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Lord Lester of Herne Hill: My Lords, I support the amendment and, like the noble Lord, Lord Campbell, I am a member of the Joint Select Committee on Human Rights, whose 23rd report was published on 22nd October in relation to the Bill. The particular passages dealing with the points made by the noble Lord, Lord Campbell, are set out in the report, which I am sure Ministers and their advisers have read.
The Government's position so far as concerns clarification of the Human Rights Act is that when new clauses are introduced, as they have been with the Bill, the Explanatory Notes originally published with the Bill are not at that stage updated so as to state the Government's position on why they consider the new clauses to be compatible with human rights. There is no obligation on Ministers to do that, although they could if they wished to do so.
The Explanatory Notes that have been provided on these clauses do not reveal the Government's position on the human rights implications—nor, as I say, do they have to do so— but the Lord Chancellor, in answer to questions that I raised, assured the House that Ministers would remain under a duty during the passage of a Bill to be as forthcoming as they could be on why they considered a particular amendment to be compatible with human rights.
I have covered points that will be made later in the debate on other matters to which the Select Committee has drawn attention. I say that—not in relation to this clause, admittedly, but in relation to Clauses 54 and 55—because the Select Committee has drawn attention to our view that the Government have a positive obligation to deal with destitution, otherwise they will risk breaching Section 6 of the Human Rights Act and Articles 3 and 8 of the European Convention on Human Rights, as well as the International Covenant on Economic, Social and Cultural Rights.
In supporting the amendment, I ask the Minister to respond to those points in our report at this stage in order that the House may properly be informed and able to take a position on this amendment and later amendments dealing with clauses in relation to destitution. If not, I would ask that something be done before the amendments are passed. Otherwise, we, as legislators who have an obligation in law making to comply with the international human rights treaties by which the United Kingdom is bound, will be left wholly in the dark. We have given our legal advice in our report, and Professor David Feldman's advice is spelled out very clearly here and elsewhere. As the Explanatory Notes do not clarify this issue, I am sorry to say that the luckless Minister will need to do so in accordance with the undertakings given to the House.
This is not a sensible way of dealing with parliamentary business. It would have been better if the Explanatory Notes had dealt with the convention issues. But I do not press that point because there is no obligation for them to do so.
Lord Bassam of Brighton: My Lords, I accept that certain noble Lords feel some discomfort with what we are proposing and I can understand what lies behind and motivates this group of amendments. The issue of human rights raised by the noble Lord, Lord Lester, is worthy of further reflection, but we need to put the points he has raised in the context of what we are trying to achieve overall with this legislation—and, perhaps, in the context of earlier legislation. I shall work through those points because they are important.
Amendment No. 5 relates to Clause 43, which amends various provisions of the Immigration and Asylum Act 1999. The intention is to ensure consistency with the definitions contained in Part 2 of the Bill. Subsection (6) amends Section 95(3) to (8) of the Immigration and Asylum Act 1999. These provisions allow the Secretary of State to determine who is to be regarded as destitute and therefore eligible to receive support.
As the noble Earl said, Amendment No. 5 would prevent the Secretary of State from specifying in regulations that a person is not to be treated as destitute for the purposes of providing support under Section 95 in specified circumstances. I hope that I can offer some reassurance and suggest to the noble Earl that there is nothing sinister in the paragraph. The provision reflects what is already the case—the noble Earl probably understands this—under Section 95(2) of the 1999 Act and the regulations which support it.
We do not believe that people eligible for support under one set of provisions should be able to benefit from additional support. As I understand it, that would be the net effect if the noble Earl's amendment was agreed to. The kinds of cases we are talking about here are those where an asylum seeker already qualifies for interim support from a local authority, or where a person is eligible for social security benefits. Also excluded are persons who have not made a claim for asylum.
In our view, it is sensible to spell these categories out in secondary legislation so that the position is clarified. The intention is merely to ensure that persons do not qualify for support under two or more different sets of provisions and, equally, where they have not made claims for asylum. I hope that that offers the noble Earl some reassurance.
4.15 p.m.
