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

House of Commons, 1 March 2004.

Clause 2 — Entering United Kingdom without passport

Beverley Hughes (Labour, Stretford and Urmston)

I beg to move amendment No. 48, in page 2, line 4, leave out from 'if' to 'he' in line 5 and insert

'at a leave or asylum interview'.

Michael Martin (Speaker, Glasgow Springburn)

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

No. 3, in page 2, line 5 leave out 'in the United Kingdom' and insert

'at a United Kingdom port or airport'.

No. 1, in page 2, line 5, leave out from 'him' to end of line 7 and insert 'a document which'.

Government amendment No. 49.

No. 2, in page 2, line 11 leave out from 'him' to end of line 12 and insert 'a document which'.

Government amendments Nos. 50 and 51.

No. 99, in page 2, line 30 at end insert—

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

Government amendments Nos. 52, 34 and 53.

No. 101, in page 3, line 11, leave out second 'and'.

No. 100, in page 3, line 14, at end insert

'and

'(c) an offence to which section 31 of the Immigration and Asylum Act 1999 (c. 33) applies.'.

Government amendments Nos. 54 and 55.

No. 102, in page 3, line 23, at end insert—

'(11) The Secretary of State shall, before commencement of this section, and thereafter from time to time as he may decide necessary, publish detailed guidance on the interpretation and implementation of section 2 of this Act.

(12) Guidance issued under subsection (11) shall not be made unless a draft has been laid before Parliament and approved by resolution of each House of Parliament.'.

Beverley Hughes (Labour, Stretford and Urmston)

I shall speak to Government amendments Nos. 48 to 55 and 34, and I intend to resist Opposition amendments Nos. 1, 2, 3, 99, 100, 101 and 102. We are dealing with clause 2 and the offence of deliberately disposing of or destroying documents.

I want first to deal with amendment No. 3 and Government amendments Nos. 48, 49 and 50, which address the linked matters of confining the clause 2 offence to ports, finding a better description of when the offence is committed and allowing a period of three days for in-country applicants to produce their documents.

Concerns were expressed in Committee about the definition of "first interview". Another concern was that someone should not be caught by the offence if, for example, their passport was mistakenly left at home—that was part of the reason why the Opposition tabled their amendments. I have considered those concerns carefully and have sought to address them in Government amendments Nos. 48 to 55. I shall set out briefly what they do and why I tabled them. As I mentioned in our debate on clause 2 in Committee, we expect that the criminal offence will in practice be used most against people who arrive at ports without documents. In those circumstances, there will rarely be an innocent explanation for lack of documentation; for people arriving in-country, however, there may be more reasons why they no longer have appropriate documentation. As was acknowledged in Committee, cases of destruction or disposal of documents by people applying in-country—for example, at the asylum screening unit—should not be excluded from the scope of the offence.

Members who served on the Committee will recall that I used as an example an issue that we are investigating at the moment. We believe and have evidence to suggest that people already given refugee status in other European countries are using those documents to come in straightforwardly through our channels at port, and then turning up at the asylum screening unit without those documents and claiming asylum. I do not think that any hon. Member would want us to be unable to take action on such behaviour.

To retain the coverage of both in-country and port claims in the offence, while not penalising people who, for example, have left their passport at home, Government amendment No. 50 allows in-country applicants three days to return with a document, should they not have it with them when making their application. While we expect people to realise that they need to bring their immigration documents, we accept both that that is not always the case and that people who were aware of the need for such documentation will sometimes forget it all the same. We do not want to penalise people who do not seek to frustrate our immigration controls and are willing to co-operate with the authorities. However, if the offence is to act as a deterrent, it must bite on both in-country and port cases. I hope that Government amendment No. 50 will reassure Members that concerns expressed in Committee have been dealt with.

There was also concern that someone could, under clause 2, avoid the offence if they had a passport when they were interviewed, but subsequently disposed of it. For port cases, there was concern that if someone was, for example, asked for a passport by a surveillance officer, that could be construed as a first interview. If so, someone who destroyed the passport between showing it to a surveillance officer and the immigration control interview might not be caught by the offence. For in-country cases, a person might be able to avoid the offence by claiming to have been interviewed at port. That could be relied on mainly, although not necessarily exclusively, by people granted leave on entry.

To address that problem, the term "first interview" has been replaced by

"at a leave or asylum interview",

which is to be defined by subsection (10) to cover any interview in which a person seeks leave to enter or remain and, so far as they are not already covered, claims that removal would breach our obligations under the refugee convention or the European convention on human rights. That ensures that someone cannot avoid committing the offence by saying they have been interviewed previously and were in possession of a passport at that time.

Government amendment No. 34 and amendments Nos. 100 and 101 relate to article 31 of the refugee convention. In Committee, I said that the reasonable excuse contained in clause 2 provided for the protection offered under article 31, but I understood that that was an important issue, so I undertook to consider the way in which the defence, as set out in clause 2, would operate to ensure that it did not have the unintended effect of penalising any refugee who was protected by article 31.

In particular, we have looked at subsection (5)(b), which rules out as a reasonable excuse three situations in which a person has deliberately destroyed or disposed of documents. We have concluded that the first two situations require no amendment, as there can never be a justifiable reason for a person to dispose of a passport to delay the handling of their claim or to enhance its chances of success. The third situation is where a person disposes of a passport at the behest of an agent or facilitator. In the great majority of cases, disposing of a passport for that reason is unacceptable, and it is important that clause 2 sends out the clear message that that is so.

Henry Bellingham (Conservative, North West Norfolk)

Is the Minister aware that there was a large influx of Chinese immigrants into my constituency during the summer? Many were illegal, and many of their passports and other documents had been destroyed by the people traffickers—the triads and snakehead gangs—who had imported them into this country at great expense to them and their families. What is her view on that?

Beverley Hughes (Labour, Stretford and Urmston)

The offence contained in the clause is designed to address precisely that kind of behaviour, so that we can send out the message that, if people destroy their documents, even at the behest of a facilitator or an agent, they will be liable to prosecution, except in the very special circumstance that I shall outline. Although some members of the Committee expressed concern that that would penalise the person who entered the country illegally, not the facilitator, we can already take strong measures against facilitators.

If we are to change people's behaviour, we need parallel measures that we can use to try to ensure that people do not destroy their documents. As hon. Members will know, as well leaving us unable to identify people at the point at which they make their claim, the destruction of documents causes great difficulty in returning people to their own country if their claims fail. Without documentation is it very difficult to satisfy other countries that such people are indeed their own nationals, and one can understand why. We would feel the same if we were asked to take people back. We would want evidence, which is very difficult to supply without documentation.

Hilton Dawson (Labour, Lancaster and Wyre)

I recognise the progress that has been made, but children who come to this country may have destroyed their documents at the behest of people who may well have exerted all sorts of force and influence on them. Can my right hon. Friend assure me that the best interests of those children are being recognised in the amendments and Bill that she is proposing?

Beverley Hughes (Labour, Stretford and Urmston)

I assure my hon. Friend that the authorities—the immigration service, the police and the Crown Prosecution Service—will take such issues into account in operating the offence. I do not want to exclude children specifically from the Bill because that would provide a perverse incentive for people to declare themselves to be under 18. I can assure him—we had this discussion in Committee—that the guidance published for the authorities will make particular reference to that point.

In the great majority of cases, as I have said, disposing of a passport, even at the behest of an agent or facilitator is unacceptable, but I accept that there may be rare cases in which refugees are so vulnerable, possibly traumatised and dependent on the facilitator for ensuring safe flight from persecution in their country that it would be unreasonable to expect them to ignore the facilitator's instructions. In those rare cases, refugees could argue that they had good cause for no longer having their passport, thus meriting the protection of article 31 of the convention.

Government amendment No. 34 will modify subsection (5)(b)(iii), so that disposal on the advice or instruction of a facilitator is unacceptable,

"unless in the circumstances of the case it is unreasonable to expect non-compliance with the instructions or advice."

We have introduced the amendment primarily with refugees in mind, but Members will notice that we have not limited it to such persons. We have done so to ensure that we cater for the rare situation in which particularly vulnerable people can satisfy us that, despite their not being refugees, they still could not be expected to ignore instructions from their agent. I expect that exception to be relevant in only a very limited number of cases, but it is nevertheless important to have that safeguard in order to ensure that we comply with our obligations under the refugee convention and to cater for other exceptional cases.

Clause 2, as amended, has two safeguards that ensure that the offence is not inconsistent with a proper interpretation of the protection afforded to certain refugees under article 31. The first is the "reasonable excuse" defence, which would cover situations in which persons had no document when they began their journey. Secondly, subsection (5)(b)(iii), as amended, makes allowances for those rare situations in which a person's actions in deliberately destroying the document might be considered a reasonable cause for the purposes of article 31. I therefore believe that the amendment tabled to provide for article 31 is not necessary. In some respects, it does not go as far as my amendment, because, in rare situations, the latter can cover the actions of non-refugees who are nevertheless particularly vulnerable. I hope that that reassures Members of our commitment to the 1951 convention, and addresses the concerns raised in Committee.

I shall comment briefly on the Opposition amendments. Amendment No. 99 is a probing amendment dealing with the burden that clause 2 places on an individual to prove that, on the balance of probabilities, he or she had a reasonable excuse for destroying the document. We have placed the burden on the defendant because where someone has a reasonable excuse for not having a document on arrival, the details of that story will usually be solely within the knowledge of that individual. In Committee, I gave the example of the person who had been smuggled on to a plane by a corrupt official and who had never had a document. It is clear that only that person would know the details of how and when that happened, so it is not unreasonable to ask the defendant to prove, on the balance of probability, that it did occur. I therefore believe it justifiable to require the defendant to prove that, and I am pleased to note that the Joint Committee on Human Rights also takes that view.

The Opposition have tabled amendments Nos. 1 and 2 to allow those who can produce another document that establishes their identity to avoid the offence in question. As I said several times in Committee, if a person satisfies us that he or she has never had a passport, or has a reasonable excuse for not having one now in spite of having had one before, clause 2 will not catch him or her, and nor is it designed to do so. However, where a person has disposed of or destroyed a passport and can provide no reasonable excuse for doing so, I do not consider it right that he should be exempt from the offence simply because he then produces some other document—almost by definition, a lesser document—that, he says, shows who he is. That immediately gives rise to the questions of why the person disposed of the passport in the first place and why he has chosen to produce some other apparent evidence of identity. We need to be serious in sending out the message that destroying documents is not acceptable.

Of course, if persons are making a genuine effort to identify themselves through the production of alternative identification, that might make us more inclined to accept any reasons given for their not having a passport, but as I have said, a person who has a reasonable excuse for not having a passport will not be prosecuted, whether or not he or she has other documents that might prove who they are.

If the amendments were accepted, people could try to advance a defence by producing any sort of document that they claim establishes their identity, nationality or citizenship. Given that such documents could come from any part of the world and from many different types of organisation, deciding whether they are genuine and whether they establish identity satisfactorily would be extremely difficult and resource-intensive for United Kingdom authorities. Considerable operational difficulties attach to identifying whether alternative documents are genuine or forged. In any event, Members will appreciate that a document such as a driving licence or student identity card would not be sufficient to travel on. The fact that a person has arrived in the UK suggests that they must have had a travel document in order to board, say, a plane in the first place. Furthermore, and returning to my earlier point about removals, I must say that driving licences and student identity cards do not allow us to return individuals; they are not sufficient for that purpose. That means that those who are trying to thwart return home by destroying documents would be able to do so safe in the knowledge that they could avoid the offence by producing some other, lesser document.

Amendment No. 102 would create a statutory requirement for written guidance for the operation of the offence. As I said in Committee, we will produce such guidance—I intend to do so before the Bill is enacted—but I do not see a case for placing it on a statutory basis. I hope that my commitment is sufficient and that hon. Members will agree not to press the amendment.

Humfrey Malins (Conservative, Woking)

I should tell the Minister straight away that Conservative Members welcome some of the Government amendments that have been tabled since our very constructive debates in Committee. We take the view that those who deliberately destroy their documents, thereby intentionally frustrating the system, should be punished. There can be no doubt that the House should send that message to people who arrive here on an aeroplane or a boat having boarded it with valid documentation but who, at some time during the journey or after landing, and before being interviewed by an immigration officer, destroy their documents. We are absolutely at one with the Government on that point.

The Minister said that we are dealing with offences of deliberately destroying documents. However, clause 2 does not say that; it is not headed, "Entering the United Kingdom having destroyed a document". It says:

"A person commits an offence if when . . . interviewed . . . he does not have with him an immigration document"—

namely, a passport. Will the Minister tell me whether it is possible to draft the clause better to make it clear whom we are trying to prosecute?

As was said in Committee, millions of children are born in this world every year who never have any form of passport; likewise, tens of thousands of people who travel to this country to claim asylum have never had a passport. No doubt, there are also tens of thousands whose documents are destroyed, one way or another, en route. In many ways, I understand the concerns of bodies such as the Law Society, that argue that these measures may penalise genuine refugees and expose them to the risk of prosecution. Many of the strongest applications for asylum come from individuals who have been forced to enter this country with no documents or invalid documents. The mischief that we are trying to address is that of the person who, when attending before a Home Office official or an immigration officer, cannot satisfactorily prove their identity. The problem arises when it is impossible for officials to tell where people come from and they will not provide that information.

I therefore tabled amendment No. 1 as a probing amendment, which we shall not press to a vote. It would replace the requirement for a passport with one for a document which would satisfactorily establish identity. If the mischief that the Minister is trying to tackle is the person who tears up a document, surely she should understand that applicants for asylum, who may never have had a passport but who can say to the immigration officer that they have a record of military service or proof of identity such as some sort of card, should not be guilty of an offence.

The clause has been improved since our proceedings in Committee. I broadly welcome Government amendments Nos. 48, 50 and 34 because they tackle some of the issues that we raised there. I hope that the Minister can confirm some of the comments that she made then. She said:

"Our intention is to be able as a result of this clause to prosecute people who deliberately destroy or dispose of their documents between embarkation and claiming asylum in this country. It is absolutely not our intention to try to prosecute people where we believe that they never had documents in the first place or that they have not destroyed documents, whether false or not."—[Official Report, Standing Committee B, 8 January 2004; c. 22.]

If she is willing to repeat the undertaking that her intention is to prosecute only those who destroy documents, Conservative Members will be happier. The clause does not state that at all. It plainly provides that an offence is committed if the person

"does not have with him an immigration document".

Edward Garnier (Conservative, Harborough)

My hon. Friend has lighted on an important point. Although the Minister made the comments that he quoted, the immigration officer at the port of entry will not have Committee Hansard in front of him, and I doubt whether it will be drawn to his attention. It is therefore important that the Minister should either include a provision in statute or undertake to provide specific guidelines to the immigration service so that the point that my hon. Friend makes so cogently is at the forefront of the mind of the officer who has to deal with each asylum applicant.

Humfrey Malins (Conservative, Woking)

I am grateful to my hon. and learned Friend who contributed so well to our Committee proceedings. Of course, he is right. No immigration officer who conducts an interview will have Hansard in front of him or her. The immigration officer is faced simply with the proposition that the offence is committed if the person does not have the document. Throughout our Committee proceedings, we asked the Minister to come back with a better-drafted provision. The measure is sloppy because although it provides for an offence, stating that one is committed in specific circumstances, we have to rely on the Government to say that, despite the legislation, they will not prosecute in a specific case. The Minister owes us further explanation.

In Committee, I pointed out there are some 50 million unregistered births every year. That is approximately 30 per cent. of all births. The proposition that refugees, of all people, should be able to present passports is unreal. The Minister has failed to deal with that or to table a suitably drafted amendment.

I was pleased to receive a letter from the Minister in February that stated:

"Where we accept that a person began their journey with no such document we would regard that as a reasonable excuse for not having one on arrival."

It is all very well for the Minister to say that she would regard that as a reasonable excuse, but would the courts? The Bill is vague about that and does not satisfactorily establish sufficient protections for those who have simply never had a document. I have yet to hear from the Minister any argument against my proposition that the applicant could and should be able to identify himself or herself through another form of documentation.

I do not think that the Minister answered the following question in Committee, but she should be able to tell us how many people she anticipates being prosecuted each year for the offence. In a year in which more than 100,000 applications were made for asylum, it is known to the authorities, I think, that a huge percentage of those people had no documents whatever. Under the Bill, therefore, a huge percentage would find themselves having committed an offence, leaving the immigration officer in question with virtually no alternative but to ensure the arrest of those people and ensure that they were charged. It is a big problem.

On the other hand, the problem of those who tear up their documents is smaller and more easily controlled. It arises principally at airports and at ports to which people travel on boats, having provided passports in the first place. Amendment No. 1 would therefore insert the requirement for a document rather than a passport, on the basis that the mischief that the whole House is trying to address is those who destroy their documents rather than those who have never had any.

I repeat the point made by my hon. and learned Friend the Member for Harborough (Mr. Garnier) that it is a poor thing that the immigration officer on the case must address his or her mind to Hansard reports to find out that the Minister has no intention of prosecuting anyone, except those who destroy their documents. That is the spirit in which I tabled the amendment. As I said, the Minister has gone some way to meeting concerns expressed in Committee on the defences and the times to produce documents—three days—and that represents some progress. It is possible, however, that she can make yet more progress and make the clause clearer and easier to enforce.

Roger Casale (Labour, Wimbledon)

I am grateful for the opportunity to make a short contribution. Like many Members, I have received powerful representations in my constituency in relation to the Bill, not least from the Religious Society of Friends led by Kurt Strauss and from Alison Williams and the Merton and Wandsworth law centre, with which I do a great deal of work to help many refugees in my constituency. They understand the need to send a strong message to people who wilfully and unnecessarily destroy their documents. It is crucial, however, that we strike the right balance in terms of protecting people's rights, particularly under the conventions—the Minister has referred to article 31 in that connection. I am pleased that she has listened to those representations, and on that basis I feel more able to support these amendments and to give support to the broad spirit of the Bill.

When the Minister responds, will she confirm that when special circumstances arise under the amendment that she is putting forward, each case will be looked at on its merits? Of course, one would not expect the circumstances in which somebody does not have valid documents to be a valid defence—that would be the exception rather than the rule. Given the exceptional circumstances of many refugees and asylum seekers, however, there may be many cases. I hope that the Minister does not have a particular target in mind, such as 2, 3 or 5 per cent., but that she will look at each case on its merits to see whether such a defence will be possible under the new amendment. It is crucial that we have those safeguards that she is now putting in place to protect those rights, while at the same time having a robust and proper system that deters people from wilfully destroying their documents. Part of the operation of those rights, however, must be that each case is viewed on its merits, and I should be grateful if the Minister would reinforce that point and confirm that that is exactly what she will do.

David Heath (Liberal Democrat, Somerton and Frome)

I am grateful to the Minister for listening so carefully to what was said in Committee. Before I say more about that, however, let me list our main problems with this part of the Bill.

To avoid misunderstanding, I reiterate that we fully acknowledge the need to deal with the specific problem of those who wilfully destroy their passports and other travel documents to cause difficulties in the asylum and immigration system. None of us doubts the necessity for adequate statutory support allowing the immigration service to deal with those who commit that offence.

Our difficulties arise in four principal areas, some of which were mentioned by the hon. Member for Woking (Mr. Malins). First, there is the nature of the offence that the Government are putting in statute. As he pointed out, the clause relates not to an act of commission—that of destroying documents—but to an act of omission, that of simply not having the documents at the time when they are required to be produced. The Minister has gone a long way towards reassuring us about the circumstances in which the powers would be used, but as things stand the offence is effectively absolute, and prosecutions can proceed on that basis.

The second issue is the point at which the offence is committed. It seemed from the preamble that we were talking about ports of entry—seaports or airports—but the wording of the Bill made it clear that it referred to an interview at any point. In Committee, we told the Minister forcefully that we needed a much clearer definition of what constituted the interview at which the offence would be committed. I think that the Government amendments address that problem.

The third difficulty is that effectively no discretion is given to immigration officers considering whether an offence has been committed. We have had a good deal of debate about the reasonable excuses that could be adduced before a court as a defence, but the fact remains that the immigration officer is faced with a simple decision that does not allow him or her to take the individual's circumstances into account. It is a case of whether people have their documents on them or not when they are interviewed. If they do not have them, they are committing an offence; if they do, they are not. The discretion that has been suggested for immigration officers is not in the Bill as currently drafted. Again, the Minister has been helpful, but the guidance that she intends to publish will actually ask immigration officers to disregard what the Bill says and insert what the Minister wants. I would prefer legislation that stated what immigration officers were to do, and gave them the necessary discretion.

Humfrey Malins (Conservative, Woking)

The hon. Gentleman's contributions in Committee were much appreciated. At the beginning of her speech the Minister said that we were dealing with the offence of deliberately destroying documents. Does the hon. Gentleman agree that that is not the case? Surely we are dealing with the offence of not having the documents.

David Heath (Liberal Democrat, Somerton and Frome)

The hon. Gentleman is absolutely right. That is the offence that the Bill suggests. The Minister has said that she would expect the power to be used where an officer has a reasonable suspicion that the documents have been wilfully destroyed, but that is not the same as framing the offence in those terms, which is what she has thus far failed to do.

Vera Baird (Labour, Redcar)

On that point—I understand what the hon. Gentleman is saying, but I sympathise with the Minister—would it not be extraordinarily difficult to prove beyond reasonable doubt that somewhere on the high seas or on a plane, an individual had personally destroyed their documents? If that is next to impossible, is not the better model to frame the charge of being here without documents, and leave open the prospect of a reasonable excuse, exculpating the individual from it if a satisfactory explanation can be provided? Is not that perfectly fair?

David Heath (Liberal Democrat, Somerton and Frome)

I am grateful to the hon. and learned Lady and I have some sympathy with her and the Minister's position, because I understand how difficult it is to frame the offence in the terms required to deal with the mischief. The answer to her point is that it is even more important to get the burden of proof right on the available statutory defences. That is my next point. If we can do that, I will be much more satisfied that the defendant has an appropriate defence for this apparently absolute offence and that the prosecution will then have to prove its case beyond reasonable doubt. That does not apply at present, which is my fourth and most serious criticism of clause 2. Amendment No. 99, which is in my name, is designed to deal with that problem.

