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The Lord Bishop of Worcester: One difficulty that I may not be the only person experiencing is that one is tempted to say of nearly every amendment that it goes to the heart of the purpose of the Bill. Therefore, it is
with some effort that one restrains oneself from making a Second Reading speech. I want to support the amendment on that basis.I support most of what the noble Lord, Lord Avebury, has said, but I want to say something about the Bill and what the amendment would do. It seems to me that at the heart of the difficulty that many of us have about these proposals is the fact that they manifest what I can only call "a defect of imagination". I am not of course accusing anyone, least of all the Minister, of that defect.
However, it seems to me that the arguments I have heard this afternoon, let alone the arguments one hears in more public discussion and in the media, suggest that we have lost touch with what it might be like to be in a situation of terror. Therefore it is extremely important to make absolutely clear and exceptional the criminalisation of people who come from situations that are extremely difficult for us to imagine. For example, one hears government spokespeople, and in particular the Minister, saying that we are trying to encourage people to be honest. It is very difficult for us to be fully aware of the fact that that is precisely the expression that torturers use—all they are doing is encouraging people to be honest.
The Government's intentions are, of course, wildly different from those of torturers. But the ethos generated by creating new offences must be one in which the level of fear is increased and in which people are not understood to experience levels of pressure which make it impossible for them precisely to be honest and precisely to assume that they will be treated with the best construction of their motives. I understand that the amendment—and I obviously do not speak for its mover, so I may have made a mistake—sets out the exceptionality, the caution and the clarity with which we need to approach the question of prosecuting anyone who might have been through that experience; and the need for public accountability in relation to that process.
There is the need for clarity because a generalised assumption that people are guilty of a criminal offence can only make the situation even worse for people who are genuine refugees. I suppose that at the heart of the discussion of any of these amendments is whether one thinks the problem is how to avoid sending one person back to a country where he will suffer persecution or whether it is how to avoid admitting perhaps 10 people who are not genuine. I am quite clear that the first is the primary problem that we need to address.
Therefore, I think the amendment has that much to be said for it; it would introduce—no doubt there needs to be further work on the detail—the notion of clarity and exceptionality into the possibility of prosecuting someone who is a genuine refugee.
Baroness Carnegy of Lour: I do not know whether the Minister is going to look at the question of regulations in the context that the amendment has been moved, and to which the right reverend Prelate has spoken, but I think that the right reverend Prelate must accept that one has to have enormous sympathy for the Government of the day. They have to separate
the treatment of people who have arrived in genuine terror—and I have no reason to think that the Government do not accept that people arrive in genuine terror and therefore have to be treated in one way—and the massive so-called "scam", which is being worked by people who want to come to this country illegally. That has nothing to do with terror; they just want to improve their lot. We want them, but we want to know whom we are getting. I think that the right reverend Prelate must accept that there are two quite different problems.I am sure we all agree with what the right reverend Prelate says about the problem—and it is an individual problem—of whether terror arises. There are difficulties in even identifying countries from which a person is bound to arrive—a matter to which we shall come. The question of regulations may or may not help those people of whom the right reverend Prelate has been speaking, but I do think we have to accept the Government's problem. It is an enormous problem. They are struggling to find solutions to it. We must assist them in that. It is a problem about two different categories of people.
Lord Hylton: I agree with virtually everything that the right reverend Prelate the Bishop of Worcester has said on these two amendments. In so doing, I apologise for somewhat prematurely having said in the previous grouping what I wanted to say about Amendment No. 27.
The whole context surely is that asylum applications have fallen by nearly half. That gives everyone a better chance to improve procedures and to make sure that they are fairer in all respects.
Baroness Scotland of Asthal: I thank the noble Baroness, Lady Carnegy, for her understanding. I say to the right reverend Prelate—and I say it with due humility and much gentleness—that these provisions are as far away from the tools of a torturer as one could possibly define. We are trying to introduce a system that is fair and robust and which will enable those for whom we have huge sympathy—those who come to this country to seek refuge and asylum—to be treated with humility, humanity and properly.
Amendments Nos. 12 and 27 seek to regulate the use of Clause 2 and the offences listed in Section 31 of the Immigration and Asylum Act 1999, in particular in cases where Article 31 may be relevant and other cases where vulnerable individuals may be involved. I say straightaway that I agree that those who are investigating offences under Clause 2 will need guidance on how to do so. Immigration officers already have instructions about what actions should be taken if they come across other immigration offences, such as leave gained by deception. We will produce detailed guidelines on the offences in the Bill before it is enacted.
