procedure. The hon. Gentleman spoke about evidence, and it is difficult to know how it has been operating. The 2002 Act was supposed to create the post of an independent monitor who would report to Parliament on the operation of section 94. That was done in response to concerns that were raised across the House about the non-suspensive appeal procedure. I should be interested to know when that monitor will be appointed and when he will report to us on the operation of section 94.

Beverley Hughes (Labour, Stretford and Urmston)

The hon. Member for Somerton and Frome has opened up again the debate on both the principle of designation and on some of the countries so far designated. I know that you would like me to keep to the amendments, Mr. Taylor, but I should first like to answer some of the points that have been made about that.

We need to understand first that countries are designated as safe if they meet the two tests for people entitled to reside there. As the hon. Member for Isle of Wight (Mr. Turner) pointed out, that may be different

from the advice that we would give to UK residents about whether they are safe in travelling to a certain country, precisely because they are UK residents. Secondly, the designation is for the purposes of the refugee convention and the European convention on human rights. Those are specific criteria.

That is not tantamount to saying that those countries are safe for everyone for every purpose, or that there is no crime and no potential for non-state agents to try to discriminate against people, any more than we can guarantee that every citizen of this country will be safe in that respect. The designation is very specific. It is about persecution under the convention, for the purposes defined there and in the articles of the ECHR.

Clearly, the way in which we make judgments about safety on those criteria is very important. I am grateful for the comments about improvements in the quality of country information. There is further to go, which is why we have set up the advisory panel. When I was concerned about some cases that crossed my desk I asked for the country information. I had fairly recently assumed responsibility for this policy area and, given what had been said about country information, I was surprised at the detail and depth of the package that I received from the website. It was the package used by caseworkers and contained a wealth of information drawn from a variety of independent sources across the world.

That is one source of information that we use in assessing countries for designation, but the views of the Foreign Office and others are also taken into account and the designation is kept under review. As my hon. Friend said, it is really about how the non-suspensive appeal in section 94 is operating.

The second big point is that every case is decided on its merits at the first stage; there is no presumption at that point about safety. In 2003, there were 1,260 decisions, most of which were refused and certified, but 69 were refused and not certified. In other words, we did not think there was a case but we took the view that there should be an in-country appeal and that the case should be considered in country by an independent adjudicator.

I hope that that reassures hon. Members that it is not our intention to send back those who we think may have a case. If we think that there is no case, but believe that it should be looked at, we remove the case and perhaps refuse it, but do not certify it, so people have the right of appeal here.

The hon. Member for Somerton and Frome asked me earlier about appeals, and I can now give him the figures. To the end of 2003, 155 appeals were lodged out of country. Of those, 135 have so far been heard, 133 were dismissed by the independent adjudicator and two were allowed. He may be surprised by those figures, but a substantial number of people avail themselves of out-of-country appeals, and some—albeit a small number—get through.

This is an important measure in terms of our ability not to deter people who genuinely have a case under the convention but to deter the vast majority who come here from those countries and claim asylum but

who are not the people—if there are such—who are being persecuted in those countries. They are people who have the wherewithal to pay a trafficker to get them in. That is the point we must hold on to.

Amendment No. 151 would remove the first two categories—gender and language. Amendment No. 92 would confine the sixth category to membership of a social group rather than of a social or other group, as drafted. I will come to that in a moment. As the hon. Gentleman made clear, under the amendments new subsection (5C) would mirror the refugee convention grounds, and his argument that it should is flawed, because what the convention does is the opposite of what we propose. The convention designates people who would not be safe, identifying people for whom there are grounds specified in the convention for thinking that they may be discriminated against. Our proposal is the corollary of that: identifying people who are generally safe. Therefore, the definitions are potentially wider than those of the convention and the link that he makes is not appropriate.

There is no obvious reason why the categories should be limited to convention categories, because they have precisely the opposite purpose: in the case of these countries, a much narrower group of people who we think might be discriminated against, whereas what we propose is designating people or groups of people who, because the countries are generally safe, we think would themselves be generally safe.

The hon. Gentleman should reflect, especially in relation to amendment No. 94, that the provisions also cover potential human rights claims. In listing the seven main categories in new subsection (5C) we have also had regard to article 14 of the ECHR, which relates to discrimination. Gender and language, two categories that amendment No. 151 would delete, are included in article 14.

David Heath (Liberal Democrat, Somerton and Frome)

On the grounds of discrimination.

Beverley Hughes (Labour, Stretford and Urmston)

True, but the amendment would delete them.

Turning to the case law on gender to which the hon. Gentleman referred, he may recall that the case in the House of Lords was confined solely to the position of women in Pakistan. The law clearly said that whether women were a social group in a specific country would have to be decided by known facts about that country. There will be circumstances in which the designation ''social group'' would not cover gender. We need this provision in the Bill in order to be able, if we wish, for example, to designate men in certain countries as a generally safe group, if the issue of discrimination or potential persecution relates solely to women.

The proposed change in amendment No. 92 to the sixth category would, as I have said, leave the wording very similar to one of the refugee convention grounds of

''membership of a particular social group''.

For the purposes of defining discrimination, that phrase has acquired a distinct meaning. For example, case law requires members of a group to be subject to

discrimination as a result of their membership of that group, and for all that group's members to have a shared characteristic that cannot be changed—it is ''immutable''—or that a person should not in conscience be required to change. It is very specific.

Andrew Turner (Conservative, Isle of Wight)

Yet France is on the list of safe countries, even though it discriminates against a particular social group in exactly that way by preventing them from demonstrating their religion.

Beverley Hughes (Labour, Stretford and Urmston)

It is for France to consider whether its requirement on dress is compatible with the European convention on human rights. That is not an issue for this Committee. We are considering how we can designate people as safe in particular countries in ways that will help us to refine those groups of people that we want still to be able to protect. We want to apply section 94 of the 2002 Act to them more flexibly.

To return to amendment No. 92, we consider that the definition is not appropriate for this clause, which is why we have included the phrase ''other group''. For example, if we designated a group as one for which conditions in a particular country are generally safe, it could not be said that the group was discriminated against. That group would probably not be regarded, within that narrow definition, as a ''particular social group'' within the meaning of the convention. There might be groups that are fairly readily identifiable that do not meet the so-called ''immutable characteristic'' definition of a ''particular social group'' as developed by the courts. We want the clause to cover them.

Edward Garnier (Conservative, Harborough)

Is the Minister able to give us an example of the type of ''other group'' that she is thinking of?

Beverley Hughes (Labour, Stretford and Urmston)

Yes, in doing that I shall turn to amendment No. 94. We have listed seven specific examples of the circumstances and attributes that we think most likely to be relevant. We expect to use the provision in relation to those seven examples. The list may not be exhaustive, and it is not easy to give now the sort of situations that we have in mind. For example, factors such as age, employment status and shared history may be relevant in some countries and may not necessarily be caught by the other listed examples. In seeking assurances about the way in which we shall operate, the Committee must remember that every claim will be considered on its merits. Nothing will be prejudged. For the reasons that I have outlined, I do not think that the amendments would make best use of the flexibility that the clause will offer. I hope that hon. Members are assured, by the way in which we have operated section 94 so far and the figures that I have given, that we shall continue to use the system responsibly. We shall continue to use it in a way that identifies people who do not fall into the category that we are discussing and that gives us the flexibility to ensure that we have an efficient system and can return people whose claims are not well founded.

David Heath (Liberal Democrat, Somerton and Frome)

I am grateful to the Minister for her explanation of what she proposes. She has not persuaded me, but she probably did not expect to in

the first instance. She has, however, given the Committee interesting and useful information about the operation of section 94 to date, for which I am grateful. I am even prepared to say that that information has given me some reassurance about the operation of section 94. However, she noticeably did not respond to the point made by the hon. Member for Walthamstow (Mr. Gerrard) about what has happened to the independent monitor. She may like to intervene on me to do so.

Beverley Hughes (Labour, Stretford and Urmston)

I beg my hon. Friend's pardon. I intended to respond to his point in talking about appeals. The process of appointing a monitor is almost complete, and I hope that we can make an announcement shortly. That provision in the previous legislation is in the process of being implemented.

David Heath (Liberal Democrat, Somerton and Frome)

I am glad that I allowed the right hon. Lady to intervene to make that point, for which I am grateful. However, it has taken an unconscionably long time since the enactment of the 2002 legislation to get the independent monitor in place, even though that is an essential safeguard in its operation. Many people might have had their minds put more at rest had that appointment been made earlier and had the Government shown any urgency about it.

The Minister has been at pains to stress that the clause will be used to identify areas in respect of asylum claims not on the grounds of persecution but in relation to discrimination. I would have preferred a much more narrow definition, because the provision is open to very vague descriptions that could be used inappropriately. I listened to her explanation of the other groups that she had in mind. We had difficulties finding out who those groups were. I do not know whether professional groups were at the back of her mind in one instance. Certainly, age was an issue. However, unless we have a latter-day King Herod and the firstborn are considered to be in danger, it is hard to see how there could be an institutionalised and governmental discriminatory policy that would identify particular groups on the basis of age, history or whatever, and could be identified as releasing those who did not fall within those categories from any prospect of persecution.

I am not persuaded by what the Minister is saying, but there is great merit in the fact that she is at least setting out what she is doing and having us understand why she thinks she is doing it, even if we do not agree. Having made my points, I do not think that I shall persuade her or that she will persuade me.

I continue to have concern, not about the quality of country information, but about the way in which it is applied to section 94 list countries. To have Ukraine still on the list despite what we have seen over the past few years—Council of Europe investigations into the processes of government there and well-documented evidence of, for instance, journalists disappearing—seems entirely inappropriate. If the information is applied in the same way to the new groups that will be considered for the purpose under section 94 and clause 11, that will give me great cause for concern.

I shall not persuade the Minister, but we have had a useful debate. We have covered some ground and heard information on the operation of section 94 that is of value to the Committee and the House. On that basis, 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. 129, in

clause 11, page 13, line 20, at end insert—

'(1A) In section 94(4) of that Act omit paragraphs (a) to (j).'.

David Taylor (Labour/Co-operative, North West Leicestershire)

With this it will be convenient to discuss Government amendment No. 130.

Beverley Hughes (Labour, Stretford and Urmston)

The amendment removes from the list of states designated under section 94 the 10 countries that will join the European Union on 1 May 2004. It is a regularisation and tidying-up exercise, because from 1 May, nationals of the 10 states will benefit from free movement rights under European law. Individuals from those countries are unlikely to apply for asylum after 1 May, given that they would gain no extra benefit to that to which they are already entitled under EU law.

We receive few asylum claims from nationals of existing EU states. If an EU national makes an asylum claim, appeal rights against a refusal of the claim are governed by the Immigration (European Economic Area) (Amendment No.2) Regulations 2003. They provide that there is no appeal right if, as we would expect, a claim is certified to be unfounded. There is an appeal right if the claim is refused and not certified, but that happens rarely, if ever. From 1 May, the regulations will supersede section 4 of the 2002 Act in relation to nationals of the 10 accession countries. Section 94 will no longer be relevant, hence our deletion of those states from the list.

Humfrey Malins (Conservative, Woking)

I would like to ask the Minister a question that I do not necessarily expect her to be able to answer now. If she cannot, perhaps she will write to me. From 1 May, citizens of accession countries will enjoy the rights that accompany accession to the EU. How many nationals of those countries have claimed asylum in this country over the past six months; how many have been removed from the country in the past six months; how many are the Government in the process of removing; and how many do they anticipate removing over the next two or three months? It is unnecessary to remove a raft of people who can lawfully return after 1 May. I hope that a great deal of money has not been wasted on that.

There was another matter that I wanted to raise but, strange as it is on a Thursday, I have forgotten what it is. I hope to return to it in a moment.

David Heath (Liberal Democrat, Somerton and Frome)

I associate myself with the request from the hon. Member for Woking (Mr. Malins) because removing people at this stage in the process is a ridiculous waste of money.

I have an ongoing concern about a particular class of people: the Roma living in the Czech Republic and Slovakia. Will the Minister tell us whether the flow of asylum or immigration applications from the Roma population of eastern Europe has slowed down? Does

she anticipate that it will increase under EU free movement regulations?

Beverley Hughes (Labour, Stretford and Urmston)

Certainly, there has been much inflammatory and inaccurate speculation in parts of the press about the effect of accession on the movement of people. There has been particular inaccuracy surrounding the UK's decision to allow people to come for the purpose of work from 1 May rather than to have a transitionary period. I want to make two comments about that to clarify the position.

First, all citizens of accession countries have complete freedom of movement to every other EU state from 1 May. The only purpose of movement for which existing member states have the option of a transitionary period is that of work. Hon. Members should be clear that the transitionary period that we are not applying refers only to work. People from the accession countries may move to any other country for any other purpose, if they are self-supporting for example.

Secondly, our decision not to impose the transitionary period, which we made on the basis of detailed academic research that we commissioned into what happened in the last enlargement and what we can expect with this one, is not for ever. If there are any concerns about the impact of enabling people to come to the UK for work, we can impose transitionary arrangements. Those can be blanket arrangements or imposed on individual countries. We have great flexibility in imposing transitionary arrangements if evidence supports that choice.

Humfrey Malins (Conservative, Woking)

Is there any legislative basis for the transitionary provisions that we could impose? Does existing legislation permit us to impose those constraints without the House having to pass any further legislation? What criteria would the Minister consider before deciding whether to impose constraints?

Beverley Hughes (Labour, Stretford and Urmston)

The provisions on the transitionary arrangements are in the treaty. As signatories to the treaty, and as our legislation reflects it, we may impose transitionary arrangements in accordance with it. When I introduced the relevant provisions to Parliament, I made it clear that that option would be open to us. With the Department for Work and Pensions, we will monitor the impact of people arriving from accession countries, and if we need to, we will take the action that I have outlined.

Andrew Turner (Conservative, Isle of Wight)

Before the Minister moves on, will she clarify one point? She used the words ''if they are self-supporting'' in relation to people in accession countries who have the right to go to any EU country. By ''self-supporting'', does she mean that those people will not present any burden to the UK taxpayer, should they decide to settle here, whether that is through benefits, health needs or education needs?

Beverley Hughes (Labour, Stretford and Urmston)

The position on health is different, as reciprocal agreements between EU member states provide that citizens from EU countries will be able to avail themselves within the

boundaries of national arrangements of health provision. However, people cannot move here, or to any member state, and simply claim benefits, and we are ensuring that our arrangements, including the habitual residence test, will not allow that. People may come for work, but they cannot come simply to claim benefit.

That is an important point in relation to the question of the hon. Member for Woking about removals. He asked how many people have claimed asylum in the past six months from accession countries. The number has dropped considerably, but it is still about 25 people a month. There have also been a large number of removals in those six months, as I outlined in the figures on the non-suspensive appeal process. He then conjectured that it was a waste of money and pointless to continue to process claims and try to remove people from accession countries. For precisely the reasons that he outlined, our priority is to reduce as far as we can the number of people who are here with asylum claims from the accession countries and, if their claims fail, to remove them. We must continue to do that. If someone has been here with a claim we need to be sure that that would not give them any rights to go straight into benefits under our benefit arrangements.