As I have already said, the Government have been helpful to some extent on this particular clause. What the Minister said in Committee provided some reassurance, as did a subsequent letter, what she said today and the amendments that she has introduced. I greatly welcome the Government amendments that deal with defining the interview for the purposes of the offence being committed—a specific suggestion that I made in Committee, which the Minister has obviously considered and returned to. That is doubly helpful. It will ensure that the defendant is not caught out in unfair circumstances, and, more importantly from the Government's point of view, it will help the prosecution in taking away a defence that might otherwise be available. The present clarity—though it could be improved further—is helpful.

Will the Minister deal with a minor point about Government amendment No. 49? I see no problem with it generally, but I am interested in the words "or living", which were not part of the original wording. The amendment includes the words:

"in respect of any dependent child with whom he claims to be travelling or living".

I presume that that applies principally to the circumstances in which someone is interviewed in country—not at a point of entry to the UK. The Minister says that those circumstances will infrequently, but potentially, apply. The person is then required to have travel documents for a child with whom he or she may not have entered the UK, but who is now dependent on them. I believe that there is still a potential difficulty with that widening of the Bill's scope and I invite the Minister to reflect on it further.

I welcome Government amendment No. 50, which deals with the delayed production of documents for those in country. It is a perfectly sensible provision, which we urged on the Minister in Committee. She has also been helpful on a point that affects my amendments Nos. 100 and 101, which deal with section 31 of the Immigration and Asylum Act 1999. Confusingly, that deals with article 31 of the refugee convention. The Minister has been most helpful today and I believe that the Government amendments deal with the point that I sought to raise, so I shall not press it any further.

The Minister has also been helpful on the content of amendment No. 102, which deals with the statutory duty to provide guidance. She has put it on the record that we will have guidance, which is good news.

That leaves me with one final, very important matter: the burden of proof. In her opening remarks, the Minister suggested that amendment No. 99 was a probing amendment. I have to disappoint her. It is not a probing amendment, but one that I and my right hon. and hon. Friends mean very sincerely, because the effective reduction of the burden of proof is a real problem. It is not even a move from the prosecution's having to prove beyond reasonable doubt—which would normally be the case with a criminal offence—to the use of the balance of probabilities. It reverses that, because the defence will have to prove on the balance of probabilities that the reasonable excuse that it has put forward as a defence is proper. The prosecution does not have to do a thing about that, because if that proof is not shown, there is no defence.

That is profoundly unsatisfactory as a matter of law. For the House's benefit, I draw attention to the fact that the words in amendment No. 99 are not new to statute, but are already in the Terrorism Act 2000. With this Bill, we have the extraordinary situation that the openings for the defence of someone prosecuted under the Terrorism Act are better than those of an individual who, under this legislation, happens not to have their passport with them at the time of their substantive interview at the point of charge.

Edward Garnier (Conservative, Harborough)

In my experience, where the burden of proof lies is not always terribly important during the run of a trial. However, what the hon. Gentleman is arguing for is not outside the ordinary. Not only under the Terrorism Act 2000, but in straightforward matters such as self-defence it is for the defendant to raise an issue and for the prosecution to knock it down. I am concerned that the Government seem to have forgotten that, and are placing an unusual burden on the defendant. I hope that the hon. Gentleman will argue his case with vigour.

David Heath (Liberal Democrat, Somerton and Frome)

The hon. and learned Gentleman's support on this issue in Committee was notable, and he clearly intends to maintain his support today. I am grateful for that. The Government are playing fast and loose with the rules of evidence and burden of proof in this instance, which is very significant. I quoted the 2000 Act simply because it contains an almost directly analogous situation in terms of a statutory defence available to the defendant that is then required to be disproved beyond reasonable doubt by the prosecution. I do not think it unreasonable to expect the prosecution to do its work, nor do I think it unreasonable to seek to uphold a legal principle about reasonable doubt requirements in such matters that has persisted in this country since, I think, the early 1930s, and on which there is clear guidance. I do not understand what special circumstances make the Government—not for the first time, because they have suggested changing the burden of proof in other fields when it is administratively convenient—feel that is appropriate to abandon an important tenet.

I think that the provision in my amendment, or something similar, will be passed in another place because there are enough people there who will feel strongly on the matter, and who have the expertise—well beyond my powers of persuasion—to ensure that a vote is passed. However, I should like to persuade this House that it has a role in defending the traditional tenets of our justice system, and that we should make a stand on such issues in this place.

Because I feel very strongly about this, Mr. Speaker, I hope that I shall be able to catch your eye later in order to press amendment No. 99 to a Division. A very important principle is at stake here, in terms of the conduct of our criminal trials, and it should not be allowed to go simply because of inadvertence on the part of the House or complacency on the part of Ministers or others who have advised them that this is an appropriate way to go.

Edward Garnier (Conservative, Harborough)

Looking at the clock, I see that we have until about 4.50 pm to discuss not only this group of amendments but four others, which demonstrates the absurd nature of the proceedings with which we must now contend, on an issue of such important public interest.

I want briefly to discuss clause 2 and the amendment tabled by my hon. Friend the Member for Woking (Mr. Malins). I broadly agree with the thrust of what he said, but the Government's problem is that they have allowed themselves to be confused by the magic of terms such as "passport" and "travel document". Surely clause 2 is about discovering the identity of the person presenting himself to an official at the sea port or airport, or at a later interview. There are plenty of ways of proving one's identity other than by a passport or travel document. We had a brief discussion on this in Committee, although it was necessarily truncated because of the guillotine procedure.

The wider public who might come to read or perhaps listen to these proceedings might not know that the Government are wedded to the idea of people proving their identity at the point of presentation or interview by means of a passport or travel document only. As I have said, there are plenty of other ways of proving one's identity. Indeed, if we are to be strict about this, a passport is not necessarily a proof of identity. I see my right hon. Friend the Member for Wokingham (Mr. Redwood)—a fellow of All Souls—sitting two Benches below me; I do not think that I need to go into a huge and interesting philosophical discussion about the nature of identity. For practical purposes, an immigration or asylum officer will need to ask, "Who is this person presenting himself to me? Is he who he says he is?" That procedure does not necessarily have to involve a passport. I therefore ask the Government to think carefully about the need to tie themselves down to a requirement for someone to prove their identity by means of a passport or immigration document.

Let us imagine, for example, the case of an army or military group that had been the military arm of a country's Government but had ceased to have the confidence of the new Government, perhaps after a coup or some other form of change in government. The armed forces would therefore cease to be the official army and would be designated as rebels by the new Government. That might require a member of the former armed force—now a rebel—to seek asylum in another country because he had a genuine fear for his life in his home country. He might not have a passport or travel document, because he had had no need for one, having lived all his life in the country that was now in turmoil. He might, however, have his military dog-tag; he would therefore have his military number and possibly his name on the brass plate around his neck.

Under clause 2, however, that would not be a permissible means of identification. The individual who arrived on our shores or at one of our airports presenting his dog-tag would therefore have committed an offence, because he did not have a travel document. It could well be said that the Government's new amendment, providing for a reasonable excuse, will lift liability from that individual under the clause. However, let us look again at the amendment tabled by the Home Secretary and no doubt moved—implicitly, if not expressly—by the Minister, to whom I offer many congratulations on becoming a member of the Privy Council, although I gather from Labour party circles that membership of the Privy Council is a rather fluid arrangement at the moment.

The Home Secretary's amendment again refers to a travel document and to a passport as the means of proving identity. I can well understand the Government's argument; if one arrives on these shores in a tin bath, having capsized several times, one's passport and documents will have been washed away and will not be presentable immediately to immigration officers. One will have a reasonable excuse if it can be demonstrated, on the Government's argument, that that is what happened. There are plenty of examples—I have just given one—where someone's identity can be "proved", in so far as it is possible to prove identity at all, by means other than a travel document or a passport.

In the light of the shortness of time, and the fact that I have a suspicion that others will wish to speak, I will stop there. I hope that my remarks will prove attractive to the Minister, and not only for their brevity, and that she will respond positively at the end of the debate. As my hon. Friend the Member for Woking correctly stated, we are simply trying to prevent people from destroying documents—from cheating. We do not want people to cheat the immigration and asylum system.

We want to make sure that those who have a genuine claim under our laws and who come within article 51 of the UN convention can come to this country to present their claim as asylum seekers, but are not tied to identifying themselves by a particular class of document. That seems to be silly, unfair, counter-productive and probably not what the Government intend.

Annabelle Ewing (Scottish National Party, Perth)

I rise to support amendment No. 99, tabled by the hon. Member for Winchester (Mr. Oaten) and spoken to by the hon. Member for Somerton and Frome (Mr. Heath). I shall be brief as a few others wish to speak.

The amendment covers an important point of principle. As the hon. Member for Woking (Mr. Malins) said, clause 2 still does not exclude those people whom the Minister has been at pains to say are excluded—in effect or as a matter of practice—from the scope of the Bill. Her statements in Committee were welcome, as far as they went. However, I still do not see that express exclusion and, as a lawyer, I think it helpful to have legal certainty in statutes. If it is not the Government's intention to prosecute people who never had any documents, that statement should be in the Bill.

The burden of proof is raised by amendment No. 99, which I am pleased the hon. Member for Somerton and Frome will seek to press to a Division. The amendment raises a key point of constitutional principle. The Government's recent record seems to show that they are intent on denuding this country of its fundamental constitutional principles. It has always been the case that, in criminal prosecutions, the burden is placed on the Crown to prove its case beyond a reasonable doubt. Where a special defence is raised, it is up to the accused in Scotland or the defendant south of the border to make a reasonable argument, but the burden remains with the prosecuting authorities. We have been well served by that constitutional principle for centuries, certainly in Scotland.

It is astonishing that the Government plan, with a stroke of the pen, to get rid of that principle as far as asylum is concerned. That is unacceptable; if we see the erosion of that fundamental principle today on asylum, what will we see tomorrow? Where does the buck stop? Where will the line be drawn in terms of removing that fundamental principle?

Beverley Hughes (Labour, Stretford and Urmston)

I realise that I may not have time to reply to the debate so, to reflect the comments of my hon. and learned Friend the Member for Redcar (Vera Baird), will the hon. Member for Perth (Annabelle Ewing) and other Members who spoke in a similar vein explain how they think the prosecuting authorities could prove beyond reasonable doubt when, where and how an individual disposed of or destroyed their documents, between boarding a plane in another part of the world and travelling across airspace, when that act may not have taken place within UK jurisdiction but in the plane, outside British airspace?

Annabelle Ewing (Scottish National Party, Perth)

The Minister should never underestimate the ingenuity of prosecuting authorities. The scope of the clause should be wide enough to cover people who never had those documents in the first place. That is the problem, but the Minister has not addressed it.

David Heath (Liberal Democrat, Somerton and Frome)

Is not the key point that the prosecution does not have such a requirement under the wording of the offence in the Bill? Our argument is simply that the prosecution should have to prove beyond reasonable doubt that such a defence does not apply, which is completely different from proving that documents were destroyed in a particular place.

Annabelle Ewing (Scottish National Party, Perth)

I thank the hon. Gentleman for that helpful intervention and for clarification of his amendment. The amendment provides specifically that the Crown has to knock back the defence of reasonable excuse submitted by the accused in Scotland, or the defendant south of the border. That is the purpose of the amendment. It is an important provision and I shall be happy to support it if a Division is called.

Vera Baird (Labour, Redcar)

I shall confine my remarks to amendment No. 99, with which I disagree. However, I am grateful to the hon. Member for Somerton and Frome (Mr. Heath) for his concession about the difficulty that would be faced by prosecution authorities when trying to prove by whom, how, when and where a document was destroyed. That is the degree of detail that is usually required when framing a criminal indictment and the hon. Gentleman readily conceded that it would be extremely difficult to prove it beyond reasonable doubt. That is the test, which is why the offence is framed as it is—a point that he seemed to accept.

However, on the question of the burden of proof in a reasonable excuse, are we not in exactly the same position? The only person who knows how the document came to be destroyed, or why it does not exist, is the person who does not have their document with them when they arrive. How is the prosecution to disprove it if the person says, "My passport fell overboard when I was moving from a big ship to a small boat somewhere just off the coast of Malaysia"? A person has only to say that and the amendment would then impose on the Crown the necessity to disprove beyond reasonable doubt that such an event had occurred, which would be quite impossible. As the hon. Gentleman has already conceded, that same impossibility shows the wisdom of the current framing of the offence.

All that is required is that the person with the unique knowledge of what happened must show that it is more probable than not that he is telling the truth. That seems a reasonable way to evaluate something that, in 90 per cent. of cases, only that person can possibly know about. The tribunal will say, "That's probably true", in which case the person has passed the test. That test is not mighty or difficult, but perfectly reasonable. It certainly is not, as the hon. Member for Perth (Annabelle Ewing) said, a constitutional principle that in each and every criminal case the prosecution must prove every element beyond reasonable doubt, and that the only requirement for the defendant is to raise a defence, which must always be disproved.

There are innumerable cases in licensing, for example, or involving other kinds of permit, when it is uniquely in the person's knowledge whether they have a reasonable excuse for not holding the required document. Sometimes, people just have to declare their excuse, while under other legislation they have to discharge the burden of showing that it is probably true. There is no constitutional principle here.

I point in particular to the fact that the defence of diminished responsibility for murder relies on the defendant showing on the balance of probabilities that what he says about his state of mind at the time is true. I respectfully say that no constitutional principle is being undermined, and the amendment is wholly impractical.

John Redwood (Conservative, Wokingham)

Listening to the debate, I have been swayed by the softer voices of my hon. Friend the Member for Woking (Mr. Malins) and my hon. and learned Friend the Member for Harborough (Mr. Garnier), urging the Government to caution in framing this offence. I am persuaded to their view because the offence attracts a sentence of up to two years' imprisonment. Someone could genuinely have had their wallet or handbag stolen on the ferry over to this country, and if their plea in mitigation was unsuccessful they could go to prison here. I wonder whether we should really be adding to the prison population for such a purpose.

It is a pity that we will not have time for a proper debate on penalties, because one would have thought that people trying to come here illegally might regard being sent back as a more serious punishment, and that might be a more sensible response in our own national interest, undesirable though two years at Her Majesty's pleasure might be for most people.

I urge the Minister to think more carefully about the framing of this offence, in light of the good and learned arguments advanced by Conservative Members and the doubts expressed from those on the Liberal Democrat Benches.

Bob Blizzard (Labour, Waveney)

The right hon. Gentleman mentioned sending people back who arrive here without the necessary documents. To where would he send them?

John Redwood (Conservative, Wokingham)

To the place they had just come from, because they would be arriving at a port of entry off a flight or a ferry, and surely the authorities could work out where that flight or ferry had just come from. In most cases, the answer will be straightforward.

Bob Blizzard (Labour, Waveney)

Would not the country at the other end, receiving this person with no passport or documents, just send them straight back here? This poor soul might spend the rest of his life flying back and forth on an aeroplane.

John Redwood (Conservative, Wokingham)

Of course not. Very often, these people will come from a country that shares glorious membership of the European Union with us. This is precisely the kind of thing on which we should use our influence in the European Union to come to a sensible arrangement so that we do not end up playing shuttlecock with refugees or people seeking entry who do not have the right qualifications or reasons. That is surely within the diplomatic skills of some members of the Government, so that we can have common sense in this matter.

Glenda Jackson (Labour, Hampstead and Highgate)

I was unable to ask the Minister this question directly. Perhaps the right hon. Gentleman will ask her where these people will go at the end of their prison sentence.

John Redwood (Conservative, Wokingham)

I am grateful to the hon. Lady, because she has reinforced my case. Presumably, the Minister wants these people to go somewhere else after the prison sentence, so the problem remains. In the end, she must answer our question about where they are to be sent, and that is more difficult six months or two years later, after a prison term, than it would be on the day, on first arrival in the country, when we would normally know where they had come from. Arrangements could surely be made at the airport to ensure that that is the case. Perhaps we should pass legislation to ensure that we can identify exactly where people have come from when they arrive here, rather than legislating to send a lot of people to prison, some of whom might be innocent, because they have genuinely mislaid their travel documents or had them stolen in transit.

Vera Baird (Labour, Redcar)

There are often many reasons for drafting law, and I imagine that the most powerful one in this case is to deter people from destroying their documents in the first place. Although the problem subsists beyond the prison sentence, surely that purpose at least commends itself to the right hon. Gentleman.

John Redwood (Conservative, Wokingham)

I, like my hon. Friends, am worried about how wide the offence will become and whether it will be enforceable. The Minister thinks that she is making a firm proposal, but I assume that many people who are challenged will give all sorts of reasons why they do not have documents. Many may claim, as I suggested, that their handbag or wallet was snatched on their way over and that that contained the documents. Some might come up with the reason suggested by the hon. and learned Member for Redcar (Vera Baird): their documents fell overboard when they got off one ship and on to another. They might say that they left the documents lying around in the bar of the ferry and that they had disappeared when they came to pick them up again. In some cases, those people will be telling the truth and it will up to the court to listen carefully to that defence, but in other cases they will not be telling the truth. I wonder how easy it will be for the enforcement authorities to decide which people had deliberately destroyed their documents and come up with a bogus claim about what happened to them, and which had genuinely suffered a misfortune or mishap on the way over and thus did not deserve to go to prison.

I know that many hon. Members would like to hear the Minister's reply, so I shall not detain the House any longer. We want to know about the burden of proof and the width of the offence—whether it is too widely judged. I would like to know why prison is thought always to be the answer and, especially, how the Minister thinks that we will sift out those who make a reasonable defence for where their travel documents have gone from those who try to mislead the authorities—I do not think that that will be an easy task.

Edward Garnier (Conservative, Harborough)

I am grateful to my right hon. Friend for giving way because I know that he is keen to finish his speech. Clause 6 contains a list of things that will be used to decide a claimant's credibility. I do not know whether they will satisfy the hon. and learned Member for Redcar (Vera Baird), but clearly the Government are worried about people telling fibs to officials.

John Redwood (Conservative, Wokingham)

My hon. and learned Friend is exactly right. The more provisions there are in the clause—there are quite a number—the more complex things will be for the courts and the more worries I have about how enforceable the offence will be. The Minister must tell us why prison must be the result, how enforceable the offence will be, and whether it is right to reverse the burden of proof on this occasion, because that might not work with the result that she has in mind.

Beverley Hughes (Labour, Stretford and Urmston)

In the small amount of time that I have left, I would like to address a question that several hon. Members asked: why clause 2 is constructed as it is. I am again grateful to my hon. and learned Friend the Member for Redcar (Vera Baird) because she asked questions of hon. Members that revealed the answer to that question. Let us consider the situation that we would face if the clause created the offence of destroying or disposing of travel documents. A prosecution would have to prove beyond reasonable doubt that that had occurred. My hon. and learned Friend and I made it clear that that would require the prosecution to be able to say in court who had destroyed or disposed of the document, and when, how and where that had happened.

We are, of course, talking about a situation in which people travel from countries far across the world and thus spend a long time in a plane. They will also be airside in a British airport for some time, so they will have hundreds of opportunities to dispose of or destroy their documents during the journey. As I said, some of those opportunities will arise outside the UK, so even if it were possible to prove that people had disposed of their documents by handing them to an agent immediately after boarding a plane, that might well not be in a British court's jurisdiction. The potential for proving an offence would be negligible if the clause were constructed differently.

Similarly, under the clause as it stands, for the same reasons, it is virtually impossible for the prosecution to establish beyond reasonable doubt the fact that the defence put forward is not true. The present construction of the clause reflects the reality that we are dealing with. This is not like a police investigation within the confines of the United Kingdom, in which the authorities can adduce and search for evidence, and put it before the court to prove a case beyond reasonable doubt.

We are not in that situation, and it is impossible for the prosecuting authorities to do that, so the clause is not sloppy. Neither I, nor my officials, nor parliamentary counsel are complacent because we constructed the clause in that way. We did so because that is the only feasible way of constructing an offence that will catch some people who have disposed of their documents.

The burden of proof in clause 2 means that it is for the prosecution to establish that someone has arrived without a document, and the defence of reasonable excuse is open to the applicant. On the balance of probabilities, the burden of proof is for the defendant to establish, because only the defendant knows what has happened. It is virtually impossible for the prosecution to know what has happened, or to be able to establish that with any degree of credibility.

In response to the right hon. Member for Wokingham (Mr. Redwood), I should explain that the main purpose of the provision is deterrence, and if hon. Members are serious about agreeing that we need a sanction to prevent people from disposing of or destroying their documents, and to enable us to take action when they do, they should realise that this is the only feasible way of constructing such an offence. Anything else would be impossible for the prosecuting authorities to operate.

David Heath (Liberal Democrat, Somerton and Frome)

I am grateful to the right hon. Lady—as I now know her to be, and I congratulate her on that status—for giving way to me. However, the limited range of opportunities to exercise the reasonable excuse defence means that there is a limited number of options for the prosecution to prove. Given that, as she said, only the defendant knows what has happened, it will be equally difficult for the defendant to establish to the satisfaction of the court, even on the balance of probabilities, that there is a reasonable excuse. In that case, surely it is a basic principle of British law that people are presumed to be innocent unless they are proved guilty.

Beverley Hughes (Labour, Stretford and Urmston)

The hon. Gentleman must consider what I said about the reality of the situation here. I concede that it is possible that the reason why someone has no document when they arrive is that they have never had one—and I am happy to give the right hon. Member for Wokingham an assurance that we are not interested in prosecuting people in those circumstances. However, we had a considerable debate on that subject in Committee, and the fact is that the vast majority of people who arrive without documents have destroyed them or disposed of them. There is only a very limited range of excuses. [Interruption.] If people have a reasonable excuse, it is up to them to put it forward and establish it on the balance of probabilities.

Edward Garnier (Conservative, Harborough)

As the right hon. Lady now has only 30 seconds left in this rather important debate, will she briefly deal with the argument that I put to her about the passport as opposed to the means of identity?

Beverley Hughes (Labour, Stretford and Urmston)

We cannot accept other documents because people cannot travel on other documents. They must a have a travel document—

Edward Garnier (Conservative, Harborough)

I used my Visa card.

Beverley Hughes (Labour, Stretford and Urmston)

They must have a travel document—

It being one hour and fifteen minutes after the commencement of proceedings on the Bill, Mr. Deputy Speaker put forthwith the Question already proposed from the Chair, pursuant to Order [this day] .

Amendment agreed to.

Mr. Deputy Speaker then proceeded to put forthwith the Questions necessary for the disposal of the business to be concluded at that hour.

