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Lord Cope of Berkeley: Amendment No. 159, which has been grouped with Amendment No. 158, stands in my name, that of my noble friend and that of the noble Earl, Lord Russell. It seems to me that both of them go together, in the sense that Amendment No. 159 seeks to question subsection (2) of Clause 85, which allows the Government in "prescribed circumstances" to exclude people from this support. If anyone is to be excluded

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under this subsection, subsection (l) has to say "may" rather than "shall"; otherwise, the exclusion would have no effect and there would be an obligation on the Secretary of State to provide the support. Therefore, I do not think that Amendment No. 158 necessarily has the sort of apocalyptic connotations which the noble Lord, Lord Alton, seemed to suggest in part of his remarks.

However, on the other hand, as will be apparent from the fact that I have tabled Amendment No. 159, I have some interest in who will be excluded from this provision. We obtained some guidance on this matter from the Explanatory Notes that were issued with the Bill. We are all grateful for them. Paragraph 241 states:

    "Regulations can be made under subsection (2) to exclude people from entitlement under prescribed circumstances; for example, a person who had previously caused serious damage to property provided under the support arrangements might be excluded".

I understand the wish to penalise someone who has caused serious damage to property, but to exclude him entirely from support in those circumstances may or may not be appropriate to the damage which has been caused. The details of that provision would need to be carefully spelt out.

The paragraph continues:

    "or an asylum seeker who was entitled to benefits".

It seems to me that under the normal rule a person should not receive two lots of support from the state. Therefore, I am not sure how the final provision in that paragraph would apply. If one assumes that there are asylum seekers who are entitled to benefit, I do not think that they should receive support under the arrangements we are discussing on top of that benefit. I tabled Amendment No. 159 to probe who will be excluded from support under the prescriptions which will be laid down.

Earl Russell: In supporting both these amendments, I should like to say a few words in support of Amendment No. 159 to which I have added my name. The amendment seeks to delete the words,

    "In prescribed circumstances, a person who would otherwise fall within subsection (1) is excluded".

This is a Henry VIII clause of a fairly far-reaching kind. It authorises the Secretary of State to remove a right to benefits from such people as he sees fit. I quote only the comments on this clause from the Delegated Powers and Deregulation Committee, which states,

    "We question the need for clause 85(2), which would enable the Secretary of State to remove this lynchpin of support from those who, in the words of clause 85(1) are 'destitute or ... likely to become destitute', and recommend its deletion from the bill, or at the very least that the circumstances under which the power may be exercised are set out on the face of the bill".

I shall not try to say it better.

Lord Hylton: When we covered this ground previously, the relevant legislation was in many ways draconian and it appeared likely that many people--

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many of them with genuine cases--would be left destitute. On that occasion we were rescued by the Court of Appeal which found an earlier statute which could be helpful. There seems to me a strong case for making new legislation certain in the first place. On those grounds, I support Amendment No. 158.

Lord Avebury: How can an asylum seeker who is entitled to benefits be destitute?

Lord Falconer of Thoroton: As regards Amendment No. 158, we have in this Bill a clear commitment to establish a proper scheme for the support of asylum seekers. As the Committee will know from the extensive consultations we have already engaged in, we are well on the way to achieving this. There is a clear policy on how we propose to operate the power set out in Clause 85 which will be fleshed out further in regulations covering the operation of the scheme, drawing on the various regulation-making powers that are contained within this part of the Bill.

Amendments Nos. 158 and 159 are, in effect, two sides of the same coin. They seek to raise the following question; namely, in what circumstances could someone appear to be destitute--because that is the test under the Bill--and yet not receive support under the scheme?

There is plainly merit in keeping the powers in this area fairly open and flexible. Legislation such as this will be on the statute book for a good number of years and may well have to address scenarios that we do not currently envisage. I would remind the Committee that the number of asylum seekers has grown tenfold over the past 10 years. We do not know what we will need to cope with in the future or how. I doubt that future governments would thank us for tying their hands with a specific duty rather than a flexible power.

