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Lord Avebury: Can the Minister explain the reason for the distinction between the powers to detain and sell off the assets that we are discussing under Clause 34 and the regulatory powers which we considered when debating Amendment No. 56? Why is it possible to put on the face of the Bill the detail of powers to detain these particular items which are described as "transporters" and to sell them under the specialised circumstances when powers to deal with rail freight wagons are to be put into regulations? It seems illogical to treat rail freight wagons in such a different way from all the other methods of transport covered in Clause 34.

Lord Hylton: These are two important amendments, given what a number of us were saying earlier on the Government's new clause in relation to draconian penalties.

I refer to line 43 of page 24 where a period of 84 days is specified in the Bill. In my commercial experience--now a few years ago--it was not uncommon for government departments in this country to take 90 days and more before paying their bills to commercial organisations. Therefore, 84 days may be a little on the low side.

The part of the Bill to which Amendment No. 65 relates may bear particularly harshly on owner-operators of single vehicles. Perhaps the Government will take that into consideration.

Lord Williams of Mostyn: I understand the anxieties being expressed; but if one looks at the scheme in Clause 34, they are not justified.

The reason we have regulations for rail freight wagons--the point of the noble Lord, Lord Avebury--is that we need to adapt provisions of part of the Bill to the specific circumstances of the rail freight industry. Clause 34 deals with a justifiable regime to allow the immigration service to detain and sell transporters to recover unpaid charges imposed under Clause 32.

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First, therefore, a charge needs to have been imposed "under section 32", as indicated in Clause 34(1) which states:


    "A senior officer may, pending payment of any charge imposed under section 32, detain ... the transporter".

That is the first safeguard. In other words, anyone subject to a charge "under section 32" can pay, in which case Clause 34 does not begin to bite at all.

Secondly, the other safeguard to which I ought to draw the attention of the Committee appears in subsection (3):


    "The court may release the transporter if it considers that--


    (a) satisfactory security has been tendered ... or


    (b) there is a significant doubt as to whether the charge is payable and the applicant has a compelling need to have the transporter released".

If the court then has not ordered the release of the transporter--this is "court" intervention which is available--84 days beginning with the date on which detention began (that is quite a long time) have to pass before the Secretary of State can dispose of the transporter.

The amendments fall into two categories, clearly approaching the matter from two different bases. I understand the point of the first amendment; that is, we have to obtain the best price--I believe that is a fair summary. But that is exactly the duty that is set out on the face of the Bill. At paragraph 3 of Schedule 1 (on page 105) a specific duty is set out as follows:


    "If leave for sale is given, the Secretary of State must secure that the transporter is sold for the best price that can reasonably be obtained".

That is a better safeguard, in some circumstances, than simply saying, "on the open market". As I see it, the Secretary of State has a wider duty there.

In relation to Amendment No. 65, Clause 34(5) makes the detention lawful even if it subsequently transpires that the imposition of the charge was ill founded. But that must be read in conjunction with subsection (6), which states:


    "But subsection (5) does not apply if the Secretary of State was acting unreasonably in imposing the charge".

Therefore, if one takes subsections (5) and (6) together, which one has to, one sees that the detention of a transporter is not lawful unless the Secretary of State was acting reasonably. So all those safeguards are built in.

Turning to the question of the noble Lord, Lord Hylton, a period of 84 days was suggested when this part of the Bill was considered in the Commons. We consulted industry. I am told that it was thought appropriate and therefore an amendment was brought forward in the Commons to deal with this point.

Bearing in mind all these interlinked safeguards, not least the question in Schedule 1, this is not at all unduly draconian. However, I perhaps should say this, because it may be to the advantage of the industry generally and I say it deliberately. The immigration service envisages these powers being used sparingly and only when other attempts to recover accumulated debt have failed. It is important that where the Secretary of State acted reasonably, he and the

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taxpayer should receive some protection. In balancing this against the interests of the carrier, I can assure the Committee that detention will be instigated only after the most full and careful consideration of the circumstances--I should perhaps emphasise the next words--including representations from the carrier. I am happy to give that assurance.

5.15 p.m.