Amendment proposed: No. 99, in page 2, line 30, at end insert—

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

Clause 6 — Claimant's credibility

Clause 15 — Deportation or removal: co-operation

Clause 4 — Trafficking people for exploitation

Clause 5 — Section 4: supplemental

Humfrey Malins (Conservative, Woking)

On a point of order, Mr. Deputy Speaker. I should like to seek your guidance, as throughout Committee we were completely unable to debate clause 6, which is of vital importance. You will have noticed that today the Government have tabled 16 amendments to the clause, but we still have not had a chance to debate it. Is there anything that you can do to ensure that that vital clause, which the Government are amending with 16 amendments, is debated today?

Michael Lord (Deputy Speaker, Central Suffolk and North Ipswich)

I understand the point that the hon. Gentleman is seeking to make. These matters have already been decided by the House, and they are not matters on which the Chair can comment.

Gwyneth Dunwoody (Labour, Crewe and Nantwich)

Further to that point of order—

Michael Lord (Deputy Speaker, Central Suffolk and North Ipswich)

Order. With respect to the hon. Lady, we will only waste time if we deal with any further points of order, and cut into the precious time for these matters, so perhaps we can move straight on.

Clause 7 — Failed asylum seekers: withdrawal of support

Hilton Dawson (Labour, Lancaster and Wyre)

I beg to move amendment No. 23, in page 8, line 5, leave out clause 7.

Michael Lord (Deputy Speaker, Central Suffolk and North Ipswich)

With this it will be convenient to discuss the following:

Amendment No. 17, in page 8, line 23, leave out 'has' and insert—

'and his legal representative have'.

Amendment No. 16, in page 8, line 25, leave out '14' and insert '28'.

Amendment No. 18, in page 8, line 31, after 'address', insert—

'and to his legal representative'.

Amendment No. 19, in page 8, line 34, at end insert—

'by up to 7 days'.

Government amendments Nos. 74 to 77.

Amendment No. 33, in schedule 4, page 41, line 24, second column, at beginning insert—

'Section 55.'.

New clause 1—Repeal of section 55 of the Nationality, Immigration and Asylum Act 2002—

'Section 55 of the Nationality, Immigration and Asylum Act 2002 (c. 41) (late claim for asylum: refusal of support) shall cease to have effect.'.

New clause 12—Determination of claim for asylum—

'For subsection 94(3) of the Immigration and Asylum Act 1999 substitute—

"(3) For the purposes of this Part, a claim for asylum is determined at the end of such period beginning—

(a) on the day on which the Secretary of State notifies the claimant of the associated termination of his or her support, or

(b) if the claimant has appealed against the Secretary of State's decision, and the appeal has been disposed of, on the day on which the Secretary of State notifies the appellant of the associated termination of his or her support,

as may be prescribed.".'.

Hilton Dawson (Labour, Lancaster and Wyre)

Having moved the amendment, may I add that I support new clause 1, which was tabled by my hon. Friend the Member for Walthamstow (Mr. Gerrard)?

Eight days ago I had the privilege of attending a multi-faith commemorative service in Lancaster cathedral to mark the tragic loss of 20 poor souls only four or five miles away on the sands of Morecambe bay. That dreadful incident is well known to hon. Members, and undoubtedly the disaster had many facets. However, it is important to note that in that packed cathedral, in which the congregation was made up of people of many denominations and faiths, there was compassion for the people who lost their lives, irrespective of their asylum status or the country from which they came. It was an utterly moving occasion.

I am pleased to have had the opportunity to move amendment No. 23, and grateful for the support of Labour Back Benchers, Liberal Democrats and Scottish nationalists. However, I am dismayed that all the sound and fury from the Leader of the Opposition on this matter only a few weeks ago now apparently signifies nothing. His strong feelings have evaporated into the puny efforts of amendments Nos. 16 to 19. In less than an hour, Conservative Members will have the chance to redeem themselves.

Humfrey Malins (Conservative, Woking)

May I make it clear to the hon. Gentleman that my right hon. and learned Friend the Leader of the Opposition rightly complained about the Downing street briefing on a policy of taking children into care? That briefing took place before the Bill was published, and he was entirely right to say that no Bill should include any such measure.

Hilton Dawson (Labour, Lancaster and Wyre)

I was under the impression that the Leader of the Opposition cared about asylum seekers, but plainly that is not the case.

Before long, Conservative Members will have a chance to redeem themselves by supporting the amendment, which would delete every word of clause 7, in a Division. If they fail to do so, their efforts to express concern about the protection of vulnerable children, which is the subject of their Opposition debate on Wednesday, will be met with ridicule. I am grateful to my right hon. Friend the Minister for Citizenship and Immigration for the meeting that she allowed me after Second Reading to discuss my concerns about clause 7. I was pleased to receive a draft outline of the five-stage process that the National Asylum Support Service would undertake before support to failed asylum-seeking families who are not co-operating with the departure process ends.

I acknowledge my right hon. Friend's conscientious work in trying to achieve a fair asylum and immigration system in this country, and I support her in that work: it is necessary to achieve that fair and open system in this country and, clearly, difficult steps have to be taken to do so. However, I absolutely and firmly believe that it is morally wrong to make families destitute—or, indeed, to threaten to make them destitute—as part of a process to encourage them to return home. I cannot believe that I am alone in that view or that the only hon. Members who support it are those who have so far signed up to amendment No. 23. I suspect that all hon. Members on both sides of the House would oppose clause 7 if they were able to answer honestly when asked away from the confines of the Chamber and the party whipping system.

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

Does not every law that we pass include sanctions that may well result in parents going to prison, so that, in turn, their children become looked after by local authorities and others? Is this, in fact, not exactly the same kind of measure?

Hilton Dawson (Labour, Lancaster and Wyre)

I am not aware of any measure that has reached this stage in the House that would make children in this country destitute. I cannot believe that such a measure is acceptable. Frankly, I cannot believe that it is coming from the party of which I have been a member for more than quarter of a century.

Such a measure is unnecessary and would be counter-productive. Once all advocacy has failed, there is a more effective way to work with families who have to return home. The ultimate sanction for such families is not stripping them of every possible means of livelihood, but enforced removal. The work that needs to be done for those families for whom all efforts to remain have failed includes counselling to help them to face the reality of their situation, practical support to help them to prepare for going home, good communication with non-governmental organisations, public agencies, and family or kinship networks in their home countries to ensure that they will be properly received and that there will be somewhere reasonable for them to go. That involves sensitive, careful and detailed work.

Beverley Hughes (Labour, Stretford and Urmston)

Is my hon. Friend aware that, if a family co-operates in the way that he outlines—by keeping appointments and being prepared to meet voluntary organisations to talk about their return—they will be fully supported throughout the process? That support will not end. What would he advise us to do in those circumstances where a family resolutely will not co-operate with those requests for interviews or take part in opportunities to work with voluntary organisations? What should we do then?

Hilton Dawson (Labour, Lancaster and Wyre)

I am grateful to my right hon. Friend for that intervention, and I want to address precisely the issues that she raises. The programme that she sets out is a good one—I would want more work to be put into it and more resources devoted to it—but what she wants to do with the families she describes is fatally undermined by the principles of clause 7.

This Government sometimes overlook the value and significance of social work with families, and they would achieve a great deal more if they remembered what social workers do. Social workers have an enormous role to play in taking on work relating to such families and unaccompanied children. Reunification is an important social task, and the approach that I am suggesting—by contrast with that set out in the Bill, and in clause 7 in particular—is entirely ethical. Such families would respond more readily to my approach because it would help to allay their fears, and because it would provide them with real and practical assistance.

Jenny Tonge (Liberal Democrat, Richmond Park)

I am very interested in, and supportive of, what the hon. Gentleman says. Does he agree that when the Government produced their Green Paper "Every Child Matters", we Members of Parliament thought that they meant every child, not every child except the children of asylum seekers and immigrants?

Hilton Dawson (Labour, Lancaster and Wyre)

The hon. Lady is clearly right, and "every child matters" is a fine and inspirational statement that we should try to apply to all children living in this country, wherever they came from and whatever their asylum status.

I am advocating a much greater emphasis on linking families in this country with resources in their own country, and the development of real, international, good-quality family social work. Unlike clause 7, my approach would not drive families underground and into the hands of criminals, traffickers and pimps. It would not encourage families to leave their children with social services because they do not have the means to look after them themselves. It would not lead to families being made destitute and homeless, and to their being criminalised and having to beg on the streets. It is true that it would not prevent forced removals, but nor would clause 7. It would not provide documents for those who cannot be removed, but nor would clause 7. However, it would not alienate the entire social work profession, the very professional standards of which should ensure that no social worker complies with clause 7. Indeed, the British Association of Social Workers has demonstrated outside Parliament today, probably for the first time in decades, against the Bill and against the fact that this proposal works entirely against the standing and principles of its profession.

The course of action that I am suggesting would be more humane and helpful than clause 7, and I believe that it would work. An international social work approach to these very difficult human issues would work far better than what is currently envisaged under clause 7. It would be principled and rooted in the UN convention on the rights of the child, and in the European convention on human rights; but it would also be firm and fair. Indeed, I think that my right hon. Friend the Minister would advocate such an approach, but it cannot work alongside clause 7. As well as being simply wrong, making people and their children destitute when they are desperate, afraid and utterly uncertain as to what the future might hold is completely counter-productive.

My right hon. Friend the Minister asks how I would deal with people who will not comply. I would not do so by making them so utterly destitute that they have to seek their resources from elsewhere—by going underground. I would do so through simple, patient face-to-face work that helps them to face the reality of the situation, and which gives them practical support and treats them with dignity and humanity. Such an approach might not work in all cases, but it is by far the best one for a civilised country to take, and I believe that it would work in the vast majority of cases.

I honestly believe that mine is the right approach. I do not expect my right hon. Friend the Minister to dump clause 7 today, although it would be marvellous if she did. I shall be voting against it, and I hope that every Member of the House will vote with their conscience and help to reject it.

Whatever the fate of this clause or this severely flawed Bill, I hope that my right hon. Friend will accept my proposal in good faith and resist the urge to tell me that although it is all very well, it will never work in practice. I hope that before the Bill goes through or plans to remove unaccompanied asylum seeking children are introduced, she will agree to work with the social work profession to develop a more ethical and effective approach and a calmer, more reasonable and more helpful way in which to assist people to find their way out of dreadful, uncertain circumstances in this country and to give them a better certainty in future when they have to go home.

Humfrey Malins (Conservative, Woking)

I thank the hon. Member for Lancaster and Wyre (Mr. Dawson), who has a history of interest in such matters, for the way in which he introduced his amendment. However, I must bluntly say to him that his criticisms of the attitude of Conservative Members might have been better directed against Members on his own side, because the amendment reveals to the House the deep divisions within the Labour party on the question of support for failed asylum seekers. When he puts the matter to a vote, he will find that the Government whom he supports are wholly against his proposition and will do all that they can to vote it down. I therefore hope that in winding up he will reserve some of his critical remarks for his own Government, against whom he speaks with much force today.

Clause 7, which has been the subject of much discussion—not least in Committee, where it occupied us for two or three sittings—deals with the position of failed asylum seekers in terms of their support. It is well known, but let me reaffirm it, that failed asylum seekers with dependent children receive asylum support until such time as they leave the UK or fail to comply with a removal direction. As stated in the explanatory notes, the clause provides that

"if the Secretary of State certifies that, in his opinion, such a person has failed without reasonable excuse to take reasonable steps to leave the United Kingdom voluntarily or place himself in a position in which he is able to leave the United Kingdom . . . asylum support for the family will cease."

My party does not disagree with that. It is proper, and fair to our system, that when people have exhausted their rights of appeal under asylum laws, benefits should be removed from them. That brings into sharp focus the whole issue of removals policy, where for the past few years the Government have been their own worst enemy in setting themselves a series of targets that they have never been able to reach and have had to drop one by one, instead introducing amnesties for failed asylum seekers. A parliamentary question that was answered on 11 December 2001 told me that the target for removals of failed asylum seekers for the year 2003–04 was 37,000. The Government utterly failed to meet that target and it has been dropped.

The clause deals with the certification period. My probing amendments would make its operation more efficient and sensible. The period between the refusal of a last appeal and the removal direction is a kind of limbo. If the Government are to be able to certify at any stage during that period that the person concerned is not taking reasonable steps to leave the UK, they must be carefully scrutinised in that respect.

A matter was briefly raised in Committee that I want to consider again today. What will the Government do about certification when a failed asylum seeker does not have removal directions served on him or her for some reason? For example, under the Bill, many failed asylum seekers whom the Government will not remove could be certified in relation to support. One reason for not removing them might be that the country of origin, as in the case of China, is unwilling to take back failed asylum seekers. Another reason might be practical difficulties, for example, a lack of airports in the specific part of the country from which the asylum applicant came.

Let us consider Zimbabwe, to which the Government have suspended removals for some time. Only a week ago, I asked the Government about their removal policy to Zimbabwe. They replied that

"although it would be safe for failed asylum seekers to return to Zimbabwe, our view at present is that in the wider context of the Government's position on Zimbabwe, it would be inappropriate forcibly to return them at this time."—[Official Report, 23 February 2004; Vol. 418, c. 264W.]

That prompts the question of what could happen to a failed asylum seeker who cannot be removed because of either the Government's direct policy of non-removal, as in the case of Zimbabwe, or the impracticality of removal.

I raised the subject in Committee when I stressed that I believed that it was important to establish some form of appeal against the certification process. I am pleased that, as a result of my arguments, those of my hon. Friends and those in other parties in Committee, at the end of the debate, the Government said that it would be appropriate to introduce a limited form of appeal against cutting off benefits, but not removal. That shows the way in which Committees can work to the benefit of all concerned.

Bob Blizzard (Labour, Waveney)

From listening to the hon. Gentleman's argument so far, he appears to accept that there will inevitably be circumstances in which benefits to a failed asylum seeker have to be stopped. It is regrettable, but we will get to that stage. If that happens, what should happen to the children?

Humfrey Malins (Conservative, Woking)

That is a difficult question. The other side of the coin is the argument that one should never reach that stage and that the host country should continue to provide financial support indefinitely to failed asylum seekers. I cannot agree with that proposition. Although I hope that I always speak moderately, there is a question of parental responsibility. I wish that there were more opportunity to challenge a bad decision, but I have no reason to believe that the Government would act other than in good faith on the matter. If they act in good faith, they will not serve the certification notice until they are satisfied that the family concerned could and should go back to where they came from. They should not serve it when there is doubt, a suspended removals policy or when it is not practicable for a person to return to the relevant country.

Hitherto, the notice has been served when removal directions have been given. That is an administrative act, effectively the last act in the chain, by which time the Government are in a position to remove. By bringing that forward and giving themselves an option to serve the notice earlier, when appeals have failed, the Government have created a period of limbo. I therefore seek from the Minister an assurance that difficult cases, which are subject to the notice prior to a removal direction, can be tackled humanely, sensibly and properly.

Bob Blizzard (Labour, Waveney)

Effectively, the hon. Gentleman is therefore saying that he would not stop the benefit of a failed asylum seeker—he would only stop the benefit when the asylum seeker was ready to get on the plane back home. Is that what he is saying?

Humfrey Malins (Conservative, Woking)

The hon. Gentleman has completely misunderstood me, no doubt inadvertently. What I am saying is that there comes a time at which benefit must stop. If an asylum seeker has failed in their claim, their appeal and their final appeal, it does not seem wrong in principle to say that from that moment, the benefit should stop, rather than waiting sometimes for many months until the removal directions are given, which is much later in those proceedings—

Bob Blizzard (Labour, Waveney)

What about the children?

Humfrey Malins (Conservative, Woking)

The hon. Gentleman raises again the question of the children. I dare say that that is a question that he will raise with his Minister, as clearly, from what he has said tonight, he is bitterly at odds with his own Government—and he is not the only Labour Member at odds with the Government. I am looking forward to hearing him challenge his Minister in the strongest possible way. Let us see if he does so.

Bob Blizzard (Labour, Waveney)

As the hon. Gentleman noticed in Committee, I fully support the Government's measures on this point.

Humfrey Malins (Conservative, Woking)

In that case, the hon. Gentleman is playing devil's advocate and teasing me somewhat.

John Redwood (Conservative, Wokingham)

Does my hon. Friend agree that what we really need is a Government who can persuade people to go back if their claim has failed, and that the only satisfactory outcome is either legal settlement here or early return to another safe country whence the person came or to which they choose to go. What we are looking at is a failure to achieve that. Given the underlying reality—the Government's failure to persuade people to leave—this is a clumsy instrument, to which there is an ugly side.

Humfrey Malins (Conservative, Woking)

My right hon. Friend raises a good point. Again, he draws attention to the fact that the Government, over seven years, have not been able at any stage to put in place an effective removals policy. It is simply not good enough to answer a parliamentary question by talking in terms of targets of 33,000, 35,000 or 37,000 removals a year of failed asylum seekers, and to fail lamentably in that purpose. The hon. Member for Waveney (Mr. Blizzard), who, I am sure, will contribute to this debate, will know as well as I do that at the moment only one in four failed asylum seekers are ever removed from this country. That is not a record of which any Government can be proud.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

How, therefore, does the hon. Gentleman answer the following question, which is the same one that I put to the Government? Let us imagine that someone has made an application that has failed and that they are willing to co-operate with voluntary return, which people who come to my surgery often say that they are. Before that happens, however, there is a period in which they have no income, and they may have children to support. There must be a humane and civilised response to that predicament. At the moment, none is on offer from the Government, and I do not hear any on offer from the Conservative Front Bench.

Humfrey Malins (Conservative, Woking)

What I say to the hon. Gentleman, whose expertise on this subject is well known and has been appreciated over many years on various Standing Committees, is that one looks to a Government to behave reasonably in each case. If someone is willing to go, is about to go and is making arrangements to go, and that is imminent, an argument exists for the Government not to serve the certification notice but to wait until they take the view that the person is refusing to go.

Hilton Dawson (Labour, Lancaster and Wyre)

Have not the Government made it plain that while families are co-operating with the removal process they will not have social security benefits removed from them? Is not the hon. Gentleman setting out a position whereby the Conservative party accepts what its leader railed against some weeks ago—one in which children will have to be received into care because of the destitution of parents?

Humfrey Malins (Conservative, Woking)

Let me make it clear to the hon. Gentleman that when my right hon. and learned Friend the leader of my party, who, incidentally, comes from a refugee background, raised the issue of children being taken into care, he was doing so following a briefing from Government circles—we never quite discovered who was responsible for it, because it was denied, I think—that the taking of children into care would in effect be used as a mechanism to encourage people to leave the country.

We were strongly against that, and my right hon. and learned Friend was right to feel as he did. When the Bill was published the matter was not referred to, so the issue did not arise.

Annette Brooke (Liberal Democrat, Mid Dorset and North Poole)

Is not the threatened removal of children still being used in that way in clause 7? Does it not pose the threat of their being taken into care if there is no voluntary departure?

Humfrey Malins (Conservative, Woking)

I have read clause 7. I know that the hon. Lady did not have the benefit of serving with us in Committee, but at no stage does clause 7 threaten the use of children as a tool.

Annabelle Ewing (Scottish National Party, Perth)

Will the hon. Gentleman give way?

Humfrey Malins (Conservative, Woking)

I am anxious to make progress because many others want to speak, but I will give way to the hon. Lady, who served on the Committee.

Annabelle Ewing (Scottish National Party, Perth)

It was clear in Committee that although no provision in the Bill would directly require such action, it might well occur as a consequence of the provision. That, I think, is what we have been talking about.

Humfrey Malins (Conservative, Woking)

The hon. Lady may be right, but if she is suggesting as a direct alternative that benefit for failed asylum seekers and their families should never cease, I cannot agree with her.

One of my amendments would change the period relating to the cessation of benefit. I think it more appropriate to allow people 28 rather than 14 days following receipt of the certificate, so that they have more time in which to organise their lives. Another, minor amendment suggests that notice should be served not just on the applicant but on the applicant's legal representative. Clause 7 allows the Secretary of State to vary the specified period. Because I do not want him to be able to vary it to the extreme detriment of a failed asylum seeker by varying it to, say, one day, I have also tabled an amendment that will allow him to vary it by up to seven days—from, that is, the 28 days that I suggested in my earlier amendment. That would provide a little more leeway.

I must tell the hon. Member for Lancaster and Wyre that my party cannot support amendment No. 23. I hear "Tut, tut" from a number of Labour Members, but they must understand that their own Government, to whom they are indebted, are violently against their proposition in any event. I hope that when they make critical remarks during the debate they will direct them at the Government, who will oppose them when the matter comes to a vote.

Neil Gerrard (Labour, Walthamstow)

I support amendment No. 23, but I want to concentrate on amendment No. 33 and new clause 1, which bear my name and those of, among others, my hon. Friends the Members for Hammersmith and Fulham (Mr. Coleman) and for Regent's Park and Kensington, North (Ms Buck).

New clause 1 would repeal section 55 of the 2002 Act. Members who were present for the debate on that Bill will recall that we had only about 15 minutes in which to discuss the introduction of that provision. It appears we shall have rather less time on this occasion to debate a section that has left thousands destitute, on the streets with no support. When it came into effect, we were given numerous assurances. We were told that it was intended to deal with people who had entered the country, worked illegally and eventually claimed asylum, or people whose entry visas had expired and who had then claimed asylum—in other words, people who had been in the country for substantial periods. We were told that a reasonable amount of time would have to elapse before someone was refused support on the basis that a claim had been made late.

We have seen what has actually happened. People have been refused support, in some cases after being in the country only a matter of hours. There have certainly been many cases of people being refused support when they have been in the country for just a few days. People have had to sleep rough on the streets or survive on the generosity of others in refugee communities who do not themselves have many resources to offer.

Karen Buck (Labour, Regent's Park and Kensington North)

Is my hon. Friend aware of the Refugee Council survey of people left destitute under section 55? It found that 61 per cent. of such people were sleeping rough; 70 per cent. did not have regular food; and more than half had suffered serious health consequences as a result of being destitute.

Neil Gerrard (Labour, Walthamstow)

Yes, I have seen that survey, and one carried out by the Greater London authority. A similar picture has emerged from every survey that has been conducted.

The other problem is the clogging up of the courts. We were told that, in October last year, about 60 challenges a week were going to the administrative courts, and the judges started to complain bitterly that it was clogging up the system and preventing other business from being dealt with.

I am astonished by the latest development. In the past few days, the Home Office has sent a letter in which it says that unaccompanied asylum seeking children, who might have lived here for some time, will be the subject of section 55 interviews on their 18th birthday—their 18th birthday present might be to lose all benefits and support. The child might even have been in care, so we need to reflect on our duties to children when they leave care. That letter was sent, despite the Home Affairs Committee report that was issued a week or so ago, which criticised what was happening, highlighted serious concerns and urged the Government to review the operation of section 55.

