Asylum and Immigration (Treatment of Claimants, etc.) Bill

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Mr. Heath: I want to be absolutely sure that the category of exempt advisers does not include elected representatives and their staff.

Beverley Hughes: I can safely assure the hon. Gentleman that that is the case, although I will check it. I hope that, with that clarification, hon. Members will support the amendment.

Amendment agreed to.

Clause 16, as amended, ordered to stand part of the Bill.

Clause 17

Offence of advertising services

Beverley Hughes: I beg to move amendment No. 149, in

    clause 17, page 19, line 14, at end insert—

    '( ) A complaint charging the commission of an offence under this section may in Northern Ireland be heard and determined by a magistrates' court if—

    (a) it is made within the period of six months beginning with the date (or first date) on which the offence is alleged to have been committed, or

    (b) it is made—

    (i) within the period of two years beginning with that date, and

    (ii) within the period of six months beginning with a date certified by the Immigration Services Commissioner as the date on which the commission of the offence came to his notice.'' '.

This is similar to amendment No. 147, in that it is technical, and ensures that, as is the case in England and Wales, proceedings in Northern Ireland relating to an offence under the clause can be heard up to two years after the commission of the offence. That will be possible provided that it is within six months of the date certified by the commissioner as the date when the commission of the offence first came to his notice. Similar provisions will need to be made for Scotland, and that will be part of our discussions with Scottish colleagues. An amendment may be required on Report

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to cover the Scottish situation. However, the amendment relating to Northern Ireland is straightforward.

Amendment agreed to.

Question proposed, That the clause, as amended, stand part of the Bill.

3.45 pm

Mr. Heath: I shall be brief because I entirely support the clause. Will the Minister clarify where the offence is committed? That is crucial to understanding the prosecution of the offence. I understand that the clause affects those who purport to offer advice services in the United Kingdom. However, is the offence committed at the point of the advertisement being made? If the advertisement is made and arranged in another country, has an offence been committed? That is pertinent because many people will advertise not in the UK but in communities from which they hope to gain business, and which fall under another jurisdiction. We must phrase the clause so that it covers UK advisers seeking to advertise their services in such communities. Causing the advertisement to be made should be the offence, regardless of whether it is arranged in another country.

Mr. Harris: Is the hon. Gentleman also concerned about the possibility of advertisements being posted on the internet, perhaps using a server that is outside the jurisdiction of the UK?

Mr. Heath: I am grateful to the hon. Gentleman and I intended to raise that point. I believe that, for the purposes of the law, if someone puts something on the internet, it counts as publishing within UK jurisdiction. If someone has taken no action to arrange an advertisement in this country, but their cousin in Bangladesh takes out an advertisement purporting to offer advice services, I am not clear whether an offence has been committed under the Bill. I think that that should be an offence, and I hope that it is possible to phrase the clause appropriately.

Beverley Hughes: Since the Bill was drafted, the immigration services commissioner has considered the issue of advertisements that appear only in another country or on the internet. As far as I recall, the clause only covers advertisements in the UK. The commissioner is examining that because primary legislation would be required for that to be extended. The commissioner has already brought the hon. Gentleman's point to our attention, and we are examining it.

Question put and agreed to.

Clause 17, as amended, ordered to stand part of the Bill.

Clause 18 ordered to stand part of the Bill.

Clause 19

Professional bodies

Annabelle Ewing: I beg to move amendment No. 144, in

    clause 19, page 19, line 27, after 'information', insert

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    'in relation to the provision of immigration advice or immigration services by a person regulated by a designated professional body.'.

The Chairman: With this it will be convenient to discuss the following amendments:

No. 145, in

    clause 19, page 19, line 36, after 'information', insert

    'in relation to the provision of immigration advice or immigration services by a person regulated by a designated professional body.'.

No. 146, in

    clause 19, page 19, line 40, after 'information', insert

    'in relation to the provision of immigration advice or immigration services by a person regulated by a designated professional body.'.

Annabelle Ewing: These three amendments are technical amendments that seek to clarify that the information requested by the Office of the Immigration Services Commissioner must relate solely to information

    ''in relation to the provision of immigration advice or immigration services by a person regulated by a designated professional body.''

I thought that that would have been the Government's intention. It is also in the interests of legal certainty to include that definition of the scope of the provision. The Minister referred to the fact that the commissioner's powers are set by statute, but it is not unheard of for a statutory body to act ultra vires. I urge her to consider the amendments.

Subsection (4) introduces the statutory duty of compliance by all designated professional bodies to a request for information by the Office of the Immigration Services Commissioner. I understand that the possible motivation for the new provision may be the difficulties that have arisen with information flows, in particular between the OISC and the Law Society of England and Wales. The OISC's annual report for 2002–03 refers to such problems. Interestingly, it states on page 48 that some 94 per cent. of the complaints that were referred during that period to designated professional bodies by the OISC, were referred to the Law Society of England and Wales. If those problems are the prime motivation behind the new provision, is it appropriate to encompass all designated professional bodies in subsection (4) merely to deal with the problems of one body—the Law Society of England and Wales?

The Minister will know that the Law Society of Scotland concluded a memorandum of understanding with the OISC on 3 October 2003. As far as I am aware, that arrangement has worked satisfactorily to date. The Law Society of Scotland is an important body in Scotland, so will the Minister consider its example? When designated professional bodies are voluntarily working well with the OISC, is it necessary to impose a blanket statutory duty of compliance? Would it not be better to separate out the bodies with which the office has particular problems and find appropriate language to deal with them? I look forward to the Minister's reply.

Beverley Hughes: As the hon. Lady said, clause 19 requires the designated professional bodies listed in section 86(1) of the Immigration and Asylum Act 1999 to comply with a request by the commissioner for the

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provision of information, which may be general or specific to a particular case of matter.

The amendment would provide that the only information that a designated professional body must provide would be that relating to the provision of immigration advice by persons regulated by the body. The amendment is not framed to remove references to general information, but its effect would be that the commissioner's ability to request general information would be severely undermined.

The requirement has not been informed specifically by a problem with flows of information from any quarter. It exists primarily because an important part of the commissioner's statutory duty in his annual report and report to the Secretary of State is to detail the designated professional bodies' effectiveness in regulating their members in the provision of immigration advice and services. Clause 19 reflects that duty—hence the references to general information. In order to fulfil that duty, it is not only advice in relation to specific cases that is important.

For example, the commissioner would need statistics on the number of complaints sent directly to designated professional bodies, and how many were upheld. Clause 19 will ensure that the commissioner receives the information that he requests, either general or specific, that is necessary for him to fulfil his statutory duty. The amendment would compromise that. It is not necessary. The type of information that he may reasonably request is limited to what is necessary for him to fulfil his statutory duties relating to immigration advice. Any request unrelated to those responsibilities would be unreasonable and subject to judicial review.

Not only are the amendments unnecessary but they would severely circumscribe the commissioner's ability to fulfil his statutory duties, so I ask the hon. Lady not to press them.

Annabelle Ewing: I was listening closely to the Minister. I do not accept the premise that the amendments would severely curtail the commissioner's statutory duties, but I have heard what she said. I am grateful that we have heard a greater explanation of the scope of the commissioner's proposed powers. I note that the Minister did not respond—quite properly—to the extra comments that I made, but I hope that she will reflect on them. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 19 ordered to stand part of the Bill.

Clause 20

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