Lord Lester of Herne Hill: My Lords, can the Minister give an assurance that the Government recognise that they have a positive obligation to remedy the evils of destitution in order to comply with our treaty obligations under the European convention and the economic and social rights covenant?
Lord Bassam of Brighton: My Lords, clearly we must ensure that we are not in breach of Article 3 of the European Convention on Human Rights. But the noble Lord will probably accept that there is quite a high threshold to that. That has been accepted in earlier debates.
Turning to Amendments Nos. 7 and 8, experience has shown that it is necessary to have a more managed asylum process with tighter controls within that process. I believe that noble Lords understand the importance of that. Our proposal is simply part of a package of amendments aimed at ensuring that we achieve a tighter control. Asylum seekers who report as instructed will have absolutely nothing to fear from our proposal to link provision of support to compliance with a requirement to report.
We have already provided additional funding to the Immigration Service to enable it to set up a number of reporting centres so that the process of reporting is easier. As a result, more asylum seekers will be required to report. Regular reporting enables the Immigration and Nationality Directorate to obtain information from the asylum seeker. But equally—and this is the positive side—it gives the asylum seeker regular face-to-face contact with officials who can give advice on the status of the asylum applicant's claim.
Lord Campbell of Alloway: My Lords, the noble Lord, Lord Lester of Herne Hill, asked a perfectly simple, sane question, which was: in organising the new controls, do the Government accept that they must be organised within the remit of the European Convention on Human Rights? Surely the only answer the Government Front Bench can give is yes. If it is no, where are we?
Lord Bassam of Brighton: My Lords, I thought that I had made it plain that that was our view. Yes, of course, we accept that we have to operate within the terms of the conventions.
To return to the points that I was making in regard to Amendments Nos. 7 and 8, failure to report without reasonable cause may be an indication that the person is not complying with the asylum process. Asylum support is provided only while an asylum claim is under consideration. It would be wholly unjustifiable to use public money to support those who are not prepared to comply with all aspects of the asylum process. The noble Earl invites us to set that on one side. We believe that responsibilities come with making an application for asylum.
Earl Russell: My Lords, I explicitly conceded that point before the Minister rose to reply. I merely said that this particular penalty is not appropriate.
Lord Bassam of Brighton: My Lords, at the end of the day, the noble Earl and the Government may well have a disagreement on this point. We believe that it is an essential part of ensuring that we can properly manage the process. As I said at the outset, while I understand the good-natured spirit and intention behind the noble Earl's proposal, we believe that this good management is an essential part of ensuring that we protect the rights of asylum seekers and that we have a system that is fair and reasonable for all who go through the process. We shall possibly have a disagreement about where the firmness of the line should be drawn, but we are quite clear as to where we believe it should be drawn. I invite the noble Earl to withdraw his amendment.
Earl Russell: My Lords, the Minister has not drawn attention to the fact that the obligation under the European Convention on Human Rights covers Article 8, dealing with respect for family life, as well as Article 3, dealing with inhuman and degrading treatment. It is a point to which he might pay attention before the Government find themselves in court.
I know that this provision repeats one in the 1999 Act. If the Minister looks at the debates on that Act in Hansard, he will find that I made the same points then. I congratulate the Minister on his gift for understatement, in saying that there is "some discomfort" about the Bill on these Benches, and, I believe, elsewhere in the House. For a long time, I believed that the worst Bill that I should ever see before this House was Mr Michael Howard's asylum Bill in 1996. I regret to say that in 1999, and now, I have seen two which are in my opinion worse. I never thought to find myself saying that on liberal grounds I should welcome the return to office of Mr Michael Howard.
I appreciate the Minister's point about not being eligible for support under two different sets of provisions. Had he chosen to word the clause in that way, I should not have tabled this amendment and the time of the House would have been saved. But the wording of the clause gives the Government their beloved friend "flexibility". It allows the Secretary of State to declare a person not to be destitute in any circumstances which appear to him appropriate, absolutely without prescription. That is flexibility for the Minister; it is inflexibility for everyone else.
I am not in the least satisfied by the Minister's reply. However, I cannot divide the House every time that I am in a state of total dissatisfaction; otherwise, we should be here all night. Therefore, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 45 [Section 43: supplemental: Scotland and Northern Ireland]:
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