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Child Abuse (Leicestershire)

3.33 pm

Mr. David Ashby (Leicestershire, North-West) (by private notice) : To ask the Secretary of State for Health whether he will make a statement on the abuse of children in children's homes in Leicestershire.

The Secretary of State for Health (Mr. William Waldegrave) : As the House will be aware, on 29 November, three child care officers formerly employed by Leicestershire county council were convicted on extremely serious charges of sexual assault and other acts of violence which occurred in three Leicestershire children's homes between 1973 and 1986. These were particularly despicable crimes. They went on over a long period and affected many children who had been entrusted to the defendants for care and help. I do not believe that it is necessary for me to put into words the outrage of the House--[ Hon. Members :-- "Hear, hear."]--and of the country at the things which we heard during that trial.

The first concern of hon. Members, particularly those representing Leicestershire constituencies, will be to know whether children in Leicestershire children's homes are now properly protected against abuse. As soon as the charges came to light earlier this year, the Department's social services inspectorate carried out an inspection to assess the present quality of child protection in the county's children's homes. The report showed that there had been many changes and improvements since 1986, but that some deficiencies remain. The inspectorate's recommendations are now being vigorously addressed under the leadership of the present director of social services, Mr. Brian Waller.

Through the Children Act 1989 and its associated regulations and guidance, the Government have ensured that a much more effective framework for controlling children's homes is now in position. It includes proper complaints and rigorous inspection procedures. This new framework is both endorsed and supplemented by the Utting report of last August.

As I announced at the end of the trial, I am immediately doing two things. First, I am directing Leicestershire county council to establish a statutory and legally chaired inquiry whose terms of reference will be to inquire into management responses to complaints or other prima facie evidence of abuse, malpractice or other related matters in Leicestershire children's homes between 1973 and 1986 ; and any other relevant management and personnel management matters during that period or subsequently.

No amount of legislation can in itself guarantee that there will be no more child abuse in our children's homes. This trial shows yet again the danger that work with vulnerable children, particularly in residential homes, may attract the very people who should be kept at the greatest possible distance from it. This means doing more than checking qualifications and setting up systems, although these things should be done. It means that there must be constant vigilance by the authorities ; it means that there must be methods of responding swiftly to alarm bells that may be rung either by staff or by children and that there must be alarm bells that can, in real life, be rung.

But the trial shows the need to look with the utmost care at staff selection procedures. I am therefore also


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establishing a national inquiry whose chairman will be Mr. Norman Warner, former director of Kent social services. The inquiry's terms of reference will be

"to examine selection and appointment methods and criteria for staff working in children's homes and to recommend improvements ; and to make such further examination as the committee may consider justified of management or other issues relevant to the protection of children and young people and to the support and guidance of staff in such homes."

I will wish to see the report and its recommendations by1 July 1992.

I have no doubt that the majority of staff working in this difficult field do their job with compassion and professionalism, but this trial has shown that we can afford to take nothing for granted.

Mr. Ashby : I think that the whole House will welcome that statement and the fact that two inquiries will be set up. This is yet another major scandal involving the social services department of a council, and the country is rather tired of such scandals. I hope that the second inquiry, of which Mr. Norman Warner will be the chairman, will look closely at the role, quality, education and training of social workers as well as the way in which they are selected.

In respect of the inquiry into Leicestershire county council, in general there appears to have been a major cover-up by those responsible for the care and welfare of these children. I am sure that my right hon. Friend will wish the inquiry to investigate how numerous complaints came to be disregarded, how Mr. Frank Beck was able to simply resign, why the police were never informed of the complaints so that they could be fully investigated at the time, why Mr. Frank Beck, having resigned voluntarily after numerous complaints, was given a reference, why there was not even a report into the then Department of Health and Social Security, and why the inquiries by Brent therefore proved negative.

My right hon. Friend will agree that those questions must be answered and that we have to get to the very heart of the scandal to ensure that it should not happen again, not only in Leicestershire but elsewhere, and those responsible for the cover-up are made to realise what they have done and the subsequent effect it has had on numerous children.

Mr. Waldegrave : I agree with the second part of my hon. Friend's question. He raises a range of issues into which the statutory inquiry must look.