Lord Avebury: Can the Minister confirm that these assurances will extend to rail freight wagons and that the detention of rail freight wagons, under the regulations which have not yet been issued, will at least be expressed in the same terms; that is, that it will be pending the payment of any charge and that the courts may be able to release the rail freight wagons in like circumstances to those of this clause?

Lord Williams of Mostyn: I shall certainly give that point proper consideration. I cannot commit the Government on the hoof, but it is a fair inquiry and I shall give it careful thought.

Lord Dholakia: If it was found that the Secretary of State was acting unreasonably, would it mean that, as a result of that action, he would reimburse the carrier for any expenses incurred as a result of the detention?

Lord Williams of Mostyn: Subsection (5) gives the protection of lawfulness in terms of detention. It does not apply if the Secretary of State acted unreasonably. If one detains another's property and it is not on the basis of law, the owner of the property has the usual remedies from the court which fall to be determined in the usual way on the usual principles.

Lord Cope of Berkeley: In relation to Amendment No. 64, I had not observed that Schedule 1(3) applies in such cases. I entirely agree with the Minister that it is a better formulation and I am content with that.

In relation to Amendment No. 65, the noble Lord made some interesting points, but it may be a matter to which we shall want to return at a later stage. For the moment, I beg leave to withdraw Amendment No. 64.

Amendment, by leave, withdrawn.

[Amendment No. 65 not moved.]

Clause 34 agreed to.

Schedule 1 agreed to.

Clause 35 [Interpretation of Part II]:

Lord Williams of Mostyn moved Amendment No. 66:


Page 26, line 1, at end insert--
(""rail freight wagon" has such meaning as may be prescribed;").

On Question, amendment agreed to.

Clause 35, as amended, agreed to.

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Baroness Williams of Crosby moved Amendment No. 67:


Before Clause 36, insert the following new clause--

BAIL HEARINGS: EXTENSION OF PROVISION OF LEGAL AID

(" . The Lord Chancellor shall, by order, extend the provision of legal aid, to cover bail hearings under the 1971 Act.").

The noble Baroness said: This is an important amendment and deserves the consideration and concentration of the Committee. It deals with the issue of legal aid. Coupled with it is Amendment No. 85, in the name of the noble Lord, Lord Hylton, which deals with a different aspect of legal aid. Amendment No. 67A, in the name of the noble Lord, Lord Cope of Berkeley, and his noble friend, deals with the same issue. All three amendments are closely related.

I begin by thanking the Minister for his work on Amendment No. 80A, to which we shall turn later. I shall not go into it in detail now beyond saying that it deals with the matter of bail with considerable care. The central thrust of my argument is that the provisions on bail, useful and valuable as they are, are in many cases only as good as the legal representation available to those utilising such bail proceedings. We are very much concerned that there should be adequate legal representation for people who are seeking both bail and, at a later stage, other appeals under this legislation.

Perhaps I may say a few words about something which I believe must be obvious to all Members of the Committee. The very nature of the debates we are having shows what an incredibly complex, difficult and complicated Bill we have before us. If noble Lords find it extremely difficult to follow, as I freely admit I do--and it is clear from the answers to many amendments already moved that, in some cases, noble Lords have not fully understood the interpretation or safeguards in the Bill to enable them to withdraw amendments on the evidence provided by the Minister--how much more that will be true of people for whom English is a difficult language to master, who have no knowledge of our legal system, who do not know their rights under the immigration Acts and who are, therefore, virtually unable to put their case or to argue such issues before a court.

Essentially, one might say that provisions for bail are only as good as the legal aid that supports them. Otherwise, it is like a car without petrol or a cart without a horse; in a sense, they are not fully effective. The first part of my argument is that legal aid for those seeking bail is absolutely crucial in order to make the Bill achieve the very purposes that the noble Lord has named for it.

The second crucial argument is that we need to be in full recognition of our international obligations. I should briefly remind Members of the Committee that on many occasions during the recent crisis in Kosovo Her Majesty's Government prayed in aid our commitments under such international conventions as the genocide convention, the crimes against humanity convention, the Geneva Convention, and others, thereby indicating that we believed ourselves to be closely bound by the provisions of that international legislation.