Humfrey Malins (Conservative, Woking)

Cannot they come back?

Beverley Hughes (Labour, Stretford and Urmston)

They certainly can, but we are seeking to prevent people who are here now on National Asylum Support Service benefit from using that as an argument for staying and going on to social security benefit. If they come back, they will do so under the terms of the treaty. They will not be eligible for benefits. They can come to reside if they are self-supporting, or they can come to work. They cannot come for benefits. It is very important that we keep that strong message going back to people. We must deter people from coming before 1 May to claim asylum because they have no basis for coming before then on any other basis.

Gwyn Prosser (Labour, Dover)

My right hon. Friend has given some important assurances this morning about possibilities for the Government to take action should the flows of people coming into the UK be disproportionate. What is the position with those people who enter in the meantime who are unable to find work and then effectively become destitute because they do not have the support of benefits? Would that become the responsibility of the local authorities?

Beverley Hughes (Labour, Stretford and Urmston)

People from those countries cannot come in freely until 1 May. If they enter the country now, presumably illegally—

Gwyn Prosser (Labour, Dover)

What about after 1 May?

Beverley Hughes (Labour, Stretford and Urmston)

Can my hon. Friend clarify the scenario that he has in mind?

Gwyn Prosser (Labour, Dover)

Large flows of people may come in on 2 May and the months that follow. The people who came in 1997 and 1998 were mostly Roma from eastern Europe. People are still anxious to leave those areas. There is still a push factor as well as an

attraction in this country. What happens if they come in, ostensibly to seek work under the new treaty arrangements, fail to find work and after six or even 12 months are still without any form of support? Our experience has been that they fall under destitution provisions, irrespective of their nationality. Someone has to pick up the tab.

Beverley Hughes (Labour, Stretford and Urmston)

We certainly want to avoid that. People are interested in coming here—our research suggests that the numbers will be nothing like the estimates given in the media—because they know that we have a buoyant labour market. It is straightforward for people who can come in legally to get jobs at much better pay than they can expect in their own countries, if they can get jobs at all there. Those people will want to work and to support themselves. That is the opportunity that they seek. Where that suits our labour market we want that to happen. I understand the point that my hon. Friend makes. I know that he speaks from experience in his constituency. I will consider that point further, if I may, outside the context of the Bill, and give him further information on our work to try to prevent the potential adverse consequences that he outlines.

The hon. Member for Somerton and Frome, who has now left unfortunately, asked about Roma applications. I will give him full details in writing. However, I made it clear in relation to the non-suspensive appeal system and its operation that there has been a dramatic fall in applications for asylum from the first-wave countries—the accession countries. That will be reflected in applications from Roma people as well as from other citizens of those countries. I hope that hon. Members will accept the amendments. Although the matter is open to wider debate on accession, the amendments are technical: we need to remove those countries from the list in the 2002 Act.

Amendment agreed to.

Andrew Turner (Conservative, Isle of Wight)

I beg to move amendment No. 124, in

clause 11, page 13, line 31, at end add—

'(4) The Secretary of State shall—

(a) cause to be maintained a record of the use of legal aid for purposes connected with this and the principal Act;

(b) regularly review the success of legal practitioners in pursuing with the assistance of legal aid cases under this and the principal Act and the extent to which they have pursued unfounded human rights or asylum claims;

(c) publish statistics on the cost and success rate of each legal practitioner; and

(d) withdraw from eligibility to receive legal aid payments practitioners who in his opinion are not achieving good value for money.'.

I apologise to the Committee, because I shall have to leave at 11 o'clock, but I hope that the debate on this probing amendment will be over by then.

There is an apocryphal story—I am sure that it is apocryphal—about the chairman of a constituency association of a well-known political party, who, seeking a candidate, said, ''No merchant bankers, no one over 50 or under 30, put a woman on the list if you must, but no lawyers.''

Mark Oaten (Liberal Democrat, Winchester)

Was it yours?

Andrew Turner (Conservative, Isle of Wight)

It was not mine. We have heard a number of stories, in particular from the hon. Member for Glasgow, Cathcart (Mr. Harris) and other Government Members, about the misuse of public funds in pushing cases that stood no reasonable chance of success. Such cases were pushed to their extremes, at the expense of the legal aid fund.

On the Isle of Wight, I do not have many asylum cases come to my surgery, but I am unusually capable of drawing conclusions from a paucity of information. I am sure that the hon. Member for Crosby (Mrs. Curtis-Thomas), who was on the ''Today'' programme this morning would sympathise with me in that.

There seems to be a feeling that the legal aid fund is deployed in many cases to defer removals, and is used for many cases that, in the words of the heading of the clause, are ''unfounded human rights or asylum'' claims. I want the Government either to say that that feeling is entirely unjustified or, if it is justified, that they will do something about it.

I shall give two examples from my own experience. Our office was rung after 10 o'clock at night—it is perhaps a tribute to my staff that they were there to take the call—by a lawyer acting for a Mr. Q, in a case that did not, at that stage, seem to be urgent, although doubtless it seemed so to Mr. Q. I am pleased to say that he and his family have been removed to Italy, but only after more than a year. The lawyer was pursuing the argument that it was unsafe for him to be removed to Italy.

Secondly, there was the case of Mr. C, who was advised by a firm of solicitors in Southampton, for whom, as far as I know, none of my constituents works, to get a letter from his MP supporting his case. I knew nothing about Mr. C, and Mr. C's lawyers, as far as I knew, knew nothing about me except what they had read in the newspapers. I was not prepared to issue a letter on the basis of a telephone call, or on the basis of advice given by a lawyer to his client that implied that he had a right to a letter from an MP, regardless of the circumstances of the case. I ask the Minister to confirm that the Secretary of State—either the Home Secretary or the Lord Chancellor—should take seriously the question of how legal aid is used in asylum and immigration cases.

Tom Harris (Labour, Glasgow Cathcart)

I have a lot of sympathy with the hon. Gentleman's case. I look forward to my right hon. Friend's response. To play devil's advocate, how would he respond to the inevitable criticism that, were his amendment accepted, there would be a case for demanding that criminal lawyers whose clients are found guilty in court should also publish records of how much legal aid has been spent on an ultimately fruitless case?

Andrew Turner (Conservative, Isle of Wight)

There may be such a case, but I do not now claim either to make it or to argue against it. The argument that I would make in favour of the amendment is that there is widespread public concern that this is a mischief that needs to be dealt with. I ask merely that the Secretary of State exercise caution in the expenditure of public money. The Home Secretary gave me some assurances on Second

Reading—I apologise that I have not brought a copy of that debate with me—that were moving in the right direction. I really wanted some bankable assurances, preferably from the Lord Chancellor, that the Government would undertake an effective value-for-money audit of the use of public funds in asylum cases and would act on the results.

Mark Oaten (Liberal Democrat, Winchester)

The amendment says that there should be published

''statistics on the cost and success rate of each legal practitioner''.

Does not the hon. Gentleman share my concern that, as with any league table, that could make some legal practitioners want to take on cases only where they are likely to be successful, so that they look good in the published statistics? That could be difficult in complex cases that look risky to lawyers not wanting to slip down the league table. Is not that a concern?

Andrew Turner (Conservative, Isle of Wight)

I accept that that is a concern, but I think that there should be more openness. People should have the opportunity to choose legal practitioners who have a success rate, rather than going to the first person who presents himself at a port of entry. There are arguments for and against.

I shall not detain the Committee any longer, but my hon. Friend the Member for Woking has just handed me the text of the Second Reading debate, so I may seek to intervene on the Minister later.

Edward Garnier (Conservative, Harborough)

I am grateful to my hon. Friend, who has given me an opportunity to underline some of my concerns—perhaps other hon. Members share them—about the Government's approach to removing asylum seekers whose claims are unfounded. As a lawyer—albeit not one who practises asylum and immigration law—I accept that there are some dishonest and bad lawyers who advance cases, in all areas of the law, that should never be brought. Happily, their number is very small indeed. The professional bodies, be they the Law Societies of England and Wales or Scotland or the Bars of England, Scotland and Northern Ireland, are strict in dealing with those who behave improperly, as a matter of professional misconduct. However, it is inevitable that some of those lawyers will be able to get hold of publicly funded cases and push them repeatedly, if the courts do not come down heavily on them.

All that I ask of the Government is that they should—not by legislation, but by practice directions through the courts—make it permissible, or, as I believe it is already permissible, make it a practice that is adopted more, for courts to be pro-active and interventionist when they come across duff cases.

If a court made a costs order against a legally aided asylum seeker whose claim was unfounded, the chances of recovering the money would be nil. The costs order should be made against the firm of solicitors or the lawyer advancing the duff case. That would introduce a financial discipline that would encourage lawyers tempted to advance such a case to

think more carefully before bringing it to court, or even taking it on.

There is nothing wrong with a lawyer telling a client, ''I'm afraid you haven't got a case. There is no evidence or law to support your case, and therefore I will not advance it.'' The lawyer who says that is a better lawyer than one who says, ''Irrespective of the merits of your case, I shall take it on and we'll give it a punt—see what happens.'' That is not a good way to advance a case of any kind, and particularly not an asylum case, in which all sorts of expectations are bound up in the equation.

I broadly applaud my hon. Friend for moving the amendment. Clearly, he does not expect me to say that its detail would necessarily translate into law. I think that there are already things that can be done by the Legal Services Commission, the body that now deals with the very limited amount of legal aid available to the public following the passing of something called the Access to Justice Act 1999—never was a law less aptly named; it should be called the Denial of Access to Justice Act, but language has taken on a whole new dimension since the present Government took office. The Government should concentrate on the imposition of discipline, through the courts and the judges. In that way they could improve the system, prevent the wasting of taxpayers' money and enhance the reputation of the legal system and the removal system.

My hon. Friend said that he received a telephone call from either a constituent or a constituent's lawyer, at 10 o'clock at night. As I understand it, the Law Society has issued guidance making it clear that it is wrong of solicitors automatically to ring up a Member of Parliament to jump a queue or to apply pressure on the court system. If there is a case, it should be advanced through the legal system.

Humfrey Malins (Conservative, Woking)

I, too, thank my hon. Friend the Member for Isle of Wight for moving the amendment. He has done the Committee a service and raised one or two interesting and good points.

On the point made by my hon. and learned Friend the Member for Harborough, the Law Society has indeed issued guidance. I was involved in helping to draft it. It is a difficult area, but it is important that lawyers should not abuse the relationships that they may develop with Members of Parliament—particularly when they stand to make financial gain and the Member of Parliament is acting without payment.

I want to reinforce my hon. and learned Friend's point about costs and ask the Minister if she can produce one or two statistics on the issue of costs awarded against a losing party in asylum cases. Specifically, in the criminal court system, if a judge thinks that a solicitor has behaved in an improper way in advancing a client's case, the judge can make a personal order for costs against that solicitor. That is done infrequently; I wish it was done more. If, in asylum cases, it is felt that a solicitor has acted improperly—such examples are pretty rare, because by and large the profession acts honourably and with integrity—is there a power, first, for the adjudicator,

secondly, for the existing tribunal, and thirdly, for the Court of Appeal, to award costs against the lawyers concerned? If so, what are the criteria that the judge or the adjudicator must take into account in imposing such a costs order? How many such orders have been awarded in the past few years and what sums have been recovered? Are the courts using the powers that they have in a sufficiently robust way, or do they need more powers? I appreciate that the Minister will not be able to respond now, but it would be interesting for the Committee to have the answers to those questions in due course.

Beverley Hughes (Labour, Stretford and Urmston)

The hon. Member for Isle of Wight is right to be concerned about these issues. I share his concern and concur with the spirit of the amendment and the remedial measures that he proposes. There is concern about the costs of legal aid in asylum cases, which have risen from just over £80 million in 2001–02 to £174 million in 2002–3. Only a relatively small part of that rise is accounted for by an increase in the number of claims at the end of 2003.

There is concern, too, about the quality of some of the work undertaken under legal aid, and about instances of duplication that came to light. That requires action, and the Department for Constitutional Affairs acted in recognition of those concerns.

The consultation document that Lord Falconer published at the end of last year proposed a variety of measures with which the hon. Gentleman will be familiar. They include a financial threshold of five hours for initial decision making; no legal aid work undertaken in asylum cases without the permission of the Legal Services Commission, which will also set financial thresholds in individual cases; accreditation for all the lawyers and caseworkers undertaking legally aided asylum work to address the quality issue; and the introduction of a unique client number to avoid duplication when people change representatives.

In addition to the powers that the Legal Services Commission already has, the measures that the Government have announced will require the Legal Services Commission to operate more robustly. The hon. Gentleman's concerns and the remedies that he proposes will be dealt with through those two routes. I hope that I have reassured him.

Mark Oaten (Liberal Democrat, Winchester)

The Minister listed the planned changes to legal aid, some of which may have merit. However, my argument is, first, that they may deter some professionals from getting involved in these cases, which may have a knock-on consequence in terms of quality, and secondly, there might be some merit in holding off some of the changes to legal aid, because the changes in the Bill are complex and will require a lot of expertise among professionals. Would not it make sense to let one set of changes bed down before putting in place another set of changes to legal aid, which could directly affect people's ability to get good, high-quality information when they will need it most: in the year ahead when these changes will take place?

Beverley Hughes (Labour, Stretford and Urmston)

I do not agree with those two points. First, the hon. Gentleman spoke about the threshold and other measures, and whether they would

deter good-quality practitioners. I have considered evidence from the consultation, and anecdotal evidence from Members who would not normally take the point of view that they have. One Member told me that legal practitioners whom she respects have told her that the arrangements are adequate, particularly for the threshold, which is the issue of concern. That view was confirmed throughout the consultation process. They told her that five hours is adequate for a good-quality adviser or lawyer, and that the arrangements for the Legal Services Commission to allow advisers to go beyond that on a case-by-case basis are adequate.

Good-quality practitioners are assured by the measures. I agree with the hon. Gentleman that we do not want to deter them, but they see that it is in their interests that the people who give the profession a bad name are deterred, and do not get through the accreditation process.

On the issue of delay—these are all important parts of the whole picture—it is important that the changes to legal aid take place alongside the measures for other parts of the asylum process, which lead up to that. It is not beyond the capacity of the profession to respond to that. Colleagues in the Department for Constitutional Affairs and in the Legal Services Commission want to proceed to implementation in conjunction with those in the profession who want to work with us. We want to work with them, as they are showing themselves to be willing and constructive in ensuring that we can implement the measures satisfactorily.

Annabelle Ewing (Scottish National Party, Perth)

In asking this question, I do not suggest that there are no problems in Scotland; there are, but not on the same scale. Will the Minister confirm that her comments on the amendment will not apply in Scotland, because legal aid is a devolved function?

Beverley Hughes (Labour, Stretford and Urmston)

It is a devolved function, and those arrangements are covered by the relevant Scottish authorities. We are talking about arrangements that apply through the LSC, which is a statutory body set up by the Access to Justice Act 1999. It is responsible for the development and administration of legal aid in accordance with its duties under that Act and directions made by the Lord Chancellor.