Hilton Dawson (Labour, Lancaster and Wyre)

I am grateful to my hon. Friend for bringing that appalling matter to the House's attention. Any reasonable person reflecting on the issue will view it as an attempt wholly to undermine the Hillingdon judgment, which stated that young asylum seekers who had received benefits under section 17 of the Children Act 1989 would, on attaining adulthood, be eligible for support under the Children (Leaving Care) Act 2000.

Neil Gerrard (Labour, Walthamstow)

There are some interesting connections with that judgment. The measures in the letter will apply to children leaving care whose asylum claims have not been decided, rather than those who have been in care and have been given permission to stay.

Finally—I shall be brief because I know other hon. Members want to speak—we should think again about the reasons that people make late asylum claims. I can think of a whole string of reasons. People might have been trafficked or brought in by agents and told to behave in a certain way. Some people might have suffered trauma and understandably do not feel confident about making a claim the moment they step inside the country.

From debates in Committee we know that the Government take the view that people who make late claims make weak claims. The Minister for Citizenship and Immigration expressed her view of section 55 by saying:

"We wanted to bring about a change of behaviour on the reasonable assumption that somebody fleeing persecution, or in fear of his life, would want to claim asylum in the safe country in which he had arrived as soon as possible."—[Official Report, Standing Committee B, 27 January 2004; c. 430.]

Again, the implication is that someone who claims in country is making a weak claim. We have had this debate during every asylum Bill since 1996, and the Home Office's own statistics show that the rate of recognition of asylum claims made within the country for year after year is hardly different from—and in some years exceeds—the rate of recognition for people who apply at port.

What is fundamentally wrong with section 55 is that, like some earlier measures such as vouchers, it penalises the genuine claimant. It was supposed to deter the abusive claimant, but in effect it penalises the genuine claimant. That is why section 55 is so absolutely immoral.

I hope that it might be possible at an appropriate point during this evening's proceedings for a separate Division to be called on new clause 1 or amendment No. 33, which I hope will have the House's support.

Annette Brooke (Liberal Democrat, Mid Dorset and North Poole)

I associate myself and my hon. Friends with the remarks of the hon. Member for Walthamstow (Mr. Gerrard). We support new clause 1, and we feel that it is a great pity that it has been included in this group, which rather inhibits full discussion on it. We are particularly concerned about the 18-year-olds whom the hon. Gentleman rather emotionally described. Those possible 18th birthday presents are alarming.

We have already heard about some of the consequences of taking away benefits, or of not giving them in the first place, and we should bear in mind the lessons that we have learned from section 55 of the Nationality, Immigration and Asylum Act 2002 when considering the proposals in clause 7. The clause is about voluntary departure, and I was very impressed with the carrot approach of the hon. Member for Lancaster and Wyre (Mr. Dawson), who suggested that we do everything we can to persuade people that that is the best course for them. I am aware that there was much discussion in Committee on that, and that the Minister outlined a number of steps to be taken. Surely, however, there can never be enough steps where children are concerned. That is why I rise to speak today.

Clause 7 uses the threat of making families destitute as an enforcement measure. However we look at that, it is a stick—a very crude one—and I greatly fear the unintended consequences of using it. The first will be that the fear of families about how they will survive, and whether they will be separated, will drive them underground. Surely, the health and welfare of all children in this country should be absolutely paramount. This measure seems to deviate from all the principles that most of us are here to defend.

A second unintended consequence might be that some families will feel that they are doing the best thing by leaving their children here. One can easily see that that might happen. We hear about desperation in other countries, and parents who let their children come over with friends and relatives. That desperation exists. We cannot therefore say that the Bill will not have the consequence that children will end up in care: they will end up in care.

That brings me to the iniquitous position that social workers will be in. As I understand it, when a family is destitute, the Children Act 1989 and the professional ethics of those working with the family require social workers to look first to relieve destitution, but clause 7 proposes the opposite. What should social workers do in those circumstances? The framework in clause 7 undermines the professional judgment and skills of social workers, and I can envisage them being put in impossible positions, perhaps being asked to remove children from their parents to increase the pressure on parents to leave the country.

The United Kingdom stopped removing children from their families on the ground of poverty a long time ago. Where, then, are we going with clause 7? I appreciate that Conservative amendments attempt to improve it, but I sincerely believe that the only action to take tonight is to vote for the deletion of the clause. We should remember that we have a proud tradition of caring, including caring for children.

Beverley Hughes (Labour, Stretford and Urmston)

I want to deal first with amendment No. 23, which seeks, as the hon. Member for Mid-Dorset and North Poole (Mrs. Brooke) has just said, to delete clause 7. That would mean that we would be unable to withdraw support from families, no matter how much resistance they had shown or how much time and opportunity they had been given to leave the country once their claim had failed. We would therefore be in a very difficult position, both in terms of trying to achieve our policy objective and of explaining to our constituents how we could require people who were not legally in the country to leave but, if they refused to do so, we would have to continue to pay them to stay here indefinitely.

I do not pretend that this is not a difficult issue. I find it very difficult, but, equally, I am absolutely convinced that we would not have a credible policy if we required people to leave when they should, but carried on paying them and providing them with accommodation at the taxpayer's expense when they refused to do so.

Beverley Hughes (Labour, Stretford and Urmston)

I shall give way in a moment.

Briefly, that is the dilemma that we face, and we cannot avoid it simply by saying that we will carry on paying people regardless of their entitlement to be in the country.

Hilton Dawson (Labour, Lancaster and Wyre)

Is it not the case that, in this country, we want families to do all sorts of things, and that we achieve that by persuasion and by offering them support? We do not introduce the sanction of removing their benefits. Is it not a counsel of despair, when we are dealing with hard-pressed people who have often been through desperate experiences, to say that the only means of amending their behaviour is to make them destitute?

Beverley Hughes (Labour, Stretford and Urmston)

That is not my intention. The intention of the clause is to persuade more families than at present that they should work with us to return home voluntarily. They should do so to avoid the potential trauma of an enforced return. I described in Committee how I had been out with an arrest team. The contemplation of immigration officers turning up in the middle of the night, getting children out of their beds and taking them to a centre to be put on a plane as quickly as possible is something that I would want to avoid in all circumstances, if I could.

The process that I outlined in Committee, which would preface the certification allowed in clause 7, is specifically designed to give families every opportunity to work with us voluntarily to ensure that we get as many people as possible to take a voluntary route home.

John Redwood (Conservative, Wokingham)

What other options have the Government examined in order to try to have their way with returns without having to be too brutal about it?

Beverley Hughes (Labour, Stretford and Urmston)

We have been examining these issues for some time, and have introduced a range of measures to try to increase the number of people returned. Despite the comments of the hon. Member for Woking (Mr. Malins), we have achieved considerably more success than his Government ever did, with a record number of returns in 2003. However, we are dealing here with a particular group of people, and hon. Members will remember that in October last year the Home Secretary announced an exercise in which we agreed that families who had been here with children for three years or more from 2 October or before would be given indefinite leave to remain, provided they had no criminal record and met certain basic criteria. That recognised that, for families who have been here for some time, there are real humanitarian issues involved. For example, their children will have been in school, and the families will have become embedded in the community. When we announced that exercise, however, we said at the same time that families who have come into the system more recently and who have failed their asylum claims will have to return home. We will not continue the current practice of paying people indefinitely to stay.

Annabelle Ewing (Scottish National Party, Perth)

rose—

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

rose—

Beverley Hughes (Labour, Stretford and Urmston)

I shall just finish this point.

Alongside the introduction of the clause in Committee, I outlined a process that would ensure that families had every opportunity to work with us. That process contains some of the elements and the spirit of what my hon. Friend the Member for Lancaster and Wyre (Mr. Dawson) has proposed—although not the detail; I do not pretend that it contains the range of counselling and other services that he suggested—in the sense that families would be invited for an interview and be able to discuss the options available and the nature of the process from then on. They would then have a series of up to three further letters setting out where they would be in the process, if they failed to co-operate, before certification took place.

I am trying to stress that, if a family turn up to such an interview and co-operate with attempts to make arrangements for them to return, and if they go along and see the International Organisation for Migration or join one of the voluntary return programmes and work with the voluntary workers who are doing that work for us, they will be supported, no matter how long the process takes. If they co-operate with us to explore those voluntary routes, and help us to re-document them and to get the wherewithal to remove them, even if we cannot enforce a removal to a particular country, we will not certify and we will not remove support.

However, if a family fail to turn up to an interview, fail to respond to the letters that we write and do not keep their appointments or speak to the IOM, there will come a point when we have to ask the legitimate question: do we go on paying someone who is behaving like that, when they should be working with us to go home? This is difficult, but there must surely come a point at which people's eligibility to be supported at public expense in the face of their refusal to co-operate must come to an end.

Annabelle Ewing (Scottish National Party, Perth)

If it was deemed beyond the pale to include families in the withdrawal of support rules at the time of the passage of the Nationality, Immigration and Asylum Act 2002, surely it must remain beyond the pale to do so in March 2004.

Beverley Hughes (Labour, Stretford and Urmston)

I have not said that it was beyond the pale in 2002; those are the hon. Lady's words. As I have said, we have been exploring—using a step by step approach—measures that we need to take across the board to ensure that people whose claims fail return home.

The process that I shall implement in relation to clause 7 is not only fair but comprehensive in trying to get families to the point at which they take the voluntary route. As I have said, if they co-operate with us, they will be supported for as long as that process takes. We shall not remove support if they are working with us.

Diane Abbott (Labour, Hackney North and Stoke Newington)

Will the Minister give way?

Beverley Hughes (Labour, Stretford and Urmston)

No, I will not.

Under amendments Nos. 16 and 19, support would be withdrawn from a failed asylum-seeking family 28 days after receipt of the Secretary of State's decision to certify. That period could then be varied under regulations by up to seven days. We discussed this in Committee, and I hope that the hon. Member for Woking will accept that I made it clear then that, although the clause specifies a minimum 14-day period, the earlier stages that I have committed to before certification—which are involved in the process that I have set out—mean that there will be at least 28 days from appeal rights being exhausted to certification, and probably longer in many cases. I hope that he will therefore accept that we do not need to extend that period in the Bill.

Under amendment No. 17, support could be withdrawn from a failed asylum-seeking family only when a copy of the Secretary of State's certificate was sent both to the person involved and their legal representative.

Amendment No. 18 would reflect that by making it clear that a person should be regarded as having received the certificate only on the second day after it is sent, if it has been sent to him and to his legal representative. In Committee, I said that I have no difficulty with that principle but that it was not necessary to put it in the Bill. We will send letters to a legal representative, where there is one. The amendment is therefore unnecessary.

The Government amendments provide for an appeal by a failed asylum seeker to the asylum support adjudicator where the Secretary of State has certified that the family has failed, without reasonable excuse, to take reasonable steps to leave the UK voluntarily. I reiterate that the purpose of clause 7 is to encourage families to leave voluntarily, and I shall set out what the adjudicator might look at in such an appeal. We must remember that the appeal will not prevent removal. It is an appeal against certification, not a reopening of the asylum claim.

In reaching a decision to certify, the Secretary of State will have concluded that the family, without reasonable excuse, had failed to take reasonable steps to leave the UK or to place themselves in a position where they could do so. The adjudicator would look at any arguments put forward by the family as to why they had not done so and whether the Secretary of State was right to conclude that the necessary steps had not been taken. That will provide further confidence in the overall process that we envisage for clause 7 and further reassurance that if support is withdrawn—I expect that to occur in a minority of cases, if any—the decision is the correct one.

The hon. Member for Woking asked about a situation in which we could not enforce removal but a voluntary return was possible. I partly answered him by saying that, even in those circumstances, provided a family were co-operating with us to seek a voluntary route, support would continue and that we would deal with those difficult circumstances case by case.

We do not want families to be separated. We do not want people to be destitute. We want a managed system whereby people leave voluntarily after a fair hearing of their case and where people are clear that they cannot, and should not be able to, expect the state to support them indefinitely, regardless of the merits of their case.

On new clause 1 and amendment No. 33—

Iain Coleman (Labour, Hammersmith and Fulham)

Will my right hon. Friend give way?

Beverley Hughes (Labour, Stretford and Urmston)

No, I will not. I thought that my hon. Friend the Member for Walthamstow (Mr. Gerrard), who tabled the new clause and the amendment, was trying to intervene. I would have given way to him, but I must respond to the debate if my hon. Friend the Member for Hammersmith and Fulham (Mr. Coleman) will forgive me.

Section 55 was designed to tackle a situation in which a significant number of people who had been in the country for some time were claiming asylum in order to get support. I agree with my hon. Friend the Member for Walthamstow that there were initial problems in the operation of section 55, but we have made changes where these were required and sensible. I hope that he recognises that the new approach whereby people who apply within three days are granted support has made a difference.

In recent weeks, about 50 per cent. of applicants have been given support under section 55 and there has been a considerable improvement in the number of reconsiderations; these are completed in 24 hours in 87 per cent. of cases.

It being two and a half hours after the commencement of proceedings on consideration of the Bill, Mr. Deputy Speaker proceeded to put forthwith the Question already proposed from the Chair, pursuant to Order [this day].

The House proceeded to a Division.

Alan Haselhurst (Deputy Speaker, Saffron Walden)

I ask the Serjeant at Arms to investigate the delay in the Lobby.

Clause 11 — Unification of appeal system

Mark Oaten (Liberal Democrat, Winchester)

I beg to move amendment No. 30, in page 11, line 6, leave out Clause 11.

Alan Haselhurst (Deputy Speaker, Saffron Walden)

With this it will be convenient to discuss the following:

Amendment No. 93, in page 11, line 25, at end insert—

'(5A) A party to the Tribunal's decision may apply within 7 days to the High Court or, in Scotland, to the Court of Session for review of the Tribunal's decision on the ground that the Tribunal made an error of law.

(5B) Where an application is made under this subsection—

(a) it shall be determined by a single judge by reference only to written submissions, unless the court on receiving such submissions is of the opinion that there are exceptional reasons for an oral hearing;

(b) the judge may affirm or reverse the Tribunal's decision, or remit for rehearing to the Tribunal;

(c) if, in any application to the High Court, the judge thinks that the application had no merit he shall issue a certificate under this paragraph.

(5C) Where the High Court or in Scotland the Court of Session affirms or reverses a review under this section a party to the review may bring an appeal as a point of law within 7 days—

(a) where the original decision was that of a judge of the Court of Session in Scotland to the Inner House of that Court; or

(b) in any other case, to the Court of Appeal.

(5D) An appeal under subsection (5C) may be brought only with the permission of—

(a) the court that made it, or

(b) the court referred to in subsection (5C)(a) or (b) if the High Court or Court of Session in Scotland refuses permission.

(5E) An application made under subsection (5D)(b) must be made within 7 days of the refusal of permission to appeal by the High Court or Court of Appeal.'

Amendment No. 92, in page 11, line 26, leave out subsection (6).

Amendment No. 31, in page 12, line 10, leave out subsection (7).

Amendment No. 32, in page 12, line 11, leave out from beginning to end of line 17 on page 13.

Amendment No. 94, in page 12, line 11, leave out 'Tribunal's' and insert 'statutory'.

Amendment No. 95, in page 12, line 12, leave out '(whether statutory or inherent)'.

Amendment No. 96, in page 12, line 13, at end insert

'additional to the statutory jurisdiction exercised by the court'.

Government amendments Nos. 78 to 80.

Amendment No. 97, in page 12, line 35, at end insert

'provided that the immigration decision makes it clear at the time that deportation is capable of being a consequence of the decision'.

Government amendment No. 81.

Amendment No. 98, in page 26, line 19 [Schedule 1], at end insert—

'(e) is a lay member'.

Amendment No. 22, in page 33, line 28 [Schedule 2], leave out 'supervising' and insert 'organising training for'.

New clause 8—Initial decisions—

'(1) Initial decisions by the Secretary of State on asylum applications shall be made and notified to the applicant within six weeks of the application being made.

(2) Notice of appeal from the decision of the Secretary of State to the Asylum and Immigration Tribunal ("the Tribunal")—

(a) must be made in writing;

(b) must be lodged with the Tribunal within 14 days of the decision appealed against, and

(c) must list all the grounds on which the appeal is made.

(3) Within 14 days of receipt of the notice of appeal the Tribunal shall hold a direction hearing at which all parties to the appeal shall be present.'.

Mark Oaten (Liberal Democrat, Winchester)

It is important to remove clause 11, because in it the Government propose to take away the ability to refer a tribunal's decision to a higher court. We argued about the principle for a long time in Committee. Whatever people's views may be on the Government's intentions about streamlining the tribunal system—there may be some merit in considering how the different elements could be brought together—there is widespread concern about removing the right of appeal to a higher court. We also have concerns about the proposal to give unprecedented powers to the president of the tribunal.

We will strongly defend the principle of having a tolerant society in relation to asylum and immigration, but the Bill goes even beyond that, attacking some important principles for justice as a whole. It upsets the constitutional checks and balances that we have had in this country for many years. By removing the right to go to a higher court, we could create numerous miscarriages of justice.

There is a miscomprehension about why the Government are seeking to do this. There is an assumption that any individual who wants to take a case to a higher court must be trying to abuse the system. There is very little acknowledgement from the Government that there may be genuine cases and genuine reasons why individuals would want and need to have their cases taken further. It is not all about allowing abuse or delaying tactics.

Since the Bill left Committee, we have had the report from the Constitutional Affairs Committee, which contains some powerful arguments for retaining the ability to refer to a higher court. The most compelling was in the conclusions, where it says:

"An ouster clause as extensive as the one suggested in the Bill is without precedent. As a matter of constitutional principle some form of higher judicial insight of lower Tribunals and executive decisions should be retained. This is particularly true when life and liberty may be at stake."

That is an extremely powerful quotation from a respected Committee, not only tackling the principle but pointing out that the Government are choosing to break it on such a critical issue as an individual's ability to stay here and not be returned to a life-threatening situation.

Diane Abbott (Labour, Hackney North and Stoke Newington)

Could not the clause provide a precedent for exempting all sorts of Executive and administrative tribunals from understanding, applying or being governed by the law?

Mark Oaten (Liberal Democrat, Winchester)

The hon. Lady is absolutely right: this could be the thin end of the wedge. There are a couple of circumstances in which we do not have the ability to refer to a higher court, but those are very limited and are concerned with security and terrorism. This would be the first incidence of such arrangements applying outside such circumstances, and it would be a serious erosion of the principle. I hope that the House, when it divides later, will stake out its principles on the issue.

Peter Bottomley (Conservative, Worthing West)

Is the hon. Gentleman aware of any respected lawyer or lawyers' group supporting the Government's position on this ouster clause?

Mark Oaten (Liberal Democrat, Winchester)

They have certainly not been in contact with me, but it will be interesting to hear from the Constitutional Affairs Minister whether he has been able to find someone to defend the Government's position. Very few organisations, within Parliament or without, are in support. I have already quoted the Constitutional Affairs Committee, and we have similar evidence from other cross-party groups that have come together to condemn the proposal.

If the principle were not enough—and I argue that it should be—there are more practical reasons why we need to retain the current system. The Minister will be aware that we had endless debates in Committee, with pie charts and graphs, about the number of mistakes currently being made. There is no point in rehearsing those again, because we come from a different perspective, but it is my judgment that there are still a considerable number of mistakes, and a considerable number of cases being overturned in the higher court. While that continues, there is a practical as well as a principled argument for maintaining a form of appeal to a higher court.

Until the Government can demonstrate that they have such a secure system that no cases are overturned at a later stage, it will be a very grave move to remove the ability to have that further appeal. For cases involving certain countries, the number that are overturned is considerably higher than the norm: 35 per cent. of cases involving Somalia or Zimbabwe are changed or reviewed at a later stage. If the Government are to remove such judicial review, they will need to demonstrate that they have introduced a better system whereby such mistakes are not made. I am not convinced by what we have seen of their proposals that they have achieved that, but even if I were to be convinced, surely the logic would be to let the changes bed down and review them in a couple of years' time before removing the ultimate ability to challenge decisions in a higher court.

Patrick Hall (Labour, Bedford)

Even if the quality of the first decisions became perfect—such a system does not exist—one would still require the ability to review those decisions, because human beings make mistakes. We will always have a need to do that.

Mark Oaten (Liberal Democrat, Winchester)

I agree. In a sense, the hon. Gentleman makes a stronger argument that I do. Having established the principle, I was trying to move on to a practical argument on the numbers game, but frankly, in dealing with issues of principle and justice we should not get into the numbers game, because even one or two cases of injustice would be unacceptable.

I want to draw the Minister's attention to what Mr. Justice Collins said in the recent case of R (Konan).

The judgment was made on 21 January, and it is worth noting what Mr. Justice Collins—a judge at the front line who made a judgment on the very issues in question—said in that case:

"It is a cautionary tale since it shows that decisions of the defendant's officials and the appellate authorities can be wrong and that there is a need for a judicial assessment . . . If the possibility of judicial review had not existed the claimants would wrongly have been returned to the Ivory Coast."

That practical example took place three or four weeks ago. The judge's ability to decide to refer the case to a higher court resulted in people not being sent back to a country where they would not have been safe, and many such practical examples exist.

I offer a third argument to the Under-Secretary for why we need to keep the existing process in place. If the principle underlining the current arrangements and the practical day-to-day cases are not sufficient reasons for having judicial review, surely another compelling argument in its favour is that it has been proven to be a useful tool for testing law and making it better. I should have thought that, occasionally, the Government would welcome that opportunity because some asylum and immigration issues, and some interpretations of the international conventions, are complex. The conventions have been described as "living instruments"—they are constantly tested and amended. It is a long-established principle that everyone in the system should be able to refer such convention changes to a higher court for clarification and guidance. For the sake of the clarity of such conventions, there is a compelling argument for retaining the ability to refer to a higher court.

Robert Marshall-Andrews (Labour, Medway)

Before the hon. Gentleman leaves the numbers game, is it not the case that in 2002, the divisional court threw back 260 cases as having been wrongly decided under the high test that had to be applied? If the Bill had been enacted at that time, all those people would have gone back to possible persecution, or even death.

Mark Oaten (Liberal Democrat, Winchester)

The hon. and learned Gentleman uses those numbers to make a powerful argument, but even if only one rather than 200 people were affected, the principle of referral would be worth defending not only for the individuals concerned, but because it could be a useful tool to allow the Government and agencies to test and develop new law.