On the first part, I could quote to the House increased statistics for money spent on training, but I do not wish to mislead the House into thinking that there is any qualification that can guarantee against the abuse that we have seen. Mr. Beck was a formidably powerful personality and doubtless would have passed any examination set for him in his profession-- indeed, he did so. Examinations do not preclude against evil. What matters is that the authorities exercise their responsibility for checking and double checking what happens on the ground.

Mr. Greville Janner (Leicester, West) rose --

Hon. Members : Hear, hear.

Mr. Janner : Is the Minister aware that everyone in Leicestershire will welcome the setting up of the inquiry into the regime of Frank Beck? There was, of course, not a shred of truth in any of the allegations of criminal conduct made against me during the trial by Beck and by


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his accomplice, Winston. I hope to raise many important aspects of the matter in the House tomorrow evening, if I am fortunate to catch your eye, Mr. Speaker.

As my wife, my family and I have had a taste of the suffering that Beck can impose on innocent people, will the Minister join me in sending to the real sufferers, the individuals who endured Beck's homes and whose lives have been wrecked at his hands, the profound sympathy of us all?

Hon. Members : Hear, hear.

Mr. Waldegrave : I am sure that the House has demonstrated its feelings on the matter in relation to the hon. and learned Gentleman by the reception that he has just received. I am sure that the House wished to join him in sending its sympathy to the many victims, some of whom may have suffered irreparable damage. We hope that that is not true in too many cases.

Mr. Michael Latham (Rutland and Melton) : I thank my right hon. Friend for what he has just said about the vile allegations and lies against my hon. and learned Friend--I use both words advisedly--the Member for Leicester, West (Mr. Janner).

I thank my right hon. Friend especially for the inquiry into Leicestershire. This terrible matter has brought shame on Leicestershire, and we expect to get to the heart of how it could have gone on for so long, while apparently nobody did anything about it.

Mr. Waldegrave : That is exactly what the local statutory inquiry must get to the bottom of. I am sure that it will wish to consider a wide range of evidence, including the Newell report producted by the county, which I am sure contains matters germane to the inquiry. We must get to the bottom of the matter. I repeat that there is no system that can automatically preclude evil people getting into positions of power over vulnerable people. That is why we must have complaints procedures that can be worked and really do work, why authorities must use their powers in the proper way and why we must have constant vigilance.

Mr. Jim Marshall (Leicester, South) : I thank the Secretary of State for acting so expeditously in establishing the two public inquiries. I also take the opportunity to inform him and the House that the people of Leicestershire have been shattered and appalled by the relevations of abuse in our children's homes. Does the Secretary of State agree that it is vital that the public inquiry in Leicestershire establishes the circumstances that permitted the regime of terror to go on for so long and that permitted complaints made by the children to be ignored for long? Only if that background is established can we be assured that abuse will not take place in future either in Leicestershire or in other counties.

Mr. Waldegrave : The hon. Gentleman puts his finger exactly on some of the issues that must be addressed most seriously. The citizens of Leicestershire need not feel shame. There is no reason why such evil cannot happen anywhere, and it is their ill luck that many of their children have suffered from it.

Mr. David Tredinnick (Bosworth) : My right hon. Friend will recall that I asked on 18 July for an inquiry, and my constituents will welcome what my right hon. Friend has said today. Is the discredited regression therapy still taught and used in any homes and, if so, will he make


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it illegal? What plans are there to tighten up the foster service vetting which, in this case, allowed a known homosexual to adopt a child? Will my right hon. Friend consider extending the inquiry of Leicestershire social services department to investigate departments throughout the country?

Mr. Waldegrave : On the latter point, the statutory inquiry must consider this case. Lessons may well be learned from it, but the statutory inquiry has the terms of reference that we have directed the county to adopt, with, I must say, the full support of the county and its present director of social services who, I am reliably informed, has a very high reputation in the service. On the other matters, we should await the report's conclusions. Like my hon. Friend the Member for Bosworth (Mr. Tredinnick), I have personal views about some of those matters, but we should await the report, when we will have a little more to go on about the circumstances and how this could have happened. There are discredited and out-of-date theories around, and I have asked officials in my Department to report to me on those matters. However, we will need a little more evidence before we reach conclusions on some of these things.

Mr. Keith Vaz (Leicester, East) : May I join the hon. member for Rutland and Melton (Mr. Latham) in condemning the cowardly attacks made on the character of my hon. and learned Friend the Member for Leicester, West (Mr. Janner). I am sure that we all want to pass on our good wishes to his wife and family after their terrible ordeal over the past few months.

