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The Deputy Speaker (Viscount Allenby of Megiddo): My Lords, before proceeding to the next amendment, I must correct the voting figures for the Division that took place earlier on Amendment No. 1. The Not-Contents should have been 124 rather than 123.

Baroness Anelay of St Johns moved Amendment No. 3:


"( ) prescribe the circumstances in which failure to comply with any requirement to participate in community activities shall constitute a breach of that requirement;"

The noble Baroness said: My Lords, Amendment No. 3 looks at a very different aspect of the proposals for directed labour and concerns what the Government have done to look at the way in which breaches of the conditions imposed by the Secretary of State will be handled. New Clause 10 gives the Secretary of State the right to make it a condition of a failed asylum seeker receiving accommodation to participate in community activities.

I made it clear in Committee on recommitment, at col. 656 on 15 June, that the Government should explain to the House how they will deal with breaches of any requirement that is imposed as a result of subsection (6). Who will make the decision in the first instance about whether a person has properly performed their directed labour? Will there be guidelines to cover all organisations which take on the management role? Who will monitor the application of those guidelines? Will it be the IND? Who will do that?

I have in mind the debate on 17 June 2004 on the statutory instrument that brought into effect the Criminal Justice Act 2003 (Conditional Cautions: Code of Practice) Order 2004 (Hansard: col. 908). That code prescribes stringent monitoring arrangements. It also
 
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puts the burden of proof on the offender to prove to the police that the condition has been met. That raised in my mind where the burden of proof lies in that. Is that the kind of approach that the Government intend with regard to the imposition of conditions in Clause 10?

Does the failed asylum seeker have to prove that the conditions have been met? Or does the Secretary of State have to prove that they have not been met? Where does the burden of proof lie in this respect? I beg to move.

Lord Avebury: My Lords, I certainly agree with the noble Baroness, Lady Anelay, that we need more information about that. If you take the case that the Minister advanced, that the person would be working locally and he might even be doing some repairs on the accommodation given to him under these conditions, will a building inspector come along and look at the work? Does it have to be carried out properly? Or is it satisfactory that the person simply attends for a number of hours specified in the guidelines, irrespective of the quality of the work that he has done?

I said on the previous amendment that I dread to think what would happen if these failed asylum seekers are let loose on the plumbing or the electrics of the accommodation that they occupy. But supposing that they are, many of them will not be skilled in plumbing or electricity, and the quality of the work may be—to put it mildly—a little variable. Does that matter? If the person has applied himself simply to the task specified for a given number of hours, has he complied with the conditions which are laid down?

None of these questions has been answered. The Minister keeps on telling us that there will be guidelines at some point, but it is not satisfactory for Parliament to adopt a scheme on the blank-cheque assumption that at some point the guidelines will lay down properly exactly how the scheme is supposed to work.

Baroness Carnegy of Lour: My Lords, the noble Lord, Lord Avebury, is absolutely right, as is my noble friend. When the Minister was answering the last amendment, he said—probably addressing his remarks to me—that it was important that the message that the failed asylum seekers took home when they eventually went, was that you do not get something for nothing in this country. Of course, I agree with that. That is a message that needs to go abroad with them and be spread about among their colleagues, and so on, who might be contemplating the same course of action as they have followed.

But there is another message about the justice that they met in this country. It is very important that they go away feeling that they knew what they were supposed to do in this job, they knew what they had to do in order to succeed and they knew in what respect they would fail. So it has to be absolutely clear. That message has to go abroad as well. The two should go together. I am sure that the Minister is nodding; he sees the point of what I am saying. But it means that this
 
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scheme has got to be pretty clear and—to use a Scots expression—"I ha'e ma doots" whether that is possible.

The Countess of Mar: My Lords, the Minister keeps saying that we will see all these facts emerging in secondary legislation, but he must bear in mind that we have no ability to turn back secondary legislation. We might on paper, but that is very rarely done, and particularly if it is an affirmative instrument. So we are being presented with a fait accompli, not knowing what the "fait" is that is to be "accompli".

I am very unhappy about everything that is presented to us in these amendments. They were late, as the noble Baroness, Lady Anelay, has reminded us. The problem has been about for a very long time, as I said to the Minister in Committee. Her Majesty's Government are being unreasonable in asking us to agree something which has no basis, no solid foundations. We cannot do it.

Lord Donaldson of Lymington: My Lords, might I raise what I admit to be a lawyer's point, though I also think it is a point of good governance? You should not have a series of requirements and go on to provide what happens if you ignore them. The requirements themselves should contain their own exceptions. You either require, or you do not. That approach is, I think, a novelty. Certainly it is something which, as a lawyer, I very much regret.