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In this Bill we are concerned that, as a country, we are bound by the European Convention on Human Rights which, in Article 5, specifically says:


    "Everyone has the right to liberty and security of person ... that no one shall be deprived of his liberty, save in the following cases and in accordance with the procedure prescribed by law".

One of those "following cases" deals with the lawful arrest or detention of a person but goes on to say that everyone who is arrested must be informed of the charges made against him, of the reasons for his arrest and,


    "shall be entitled to take proceedings in a court to make out his case".

I turn now to Article 6, with which the European Court has shown itself on many occasions in existing jurisprudence to be particularly concerned and which deals with the issue of due process. Under Article 6 3C, the convention makes it plain that people must have the right to defend themselves in person or through legal assistance of their own choosing, or--and this is the crucial phrase--


    "if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require".

Therefore, both under the European convention and the refugee convention, it is plain that legal aid is very much part of the provision that needs to be made to enable asylum seekers or refugees to receive their full recognition of rights and be able to argue their cases.

I am certain that the Government will, quite rightly, point to Clause 45 under which the Bill says that the Secretary of State "may" make provision for funds to be provided for certain voluntary organisations. We on these Benches very much welcome that provision. But, first, it is cast in a conditional mode; indeed, the word used is "may". Secondly, if the Government have in mind the voluntary organisations long associated with the rights of refugees, then, while we very much welcome the proposal, we are also very conscious that the particular bodies most readily thought of under these provisions--namely, the Refugee Legal Centre and the Immigration Advisory Service--are virtually overwhelmed by the demands made upon them. That is the case even before asylum seekers and refugees are given additional information, as we plead that they should be, about the contacts they may make in order to arrange legal representation for themselves.

In those circumstances, we believe that it is important that legal aid should extend to recognised, regulated advisers. Under Clause 5, the Bill makes full provision for the regulation of such advisers. As the Minister knows, we on these Benches fully agree with that; indeed, we fully accept that what one might describe as "legal cowboys" should not be provided with money from the taxpayer. We shall support such clauses when we reach that stage. But, equally, under the regulated list, where an asylum seeker or refugee already has a legal representative who is familiar with his or her case, it means that legal aid should be extended if only because the person so concerned will be familiar with the case. As the Minister will be well aware, many cases are now of very long standing and, indeed, many months

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of work may already have gone into them. It would, therefore, be both expensive and unnecessary to repeat that work.

There are two groups in that context about which we are particularly concerned. One group contains people with a history of torture; another group involves women with a history of persecution as a result of rape or other violent attacks upon them. It is not always easy in such cases to get the full briefing that the legal representative needs in a very short space of time. The Medical Foundation for the Care of Victims of Torture, which is well know in this Chamber, has repeatedly pointed out that those who suffer from persecution as a result of torture very often take some time to come to terms with their situation and to fully explain their position to a legal representative.

We understand that some consideration has already been given by Her Majesty's Government to this whole area--we are grateful for that--and that proposals are being considered, as a result, I believe, of the work of the Legal Aid Board. This aspect will be pursued by my noble friend Lord Dholakia on Amendment No. 67 in the hope that we can learn something more about such proposals. However, perhaps I may say once again that we believe that Amendment No. 67, which deals with cases under the 197l Act instigated by the detained person; Amendment No. 85, in the name of the noble Lord, Lord Hylton, which concerns issues of routine bail proceedings; or Amendment No. 67A, which covers both aspects, should become an essential part of this Bill if justice is to be done and is seen to be done. Indeed, if, as the Government claim, the plight of asylum seekers and refugees who are genuine is to be fully considered under the provisions of the Bill, we believe that this requires that such people should be properly legally represented.

We strongly support the Government's attempts to speed up the process; we strongly support their view that the number of appeals should be limited. However, that only follows if those appeals are effectively argued and, therefore, are not likely to be raised again under other methods and other channels. We believe that it is in the Government's own interest that the asylum seeker or refugee should be legally represented in such a way that the appeal can look into all aspects of the case and can deal with it satisfactorily from the point of view both of the asylum seeker and of the Government. I beg to move.


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