I say to the hon. Member for Isle of Wight that paragraphs (a), (b) and (d) in the amendment are unnecessary because the LSC already has such powers and practices under the contracting scheme. In addition to the measures that I have outlined, and partly as a consequence of them, the LSC is implementing a bid round that would exclude a significant number of poorly performing suppliers; it seeks to enter new contracts from 1 April. There will also be a new system, in which individual cases will be reviewed and checked to ensure that only meritorious cases will be able to continue with public funding.

For those reasons, it is inappropriate for the provisions in the amendment to be in primary legislation. Similar provisions regulating the way in which legally aided services are provided are contained

in regulations and contractual rules relating to the community legal service, rather than in primary legislation.

I do not think that paragraph (c) is necessary either. The Commission is committed to funding legal advice for all asylum applicants, including those whose cases are later considered unfounded, on the basis of the speed at which assessment and advice have been given prior to the decision's being made. That was made clear in the Government's statement on asylum legal aid on 27 November. We do not want to deter good practitioners; we want to work closely with them. However, we want to ensure, through these measures, that the system is robust and that less than good practitioners are not part of it, and cannot abuse legal aid.

A number of questions were asked about costs. I understand—perhaps I shall have to supplement this response with a written reply—that it is possible for the various courts to issue certificates of no merit, disallowing claims for the cost of work done when there is a view that it should not have been done. I understand that 40 certificates have been issued so far, but that the commission is seeking clarification from the tribunal that they have been properly issued. No costs have yet been disallowed, but we have to come to grips with the issue. I shall refer the matter to the Department for Constitutional Affairs.

Edward Garnier (Conservative, Harborough)

I have been listening to the Minister with interest. I largely agree with her remarks—they do not cut across any of the concerns of my hon. Friend the Member for Isle of Wight or any other observations that have been made. In my experience, we get into trouble either when inexperienced lawyers do work with which they are not familiar or when bad lawyers of poor quality do work that they should not be doing. We want to discourage those who are out of their depth or who are in the wrong area of law from practising in this area. If we seek qualified, experienced lawyers to do immigration and asylum work and pay them properly, we will attract good, bright lawyers rather than the inexperienced or the ignorant.

Beverley Hughes (Labour, Stretford and Urmston)

I agree with the general principle that the hon. and learned Gentleman outlines. That is the principle on which we are working. When good lawyers give good advice, claims are not extended and people operate within reasonable time limits because they are doing their jobs properly. That is what we want, but there is evidence, both on cost and on lack of quality and duplication, that it has not always happened.

Angela Watkinson (Conservative, Upminster)

The situation is complicated further by another group of people who offer advice in asylum and immigration cases and who turn out to be unqualified, but posing as legally qualified practitioners, or give the impression that they are such. They do not target people who are destitute, because they charge large sums and take a long time to obtain information that could be sought through a Member of Parliament within 24 hours. What advice is

available to people who need such information, to allow them to distinguish between people who are accredited and those who are not?

Beverley Hughes (Labour, Stretford and Urmston)

The hon. Lady makes an important point, and I am sure it is one that we will consider further when we discuss the powers of the office of the Immigration Services Commissioner. We have created the office to ensure that advisers are qualified, and we want to give the commissioner additional powers to weed out those who are operating illegally, sometimes under cover of some solicitors' offices.

The hon. and learned Member for Harborough made another point, repeated by the hon. Member for Woking, about guidance from the Law Society. I was slightly intrigued by his point regarding solicitors not telephoning MPs—certainly, as the Minister for Citizenship and Immigration, I have many people coming to my advice surgeries claiming addresses in my constituency which I find somewhat suspect, and I know hon. Members from many constituencies encounter many immigration and asylum cases in their surgeries. While the solicitors do not telephone me, the number of occasions on which I see people in my surgery who say their solicitors have told them to see their MP is enormous. I hardly get anybody coming to see me about an immigration case who does not say that his legal representative has told him to come and see me. I am grateful to the Law Society for the guidance to solicitors, but I wonder how many people are operating according to that advice.

Tom Harris (Labour, Glasgow Cathcart)

Is my right hon. Friend aware of any similar guidelines being issued by the Law Society of Scotland? She will, perhaps, remember a specific case where I was contacted by telephone by a solicitor whose client was a constituent of mine and who made a very genuine appeal to me, which I undertook to convey to my right hon. Friend. The outcome of that case was positive for that constituent. I would be surprised if the Law Society of Scotland were to have issued similar guidelines given that this was not an exceptional case but a typical example of approaches that are made to my office very regularly by solicitors.

Beverley Hughes (Labour, Stretford and Urmston)

Unfortunately, I cannot answer my hon. Friend as to whether the Law Society of Scotland has issued similar guidance—I shall certainly try and find out and inform him shortly. He makes the point that I was making. I would not wish to deter solicitors from contacting us—there may be situations of emergency in which a solicitor does need the advice of an MP, or in which it is in the best interests of the person to be directed to their MP—but it is happening as a matter of routine, rather than one of urgency.

Mark Oaten (Liberal Democrat, Winchester)

Does the Minister accept that there is a danger in some of the previous clauses—particularly clause 10, where we have taken away the right to appeal—that the situation may be reversed, and the Law Society may well issue guidance to the effect that people should indeed contact their MPs, because a direct approach to the Home Secretary is the only way to advance such cases?

Beverley Hughes (Labour, Stretford and Urmston)

No, I do not accept that, because those are two entirely different systems. I will not

reopen the debate on clause 10, but that is an appeal system conducted through the available legal routes and arenas, including the new single-tier tribunal, rather than through approaches to an MP, which can be influential, but are none the less outside those formal arrangements.

We have had an interesting debate, which has strayed slightly beyond the amendment, but I hope that I have convinced the hon. Member for Isle of Wight that with the existing powers of the Legal Services Commission and the further measures that the Government have announced and intend to implement, we can already deal with the issues with which the amendment is concerned, and will do so better through the new arrangements. We share the spirit of what he is seeking to achieve, but we do not believe that it needs to be done in primary legislation.

Andrew Turner (Conservative, Isle of Wight)

I thank the Minister for her response, and the facial expressions of some of her hon. Friends demonstrated their support for the general contention that we are, I think, agreed on. I am satisfied that she intends that proper measures should be taken. I hope that they will be taken—and bear fruit—swiftly, and I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 11, as amended, ordered to stand part of the Bill.

Clause 12 ordered to stand part of the Bill.

Schedule 3 - Removal of Asylum Seeker to Safe Country

Beverley Hughes (Labour, Stretford and Urmston)

I beg to move amendment No. 131, in

schedule 3, page 35, line 1, leave out sub-sub-paragraph (b) and insert—

'(b) from which a person will not be sent to another State in contravention of his Convention rights,'.

David Taylor (Labour/Co-operative, North West Leicestershire)

With this it will be convenient to discuss the following:

Amendment No. 153, in

schedule 3, page 35, line 1, leave out sub-sub-paragraph (b).

Amendment No. 154, in

schedule 3, page 35, line 26, leave out sub-sub-paragraph (b).

Government amendments Nos. 132 to 135.

Amendment No. 155, in

schedule 3, page 35, line 42, leave out sub-sub-paragraph (b).

Government amendments Nos. 136 to 138.

Amendment No. 156, in

schedule 3, page 37, line 41, at end insert

'which is a member of the European Union'.

Beverley Hughes (Labour, Stretford and Urmston)

The provisions in clause 12 and schedule 3 replace and extend those in sections 11 and 12 of the Immigration and Asylum Act 1999. The amendments to schedule 3 deal with human rights claims in cases where applicants can, without substantive consideration of their asylum claim, be removed to a safe third country of which they are neither nationals nor citizens.

The provisions in schedule 3, and the various groupings that will result in practice, are very technical matters. Basically, however, the provisions in clause 12 and schedule 3 will facilitate the removal of asylum seekers to safe third countries where their asylum claims should properly be considered. The intention is to reduce the circumstances in which removal to safe third countries can be frustrated or delayed by unmeritorious claims about treatment in, or removal from, those third countries.

As regards the potential to make human rights claims, the general effect of the Government amendments is that schedule 3 will more closely mirror the approach taken in the safe country of origin provisions in part 5 of the 2002 Act. However, the amendments also recognise the particular status of those European countries that take part in implementing the Dublin arrangements, under which responsibility for asylum seekers is determined, and the supporting Eurodac database of fingerprint images, which is used to match images and ascertain whether someone has already made an asylum claim in another European country. The Dublin 2 regulation, which is a development of the original convention agreement, has introduced shorter procedural time limits for action on transfers. It does so on the basis of our shared commitment, as European countries, to dealing with the potential for what might be called asylum shopping—going from one country to another—and for the abuse of asylum mechanisms, which are undermined by the unmeritorious challenges that I mentioned.

As a result of the Government amendments, the schedule will contain four categories of country—not three, as originally proposed—and I shall set them out so that hon. Members can understand them. First, individuals who are removed to one of the states listed in part 2, all of which will participate in the Dublin mechanism after enlargement, will have no scope to challenge their removal on refugee convention grounds. Those countries will be deemed safe on refugee convention grounds.

In addition, the listed countries are deemed safe on human rights grounds only in the limited sense that they would not remove an asylum seeker to another country in contravention of article 3 of the ECHR—the narrow, so-called refoulement issue. For that group, any other ECHR challenge to removal will be certified, unless the Secretary of State is satisfied that the claim is not clearly unfounded. Such challenges could be based on article 3, in that the applicant could face inhuman or degrading treatment in that safe third country, or on article 8, in that removal from the UK could interfere with his or her private life. Judicial review is also possible on those grounds.

The amendments create a second, new group, in part 2. If removal is to a safe third country in that group, there is similarly no scope for challenge on refugee convention grounds. However, as states on that list will not be party to the Dublin arrangements, there will be no automatic safety provision relating to onward removal in breach of article 3. Instead, all human rights challenges to removal will be certified as

clearly unfounded, unless the Secretary of State is satisfied that they are not. In other words, the Secretary of State is required to certify on all human rights challenges.

Since the amendments split the first group into two, giving four groups in total, the third group of countries corresponds to the original second group in part 3 of the schedule as drafted. If removal is to a country in that group, there will again be no scope to challenge that removal on refugee convention grounds. To continue the graduated theme, however, there would be a case-by-case consideration of any ECHR challenge, to see whether the claim could be certified as clearly unfounded. That is a different approach to consideration of ECHR challenges. The fourth group, in part 4, corresponds exactly to part 3 of schedule 3 as drafted and provides for a case-by-case consideration of both the refugee convention and ECHR challenges to removal, to see whether they could or should be certified. Finally, the amendments align the order-making powers to add and remove countries with the established provisions on safe countries of origin in part 5 of the 2002 Act.

I appreciate that trying to work out what is in the schedule, what the amendments do to it and what that means in practice is complicated. As I have tried to explain, we are attempting to acknowledge that not all countries are the same in relation to potential human rights claims. We can have a graduated approach on a statutory basis to how we deal with human rights claims from the countries listed in the existing part 2 that are party to Dublin. We can make safe assumptions about how those countries would deal with a person who was removed to them with relation to article 3 and potential removal onwards. In other words, we can assume that they will not remove somebody in breach of article 3. Following from that, we take a progressively more cautious approach, in relation to the other groups of countries, to how human rights challenges may be dealt with under the law. The amendments split the initial first group into two, to ensure that, with the new second group of people, all human rights claims are subject to certification if a non-suspensive appeal is to apply.

Edward Garnier (Conservative, Harborough)

Paragraph 5(4) applies if

''the Secretary of State certifies that the claim is clearly unfounded''

and amendment No. 134 will add further words to that. Is the certification by the Secretary of State judicially reviewable, or is it caught by removal of appeal or judicial oversight provisions earlier in the Bill?

Beverley Hughes (Labour, Stretford and Urmston)

No. In relation to the provisions that I have outlined for the first group of countries and a human rights claim, if a claim is in connection with the view that the safe third country may breach article 3 by moving a person on to an unsafe country—the refoulement issue—there would not be a JR provision for that. Countries are deemed safe only under the limited provision of article 3 in relation to onward removal. For all other human rights claims and for all groups described in schedule 3 there will be a judicial

remedy. Provisions in clause 10 expressly exempt those areas from having the JR appeal process removed.

I shall refrain from comment on the non-Government amendments now to allow the Opposition to air their views, but I shall deal with them when I sum up.

Humfrey Malins (Conservative, Woking)

I have a couple of questions for the Minister, and I shall keep them brief. So far as the list of countries in part 2 of schedule 3 is concerned, we have a protection whereby any country to be added to the list must be laid before Parliament for a resolution. However, I am concerned about the position described towards the end of the schedule. The Secretary of State can satisfy himself that it is necessary ''by reason of urgency'' to make an order without complying with that provision—I hope that I have understood the schedule properly. In other words, in urgent cases the Secretary of State can bypass Parliament entirely if he or she thinks that that is a good thing to do. I am sorry to see that potential for bypassing Parliament. What are the circumstances in which the Minister foresees the need to exercise that power?

My only other point is that the Select Committee on Home Affairs had something to say about these matters in its report on the Bill. The Home Secretary has obviously read those views carefully, and the Minister will be interested to hear them. If members of the Labour-dominated Home Affairs Committee are present, they might want to raise these issues with the Government. The Minister will remember that the Committee said:

''if the Secretary of State wishes to add further countries to the list . . . , he should append a written memorandum to the relevant Statutory Instrument, explaining the rationale for believing those countries to be safe.''

It also said:

''We also recommend that the Government should make a clear statement of the circumstances which might trigger a decision to seek parliamentary authority for the removal of a country from the list of 'safe third countries'.''

It went on:

''In particular, we expect that satisfactory mechanisms will be set up within Government to keep the human rights situation in 'safe third countries' under review, so that they do not remain on the list if that situation significantly deteriorates and they cease to be safe.''

I hope that the Minister can deal with those matters at some stage.

Mark Oaten (Liberal Democrat, Winchester)

These are complex issues, and the Minister has gone some way towards explaining and putting into context the Government's proposed changes. I think that I understand her approach of having different tiers, but it is still my understanding that, under the provisions, the protection allowing an asylum seeker to challenge their removal to a third country on the basis that their human rights were being breached would be removed. However, I accept that that does not apply for all countries. For some of them, that safety mechanism will be kept in place. Still, it is to be removed for removal to those third countries on her first list. That causes me concern. Our amendments would remove that element of the Government's proposals and put back in the Bill the ability to appeal on human rights grounds. That is important for a number of reasons.

I know that the Minister has dealt with this matter to some extent, but the House of Lords has certainly ruled that the right of appeal is necessary. It is important to retain it if we are to meet our obligations under the European convention on human rights. The Government say that we can still meet our obligations; the Minister argues that, in her first category, there would be no breach of our obligations, because we are listing 26 countries for which we do not believe that that obligation should be identified. I welcome her clarification on that point.

A layman could assume that the first wave of countries that the Government listed are safe, and I guess I buy the argument that it is hard to perceive circumstances under which someone could make a claim about their human rights in relation to that list of countries. However, the president of the Immigration Appeal Tribunal said when consulted on the measures:

''However good a country's human rights records may be, it is difficult to see that there could not be scope for an individual to show that he or she is individually at risk.''