The Government have suggested merging the various stages of the system into a tribunal. I shall especially focus on the power of the president because those of us who believe in the ability to test such matters would want an individual who could help us to access advice from a higher court. However, the Government's proposals restrict the power of the president, or rather give him so much power that he does not have to be bound by any higher court to which he may or may not choose to refer cases. At the moment, the Bill gives the president incredible power to decide whether to refer a case up. The fact that he or she will not be bound by a court's decision is unacceptable.

In Committee, the Under-Secretary said that he thought that it would be very unlikely that the president would seek advice yet ignore it. As a general principle of good practice, I would prefer a measure to provide for that to be in the Bill, rather than relying on an intervention in Committee. Surely we should make good law in this country under that principle. However, an additional problem is that there might well be cases in which the president would be reluctant to refer a case to a higher court. One can imagine that league tables might be produced, so the president could think that referring cases on would be seen as a criticism of tribunal staff. The measure represents an unsatisfactory means of providing the ability to refer cases to a higher court for rulings. Paragraph 54 of the report published a couple of days ago by the Constitutional Affairs Committee says:

"We see no reason why the President of the Asylum and Immigration Tribunal should have the sole right to decide whether an appeal lies to a higher court or why the Court of Appeal should not be trusted with the discretion to take over particular cases if it saw fit."

The Committee expressed concerns about the way in which the president will operate, so if the Under-Secretary were to look again at the powers of the president, it might go some way toward reassuring Liberal Democrats.

Finally, I should like to refer to the way in which tribunals will operate and their ability to review their work, irrespective of the president. The internal review systems suggested by the Government seem to be weak. In the majority of cases, it will only be possible to accept written evidence for the purposes of review, and oral hearings may be held only in exceptional cases. If the Government wish to go down such a route, they could reassure us by strengthening a tribunal's ability to review a case. Clear arguments proving why an oral hearing may be necessary in some circumstances should be set out in the Bill. The Government again seem to want to restrain the ability to test and review decisions.

Surely the way forward would be to introduce a system that does not require a lengthy process and does not, in the first place, lead to the current number of wrong decisions. Liberal Democrats support the Government's intention of speeding up the system, but we disagree with the route that they are taking. We want better quality decisions to be taken in the first place, which requires better information on each relevant country, improved decisions and better training of individuals. The Government should consider putting in place a package of measures to try to speed up the system and produce better decisions before introducing more draconian measures that change the judicial process.

Alan Beith (Liberal Democrat, Berwick-upon-Tweed)

In reminding my hon. Friend that all the provisions will affect not only asylum applicants, but immigration applicants, will he note that the Constitutional Affairs Committee recorded that the Government cause more delay to immigration applications than applicants?

Mark Oaten (Liberal Democrat, Winchester)

My right hon. Friend makes a powerful argument for examining different systems before starting to mess with the principles of evidence. Select Committees and others have plenty of evidence that could give the Government ideas about ways to speed up and improve the system. As the Select Committee on Home Affairs said:

"The real flaws in the system appear to be at the stage of initial decision-making, not that of appeal."

It recommended that the appeals proposals should not be brought into force

"until the statistics show a clear reduction in the number of successful appeals at the first-tier, adjudication level."

Again, that is a strong argument for putting in place other measures before making changes such as those proposed by the Government.

Of course, the Government have already put in place measures to speed up the system, because they clearly want to avoid delays in cases going to a higher court, which we support. For example, they put in place a four-week system to determine whether they could speed up the process by making such a change. That has been in operation for about a year, which is a short time, but the evidence on that new system will not be evaluated or assessed because it might not be needed if their new proposals bed down effectively.

The Government's intention of speeding up the process is worthy, and we would support a speeded up and fair process, but they seem to be prepared to break with long-standing principles that go way beyond immigration and asylum to achieve that. Will the Under-Secretary reflect that rather than trying to get a few quick headlines in the Daily Express and the tabloid papers, it would be better to reject the option of making the proposed changes and to put in place practical measures for the next year to find out whether they could achieve some of the Government's aims? Surely that approach would be more mature, sensible and in proportion with what the Government regard as a problem than making such fundamental changes that could have wider implications beyond immigration and asylum.

Robert Marshall-Andrews (Labour, Medway)

I shall be brief because I appreciate that several hon. Members wish to speak. In all the dreary and depressing history of this Administration's assaults on fundamental civil liberties, this measure is the worst by a streak. It is literally incredible that we should come to the House to contemplate removing all the protection of the law from a vulnerable minority who face the possibility of persecution, torture and death.

The measure would never get through this House, let alone the other place, if it affected British people. The only reason why it is being advanced by the Government—otherwise, the Government themselves would not survive—is that it applies to foreigners.

In putting this proposal forward, not only are the Government guilty of an iniquity in the House, but they have turned their back full-square on the long theology of the Labour movement, which has always maintained that justice is not an individual right given to individual people, but a universal—that it applies to us all, and is our greatest collective asset. A diminution of others' rights is a diminution of our rights; what diminishes them diminishes me, and diminishes all of us in this place.

That is why I could never, never vote for anything that even resembled clause 11. I hope and trust that there will be many who will vote against the Bill in the Lobby. I do not suggest for a moment that we will succeed, but when we vote in that way, we will be passing a message to the House of Lords that those who vote according to their conscience in the House of Commons are universal in their determination to defeat that part of this legislation.

We all accept that this is not a numbers game, but a matter of the highest possible principle—but while we are talking numbers, I should point out that in 2002, even given the enormous difficulty of obtaining judicial review and a successful application before the divisional court, the divisional court threw back 260 cases—cases in which decisions had been made that should never have been taken by any reasonable tribunal. Under the regime that will exist if this Bill becomes law in its present form, the people behind those 260 cases, and all their families, would have been sent back to face persecution, torture or death.

That is the enormity of what we are being asked to pass. It is my abiding faith in the Houses of Parliament that leads me to believe that at the end of the day, the measure will not pass—that ultimately, it will not pass through this House, and will not pass through the House of Lords either. If we do pass it into law, it will be an object of shame both for this House and for this Government, which they will never, in history, survive.

Dominic Grieve (Conservative, Beaconsfield)

The hon. and learned Member for Medway (Mr. Marshall-Andrews) said that it was a principle underpinning the Labour party and the Labour movement that people in this country should not be treated differently according to whether they are citizens or not. That is a principle to which I too, as a Conservative, have no difficulty in adhering. That all in this country should be subject to the rule of law, and have the protection of the law, is a fundamental right, and fundamentally underpins the ethos and the ethics on which this country was built and developed.

In clause 11 the Government propose to do something unprecedented. Not even in the darkest days of the second world war, when aliens were being interned, and were subject to administrative procedures to bring that about, was the supervision of the higher courts removed from the process to prevent wrongs from being righted if necessary, and rights from being preserved. Yet that is what the Government propose to do.

The only justification being suggested is that the administrative procedures that the Government seek to substitute will provide adequate protection. I accept that the Government face a problem with the appeals system. It is obvious that it needs to be streamlined to make it more efficient. I also accept that the system has been abused by a minority of unscrupulous lawyers, who take the view that by spinning out the proceedings in undeserving cases they can delay the inevitable, and even that the inevitable may therefore not happen, because the Government will lose the will to implement the decision and deport the person whose asylum application has failed.

However, we must not lose sight of the fact that many of the delays in the asylum system have nothing to do with the courts, but stem from the Government's administrative failure to cope with the numbers of asylum seekers. We know that 20 per cent. of decisions made by the Home Office executive officers are not made within the two-month period prescribed. Is that surprising, when we consider their lowly status, the fact that they start on a salary of £15,000 per annum, and that they are regarded as wholly qualified to do their work after 27 days? It may not be surprising, either, in those circumstances, to note that many of their decisions turn out to be wrong.

The Minister may care to comment on this, but I understand that the Home Office presenting officers attend only about 60 per cent. of adjudication hearings. Is it surprising, therefore, that the adjudicators often overturn decisions? As the hon. Member for Winchester (Mr. Oaten) rightly said, the system leading up to the tribunal stage is not only slow, but is entirely in the hands of the Government who run it. There is no point in the Government complaining about the system; it is their system.

In my view, underlying the Government's proposal are complaints about the attitudes of the judiciary. The truth is that the Government do not like the judiciary. They do not like its independence or its attitudes. When Lord Falconer was appointed Secretary of State for Constitutional Affairs, why did the Home Secretary say to him, in an aside that was perfectly visible on television, "Now at last we will get the judges we want"? That is the reality of the Home Secretary's hostility to the judiciary and to the independence of its decision making.

Furthermore, there is not much point in the Government complaining about the judiciary's decisions in asylum cases, when most of those decisions have been founded on the Human Rights Act 1998, which the Government themselves chose to incorporate in our law.

In 1999, exceptional leave to remain was granted in only 2,465 cases; in 2002, there were 20,135 such cases. That was because the introduction of the Human Rights Act brought a whole new range of considerations to the way in which asylum cases had to be considered, leading to a completely different set of results. I do not imagine that the Minister wishes to criticise the judiciary for having been instrumental in helping that process along. If he does, I simply say to him that the Government should not have incorporated those rights in our law. It was his Government who chose to do that. There is no point in blaming the judges for interpreting the law, when Parliament asks them to do just that.

Edward Garnier (Conservative, Harborough)

The Government have at last got round the inadequacy of their own legislation by cynically placing in this Bill subsection (5) of proposed new section 108A of the Nationality, Immigration and Asylum Act 2002, which disapplies the Human Rights Act from the decisions of the tribunal. Not only did they cynically introduce the Act to British law so that they could say, "We're bringing rights home," but when judges apply the legislation that they so joyously put on our statute book, they disapply it, for the very reasons that my hon. Friend has mentioned.

Dominic Grieve (Conservative, Beaconsfield)

I entirely agree with my hon. and learned Friend—yet I understand that the Home Secretary has certified that he believes the Bill to be compatible with the Human Rights Act. The Government's approach is a complete mystery. Indeed, I have to say—and my hon. and learned Friend may well agree with me—that the provision will drive a cart and horses through the Government's attempts to make this ouster clause work. One of the things that I intended to say to the Minister was that I do not think that the ouster clause as drafted stands a hope in heaven of surviving judicial scrutiny. It will probably lead to a major confrontation between the judiciary and the Executive.

It will not lead to the streamlined procedure that the Government want.

I said that the Government do not want the judges to rule, yet the proposal is entirely a product of their Marxist past—[Interruption.] Yes, it is. The more I watch this Government and see that, having abandoned any hint of Marxism in economics, they long for centralised bureaucratic solutions to the problems that confront the country, the more convinced I become that they wake up in the middle of the night believing that those bureaucratic solutions can change the world for the better. I, however, do not believe that.

I have some suggestions that will allow the Government to solve their problem. We have tabled a series of amendments—amendments Nos. 93, 92, 94, 96, 22, and new clause 8. If they were accepted, they would provide a framework by which it would be possible for the Government to achieve their aim of streamlining the legislation while keeping it compatible with the Human Rights Act and, indeed, making it work properly.

Amendment No. 93 respects the idea that the tribunal and the adjudicator should be collapsed into one, to speed up the process. If that is what the Government want to do, so be it. Much will depend on the quality of the tribunal, to which I shall return in a moment. In addition, we would remove what is frankly the completely ludicrous notion that the tribunal can review its own decisions. It is sometimes possible to go back to a judge under the slip rule to ask him to review his judgment or order, but it is extraordinary that the Government consider it acceptable that the mechanism of appeal with which they are going to justify the Bill as Human Rights Act-compatible is to ask a tribunal that has just made a wrong decision to review it. That is nonsense. As soon as the Minister and the Government understand that, we can start to put the legislation into a sensible shape.

We propose establishing a statutory appeal procedure to a High Court judge. It would be streamlined, with seven days to appeal, which would be possible without causing injustice. The appeal would usually be dealt with on paper, but with the possibility of the judge calling the case in for oral hearing if necessary. The judge would either affirm or alter the decision, or remit it back to the tribunal if further hearings of fact were required. That sensible approach respects the fact that the higher judiciary should have an input into the process. It would also ensure that the appeal is not conducted by the same people who heard the original case.

Richard Bacon (Conservative, South Norfolk)

As my hon. Friend has not departed too far from the subject to human rights compatibility, will he invite the Minister to confirm whether the Government still assert that the Bill is human rights-compatible? The old version of the Bill clearly sets out on page 1 the certificate to which he referred. It says that Mr. Secretary Blunkett has asserted that the provisions

"are compatible with the Convention rights",

but there is no such reference in the clean version of the Bill, at least not on the front page.

Dominic Grieve (Conservative, Beaconsfield)

My hon. Friend makes a good point. If the Bill as printed, after its passage through Committee, is no longer Human Rights Act-compatible, the Minister should have told us that from the outset. I take it that in the absence of that statement, he still considers it compatible. My hon. Friend is right, however, that it no longer features in the Bill. I suppose, therefore, that the Government are proposing legislation that is not so compatible with the Human Rights Act. I will give way to the Minister if he wishes to say whether it is a printer's error or the Government's new view of the Bill.

Humfrey Malins (Conservative, Woking)

Which is it?

Dominic Grieve (Conservative, Beaconsfield)

The Minister does not want to intervene, so we are left with our quiet speculation.

John Gummer (Conservative, Suffolk Coastal)

As the Minister is not prepared to respond, does my hon. Friend agree that if the Human Rights Act is important in a case, it is precisely a case in which a country deals with foreigners, because that is when many countries have double standards? It happens to be true in Britain that we have not had double standards. The Bill is the first time we have had those double standards, which came into being the very moment the Government ditched their Human Rights Act, which brought the convention on human rights into our law.

Dominic Grieve (Conservative, Beaconsfield)

My right hon. Friend is right. It is also right that we should call a spade a spade and consider people's views with care. Many people—perfectly reasonable people—would often apply different criteria to foreigners and nationals. It is precisely for that reason that the protection of the law is so important. It is because emotions often drive people in an opposite direction that a system of law is constructed to ensure that mischief does not result from it. That is what is so unpleasant about what the Government want to do. The hon. Member for Hackney, North and Stoke Newington (Ms Abbott) was right: if the Government can do that for this measure, what next? The comment on the second world war—

"First they came for the Jews"

and then for another group, and another—is correct. Those who are most unpopular in society need the greatest protection. I always thought that that underlay the Human Rights Act, however unpopular and uncomfortable some of the decisions might occasionally be. Perhaps the Minister will intervene if he disagrees, but in the meantime I give way to my hon. Friend the Member for Worthing, West (Peter Bottomley).

Peter Bottomley (Conservative, Worthing West)

I am grateful to my hon. Friend and my hon. and learned Friend the Member for Harborough (Mr. Garnier) for their contributions, because subsection (5) of proposed new section 108A relates to anything that a tribunal may have done in which there is a

"lack of jurisdiction . . . irregularity . . . error of law . . . breach of natural justice, or . . . any other matter".

If this is the first time the Government are suspending the Human Rights Act, and if it is a convention of the House that the declaration of compatibility with that Act is not left in the Bill on Report, can we have a new convention that puts it back in any case in which the Government propose to lift the protection of the Human Rights Act, which we are told matters so much?

Dominic Grieve (Conservative, Beaconsfield)

My hon. Friend makes a good point. Again, I wait to hear how the Minister intends to deal with that.

David Winnick (Labour, Walsall North)

Will the hon. Gentleman give way?

Dominic Grieve (Conservative, Beaconsfield)

If I could make some progress—other hon. Members wish to participate.

On the other provisions in amendment No. 93, once the review has taken place in front of the single judge, there should be a mechanism to appeal on a point of law to the Court of Appeal. We have again tried to streamline that by introducing the period of seven days. The appeal has to be done with the leave of a single judge or the leave of the Court of Appeal. From there, it can go to the House of Lords in the ordinary way if there is a point of law of general public importance. How would that procedure hold things up?

I suspect that the mechanism of going to the single judge will be just as quick as asking the tribunal to review its own decision, by the time it has been weighed down with dozens of such applications. We know that the Court of Appeal heard only five asylum cases in the year from 1 October 2002 to 30 September 2003, and only four asylum cases were heard by the House of Lords. Admittedly, there were many more in the previous year, but that reflected the fact that the adjudicators and the tribunal were getting their decisions consistently wrong. I need the Minister to justify his proposal if he is to persuade me that allowing an appeal to the Court of Appeal and the House of Lords would put a spanner in the works, especially as we propose a streamlined procedure to facilitate the process.

On the Human Rights Act exclusions and the question of removal, I shall return to a point that I made earlier, which bears repeating: if the Government persist with clause 11, the judiciary will undoubtedly find every conceivable device to get round its provisions. Having examined it, I can think of a number of ways in which that might be done.

The Minister may care to reflect on the point that if the procedures are irregular and flawed, it might be argued that there are no procedures. If there are no procedures, an application for habeas corpus will be entertained by the courts when somebody is about to be taken away in a van and put on a plane, and the mud will be all over the Government's face. The Government are being unreasonable and should accept our offer of a helping hand rather than persisting with a ludicrous policy.

Amendment No. 22 deals with schedule 2, which is very worrying and is linked to clause 11. Schedule 2 provides for the supervision of judges by other members of the judiciary. I am not sure whether I understand what that means, but I have always understood that every judge is independent once they have been appointed. A judge may, of course, consult colleagues or discuss matters with them over dinner, but his decisions are ultimately independent.

Explaining that point in Committee, the Minister said:

"We propose that senior members of the judiciary will be responsible for supporting a group of approximately 10 immigration judges. The senior judiciary will play a role in communicating information and case law and will be available if the immigration judge wishes to discuss any issue. They will play a role in ensuring that the judges receive appropriate training and mentoring, should they need it. That is consistent with judicial independence and is essential to allow asylum and immigration tribunals to function effectively."—[Official Report, Standing Committee B, 20 January 2004; c. 317.]

New Labour justice involves a judiciary that is no longer independent and that is so orchestrated from the president downwards that it achieves the ends that the Government want. The Minister should be ashamed of introducing such a proposal.

It would be sensible to accept amendment No. 22, which would resolve the problem by changing the wording and removing the mischief. I do not mind if judges want to consult each other, but I object to the setting up of a parallel legal system based on new principles designed to achieve an administrative end. Before 1997, people said that the Prime Minister thought that Britain was too feudal and that he wanted to make it Napoleonic, but we are getting Napoleonic with knobs on—an administrative system that is alien to this country, which does not refer to our historic freedoms and which completely undermines judicial independence.

Finally, I commend new clause 8 to the House; the Government should adopt it if they want to speed up the system. If the Government succeed in mastering the asylum system—there are some signs that they have made recent improvements—new clause 8 sets out a timetable for the Secretary of State. It states:

"Initial decisions . . . shall be made and notified to the applicant within six weeks of the application being made. Notice of appeal . . . must be lodged with the Tribunal within 14 days of the decision appealed against . . . Within 14 days of receipt of the notice of appeal the Tribunal shall hold a direction hearing".

Those are simple ways further to streamline the process.

Justice delayed is justice denied—the saying is old and, perhaps, trite, but it is true. If the Minister wants the official Opposition's help in speeding up justice, we will do what we can to help him and to cure abuses. If, however, the Government seek to undermine the principle of an independent judiciary, which is what clause 11 does, he should not be surprised when we resist him.

Tony Wright (Labour, Cannock Chase)

I shall be brief and have one point only to make. I have supported almost everything that the Government have tried to do to sort out the asylum system—it needed sorting out, and they have rightly set about the task with some vigour. I am also happy to join in the occasional jibe against lawyers—the jibes are good fun and always contain a grain of substance. However, there comes a point at which all of us who are not lawyers but who care about how the system works must ask ourselves whether we are being asked to go a step too far.

I have examined what the Constitutional Affairs Committee told the House and what the Joint Committee on Human Rights told both Houses—their use of language is not restrained; it could hardly be more vigorous—in drawing our attention to the importance of the Government's proposal. We have always adopted the principle that higher courts review the actions of tribunals in this country. That keeps the tribunal system on course and enables us to run it, because we know that it can be disciplined by the purview of a higher court, which is a constituent of what we have become used to describing as "the rule of law".

When the Government ask us to dispense with the rule of law by collapsing the appellate system into a single appeal body and by removing the appeal system from the purview of the higher courts, we are entitled to ask, "Why are you doing that?" As it happens, I am not one of those who simply say, "If it can be shown to be a constitutional precedent, I shall be against it." I favour breaking with all kinds of constitutional precedents on all kinds of fronts—I can give the Government a little list, if they would like one. However, I am not prepared to sign up to the removal of an appeal layer unless overwhelming justification can be given.

Authoritative Committees of this House have explored the question whether the Government have an overwhelming case, and they have found that the Government do not have one. That places an onus on all Members of Parliament who broadly support the direction in which the Government want to travel to say, "Hang on a minute. Be sure that you are not asking the House to do something disproportionate. Be sure that the measure does not help to undermine the rule of law on this front, and potentially on a wider front too, just for Executive convenience." It is not always easy to tease out whether points of principle underpin the matters that we discuss because we have a habit of trying to make everything into a fundamental point of principle in order to sustain our case, but there are moments when such principles are clearly at stake, and clause 11 raises one such principle.

We know that the measure will never be accepted by the other place, and the Government have presumably factored that into their thinking. As I see it, there is no way that legislation this fundamental will be accepted by the other place, so the Bill will presumably return to this House in a form that the Government think that they can get through, which will involve its amendment. The appeal system that we end up with will presumably be more streamlined than the current system, but it will be something other than the Government's current proposal.

That may seem to many people to be a perfectly satisfactory outcome—indeed, that is how we do things.

From the point of view of the House, however, that is not an acceptable way to proceed. The Government should not ask the House to agree something that raises fundamental points of constitutional importance, on the assumption that what will eventually be agreed will be something other than the original proposal. That is profoundly damaging for the House and for the reputation of our system. If for no other reason, I ask the Government to think again about the clause.

Edward Garnier (Conservative, Harborough)

At the outset of their respective speeches, my hon. Friend the Member for Beaconsfield (Mr. Grieve) and the hon. and learned Member for Medway (Mr. Marshall-Andrews) both claimed political ownership of a fondness for the rule of law and respect for our system of justice, and they were right to do so. Both our parties have a long and proud tradition of respecting the rule of law. I paraphrase what they said, because I am trying to be as quick as I can. Respect for the rule of law is not a matter that belongs to either party. I hope we share it, irrespective of our party political allegiances, and I am reasonably sure that the hon. and learned Member for Medway would hold those views regardless of whether he happened to be a Labour Member of Parliament. I know for a fact that my hon. Friend does as well.

