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Lord Goodhart: My Lords, I am grateful to the noble and learned Lord for giving way. Can he explain how "effective powers to prevent absconding" can be anything that falls short of actual detention?

4 p.m.

Lord Williams of Mostyn: My Lords, it is probably more helpful to the House for me to develop the themes as I have them in my mind. Of course, one does not have to have full detention in the sense of imprisonment to prevent people absconding. For instance--in giving this example I am going completely outside the scope of this Bill--home detention curfew is a device which stops people absconding. I am sure that most people would not call that detention in the sense that imprisonment is detention. One can be proportionate as long as one has flexible powers and as long as--I shall develop this in deference to my noble friend Lord Clinton-Davis as well as to the noble Lord, Lord Goodhart--one considers the overarch. Let us not forget that we imposed that upon ourselves as a government in bringing into effect the Human Rights Act as early as 2nd October next year. I shall say a few words about the ECHR in a moment.

The provisions we introduced after reflecting on the views of the Select Committee aim to prohibit residence in one or more specific areas. We have seen a substantial increase in the number of people seeking asylum in this country. There has been a growth in tension between the local population and the newcomers in certain areas. In a sense, that is hardly a cause for surprise. We must bear in mind that people like to live in settled communities. It is easy, if one does not live in a disrupted community, to urge fortitude and a philosophic approach on people less fortunate. We must strike a humane, civilised balance between the legitimate needs of those who come to our shores, whether or not they are likely to be found to be genuine applicants, and the legitimate requirements of people who live in various communities.

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As we all know in London and the south-east, some people in some parts of the United Kingdom have had to bear a disproportionate burden--I use that phrase deliberately. That helps no one. Indeed, it disturbs and disadvantages a large number of people. There is no one in this House who would do other than condemn racist, xenophobic propaganda. One way of dealing with that is to set our face firmly against it. Another important way of dealing with it is to establish considered dispersal to parts of the country better able to cope.

I hope that does not sound harsh. I believe it to be a civilised approach to a problem which is intractable. We sometimes get sudden influxes or over-concentrations of asylum seekers. Noble Lords on the Liberal Democrat Benches have frequently pointed out the causes for that. The noble Earl, Lord Russell, has indicated quite rightly that if there is a disturbance, let us say, in middle or eastern Europe, one is likely to see a sudden influx of people fleeing those parts of the world; the same can be said of parts of Africa.

We are therefore planning dispersal arrangements under Part VI, with which we have already dealt. In the short term, some asylum seekers who may congregate in specific areas may still be on social security benefit. We want to have this power available. We do not envisage using the power on a routine basis, but only to relieve extreme pressures on specific areas in extreme circumstances.

I turn now to the second element of the amendment; it is not about the use of detention or the regime proposed at Oakington. The point of the amendment is to give greater flexibility in the use of temporary admission. We would then be able to develop reception facilities at which those given temporary admission were required to reside, but were free to come and go during the day if they wished. I return to the question of the noble Lord, Lord Goodhart. That is an important sanction against absconding. It is not 24-hour detention; it is an intermediate stage which your Lordships--I say this respectfully--ought to welcome and not criticise.

We want to be able to ensure that applicants remain at the accommodation overnight--again, I say this without any doubt that it is a proper thing to say--and to be able to say to them, "We require you to be present at this designated accommodation at certain times because that is when your interviews will occur". There is nothing wrong with that. In fact, it is a sensible way to behave. One must apply proportionality in more than one way.

Lord Avebury: My Lords, if the condition of temporary admission is that a person will attend an interview when required by the Immigration and Nationality Directorate, and he is in breach of that condition, sanctions can be brought to bear against him. He could be detained. A person therefore has every incentive to comply with the request to attend an immigration interview without the power in the Bill.

Lord Williams of Mostyn: My Lords, I disagree. Of course, he has an incentive to attend; but he also has

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an incentive to abscond. We are simply introducing perfectly measured provisions to deal with those circumstances.

Lord Clinton-Davis: My Lords, does not that have to be matched by the availability of access to those who would advise such persons if advice were sought? If the availability of access is extremely limited, that is a serious matter.

Lord Williams of Mostyn: My Lords, not for the first time I entirely agree with what my noble friend says. We are intending to make suitable provision for legal advice to be available. I am dealing particularly with Oakington. The noble Lord, Lord Avebury, was good enough to acknowledge that we are already discussing with the Refugee Council and others the nature of the provision to be made. But I must stress that we are talking about relatively short periods of time and we want to do our best to achieve this proportionate balance.

