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Lord Avebury: My Lords, I gave examples of cases in which someone claimed to be a member of the MDC. The immigration officer who dealt with the cases at first application said, "I don't believe that you're a member of the MDC—I think you're a South African national pretending to be someone from the MDC". That was the substance of the two cases I mentioned, about which Bail for Immigration Detainees expressed some concern.

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Lord Filkin: My Lords, that is an interesting and, in the circumstances, an important question which deserves an answer. However, I do not see its relevance today as we are not proposing to include Zimbabwe as one of the countries on the list.

I was seeking to respond to the question from the noble Earl, Lord Russell, on the presumption of guilt. Inclusion on the list is not the same as a presumption of safety, because the cases are considered individually on their facts. In January 2003, in its judgment on the case of ZL and UL v Secretary of State for the Home Department, the Court of Appeal stated that inclusion on the list did not establish a presumption that the case would be unfounded. In fact, it said that inclusion on the list did not replace individual consideration of the facts of the claim against the known background data. I think that that is germane.

The noble Earl also asked whether the high number of certificates overturned before the 2002 Act came into force had a bearing. Generally, we believe that the process by which non-suspensive appeal decisions are made is vastly stronger and more substantial—as it should be because it is a non-suspensive appeal. That is not for a second to say that the previous systems were hopeless. The whole process has sought to strengthen very considerably the care with which the initial decision is taken in non-suspensive appeal cases. I have already gone into some detail about how that has been done.

I have spoken at length, for which I apologise. However, I grant that these are important issues. I summarise by saying that I regret that we have not been able to put the advisory panel in place. However, it will very shortly be in place. I have also sought to explain to the House why we think it important that we continue and extend the use of the non-suspensive appeals process as we have done. While there may be a general presumption that a country is safe—and we believe that these seven countries meet that test—one knows when making a decision on an individual applicant that that individual may be the exception to the rule. That is the burden of responsibility which sits on the Government and the immigration officers when they are making such judgments.

The practice and the results of the system seem to us to be working well. This system continues the ability to give asylum to those who should have it while seeking to stanch the flow of economic migrants which risks threatening the integrity of our system.

Lord Goodhart: My Lords, I am grateful to the Minister for his reply, which was rightly a full reply. This has been a substantial debate which has lasted for almost an hour and a half. I shall therefore be brief.

I remain unconvinced by the Minister's arguments to justify the inclusion of a number of the states included in the list or to justify bringing the list forward at all now rather than waiting until there has been an opportunity to receive advice. It is of course a longstanding

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convention of the House that although it has the power to reject orders moved by the Government, it does so only in wholly exceptional circumstances. The circumstances of this case fall below, but only just below, that level. It was for that reason that I put forward our amendment in a non-fatal form; that is, one that, even if passed, would not have led to the order falling. Therefore, I do not propose to press the amendment today or to vote against the order.

But having said that, we must make very clear our deep concerns that for a second time the Government have brought forward orders including some questionable states, and have done so before the committee has been set up and is able to report. If that were to happen on a third occasion, it cannot be assumed that we would take the same position as we have done today and on 31st March. I beg leave to withdraw the amendment.

Amendment to the Motion, by leave, withdrawn.

On Question, Motion agreed to.

Official Secrets Act 1989 (Prescription) (Amendment) Order 2003

3.30 p.m.

Lord Filkin rose to move, That the draft order laid before the House on 19th June be approved [23rd Report from the Joint Committee].

The noble Lord said: My Lords, this order is made under the Official Secrets Act 1989. Under that Act, it is an offence for a Crown servant to make damaging disclosure of any information which is in his possession by virtue of his position, unless he has lawful authority to do so. Persons who are not Crown servants can be treated as such by designating them in an order. The Act also allows us to designate by order those organisations which can give official authorisation for disclosure to those who would otherwise be committing an offence under the Act. The order before us does both of those things.

The order will designate as equivalent to Crown servants the board and employees of three new subsidiaries of the company Urenco Ltd; they are Enrichment Technology Company Ltd, Enrichment Technology UK Ltd and Urenco Enrichment Company Ltd. The board and staff of the parent company, Urenco Ltd, were designated in 1990 because of the sensitivity of the technology they deal with. They produce enriched uranium for nuclear reactors, and the technology they use is cutting edge. In 1993 a subsidiary company Urenco (Capenhurst) Ltd was also designated. These two companies will shortly be transferring some staff from their employment to these three new Urenco subsidiaries. As Urenco Ltd or Urenco (Capenhurst) Ltd staff, these employees are currently prescribed by earlier prescription orders. This order is needed to ensure that they remain prescribed after the transfer.

