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Lord McIntosh of Haringey: My Lords, the Minister sought to respond to the criticisms of the government amendments by a critique of our amendments which I consider to be almost entirely misconceived.

She complains that our amendments have a mixture of definitions on the face of the Bill, as indeed they do, in the amendments to government amendments and above all, in Amendment No. 99 as regards secondary legislation. The purpose of our amendments is to remove the necessity for the secondary legislation and to make it absolutely clear on the face of the Bill who is and who is not intended to be covered by the Bill. In our view, the Bill as drafted, even after the government amendments, would leave a fatal insecurity for those who have leave to enter or remain in the United Kingdom who are not intended to be covered by the Bill and yet are covered by the definition in Clause 12. It is for nobody's benefit that those people should be included in the general and then excluded in the particular.

The Minister claims that the Government's intentions are perfectly clear because of the guidelines and the draft notes of interpretation. That is exactly what we are complaining about; that the Bill relies on guidelines, relies on ministerial documents rather than on the force of law.

It is quite unsatisfactory that, despite the concern that was expressed at an earlier stage and repeated now, the Government should still persist in this roundabout way of dealing with the problem.

The Minister says that some of the categories in our substantive Amendment No. 99 are outside the scope of the Bill. Indeed they are, and the reason we put them there is that we wanted to be clear that Clauses 9 and 10 will not apply to British citizens or nationals of a state which is party to the European Economic Area Agreement. That is clear in our amendment, but it is not clear in the Bill as drafted, even with the Government's amendments.

I do not believe that the judgment in the Court of Appeal on Friday raised this matter. Therefore, it is not a matter to which we shall return on re-commitment. However, I can assure the Minister that it is certainly a

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matter to which we shall have to return on Third Reading. In the meantime, I beg leave to withdraw my amendment.

Amendment No. 76A, as an amendment to Amendment No. 76, by leave, withdrawn.

On Question, Amendment No. 76 agreed to.

[Amendment No. 77 had been withdrawn from the Marshalled List.]

Lord Dubs moved Amendment No. 78:

Page 7, line 28, leave out subsection (2).

The noble Lord said: My Lords, in moving the above amendment I shall, with the leave of the House, speak also to Amendments Nos. 86, 87, 88 and 89. The amendment does not deal with entitlement to permanent accommodation as was the case with the previous amendment; it deals with providing emergency accommodation for people who become homeless. I fully appreciate that we discussed the amendment in some detail in Committee, but there are two or three specific aspects of this part of the Bill which were not dealt with at that stage. Therefore, I shall not be repeating old arguments if I raise them at this point in relation to Amendment No. 78. After all, it raises a very important point of principle.

It is already the case that illegal entrants and over-stayers are excluded from the provision of homelessness accommodation by case law and by government guidance. Therefore, we are talking about people who are legally and properly in this country. My concern is about changes of circumstance. In Committee the Minister said--and, indeed, the noble Lord said it repeatedly in relation to similar matters--that people arrive in this country and give an undertaking that they will not have recourse to public funds. It is on that basis that they are admitted.

However, even with the best will in the world, a change of circumstances may take place. I should like to give the House examples of the two specific changes of circumstance which are relevant to my argument. First, there may be people in this country who have a family tragedy, become severely ill or have a disabling accident; or, indeed, they may be the victims of fire. All those situations may place them in serious difficulties and lead them to become homeless, even though, had those unusual changes of circumstances not happened, they would have had no need for recourse to public funds or to request homelessness accommodation from a local authority. By their very nature such circumstances cannot be predicted or planned for: they could happen to anyone.

The second change of circumstance is one which I asked about in Committee, although I do not believe the Minister dealt with it adequately. Let us take, for example, the case of an asylum seeker who, quite properly in the Government's mind, applies for asylum at Heathrow Airport or at Dover on entering the country. He applies for asylum, is then turned down by the Home Office and wishes to appeal against the decision, pending which he has been in homelessness accommodation: what is to happen to him from the date

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on which the Home Office turns down his claim for asylum until the time when the appeal is heard? Will the local authority say, "Well, of course we quite properly gave you and your family homelessness accommodation, but, because of the legislation, you are no longer entitled to such accommodation because the Home Office has turned down your claim for asylum. However, when you get to appeal, you may get full refugee status in which case you will be entitled to the accommodation again"? That process may take six months or a year. In the meantime, what is to happen? Will a local authority throw such an individual out because the legislation says so? Alternatively, is there some way in which we can soften the blow for such people?

The situation may depend upon the regulations made. It is possible, I suppose--perhaps the Minister will say so--that the regulations would not debar from homelessness accommodation individuals who are faced either with unexpected circumstances like a family tragedy, disabling illness or a fire, or those asylum seekers who are turned down by the Home Office and are awaiting an appeal. If the Minister says the regulations will allow for that, I shall be happy. I wonder whether he could let us know.

Finally, I have many points of unease arising from the Court of Appeal decision in relation to the Minister's powers under this clause. I wonder whether, given the Court of Appeal decision, it is not a sweeping matter for the Secretary of State to be able to make regulations which could have a dramatic effect on the eligibility for homelessness accommodation, without at this stage our knowing fully who those people are to be and whether it is proper for the Government at a subsequent date to determine eligibility when at the present point in time we do not know what decisions the Government will make. We have some sense of that as the Minister has given us some inkling, but we do not have a full sense of it. Is it not running the risk that in turn the High Court and the Court of Appeal may again say that these powers are too wide? I simply utter that as a word of caution.

