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Lord Rooker moved Amendment No. 39:
The noble Lord said: My Lords, Clause 38—
The Countess of Mar: My Lords, may I interrupt the noble Lord for a minute? It is now five past ten. We had a very late night last night. Although I am not going to move the adjournment of the House, I should be grateful if noble Lords on the Front Bench would convey to the Chief Whip that the organisation of business should be such that there is an understanding that some matters take a lot longer to consider than others and that time should be allowed for them. I ask noble Lords to give me confirmation that they will do so.
Lord Rooker: Yes, my Lords, I will do that and I shall certainly speed up. There are about four items left and it would be a waste of time to have to come back on another day to deal with them, bearing in mind the time in the parliamentary year and the nature of the Bill. All that I have to do now is move three government amendments, all of which are concessions, so I do not need to spend much time on that.
The amendment ensures that in Scotland the matter and powers affected are solely the reserve of sheriffs. I think that will meet the points that have been made in Scotland. I do not need to read out the speech that I have. I beg to move.
Baroness Carnegy of Lour: My Lords, I am extremely grateful to the Minister. It has been rather hard work to persuade the Home Office that there was a mistake in the Bill in this respect. There was never any remote chance that a JP should be dealing with search warrants in this way. I should like to record that we are very grateful for the change.
Lord Avebury: My Lords, the amendment ensures that in Scotland a sheriff only and not a justice of the peace will be entitled to grant the search warrant referred to in the clause. That was originally suggested by my noble friend Lord McNally in Amendment No. 36JA, which he moved on 27 April, as the noble Baroness will recall.
Inexplicably, the noble Baroness who replied to that amendment was wrongly advised by the Scotland Office and the Office of the Advocate General that
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provisions limiting the issue of such warrants to JPs occur only in legislation dealing with terrorism or firearms offences.
The Law Society of Scotland has cited three instances which go beyond those offences. Under Section 289 of the Proceeds of Crime Act 2002, the approval of the judicial officer has to be obtained for searches. Section 290 defines the judicial officer as a justice of the peace in England and Wales but the sheriff in Scotland. Under Section 17 of the Crime (International Co-operation) Act 2003, warrants for searches may be granted by a justice of the peace in respect of England, Wales and Northern Ireland, but in the same circumstances, warrants under Section 18 in respect of Scotland may be granted by a sheriff. The third example was the Extradition Act 2003, where, under Section 156, search and seizure warrants may be granted by a justice of the peace for England and Wales but in Scotland only by the sheriff.
It is not clear whether there is any recent precedent for powers of this kind being conferred on justices of the peace in Scotland. Section 8 of the Bail, Judicial Appointments, etc. (Scotland) Act 2000 defines two classes of justice in Scotland, and this may be the reason for the confusion. There are full justices and signing justices. The function of issuing warrants relating to the investigation of serious offences, including those related to asylum claims, should be undertaken only by the former. But there could be difficulties in making sure that only a JP skilled in such matters was approached if the class of justice was not specified, and that would subvert the intention of Parliament.
The Government really should undertake more and better consultation with authorities in Scotland, including the Law Society of Scotland, with a view to agreeing not only how this matter should be dealt with under the Bill but how future instances in legislation should make it more certain that the correct person be appointed as judicial officer.
On Question, amendment agreed to.
Lord Rooker moved Amendment No. 40:
"( ) An instrument may not be made in reliance on this section unless the Secretary of State has consulted with such persons as appear to him to be appropriate.
( ) An instrument may not be made in reliance on this section unless a draft has been laid before and approved by resolution of each House of Parliament (and any provision making the instrument subject to annulment in pursuance of a resolution of either House of Parliament shall not apply)."
The noble Lord said: My Lords, I can be quite brief in speaking to the amendment because I understand that it has been very well trailed.
As your Lordships are aware, Clause 42 provides that the Secretary of State may levy a fee for certain specified non-asylum immigration applications at a level which exceeds the administrative cost of processing those applications, and which reflects the benefits that the Secretary of State thinks are likely to accrue to a successful applicant.
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We have had a number of useful and wide-ranging debates about the operation of this power and the safeguards in place. In response to a recommendation from the Delegated Powers and Regulatory Reform Committee and to points raised by your Lordships in previous debates, we indicated at Report that we would be bringing back amendments to strengthen these safeguards.
In short, the amendment provides, first, that prior to the introduction of a fee under this power, the Secretary of State shall consult appropriate persons. Secondly, an order made under this power shall be subject to the affirmative resolution procedure, requiring the approval of both Houses of Parliament.