It is interesting that even though we may assume certain things about those countries, the president of the IAT still believes that there should be a mechanism allowing a person removed to one of those countries to make a case about their circumstances. My reading is that the Government will be doing away with the individual's ability to make that case.

It is hard to think of examples. I will be perfectly honest and argue against myself: the examples that we have been given by the lobbying organisations are not clear to me. They quoted, for example, a lack of available medical care in the third country to which the person is told to go back. To a greater extent, I buy the argument that there may be family circumstances that mean that there is a difficulty in going back to a country, and that could be a breach of a person's rights; there are some issues there. The case that I buy most is that a country on the list of 26 may take a different approach in its interpretation of the human rights convention. I am thinking particularly of some of the accession countries. Is there not a danger that we could send someone back to one of the countries on that first-wave list, without giving them the right to appeal against that decision, and discover that that country had a different interpretation of the convention from us? That could still be a danger among the first wave of countries.

Even if the Minister does not buy any of those arguments, there is still the provision for the Home Secretary to prevent an appeal when he does not believe that there is any merit. There is already a system whereby he can intervene if he believes that a person is trying it on, for want of a better phrase. With that safeguard, I do not understand why the Government want to take away the rights currently in place. I hope that the Minister can give me some reassurance on the concerns that I have raised, especially regarding the different interpretation of the convention in the 26 countries. I hope that the Minister will reconsider these issues.

Neil Gerrard (Labour, Walthamstow)

This is quite a technical area, and I want to be sure that I am clear about what the schedule proposes. The Minister explained that there is a gradation, starting with countries on the list in part 2 and working gradually into new part 2A and part 3, which suggests that the countries in part 2 are the safest. I am not sure how that relates to part 4, which deals with countries certified as safe for an individual. If I read part 4 correctly, it would almost not matter what countries were on the list in parts 1, 2 and 3, because it would be possible to use part 4 in an individual case. That concerns me.

Will the Minister comment on that and on the relationship between part 4 and parts 1, 2 and 3? I understand the argument about gradation, but I am not clear about how part 4 fits into that or how it is possible to pick an individual and certify a particular country for that individual.

Beverley Hughes (Labour, Stretford and Urmston)

I will deal first with the Opposition amendments, and then pick up some of the points that have been made.

Amendments Nos. 153 to 155 relate to the human rights provisions applied to the first list of countries that the hon. Member for Winchester (Mr. Oaten) and I discussed. The amendments would return to the provisions in section 11 of the Immigration and Asylum Act 1999 by limiting the deemed safe concept to refugee convention aspects. As I said, the Government amendments split the first group into two. In the new first group, which I believe is the group that he is talking about, it is not the case, if this is the misapprehension, that all the human rights challenges possible would be deemed safe, and therefore not have to go through the certification process that is required by law of the Secretary of State before a non-suspensive appeal mechanism could be applied. It is simply the very limited challenge that someone could make, that removal to the safe third country would be in breach of article 3, because they could not trust that country to exercise its obligations under the ECHR and not move them on to somewhere that was unsafe.

All other possible human rights claims and ECHR challenges, in relation both to any concerns about treatment inside the third country, including any article 3 concerns, and to any claims in relation to the situation of the person in the UK—article 8 on family issues—would have to go through the certification process that applies now under the law, in that the Secretary of State could remove that person only if he was satisfied that the claim, having been refused, was clearly unfounded. It therefore does not change the situation in relation to any other possible ECHR challenges, apart from that very narrow claim that it would be in breach of article 3 because that country might not properly meet its ECHR obligations and not remove the person to somewhere that was not safe. We believe that to be reasonable, because removal to countries on that list would take place within the context of a specific EU legislative framework—Dublin 2—and because claimants in those states will have access to remedies under the ECHR in those states, and also under general EU provisions. In order to get this clear in my head, I set it

out diagrammatically to show the gradations, and I am satisfied with our proposals. I shall not pass this diagram round the Committee, given what happened to the last one. In any case, it is in my own handwriting—I have not even had it typed up. If it would be helpful to have it made into a chart and circulated to the Committee, I should be happy to do that on the record in correspondence.

Mark Oaten (Liberal Democrat, Winchester)

It would be enormously appreciated if the Minister were to send the diagram around the Committee in that way. So that I can be clear in my mind, is she arguing that an interpretation of the conventions in Slovenia or the Slovak Republic would be essentially the same as such an interpretation in this country?

Beverley Hughes (Labour, Stretford and Urmston)

On the limited issue of whether those countries would be likely to act in breach of article 3, for the reasons that I have outlined, any European country removing someone to them under Dublin 2 would then be likely to be in breach of article 3. These are all countries that, under Dublin 2, will have fully to operate the ECHR. On the specific issue, we believe that the Dublin regulations and the EU legislative framework that surrounds them, assure us that we can deem all those countries to be safe. For all other aspects of potential human rights claims, our legislation will require the Secretary of State to certify the cases as clearly unfounded.

Mark Oaten (Liberal Democrat, Winchester)

I am almost convinced on this, but I shall give a scenario. If this happened, and it turned out that the interpretation was not as the Minister had envisaged in one of those third countries, could that then be grounds for appeal for a future case? An individual could say, ''Look, somebody went there a year ago and there was a completely different interpretation. All the protections we thought would be in place did not happen.'' Could that then be grounds for a future appeal, to demonstrate that the safeguards that we thought were in place in those countries were not, in fact, in place?

Beverley Hughes (Labour, Stretford and Urmston)

If we had evidence that a country was not operating to the letter of the human rights convention, I think that that would mean that we would consider the provisions of part 2 of schedule 3 and the inclusion of that country on the list. I shall take advice on that, and if I need to correct or embellish my answer, I shall write to the hon. Gentleman. For refugee convention purposes and for the narrow human rights issue, we are deeming all those countries to be safe. If there was evidence that one was not safe for this purpose, we would consider that and amend the legislation. I am grateful for the Committee's patience on this issue: I realise that it is very technical and complicated.

Turning to the question from the hon. Member for Woking about adding countries to the list, amendments to the order-making power will be by affirmative resolution. He also raised the issue of the provisions for that to be bypassed in emergency cases. Government amendment No. 138 removes that, and we can add only by affirmative order. If we—

It being twenty-five minutes past Eleven o'clock, The Chairman proceeded, pursuant to Sessional Order D [28 June 2001 and 6 November 2003] and the Orders of the Committee [6 and 13 January 2004], to put forthwith the Question already proposed from the Chair.

Amendment agreed to.

The Chairman then proceeded to put forthwith the Questions necessary to dispose of the business to be concluded at that time.

Amendments made: No. 132, in

schedule 3, page 35, line 27, leave out

', because of circumstances of or relating to that State,'.

No. 133, in

schedule 3, page 35, line 29, at end insert

'because of the possibility of removal from that State to another State.'.

No. 134, in

schedule 3, page 35, line 33, at end insert

'; and the Secretary of State shall certify a human rights claim to which this sub-paragraph applies unless satisfied that the claim is not clearly unfounded.'.

No. 135, in

schedule 3, page 35, line 42, leave out sub-sub-paragraph (b) and insert—

'(b) from which a person will not be sent to another State in contravention of his Convention rights,'.

No. 136, in

schedule 3, page 35, line 46, at end insert—

Second List of Safe Countries (Refugee Convention and Human Rights (2))

6A (1) This Part applies to such States as the Secretary of State may by order specify.

(2) An order under this paragraph—

(a) shall be made by statutory instrument, and

(b) shall not be made unless a draft has been laid before and approved by resolution of each House of Parliament.

6B (1) This paragraph applies for the purposes of the determination by any person, tribunal or court whether a person who has made an asylum claim may be removed—

(a) from the United Kingdom, and

(b) to a State of which he is not a national or citizen.

(2) A State to which this Part applies shall be treated, in so far as relevant to the question mentioned in sub-paragraph (1), as a place—

(a) where a person's life and liberty are not threatened by reason of his race, religion, nationality, membership of a particular social group or political opinion, and

(b) from which a person will not be sent to another State otherwise than in accordance with the Refugee Convention.

6C Section 77 of the Nationality, Immigration and Asylum Act 2002 (c.41) (no removal while claim for asylum pending) shall not prevent a person who has made a claim for asylum from being removed—

(a) from the United Kingdom, and

(b) to a State to which this Part applies;

provided that the Secretary of State certifies that in his opinion the person is not a national or citizen of the State.

6D (1) This paragraph applies where the Secretary of State certifies that—

(a) it is proposed to remove a person to a State to which this Part applies, and

(b) in the Secretary of State's opinion the person is not a national or citizen of the State.

(2) The person may not bring an immigration appeal by virtue of section 92(2) or (3) of that Act (appeal from within United Kingdom: general).

(3) The person may not bring an immigration appeal by virtue of section 92(4)(a) of that Act (appeal from within United Kingdom: asylum or human rights) in reliance on an asylum claim which asserts that to remove the person to a specified State to which this Part applies would breach the United Kingdom's obligations under the Refugee Convention.

(4) The person may not bring an immigration appeal by virtue of section 92(4)(a) of that Act in reliance on a human rights claim if the Secretary of State certifies that the claim is clearly unfounded; and the Secretary of State shall certify a human rights claim where this paragraph applies unless satisfied that the claim is not clearly unfounded.

6E A person who is outside the United Kingdom may not bring an immigration appeal on any ground that is inconsistent with treating a State to which this Part applies as a place—

(a) where a person's life and liberty are not threatened by reason of his race, religion, nationality, membership of a particular social group or political opinion, and

(b) from which a person will not be sent to another State otherwise than in accordance with the Refugee Convention.'.

No. 137, in

schedule 3, page 36, line 2, leave out 'SECOND' and insert 'THIRD'.

No. 138, in

schedule 3, page 37, line 39, leave out paragraph 15 and insert—

'15(1) The Secretary of State may by order add a State to the list specified in paragraph 2.

(2) The Secretary of State may by order—

(a) add a State to a list specified under paragraph 6A or 7, or

(b) remove a State from a list specified under paragraph 6A or 7.

16(1) An order under paragraph 15(1) or (2)(a)—

(a) shall be made by statutory instrument,

(b) shall not be made unless a draft has been laid before and approved by resolution of each House of Parliament, and

(c) may include transitional provision.

(2) An order under paragraph 15(2)(b)—

(a) shall be made by statutory instrument,

(b) shall be subject to annulment in pursuance of a resolution of either House of Parliament, and

(c) may include transitional provision.'.—[Beverley Hughes.]

Schedule 3, as amended, agreed to.

Clauses 13 and 14 ordered to stand part of the Bill.

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

Standing Committee B

Clause 15 - Electronic monitoring

Mark Oaten (Liberal Democrat, Winchester)

I beg to move amendment No. 165, in

clause 15, page 16, line 1, after 'comply', insert 'without good reason'.

Marion Roe (Conservative, Broxbourne)

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

No. 166, in

clause 15, page 16, line 3, at end insert—

'(2A) Where the reason given for an alleged breach in subsection (2)(b) above is not accepted by the person imposing the restriction—

(a) the monitored person shall have seven days to make representations to a Chief Immigration Officer, and

(b) the Chief Immigration Officer shall make a decision to continue, vary or revoke requirements including a decision to detain under this section only after having carried out a review and given written reasons for that decision.'.

No. 169, in

clause 15, page 16, line 13, at end insert 'necessary and reasonable'.

No. 172, in

clause 15, page 16, line 40, leave out 'may' and insert 'shall'.

No. 173, in

clause 15, page 17, line 2, leave out 'and'.

No. 174, in

clause 15, page 17, line 6, at end insert

', and

(c) must not impose a disproportionate restriction on the liberty of the individual.'.

Mark Oaten (Liberal Democrat, Winchester)

I welcome you to this afternoon's sitting, Mrs. Roe. I do not intend to detain the Committee for long on these amendments. They are probing amendments designed to find out the Government's intentions for electronic tagging. In keeping with the spirit of co-operation from the Minister, I accept that I cannot have my cake and eat it.

If we had had a chance to debate clause 14, I would have pointed out that I prefer the forced removal process to some of the Government's suggestions as laid out in clause 7. I do not have difficulties with the suggestions in clauses 14 and 15. There should be greater use of electronic monitoring, or tagging, in the general criminal justice system as an alternative to sending people to prison. I have no problems with the Government's intentions, but I want to highlight concerns, and I hope that the Minister can provide clarification.

I remind the Committee that we are discussing the possibility of tagging—I shall call it that rather than electronic monitoring because it is easier—for people who have not been convicted of a crime. It is important to establish and to recognise that there is a difference between the conventional use of tagging and the forms of tagging being suggested in this case. Will the Minister clarify in what situations the Government would suggest using tagging? For example, how often does she think that tagging will be used for residence restrictions, reporting restrictions, or to enforce conditions of immigration bail? Tagging could be acceptable for use in some scenarios more than others, such as reporting restrictions.

Have the Home Office considered alternatives to tagging? For example, voice connection would be a sensible way to achieve the same aim without using tagging. A requirement to phone in using voice recognition technology—a recognised form of technology—might achieve the same aim. Similarly, we could employ the kind of tagging used for home curfews, for example, between 7 pm and 7 am, rather than full conventional tagging. Is the Minister suggesting a move to new forms of technology, such as satellite tagging, which could track down and trace individuals 24 hours a day?

As I said, these are probing amendments intended to establish in which categories the use of tagging is envisaged, and to ask whether forms of technology other than full tagging could achieve the same aim.

Finally, powers exist under immigration law to allow the Home Secretary to detain individuals if there are extreme concerns. What does the Minister intend to achieve through the powers in clause 15 that could not be achieved through existing powers of detention?

Neil Gerrard (Labour, Walthamstow)

I want to speak briefly on the points raised by the hon. Gentleman and how the powers in the clause may be used.

The clause uses slightly different phrases on residence and reporting, referring to where

''a residence restriction is imposed on an adult''

and where

''a reporting restriction could be imposed on an adult''.

The second provision seems wide. When someone is given temporary admission, the IS96 form issued to them will almost always include a requirement for that person to report to an immigration officer at a particular time and place. That is now common.

The question is how widely the power will be used and whether the intention is to use it, in some cases at least, as an alternative to detention. The Government's policy in recent years has been to increase the size of the detention estate, with the obvious implication that more people will be in detention, or do the Government envisage the restrictions being used in addition to detention? It will be interesting to hear the Minister's views on the extent to which and the cases in which the power will be used and the relationship between its use and detention.

There is also the question of age. Subsection (7) defines adult as

''an individual who appears to be at least 18 years old''.

It would help to have some clarity on that point and on how it is intended that the power will be used.

I echo the hon. Gentleman's comments about the criminal justice system. Like many of us, the Home Secretary has made it clear that he wants fewer people in prison in general and that we should be looking at alternatives to prison. With that in mind, I will be interested to hear whether the Minister views the power in the clause as an alternative or addition to detention.

Humfrey Malins (Conservative, Woking)

I want to make a few random comments and to ask a few general questions on the group of amendments on the basis that I shall not try to catch your eye on any stand part debate, Mrs. Roe. I have only a little to say.