Of course, I understand that in many Bills the Government seek power by regulation to make further changes, but it seems to me, in the light of the Court of Appeal decision, that it depends how sweeping those changes are. I wonder whether we are not getting rather close to the likelihood that the High Court might take the same line as the Court of Appeal did last Thursday. I beg to move.

10.45 p.m.

The Deputy Speaker: My Lords, if this amendment is agreed to, I shall be unable to call Amendments Nos. 79 or 79A.

Lord Hylton: My Lords, at the previous stage of the Bill I think I referred to people being cast into some kind of housing limbo. That is a serious state of affairs, all the more so, given the reasons explained by the noble Earl, Lord Russell, as to why many kinds of rented

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accommodation are simply not available to the kind of people we are considering. This amendment calls for a sympathetic reply from the Government.

Earl Russell: I trust that before we go on the noble Lord, Lord Dubs, will not misinterpret me if I say a little about the Court of Appeal decision. The Court of Appeal's decision argued that the Minister could not, by regulations, reverse matters in primary legislation. So the narrow ground of the Court of Appeal decision could not apply to something in primary legislation. But the wider issues apply. The reason why the Court of Appeal reached this judgment also applies to this cause. The Court of Appeal argued that these measures between them reduced asylum seekers to a state of destitution such that no civilized country could tolerate, and that this rendered the right to seek for asylum--as it put it--nugatory. That applies to this clause, but the power to strike down does not. The courts have not struck down a provision of an Act of Parliament in this country since 1610. Personally I am not in a hurry to see it happen again. But in order to ensure that it never does we need restraint not only from the judiciary but also from the executive. But if we should have a hearing in any international tribunal that would be quite another matter because it is not bound to treat our Acts of Parliament as sacrosanct because before it we are simply another litigant to be treated just like anyone else. It is before an international tribunal that the points made by the noble Lord, Lord Dubs, will carry a great deal of weight. If I were the Home Office, I should be very anxious about them and would take legal advice in considerable quantities.

I also wonder what the clause is doing in the Bill. I shall have to ask the Minister's forgiveness for repeating several exchanges we had in the course of the Housing Bill last week. In doing so, I shall explain at least one reason why the provisions are unnecessary. They are to last only until repealed by another Act of Parliament which, as a Bill, is near to completing its Committee stage in your Lordships' House. With the delays resulting from this attempt at amendment, the return to another place and, doubtless, heated exchanges there, there is a real possibility that the Housing Bill may leapfrog this Bill. I wonder why we need it. The answer, I think, is for the sake of the local authorities, because the denial of benefit and the denial of homelessness accommodation has put a heavy burden on local authority social service departments.

The purpose of Clause 9 was to ease the burden of providing accommodation on local authority housing departments created by the withdrawal of benefits. I have here a letter from the director of housing and social services of the London Borough of Sutton. It appears that attempts to provide help for local authorities are not having the desired effect. So the object for which Clause 9 was put in the Bill is also not achieving its desired effect. The formula was support with 80 per cent. of costs above a certain threshold. The House may recall my asking the noble Baroness, Lady Cumberlege, on 4th March what that certain threshold was. She did not know. The London Borough of Sutton now knows. The threshold is to be 5 per cent. of the total social services expenditure.

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At Sutton the standard spending assessment for children's personal social services is £5.222 millions. That means the authority would have to spend 5 per cent. above that allocation--£261,000--before it would be eligible to claim any grant support. That is an onerous requirement.

It has also been made clear to that authority that any support it gives to housing children will not be allowed to extend to giving support to parents or other adult members of the family. That means that the authority must take children into care which is more inhumane and a great deal more expensive. The Minister keeps telling me about the interests of the taxpayer. I am a taxpayer and I regard that provision as a gross waste of my money. I very much resent the Government undertaking it, both as a citizen and as one who thinks my money is being profligately spent in defence of an abstract principle.

The Government also indicated to the London Borough of Sutton that grant support will not be available to asylum seeking families who subsequently break up. I cannot understand the justice of that provision. They are still people; they are still asylum seekers; and they are still in need. Sadly, it is true that such gross stress frequently tears families apart. If it is to be like the benefit regulations, it is not even to apply to women who leave their partners because of domestic violence, even of the most severe kind. That is a provision wanting equally in common sense and humanity. I see no point in it. The reason for Clause 9 being in the Bill has turned out to be a damp squib.

I wish to draw attention to Clause 9(2)(b), which has caused me intense surprise. It states that any asylum seeker, or whoever else the Secretary of State specifies,

    "shall be disregarded in determining... whether another person ... is homeless or is threatened with homelessness; or ... has a priority need for accommodation".

If noble Lords are not familiar with the law passed at the instigation of my late noble friend Lord Ross of Newport, the significance of that provision may be missed. Married couples--indeed couples--are a priority category and receive help where single people do not. So any British subject who is unwise enough to marry an asylum seeker thereby renders himself, as well as his spouse, ineligible for help under the homelessness legislation. In fact, disentitlement is infectious.

We are frequently told that this Government are the champions of marriage. I believe in it, too. I do not normally go about shouting about it. I do not think the state is the best instrument to preserve it; I believe that couples are. But this sort of wanton tearing apart of a family moves me to very great anger. We shall return to the subject.

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