We are committed to ensuring the proper support for people pending the outcome of their asylum applications. The noble Lords cannot be unaware that we are investing considerable resources in establishing comprehensive new support arrangements to be effective from 1st April 2000. We are committed to making these work.

In relation to the kinds of cases we would wish to take out of support, perhaps I may mention three. First, as the Explanatory Notes indicate, there is a small number of people claiming asylum who may be eligible for social security benefits; for example, those already here on indefinite leave or members of countries that are signatories to the European Social Charter or the European Convention on Medical and Social Assistance. They do not need access to this support. They will be removed from the exclusions from benefit contained in Clause 106 by virtue of regulations under Clause 106(3). The power in Clause 85(2) is complementary to that one.

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Lord Avebury: Such people must be deemed to be destitute because, if they are not deemed to be destitute, they do not come under subsection (1).

Lord Falconer of Thoroton: They would if they appear to the Secretary of State to be destitute. Let us look at the definition of "destitute" in Clause 85(3):

    "For the purposes of this section, a person is destitute if--

    (a) he does not have adequate accommodation or any means of obtaining it ... or ... he has adequate accommodation or the means of obtaining it, but cannot meet his other essential living needs".

On the test, he would appear to be destitute, yet he has the means to get benefit and therefore the asylum support scheme should not apply.

Earl Russell: That is a bigger admission of the inadequacy of benefits than I have heard from any Minister. The noble and learned Lord might like to reconsider his words.

Lord Falconer of Thoroton: If a person is here on indefinite leave and has no means of support except access to benefit, he would appear to be destitute under the meaning of Clause 85(1). It seems to me a matter of common sense that he would not therefore be entitled to support both under the benefits system and under the provision of the support scheme under Clause 85. That is all I am saying. It seems to me a short and rather straightforward point. I do not see why he should be supported twice. That would be the effect of the removal of Clause 85(2) and the change of the word from "may" to "shall".

Let me take a second example. There are those who in some way abuse or seek to exploit the new arrangements. Someone who arrives with £50 in his pocket will very shortly become destitute; there is no suggestion that he should not be covered. But what about someone who arrives with £5000 in cash and who, three days later, turns up claiming to be penniless, with no explanation of where the money went? Would the Committee wish that the full range of assistance be automatically available to that person, even where he presents himself as prima facie destitute? That is a case where he could appear to the Secretary of State otherwise to be destitute.

Baroness Williams of Crosby: Before the Minister proceeds with his remarks, may I press him a little further. We have already recognised in Clause 85(1) that the person concerned is or is likely to be destitute. We secondly find that the Bill, under Clause 85(2), states:

    "In prescribed circumstances, a person who would otherwise fall within subsection (1) is excluded".

It does not explain in any detail who that person might be. It is a very wide power. The Delegated Powers and Deregulation Committee made clear that such a power is inappropriate in a Bill of this kind. I quote the words of the committee:

    "We question the need for clause 85(2), which would enable the Secretary of State to remove this lynchpin of support from those who, in the words of clause 85(1) are 'destitute or ... likely to become destitute', and recommend its deletion from the bill, or at very least that the circumstances under which the power may be exercised are set out on the face of the bill".

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This is a matter of great seriousness. The Government have been responsive to many of the points that we have made. However, it is fair to say that we know of no case where a recommendation expressed in such powerful terms by the Select Committee has been rejected by a government. I think that those Members of the Opposition who represent the Conservative Party will be able to confirm that that is their experience with regard to the government who were in power until 1997.

We beg Ministers to think again about this provision. It would set a very dangerous precedent, one that would enable Henry VIII powers to be widely introduced. Certainly, to disregard the advice of the Select Committee on Delegated Powers and Deregulation without the most powerful arguments being adduced--and with great respect to the Minister they have not so far been adduced--seems to us extremely unwise.

11 p.m.

Lord Cope of Berkeley: I confirm that it is my understanding that the previous government did accept the recommendations of the Select Committee.

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