There are two purposes of electronic tagging in the criminal justice system. The first is to establish where a person is at the material time, and the second is to ensure that, at the material times, they are not free to commit crimes. When bail and sentences have been considered in the criminal justice world, tagging has by and large been something of a success. I planned to ask the Minister how many people she envisages being electronically tagged under the clause and what the total cost will be. However, she could rightly reply that tagging is an alternative to custody, which is even more expensive, so it may save money. Tagging is an alternative to custody for the criminal courts and is to be applauded because it does not involve deprivation of liberty.

At the beginning of a criminal court process, the court and police must consider bail. A recent change has been that, in addition to a judge or magistrate, a policeman can grant bail. Police bail can carry certain conditions, including one of residence, or a doorstep condition, which means that someone must answer the door when it is tapped on at night to prove that they are there. Courts and police take bail very seriously.

Tagging will have a role in the immigration world, but someone, somewhere will have to take a decision about who will be tagged and in what circumstances. Will the Minister say a little more about that? Does she envisage an asylum applicant appearing before, say, a district judge? Will such a judge, in his or her court, or lay magistrates have a power to impose a tagging condition on an asylum seeker? I doubt it because, by definition, people appearing in those courts have committed a criminal offence, and the asylum seeker has not. I do not see how the asylum seeker would find his or her way to a district judge or magistrate in relation to either the imposition of a tagging condition or an appeal against one. However, I should be glad of confirmation of that. I suppose that a person will be tagged on the instructions of an immigration officer or a Home Office official. Again, perhaps the Minister could say more about that.

The age point raised by the hon. Member for Walthamstow (Mr. Gerrard) is fair. I think that a case

involving the London borough of Merton in 2003 had something to say about who decides how old a person is. Tagging is meant to be for over-18s. Under the clause, someone is over 18 if they appear to be over 18

''in the opinion of a person who . . . imposes a residence restriction''.

Who will have that opinion, and is there any back-up? I think that, in the Merton case, the court said quite clearly that, whatever the Home Office said about someone's age, in truth the local authority should rely on its own inquiries, possibly involving a paediatrician or whoever, to make it plain what the age was. The question of age is interesting.

We should like just a little more explanation of cost, numbers, who will impose the measure, and age. That said, any right-minded person will broadly welcome the clause, not least because by doing so we may be ensuring that more people have their liberty than might otherwise be the case.

Tom Harris (Labour, Glasgow Cathcart)

Following the contributions by the hon. Member for Woking (Mr. Malins) and by my hon. Friend the Member for Walthamstow, can my right hon. Friend the Minister offer some clarification of the clause? The prospect of asylum seekers being tagged has been welcomed in some parts of the community as an alternative to detention. There is inevitably controversy over the Government's continued policy of detention in a very small minority of cases.

I believe that the policy is correct, even when it means having to detain whole families, including children, provided that the periods of detention are as short as possible. However, I think that we all recognise the political difficulties arising from genuine concerns about children who, for one reason or another, are detained with their parents for longer than any of us would like. Perhaps the Minister can say that tagging will be used as often as possible as an alternative to detention specifically with regard to families with children.

That suggests another problem, which follows on from the points made by my hon. Friend the Member for Walthamstow last week or early this week. One justification for not separating families in detention is that, if children are placed in the community but the parents are in detention, they could be tempted to judge that they would rather their children remain in the community and the country, even if they themselves are to be deported. The fear is that they would use their children's separation from them as a way of either postponing their own deportation or ensuring that their children had a better quality of life than they would have when they returned to their homeland.

Will the Minister comment on how the Home Office is considering approaching that issue? Will there be circumstances in which the Government may decide that tagging is unsuitable for a family currently in detention because of information received about their motivations or history? Alternatively, will they decide that all families with children who are in detention will be suitable in all circumstances for some form of electronic tagging?

I should also like to know how long such a tagging regime would continue. We are reassured by the Government that families or individuals are placed in detention only when their removal is imminent or there is some dispute about their identity. That is the case with the Dungavel detention centre in Lanarkshire. Will there be a similar time restriction on electronic tagging, will people be tagged indefinitely or for what some would consider unjustifiably long periods? With those reservations, like the hon. Member for Woking, I generally welcome the clause.

Beverley Hughes (Labour, Stretford and Urmston)

Before dealing with the amendments, I should like to set out the aim of clause 15. Clause 15 makes provision for the electronic monitoring of persons subject to immigration control who are at least 18 years old in the following circumstances: where a residence restriction is imposed; where a reporting restriction could be imposed and where immigration bail is granted subject to a recognizance or a bail bond, except where bail is granted by a police officer or in the special circumstances of the Special Immigration Appeals Commission. Therefore, it would include bail issued by a chief immigration officer—it can only be by a chief immigration officer where detention would otherwise be considered—or by an adjudicator within the immigration process.

Persons subject to electronic monitoring in accordance with these provisions are obviously required to co-operate with arrangements for detecting and recording their location at specified times, during specified periods. The hon. Member for Winchester (Mr. Oaten) asked about alternatives. As he rightly said, the electronic means employed in connection with such arrangements could include voice recognition technology, the use of a tag to confirm a person's presence in or absence from a specific location, perhaps at a specific time and, when technology develops, tracking someone to monitor their whereabouts continuously.

We intend eventually to pilot all three types of electronic monitoring. They potentially have the ability to respond to different levels of risk in relation to absconding. As the hon. Gentleman said, the voice recognition technology uses biometric voice recognition software to facilitate reporting over a telephone from a fixed landline from a fixed address at a notified time. We could use that technology to obviate the need for people to report physically to a centre on a weekly basis. We would obviously specify a particular hour—there would be some flexibility—for them to ring in and to have their voice and location checked.

Tagging involves wearing a bracelet similar to a wrist watch, which emits a signal to a receiver at the subject's home address. We may require a subject to be at home for a particular hour in the week, or more frequently for people who present other kinds of risk to confirm that they are complying with a residence restriction. That would again serve in lieu of physical reporting.

Tracking involves using global positioning satellite technology to pinpoint the whereabouts of a subject on a continuous basis, and is of a different order. That technology is in its infancy. However, we seek the powers to be able to use it in the future, if and when it becomes available on a practical basis.

Tagging will allow those at the lower end of the risk spectrum, who would otherwise have to be detained or would have to report on an onerous basis, to be monitored electronically in other ways. That will free detention space for those whom we believe present a higher risk of absconding. Hon. Members will see that it will be potentially efficient both for the immigration and nationality directorate, and for some of the people whom we would otherwise require to report regularly. The intention is to use the provision in cases in which there is a risk of absconding, but in which we assess that that risk can be managed by electronic monitoring.

I now turn to some of the other points raised by hon. Members. I think that I have answered the questions raised by the hon. Member for Woking about who can grant the bail and issue the reporting restrictions for which electronic monitoring could be a substitute. In practice, although the clause mentions imposition, we can use the measures only with the consent of the people concerned, because if they do not consent to it, there is no point in using it. Detention would, however, be the only alternative for some people, and that would act as an incentive for them to consent to electronic monitoring.

The hon. Gentleman gave the example—I think that he answered his own question—of people appearing before district judges or lay magistrates. That would occur in criminal circumstances. They would therefore be subject to a completely different set of arrangements with regard to whether the sentence for any criminal offence included the possibility of tagging after a prison sentence.

The hon. Gentleman mentioned cost and numbers. My hon. Friend the Member for Glasgow, Cathcart (Mr. Harris) asked how the provisions would operate with families. It is difficult for me to give estimates of cost and numbers. We want to pilot the mechanisms gradually. However, where we believe that there is potential to use the measures extensively to avoid the expensive use of detention, we will do so, and will retain detention for higher-risk people.

The question of families raises some difficult issues, and I would like to consider those further. My hon. Friend raised some important points. When we consider a family, it is, by definition, a group of people. I would like to think that some of the few families who would otherwise have to be detained could be considered for electronic monitoring. However, the risk assessment is more complex, because of the potential for the family to split up if they are in the community. We would need to consider that carefully.

Detention should be for the smallest amount of time possible to remove someone or to obtain the documents that will enable them to be removed. We will continue to impose that constraint. When

someone's claim has failed, we work towards removing them, and we would want to apply that constraint to electronic monitoring as well as to detention.

My hon. Friend the Member for Walthamstow raised the difference in wording between the residence and reporting restriction provisions. The clause states that reporting restrictions ''could be'' imposed. The provision envisages the use of voice recognition technology to enable a person to report by telephone. It will be an alternative to reporting in person to a reporting centre. In practice, it may be reporting by telephone monthly, or in person quarterly. There could be flexibility in the way it would operate.

Amendments Nos. 165 and 166 would introduce a procedure for subjects of electronic monitoring to make representations to a chief immigration officer. I assure the hon. Gentleman that, as with existing arrangements for temporary admission, conditions of bail and so on, genuine reasons for apparent non-compliance with electronic monitoring are and will continue to be taken fully into account. The measures are not intended to trip up people who want to comply and who tell us voluntarily that they genuinely cannot meet a particular appointment or a particular reporting session. They are intended to ensure that those who would not otherwise comply do so more securely. Those arrangements, in which reasons for non-compliance are taken into account, have been in place for a long time. We would also apply those to the electronic monitoring requirement.

On amendments Nos. 169 and 174, I do not think that it is necessary to state that arrangements for electronic monitoring must be ''necessary and reasonable'', or

''must not impose a disproportionate restriction on the liberty of the individual.''

As I have said, decisions to require electronic monitoring will be taken following a thorough risk assessment of individual cases. It is one of a range of contact management tools available, ranging from detention at one extreme to release bail, temporary admission or temporary release, with or without conditions, at the other. We shall choose the least intrusive option necessary to manage the risk in all cases, taking into account not only the individual but our resources.

Turning to amendment No. 172, the rule-making power under subsection (8) is designed to maintain maximum flexibility in the light of new and rapidly developing technology. If the amendment refers to rules governing the application of an electronic monitoring requirement by immigration officers, the criteria that are used to assess the risk of absconding when we consider bail, temporary admission and temporary release are already in the public domain. Additionally, the detailed framework arrangements for electronic monitoring are in the contracts managed by the Home Office for the delivery of electronic monitoring. There is a lot of experience of that in the criminal justice system, on which we can draw. I do not feel that rule-making needs to be mandatory.

Annabelle Ewing (Scottish National Party, Perth)

Will the Minister give way?

Beverley Hughes (Labour, Stretford and Urmston)

The hon. Lady has an unfortunate habit of always intervening as I am about to sit down, but I am happy to give way.

Annabelle Ewing (Scottish National Party, Perth)

I am grateful to the Minister, and I apologise for not being here at the beginning of the debate, which is why I have not sought to intervene. Obviously, these measures are far-reaching, so I am pleased to note that there will be a pilot to see if they work. Given the crossover with the criminal justice system, which is separate in Scotland, what discussions has the Minister had with Scottish Executive Ministers? What is their position?

Beverley Hughes (Labour, Stretford and Urmston)

On these particular measures, there is not really a crossover with the criminal justice system. I was trying to make that clear. We are considering how we could apply some of the measures—as well as some of the flexibility that electronic monitoring has already demonstrated in the criminal justice system—to the contact management arrangements for people going through the immigration system. There is potential for using these measures in Scotland as part of that contact management and reporting restrictions. I can assure the hon. Lady that I meet regularly with my counterpart Minister in the Scottish Executive, and my officials are working very closely with officials in the Scottish Executive on these proposals as we develop them and think about implementing them.

We are not going into these matters with an English and Welsh-centric perspective. Nor are we unsighted on the implementation issues that might pertain in Scotland, because this is a reserved power. We have the power to introduce a proposal such as clause 15 but there are no crossovers with the criminal justice system here. We are simply using what we have learnt about electronic monitoring and applying it—creatively, I hope—to the needs of the immigration system.

I hope that I have answered most of the questions and explained how the proposal will work. I hope, too, that I have convinced the hon. Member for Winchester that there is no need for his amendments.

Mark Oaten (Liberal Democrat, Winchester)

As ever, the Minister has been extremely helpful and has brought to light how the proposal's mechanisms will work. I am largely reassured by her comments. As I said, we do not intend to oppose the measure in principle because there is merit in being able to speed up the process and in avoiding using detention, with both of which we are sympathetic.

As to the different forms of tagging, I hope the intention is to use the lower levels of tagging when possible, and I know that voice technology is being developed. Satellite technology is up and running and being used. I have been tagged and was tracked down by a company using a satellite—as a good media stunt rather than anything else. The technology is coming on-stream; it was certainly able to follow me round for a while.

I am encouraged that the Government are taking a careful approach to the matter of pilots, although I cannot envisage how a pilot scheme would operate as I assume it would be difficult to arrange within a geographical area. Perhaps the Minister will intervene to explain how these schemes would work. Is it the intention that the pilot schemes would operate on a geographical basis or would satellite or voice technology be tested in pilot schemes across the country? It would be useful to know something about how they will operate and how success will be evaluated. It would be interesting to know, too, how the Government will judge whether such a scheme has been successful.

I can envisage circumstances in which the arrival of a couple of people to put a tag on someone could be quite frightening, especially if in the country from which he or she had fled, a knock on the door from officials could mean something severe. To that individual it would be a frightening experience if a couple of people arrived with a box of equipment and asked him to expose his ankle so that he could be tagged. I hope that the trials will not just take into account the effectiveness of the equipment, but will also make an assessment of what the experience is like and whether the individuals who use the equipment need special training to explain what they are doing. Tagging could be a frightening experience, not just for the person being tagged but for their family who may have to watch what is happening. Although in this country we may be familiar with television images of tagging being carried out, some individuals would not know what it meant and having an electronic gadget put on their leg could be quite upsetting.

However, with the Minister's reassurances, I am happy to beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Mark Oaten (Liberal Democrat, Winchester)

I beg to move amendment No. 171, in

clause 15, page 16, line 34, leave out from 'who' to end of line 38 and insert—

'(a) confirms that they are at least 18 years old, and

(b) can be shown by documentary evidence to be at least 18 years old, or

(c) is declared to be at least 18 years old by a decision of a court, including a tribunal as defined by section 10 and for the purposes of this section by subsection (12) below.'.

This is a probing amendment to ask for more detail about something that was mentioned by the hon. Member for Woking earlier and to which the Minister did not have time to respond. I refer to the use of electronic equipment on those aged under 18. I seek clarification about the terms used in the clause. In relation to the tagging of an 18-year-old, clause 15 includes the phrase:

''an individual who appears to be at least 18 years old''.

I can understand that there are difficulties, and anyone who has been out with the police on a Friday night will know that it is hard to judge the age of individuals. However, I am uneasy about the phrase:

''appears to be at least 18 years old''.

Surely there must be a stronger term that will provide a greater safeguard. The Minister must explain what is

meant by that phrase. Who will make that judgment? Will it be made by one or a number of individuals? If someone insists that they are 16, but the people making the judgment overule them, what right do they have to make their case? Will the decision be made just as the tag is about to be put on someone? What appeal mechanisms are in place?

Nobody would want a situation to arise whereby an individual under the age of 16 was tagged. We need stronger wording than the phrase

''appears to be at least''.

It is a vague way of defining the age of an individual in such circumstances.

