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Lord Bassam of Brighton moved Amendment No. 42:

Leave out Clause 96.

On Question, amendment agreed to.

Clause 107 [Failure of sponsor to maintain]:

Lord Brightman moved Amendment No. 43:

Page 73, line 5, after ("neglects") insert (", without reasonable excuse,").

The noble and learned Lord said: My Lords, this is a simple amendment. It concerns two clauses, Clauses 106 and 107, which appear in the part of the Bill headed "Support for Asylum Seekers".

Clauses 106 and 107 create two criminal offences. The crime in Clause 106, stated shortly, is refusing to provide information which the defendant is under an obligation to provide. The crime in Clause 107, stated shortly, is the crime of refusing to provide maintenance for an asylum seeker which the defendant is under an obligation to provide.

However, there is written into Clause 106, which relates to information, a defence, which is "without reasonable excuse." Therefore the defendant is not guilty of the crime of refusing to provide information which he is otherwise bound to provide if he can show that he has a reasonable excuse. However, there is no such defence written into Clause 107. Therefore, a defendant remains guilty of the offence of refusing to provide maintenance even if he has a reasonable excuse. Why is "reasonable excuse" a defence in the case of one clause and not in the case of the other?

Let us take the scenario that the defendant has a small business; perhaps he runs a village shop. That is quite a likely scenario because many people who come from abroad take up business as shopkeepers. Let us suppose that he is under an obligation to pay a weekly sum for the maintenance of an asylum seeker; that there is a period when his business falls off; also that he makes enough money to support himself and his wife and children but not enough to pay also for the maintenance of the asylum seeker, despite his best efforts, unless of course he sells the business--his livelihood--and uses the proceeds of sale for as long as they last. In those circumstances, he declines--your Lordships may feel that he declines reasonably--to continue to pay the maintenance which he can no longer afford. Nevertheless, he has absolutely no defence if he is prosecuted because "reasonable excuse", although a defence to the Clause 106 crime, is not a defence to the Clause 107 crime.

That anomaly was touched on briefly by the noble Baroness, Lady Williams of Crosby, in slightly different terms in Committee. The only answer given by the Government was that,

I have changed the number of the clause--

    "to catch those who, despite their best efforts, have found themselves unable to maintain ... someone".--[Official Report, 28/7/99; col. 1543.]

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Why is that not made clear in the Bill as it is with regard to information which is reasonably refused? Why is "reasonable excuse" spelt out in Clause 106 but not in Clause 107, where we are told that it is intended to apply?

I did not return to this point on Report because I took the view that it was really a drafting amendment and the Companion advises that the convenient point to raise a drafting amendment is at Third Reading. I know that drafting amendments are not particularly encouraged, but this amendment reflects exactly the Government's stated intention, as expressed in Committee. In my respectful submission, that intention should be written into the Bill.

Of course, I appreciate that the obligation to provide information under Clause 106 is imposed by law while the obligation to pay maintenance under Clause 107 results from an undertaking given voluntarily. However, that difference means only that it may be more difficult to prove that the refusal to pay is reasonable. The fact remains that if there is a reasonable excuse for non-payment, that should be a defence under Clause 107 just as much as it is a defence in the case of a refusal to provide information. I beg to move.

Lord Williams of Mostyn: My Lords, not for the first time, the noble and learned Lord has caught me with a conundrum. I have to throw myself on the mercy of the court. I had assumed that the answer to the question of the noble and learned Lord on this amendment was that there may be a comparison between Clause 107 of this Bill with Section 105 of the Social Security Administration Act, which similarly lacks the "without reasonable excuse" proviso.

However, the noble and learned Lord has been astute. With great deference to him, he makes an important point. He has not co-related Clause 107 of this Bill with Section 105 of the Social Security Administration Act provision, but he asks a question to which I have no answer that convinces me and, therefore, will convince him on the difference between Clause 107 of the Bill and Clause 106 of the Bill. It is possible that an answer will occur to me as I speak a little longer.

Lord Swinfen: My Lords, perhaps the noble and learned Lord will allow me to intervene. I may be able to offer him small assistance in his cogitation.

What would be the position of a sponsor who took an asylum seeker into his home and provided him with food and accommodation according to the guarantees that he had given, but later found that that asylum seeker was molesting his wife and children? Would the sponsor not have reasonable grounds for throwing him out of his home--I would have thought that he would have--and to cease to support him? As I understand the wording of the Bill, it would be illegal for him to do so. Therefore, his wife and children would continue to be in danger, which, I am sure the

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noble and learned Lord, as a husband and I assume a father, would find most disagreeable and most dishonourable.

Lord Williams of Mostyn: My Lords, I am grateful for succour in this instance from whatever source. It is on such occasions that one longs to be able to say, "My noble friend Lord Bassam will deal with this point"!

The only answer that I offer--it is not marvellously convincing to me--is that Clause 107 mirrors Section 105 of the Social Security Administration Act. Plainly that does not attend to the point raised by the noble and learned Lord, which is different and distinct.

I wonder whether the noble and learned Lord would allow me a little time to consider this matter. I am not prepared to put forward any explanation that I do not believe is worthy of consideration, certainly not by the noble and learned Lord. I ought to think about this further.

In policy terms--this does not deal with the Clause 106 point at all--there would be no prosecution under any of the circumstances that have been mentioned by the noble Lord, Lord Swinfen, and the noble and learned Lord, Lord Brightman. This is not intended to attack someone with criminal liability who does not have some blameworthiness. I do not believe that that is entirely satisfactory. In fact, I regard it as vestigially satisfactory. Perhaps I ought to give this matter further consideration.

Lord Cope of Berkeley: My Lords, perhaps I may suggest to the Attorney-General that if he wants to keep open his options for a little while in order to consider the matter, he could allow this amendment to pass this evening as the noble and learned Lord has the option of trying to influence his colleagues in another place to remove it if it turns out that on further consideration it is not necessary.

I thought it was a good amendment to make and one that may stick. The only way that I can see to keep the matter open at this stage of the Third Reading is to pass the amendment, even if the noble and learned Lord wants to reserve his position as to the attitude he recommends to colleagues in another place at a later stage.

10.15 p.m.

Baroness Williams of Crosby: My Lords, I support that very sensible suggestion and add one other example, which is perhaps rather less sinister than that produced by the noble Lord, Lord Swinfen. If someone enters into an agreement in all good faith that they will maintain an asylum seeker and bear the cost and responsibility for him, but find that they are made redundant and do not have the means to support the asylum seeker, that sounds like a reasonable excuse. Once the noble and learned Lord addresses his mind to that for more than the 30 seconds that he has had, despite the interventions that have given him at least

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three minutes, I am sure that he will find that the drafting is excellent and can be commended to another place.

Lord Williams of Mostyn: My Lords, the noble Baroness is giving me my lifeline. I am able to deal with the point made by the noble and learned Lord, Lord Brightman, about Clause 107 as it mirrors the social services legislation. What I do not find convincing--I am about to be wholly overwhelmed with conviction--is that the noble and learned Lord said perfectly rightly, why is there a "without reasonable excuse" defence in Clause 106, but not in Clause 107. I remain underwhelmed. But your Lordships are always kind and generous, particularly as it is 10.15 p.m. in the evening. My riding instructions are that I should accept the amendment. If we need to, we can overturn it.

Lord Brightman: My Lords, I regret that I did not quite hear the noble and learned Lord's last comment. I was not certain whether he was accepting the amendment or whether he wished to reserve it.

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