What the hon. Member for Cannock Chase (Tony Wright) said at the beginning of his remarks also struck me as true and right, when he referred to the report of the Constitutional Affairs Committee led by the right hon. Member for Berwick-upon-Tweed (Mr. Beith). It is, in some senses, remarkable that we have to remark on what that report says. It points out things that to me and, I hope, to most civilised Members of the House, are unarguable and which ought to be wholly unremarkable and uncontroversial. Why do they need restating? Because we are dealing with a very strange Government indeed, who seem to have forgotten everything and learned nothing.

I shall do the Minister a favour by not referring to anything he said in Committee. The Government have crafted clause 11, which flies in the face of the accepted standards that the hon. and learned Member for Medway, my hon. Friend the Member for Beaconsfield, the right hon. Member for Berwick-upon-Tweed and the hon. Member for Cannock Chase take for granted. They are seeking to do what, for example, Lord Scarman in the case of the Crown v. Home Secretary ex parte Khawaja—a 1984 case in the House of Lords—remarked upon. He said:

"Every person within the jurisdiction enjoys the equal protection of our laws. There is no distinction between British nationals and others. He who is subject to English law is entitled to its protection."

He was not saying anything that was new. The great Lord Mansfield, in setting free the black slaves in the 18th century, recognised exactly the same. Judges in the 18th century, the late 20th century or today do not recognise the colour, creed, nationality or origins of the applicant for asylum before them—or, at least, they should not.

The Government cynically introduced into our domestic law the Human Rights Act 1998, which brings the European convention on human rights into our law, and now they are prepared to strip it out completely. I shall analyse clause 11 briefly, as it demonstrates the eminent good sense of amendment No. 93 and new clause 8 which were moved by my hon. Friend the Member for Beaconsfield. I do not need to repeat what he said. I ask the House to consider amendment No. 93 and new clause 8, whereby controls can be placed upon bad appeals, worthless appeals and time-wasting appeals by means of a requirement for permission and for speed, while none the less maintaining an attachment to justice and the rule of law.

We should bear in mind the content of clause 11. First, there is a requirement that the tribunal

"shall review its decision on an appeal if requested to do so by a party to the appeal."

That is presented as though it were a tremendous bonus to the people of this country that if the court is requested to review its own decision on an appeal, it will consider whether to do so. If that is a bonus, the benefits are soon removed when one turns to the following page, page 12, which states:

"On a review by the Tribunal of its decision on an appeal the Tribunal"—

reviewing itself, of course—

"may act under subsection (6)(b) only if satisfied that the decision would have been different but for a clear error of law by the Tribunal."

So if the tribunal is not persuaded that it has made a mistake, it will not enter into any sort of review.

Matters get worse. The Bill states:

"No court shall have any supervisory or other jurisdiction (whether statutory or inherent) in relation to the Tribunal"

and

"No court may entertain proceedings for questioning"

a host of things that higher courts exist to question and to impeach if necessary. A court is specifically prevented by the Bill

"from entertaining proceedings to determine whether a purported determination, decision or action of the Tribunal was a nullity by reason of—

(i) lack of jurisdiction,

(ii) irregularity,

(iii) error of law,

(iv) breach of natural justice, or

(v) any other matter".

This is a Bill that was drafted by the close advisers of some African despot, not by a British Government interested in the rule of law. It is an absurd, disproportionate and wrong piece of legislation, yet we have to debate these clauses because the Government think it right and proper to do such things. The Government are like a group of small boys ripping up a beautiful butterfly—our constitution—pulling off its wings to see how long it takes before the beast is dead. As a Member of Parliament, I am appalled to find that I must even consider legislation containing clause 11.

David Winnick (Labour, Walsall North)

There is merit in what the hon. and learned Gentleman says and I do not disagree with many of his arguments, but as a Conservative Member, does he not accept responsibility for the fact that asylum seekers have been demonised, not least by his party at constituency level and sometimes in the House of Commons? If the Government are acting in a way about which I have many reservations—I shall have to decide how to vote, or whether to vote at all, on this group of amendments—it is because they are responding to the manner in which asylum seekers are demonised by the media and the Conservative party, and to the constant pressure on them as a result.

Edward Garnier (Conservative, Harborough)

I am not sure that the hon. Gentleman's point was helpful to him or his Government, but others will be able to consider it as and when they wish to.

I shall explain briefly why I think that clause 11 is so strange and so absurd. Having learned that no court may look at matters that affect jurisdiction, or at matters that were decided irregularly, or were in breach of the law, or in breach of natural justice or any other matter—whatever that may be—we are told that the court may consider

"whether a member of the Tribunal has acted in bad faith,"

in reliance on an earlier subsection, but

"only if satisfied that significant evidence has been adduced of

(a) dishonesty,

(b) corruption, or

(c) bias."

It is all right if the tribunal was slightly dishonest or slightly corrupt or slightly biased, or perhaps not at all dishonest but completely corrupt, and just a teensy-weensy bit biased.

If that is the position, the tribunal can, if it thinks fit, look at itself again. I wonder whether the Government will find a judge who will think it proper to allow himself to be appointed president of the tribunal.

We have seen the remarks of Messrs. Justices Collins and Ouseley, the two most recent presidents of the Immigration Appeal Tribunal. In their judicial pronouncements, they have underscored the value of the appellate system that they have headed up. They are not making political points, but simply giving judgment on cases that have come before them from the lower tiers. Such people will not be available to sit on the tribunal, because most judges, I suspect, will find it a thoroughly objectionable and unprincipled tribunal to be in charge of.

The Government have told us that they have to abolish the office of Lord Chancellor because it is offensive to the doctrine of the separation of powers. We are also told in the Bill that abolishes that office that the way in which judges will be appointed in future will underscore the separation of the Executive and the judiciary, whom it will free from the influence of political appointment. Nobody, of course, has ever suggested that our judges are appointed on anything other than merit, but none the less the Government think that that is appropriate. However, under this Bill, we will have a system under which the appointment of judges and members of the tribunal is subject to the influence of the Secretary of State for Constitutional Affairs, and citizens of our country can deal with asylum seekers in such a way that their human rights are expressly denied.

I shall conclude with an illustrative example, as I appreciate that many other hon. Members wish to speak. The Government want to do away with the appeal process in the immigration and asylum system on the ground that it is offensive to the Treasury and some sub-editors and editors of some of our national newspapers. They also want to attract votes away from the British National party. However, not once but twice and now a third time they have required an asylum-seeking constituent of mine, Captain Rogelio Viteri, the former Ecuadorian naval attaché who, along with his wife, has been threatened with death, to attend a hearing. Both of them have been subjected to terrible personal anguish, both in this country and in Quito, where he was imprisoned without trial or access to due process. He was eventually told that he could stay in his home country and die or go away and live. I am happy to say that he chose to live in this country, and to apply for asylum here. He was granted it at the first tier. The Home Office, not content with that decision, appealed. At the appeal hearing, the Home Office did not submit evidence nor did it cross-examine my constituent's witnesses. It sat on its hands and lost the appeal, only to appeal that result. The next hearing is on 18 March. The Government are cynically removing the appeal rights of asylums seekers in the Bill, but they are prepared to exploit the appeals system at vast public expense and without any idea of what justice is or means, let alone what the cost is to the Exchequer.

Annabelle Ewing (Scottish National Party, Perth)

I seem to recall that the hon. and learned Gentleman alluded to his constituents' sorry tale in Committee. Is it not the case that Ecuador is whitelisted?

Edward Garnier (Conservative, Harborough)

Ecuador is an interesting place, but I shall not go into the evidence that was adduced in the two previous hearings and will no doubt be adduced again.

In short, the Government have double standards. They claim to be the patron of human rights, yet are prepared to abuse future asylum seekers' human rights under clause 11. They have demonstrated their lack of good faith, I submit, in their handling of the Viteri asylum application. I have said enough to make the points that I wish to make, and have burdened the House with my remarks for too long. I trust that hon. Members who have listened to others apart from me realise that the Government have some good intentions, but in relation to clause 11 they have completely and utterly lost all connection with humanity and justice.

Diane Abbott (Labour, Hackney North and Stoke Newington)

I am glad to be able to speak in support of proper appeal rights for asylum seekers and of the amendment to delete clause 11.

Two important parliamentary Committees examined the proposals on the appeal system and reached conclusions that are not favourable to the Government. Opposition to clause 11 rests on issues of principle and of practice. In the first instance, there is a clear objection in principle to any tribunal exercising a supervisory jurisdiction over itself, yet that is the set-up for which the Government are asking us to vote tonight. As colleagues have said, the Government can get away with that only because asylum seekers are involved. If clause 11 is passed unchallenged tonight, we will set a precedent that, for administrative convenience, could be applied to various Executive and administrative tribunals seeking to do away with a proper system of appeal.

Underlying clause 11 is the Government's concern about delay in dealing with asylum seekers and a range of immigration cases. I have great sympathy with their impatience. I have been a Member of Parliament for 17 years in a corner of north-east London that is home to asylum seekers and economic migrants from all parts of the globe and have dealt with thousands of cases. Some things change—every time there is a war or disturbance in a far corner of the globe there is a change in the pattern of asylum seekers and economic migrants who present themselves in Hackney. Ten years ago, we saw people displaced from the former Yugoslavia, but since then we have seen Kurds and people from the horn of Africa.

Demographic trends change, but other things remain the same. During my time as a Member of Parliament the administration system has been consistently poor, and delays have continued. The Government are right to focus on delay, but they are wrong to identify appeal rights as the most important cause of delay. If the Government introduced a programme of legal and administrative change to deal with delay at all levels, I would be the first to support them. Week after week in my advice sessions, I try to advise and help people who have waited years for a response from the Home Office. People who have had hearings in their favour are still waiting months to get the paperwork that will allow them to work and get on with their lives. Nobody feels more strongly about delays in dealing with asylum and immigration cases than the MPs who have to deal with those cases day in, day out.

If the Government are concerned about delay, before they tamper with appeal rights they should look at the causes of delay, the solution to which rests in their own hands.

I commend to the Government a recent report by Amnesty International on decision making in asylum cases that asked why some of the initial decisions were so poor. Amnesty considered 170 cases and came up with three main reasons, the first of which is the lack of accurate information on the human rights situations in some countries. I have often seen Foreign Office human rights assessments that bear no relation to what I or anyone who knows the country concerned knows about what is going on there—or perhaps the Government hear only what they want to hear. Secondly, there is a lack of objective consideration of the credibility of applicants. Finally, there is not enough proper consideration of torture and medical evidence.

Before the Government tamper with appeal rights, why will they not look at the quality of the initial decision making, because that in itself would speed up the system? It is no good saying that there are bound to be a few mistakes. We are not talking about a few mistakes. Any of my colleagues who deal with immigration and asylum day in, day out will say that the proportion of poor initial decisions is far too high.

Keith Vaz (Labour, Leicester East)

My hon. Friend has sat through many debates on immigration Bills with me over the past 17 years, but does she not find it astonishing that the Government have proposed no package of measures to improve the operation of the Home Office? I am not saying that the proposals to remove the second tier of appeal would be acceptable if such measures had been introduced, but the Government have not even thought of a way of improving that first process before removing the right of appeal.

Diane Abbott (Labour, Hackney North and Stoke Newington)

Of course my hon. Friend is right. If the Government had proposed a package of measures—legal measures or merely changes in process—to improve the initial decisions, the House would look more favourably upon their suggestions on the appeals process.

The Constitutional Affairs Committee, of which my hon. Friend is a member, said:

"The new proposals do too little to address the failings at the initial decision-making level and the low level Home Office representation at initial appeals."

Apparently, there is no Home Office attendance at up to 40 per cent. of cases. How can Ministers ask the House to set what might be a very damaging precedent in doing away with tribunal appeal rights, when they are not prepared to take the administrative steps to ensure that the Home Office is represented at all initial appeals?

The Home Affairs Committee said:

"The real flaw in the system appears to be at the stage of initial decision making, not that of appeal."

Of course layers of appeal are needed because of the poor overall standard of decision making at the very first tier, which is the only check and quality control. Worse, where people know that the quality of initial decision making is so poor, it is an incentive, but not the only one, for asylum seekers to play for time. We could with more confidence defend a speeded-up system if we had more confidence in the initial decisions that it takes.

The Constitutional Affairs Committee, which is not packed with dangerous radicals or even extremist Tories, said:

"We recommend that the removal of a formal tier of appeal should not be undertaken until it can be shown that there has been a significant improvement in initial decision making and the rise in the number of successful first tier appeals has been substantially reversed."

In other words, get the system right first. The Government should get the system working efficiently and fairly before tampering with fundamental rights of appeal.

I note with some sadness that no Labour Member has so far spoken to support clause 11. I do not believe that a single Labour Member will rise to support clause 11, and I hope that those in the other place will read the report of the debate in Hansard and realise that the proposal to do away with a tier of appeal rights has no support among Government Members. I hope that that will strengthen the Lords in doing what it has to do in relation to clause 11.

There is no doubt that the Government have made much important headway in trying to reorganise, streamline and make our asylum system more efficient. No one who has dealt with the system could fail to appreciate that the Government had a Herculean task; but, as has been said earlier this evening, in doing away with a whole tier of appeal rights, the Government are going a step too far. They need to knock out clause 11, and return to the House with a package of proposals to improve the appeals process altogether. It is with some regret that other hon. Members and I tell the Government that we cannot support clause 11. We will support the amendment to remove it, and we look to others in another House to reinforce our view.

Richard Bacon (Conservative, South Norfolk)

It is a pleasure to follow the hon. Member for Hackney, North and Stoke Newington (Ms Abbott) in the debate. She referred to the fact that not a single Labour Member of Parliament had spoken in support of clause 11. I think that I am right in saying that not a single Member of Parliament has spoken in support of the clause. The Minister may find himself in the curious position of being the only Member of Parliament to speak in favour of clause 11 on Report, which speaks eloquently of its worth.

The reason hon. Members do not support clause 11 is very simple: it is a bedrock of our system that we do not have unreviewable, uncheckable powers. The hon. and learned Member for Medway (Mr. Marshall-Andrews) put that exceptionally succinctly and clearly in his speech. The lack of such power is the basis on which the Anglo-Saxon legal and political tradition is built, and the Government need to understand that.

I should like to raise a couple of issues with the Minister, the first of which relates to the Human Rights Act 1998, which has been alluded to. I should like him to make it very clear in replying to the debate whether the Government assert that the Bill is now compatible with that Act. My original copy of the Bill clearly stated that the Home Secretary

"has made the following statement under section 19(1)(a) of the Human Rights Act 1998:

In my view the provisions of the Asylum and Immigration (Treatment of Claimants, etc.) Bill are compatible with the Convention rights."

If we pick a clean copy of the Bill off the Table now, it says no such thing; mysteriously, that certificate is no longer there. The Minister could do the House a service if he clarified that point. Following the Bill's consideration in Committee, do the Government say that the Human Rights Act no longer applies? If they think that it applies, why is it not stated on the face of the Bill? If they think that it does not apply, will they please say so and attempt to justify that?

The second point that I want to make relates to the interesting, not to say amazing, letter that we received from the Minister for Citizenship and Immigration. In relation to clause 11, it says that section 108A is intended

"to prevent a person using judicial review to re-open an appeal by challenging removal or deportation following an unsuccessful appeal. However—

unfortunately—

as drafted paragraph . . . could be interpreted as affecting an individual's right to challenge the lawfulness of their detention and the right to compensation following their unlawful detention as a result of action by IND or the Tribunal. This would place the UK in breach of . . . article 5 of the European Convention of Human Rights . . . The Government's position has always been that the measures being introduced by section 108A will not exclude judicial review".

Hence the new Government amendment. It continues by saying that the amendments

"will ensure that the restriction on access to the higher courts cannot be interpreted as extending to challenges to actions of IND, or actions of the Tribunal in breach of article 5"—

which will therefore—

"place beyond doubt that the provisions contained in section 108A do not prevent a person from challenging an executive decision in the higher courts."

If all that is clear, one wonders what all the fuss was about. But unfortunately, when one reads the Bill and examines the powers of the president, all remains unclear. Subsection (4) of proposed new section 108B states:

"The President may refer a point of law only if the proceedings in the course of which the point arises . . . have not been determined by the Tribunal".

Of course, it is entirely possible for someone who is affected by a decision to say during a tribunal hearing that the case before the tribunal was affected by a lack of jurisdiction or an irregularity, or by an error of law or a breach of natural justice. According to clause 11 as drafted, however, if the president of the tribunal says, "Well, actually, the case is not affected by lack of jurisdiction, irregularity, error of law or a breach of natural justice", he is then barred from referring the case to a higher court, unless—apropos the provision referred to by my hon. and learned Friend the Member for Harborough (Mr. Garnier)—the tribunal decides that it will review the decision on appeal, which it can do if it is satisfied that the decision would have been different but for a clear error of law. The president could be confronted with the possibility that there was a clear error of law and say, "No, there wasn't". But the Bill states elsewhere that he is barred from making a referral, so the two different parts of the Bill are contradictory.

The third issue that I want to raise has already been referred to, so I shall not dwell on it. Fundamentally, the problem is not a legal one but an administrative one, which is why I support amendment No. 93 and new clause 8, the purposes of which are to speed up administration of the appeals system. The answer to the problem is not to drive a coach and horses through the whole legal apparatus, or to undermine the bedrock on which our liberties have stood—which is that we do not have unreviewable or uncheckable power—but to speed up the administrative processes.

As the hon. Member for Cannock Chase (Tony Wright) said—he is no longer in his place—the House of Lords will not look kindly on the Bill; and, as the hon. Member for Hackney, North and Stoke Newington (Ms Abbott) said, the fact that not a single Member has so far spoken in favour of clause 11 will give the Lords courage in resisting it and seeking to amend it. Although the hon. Member for Cannock Chase was right to say that the other place will not look kindly on clause 11 and probably seek heavily to review it, the judges themselves will not look kindly on it either. The history of the Executive's attempts to impose ouster clauses in this way suggests that if the judges see that an injustice will be done in a particular case unless they intervene, they will find a way to do so.

Ultimately, the Government will succeed simply in undermining the rationality and logic of the rule of law, because they will force the judiciary to become ever more creative and imaginative in finding a way round it. That cannot be in anybody's interests. In fact, the Law Commission has an obligation to simplify and clarify the law, which is what we should all seek to do, so that everyone can understand it. The solution to this problem is an administrative one. The Government should not seek to solve it by declaring war on the judiciary.

David Winnick (Labour, Walsall North)

I am very unhappy with the Government's proposals. If we were in opposition I can imagine what we would be saying, and it is quite likely that those Conservative Members who now oppose the proposals would be arguing in favour of them. However, that is the nature of politics.

Dominic Grieve (Conservative, Beaconsfield)

I do not think that we would, because the proposals are so fundamentally objectionable in terms of the idea of the state in which I want to live. However tempted one might be by the Government's proposals—I can understand that some people might be tempted by them—I could not go along with them under any circumstances.

David Winnick (Labour, Walsall North)

I accept what the hon. Gentleman says, but whether a Conservative Government would take that line is a completely different matter.

As I said in an intervention, this debate is being held against the background of the demonisation of a group of people—asylum seekers—over the past few years, and the Conservative party must accept some responsibility for that. I have seen leaflets distributed in constituencies that caused me to wonder whether the British National party produced them, and some of my hon. Friends can doubtless say the same. [Interruption.] The shadow Home Secretary shakes his head, but that is the unfortunate fact. Of course, the media have also played a part in demonising asylum seekers at every opportunity. Although I am unhappy with the Government's proposals and I do not intend to vote for them tonight, I can understand why they are responding—wrongly, in my view—to that situation, and to a climate of opinion that demonises the people to whom I have referred.

I am perhaps the only person in the Chamber who was here in the late 1960s, when another group of people were being demonised who were not in the United Kingdom: east African Asians. Because of the clamour—involving Enoch Powell and the rest of it—it was decided that they should not be allowed to come to the United Kingdom, despite the promises that were made. I was one of the 50-odd Members of Parliament—mainly Labour MPs, but not exclusively so—who voted against that proposal.

Of course, there is no automatic right in terms of moving from the adjudicator to the tribunal—or at least, that was the case when I was involved in the appeals system. One had to rely on points of law, and when a client had lost a case and wanted to go to the tribunal, one would often have to explain the facts of life to them. Unless such points of law existed, the case could not be made for reviewing, and possibly reversing, the adjudicator's decision. But what worries me—

Jeremy Corbyn (Labour, Islington North)

In the light of my hon. Friend's experience of the appeals system, is he not concerned that the quality of representation of many applicants for asylum is very poor? They often lose their case at the first hurdle because of poor quality or non-existent representation, and at a later stage it is almost impossible to retrieve the situation. Taking away any kind of appeal actually makes matters worse.

David Winnick (Labour, Walsall North)

My experience dates back over many years—I have represented my current constituency for 25 years—and I can only hope that that was not the situation when I was involved in the appeals system. I hope that representation is good, and I am sure that solicitors and the Immigration Advisory Service, which I used to be involved with, do as fine a job as possible. However, I accept entirely that, in many cases, that is not so.

I cannot disagree with the speech made by my hon. Friend the Member for Hackney, North and Stoke Newington (Ms Abbott). It is unfortunate and unacceptable that the new tribunal will be able to make decisions that cannot be reviewed. I do not necessarily go along with the argument that today it is the asylum seekers and tomorrow it will be another group of people. Nor do I agree with the view that the Government do not want judges to be independent, and that they want them to be their virtual puppets. To the extent that that view is being advanced, it is an exaggeration and a false description of the Government's position.

Having said all that, I believe that the Government have gone too far. It is clear that the proposals will be accepted, and I do not challenge for one moment the view that they will enjoy a good majority, but I do agree with my hon. Friend the Member for Cannock Chase (Tony Wright) that the likelihood of the Lords approving the proposals is very remote indeed. The Government will have to be less dogmatic, and it would be far better if they listened closely—if not to the Opposition then to their own Members.

It speaks volumes that no Labour Back Bencher has decided to come forward to defend and to justify what is being done. I therefore hope that even at this late stage, it would be possible for the Government very seriously to reflect on our concerns and reservations.