Beverley Hughes (Labour, Stretford and Urmston)

Perhaps I can help the hon. Gentleman. I agree that we must reconsider the issue, not least because procedures to ascertain age exist much earlier in the claim process. If someone making a claim in their own right claims to be under 18, they are referred to a children's panel, for example of the Refugee Council. If there is any dispute about age, the immigration and nationality directorate and the panel go through a process to resolve the dispute. We should not reach the stage of the process involving reporting restrictions without having resolved disputed cases. We have procedures for establishing the age of unaccompanied minors. We should consider referring to those procedures rather than allowing the possibility of an officer further along in the electronic monitoring process to decide age on the basis of what an individual looks like.

The current wording does not take into account existing procedures for deciding age in disputed cases. I want to consider whether there is a better form of words that acknowledges the procedures that already exist. If necessary we will put forward new suggestions on Report.

Mark Oaten (Liberal Democrat, Winchester)

I am extremely grateful to the Minister. That is a constructive way forward and we look forward to hearing what the Minister has to say either later in Committee or on Report. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 15 ordered to stand part of the Bill.

Clause 16 - Immigration Services Commissioner: power of entry

Mark Oaten (Liberal Democrat, Winchester)

I beg to move amendment No. 95, in

clause 16, page 18, line 14, leave out from 'dwelling' to end of line 21 and insert—

'(7A) Nothing in this section shall authorise the disclosure of documents or information subject to legal privilege.'.

Clause 16 has had widespread support. When the controversial measures in the clause were announced by the Government, there was support from all parties for trying to improve the quality of advice given to asylum seekers and for getting tough on rogue advisers who are ripping off some of the most vulnerable in society. The clause has some sensible measures for setting out the detail of how to track down businesses that are providing a bad service to asylum seekers.

Amendment No. 95 is designed to probe the Government's thinking on one aspect of how that will be done. It is necessary to have in place the power to obtain a warrant to enter and search premises where the police or immigration service have reasonable grounds to assume that bad immigration advice is being given. It will be difficult for the authorities to track down such individuals unless they are able to enter their offices and examine case notes. If an asylum seeker alleged that they had been given bad advice or that emerged in interviews as part of an appeal, and immigration officers had concerns about advice that had been given, it would be important for the authorities to be able to investigate that.

I have no problem with the power to obtain a warrant, but amendment No. 95 would provide that during investigations great attention is paid to the long-standing privilege between a client and their legal adviser. That is a contradiction, because we want to identify rogue advisers while not putting at risk the relationship between a client and a good legal adviser. We are concerned that as part of the search warrant exercise, papers may be gone through that are part of the confidentiality between a client and their lawyer. Will the Minister explain how she can overcome the problem of protecting the right to privacy and the special relationship while allowing the authorities to examine the papers to assess the quality of advice?

Edward Garnier (Conservative, Harborough)

I think that I follow the hon. Gentleman's argument, but I am a little concerned about his use of the word ''bad'' in relation to advice. Does he mean poor quality or criminal? Allowing the authorities to search people's premises because they have been giving poor quality advice is one thing; allowing them to search people's premises because they are suspected of taking part in a criminal scam is another. I wonder whether the hon. Gentleman is unwittingly using language carelessly.

Mark Oaten (Liberal Democrat, Winchester)

The hon. and learned Gentleman is right to pull me up on my layman's use of language, but I am arguing about the Government's phraseology on the ability to obtain a warrant to investigate whether an unqualified person is giving advice.

My argument on confidentiality remains the same for two reasons. First, the asylum seeker has given information on the basis that there is a client relationship and an element of trust. Secondly, other individuals on the premises may be operating legally and their information should be protected. An absolute assurance is needed that when investigations take place, the search and the information revealed is handled sensitively to protect the source of the information—the asylum seeker. Will the Minister give some assurances on how the Government plan to deal with the information without thwarting the intention of the clause, which we support?

Humfrey Malins (Conservative, Woking)

I have a number of points to make. The first has been referred to and is the question of privilege. As we know, privilege is important in life, whether it is between doctor and patient, clergyman

and parishioner or solicitor and client. I hope that the Minister will say more about that, because the relationship between a client and his solicitor is entered into often only on the basis that the client knows that his relationship and documents are and will remain privileged. That is an important principle, which I hope the Minister will consider.

I turn now to amendment No. 96. I am indebted to Mr. Clancy, director of the Law Society of Scotland, with whom I discussed the matter. I hesitate to trespass on Scottish matters, because the hon. Member for Perth (Annabelle Ewing) and the hon. Member for Glasgow, Cathcart—both of whom have contributed fully to our debates—are here. The clause concerns warrants. It is commonplace in the English courts for an application for a warrant to be laid before a district judge or a magistrate.

David Heath (Liberal Democrat, Somerton and Frome)

Next amendment.

Humfrey Malins (Conservative, Woking)

It is the next amendment. My goodness. Does not that show how eager I am to get to the point? I wondered, Mrs. Roe, why the hon. Gentleman did not mention it. I shall sit down.

Marion Roe (Conservative, Broxbourne)

Order. I was wondering what point the hon. Gentleman was coming to before calling him to order, but now other hon. Members have done so.

Humfrey Malins (Conservative, Woking)

I will save the balance of my remarks, which are substantial and interesting, for later in the debate.

Annabelle Ewing (Scottish National Party, Perth)

I fully support amendment No. 95. I take the view that the Government's proposals go too far in lifting legal privilege, which is an important doctrine in the legal systems of the United Kingdom and has been recognised as such by the ECHR. It has also been recognised recently by the Minister's colleague, the Under-Secretary of State for the Home Department, the hon. Member for Don Valley (Caroline Flint) in the debate on the Report of the Crime (International Co-operation) Bill, in which I participated. She said:

''There is extensive case law on legal professional privilege, which is a fundamental condition on which the administration of justice rests.''—[Official Report, 14 October 2003; Vol. 411, c. 43.]

I entirely concur with the hon. Lady's comment. What possible justification can there be for lifting professional privilege?

Beverley Hughes (Labour, Stretford and Urmston)

I hope that I can assure hon. Members that the measure is necessary and proportionate. It does not jeopardise and would not in any way be contrary to the client's interests—that is the central issue here—or the preservation of the principles of legal privilege. Clause 16 would allow the commissioner, in pursuit of his statutory remit, to regulate advisers and ensure the highest quality practice among advisers, and to seize and retain any material for which a search is authorised.

In order for the commissioner to gain evidence relevant to his statutory duties, he would probably need to include material that is subject to legal professional privilege. However, this amendment would prevent the commissioner from accessing such material, even though it is likely to be of substantial

value, if not essential to his investigation. I understand the hon. Lady's concerns, but I do not think that the amendment is necessary to achieve what hon. Members want to achieve.

Mark Oaten (Liberal Democrat, Winchester)

The concern that I have is not about the individual examining that material—that is essential if they are to make a judgment about the quality of life being given—but about its disclosure, what may happen elsewhere and whether it would be used as part of the general profile of the asylum seeker.

Beverley Hughes (Labour, Stretford and Urmston)

I agree and I was getting to that point. The key issue is the question of disclosure, as the hon. Members for Winchester and for Woking have suggested. The rationale behind the doctrine of legal professional privilege is that the administration of justice requires that everybody should be able to consult a lawyer—in this case, an immigration adviser—or prepare a case for litigation, without fear that information given to their lawyer or adviser will later be revealed in court against their wishes and interests, or revealed in a process that would be against their wishes and interests. The doctrine thus protects those being advised, primarily in the context of litigation in which they are involved.

Clause 16 is not intended to compromise those who have received advice from unregulated advisers and I do not believe that it will do so. The commissioner has no remit and no power to investigate the client and their immigration status. That would be contrary to his statutory remit. Onward disclosure by the commissioner of information that he has obtained during the exercise of his statutory duty is limited by section 93 of the Immigration and Asylum Act 1999. The purpose of this power is to provide information to prosecute unregulated advisers, not to investigate the immigration status of those whom they are advising.

The commissioner's statutory remit relates only to the regulation of advisers. The information will not be forwarded to the IND. The concern is that the information may leak into the process of determining someone's immigration status or how we deal with them. The limitations are set out in section 93, which specifies, in addition to the fact that the person's consent must be obtained, four purposes for which the commissioner may disclose information onwards. Those would not include disclosure to the IND on immigration matters.

I am entirely confident that the commissioner would not abuse his power. He is an independent regulator, his powers and duties are set out in statute and he is clear about the issues relating to disclosure. I do not believe that the limitations set out in statute and the commissioner's status and purpose as an independent regulator would allow him to pass information on to the immigration system. The purpose of the power is to prosecute unregulated advisers, not to investigate the immigration status of those whom they are advising.

The power is subject to the requirement of a warrant. Before the commissioner can exercise the powers of entry, search and seizure, he must satisfy a justice of the peace on a number of conditions, which are set out in clause 16(2) and (3). Those are intended

to ensure appropriate and proportionate use of the powers. If the JP considered that there was any defect in the commissioner's proposal, a warrant would not be issued.

For the reasons given, I think that the clause will not result in onward disclosure to the immigration system and that, as far as the interests of the client are concerned, the principles of legal privilege will be sustained. I therefore hope that the hon. Member for Winchester will withdraw the amendment.

Mark Oaten (Liberal Democrat, Winchester)

Again, the Minister has reassured me, particularly regarding onward disclosure, which was the purpose of tabling the amendments. I am reassured that the information that is an element of privilege will not get into what are the wrong hands from the asylum seeker's perspective but, as ever, other issues cropped up in my mind as the Minister was talking.

I shall place two concerns on the record. First, we are talking about information and papers that relate to an individual asylum seeker's claim. Through no fault of their own, the asylum seeker may suddenly discover that the person advising them and, indeed, all their papers are to be taken away and investigated from the perspective not of the asylum seeker's case, but of the advice that is being given. There is a real concern that if, in a twin-track process, that individual is due to appear the next week at a critical hearing, they will have to say that they have no legal advice and they are a little bit stuffed, because all their papers have been taken away and are being investigated by someone else, which has nothing to do with them. The power is not only to look at and seize, but to retain the papers. In such circumstances, there is anxiety about what would happen.

A second concern, which has just popped into my head, is that we are assuming that the investigation to examine whether an unqualified individual is giving advice will prove that they were doing so. However, there may be no such evidence. We need reassurances that in those circumstances all the papers will be given back as soon as possible so that the person who may turn out to be qualified and giving good advice can carry on doing so. As I thought of those things rather late, the Minister may not have a chance to respond to my questions.

David Heath (Liberal Democrat, Somerton and Frome)

In the circumstances that my hon. Friend describes, would there not be a potential issue involving the Legal Services Commission and legal aid, especially if the ideas of the Under-Secretary of State for Constitutional Affairs, the hon. Member for Tottenham (Mr. Lammy) about restricting legal aid for a first interview go ahead? The process would effectively have to start again after that. I hope that there will be a marriage between the administrative arrangements and the legal arrangements.

Mark Oaten (Liberal Democrat, Winchester)

My hon. Friend makes a good third point. It is a pity we did not deal with all of them earlier.

Edward Garnier (Conservative, Harborough)

Does not this tie in with the concerns that we expressed earlier about clause 10? Irrespective of the fact that the documents have been taken away for some other purpose, if the tribunal system concludes that it will nonetheless go on to take a

decision that could be adverse to the asylum claimant's interest, that claimant has no recourse to the hierarchy of appeal courts. We should think about that more carefully. The issues that the amendment reveals are more complicated than they appeared at first blush. There are several interlocking issues that need to be considered. Charming as the Minister's response has been to these questions, she will not have had time to get her head round all of them straight away. I hope that the hon. Member for Winchester will persuade her to come back on Report with a more considered view on the whole matter.

Mark Oaten (Liberal Democrat, Winchester)

I am grateful for the hon. and learned Gentleman's intervention, as it adds another issue. Perhaps no one on the Opposition side of the Committee read their briefings properly in advance and we should have raised these points earlier. The Minister may have detailed answers which we do not have time to hear because of my stupidity in not raising these matters earlier. However, I hope that she will reflect on the fact that although we have no concern about the clause, and we are reassured on the point about the onward disclosure of information, what has emerged in the last five minutes is concern that asylum seekers could lose out as a result of the process. If investigations are taking place and they do not have papers or an adviser, asylum seekers could end up falling foul of the system through no fault of their own. At some stage, if there is time, I should be grateful to hear what the Minister has to say on the matter. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Mark Oaten (Liberal Democrat, Winchester)

I beg to move amendment No. 96, in

clause 16, page 18, line 23, leave out

'or a justice of the peace'.

The hon. Member for Woking jumped way ahead and started to deal with some of these issues. I wish he had continued because I am not entirely sure of my ground on this one and even the Prime Minister is occasionally allowed to read out things at Prime Minister's questions.

The amendment would ensure that arrangements are in place in relation to Scotland, where a sheriff only and not a justice of the peace will be entitled to grant the search warrants referred to in the clause. The view of the Law Society of Scotland is that the power to grant warrants under clause 16 should extend to sheriffs only; the hon. Member for Perth will be able to explain why that power is required in Scotland. However, I am sure that the Minister will reassure the Committee, as ever throughout the Bill, that the arrangements being put in place are satisfactory in respect of the occasional differences that occur in relation to Scottish law.

David Heath (Liberal Democrat, Somerton and Frome)

Was my hon. Friend going on to refer to clause 67 of the Anti-terrorism, Crime and Security Bill on the next page of his notes?

Mark Oaten (Liberal Democrat, Winchester)

I was going to say that I was grateful to my hon. Friend, but I am not. I am sure that if he had been able to speak for longer, he would have said that

a similar point was made in relation to search warrants under section 67 of the Anti-Terrorism, Crime and Security Act 2001. It is a jolly good point and I hope that the Minister has a chance to address it.

Humfrey Malins (Conservative, Woking)

The hon. Gentleman has made the point made by Mr. Clancy from the Law Society of Scotland. The question here is the power to issue a warrant. A number of serious issues are heard before magistrates in England. They can hear interlocutory applications and bail applications in cases ranging from murder to trivial offences. A huge variety of matters come before magistrates in our jurisdiction. It is thus thought that they carry greater responsibility than Scottish magistrates. Even on interlocutory matters such as bail conditions and so on, the more serious cases would go automatically to the sheriff and the magistrate would play no part. It is thus argued forcefully by the Scottish Law Society that is more appropriate for a serious matter like a warrant to be reserved to a sheriff rather than to a magistrate.

Tom Harris (Labour, Glasgow Cathcart)

On a point of information, although I understand that the system of JPs is being reviewed, and the hon. Member for Perth may want to refer to that, JPs already sign warrants for search and arrest.

Humfrey Malins (Conservative, Woking)

The very point that I put to the director of the Scottish Law Society. I asked whether warrants are issued by JPs in Scotland. He said yes, which in a sense detracts from my argument. The principle that the Law Society was propounding is quite simply that there is a difference between the jurisdictions of the magistrates in the two countries, which should be reflected in this part of the Bill.

Annabelle Ewing (Scottish National Party, Perth)

I support the amendment. The key issue may be that in Scotland as a general rule JPs are not legally qualified. That should be the starting point. Echoing the points made by the hon. Member for Woking, that is the crux of the matter. The position may well be different here.