On 18 May 1989, in Standing Committee B, I moved an amendment to the Children Bill, supported by my hon. Friend the Member for Monklands, West (Mr. Clarke), which would have required all local authorities to appoint a children's rights officer. Bearing in mind the fact that the first complaint in this case was made on the advice of the Leicestershire children's rights officer, will the Secretary of State reconsider the Government's view about the appointment of those officers? Will he, as a matter of urgency, issue a directive or circular to all local authorities requiring them to appoint an officer as a matter of urgency and not simply to wait until the end of the inquiry before making such an appointment?

Mr. Waldegrave : I think that the important thing is the provision in the Children Act 1989 to have a named person to whom children in such homes can complain. It is no earthly use appointing a particular officer if the childen do not know how to complain to him or her and cannot do so. That is the vital and most important thing that has been done. I warn hon. Members not to think that there is an easy institutional panacea for any of those matters. All the authorities must work properly and openly if we are to avoid such abuse in future.

Mr. Peter Thurnham (Bolton, North-East) : Will my right hon. Friend consider the chasm that seems to exist between local authority children's homes, where 85 per cent. of the staff are unqualified, and private sector residential homes, which are run as businesses and which charge local authorities as much as £1,000 a week and the directors of which draw as much as £750,000 per annum?

Mr. Waldegrave : I would warn the House, and repeat my earlier point, that Mr. Beck had qualifications. There is no particular reason to think that people who are


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determined to get their hands on vulnerable children will be so stupid that they cannot pass examinations. The issue is a little more complex than that.

Mr. David Bellotti (Eastbourne) : I congratulate the Government on appointing Mr. Norman Warner to conduct the national inquiry. His views and leadership will be well respected by hon. Members on both sides of the House. In that inquiry, do the Government intend to consider two very important aspects, the first of which is funding? The Secretary of State will be aware that the social services departments of many local authorities are struggling to meet their financial commitments in implementation of the Children Act 1989. Many local authorities are millions of pounds short of the necessary resources. For example, Hampshire is £2 million or £3 million short, and East Sussex is £2 million short for next year. I hope that the inquiry will consider all those aspects, because the things that we all desire come at a price.

Secondly, is not now the time for the Government seriously to consider an independent inspection service for complaints because in many cases-- pindown was one, Leicestershire is another and I understand that there may be further examples at Wrexham and Bangor--the local authorities are not the best bodies to investigate the complaints? Will the terms of reference of the Warner inquiry include those two important aspects?

Mr. Waldegrave : I am grateful for the hon. Gentleman's support for Mr. Norman Warner, whose appointment will be widely welcomed by those who know him as an independent-minded and good man. However, I warn people against lumping together pindown and what has been happening in Leicestershire. Pindown was a serious professional failure, but was a hundred miles removed from the level of criminal activity of which we heard in the recent trial. Although the House was right to be concerned about pindown, we are talking about something of a different order of magnitude in this case.

The Warner report will not become involved in the issue of independent inspections. However, we have now insisted that there should be arm's- length inspectorates. Our own central social services inspectorate will be not only carrying out its own inspections, but also checking on the quality and systems of the arm's-length inspectorates that have been set up by the local authorities. It must be for the local authorities, which have the statutory

responsibilities, to take those responsibilities extremely seriously and I would not want to divorce them from the primary responsibility for undertaking those tasks.

More money could, of course, be spent, but if we think that this is simply a matter of money--

Mr. Bellotti indicated dissent.

Mr. Waldegrave : Indeed, I am sure that the hon. Member for Eastbourne (Mr. Bellotti) did not mean to say that. There are things on which we should be spending money, which is why we have increased the standard spending assessments in recent years, but in this case

Mr. Bellotti indicated assent.

Mr. Waldegrave : I know that the hon. Gentleman agrees with me, because I can see him assenting. This is not


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necessarily a matter of money. Evil men can be fully qualified and have resources at their command, so we may still find that we have evil to contend with.