For the avoidance of doubt, I will explain, if I may, a little about what consultation we have in mind and whom we envisage appropriate persons to be. I shall not use all my notes.
Prior to the laying of the order to levy fees, we will undertake all possible consultation with appropriate bodies. For example, where the fee is payable by employers, as in the case of work permits, we would expect to consult with a large sample of those organisations on the UK work permit database, members of the UK work permit user panel and sector panels, as well as representative organisations including the Recruitment and Employment Confederation, the CBI, the Trades Union Congress and its Scottish counterparts, the British Chamber of Commerce, the Forum for Private Business, the Institute of Directors, the British Hoteliers Association, the Restaurants Association and the Federation of Small Businesses and others, to name but a few.
Where the fee is payable by individuals, we intend to consult with a wide range of representative bodies and organisations. These include, but are by no means limited to, the Immigration Law Practitioners' Association, the Law Society, the National Association of Citizens Advice Bureaux, the Immigration Advisory Service, the Joint Council for the Welfare of Immigrants, the Refugee Council, Justice, the Commission for Racial Equality, the International Bar Association, London Refugee Voice, the Association of Regulated Immigration Advisers and the Audit Commission. There will be a whole range of other bodies that will be consulted. I have listed some of those that have been consulted in relation to the education colleges. A fairly substantial consultation operation will be launched. In due course, details of the fees and how they will apply will come back to your Lordships' House because final approval will have to be given here. I beg to move.
Baroness Anelay of St Johns: My Lords, with the leave of the House, I shall speak to my Amendments Nos. 41 and 42, which are grouped with the Government's Amendment No. 40. I begin by welcoming government Amendment No. 40, which was a result of amendments that I had pressed earlier when the noble Lord, Lord Bassam of Brighton, was responding to them. He gave the commitment that is now being fulfilled.
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I was particularly grateful to the Minister for taking the care to give some examples of those bodies that can expect to be consulted as a result of the amendment. I fully accept that he was giving the House an illustrative list and not a definitive one, but it was helpful to get a flavour of the bodies concerned.
My two amendments seek further information from the Minister in two different ways. Amendment No. 41 would ask the Minister to tell the House what progress the Government have made on this matter since Report on 18 May, when I first brought the amendment before the House. A problem has been identified to me by the Refugee Children's Consortium: unaccompanied minors who are refused recognition as refugees, but who are given leave to remain in the UK, are now being charged under Section 5 of the Asylum Act 1999. They would thus face increased charges under Clause 42.
However, the very fact that they are charged at all causes a problem. Have the Government found a way of resolving it? Are they now in a position to give a satisfactory undertaking to vary the regulations to give effect to the intent which underlies my amendment; that is, to give an indication of when that may happen?
Like the Minister, I am not going to use my full note—I hope that the Refugee Children's Consortium will forgive me for that—but the nub of my question is whether the Minister is able to give an undertaking.
I turn to Amendment No. 42, which returns to a matter that has been previously rehearsed, but on which I have yet to receive a convincing reply from the Government. The amendment would put into the Bill the power to correct errors in the charging of fees. I am asking the Government merely to keep to a commitment that was given to this House by the now Lord Chancellor when was at the Home Office. He said:
"We shall ensure that when fee regulations are made, appropriate provision is made to deal with errors which may occur".—[Official Report, 12/7/99; col. 49.]
So far, the Government have sought to reject the amendment on the basis that they can already make ex gratia payments if they wish. The difficulty has been that colleges are not persuaded that that brings sufficient certainty and equity into the process and I agree with them.
One example of an error is what happened on the admission of a student, who had her mother with her as a visitor to help to find somewhere to live. The student stamp was put in the mother's passport and the visitor's stamp was put in the student's passport. That caused all manner of problems. Too many students still receive the wrong leave for no apparent reason.
My amendment would not direct the Secretary of State to use his discretion in particular way; it is intended to be helpful. When I consulted the Association of Colleges and UKCOSA between 18 May and now, they were very much of the view that if the Government were unwilling to keep to the commitments that were so clearly given by the noble and learned Lord, Lord Falconer of Thoroton, they
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would not be at all disappointed if I were to press the matter to a Division if I did not receive a satisfactory answer from the Government.
I have been talking to the Bill team between then and now as well as to the colleges. I pointed out that I hoped that we might get at least a little further information from the Government as to the robustness and the fairness of their policy. I have also pointed out to the colleges that, as the noble Countess said, given their timetabling, the Government were likely to come round at an exceedingly late hour, when there might be too thin a House, properly to reflecting the views of the education world. I think that that gives a big enough hint.
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