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Lord Falconer of Thoroton: I am not in a position to deal with the two detailed points raised by the noble Lord, Lord Avebury. He asked how many unaccompanied children are involved in appeal procedures and I will write to the noble Lord on that point.

The noble Lord also asked about evidence of age and the assurance given on X-rays. To the extent that appropriate methods of determining age are covered by the rules of procedure, they will be dealt with in the review that I mentioned in my reply to the noble Viscount, Lord Astor. It may be that the rules of procedure are not appropriate to deal with all methods of proof, but they might say what methods would be acceptable. I cannot give any promises about what the review will cover, but it will cover such issues. I cannot say what conclusions it will come to.

Viscount Astor: We are grateful and reassured by what the Minister has said about training. It is important, as I said earlier, that adjudicators make the effort to make hearings more friendly.

I am slightly concerned that the Minister is rather against Amendment No. 107. In paragraph 4, there are seven sub-paragraphs which define rules. Therefore, there is no very good reason why there should not be an eighth sub-paragraph which states,


That merely means that in designing the rules, the Lord Chancellor would have to take that into consideration. I believe that that is a reasonable provision for the face of the Bill. It does not suggest what the rules should be; it does not fetter the Lord Chancellor; and does not prevent him making any rules that he wishes to. But it makes the matter entirely clear. That is important.

I am grateful for the Minister's response. We shall wish to return to this issue at a later stage. I am sure that the Minister will consider carefully what has been said this evening and will consider whether an

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amendment acceptable to the Minister could be included to satisfy the concerns which have been expressed on all sides of the Committee.

Lord Alton of Liverpool: I am grateful to the noble Viscount for giving way. Will he reflect on what the Minister said to us in his earlier remarks about how children are to be treated no differently from any other category within the Bill? There are perhaps good grounds for treating children differently, which is what the noble Viscount's amendment seeks to achieve.

Viscount Astor: The noble Lord is absolutely right. There is no more important category than children. Immigration and asylum is a difficult, demanding and terrifying process for most adults. It is much worse for children and, in particular, unaccompanied children. It is beholden on us in this House to consider that.

As I said earlier, I believe that reference should be made to that in the Lord Chancellor's rules without fettering the discretion of the Lord Chancellor at all. However, he should take account of the matter. As I said, I hope that the Minister will consider that between now and the next stage of the Bill.

Lord Falconer of Thoroton: Before the noble Viscount sits down, perhaps I may correct what the noble Lord, Lord Alton, said. I did not say that children are to be treated the same as everybody else. I said that there are groups of people who require special treatment such as torture victims or children. It does not seem to me that that is the same as saying that they may all be treated the same.

Viscount Astor: I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Schedule 3 agreed to.

Clause 48 agreed to.

Schedule 4 [Appeals]:

Viscount Astor moved Amendment No. 104:


Page 109, line 3, at end insert--
("(3) The power to make regulations is exercisable by statutory instrument.
(4) Any such statutory instrument shall be subject to annulment in pursuance of a resolution of either House of Parliament.").

The noble Viscount said: This amendment concerns Schedule 4 and the power to make rules for practice and procedure to be adopted by adjudicators and the Immigration Appeal Tribunal. That power is conferred upon the Lord Chancellor and is exercisable by statutory instrument and subject to the negative resolution procedure.

Paragraph 7 on page 2 of the report of the Select Committee on Delegated Powers and Deregulation states:


    "We do not suggest that the Immigration Rules should be included on the face of the Bill. But we do consider that the time has come when the House may wish to consider amending the 1971 Act through an amendment to the present Bill to provide that the

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    Immigration Rules, which are of immense importance to asylum seekers, should be made subject to the affirmative resolution procedure".

I hope that in view of that strong endorsement from the Delegated Powers Committee, the noble and learned Lord will be able to look favourably upon the amendment. I beg to move.

Baroness Williams of Crosby: We dealt with an earlier amendment in relation to the affirmative resolution procedure in regard to the immigration rules. The procedures which are the subject of Schedule 4 are extremely important. They determine issues concerning the ways in which appeals are handled, the arguments advanced and the weight of evidence. They concern issues that are of great importance to those affected by the appeal procedures. It seems appropriate that those procedures, in particular those laid down by the Lord Chancellor, should at least be subject to annulment by negative resolution.

It is part of the responsibility of Parliament to oversee procedural matters that affect the liberties of individuals. It is clear that the detail of Schedule 4 covers a great deal of that kind of material. Therefore, we strongly support the amendment--however, with regard to negative rather than affirmative resolution as regards the procedures.

