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Immigration and Asylum Bill

4.51 p.m.

Further considered on Report.

Schedule 5 [The Immigration Services Commissioner]:

Lord Dholakia moved Amendment No. 106:


Page 123, line 1, leave out (“(c),").

The noble Lord said: My Lords, Amendment No. 106 is grouped with Amendments Nos. 107 and 108. A number of other amendments have also been proposed by the noble Lord, Lord Cope of Berkeley, and the noble and learned Lord, Lord Mackay of Drumadoon.

I shall be very brief. The purpose is not in any way to dispute what the role of the immigration services commissioner should be. The purpose of the amendment is to ensure that the immigration services commissioner would have to refer an alleged breach by a member of the designated professional body of that body's rules to the relevant professional body.

Amendment No. 108 is designed and intended to ensure that all complaints in respect of the members of one body are conducted by the same body to avoid members being subject to the unnecessary conduct of two investigations by both their professional body and the immigration services commissioner. I beg to move.

Lord Cope of Berkeley: My Lords, as the noble Lord, Lord Dholakia, rightly said, Amendments

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Nos. 108A to 108C, which stand in my name, fall for discussion at this point. Amendment No. 108A allows the designated professional body an opportunity to address a problem which has arisen and to make representations to the commissioner before the commissioner becomes involved in the complaints procedure. Clearly, those who suggested it to us, in particular the Law Society of Scotland, believe that in many cases they would be able to resolve the problem without the necessity to bring up the heavy guns on the matter. That seems to me to be a sensible suggestion.

Amendment No. 108B has a slightly different character. It provides that the immigration services commissioner and the deputy commissioner should be disqualified from membership of the Scottish Parliament and the National Assembly for Wales just as they are disqualified from membership of the House of Commons and the Assembly for Northern Ireland. I am advised by some legal opinion that that is necessary in order to fill a lacuna in the Bill. I may be told that that is already provided for. I am sure that it is everyone's wish that the disqualification should be put in place. If that is so, no doubt the Minister will tell us.

Amendment No. 108C refers to fees. At the moment solicitors and others pay considerable fees which provide for the protection of the public. It is not apparent why additional fees should be paid. The Law Society of Scotland made representations on this point. It pointed out that the disciplinary system is maintained from the fees already paid and that will obviously continue. That is the purpose of Amendment No. 108C.

The Minister of State, Cabinet Office (Lord Falconer of Thoroton): My Lords, I am grateful for the very clear way in which these amendments have been dealt with. However, I must say to the noble Lord, Lord Dholakia, that the early part of his remarks was lost in the noise of the stampede of noble Lords leaving the Chamber. Therefore, I cannot guarantee that I shall answer every point. The noble Lord should feel free to interrupt if I have missed a point.

Perhaps I may also deal with Amendment No. 109, which is a government amendment. I can do that very shortly. That amendment ensures that aggrieved clients or the immigration services commissioner have the appropriate means to enforce in Scotland a direction given by the immigration services tribunal for the repayment of fees to clients or for the payment of a penalty to the commissioner. At the appropriate moment I shall urge noble Lords to accept that amendment.

Amendment No. 106 moved by the noble Lord, Lord Dholakia, would remove an alleged breach by a member of a designated professional body of one or more of the rules of the relevant body from the definition of a relevant complaint. It is linked with Amendment No. 107 which specifically excludes the designated professional bodies from the complaints scheme.

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The Government are committed to controlling the behaviour of unscrupulous immigration advisers. It has been decided that the best method of achieving that is by means of a statutory regulatory scheme. Unfortunately, some of the worst examples of unscrupulous behaviour have been carried out by members of the legal professions. In these circumstances it is entirely wrong that the complaint made against a member of one of the designated professional bodies would not be regarded, were this amendment to succeed, as a complaint to be investigated by the commissioner. Therefore, these amendments run contrary to the spirit of the regulatory scheme and I urge your Lordships to reject them.

