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Vera Baird: How is the Scottish Parliament to decide whether there will be a way to allocate legal aid in time for an appeal, if, as the hon. Lady agrees, the time limit for an appeal must itself be very short? Surely the reason why such aid will be ex post facto legal aid is that there is no time beforehand for an independent examination of the merits. She does not have the escape clause that she fancies she has.

Annabelle Ewing: I was talking about the broad policy and the question of whether we in Scotland would wish to go down the road of a conditional, or "no win, no fee", legal aid system. Such policy will be decided not by this place but, quite properly, by the Scottish Parliament. [Interruption.] The hon. Member for Glasgow, Cathcart (Mr. Harris) says from a sedentary position that that is the consequence of devolution, and quite so, but the problem is that some 60-plus Sewel motions have delegated our legislation-making
 
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competence to Westminster. That is an important point, but I shall not go down that route tonight. The Minister will have heard my comments about the number of days, and I hope that the Government will show a little flexibility.

Mr. Marshall-Andrews: I am grateful for the opportunity to make a short and sad contribution to this short and sad debate. It is sad because I had looked forward to the unusual—indeed, unique—experience of offering my unalloyed and unadulterated congratulations to the Government. I had thought this an entirely appropriate moment to do so, not least because I expected the Chamber to be nearly empty. It is also a sad occasion because I have immeasurable respect for my hon. Friend the Minister, who, of course, did not have the burden of carrying this iniquitous Bill through its early stages. It would indeed have been a worthy occasion on which to congratulate him, as it is the first time that I have seen him on the Front Bench in his current role. Unhappily, I am unable to do so, and to explain why that is so, it is necessary to look back at the history of the Bill.

On Second Reading and on Report, we had a magnificent debate on what is an historic matter. Had the Government succeeded, it would have been the first time since the days of the Star Chamber that a public tribunal was relieved of the responsibility of judicial review. The debate had enormous historic undercurrents, and it was characterised by strong speeches in this Chamber and the usual vulgar abuse outside about wet liberalism versus authoritarian government. It was enormous fun because, as most of us realised, the Government were bound to give in; otherwise, they would have provoked the biggest constitutional crisis for 300 years. They were told as much when the Bill got to the House of Lords, and when they gave in, my noble Friend Lord Falconer also gave in with characteristic charm and emollience. Indeed, in doing so he found time to pay a little credit to the Back Benchers in this House who had attempted to assist him, for which we were enormously grateful.

So when I heard what Lord Falconer had to say, I looked forward to coming to this Chamber in order, on an historic note for me, to congratulate the Government. Unhappily, that is not possible because of their amendment (a), which characteristically states:

"leave out '10 working' and insert '5'.

It is, in truth, a miserable, snivelling little amendment that has no valid reason behind it. It is entirely meretricious, and it smacks of petulance. As all who know about the law realise, there will as a result of it virtually always be applications to extend the time limit. The burden on the tribunal and on lawyers will be immensely increased, rather than decreased.

The question of a five-day or 10-day limit is entirely arbitrary. When I asked the Minister, who was doing his best in the circumstances, what the perceived wisdom of the five-day limit was, the answer, I am afraid, was grossly unsatisfactory. He said that it does not give people the chance to shop around. The idea that an asylum seeker who cannot speak English and needs assistance can shop around in 10 working days but not in five is pure myopia, and the Minister knows it. This is a wholly arbitrary and unnecessary qualification. Ten
 
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days is too short a time limit, but one could have lived with it. A limit of five days is simply an attempt on the part of the Government to save a certain amount of face, and I am very sorry that they have chosen to do that.

Notwithstanding what I have said, I will support this measure, but I will not be able to go through the Lobby with that light skip in the step that I hoped to be able to employ. Unhappily, I shall go through with the more familiar leaden feet.

Vera Baird: I am sorry that my hon. and learned Friend the Member for Medway (Mr. Marshall-Andrews) feels unable to let go and to congratulate the Government in the wholehearted way that I know he has been longing to do for many months, whenever possible. This measure is such a lot better than it first was that "congratulations" is the lowest point at which one can pitch one's approach to it. It is better not to be mealy mouthed, although no one could accuse my hon. and learned Friend of that: care, consideration and detailed conversations have helped to clarify this measure, which is now as good as it is going to get. There will be an independent appellate process, which is the most important thing; to be honest, time limits are much more of a minor-key issue. They will be applied where appropriate, via what I am satisfied is a tough merits test.

I am worried about the time limit of five days. To be honest, I cannot see why anyone is arguing about whether it should be five days or 10. There does not seem to be any principle to be found here. Surely 10 days is short enough, so what is the advantage of having five instead? I do not understand why the Government are sticking out for that.

6.30 pm

I understand, although I do not especially care for, the allocation of legal aid ex post facto, but it seems to me that we cannot have one without the other, and if an appeal's time runs out in 10 days, there is no time for an application for legal aid to test the merits in the meantime. That is a funny idea, running in the opposite direction from other aspects of the legal system. The new criminal defence legislation says that criminal legal aid, currently awarded by the courts, will go instead to the Legal Services Commission, which is where the decisions under discussion are currently made. The Government are running contrary to the thread of what I consider a proper policy route.

However, there it is. We cannot really have time for an application for legal aid if we are going to have a very short appeal application time, so everyone must accept that if they want to be sweet about the one, they must be sweet about the other. I am sure that the judiciary will exercise the proper discretion and will understand which cases were worth bringing, even though they were not successful. I do not foresee great problems about that.