So, I repeat, residence is for a short time. We are trying to develop--I have no difficulty in putting this proposal forward--a wider menu of options which rely less on detention and which permit, in appropriate cases, the grant of temporary admission, albeit sometimes with restrictions. In that way we have more flexible powers to impose residence conditions on temporary admission which ought to be of practical help in terms of fairer, faster and firmer control. That is the point and purpose of the amendment and I do not apologise for taking a few moments to develop that theme.

We need to go forward by way of a power to make regulations. One of the aspects of our common failure--this is not a party political point; no government have been able to deal with this aspect satisfactorily--is that legislation has been too inflexible and has not been able to deal with changing events and changing pressures; we cannot respond quickly enough. We want to have a flexible system and these amendments contribute to that objective. However, under the Human Rights Act 1998, any regulations will have to comply with convention rights. They would authorise the imposition of additional descriptions of conditions only so far as that could be justified.

I want to spend a few moments on the Select Committee. The committee was quite rightly concerned that there should be some limitations on the scope of the power. We have tried to take that on board by the redrafting. The key point was to adopt the recommendation that the regulation should be made subject to the affirmative procedure. Parliament will have to be satisfied that, whenever the powers are to be used, they are proportionate and necessary to achieve the stated objective.

I promised to deal with ECHR compatibility. We have given further consideration to the earlier recommendation of the Select Committee in relation to the use of ECHR compatibility statements for secondary legislation. We thought about it quite carefully, not least because we had the benefit either of

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contributions from your Lordships in the Chamber or informed discussions in correspondence and in meetings. Therefore, I am pleased to be able to tell the House that I give the undertaking that, when moving regulations which are subject to the affirmative procedure, Ministers will always inform the House whether they are satisfied that the instrument is compatible with convention rights.

I can say from my own personal experience that that is not something which is done lightly. Indeed, when one signs the certificate, one bears in mind the fact that there is quite a body of informed expertise in this House which is likely to challenge any such certificate if it is wrongly given. That is an extremely important discipline for all departments and all Ministers to be aware of--and I have given this undertaking in unambiguous terms. I do not think that even a lawyer could wriggle out of such an undertaking. I hope that your Lordships will recognise that, even if we do not deliver perfect satisfaction on every occasion, we have listened to the points raised and considered the recommendations of the Select Committee with very great care. Again, I have to say that I believe it was of benefit to all of us that we withdrew from the detailed investigation of some of these points on the proposal that was clearly agreed to by my noble and learned friend Lord Falconer. It was the better way to proceed and has given us all the opportunity for reflection.

I want to go further and adopt the same approach for secondary legislation, subject to the negative resolution procedure, if it amends primary legislation. That will apply to regulations made under all legislation, not just those made under this Bill. I think your Lordships will stand amazed at my moderation. This is a very important step forward. Perhaps I may spend a few moments on the Human Rights Act. When it was introduced, I believe we all thought that it was a landmark piece of legislation intended to be a curb on executive power, especially when it has a tendency to be arbitrary. This is an ample first, or early, demonstration of the continuing power of that great statute.

I turn now to Amendments Nos. 80 to 83, which are amendments to government Amendment No. 79. I have already tried to explain the drafting of the provision of our amendment and I believe I touched on the issues raised by Amendments Nos. 80 to 83. Amendment No. 80 seeks to take out the provision for regulations to prohibit a person being absent from accommodation, except in accordance with restrictions imposed on him. We must have the ability to impose restrictions, such as being present every night. I dealt with this matter in response to the noble Lord, Lord Goodhart, and do not believe that requirement to be onerous. The person has to be present each night, or on particular days, for the purpose of interview. There would not be a significant purpose in requiring residence without that condition.

I promised to return to Amendment No. 81 and do so now because this is the context in which the question was raised by a number of noble Lords, especially the noble Lord, Lord Avebury. The amendment states that a requirement to reside can be imposed only once

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and for a maximum of 10 days. However, we know perfectly well that some people fail in the first application and then return to try again. In those circumstances, we ought to be able to require further residence at accommodation provided by the Secretary of State if that seems appropriate. It may well be reasonable to require residence for periods longer than 10 days, bearing in mind always the fact that we are talking about temporary admission.

4.15 p.m.

Lord Avebury: My Lords, the noble and learned Lord can extend the 10-day limit on any one occasion. If he has in mind the situation where a person has made an application which fails, has then gone back abroad and ultimately returned to put in a second application, surely the Secretary of State would want the power to put that person back into Oakington for a second time. Let us suppose, then, that we said that the detention should be for a maximum of 10 days on any one occasion.


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