Mr. Roger Sims (Chislehurst) : I am sure that my right hon. Friend will agree that we should be grateful to the vast majority of staff who work in children's homes and who deal daily with children who, almost by definition, are difficult and disturbed. Although I accept that people can be both highly qualified and evil, does my right hon. Friend agree that it is important to have adequate numbers of properly trained staff in such homes? Is he satisfied that the establishment of the homes is sufficient and that a sufficiently high proportion of the staff are properly trained? Does he further agree that there might be a case for extending the training of social workers, especially in this area?

Mr. Waldegrave : I am sure that there is common ground with my hon. Friend, because I accept that we need steadily to improve training--indeed, we have been putting more money into that. Although the Utting report, which was published in the summer, made it clear that training was not the central issue in such cases, I am not arguing that professionalism is not important. As I was saying earlier, paper qualifications cannot guarantee to exclude the kind of evil that we have been reading about in the past few weeks.

Miss Joan Lestor (Eccles) : I welcome both the inquiries that the right hon. Gentleman has so speedily set up, but may I advise him that, if we do not get it right this time, we shall be at the Dispatch Box again to consider still more cases? Unfortunately, there has recently been a terrible saga of children who have been abused. The crux of the matter today is that those children were not listened to or believed when they complained to the very people in whose care we had put them for protection. Although we must get it right, we will not necessarily be able to prevent such cases from happening again, because human beings are full of frailties. Nevertheless, this case could have been avoided. In connection particularly with the second inquiry, will the right hon. Gentleman bear in mind the fact that we have children in private as well as in local authority homes, all of which need to be looked into quickly?

How is it possible not only that children are not listened to when they complain, but that the man against whom they are complaining can leave one employment for another and be given a reference by the very people who have already received complaints about him? That seems unbelievable.

I hope that the Secretary of State, who I know is as appalled as all of us about the matter, will pay special attention to how that could possibly happen. I hope that the inquiry will underline the fact that, by and large, children do not lie about such matters and that the people who have now come forward as adults have probably been permanently damaged because no one would pay any attention to what they said.

It is important that we examine the Children Act 1989 to make sure that we have got the complaints procedure right. There must be an independent person to whom children can complain. The children's charities are backing our policy of a children's rights commissioner to whom children can go, wherever they are, and be listened to. That is important.


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I accept the Secretary of State's point that all the training in the world will not deter an evil man like Beck. The main inquiry will examine the vetting of people who work with children. Will the Secretary of State bear in mind the fact that the police tell me that there is a backlog of six to 10 weeks for vetting certain people, especially teachers? To avoid other children being subjected to abuse during the inquiry, it is important that the backlog is dealt with as a matter of the gravest urgency. These are our most vulnerable children, and they deserve our best support and protection.

Mr. Waldegrave : I welcome the hon. Lady's comments. I will take up the latter point both in my Department and with my right hon. Friend the Home Secretary. That is probably an issue that we should examine.

I strongly support the thrust of what the hon. Lady said. Children must be heard, and must feel confident that they have an independent person to whom they can complain. We have taken steps to draw to the attention of all children who go into a home the fact that there is a telephone number, a contact point and a named officer separate from the home to whom they can complain if they feel the need. That is a vital step.

The inspection under the Children Act 1989 is now extended to private homes. That is a welcome step. The reference issue, which my hon. Friend the Member for Leicestershire, North-West (Mr. Ashby) also mentioned, is one of the matters to which the statutory inquiry must direct its attention. I shall not make any further comment about it today, but it must be one of several essential issues which the inquiry will have on the table.


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Home Secretary (Appeal Court Judgment)

Mr. Speaker : Before I call the Home Secretary, I should say that I understand that a notice of appeal has now been lodged but that I propose to exercise my discretion in respect of the sub judice rule to allow questions covering the Home Secretary's statement. 3.57 pm

The Secretary of State for the Home Department (Mr. Kenneth Baker) rose--

Hon. Members : Resign.

Mr. Speaker : Order.

Mr. Baker : The House will know that, on Friday, my action in the case of the deportation of a Zairean national was subject to a judgment by the Court of Appeal. I have now had the opportunity to study that judgment and I have taken further legal advice. The court gave me leave to appeal. I have decided that an appeal to the House of Lords should be lodged, and this has been done.

I have placed a copy of the judgment, together with the earlier judgment of Mr. Justice Simon Brown, in the Library of the House of Commons. The issue centres upon the response to an order made by Mr. Justice Garland in the early hours of 2 May and the consideration that I gave to that order at a meeting at 4 pm on the same day. I was, of course, advised throughout not only by Home Office lawyers but also by Treasury Counsel.