John Gummer (Conservative, Suffolk Coastal)

The hon. Member for Walsall, North (David Winnick) contrasted what he thinks might happen if there were a Conservative Government with what is happening while there is a Labour Government. I think that he is wrong about that, and that no Conservative Member would have presented such a proposal to the House. Indeed, I find it a huge surprise that any Member would do so, but as it has happened we have to fight it very hard. The Minister should note the fact that no Member of any description has supported it or thinks it tolerable. The reason for that is rather serious: it is that none can believe that a Government would present such a proposal. I remember when we debated the inclusion of the European convention on human rights in British law. I was doubtful about the value of doing so, because I felt that the convention defends people against things that would not be done in Britain in any case. Now, the Government are proving that we need it.

Several aspects of the proposal are seriously and fundamentally wrong. First, it treats people who happen to be foreign differently from those who happen not to be foreign. That goes against the first principle of English law; and it goes back, as my hon. and learned Friend the Member for Harborough (Mr. Garnier) said, not to some enlightened judge of the 20th century, or even an enlightened judge of the 19th century, but to some pretty unenlightened judges of the 18th century, who made it clear that it was in the nature of British law not to treat people under its jurisdiction differently because they happened not to have been born here or not to have British citizenship. This measure represents a serious departure from what has been a very important example to other people.

Secondly, it sets up a system in which, to all intents and purposes, there is no proper appeal to a court. I accept the points that have been made about speed and support the amendments tabled by Conservative Members, but remind the Minister that there is a great deal of difference between speed and making bad law. In doing something more quickly, one must not deny people their fundamental rights.

Thirdly, it sets a bad example. The hon. Member for Walsall, North suggested that if the Conservatives were presenting this case and the Government were in opposition, they would be fighting it tooth and nail. I just wonder what we would think if one of the friendly nations across the channel introduced this change in the law. We would say, "Gosh, that just shows how good British law is: we would never do something like that." If it took place in some African state, we would say, in rather superior mode, "I wish they'd follow the British system." We would be unable to justify it happening anywhere else, yet in a few moments the Minister will get up to justify it here in Britain—the nation that has always stood for fair do's for people even when it is inconvenient.

I am worried that the Minister has, yet again, made me vote on the left on a legal matter. That embarrasses not only me, but my constituents, who cannot understand why every time there is a change to the legal system—whether it is the Criminal Justice Act 2003 or the Nationality, Immigration and Asylum Act 2002—they find their Conservative Member of Parliament having to vote on the left of the Government.

Dominic Grieve (Conservative, Beaconsfield)

My right hon. Friend should not be worried: he is not voting on the left. The point has been well made that many Members on both sides of the House can unite around this issue and express their anxiety. I suggest that the anxiety felt by my right hon. Friend, which he shares with me, fits fundamentally with Conservative ethics—it is a concern about the rule of law. That is a very traditional approach. He should reassure his constituents that he wants to stand up for the rule of law, as a good Conservative should.

John Gummer (Conservative, Suffolk Coastal)

I am perfectly prepared to say that—indeed, I have been doing so—but it does not get around my problem. The only people who would stand up in this House to support the Minister are those on the far right, none of whom should be elected to it. They are people like the man who, only a short time ago, stood as the British National party candidate in my constituency, so disgracing the electorate. I feel very strongly about this because I dislike and despise that party's policies, some of which are based on the idea that foreign people do not have the same rights as our own citizens and that a distinction should be drawn between our citizens and other people because they do not count as much. The Minister will have to do a lot of talking to prove to this House that his proposal does not mean that, although I believe that to be beyond even his style of oratory.

Fourthly, I am a believer in infallibility, but only that of the Pope: I do not believe in the infallibility of tribunals, bureaucrats or much of the asylum and immigration service. It is manifestly unacceptable to install in our law a system that depends for its acceptability on the infallibility of people who have shown themselves to be utterly fallible throughout last year, the year before and every year that I can remember.

Fifthly, there is the issue of delays, which has been discussed by several of my hon. Friends and other Members. The constituency of Suffolk, Coastal is not subject to the degree of pressure from asylum seekers that is experienced in the constituencies of many Members who have spoken. However, I have been involved in quite a few cases in my surgery, and in not a single one could I suggest that the Home Office has acted with dispatch. In all my many years as a Member of Parliament, I cannot remember the Home Office, under any Government, being described as speedy. Spot the deliberate mistake: "I am so pleased", says a constituent, "to have had a rapid answer from the Home Office." Who has ever heard anyone say that? How many Members of Parliament could say that they have never been involved in cases where the speed has been so lacking that the constituent's documents have been lost? How many could say that they have not had a case where the constituent's documents have been lost twice? I was involved in one where the documents were lost three times—no more than that, as yet, but perhaps if I stay in this House for another 20 years it will happen. The truth of the matter is that the Home Office has an appalling reputation in terms of the speed with which it deals with cases and its ability to lose the relevant documents.

I therefore agree, unusually, with a Labour Member who said that it would have been sensible for the Government to present a package of measures to show that they would tidy matters up, put their house in order and make the Home Office so fast in its dealings that it would be reasonable for it to request rapidity from others.

My last point is perhaps the most important. People who are in a privileged position should be especially careful about those who are not. Every hon. Member is in a privileged position because we know that the law will treat us fairly. Everybody who is born British should remember that it remains a considerable privilege because we live in a nation where we do not go about in fear, and when something goes wrong, we have a right and an opportunity to rectify matters. In that, we are not in the majority in the world. People like us, with privileges, should be especially careful about taking away those of the unprivileged.

At the beginning of fair trade fortnight, many of us are concerned that rich countries take from, rather than give to, the poor. Many of us believe that huge changes should be made to the way in which the world works. We are especially worried that the poorest countries are providing capital to the rich rather than the other way around. We may take time to do something about that, but to take today the step of removing from people the few rights that they have and the small access to freedom that we give them is deeply offensive.

I hope that all hon. Members who are in this country because, in the recent past, this country welcomed them or their ancestors, will think carefully before they vote for such a fundamental change. The privileged should certainly remember their position; those whose privilege depends on some past generous decision should be even more worried about the measure.

It is unacceptable that the House of Commons should rely on the House of Lords to put right something that should never have been introduced. We are the elected House; we should stand up for the freedom of individuals. We should be ashamed that such a provision was brought before us and ensure that it is thrown out.

The Under-Secretary should ask himself how he can come to the House to defend such a measure. Why is it him? Where is the Home Secretary when we are making a fundamental change to the law as it has existed in England for hundreds of years? He leaves a poor junior Minister to defend an impossible case, which would not have been presented were not the Home Secretary the man he is. Such a provision would not have been introduced without his personal decision. Yet whom does he leave here? A Parliamentary Under-Secretary. He is not willing to come to the House to explain why 300 years of law should be overturned. It is a disgrace and I hope that the House of Commons throws out what should never have been presented to it.

Jeremy Corbyn (Labour, Islington North)

It is a pleasure to follow the right hon. Member for Suffolk, Coastal (Mr. Gummer) because he is correct that we are privileged and enjoy rights, and that that does not give us the right to take them away from anybody else. If we pass clause 11, we will remove the right of appeal from some of the most vulnerable people in the world. Some of them have arrived in this country believing that they were coming to a place of safety. As my hon. and learned Friend the Member for Medway (Mr. Marshall-Andrews) said earlier, if we remove those rights from non-British nationals because that is easy, it is not difficult to extend the principle.

Last week, we passed the anti-terrorist measure that allows the Home Secretary to detain foreign nationals indefinitely because they are foreign nationals and he believes them to have some terrorist connection. I believe that everyone, irrespective of nationality, has exactly the same right to access to justice. We should stand up for that important principle. If we vote for clause 11 tonight, we shall allow a parallel system of justice to be established and remove a right of appeal, and it will be a very bad day. I hope that the House of Lords will reverse such a decision, but it is sad that we have to rely on an unelected Chamber to overturn a decision that we should not accept.

David Winnick (Labour, Walsall North)

My hon. Friend knows that I largely agree with him but I want to put the matter in perspective and I do not apologise for speaking about the Conservative party's position. Is it not a fact that the Conservative scheme would not allow asylum seekers into the country, but put them on an island, from where they would have no right of appeal?

Jeremy Corbyn (Labour, Islington North)

I support people's rights to seek asylum according to the terms of the 1951 Geneva convention. The basic right that it sets out for people to seek asylum because they are in fear of persecution for religious, social or political reasons should not be tampered with. It is important to stick exactly to that principle.

Dominic Grieve (Conservative, Beaconsfield)

Whatever the merits or demerits of the proposal to process asylum seekers offshore, I simply point out that, in such processing, all the protections of the law, including existing powers of appeal, would be there for those seeking asylum.

Jeremy Corbyn (Labour, Islington North)

If I may, I should like to revert to clause 11, which we are debating.

All those who seek asylum have a right to have their case properly considered and tackled, and a right of appeal against any decision. Those rights include that to proper representation, and that is why I intervened on my hon. Friend the Member for Walsall, North (David Winnick). As a Member of Parliament who represents an inner-urban constituency, where many people seek asylum, have sought it and will doubtless seek it in future, from all sorts of tyrannical regimes all around the world, I find it desperately sad that they are so badly advised and represented at the beginning of the process that the case is almost lost before it has begun. It is the Home Office's responsibility to ensure the availability of adequate legal advice and good quality representation. However, legal aid companies that have done good work on representation are closing by the day; good quality lawyers are giving up on asylum work because they can no longer afford to do it, and some of the most desperate and vulnerable people are left unrepresented.

Diane Abbott (Labour, Hackney North and Stoke Newington)

My hon. Friend referred to our unfortunate reliance on the House of Lords to throw out the clause. Is not one of the most unfortunate aspects that, if the House of Lords were reformed so that it was wholly appointed, it would be even less likely that the second Chamber would make good such provisions?

Jeremy Corbyn (Labour, Islington North)

As a democrat, I favour neither a hereditary nor an appointed but an elected Chamber. All Chambers should be elected and thus mandated. However, unfortunately, I shall not make the final decision.

Let us revert to clause 11. In a couple of weeks, the United Nations Commission on Human Rights will start its annual session, which will run for four or five weeks, in Geneva. Doubtless, it will rightly pass many condemnatory motions about human rights abuses throughout the world. How embarrassing it would be if the commission passed a motion that condemned Britain for its failure to provide a proper appeals system for asylum seekers and for its deporting them to places of danger. We should consider that.

Many hon. Members will have received an excellent document from Amnesty International that outlines the way in which Home Office decision making fails refugees. It tackles the concept of safe countries and the strange advice on which the Home Office appears to rely when deciding what is safe and what is not.

Three weeks ago, I was invited to chair a meeting in the House of Commons of the Congolese community in this country to discuss the situation facing their country, their safety and their concerns. Some 3 million people have died in the current war in that country—a death rate of first world war standards recorded in the 21st century. Fundamentally, it is a war about resources, with lots and lots of complications around it. I asked those at that meeting, which was sober and well informed—some of the people who attended had lived in this country for a long time and had sought asylum 20 or 30 years ago, and some were more recent arrivals—what message they would like me to convey to the Government. Their message was that they wanted peace in their country, and a Government in their country who were representative, accountable and democratic, but above all, they did not want any of their compatriots who had sought asylum in this country to be deported back to the Congo, to a place of a danger.

The Home Office decides the suitability or otherwise of various countries to receive failed asylum applicants on the basis of a sort of tick box process, saying, "Does it have an independent Government? Does it have an independent judiciary?" In many cases, the answer is yes, yes, yes, so it is safe to deport people. Every Member of the House who has dealt with deported asylum seekers who have been returned to various countries in west Africa and other places will know perfectly well that they are not safe when they return—that they can be pursued, arrested, tortured and beaten, and they can disappear. We have deported asylum seekers to those places of danger, and I have had a considerable number of such cases.

As for some of the letters sent out by the Home Office, or the statements made to appeal committees against an asylum refusal in this country, I will quote one that was reported in the Amnesty International document concerning Colombia. It states:

"The Secretary of State considers that the authorities of Colombia are capable of offering you effective protection. With regard to the offences committed against you, and the failure of the police to capture the perpetrators, the Secretary of State does not consider that the inability of the police to identify and apprehend such people can be construed as complicity in, or support for, such behaviour."

I was in Colombia two weeks ago, and I met trade unionists who had seen fellow trade unionists murdered—the largest number in any country in the world in the past year—lawlessness and the ineffectiveness of the civil authorities when dealing with those cases. We have to be serious about this matter. In denying people the right to appeal, we are ipso facto sending those people back to grave danger and in some cases possible death.

Louise Ellman (Labour/Co-operative, Liverpool, Riverside)

Is my hon. Friend concerned that the issue that we are now debating is fuelled by a hardening of public attitudes towards people whom they see as strangers? Is he concerned that in pursuing that course the interests of justice might well be lost?

Jeremy Corbyn (Labour, Islington North)

My hon. Friend makes a fair point. It seems to me that much of the policy surrounding asylum seekers is fuelled by the headlines in the Daily Mail and the Daily Express, and the comments of some Members of the House at various times. It is the duty of Members of Parliament to stand up for rights, justice and vulnerable minorities. If we must pay a political price for it, so be it, but we must stand up to maintain those principles and that strength.

In conclusion, the appeals system, far from being abused, is difficult to activate at present. One must get leave to appeal. According to the Home Office figures for last year, 4 per cent. of such appeals were successful. If this measure is passed, those appeals would be denied, which means that 2,900 people would be deported from this country who might have won an appeal. In the previous year, a much larger number won those appeals. It is up to the Government to explain exactly what they mean by this measure.

We passed the Human Rights Act 1998. We have signed up to all the UN conventions, and we signed up to the 1951 convention. We pride ourselves on being a place of safety and liberty, and yet we deny it to people. Daily, I meet asylum seekers living on nothing, scrounging to try to survive in our society, wanting to work, wanting to contribute, but who are in danger of being deported back to the horror from which they thought that they had escaped by coming to this country as a place of safety. They are an easy target for the racists, the British National party and the tabloid press. We should be able to do and say something better in the House to protect that right of appeal and that fundamental right of asylum. Surely, as elected representatives, we should carry out that duty tonight.

Alan Beith (Liberal Democrat, Berwick-upon-Tweed)

The amendments under discussion bear on issues that were raised by the Constitutional Affairs Committee in our report published last week. We began studying the immigration and asylum appeals process last year—proposals that had not yet come into effect from the Nationality, Immigration and Asylum Act 2002. We rushed to produce further reports on the Government's restrictions on legal aid in asylum and immigration matters, and we rushed the report out to make sure that the House had the opportunity of seeing our recommendations on this Bill, to which a number of hon. Members have referred. That Act, which was the Government's declared means of speeding up the process of appeals, has had no time to be assessed. If a process is introduced with that as the avowed purpose, at least we should allow more than a few months to establish whether it achieves that purpose. It is impossible to assess within a few months whether it has done so. The Government have simply not taken the opportunity to evaluate their chosen method of speeding up the process.

In the course of that, we discovered that the initial decision-making process is so often faulty that to remove part of the appeals process, and certainly to remove the jurisdiction of higher courts, will be doubly dangerous, because there are obviously so many failings in the initial decision-making process. We went to India and Istanbul to look at the problems confronted there, we looked at many aspects in this country, and we received a wide range of evidence from both sides of the table—from Government, applicants and those who represent them, and from the judiciary, which was a source of real concern. One of the points that the Committee would want me to emphasise is that the measures under discussion tonight are not just about asylum but about immigration applicants of all kinds, including people seeking family reunions and people seeking family visits for weddings and funerals. Members will know of the extent to which they have had to become involved in trying to get people's cases dealt with in time for them to attend a funeral or wedding.

Richard Bacon (Conservative, South Norfolk)

The right hon. Gentleman said that it was not just about asylum but about visits and so on. Does he agree that it is not just about asylum, immigration or visits, but to quote the Matrix chambers brief, about whether there should be

"a precedent for exempting the executive and administrative tribunals from seeking to understand, apply or be governed by the law"?

That could apply to any tribunal.

Alan Beith (Liberal Democrat, Berwick-upon-Tweed)

That is true, and it is a point that has been well made in all parts of the House. I must emphasise, however, the range of categories of people who are outside this country but who are subject to the same process because they are seeking admission to this country to visit members of their family, or to join members of their family, in a process of inward immigration, which must be regulated but in which they are entitled to a fair hearing and a proper appeal system.

Then we encountered the wide range of Home Office delays in processing appeals. It struck us that it should not be the Home Office that processes the appeal. It should not be the Home Office that receives the appeal and effectively decides when the tribunal can deal with it by sitting on those papers for quite some time. In any other judicial process, it is surely not one of the parties to the argument that effectively makes the decision about when the tribunal can begin to consider the hearing of the matter. Appeals should go to the immigration appeal authority in the first instance and not to the Home Office.

Then we were concerned about the non-appearance of presenting officers. It seemed to us extraordinary that in so many cases—30 or 40 per cent.—the Home Office should not be there to present the reasons why it objects to the appeal being granted. That places an unreasonable burden on the adjudicating body and underlines again the need to be able to refer the matter to a higher level, if that has happened. Indeed, it led us to ask the Government to consider whether the judicial person in that situation should do something that was not normal in English law—to adopt a more inquisitorial approach simply to ensure that all the facts are brought out, which cannot be the case when the adversarial system is not operating because one side is not present.

Then we had doubts and anxieties about the fairness of out-of-country appeals—non-suspensive appeals—and about the disparity between the success rate in paper appeals and in appeals taken orally, in which either the applicant or the family of the applicant were represented.

There is a clear disparity. It suggests that if people do not know that it is possible to undertake an oral appeal, or if there is no one who can attend an appeal on their behalf, they will benefit from a less good decision. That is another reason to allow the matter to go further.

When we asked the Minister in the Constitutional Affairs Committee about the ousting of the jurisdiction of the House of Lords, even in cases in which the tribunal president might want the Lords to consider a wider legal matter, he said that the Government were minded to allow the Lords at least a limited ability to define matters of law in an area in which their role had been so important in the past. So far, however, no amendment has been tabled to allow that.

Let me select the two general conclusions made in the Committee which I consider most relevant to our discussion. In paragraph 70, we say:

"An ouster clause as extensive as the one suggested in the Bill is without precedent. As a matter of constitutional principle some form of higher judicial oversight of lower Tribunals and executive decisions should be retained. This is particularly true when life and liberty may be at stake."

In paragraph 71, we say that the system of statutory review established by the 2002 Act, which was invented to shorten the previous system of review, had not had long enough in which to operate, and that no change should be made

"until there has been more experience of its impact."

Yet here we are, in the closing stages of consideration of the Bill, seeing the jurisdiction of the superior court ousted without any of the points I have mentioned being satisfactorily addressed. That certainly convinces me that I should vote for amendments that either remove clause 11 or substantially alter its impact.

Vera Baird (Labour, Redcar)

The House is full of grandiloquence tonight, but I have only five minutes; and although the issues are large, it seems to be that the changes required are relatively small. What is required is an independent appeals system. That would restore the constitutional propriety; it would restore the rule of law; it would give coherence to the proposal, and make it compatible with the convention. At present there is no independent appeals process, and that is the trouble.

There is nothing magical about judicial review. My hon. and learned Friend the Member for Medway (Mr. Marshall-Andrews) spoke of 260 decisions that had been judicially reviewed as if they had been successful appeals. What happens is that a decision is examined, and found to have been made in a reasonable or unlawful way. The case is then sent back to the adjudicator, who may make the same decision or may make a different one; but he will have to do it correctly the second time. I make no comment on how many of the 260 were true appeals and how many were not, and I entirely agree that one person wrongly sent back to torture because of the lack of a proper appeal is too many; but I think that that makes the clear point that judicial review is not necessarily the appeal process of choice for decisions that need to be not only right and accurate, but speedy.

Judicial review is not such a marvel. It was ousted by an Act of Parliament very recently, and replaced by a statutory review, or independent appeals system—perfectly unexceptionably, it seems. Moreover, although many speakers have decried the ousting of judicial review in criminal cases, there has been no entitlement to it—except in relation to very peripheral matters—since the century before last. It is not a key part of our constitution.

It is imperative, however, that the clause refer to an independent appellate process. I said the same on Second Reading, and my right hon. Friend the Minister for Citizenship and Immigration said that the Government felt that the clause did refer to such a process. That is a review, on paper, by a colleague of the adjudicator, of the same seniority, who has been to the same classes and read the same books, and been taught by the same lecturers. The appeal principle is that there should be a proper review by a senior judge, better qualified and more experienced, who can truly review.

As the clause stands, we are talking about passing the appeal to the chap on the next desk—a member of the same team. That is a curious notion of independence. What is required is the input of some senior judges. My suggestion is a small one: scrap peer review as a means of appeal, and bring into the single-tier new court a separate level of appellate judges, not at adjudicator level—which is district judge level, and quite low—but at the very least from the circuit bench, and probably from the High Court. They will be separately appointed, and they will not overlap. That is completely consistent with the usual manner of appeal in most courts in the land. In the unified criminal court that has just come into play, appeal is made from the magistrates court to the Crown court. They are quite separate, and the second is more senior than the first. From the county courts appeal is made to the Court of Appeal, and the second is senior to and independent of the first.

I thought that I heard the Minister talking on the radio this morning about the possibility of some such change. It is imperative, and it will be hugely difficult for me to support the clause if it is not made. The Government are not just ousting judicial review; they are ousting all appeals and all application of the rule of law. I also think that that appeal level should be able to deal with oral hearings if it wishes. That too would be only a minor change, but it would mean no more delay in any applications; it would involve no more people—just different people. Indeed, it would involve no difficulty at all, yet it would rectify all that is currently wrong.

I echo what was said by my hon. Friend the Member for Cannock Chase (Tony Wright). If these changes, or something like them, are to be introduced elsewhere, please let us not be driven through the Whips system to erode constitutional principles that we all hold dear when the Government intend to reverse them later.

I want to add a footnote, but an important one. I feel that in the interests of consistency and the continuing development of this branch of the law, what is currently a right for the tribunal president to refer a case to the Court of Appeal ought to become a right of appeal as well. In Committee, the Minister said that the president would almost certainly regard himself as bound by what the Court of Appeal came back to say. There is nothing now to stop the parties from writing to him and asking him to refer it to the Court of Appeal. We are only a small step away from allowing the parties to make a application for leave to appeal, with the president as the filter. After that, preferably, there should be a back-up procedure, with the Court of Appeal being allowed to second-guess him on a reviewed application.

As I said, there has been much grandiloquence. It suggests that the distance between clause 11 and the sound constitutional principles of which we are all fond is desert-wide and chasm-deep. In fact, only a short step is needed to upgrade the review judges to a better calibre, and to firm up into a proper structure the current ghost of an appeal to the Court of Appeal.