Humfrey Malins (Conservative, Woking)

Not here.

Annabelle Ewing (Scottish National Party, Perth)

Not in England. That raises another issue for hon. Members with seats south of the border. In Scotland we have a clear role for the sheriff and the sheriff courts. The concern is that the measure would unduly upset the balance of law in Scotland with respect to the operations of the sheriff court and the operations of JPs.

Tom Harris (Labour, Glasgow Cathcart)

Without being tempted to digress from the specific issue, would it not be inconsistent not to give the power of authorisation to JPs in this circumstance, but to allow them to retain the power to grant warrants in other circumstances outwith the remit of the Bill, simply because they are not legally qualified? If we are not going to give them this power, why should they retain their current power?

Annabelle Ewing (Scottish National Party, Perth)

The hon. Gentleman poses an interesting question. My attitude would be to preserve the important role of the sheriff and the sheriff court system. It has done the Scottish legal service a lot of credit down through the centuries. The hon. Gentleman referred to the ongoing review in

Scotland of the role of JPs and, in effect, laymen. That issue may arise in the review.

Returning to the amendment, I urge the Minister to reflect on the issue, because it is important to Scots law. To echo the point raised by the hon. Member for Winchester—prompted by the hon. Member for Somerton and Frome—it was accepted in the Anti-terrorism, Crime and Security Act 2001 that the power to issue a warrant should rest with the sheriff and the sheriff court. I do not see why the position should be different now.

Beverley Hughes (Labour, Stretford and Urmston)

Perhaps I might be allowed to respond to the points raised earlier by the hon. Member for Winchester. He is right about the potential impacts on the immigration process of a person whose documents were seized as a result of the commissioner's investigating his adviser. The issues are important. They are logistical issues of administration, which we must get right.

We are speaking to the commissioner about how to ensure that people are not disadvantaged if they lose their adviser. We have a process of immediate liaison with the Legal Services Commission to appoint a new adviser. I am happy to write to the hon. Gentleman, when we have concluded discussions with the commissioner, outlining that process in some detail. He is right that we need to establish processes to ensure that a person's immigration application is not disadvantaged by his adviser's being investigated.

On amendment No. 96, this is one of the rare occasions when a Minister can say that everyone is right in the points that they made. On this and some Government amendments to come later, we appreciate the points that have already been made. We are consulting Scottish Executive colleagues on whether only sheriffs should have the power to issue the warrants. Notwithstanding the comments of the hon. Member for Perth—to whose knowledge I defer—the position of JPs in Scotland is complicated. I take the point made about the different jurisdictions, but some JPs in Scotland have signing powers for warrants and others do not. At present, both sheriffs and JPs can sign some warrants, although I heard the arguments against JPs doing so. I will have to return to that on Report, because we are still holding talks with the Scottish Executive.

Edward Garnier (Conservative, Harborough)

The Minister should look at page 17, line 25, which reads:

''On an application made by the Commissioner a justice of the peace may''.

There are then references to a justice of the peace throughout that clause. Justices of the peace in England, Wales and Scotland are not legally qualified. I understand the arguments made by the hon. Member for Winchester, but if the Minister accepts them with alacrity, she may end up producing a different approach for Scotland from that in England and Wales. That does not matter as long as she knows that that is what she is doing. A justice of the peace in England is not a ''district judge (magistrates courts)''—what we used to call a stipendiary magistrate—who is legally qualified. Before she gets too overexcited by the hon.

Gentleman's points, she should understand what happens if one thing is taken away and not replaced by another.

Beverley Hughes (Labour, Stretford and Urmston)

We must do something precisely because we have a different system and we do not have sheriffs. I was careful to say that I am not sure that I will come back with an amendment in the proposed form, because we need equivalence in the level in the judicial system at which the decision to sign a warrant is made. All those issues, not just in Scotland but in England and Wales, need to be balanced. I am not in a position to say what the conclusion of those discussions and the evaluation will be. I would therefore be grateful if the hon. Gentleman would withdraw the amendment, because I need to return on Report with our considerations of that matter and of some other matters related to Scotland.

Mark Oaten (Liberal Democrat, Winchester)

I am grateful for the Minister's co-operation on that other issue related to the previous clause and look forward to those important points being taken into account. Given the reassurance that we have been given that the drafting team will re-examine the issue, 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. 147, in

clause 16, page 18, line 24, at end insert—

'(9) In the application of this section to Northern Ireland the reference to the Police and Criminal Evidence Act 1984 (c.60) shall be taken as a reference to the Police and Criminal Evidence (Northern Ireland) Order 1989 (S.I. 1989/1341 (N.I. 12)).'' '.

The amendment is technical, and relates to the commissioner's power to seize and retain

''material subject to legal privilege, excluded material or special procedure material.''

In England and Wales, those categories of material are defined in relation to the Police and Criminal Evidence Act 1984. The amendment provides that the definition of such material in relation to Northern Ireland is contained in the Police and Criminal Evidence (Northern Ireland) Order 1989. It is another measure for which similar provisions will have to be made for Scotland. That will form part of our discussions with colleagues in the Scottish Executive; I may need to introduce a further provision on Report to cover the Scottish situation.

Amendment agreed to.

Beverley Hughes (Labour, Stretford and Urmston)

I beg to move amendment No. 148, in

clause 16, page 18, line 24, at end insert—

'(2) In paragraph 7 of Schedule 5 to the Immigration and Asylum Act 1999 (c.33) (investigation of complaints, &c.:power of entry)—

(a) in sub-paragraph (1)(b) after ''(b)'' insert '', (c)'',

(b) in sub-paragraph (1)(c) for ''registered person.''substitute ''registered or exempt person.'',

(c) in sub-paragraph (1A)(a) after ''(b)'' insert '', (c)'',

(d) in sub-paragraph (1A)(b) for ''registered person.''substitute ''registered or exempt person.'',and

(e) after sub-paragraph (8) insert—

''(9) Sub-paragraphs (7) and (8) shall apply to an exempt person as they apply to a registered person, but with a

reference to cancellation of registration being treated as a reference to withdrawal of exemption.

(10) In this paragraph ''exempt person'' means a person certified by the Commissioner as exempt under section 84(4)(a).'' '.

As we have heard, the clause gives powers of entry, search and seizure to the commissioner. The amendment will ensure that the commissioner can exercise those powers to enter premises in respect of exempted advisers as well as the registered advisers that are included in the clause as currently formulated. Exempted advisers are exempted from the fee that they would otherwise have to pay the commissioner, because they operate on a voluntary basis. Unlike registered advisers, they do not provide immigration services in the course of a business, and therefore do not pay the fee. Nevertheless, in terms of the quality of advice that they give to their clients, it is just as important that the commissioner can use his power in relation to them. It is important that we treat those advisers equivalently.

David Heath (Liberal Democrat, Somerton and Frome)

I want to be absolutely sure that the category of exempt advisers does not include elected representatives and their staff.

Beverley Hughes (Labour, Stretford and Urmston)

I can safely assure the hon. Gentleman that that is the case, although I will check it. I hope that, with that clarification, hon. Members will support the amendment.

Amendment agreed to.

Clause 16, as amended, ordered to stand part of the Bill.

Clause 17 - Offence of advertising services

Beverley Hughes (Labour, Stretford and Urmston)

I beg to move amendment No. 149, in

clause 17, page 19, line 14, at end insert—

'( ) A complaint charging the commission of an offence under this section may in Northern Ireland be heard and determined by a magistrates' court if—

(a) it is made within the period of six months beginning with the date (or first date) on which the offence is alleged to have been committed, or

(b) it is made—

(i) within the period of two years beginning with that date, and

(ii) within the period of six months beginning with a date certified by the Immigration Services Commissioner as the date on which the commission of the offence came to his notice.'' '.

This is similar to amendment No. 147, in that it is technical, and ensures that, as is the case in England and Wales, proceedings in Northern Ireland relating to an offence under the clause can be heard up to two years after the commission of the offence. That will be possible provided that it is within six months of the date certified by the commissioner as the date when the commission of the offence first came to his notice. Similar provisions will need to be made for Scotland, and that will be part of our discussions with Scottish colleagues. An amendment may be required on Report

to cover the Scottish situation. However, the amendment relating to Northern Ireland is straightforward.

Amendment agreed to.

Question proposed, That the clause, as amended, stand part of the Bill.

David Heath (Liberal Democrat, Somerton and Frome)

I shall be brief because I entirely support the clause. Will the Minister clarify where the offence is committed? That is crucial to understanding the prosecution of the offence. I understand that the clause affects those who purport to offer advice services in the United Kingdom. However, is the offence committed at the point of the advertisement being made? If the advertisement is made and arranged in another country, has an offence been committed? That is pertinent because many people will advertise not in the UK but in communities from which they hope to gain business, and which fall under another jurisdiction. We must phrase the clause so that it covers UK advisers seeking to advertise their services in such communities. Causing the advertisement to be made should be the offence, regardless of whether it is arranged in another country.

Tom Harris (Labour, Glasgow Cathcart)

Is the hon. Gentleman also concerned about the possibility of advertisements being posted on the internet, perhaps using a server that is outside the jurisdiction of the UK?

David Heath (Liberal Democrat, Somerton and Frome)

I am grateful to the hon. Gentleman and I intended to raise that point. I believe that, for the purposes of the law, if someone puts something on the internet, it counts as publishing within UK jurisdiction. If someone has taken no action to arrange an advertisement in this country, but their cousin in Bangladesh takes out an advertisement purporting to offer advice services, I am not clear whether an offence has been committed under the Bill. I think that that should be an offence, and I hope that it is possible to phrase the clause appropriately.

Beverley Hughes (Labour, Stretford and Urmston)

Since the Bill was drafted, the immigration services commissioner has considered the issue of advertisements that appear only in another country or on the internet. As far as I recall, the clause only covers advertisements in the UK. The commissioner is examining that because primary legislation would be required for that to be extended. The commissioner has already brought the hon. Gentleman's point to our attention, and we are examining it.

Question put and agreed to.

Clause 17, as amended, ordered to stand part of the Bill.

Clause 18 ordered to stand part of the Bill.

Clause 19 - Professional bodies

Annabelle Ewing (Scottish National Party, Perth)

I beg to move amendment No. 144, in

clause 19, page 19, line 27, after 'information', insert

'in relation to the provision of immigration advice or immigration services by a person regulated by a designated professional body.'.

Marion Roe (Conservative, Broxbourne)

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

No. 145, in

clause 19, page 19, line 36, after 'information', insert

'in relation to the provision of immigration advice or immigration services by a person regulated by a designated professional body.'.

No. 146, in

clause 19, page 19, line 40, after 'information', insert

'in relation to the provision of immigration advice or immigration services by a person regulated by a designated professional body.'.

Annabelle Ewing (Scottish National Party, Perth)

These three amendments are technical amendments that seek to clarify that the information requested by the Office of the Immigration Services Commissioner must relate solely to information

''in relation to the provision of immigration advice or immigration services by a person regulated by a designated professional body.''

I thought that that would have been the Government's intention. It is also in the interests of legal certainty to include that definition of the scope of the provision. The Minister referred to the fact that the commissioner's powers are set by statute, but it is not unheard of for a statutory body to act ultra vires. I urge her to consider the amendments.

Subsection (4) introduces the statutory duty of compliance by all designated professional bodies to a request for information by the Office of the Immigration Services Commissioner. I understand that the possible motivation for the new provision may be the difficulties that have arisen with information flows, in particular between the OISC and the Law Society of England and Wales. The OISC's annual report for 2002–03 refers to such problems. Interestingly, it states on page 48 that some 94 per cent. of the complaints that were referred during that period to designated professional bodies by the OISC, were referred to the Law Society of England and Wales. If those problems are the prime motivation behind the new provision, is it appropriate to encompass all designated professional bodies in subsection (4) merely to deal with the problems of one body—the Law Society of England and Wales?

The Minister will know that the Law Society of Scotland concluded a memorandum of understanding with the OISC on 3 October 2003. As far as I am aware, that arrangement has worked satisfactorily to date. The Law Society of Scotland is an important body in Scotland, so will the Minister consider its example? When designated professional bodies are voluntarily working well with the OISC, is it necessary to impose a blanket statutory duty of compliance? Would it not be better to separate out the bodies with which the office has particular problems and find appropriate language to deal with them? I look forward to the Minister's reply.

Beverley Hughes (Labour, Stretford and Urmston)

As the hon. Lady said, clause 19 requires the designated professional bodies listed in section 86(1) of the Immigration and Asylum Act 1999 to comply with a request by the commissioner for the

provision of information, which may be general or specific to a particular case of matter.

The amendment would provide that the only information that a designated professional body must provide would be that relating to the provision of immigration advice by persons regulated by the body. The amendment is not framed to remove references to general information, but its effect would be that the commissioner's ability to request general information would be severely undermined.

The requirement has not been informed specifically by a problem with flows of information from any quarter. It exists primarily because an important part of the commissioner's statutory duty in his annual report and report to the Secretary of State is to detail the designated professional bodies' effectiveness in regulating their members in the provision of immigration advice and services. Clause 19 reflects that duty—hence the references to general information. In order to fulfil that duty, it is not only advice in relation to specific cases that is important.

For example, the commissioner would need statistics on the number of complaints sent directly to designated professional bodies, and how many were upheld. Clause 19 will ensure that the commissioner receives the information that he requests, either general or specific, that is necessary for him to fulfil his statutory duty. The amendment would compromise that. It is not necessary. The type of information that he may reasonably request is limited to what is necessary for him to fulfil his statutory duties relating to immigration advice. Any request unrelated to those responsibilities would be unreasonable and subject to judicial review.

Not only are the amendments unnecessary but they would severely circumscribe the commissioner's ability to fulfil his statutory duties, so I ask the hon. Lady not to press them.

Annabelle Ewing (Scottish National Party, Perth)

I was listening closely to the Minister. I do not accept the premise that the amendments would severely curtail the commissioner's statutory duties, but I have heard what she said. I am grateful that we have heard a greater explanation of the scope of the commissioner's proposed powers. I note that the Minister did not respond—quite properly—to the extra comments that I made, but I hope that she will reflect on them. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 19 ordered to stand part of the Bill.

Clause 20 - Fees

Humfrey Malins (Conservative, Woking)

I beg to move amendment No. 76, in

clause 20, page 20, line 43, at end add—

'(6) No fee shall be prescribed under the provisions of this section in respect of any application or process in respect of a student, prospective student, student nurse, postgraduate doctor, postgraduate dentist, trainee general practitioner, academic visitor or a dependent of such a person.'.

Marion Roe (Conservative, Broxbourne)

With this it will be convenient to discuss the following:

Amendment No. 77, in

clause 20, page 20, line 43, at end add—

'(6) Instruments prescribing fees under the provisions of this section shall ensure that no student, prospective student, student nurse, postgraduate doctor, postgraduate dentist, trainee general practitioner, academic visitor or dependent of such a person shall have to pay more than once in any period of ten years a fee that exceeds the administrative cost of determining the application or undertaking the process.'.