Amendment No. 108 spoken to by the noble Lord, Lord Cope of Berkeley, would provide for the commissioner to bring to the attention of a designated professional body complaints made against a member of that body which relate to the competence or fitness of a person or of those working under his supervision or employ, to provide immigration advice or services or a breach of one or more of the rules of the relevant regulatory body.

However, the commissioner already has an analogous but more appropriate power under paragraph 9(1)(c) of this schedule under which he may determine a complaint against a member of a designated professional body and refer it and his decision on it to the relevant regulatory body. It is important that the commissioner should form a preliminary view on the complaint before referring it. As an independent regulator he can add value to the process. In the light of what has been said, I hope that the noble Lord, Lord Cope of Berkeley, will not move his amendment.

The Bill contains a provision which allows the commissioner to give directions setting a timetable to be followed by a designated professional body in considering a complaint referred to it by the commissioner taking any disciplinary action in connection with a complaint.

Amendment No. 108A would limit the commissioner to requiring a body to provide an explanation where a complaint is made to him about the time taken by that body to deal with the complaint and to give a timetable in which the complaint will be dealt with. If the body then fails to adhere to the suggested timetable, the amendment would allow the commissioner to set a timetable.

We believe that it is only right that all professional bodies should deal with complaints in a reasonable time. Sadly, the record in terms of timeliness of some of the legal professions in dealing with complaints has not been a happy one. Some legal professions have been given additional powers to investigate complaints in the Access to Justice Act. Against that background we believe that it is perfectly reasonable to provide the commissioner with the power to set a timescale for the conduct of an inquiry into complaints against members of the legal profession.

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The purpose of the regulatory scheme is to ensure that people receive quality immigration advice and are not overcharged for that, and that complaints are effectively investigated within a reasonable timescale. The effect of this amendment would be that as regards some complaints the timescale for their effective resolution would be lengthened. That runs contrary to the intention of the scheme. I invite the noble Lord not to move his amendment when the time comes.

Amendment No. 108B seeks to disqualify the commissioner and deputy commissioner from appointment to the Scottish Parliament and the National Assembly for Wales. There is already provision in relation to disqualification of the commissioner and deputy commissioner from the House of Commons and the Northern Ireland Assembly. However, disqualification from the Assemblies for Scotland and Wales is, we believe, a matter for those Assemblies. I invite the noble Lord not to move that amendment.

Amendment No. 108C would remove the provisions for specifying by order a fee for the purpose of meeting the costs incurred by the commissioner in respect of each designated professional body to be payable by the designated professional bodies and for the recovery of any unpaid fee. We have written to the professional bodies informing them that they will not be required to pay a fee in year one of the scheme. In year two, they may be required to pay a fee. Any fee will be based on an estimate of the likely regulatory activity carried out by the commissioner in year two in respect of each body.

One professional body will not cross-subsidise the regulatory activity of the commissioner in respect of any other professional body or those registered or exempted from the scheme. It is only right that each body should be expected to pay a fee for any regulatory activity carried out by the commissioner on behalf of that body. Again, I invite the noble Lord not to move that amendment.

Lord Kirkhill: My Lords, I wanted to remind my noble and learned friend that it is a Parliament in Scotland, not an Assembly.

Lord Falconer of Thoroton: My Lords, I apologise and stand rightly corrected in that respect.

5 p.m.

Lord Dholakia: My Lords, I am grateful to the Minister for his explanation. Like him, we are all concerned about the role of unscrupulous advisers and qualified people who exploit those who are in desperate need of help. The best course of action is to see how the functions of the immigration services commissioner are carried out. In the mean time, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 107 to 108B not moved.]

Clause 81 [Designated professional bodies]:

[Amendment No. 108C not moved.]

20 Oct 1999 : Column 1129

Clause 84 [Disciplinary charge upheld by the Tribunal]:


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