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Lord Clinton-Davis: I rise simply to apologise deeply to the Minister whom I continue to hold in high esteem and also to express my support for the amendment just moved by the noble Baroness. It is indeed a most important issue.

Baroness Blatch: I hope that I shall be able to help the noble Baroness. From what she said, it appears that the amendment has been motivated by a desire to protect from prosecution for the new offence proposed in Clause 4 those who enter or remain by deception practised by a third party of which they themselves are ignorant.

Decided cases have established that a person who gains entry on the basis of deception practised by a third party may be removed as an illegal entrant. That will continue to be the case. However, it is not our intention that people who enter in such circumstances should be caught by the offence which would be created by Clause 4. For an offence to have been committed, the person who obtained leave to enter or remain would himself have to have practised deception. To have any effect, the deception would also have to have been material.

It is not the Government's intention to criminalise those who have unwittingly gained entry by deception. As currently drafted, we are satisfied that Clause 4 offers such people protection from prosecution. I hope that that explanation is helpful to the noble Baroness.

Baroness Williams of Crosby: I thank the Minister for that response. However, I feel that I must press the issue one step further. Perhaps the Minister could explain to me why the original use of the word "knowingly" in the 197l Act could not be repeated in the 1996 legislation. I believe that its inclusion would clarify the use of the word "deception" and ensure that we did not have an interpretation so wide that not only might people be caught by it but, also, there could be considerable reasons for opening the door to blackmail directed at immigrants into this country and, indeed, at asylum seekers. I say that because the word "deception" in such terms is so broad and, therefore, one might be able to threaten people with revelations in that respect if we do not have a more precise wording in Clause 4.

Baroness Blatch: Again, I believe that the noble Baroness is introducing the notion of a third party who

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may well have colluded or collaborated in that respect; or, worse, exploited an entrant into the country. I am not able to explain the read-across to the 1971 Act to which the noble Baroness referred. However, I can say that those who unwittingly practise deception--in other words, those whose intention was not to be deceitful--are covered. Moreover, as I said, the third party would not be caught. I repeat, those who obtained leave to enter or remain would have had to practise deception and, for the provision to have any effect, the deception would have to be material. I shall check the point about the read-across to the 1971 Act and come back to the noble Baroness.

Baroness Williams of Crosby: I thank the Minister for that and beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 53 to 55 not moved.]

Clause 4 agreed to.

Clause 5 [Assisting asylum claimants, and persons seeking to obtain leave by deception]:

Lord Clinton-Davis moved Amendment No. 56:


Page 4, line 30, leave out ("or has reasonable cause for believing").

The noble Lord said: This will be the last amendment that we shall move this evening, but it is an important issue. I shall wish to read what the Minister says because the issue gives great concern to the legal profession, as I am sure she is aware. We all agree on the objective that the Government have set: to attack the racketeers. There are too many of them who exploit immigrants and asylum seekers, at great cost to the asylum seekers and great profit to themselves. When I was in another place, a large number of people in inner London exploited such people unmercifully.

However, the problem is that the drafting is so wide that it will also attack lawyers and organisations who seek to give genuine advice to asylum seekers. The solicitors' own professional rules are not as extensive as the clause. The Law Society believes that there is a real risk that the clause as drafted will undermine the solicitors' duty to act in the best interests of their clients. Solicitors are under a professional duty not to act on clients' instructions where they know that deception is involved. The suggested amendment to the clause that we propose will reflect that duty, without undermining the solicitor/client relationship.

It would be extremely difficult for any adviser to disprove that he or she had reasonable cause for believing that an application included deception. The amendment suggests that a more reasonable level of proof is to demonstrate that there was knowledge of deception.

There is another problem in that I do not believe that the provisos contained in Clause 5(2) will necessarily save the lawyer giving bona fide advice in circumstances along the lines I suggested. I hope that the Minister will reflect further on the matter. It is a

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reasonable amendment which in no way attacks the principle of the Bill which she holds so dear. I beg to move.

The Deputy Chairman of Committees (Lord Brougham and Vaux): I have to advise the Committee that if Amendment No. 56 is agreed to, I cannot call Amendment No. 57.

Baroness Blatch: The noble Lord announced that these are the last amendments. I assume that Amendments Nos. 58 and 61, which are directly related to this amendment, are not referred to here and will not be moved tonight.

Lord Clinton-Davis: No, they will not.

Baroness Blatch: This group of amendments seeks to establish a higher standard of proof than that which currently applies for the existing offences of facilitating the entry of an illegal entrant, and then seeks to apply that higher standard of proof to the new offence of facilitating for reward the entry of an asylum claimant and facilitating the acquisition of leave to remain by deception. By removing the words,


    "or has reasonable cause for believing",

completely from the wording of the offences or removing that phrase and instead inserting "believes", the amendments would provide the convenient and ready-made excuse of "I did not know". This would allow racketeers to plead innocence through ignorance and to proceed without prosecution, pocketing their ill-gotten gains on the way.

Raising the standard of proof required to secure a conviction is clearly inappropriate if we are serious about dealing with racketeers. We really must do something. I have not seen or heard anything which suggests that the standard of proof set out in the existing offence is disproportionately low or that it has led to the mounting of inappropriate prosecutions. Consequently I can see no justification for raising the standard of proof from that clearly established in the Immigration Act 1971. We need to be firm about this. The law needs to be robust, and the messages to the racketeers need to be unequivocal.

I am not clear why the Opposition wish to amend the new provisions and, in the amendments which will not be moved tonight, then seek to delete them. When we discuss Amendments Nos. 58 and 61--it will probably be on another day--we shall have the opportunity to consider in full why these new offences are necessary.

The Government have introduced into the Bill two new offences. Let us be clear about what they are: assisting illegal entry into the United Kingdom knowingly; and assisting by deception an illegal entrant to remain in the country. That is the evil trade that is being prosecuted by racketeers. It should not be allowed to flourish. Clause 5(1)(b) and (c), as set out in the Bill, are absolutely necessary. I have no hesitation whatsoever in asking the Committee to reject the amendment.

Earl Russell: Before the noble Lord replies, I wish for one important piece of clarification. If one of us

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should assist a person to come through the port on papers which do not show any intention to claim asylum, and he immediately claims asylum in the country, would we commit an offence in doing so?

Baroness Blatch: If the noble Earl does that for gain, the answer is, yes, he would have committed an offence.

Lord Clinton-Davis: I am disappointed by the Minister's reply, which leaves no room for doubt in her mind. I think that there is a great deal of room for doubt as to its effect on those who genuinely seek to give advice. I believe that the provision will act as a deterrent.

As I said earlier, I am with her about racketeers. I have no time for them. But solicitors are not required, indeed it is contrary to the rules of solicitors, to probe their client's honesty. I have been a solicitor for rather a long time--too long, some may say--but the fact is that there seems to be no reason in principle why an adviser who is misled by an unscrupulous client should have to pay for that client's lack of honesty.

There is a real problem here. The Minister should try to meet it. Will she say that she will reflect further on the representations made by the Law Society? The noble Baroness is under no obligation to say that she will amend the Bill in consequence, but I should like her to say that she will reflect further on those representations. They are made in good faith by a professional organisation which has a clear interest to ensure that no injustice is done to members of the profession: that they are not held at risk of prosecution for a situation in which they would normally be doing that which they are required to do. If they have raised these issues, they should be taken seriously. I invite the Minister to reflect on that point. I shall be interested to hear what she has to say.


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