It would be extremely helpful if, before or at the point of Report stage, the rules could be laid in draft. I recognise that that is a substantial demand to make. But because the rules are so much a part of the Bill, and are essential to the operation of the appeals procedure--which is in many ways an acid test of the acceptance of the rule of law for the Bill--if the Minister could see his way at least to considering the possibility of laying the rules in draft, it would provide a first opportunity for this place to consider the rules and make observations on them before they become part of the statutory effect of the legislation.

Lord Falconer of Thoroton: Amendments Nos. 104 and 108 wish to make any statutory instrument passed in relation either to regulations under paragraph 1 of Schedule 4 or paragraph 3 of Schedule 4 subject to annulment in pursuance of a resolution of either House of Parliament. That is the position under the Bill. Under Clause 154(5), all statutory instruments, apart from excepted ones under Clauses 2 and 3, are subject to annulment by a resolution of either House of Parliament. An amendment is unnecessary; the Bill already provides what is wanted.

The noble Baroness asked for the statutory instrument to be laid in draft. We cannot lay the rules in draft; however, we can publish a consultation paper setting them out in detail in advance, if that would be of equal value to the noble Baroness.

Baroness Williams of Crosby: The noble and learned Lord will understand that it would be helpful to all concerned if the House had an opportunity to

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comment on the rules. A consultative document would be welcome, and I am most grateful to him for what he has just said.

Lord Falconer of Thoroton: Perhaps I should say when that will be done. The noble Baroness suggested that it should be done before Report stage. I cannot necessarily agree to that, but it will be done at some stage. Perhaps I may write to the noble Baroness regarding the precise timing.

Viscount Astor: The Minister blinded me with science. I must admit that Clause 154 is not one that I have so far studied with great care. Is he saying that the rules are now subject to the affirmative procedure, in line with the recommendation in paragraph 7 of the committee's report?

Lord Falconer of Thoroton: I do not like to commit myself to the affirmative or negative procedure. The amendment asks us to make the regulations subject to annulment by resolution of either House of Parliament. That is already the position under Clause 154(5). Does the noble Viscount regard that as affirmative or negative? Alternatively, does he wish to put forward another amendment? If he wishes to make it affirmative instead of negative he should put down another amendment.

Viscount Astor: I am grateful to the noble and learned Lord. I think we shall want to make it affirmative and I thought that my amendment went some way towards doing so. However, it may not and, of course, I bow to the Minister's superior knowledge and his expertise in these matters. If the provision is not affirmative we shall certainly come back to the matter at the next stage. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

10.30 p.m.

Baroness Williams of Crosby moved Amendment No. 105:


Page 109, line 20, leave out sub-sub-paragraph (b).

The noble Baroness said: This amendment is about the Lord Chancellor's rules of procedure and, in particular, appeals being determined without a hearing. We are concerned about the matter because the grounds upon which it is possible to dismiss an appeal without a hearing and without considering the merits that might be advanced for it are, first, under Schedule 4, paragraph 4 (1)(b), the possibility that there has been a failure by,


    "one of the parties to comply with a provision of the rules or with a direction given under the rules".

The second ground is that one of the parties has failed to attend a hearing. I fully recognise that the Government may well feel that this is a way to deal with a number of appeals in a process which is crowded at present. Unfortunately, the effect will fall most heavily on precisely those to whom we have referred on a number of occasions who have not been able fully to follow the directions given to them. That is particularly true of the people in the backlog who are not legally represented.

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The wiping out of the possibility of an appeal by deciding that a hearing will not be maintained could affect some of the most vulnerable people--those who are confused about what they are meant to do, who do not have legal representation and who therefore find their appeal, which may involve issues of serious human rights matters, dismissed because they have not been able to satisfy the requirements laid upon them.

There is considerable concern among the bodies involved in advising asylum seekers and refugees on the matter. There is a feeling that in every case there should at least be an opportunity to advance arguments at an appeal, even more so because the number of appeals will be sharply and rightly cut down. Therefore, I ask the Minister to consider whether the draconian effects of Schedule 4 as it stands should be reconsidered in the light of Amendment No. 105.

I also mention Amendment No. 106 to save time. It deals with sub-paragraph (c) which allows an adjudicator to treat an appeal as abandoned in specified circumstances. What kind of circumstances does the Minister have in mind as a basis upon which an adjudicator can treat an appeal as abandoned? I beg to move.


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