As this matter will be central to the proceedings in the House of Lords, the House will recognise that I can say no more about it. As the Master of the Rolls has acknowledged, this case raises issues of constitutional importance, issues which go far beyond the facts of the case which gives rise to them. The question posed by the judgment of the majority of the Court of Appeal is whether Ministers of the Crown and civil Servants, acting in the course of their duties, can be separated from the Crown itself.

I should like to make it clear to the House that I accept full responsibility for the actions taken in this case by officials of the Home Office and by my hon. Friend the Parliamentary Under-Secretary, who dealt with it. I was involved in the case at a late stage, and that is the subject of the court's findings.

On any view that may be taken, this case breaks new ground of great constitutional importance. Every Minister acts, and must act, under the rule of law. The only comment I wish to make at this stage is that the court recognised that I had no intention to act in defiance of an order of the court or to hold myself above the law.

Mr. Roy Hattersley (Birmingham, Sparkbrook) rose

Mr. Dennis Skinner (Bolsover) : Where is the honour?

Mr. Speaker : Order. I ask the hon. Member for Bolsover (Mr. Skinner) to sit down.

Mr. Hattersley : Is the Home Secretary aware that, by purporting to describe his motives in persisting with the deportation order despite the instructions of the court, he is contributing to a debate which he described as sub judice? Will he understand that had he wished, as his


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statement claimed, to remain within the law, his proper course would have been to accept the court's ruling and then appeal, not to flout the court's judgment? He claims that he had no intention of acting in defiance of the court order. That is exactly what he did. He also broke an undertaking which had been given to the court in his name.

Will the Home Secretary confirm that, aside from the point of law to which he draws our attention and which will soon become sub judice, the judgment described Home Office procedures as reflecting no credit on the Home Secretary, and called the treatment of that asylum seeker a disgrace. Does he understand that, while he may postpone or prevent debate on such matters in the House, outside he will be called upon to justify his incompetence?

Finally, the Home Secretary will recall that, at the time of the Brixton escape fiasco, he claimed that no blame attached to him because he had not been consulted. In the case of the wrongful deportation of any asylum seeker, he admitted that he was consulted, but he hides behind the excuse that he did no more than accept civil servants' advice. Are there any circumstances in which the Home Secretary would feel it right to take the honourable course and resign from the office which he discharges so inadequately?

Mr. Baker : Once again, the right hon. Gentleman mistakes the constitutional wood for the political trees. He has sought to make a political attack on me, and I shall reply in the same way because the right hon. Gentleman has been highly selective in his summary of the case.

I remind him that the applicant arrived in the United Kingdom on 23 September 1990 on a flight from Lagos, Nigeria, using a false passport, and claimed that he would be persecuted in Zaire-- [Interruption.]

Mr. Speaker : Order. The Home Secretary should bear in mind the fact that this case is sub judice.

Mr. Baker : Could I say that the actual issues that go to the House of Lords do not relate to the earlier events to which the right hon. Gentleman has referred.

I wish to come to the point that the right hon. Gentleman raised specifically about my role in this matter. I remind him that the applicant was interviewed three times, on 24 September, 2 December and 17 December, and was given every opportunity to present his case. The case for asylum was turned down, as the right hon. Gentleman knows, and there were three applications for leave to move for judicial review. Three hearings took place, two of them on the afternoon of 1 May.

Could I now come to the events of which the right hon. Gentleman accused me --namely, my involvement on 2 May? In the various judgments that have been made in the High Court by Mr. Justice Brown, no contempt was found against officials or my hon. Friend for what is called phase 1 and phase 2. I was involved because an order had been made in the early hours of 2 May. I was advised by my legal advisers in the Department, and subsequently by first Treasury counsel, that that order was beyond the power of the court, and I was given leave to apply for it to be varied or discharged. I asked for that to be done at the earliest opportunity, the following morning at 9 o'clock. When the court met, that order was withdrawn.

That is the issue that will go to the House of Lords. As I said, it is an important issue, because it involves a


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decision which I took. I do not shirk any responsibility in this matter, nor do I shirk any responsibility for the actions taken by my officials or for the way in which the Parliamentary Under-Secretary handled the case.