Lord Mayhew of Twysden: My Lords, would the Minister undertake to give a clear answer to the point raised by my noble friend Lady Anelay about the burden of proof and where it lies and what the standard of proof shall be? Whether he or she has accommodation is of great importance to the failed asylum seeker. It is of extreme importance that this House should know what the legislation will provide so far as where the burden of proof lies.

I wonder whether the Minister is satisfied that a matter of that importance should be left to secondary legislation—to the regulations themselves when they are brought forward. I would like him to consider the suggestion that it ought to be on the face of the Bill.

Lord Rooker: My Lords, I agree entirely with the point made by the noble and learned Lord, Lord Mayhew. That is one of the areas that we only glanced at in Committee. I hope therefore that the assurances I am about to give will satisfy noble Lords on that point.

Amendment No. 3 would insert the provision for the Secretary of State to prescribe the circumstances in which failure to comply with the condition to perform community activities would constitute a breach of that requirement. The clause as contained in the Bill already allows the Secretary of State to set out in regulations the circumstances where a failure to comply with a condition of support under Section 4 would lead to termination of that support. So, in some ways, we do not believe that the amendment is necessary, but it is clearly helpful.
 
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I will remind my right honourable friend the Home Secretary—as I have done in the past—that the level and quality of scrutiny of Ministers in this House is far superior to that in the other place. I will not be contradicted by anybody on that, because I have experience of both. But one does need something to scrutinise, and I fully accept that I have not got all the answers here today. What I want to do is set out in broad terms how we envisage the arrangements working although I accept that I have to come back with more precise details later.

In introducing the new clause in Committee, I emphasised how we believe that those in receipt of Section 4 support should give something in return. It follows from that that there should be a sanction if someone fails to comply with a requirement of that support. So, a person failing to comply with a requirement to perform community activities—and I emphasise that they are community activities—or failing to comply with the other conditions under which Section 4 support is provided, would be liable to have that support removed.

It is worth stressing that we have recognised that there will be exemptions from the requirement to undertake community activities. We need to take account of situations where a person is unfit or unable to participate, or situations where they are temporarily unable to do so—where, for example, they are attending an interview to get their travel documentation organised. That is not a five-minute task in these circumstances. So when I refer to a breach for a failure to undertake community activities, I am dealing with those people who are able to participate and, indeed, expected to do so.

We have to be reasonable in operating this system. We do not envisage a situation where support would be terminated immediately as soon as we identify that a person has not taken part in an allocated activity on a particular day. We would naturally want to establish why that person had failed to participate in the community activities and whether there was a good reason for not having done so.

This means contacting the individual and the organisation managing the community activities or accommodation. I am presuming that a record system will be clearly set up and that there would not be any argument about whether the person had turned up to the activity in the first place. The records should be adequate for that. So, if a person has not turned up, we need to find out why.

Where we believe it to be appropriate, the failed asylum seeker might be issued with a warning. It would be quite reasonable not to apply the sanction at the point when it was first thought a breach had occurred. This would remind the individual of the requirement to perform the community activities as a condition of receiving support and the consequences of failing to do so. This is similar to normal, good human relations practice in industry for breaches of contracts of employment and so on.
 
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Failure to participate again after the warning would lead to a termination of support unless there was a reasonable excuse for not having done so. We would need to consider all the circumstances of individual cases. However, I hope that it will not be seen as a matter of a person not turning up and of support being immediately withdrawn. That will not be the situation.

I should remind your Lordships' House—I alluded to this in Committee without giving any detail—that there will be a clear safeguard of a right of appeal to the asylum support adjudicator, who will be able to examine the reasons for the Secretary of State's decision and consider whether it was reasonable in all the circumstances.

It is important to emphasise that a person from whom Section 4 support is withdrawn will be able to reapply provided that he or she accepts the conditions under which the support is provided. So there is a very clear way in which a person can avoid the consequences of termination of the support.

I cannot go into further detail at present. I hope to come back with more information at Third Reading and by the time of the regulations, which I freely accept are not amendable. But there is nothing new in bringing forward a proposal in principle in primary legislation that is to be operated by regulations which, although not amendable, can be subjected to fairly detailed scrutiny.

The safeguard in this legislation is that the Secretary of State cannot act on a whim—he has to act reasonably—and there will be a right of appeal to the asylum support adjudicator against the Secretary of State's decision on the circumstances of the person concerned. I hope that these assurances will be sufficient for today. I hope to come back with further information at later stages of the Bill.


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