The draft order has a second purpose. It will designate the tribunal set up under the Regulation of Investigatory Powers Act 2000 as one which can

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authorise the disclosure of information for the purposes of the Official Secrets Act. The tribunal deals with complaints from those who are concerned that they may be affected by the activities of the intelligence services. It is an important avenue of redress for those who believe they may have been treated improperly by those services. It is possible that in order that their complaint can be properly heard certain complainants and witnesses to the tribunal may need to disclose to the tribunal information that is protected by the Official Secrets Act. For example, it would be an offence for a former member of the intelligence services to disclose information about those services to the tribunal. Similarly, any third party who has had information disclosed to them in contravention of the Official Secrets Act 1989 would themselves commit an offence if they disclosed that information to the tribunal. So the tribunal must be able to authorise such disclosures. It will authorise disclosure of information only to the extent necessary to investigate the complaint. This is needed so that complainants and witnesses are not exposed to the possibility of committing an offence by disclosing information to the tribunal.

The Investigatory Powers Tribunal replaced three tribunals set up for similar purposes under the Interception of Communications Act 1985, the Security Service Act 1989 and the Intelligence Services Act 1994. Those three tribunals were all previously designated as authorising organisations for the purposes of the Official Secrets Act for the reasons I have given. The draft order will replace references to the old tribunals with a reference to the new one.

As we can see, this order is needed to keep the references in the Official Secrets Act up to date, and as such I hope that it will be acceptable to the House. In our view it is entirely compatible with the ECHR convention rights. I beg to move.

Moved, That the draft order laid before the House on 19th June be approved [23rd report from the Joint Committee].—(Lord Filkin.)

Baroness Anelay of St Johns: My Lords, I simply thank the Minister for his explanation. We accept that it is absolutely right that references should be kept up to date within the terms of the Official Secrets Act. Given the nature of the sensitivity of the technology employed by the companies in uranium enrichment, we support the order.

Lord Goodhart: My Lords, the Minister may be glad to know that, on this occasion, we support the order, too. It is merely a matter of updating to take account of a changed corporate structure, so there is nothing in our view to make it inappropriate.

Lord Filkin: My Lords, it is a pleasure to continue to deal with Home Office legislation after I have left the department. It is even more of a pleasure when I find that such an order meets the approval of the House.

On Question, Motion agreed to.

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Patients' Protection Bill [HL]

3.36 p.m.

Report received.

Baroness Knight of Collingtree moved Amendment No. 1:


    After Clause 1, insert the following new clause—


"EXCEPTIONS TO SECTION 1
(1) No offence will have been committed under section 1(1) if any of the requirements in subsections (2) and (3) below are met.
(2) The patient—
(a) requests the withdrawing or withholding of sustenance;
(b) does not give consent to the provision of sustenance; or
(c) does not give consent to the recommended intervention to provide sustenance.
(3) In the case of a patient who lacks capacity to consent, consultation by the doctor in charge with the next of kin or legally appointed representative has taken place, and the provision of sustenance—
(a) is likely to cause significant discomfort to the patient without improvement in his condition, or worsen his illness or debility; or
(b) is likely to result in no improvement in the illness or debility of a dying patient.
(4) For the purposes of subsection (3) a patient lacks capacity if he is unable to understand in broad terms the nature and effect of the decision to withdraw or withhold sustenance."

The noble Baroness said: My Lords, the amendment addresses a number of concerns raised during previous debates on the Bill. First, it makes clear that a patient who does not wish to be fed by a tube through his nose or a peg in his stomach need not be so fed. He has the right of refusal, although one assumes that he will always have been informed of the consequence. No patient should ever be given medical treatment to which he objects. That was never in doubt in my introduction of the Bill but, for those concerned that doctors might be forced to feed in that way, the amendment clarifies the matter. Secondly, if a patient is incapable of giving any view—if he is unconscious, in a coma or cannot understand the issue—the amendment lays down the procedure that must be followed.

The matters have been discussed at considerable length earlier in our debates, so I have no wish to go into every detail once again at this hour on a Friday. I would wish to spare the House that. However, if any noble Lords wish to ask further questions, I shall do my very best to answer them.

I am most grateful to all noble Lords who have contributed to our debates on the Bill, especially to the noble Baroness, Lady Finlay. It was said in previous speeches by other noble Lords that there was not a great deal of difference between us, especially on the imperative need always to give patients the best medical care and show concern for their comfort and well-being at every stage. I am sure that it is right to say that the noble Baroness, Lady Finlay, and I have never had any disagreements on that point. Those comments have been

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proved right. I am both happy and proud that she and I have worked together on the amendment and have signed it jointly. I beg to move.


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