I can assure the noble Lord and the right reverend Prelate the Bishop of Worcester that much of the detail that the noble Lord, Lord Avebury, has tabled in the new schedule will be included in those guidelines; for example, consideration of Article 31, the assessment of reasonable excuse before proceeding with an
investigation or arrest or prosecution and treatment of vulnerable individuals, such as victims of trafficking. I know how keenly the noble Lord, Lord Hylton, and others have cared about those particularly vulnerable people. Although this guidance is necessary, to provide for it in statute makes for an overly cumbersome process. It is not the way we deal with other offences and, frankly, there are no special factors that make statutory guidance appropriate here.Similarly, I agree that training for the use of this offence is necessary. The guidance should go a long way to satisfying that need. We will also be providing seminars and road shows about these offences for immigration officers, as we did for offences brought in by the Nationality, Immigration and Asylum Act 2002. It is not just knowing about these provisions, it is knowing how to operate them fairly. However, statutory provision for the training of immigration officers, police officers, prosecutors, legal representatives and the judiciary in working with children is surely not appropriate for a Bill dealing mainly with asylum. If the police and judges need training on working with children, they need it for all offences, and not just the offences in this Bill. Noble Lords will know the many situations now where we are looking at ways in which we can train professionals together, so that the holistic approach that we wish to have is better understood, better shared, and better delivered.
Other assurances that the schedule seeks to introduce are unnecessary. For example, paragraph 2(e) seeks to ensure that certain offences that the Director of Public Prosecutions may advise immigration officers about will be within the scope of Clause 6. They are already within the scope of this clause, so nothing further is needed. The regulation that no arrest or prosecution shall take place unless a person is reasonably suspected of disposing of, or destroying their document, is similarly unnecessary. The guidance will instruct immigration officers to consider whether a person has a reasonable excuse for having no document. In most cases, a person who does not have a document, for a reason other than destroying or disposing of it, will have a reasonable excuse for that, such as having had the document stolen.
There will also be rare circumstances where, even if a person has destroyed or disposed of their document, they will have a reasonable excuse. Immigration officers will thus need to consider the broader question of whether, in the circumstances, a person has a reasonable excuse for destroying or disposing of their documents, not solely whether they suspect that they have done so. All these issues are important. As for the provision of statistics about the use of the offence in Clause 2, these will be published, along with all statistics about criminal offences that are published, at least yearly by the Home Office. I certainly see no use or need to govern their publication in this Bill.
The noble Lord, Lord Avebury, raised concerns about the CPS, the police, and the Immigration Service. They do have guidelines on how to take account of Section 31 defence in the prosecution of relevant offences. We are not aware of any examples of inappropriate prosecutions where the possible relevance of Section 31 has come up. If the noble Lord has any details on that, we would be happy to hear
them. We have been in discussion with the Immigration Law Practitioners' Association, among others, on the Section 31 guidelines. We will review these as necessary as we develop guidelines on Clause 2. I reassure the Committee that we are not at odds with the mischief that these amendments seek to address. We believe that guidance will be appropriate. That guidance will be forthcoming; we simply do not think that it is necessary to put it in a statutory form.I hope that the noble Lord, Lord Avebury, and the right reverend Prelate the Bishop of Worcester will be reassured that the Government do understand the complexity, the nature and the tragedy of some of these asylum cases and those who suffer from breaches of human rights in other countries. We are determined to give them appropriate succour, and we seek honesty and frankness. We hope that these provisions will enable that, as opposed to frustrating it.
6 p.m.
Lord Avebury: I am most grateful to the noble Baroness, Lady Carnegy, the right reverend Prelate the Bishop of Worcester and the noble Lord, Lord Hylton. I agree with the noble Baroness that this is an enormous problem. I gave some statistics earlier of the number of people arriving undocumented at ports of entry. The difference between us and the Government is in how to tackle that.
I have explained what we think the way forward is that we extend the measures that the Government have already introduced, such as the juxtaposed controls, which are still not fully enforced in relation to the Channel ports of entry, let alone to the various ports of origin from which people are arriving at Heathrow. There is the Eurodac, advance passenger information, language testing—all these measures that the Government have already introduced that we hope will reduce the number of people who could theoretically be liable to prosecution under this clause. That would be a better way forward than introducing the new offence.
That being so, in having to confront it, we must do the best we can to ensure that it is properly handled. I am afraid that it is not satisfactory to take it on trust that all the matters about which anxiety has been expressed will be dealt with in guidance, or that it will appear by the time this Bill reaches the statute book. If it appears at the eleventh hour, when noble Lords no longer have an opportunity to debate it, it is academic whether it appears before or after the Bill comes into force. We would like to have some idea of whether the matters contained in Amendment No. 27 will be fully covered. We have assurances on a few of them, but perhaps this is a matter on which I could have a discussion with the noble Baroness, to see whether she can give me some indication of the extent to which the guidance, when it does appear, will satisfy the anxieties that I and other noble Lords have expressed.
Yes, it is necessary to provide training, and yes, it is necessary to provide guidance. We are informed by the Immigration Law Practitioners' Association, that the guidance on the Section 31 offences to the CPS has
not yet been published, but the noble Baroness has corrected me on that. I will have to go back to ILPA and take further advice from it, because that was said in its brief. I thought that if the Government took that long to produce guidance for the CPS on how it prosecutes under the Section 31 offences of the 1999 Act, it was not safe to rely on the assurances that we have been given by the Government that guidance is about to appear on legislation that is much more recent. Obviously, I shall have to rely on the undertaking given by the noble Baroness, and I beg leave to withdraw the amendment.Amendment, by leave, withdrawn.
Clause 4 [Trafficking people for exploitation]:
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