Mr. Ivan Lawrence (Burton) : Will my right hon. Friend accept that no hon. Member on this side of the House and, if they can leave aside party politicking for a moment, no hon. Member on the Opposition Benches, would believe that my right hon. Friend was capable of flouting the law-- [Interruption.] --as has been suggested, either in his personal capacity, or, still less, as a holder of one of the great offices of State?

Is it not a fact that this is now an area of very important constitutional dispute, that my right hon. Friend accepted the advice of senior Treasury counsel, that two judges have spoken in his favour and two against, and that the House of Lords may find that he was right and they were wrong? Is it not also a fact that in this case it is clear that, if the Court of Appeal believes that he had no intention of flouting a court order and of putting himself above the law, that should be good enough for the rest of us?

Mr. Baker : I thank my hon. and learned Friend for those comments, and I quote from the judgment of the Court of Appeal-- [Interruption.] I could read the whole of it if I am asked to do so. On the question of the rule of law and observance of the rule of law--this is a very important matter ; Ministers are subject to the laws of the land and to enforcing the rule of law--the Master of the Rolls said : "He"--

that is, the Home Secretary--

"has disavowed any intention to act in defiance of an order of the court or to hold himself above the law."

That is a disavowal which I fully accept.

Mr. Robert Maclennan Caithness and Sutherland) : Does the Home Secretary accept that, in his high office, he is the prime protector of the liberties of the subject and upholder of the rule of law, and that his position has been fatally compromised by his unwillingness to carry out the order of the court and to ask questions about it subsequently? Is he aware that, by persisting in the claim that he was not bound by the order of the court, he is compounding his offence?

Mr. Baker : I wish that the hon. Gentleman had made himself familiar with the two judgments in the case--those of Mr. Justice Simon Brown and of the Master of the Rolls. If he had, he would know that what he has said is not right.

Sir John Wheeler (Westminster, North) : My right hon. Friend rightly accepts responsibility for what happens in the Home Office. Is it not a fact that everyone in the Home Office associated with this case has been properly advised by qualified lawyers, that the facts that my right hon. Friend had produced to the House today are not in dispute and that the issue is one of constitutional importance only?

Mr. Baker : As I said, I think that this issue is of very considerable constitutional importance, because the effect of the judgment is to separate the activities of a Minister acting under his own name from those carried out while acting as a Minister of the Crown. That has considerable implications for the conduct of affairs. It is certainly at variance with the constitutional practice--


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Mr. Alex Carlile (Montgomery) : Oh?

Mr. Baker : The hon. and learned Gentleman has his own view, but I think that, as a lawyer, he will agree that it is at variance with the constitutional practice that has operated hitherto. It certainly cannot be limited just to matters of contempt but must relate to the other coercive jurisdictions of the court. This is a matter of major constitutional importance which will have to be looked at by the House of Lords and no doubt considered by this place in due course.

Mr. Jeremy Corbyn (Islington, North) : Is the Home Secretary aware that his decision of 2 May put that Zairean teacher in an extremely dangerous and vulnerable position, and that it is not the first time that his Department has deported people in the face of a court decision that they should remain in this country? Does he agree that it is now essential that he withdraw the Asylum Bill now under consideration and instead institute a proper system of legal appeal that gives automatic rights of appeal to political asylum seekers and does not leave them at the mercy of his erroneous decisions?

Mr. Baker : In the consideration given to that case, the most scrupulous care was taken of the safety of the Zairean. Right at the last minute, before the final Court of Appeal hearing on 1 May, evidence alleging torture was adduced. It was looked at by my hon. Friend the Under- Secretary of State and was available to the Court of Appeal when the appeal was turned down. As for the safety of the Zairean, I was glad to see that, in his judgment, Mr. Justice Brown said :

"However, it is at least now clear that no irreversible damage has resulted from his removal on 1st/2nd May"--

as he has been in touch with his solicitors both from Zaire and Nigeria since then.

I certainly will not withdraw the Asylum Bill. Indeed, such legislation would have helped in a case like that, because the asylum seeker concerned sought asylum at the port of entry. The Bill gives asylum seekers in that position the right--it did not exist when the case was before the court--to appeal to an independent adjudicator.

Sir George Gardiner (Reigate) : Does my right hon. Friend accept that he has considerable sympathy on this side of the House and in the country, especially as there is now some doubt about whether the judge had the power to make the order that he made?


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