Amendment No. 78, in

clause 20, page 20, line 43, at end add—

'(6) No fees shall be prescribed using the powers conferred in this section unless the Secretary of State has first given at least three months' notice of his intentions and consulted with bodies and individuals appearing to him to represent the interests of those affected.'.

New clause 2—Charges—

'At the end of section 5 of the Immigration and Asylum Act 1999 (c.33)(charges) add—

''(8) Regulations made under this section may confer discretion on the Secretary of State or another person to waive or to refund all or part of any fee in cases when, in the opinion of the Secretary of State or any person designated under the regulations, mistakes have been made, insufficient leave has been given, delays have occurred, passports have been lost or misdirected, or payments have been mishandled.''.'.

Humfrey Malins (Conservative, Woking)

We find ourselves concerned with a clause that has raised some worries in the education world. I know that the Minister has received representations from a number of bodies. The university of Cambridge vice-chancellor's office wrote to the Home Secretary at the beginning of this week, but there have also been representations from Universities UK and the Council for International Education. Summing up the problems that my amendments seek to address, the university of Cambridge got it about right. The vice-chancellor's office wrote:

''We believe that this Bill signals an intent to introduce charges for visa applications which will harm student recruitment, damage access efforts, and further burden students who are already making great financial contributions.''

A summary of the concerns might be put as follows. It is argued, first, that the fees provided for in clause 20 should not apply to international students or dependants; secondly, that the international student market is worth an estimated £5 billion a year to the UK economy; thirdly, that international students contribute through income tax and national insurance contributions for part-time and vacation work; and fourthly, that there have been some negative experiences from the introduction in 2003 of immigration application charges, which have failed to lead to an improved service. In short, to introduce over-charging for students would be short-sighted and would risk alienating the international student market.

As briefly as I can, with the material in front of me, I shall speak to my amendments. Amendment No. 76 would ensure that fees in excess of the actual cost of determining the application would not be charged to students and others mentioned in the amendment, or their dependants. It is mainly a probing amendment to discover how the Government intend the provisions to affect students and their dependants.

The Minister does not need reminding that fees for extensions to and variations of leave under the 1999 Act were introduced only last summer. They were said to be cost-recovery fees only, but they still amount to a staggering £155 for a postal application and £250 for a personal application. Students are one of the groups worst affected by the charges, despite the fact that education is a vital export. Students now face the prospect of having to pay an entry tax to the Exchequer for the privilege of entering the UK.

Whatever the Minister may say about students being eligible for free treatment under the NHS and free access to education for their children, many international students work while they are here and pay taxes and national insurance. I know that the Minister believes, and the Prime Minister certainly believes, that international students are very important to the UK. I recall the Prime Minister's initiative to recruit more international students. In publicly funded higher education alone, there are about 240,000 international students, which I believe is about 12 per cent. of all students in higher education. Other arguments could be advanced, but the Minister will know what they are.

The point of amendment No. 77 is to remind Ministers that students are the group most likely to have to make multiple applications in order to complete a programme of studies here because of the way in which the system operates. According to the latest published Home Office figures, students are the single largest category of applicants for extensions. In 2001, there were more than 83,000 student applications for extensions, out of a total of 189,000 for all purposes. International students are therefore not a marginal group, but a major element in the equation. Students may have to make more than one application on behalf of themselves and their dependants, either because they progress from one course to another—for example, from A levels or a foundation course to a degree, or from an undergraduate degree to a masters or a doctorate—or because at the time of their original application, they were not given sufficient leave for the planned duration of their studies. The Minister will understand the thrust of my amendment. I know that she has carefully read the points raised by the various bodies that I mentioned and I need say no more about this amendment.

Amendment No. 78 relates to consultation. On Second Reading the Home Secretary guaranteed that the Government would consult before laying an order before the House. When what is now section 5 of the Immigration and Asylum Act 1999, which provides for cost recovery charges, was in Committee, the then Minister of State, now Minister for Trade and Investment, recognised that

''We are looking for ways to encourage more students to come in . . . We shall consider proposals for students in due course when regulations are introduced. It would be appropriate to discuss the detail of specific categories of fees and the figures in a debate on those regulations.''—[Official Report, Special Standing Committee, 15 April 1999; c. 555–563.]

He continued in the same vein.

Contrary to what was said in 1999, and ignoring their own consultation protocol—there was no prior consultation or publicity—the Government introduced regulations just before the summer recess, which is the worst possible time for students. It is important to try to avoid repeating that mix-up by ensuring that proper notice is given of the timing of the introduction of new charges, and that no regulations or orders are made without advanced consultation in accordance with the guarantee given by the Secretary of State and with the Government's own consultation protocol. If that guarantee is worth anything, the Minister will not mind including it in the Bill.

New clause 2 relates to errors. When the 1999 Act was first considered in another place, an amendment to section 5 was considered that no fee should be charged if an application was made necessary by a mistake of the Secretary of State or his agents. Speaking in that debate, the noble Lord Falconer promised:

''We shall ensure that when fee regulations are made, appropriate provision is made to deal with errors which may occur.''—[Official Report, House of Lords, 12 July 1999; Vol. 604, c. 49.]

It later became clear that the Act had been drafted to preclude the making of such provision under the regulations. We would hope to put that right. We want the Home Office to consider being able to waive fees where applications are necessary only to correct mistakes. That is the purpose of new clause 2. I shall not go further into the matter, but the Minister of State will be aware that errors are made.

The main purpose of new clause 2 is to ensure that Ministers do not respond to the many criticisms of how charging has been introduced and managed, by hiding behind the argument that the legislation gives them no discretion in responding to blunders of the sort that we know are made.

Mark Oaten (Liberal Democrat, Winchester)

I rise briefly to support the amendment. The hon. Gentleman is right to raise concerns about the clause, particularly in relation to students, nurses, doctors and other individuals who will be affected. I do not wish to add to the hon. Gentleman's points, because he has made them strongly, particularly in relation to the briefings from universities. I hope that the Minister will say something about that. I am sure that many hon. Members recognise the shortage in the nursing and caring professions. My local hospital is trying to encourage individuals to help with that skills shortage, as are other hospitals. Any barrier to that will make things harder for those hospitals. The hon. Gentleman's points were well made.

The issue extends beyond fairness for students and nurses to the general principle of fairness behind setting an appropriate fee in the first place. Could the Minister say—she will not be bound by what she says—whether she envisages the figure settling closer to £155 or £500 in the next year or so? It would be hard to envisage the figure doubling, given that inflation is currently at around 2 or 3 per cent. The Government will have a hard time justifying an increase to above £200 or £250. A guarantee on that from the Minister would be helpful.

Can the Minister say what proportion of the increase is due to new costs and what proportion is,

for want of a better word, profit? That is, what proportion is money-making on the back of the fees? It would be helpful to know how much change will take place and exactly what the additional costs will be. I would be sympathetic to a system that imposed a fee that was based on the cost of the processes involved. I would be less sympathetic if a stealth charge was imposed and I would certainly want to know where the money from that was going if there was a profit-related element the charge.

Finally, when a fee goes up or a change is made, one often expects a linked improvement in the service. There are concerns about the delays and inefficiencies in the service, so I would hope that an increased fee would lead to an improved quality of service. If, however, the fee increases beyond the administrative costs and there is no improvement, everybody gets an unfair deal, not just students. That would be particularly unfair because some of the individuals applying and having to pay fees will be those who can least afford to pay them. I hope that the Minister can give some assurance on those issues.

Beverley Hughes (Labour, Stretford and Urmston)

First, let me put the charging of fees into context. Some rebalancing is required, because, unlike many countries—Australia, New Zealand, Canada, the United States, France, Germany, the Netherlands and others—that offer education and other services for people who enter the country for various purposes and have charged for a considerable time, the UK has not previously charged. Countries' charging structures vary and there is a range of charges. Some are levied on entry clearance, some in country as we propose.

In many respects, people who enter this country, particularly students, are being charged in a competitive global market. We want to encourage people to come to the United Kingdom to study and work, where that supports our labour market. We have to compete with other countries that want those particular incomers. However, given that the United Kingdom has previously not charged anything to cover the cost of administering its system, whereas other countries charge substantial amounts and have done so for a considerable time, it is in the wider interests of the British public to introduce into the equation a factor that relates to our potential to recoup some of the cost of administering the system.

We need to strike a balance between not jeopardising our position in international markets, being fair to students and other groups, and not charging at a level that would constitute a disincentive, because that would not be in our interests. We must be fair to the British taxpayer and must use the additional income to improve service standards—that was one of the starting points mentioned by the hon. Members for Woking and for Winchester.

The investment that has been made on the back of the increased charges has enabled us to improve the service standards. We now complete same day service applications in 99 per cent. of cases, compared with 87 per cent. last year. In the case of postal applications, 49 per cent. were completed within three weeks last year and 80 per cent. are now dealt with in that time. In terms of our overall service

standard, almost all cases—99 per cent. compared with 81 per cent. last year—that arrive by post are processed within 13 weeks. Those that are not completed are complicated or are missing some details.

Hon. Members might care to visit the new public inquiry offices, particularly the one in Croydon which has changed beyond recognition since I first saw it on becoming Minister and vowed to change it. It is a customer-focused, customer-oriented, pleasant environment with the modern system of numbering—visitors are seen speedily and, if they have all their documents and their money, can make their applications over the counter and get them sorted out straight away. The measures have resulted in real benefits to students and others.

The provision in clause 20 is an enabling measure, to allow for the revision of the way in which charges are made. We have made no firm decisions on how the powers in the clause should be exercised in the immediate or long term. The powers should be as flexible as possible. Many points raised by hon. Members about particular groups will be considered when implementing the additional provisions in clause 20. The clause does not set out how the provisions should be exercised, nor does it stipulate time limits.

I accept the point made by the hon. Member for Woking about amendment No. 78, which refers to the consultation process. I understand his concern and was apologetic in the debate. Notwithstanding previous commitments about specific forms of consultation, charging provisions were included in the 1999 Act. We announced our intention to implement them in the White Paper published in February 2002. The White Paper constitutes a consultation process. We are bound by the provisions of existing legislation to recover only costs. Treasury rules allowed us no flexibility over the level of fees. The potential to consult was limited, as was what we could consult on.

I accept that I am on the back foot and I assure hon. Members that we will consult widely when considering how to use the additional powers. Those additional powers could allow recovery over and above costs. We would not be bound by Treasury regulations and would have to consult widely and on a time scale that conforms with normal Cabinet Office standards. I hope that the hon. Gentleman will accept my assurance that, because the powers are wide-ranging, we will try and get the consultation right.

Amendment No. 76 would limit the potential scope of the enabling power. The clause does not prevent the Secretary of State from excluding certain categories of applicant from a cost charge or from setting differential rates for certain categories. Indeed, the existing fee setting powers referred to in the clause already allow him to do the latter. Those provisions allow the setting in secondary legislation of different provisions for different circumstances. I hope that the hon. Gentleman will accept that primary legislation is not appropriate for such exemptions. The secondary

legislative process is the correct process through which to prescribe the detail.

I take on board the hon. Gentleman's points about students and the occupations highlighted in the amendment. Many of those jobs are in the public sector, and we would not want to overburden the public sector by transferring the cost of the fees on to it. We want to take all of those issues into account.

Amendment No. 77 would have a similar impact in reducing potential income, because it would limit the number of times that a person might have to pay a charge. Students do not have to make successive applications for extension. I have taken great care to ensure that students know that they can apply for entry clearance outside the UK—a student visa costs £36. They can apply for the full period of their first course of study, whether it be one, two or three years, so would face no in-country charges. Some people arrive as students and are able, if they obtain their qualification, to switch to other categories, such as an employment-related category. They would be on a higher salary income and we do not think it right to exclude the potential of a further charge in such circumstances.

New clause 2 would amend the original charging legislation in the 1999 Act. Fees have been prescribed for applications for leave to remain, variation of leave, transfer of an indefinite leave stamp and so on. There is no facility to waive fees in the charging legislation. Other than the very few people who are legally exempt from the charge, everyone must pay for their applications to be processed.

However, that does not mean that we cannot deal with cases of maladministration. Certainly in the charging regime, they do not occur with any significance, but I can understand the wish for some remedy if an error does occur. The power to make an ex gratia payment in cases of maladministration exists independently of the charging regime. It is used and would be used in relation to this power if necessary.

I hope that the hon. Member for Woking feels that I have covered his points. I know that Opposition Members have reservations about this issue. I say to the hon. Gentleman that we are trying to strike a different balance that reflects the interests of the UK generally in attracting the people whom we want to attract; that does not disadvantage those people unduly; and that recognises the interests of the British taxpayer and does not require the taxpayer to foot the total bill for the administration of the fees and charges. With those comments, I ask the hon. Gentleman to withdraw the amendment.

Humfrey Malins (Conservative, Woking)

At one stage, the Minister said that she found herself on the back foot, but one of her many qualities is that she can make a comment such as that without appearing any the weaker—indeed, quite the reverse. I, for one, value that sort of observation and regard her even more highly for it. I think that she understands the points that hon. Members are making, and she had something quite helpful to say about consultation before matters are set in stone. I also think that she understands that various education bodies take these issues very seriously.

We have had a useful debate. These are probing amendments, and I am sure that we shall return to the issue in due course, not only on Report and in another place, but in further debates down the line as the months roll by. I thank the Minister for her response. It was not 100 per cent. satisfactory—I would never say that—but it went a good way towards persuading us that she understands the nature of the problems and will consider them carefully. On that basis, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 20 ordered to stand part of the Bill.

Clause 21 - Transfer of leave stamps

Neil Gerrard (Labour, Walthamstow)

The clause extends the provision in the 1999 Act for charging for the transfer of an indefinite leave stamp from an old passport to a new one to include the transfer of limited leave stamps. I can perhaps understand the logic of charging the administrative costs of doing that, although in many cases it is not necessary. The fact that an indefinite leave stamp or a limited leave stamp is in a passport that has expired does not invalidate the permission to stay, whether the leave is limited or indefinite. However, many people want to have the stamp in their currently valid passport and may have problems, particularly in trying to get an airline to carry them, if they do not have a stamp in their currently valid passport. That would apply in particular to someone who had limited leave of entry.

I would be concerned if we embarked on a regime under which substantial fees were charged simply for transferring stamps from old to new passports—fees that were well above the administrative costs of doing

so—even if it was believed that charging was justified in the first place. I hope that the Minister can give us some reassurance that we will not be in the business of charging more than it costs to carry out the straightforward administrative process of moving a stamp from an old passport to a new one.

Beverley Hughes (Labour, Stretford and Urmston)

I can assure my hon. Friend that clause 21 is not affected by clause 20. Fees for applications to transfer leave stamps will be set under Treasury rules and will cover only the full administrative costs. I can also assure him that this is a technical clause in the sense that it will ensure that leave stamps include any new forms of stamps, stickers and other attachments. We are working to new vignettes for residence permits and so on, and the definition of stamps will include some of the new technology that we are using. I hope that that reassures my hon. Friend.

Question put and agreed to.

Clause 21 ordered to stand part of the Bill.

Clauses 22 to 25 ordered to stand part of the Bill.

Schedule 4 - Repeals