Frankly, lawyers such as myself—I should have declared an interest, although I did not do much in the way of asylum work until I was confronted with it as a constituency Member—will have to take the cases that they think in all conscience should be taken and simply get on with them, trusting that they can convince the courts after the event that they were right to do so—
 
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It being one and a quarter hours after the commencement of proceedings, Madam Deputy Speaker proceeded to put the Questions necessary to dispose of the business to be concluded at that hour, pursuant to Order [this day].

Government amendments (a) to (g) to Lords amendment No. 28 agreed to.

Lords amendment No. 28, as amended, agreed to.

Government amendment (a) to Lords amendment No. 62 agreed to.

Lords amendment No. 62, as amended, agreed to.

Lords amendments Nos. 42 to 44 and 46 disagreed to.

Government amendment (a) in lieu of Lords amendment No. 46 agreed to.

Lords amendment No. 61 disagreed to.

Government amendments (a) to (c) in lieu of Lords amendments Nos. 42 to 44 and 61 agreed to.

Lords amendments Nos. 29, 45 and 47 to 60 agreed to.

Lords amendment: No. 15.

Mr. Humfrey Malins (Woking) (Con): I beg to move amendment (a) to the Lords amendment.

Madam Deputy Speaker (Sylvia Heal): With this we may consider amendments (b), (c) and (e) to the Lords amendment.

Mr. Malins: The first three amendments are essentially probing, but I shall seek to divide the House on amendment (e), on prescribing the circumstances that constitute a breach of a requirement to participate in community activities, if the Government are not prepared to accept it.

The new clauses inserted by the Government in another place are broadly welcome, because any reasonable person would support the proposition that people should, where they are able, give something back to the community that has been supporting them. Having offered general support, I shall be a little unkind and say to the Government that I am disappointed and disillusioned by the approach that they have taken in introducing changes so late in the proceedings. There has been no meaningful consultation and not one of these new provisions has ever been debated in this Chamber, in Committee or on Report.

It is worth remembering that we started the Committee stage on 8 January. At that stage, the Bill was about 25 to 28 clauses long, and it has now almost doubled in size to 50. Many hon. Members of all parties—I see the hon. Members for Glasgow, Cathcart (Mr. Harris) and for Walthamstow (Mr. Gerrard) here today—would have welcomed the chance to debate these provisions in Committee.

In the other place, my noble Friend Baroness Anelay referred to a "torrent" of new clauses and policies being made up on the hoof. Today, we have about two and a quarter hours to debate up to seven major new add-ons
 
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to the Bill. It is a pity that we have so little time. Lord Rooker said that the Commons

"will have adequate time—rightly so, because when the Bill goes back it will have a substantial chunk of amendments sent from the Committee here. There has to be proper scrutiny in the other place."—[Official Report, House of Lords, 15 June 2004; Vol. 662, c. 650.]

He was right. There will not be enough time properly to scrutinise the clause, particularly in relation to the provision of accommodation being dependent on work done.

I do not expect the Government to apologise, but I hope that they will be able to give us some reason as to why these major new policies were not in their heads last December, when they could have been put into the Bill for Second Reading; in January this year, when the Bill went into Committee; or at Report stage.

Although we offer a broad welcome to the principle behind the clause, I turn now to my amendments, which are essentially probing. Amendments (a) and (b) would require the Government to consult a wide range of bodies before introducing the provision on work being linked to the right to accommodation. Amendment (b) lists those bodies—they include Citizens Advice and others of some importance. Some are relevant because of their experience in the refugee world—for example, the Immigration Advisory Service and the Refugee Council. Some are particularly relevant to the issue of work in the community—that is why I included the probation service, which runs what are now called community punishment orders and were hitherto called community service orders. Some have useful knowledge about specific work that would benefit a community in which the asylum seeker lives—I refer to the Local Government Association. I do not think that the Government had a prolonged period of consultation with any of those organisations; if they did, I must have missed it. Why not, and will they undertake, even at this late stage, to do so?

Amendment (c) would require the Government to explain exactly how they propose to link accommodation with work. I am not clear what they mean by subsection (b) of the clause, which says that regulations may

"provide for the continuation of the provision of accommodation to be subject to other conditions".

That is extremely vague.

The most important amendment, by which I should like to test the opinion of the House, is amendment (e). The general sense of the clause is that the Government will require some failed asylum seekers to undertake some community work or activity as a condition of keeping their accommodation. What will happen if he fails to do the work, fails to do it properly or does not turn up? In the criminal justice world, criteria would be in place to judge what constitutes, for example, failure on the part of a person who is subject to a community service order. In this case, however, if a Home Office official takes the view that the person is not complying properly with the work that they have been asked to do, he can take their accommodation away. Can that possibly be right? If so, it is a somewhat sorry state of affairs.

Amendment (e) would require the Government to prescribe the circumstances that would constitute a breach of a requirement to participate in community
 
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activities. If they are unable to include that in the Bill, they could provide for the making of regulations. But here we are, at the eleventh hour, with the whole House of Commons potentially present for the debate—I say "potentially", because it is always a pleasure to speak to a packed House—and we still do not know. The amendment would remedy that.

6.45 pm

How many failed asylum seekers will be covered by the provision? As I understand it, they will be those who are here because they cannot reasonably be removed from the country. Can the Minister tell us not only how many he thinks there are, but which countries they have come from? The Government cannot readily or properly remove many of those who fail in their asylum claim. Zimbabwe is a case in point. In the early part of 2003, the Government suspended removals to Zimbabwe. I thank them for doing so because the situation there rendered it unsatisfactory for people to return to that country.

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