Annabelle Ewing (Scottish National Party, Perth)

I shall speak briefly, as I know that the hon. Member for Walthamstow (Mr. Gerrard) is anxious to speak, and he was an active member of the Standing Committee.

I add my voice to the condemnation of clause 11 that we have heard from every speaker. I shall not go through all my reasons, but the key reason is of course the fact that the clause will oust the jurisdiction of the courts. It is not acceptable to remove a whole swathe of administrative decisions from legal scrutiny. That would confer virtual legal immunity on those charged with the operation of our asylum and immigration system.

The proposal is therefore unconstitutional, sets a dangerous precedent and, as hon. Members have pointed out tonight, effectively creates a second-class citizen in the UK. That is wholly unacceptable and is not the tradition of legal principles in my country of Scotland. It was patently clear in Committee that the Government are adopting such a draconian position simply for administrative convenience. However, administrative convenience cannot cure the fundamental defects of the Government's approach.

The Under-Secretary has heard every speech tonight, and every speech has been critical. I hope that he has been listening; he has said nothing yet. I look forward to hearing what he has to say, but he must accept that when every hon. Member makes such negative comments in a debate about his clause, surely the Government must think again.

Neil Gerrard (Labour, Walthamstow)

I shall be brief, as we need to give the Under-Secretary time to reply. It has been mentioned several times already that no one has spoken in support of clause 11, so let me reassure the Under-Secretary from the outset that that is not going to change. I am sure that he would not have expected me to say anything different.

This is the most serious issue in the Bill by far because this part of the Bill will have the greatest impact on the greatest number of people. It is unprecedented for judicial oversight to be removed completely from any tribunal. No other tribunal in the whole of our legal system is not subject to judicial oversight.

My hon. and learned Friend the Member for Medway (Mr. Marshall-Andrews) mentioned earlier in a brief and powerful speech that we could expect this to happen only to people who were not British. In fact, it will happen to relatives of people who are British. As hon. Members have pointed out, the provisions will apply not just to asylum claims, but to immigration cases. Our constituents will tell us about their relatives, who will be affected by the clause.

The Government's arguments have been twofold: delays and numbers. I have yet to hear on Second Reading, in Committee or now on Report any argument of principle from the Government. The delay argument does not stand up, as has been pointed out many times in this evening's debate; nor do the numbers. The Government have not really played a numbers game—my hon. and learned Friend the Member for Medway was not quite right on that—as much as a percentage game. They have said that only 3, 4 or 5 per cent. of appeals end up being won at the end of the process. However, if that small percentage is turned into real numbers, it is clear that we are dealing with 2,000 to 2,500 people every year, and the decisions taken could well affect their very existence. I do not believe that we should be taking any chances whatever in respect of getting it right on that sort of issue. A clear issue of principle is at stake here—ensuring that justice is done and taking cognisance of the consequences of a wrong decision.

Finally, I shall say a few words about Government amendments Nos. 79 and 80. In some cases, a right of appeal to a tribunal would not exist in any case, but the amendments will take away judicial oversight from people who might be removed from the country and unable to challenge the decision. There could be grounds for a challenge—that the wrong person is being removed, for example, or that someone is being removed to the wrong place. We all know of examples where that has happened.

It is a thoroughly bad clause. I would have liked to press my amendment No. 32, but in the absence of that, I shall certainly vote in favour of amendment No. 30.

David Lammy (Labour, Tottenham)

What the Government propose has to be fair, principled and effective. Those have to be the watchwords of the Government's reforms, and clause 11 is central to our objective of delivering a streamlined appeals system. Appellants can be sure of independent and high-quality decision making and the system will deliver justice—but also finality.

We have heard the concerns of hon. Members on both sides of the House, which have been expressed on Second Reading, in Committee, in the Constitutional Affairs Committee and again on Report tonight. We have listened to them, and the Government amendments, to which I shall return in due course, are directly intended to deal with them.

In responding to amendments Nos. 30 to 32, it is also appropriate to cover amendments Nos. 92 to 96. Those amendments would effectively prevent the introduction of the single appeal tier, so I am afraid that I cannot accept them. They would allow the continuation of a multiple-tier appeals system and would retain existing routes to the higher courts or would introduce variations of the new review and appeal arrangements. In a sense, that is exactly what we are trying to avoid. It is vital to have early finality.

Diane Abbott (Labour, Hackney North and Stoke Newington)

My hon. Friend said that he had listened to the objections to clause 11. In that case, he will know that one principled objection is to the removal of a whole tier of appeal rights. Apart from administrative convenience, does he have any other reason for removing that whole tier?

David Lammy (Labour, Tottenham)

May I tell my hon. Friend—she is my hon. Friend—that I am coming to that? It is not about taking away an additional tier, because we want to be satisfied that there is quality in the single tier. In fact, we meet and go beyond our human rights obligations under article 13.

As I was saying, it is vital to have early finality, which will benefit—this is an important point—the genuine applicant, who will receive a prompt decision on the application and will be able to start life in the UK. At the same time, it will also deter those applicants who hope to play the system to their advantage to frustrate removal. There must be a fair balance, and it is right to secure that for members of the public.

Dominic Grieve (Conservative, Beaconsfield)

Does not the Minister agree that the tight wording of amendment No. 93 would, in fact, provide a streamlined system while still preserving independent judicial supervision of it? If the Minister goes down the road that he proposes, far from delivering finality, there will be endless arguments in the courts—the Minister's drafting will not be able to prevent it—in which one challenge after another will be mounted to the entire legislation. How will that help good government?

David Lammy (Labour, Tottenham)

I have to tell the hon. Gentleman that he is wrong about that amendment. It would mean having multiple layers of appeal and remittals back down to the single tier. That would bring about a long and protracted process, which is exactly what we are trying to reform.

Humfrey Malins (Conservative, Woking)

If the Minister is against having a long protracted process, will he accept our new clause 8, which introduces an element of speed into the process, particularly in the early stages? If he will not, why not?

David Lammy (Labour, Tottenham)

I shall come on to new clause 8, which is designed to specify a period of six weeks directly in the Bill. That would be unhelpful.

Let us examine what a person challenging an immigration decision can reasonably expect in this country. A person clearly has a right to expect an appeal to be heard fairly in a court, where the facts of the case can be put forward. If the case has merit, and the people do not have sufficient funds to meet the cost themselves, they can expect to be legally represented. Under our system, they will be able to do so.

They can expect the decision to be taken by a member of the judiciary who is completely independent of the original decision maker, and who is an expert in immigration law.

That is what appellants will be able to do under our system. Our measures fully deliver all that a person challenging an immigration decision could reasonably expect. We have designed a new system to ensure that there is improved quality, end to end, which builds on existing best practice and expertise in the current system.

Dominic Grieve (Conservative, Beaconsfield)

Will the Minister at least acknowledge that the system that he is putting in place is entirely different from that which a person would reasonably expect if they were going through a court procedure? If a market trader is denied his market stall, he can go to the magistrates court. If he does not like the decision of the magistrates court, he can go to the Crown court, and then have his case judicially reviewed. However, the Minister is proposing an entirely different system, which will deny all access to the higher courts. How can he say that that is compatible with our legal system?

David Lammy (Labour, Tottenham)

The hon. Gentleman has referred to principles, so let us return to fundamental principles, and look at the European convention on human rights. I have that document here. Article 13 of the ECHR says that the applicant should be able, in seeking an effective remedy, to have independent scrutiny of the original decision. What in the system that we propose will not give the applicant independent scrutiny? In fact, our system contains not only the single tier of appeal but the review tier, so we meet and go beyond our obligations, and the applicant will have the fair hearing that the hon. Gentleman wants him to have.

Dominic Grieve (Conservative, Beaconsfield)

I have always understood that the Human Rights Act 1998 lays down certain minimum standards. There are countries within the scope of adherence to the ECHR about whose human rights record there are grave doubts. Why should we in this country abandon a superior system and reduce ourselves to the level of the lowest common denominator? Is not that one of the mischiefs that the 1998 Act has brought in, because the Government use it frequently and consistently to diminish rights?

David Lammy (Labour, Tottenham)

We are not only meeting the obligations of the ECHR but going beyond them. The hon. Gentleman asks why we are introducing this system, and I shall tell him. This is what I tell my constituents and what I believe all hon. Members should be saying to theirs. It is because between October 2002 and September 2003, the adjudicator appeal stage received 70,198 appeals, of which just under 59,000 were dismissed. It is because the Immigration Appeal Tribunal received just over 33,000 appeals, of which just under 2,000 were allowed. It is because of that—because people are playing the system—that the Government must act to deal with what is in effect an abuse of process in a system that does not give people finality. We must have finality, which will benefit the genuine asylum seeker. It will also benefit social cohesion up and down the country and meet our obligation to ensure that we have a fair system for asylum seekers and for taxpayers.

However, an appellant cannot and should not expect there to be an appeal process with multiple stages, through which they can avoid removal. Those who have no legitimate right to remain in the country simply cannot go on responding to every negative decision by mounting a further challenge. We cannot have an endless process of challenge after challenge.

John Gummer (Conservative, Suffolk Coastal)

Can the Minister explain to me why a market trader who happens to be British can make a proper appeal, whereas someone who is fighting for his life and who happens to be foreign is going to have less chance of a proper appeal? Is that not to have two categories of law? Why is the Minister daring to introduce that into this country?

David Lammy (Labour, Tottenham)

I am doing that because—I shall put it very simply to the right hon. Gentleman—the market trader has no incentive to delay the system. In every other field of law, the applicant or claimant wants speed. He wants the judgment quickly. In this field there are in practice—I have given the statistics—far too many applicants, sometimes, as my hon. Friend the Member for Islington, North (Jeremy Corbyn) suggested, aided by unscrupulous solicitors who seek to exploit the system. We have to deal with that. In a sense, it is not justice. It is certainly not justice for the British taxpayer who has to foot the Bill.

Jeremy Corbyn (Labour, Islington North)

The Minister may have misunderstood my point. My concern is the very poor quality of representation that many applicants have because of the inefficiencies of the legal aid system. They thus lose their right to the limited justice that they get under the present system, never mind under a future one.

David Lammy (Labour, Tottenham)

I totally agree with my hon. Friend. That is why we have introduced the Office of the Immigration Services Commissioner, and taken all the action that we have on accreditation, to ensure that not only solicitors, but advisers, are up to speed and doing their best by those who would claim asylum.

Vera Baird (Labour, Redcar)

Can the Minister tell me of any other area of our justice system in which a person is allowed only one judicial hearing, and no appeal? If he is going to permit, in excess of what is required of him, a review of that single decision, why not make that an independent one, and satisfy everyone?

David Lammy (Labour, Tottenham)

My hon. and learned Friend will know that judges in our system are not just independent of the Executive; they are independent of themselves, that is, they are independent of each other. Under this provision, the applicant, legally aided, who challenges the decision of the state and the IND—the immigration and nationality directorate—has an appeal to the new asylum and immigration tribunal. Then, if a clear error of law means that the decision would be substantially altered, he has a review mechanism. All the judges in the AIT are independent of each other. That is fundamental to our decision, and it is that rule that allowed the House of Lords to review its own decision in the Pinochet case. In a sense, that is what I seek to rely on in this matter. I have no doubt that the majority of the public agree with the balanced approach that we are taking.

It might be helpful if I explain a little more about how the system will work. As in the current system, a person with a statutory right to appeal against an immigration decision will be able to exercise that right of appeal to an independent judicial body. When lodging the appeal, the appellant will be expected to bring forward all the grounds of that appeal and any statement of additional grounds.

Edward Garnier (Conservative, Harborough)

The Minister has mentioned speed and efficiency on a number of occasions. Why, when he brandishes the European convention on human rights in his right hand, does he disapply it with his left hand through the Bill? Will he explain his horror of the Human Rights Act 1998—which his Government introduced—in so far as it reflects on this Bill?

David Lammy (Labour, Tottenham)

This has already been explained to the hon. and learned Gentleman, who has much legal experience. I would have hoped that he would understand it. We have obligations under article 13, and we are meeting them with independent scrutiny. Should an applicant choose to raise human rights points, he will be able to do so on appeal and through the review mechanism.

Diane Abbott (Labour, Hackney North and Stoke Newington)

My hon. Friend said earlier that asylum seekers—and economic migrants generally, I suppose—had a vested interest in delay. On the contrary: to my mind, one of the worst aspects of being an asylum seeker or any type of economic migrant is the administrative limbo in which they can spend years and years. Why will my hon. Friend not listen to colleagues on the Constitutional Affairs Committee and do something about the quality of the decisions at the first tier, before he moves on to this drastic measure of curtailing appeal rights?

David Lammy (Labour, Tottenham)

I know that my hon. Friend cares passionately about these issues and has campaigned on them for many years, but we are doing something about the initial decisions made by the immigration and nationality directorate. We have external scrutiny of those decisions through sampling by Treasury solicitors, and we are seeking to do more with the United Nations High Commissioner for Refugees. Yes, we want to do more in terms of those initial decisions. There are ways in which we can make them better, which is why we set up the country information panels. These are panels of experts who help our caseworkers and senior caseworkers to make their determinations. There has been improvement in the initial decisions over the last three or four years, since hon. Members began to raise these issues.

The majority of appeals will be listed for hearing before a single immigration judge. These judges, although independent and sitting alone, will have access to much better support and guidance than they do now. There will be a new collegiate structure for the judiciary in the tribunal. If a difficult point arises, the immigration judge will have the opportunity to discuss it with his or her experienced judicial colleague.

David Lammy (Labour, Tottenham)

I would just like to make this point. It is important, and several hon. Members have raised it.

I want to assure those hon. Members who have raised this issue that there is absolutely no threat to judicial independence. We value the independence of the judiciary very highly. Adjudicators already work within judicial management structures. I want to reassure the House that I absolutely guarantee that at no time will determinations ever be altered by a more senior judge.

Keith Vaz (Labour, Leicester East)

I do not blame the Minister personally, or his Department, for this mess. I blame the Minister for Citizenship and Immigration and her Department. If the Under-Secretary of State for Constitutional Affairs, my hon. Friend the Member for Tottenham (Mr. Lammy) had come to the Dispatch Box with a package of measures to improve the operation of the Home Office—I know that the Home Secretary also feels that the culture of the Home Office needs to be changed in relation to decision making—we could understand that. He has, however, come to the Dispatch Box after the passage of this Bill through Committee with no new measures to make such improvements. That is the real problem.

David Lammy (Labour, Tottenham)

I sit with the Minister for Citizenship and Immigration on the joint supervisory board for asylum and immigration. The Home Office and the Department for Constitutional Affairs have considered these matters across the board and we are doing a great deal to improve quality at the initial decision stage and at the first tier, to ensure that those who arrive here get a fair hearing.

I would say to my hon. Friend the Member for Hackney, North and Stoke Newington (Ms Abbott) that I did not say that asylum seekers sought to play the system. What I said was that we need to make the system fair for genuine asylum seekers. I believe that a speeded-up process without multiple layers will achieve that. We also need to acknowledge that we cannot sustain a system in which just over 33,000 people sought leave to appeal at the second stage, and in which only 2,000 of those appeals were allowed.

Neil Gerrard (Labour, Walthamstow)

Is not the immigration appellate tribunal already pretty good at filtering out the cases that stand no real chance? Of the cases that are considered, a significant number succeed. The tribunal already filters out those without merit quite efficiently.

David Lammy (Labour, Tottenham)

My hon. Friend must remember that within the single tier we have the mechanism of a review, headed by a High Court judge. The average legal experience of a judge in the tribunal, prior to becoming an old-style adjudicator, is 22 and a half years. The average experience of those who have become adjudicators—we have expanded the number—is just under five years more. We are talking about people making important determinations for asylum seekers in this country who have just shy of 30 years' legal experience. This is not some second-rate, old-style system. It is an important system that will consider important matters.

Richard Bacon (Conservative, South Norfolk)

Will the Under-Secretary give way?

David Lammy (Labour, Tottenham)

I am going to make some progress. I have five minutes remaining and the hon. Member for Somerton and Frome (Mr. Heath) wants to speak as well.

From the outset, some appeals will be listed for hearing before a panel of immigration judges. These will be listed if it is thought that that the appeal may give rise to a complex or novel issue where authoritative case law is required. It may be possible that complexity will emerge during or after a hearing by a single judge; if so, the case will be re-listed to be heard by a panel. The appeal determinations made by the tribunal should be final, and the decisions fully comply with our obligations under article 13. We are not stopping there, which is why we have the review mechanism within the tribunal.

Rob Marris (Labour, Wolverhampton South West)

I have a lot of sympathy with what my hon. Friend is proposing, but the sticking point for me is the removal of the right to judicial review. He will know that in order to go for judicial review, the applicant needs to get leave for judicial review under RSC order 53; therefore, there is a filtering mechanism in the system already. I urge him to retain that filtering mechanism under RSC order 53 and to retain judicial review as a bulwark for the protection of the individual against the state.

David Lammy (Labour, Tottenham)

Under proposed new section 108B, where there is a clear error of law that would substantially alter the original decision, the person will be able to have that review, which will be conducted by a High Court judge. The mechanism exists within the single tier.

I should add that the new appeal structure will preserve a continuing role for the appellate courts. We propose in proposed new section 108B a new referral process to the Court of Appeal or the Court of Session. This enables the tribunal to benefit from the appellate court's expert opinion, but without reintroducing opportunities for deliberate delay.

I wish to refer to Government amendments Nos. 78 to 81 and to amendment No. 97, tabled by the right hon. Member for Haltemprice and Howden (David Davis). The Government amendments respond to concerns raised by the Joint Committee on Human Rights and other hon. Members. I am grateful to the right hon. Gentleman for amendment No. 97 and I hope that he finds that the Government amendments meet his concerns. The Government amendments clarify the scope of the ouster provision in proposed new section 108B. They make clear the Government's intention that legitimate challenges to IND decisions, particularly those decisions on arrest or detention, will not come within the scope of the ouster, which applies only to removal or deportation decisions.

Edward Garnier (Conservative, Harborough)

One of the many points that concern me about the Minister's remarks was his suggestion that judges should have discussions. Will those discussions be in open court? Will they be recorded, so that the applicant or the Home Office can hear the content of them? Will they be secret discussions, unavailable to public scrutiny?

David Lammy (Labour, Tottenham)

The hon. Gentleman makes his point badly.

In conclusion, our proposal is fair and just, it includes a review mechanism and it meets our obligations under European—[Interruption.]

Richard Bacon (Conservative, South Norfolk)

On a point of order, Mr. Deputy Speaker. It is right that the House should know whether the certificate from the Home Secretary that the original Bill is in accordance with the Human Rights Act 1998 stands, as it is not on this Bill—

Michael Lord (Deputy Speaker, Central Suffolk and North Ipswich)

Order. I suspect that the hon. Gentleman's point is one for debate rather than a matter for the Chair.

David Lammy (Labour, Tottenham)

May I confirm that of course the certificate stands? We have that obligation to the House when we introduce a Bill, but not when the Bill is changed; it will be there again when we introduce—

Schedule 4 — Repeals

New Clause 8 — Initial decisions

New Clause 2 — Provision of immigration services

New Clause 3 — Offences: advice of director of public prosecutions

New Clause 4 — Enforcement powers: retention of documents

New Clause 5 — Seamen and aircrews: right of appeal

New Clause 6 — Control of entry

New Clause 7 — Appeal from within United Kingdom

Peter Bottomley (Conservative, Worthing West)

On a point of order, Mr. Speaker. How long do we have for Third Reading of this important and controversial Bill?

Michael Martin (Speaker, Glasgow Springburn)

The hon. Gentleman knows the answer to that as well as I do.

David Blunkett (Labour, Sheffield, Brightside)

I beg to move, That the Bill be now read the Third time.

I thank my ministerial colleagues from the Home Office and the Department for Constitutional Affairs, the Whips, all members of the Standing Committee and all hon. Members who participated today. The Bill has been properly and adequately considered. Once we got over using silly words, such as "despicable", about clause 7, we had a sensible debate.

I am pleased that we have amended the Bill to include trafficking offences to deal with forced labour, and tackled important subjects such as child slavery. I thank my hon. Friend the Member for Walthamstow (Mr. Gerrard), who does not always agree with me, for his work in Committee in drawing attention to that. I am glad that we could make important changes.

Clause 11 has caused controversy and will cause it in another place. It is a classic example, which shows that had people been more modest in their operation of the law and their approach to their job, they would not have cooked the goose that laid the golden egg. I am talking about lawyers who simply abused the judicial review system by dragging out cases for months and, in some instances, years. That is what happens when those who preach liberalism lead us down the wrong path so that those who try to protect human rights and individual interests find that the system has been so abused that we have to remove the golden thread. The legal aid budget has doubled to £174 million. That is public money that has not gone towards asylum seekers or people in the community but into lawyers' pockets. That is a disgrace that is coming to an end.

Humfrey Malins (Conservative, Woking)

The Home Secretary is quick to condemn lawyers, but if he had heard today's debate he would realise that the rule of law is under attack from an illiberal Government. If any of us had been asked to accept that, one day, the Executive—the Government of this country—would be exempt from judicial oversight or scrutiny, we would have been, first, amazed, secondly, angry and thirdly, ashamed.

All the people within this country's jurisdiction should be treated equally under the law. The Government have been universally condemned by their own supporters. Speaker after speaker from the Labour Benches condemned the Government's proposals. Not one hon. Member supported the Government's approach; even the Under-Secretary of State for Constitutional Affairs, the hon. Member for Tottenham (Mr. Lammy) was lame in his support.

On Second Reading, Conservative Members said that we wanted the Bill to be improved in Committee, but it has been improved only a little. The Government have made far too few improvements. Lest it be believed that we debate matters sensibly in the House, I stress that the Government tabled 64 amendments and new clauses today. Many aspects of the Bill have simply not been debated in the House of Commons, either in Committee or the Chamber.

Appeals provisions are vital for the freedom of the individual, whether he or she is of our nationality or from abroad. All deserve equal treatment. The Bill remains seriously flawed and we cannot actively support it. We shall try to amend it as best we can in the House of Lords. We hope that the Government will have the sense to permit some form of judicial oversight of the Executive.

The Bill is not only illiberal but grossly unfair to tens of thousands of people. I hope to goodness that I speak for all Conservative Members and most of the Labour party when I say that the Bill needs to be improved in the House of Lords.

The rest of the debate is in Hansard.