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Lord Brooke of Sutton Mandeville: It is a coincidence that I am in the Committee while also being a member of the Delegated Powers and Regulatory Reform Committee. However, it would be churlish of me, as I am in the room, not to thank the Minister for the Government's efficiency and speed in responding to our recommendation.
Baroness Ashton of Upholland: It is my pleasure. As the Committee knows, my view is that one should always accept what the Delegated Powers and Regulatory Reform Committee tells one, or at least have that conversation in great detail. Where we have done that, we like to move the relevant amendments as quickly as possible, for the reasons that the noble Baroness, Lady Anelay, rightly gave.
I was not sure whether the noble Lord, Lord Avebury, was referring to all legislation across government. I was delighted that I had spotted the relevant provision in the Bill. I was the Minister who took the Equality Bill through the Lords and therefore I am much more alive to these questions. However, the noble Lord makes a very valid point. On issues as vital as dealing with racial or other discrimination, it is important to recognise that a new commission will be in place by 2009. I will see whether there is anything I can do to ensure that the matter has been picked up by the relevant Ministers in the DTI, who have overall responsibility for it, to ensure that colleagues and parliamentary counsel in particular are alive to it.
The noble Lord, Lord Dholakia, rightly indicated that interesting debates are taking place at the moment to ensure that we take forward the work of the Commission for Racial Equality as effectively as we might. A number of Ministers have engaged in conversation with groups to ensure that we address their concerns through the new commission. For my part, I think that bringing together the commissions is an important move, but we must retain our commitment to discrimination and equality issues right across the spectrum and ensure that organisations that have worked incredibly hard over the years in their respective fields do not feel that their work will be in any way undermined. It is important in this and all legislation that we look to the new commission to consider its own role in identifying areas of work it might undertake, which would help us in the context of this amendment to ensure that these issues are addressed effectively by employers, that the Government are working well with it, and that it will help us ensure that that is the case. I fully take on board what the noble Lord, Lord Dholakia, has said.
On Question, amendment agreed to.
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Baroness Ashton of Upholland moved Amendment No. 49:
"(2) An order under section 15(2) may not be made unless a draft has been laid before and approved by resolution of each House of Parliament.
(3) Any other order"
On Question, amendment agreed to.
Clause 20, as amended, agreed to.
Clause 23 [Discrimination: code of practice]:
Baroness Ashton of Upholland moved Amendments Nos. 50 and 51:
"(i) the Commission for Equality and Human Rights,"
Page 12, line 16, at end insert—
"(6) Until the dissolution of the Commission for Racial Equality, the reference in subsection (2)(a)(i) to the Commission for Equality and Human Rights shall be treated as a reference to the Commission for Racial Equality."
On Question, amendments agreed to.
Clause 23, as amended, agreed to.
Clause 27 [Documents produced or found]:
3.45 pm
Lord Avebury moved Amendment No. 51A:
Page 13, line 11, at beginning insert "where a person has been given leave to enter the United Kingdom,"
The noble Lord said: I should like also to discuss Amendments Nos. 52, 58A and 68B. I hope that the Committee will agree that, as a result of dialogue on the grouping, we have made some improvements. We have assisted the Government in trying to shorten discussions by ensuring that amendments dealing with similar issues are taken together. Although Amendments Nos. 51A and 52 concern the powers of an immigration officer to hang on to a person's documents, they refer to paragraph 2 of the existing Schedule 2(4), which we seek to consolidate in Amendments Nos. 68A and 68B. That paragraph says what documents have to be produced or declared. Paragraph 2A allows the officer to retain the passport or other document produced for verification of the person's identity and citizenship until the person is granted leave to enter or is about to depart following refusal of leave to enter. Paragraph 3 confers powers of search on the immigration officer.
The new paragraph 4 re-enacts the power to retain the passport or other document, as in paragraph 2A but adds an otiose new sub-paragraph, saying that it can only be retained for seven days for the purpose of examining it. Logically "for any purpose" must include "for the purpose of examining it". New sub-paragraph (b) should have started, if that is what it means, "for any other purpose" rather than "for any purpose", which must include the purpose of examining the document.
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New sub-paragraph (c) allows the officer to retain the passport or other document after the person concerned has been given leave to enter, or after he is about to depart having been refused leave, where the document is required in connection with an appeal under the Immigration Acts or in respect of an offence. If the person has been given leave to enter, we cannot see any reason why his documents should be withheld from him. There is no decision against which he himself needs to appeal, and if the documents were required for proceedings against some other person, whether under the Immigration Acts or in criminal courts, they ought to be obtained by the courts in the normal way.
If the immigration officer has reasonable grounds for believing that the passport or other documents produced or found do not belong to the person being examined, he should have the power to carry out any of the tests mentioned in new sub-paragraph (5), but only for that purpose. Our new draft imposes these conditions. We also consider that where there is any doubt about the documents, the officer will already have decided to retain them under sub-paragraph (2)(b) and therefore it is enough to refer to this provision rather than to the powers in the earlier subsections. In any case, paragraph 2A is being repealed, so why is there still reference to it in the Government's wording?
On the face of it, Clause 27 allows the immigration officer to retain a passport or other document beyond the point of a person's removal. Surely, this is reasonable only when it is established that the documents were forged or improperly obtained, and that should be made clear in the Bill. This was raised in Standing Committee E and the Minister, Andy Burnham, gave no satisfactory reply. I do not think that I need repeat his words because your Lordships will have been able to read them.
Clause 27 is yet another example of the inconvenience caused to legislators, practitioners, their clients, IND staff and the public by the failure to consolidate. It amends Schedule 2 to the Immigration Act 1971, which has been extensively cobbled and patched repeatedly over the past 35 years, so it would be impossible for anybody to understand it if it were not for the indispensable Immigration Law Handbook by Margaret Phelan and James Gillespie, a work not readily available to, for instance, the passenger stopped at the airport. To show that the task is not as monumental as governments pretend when explaining why more consolidation is not attempted, we have done part of the job with Schedule 2, though without assuming that either Clause 27 or our amendments to it will have been passed by your Lordships in this Grand Committee. It would be simple to make the small adjustments that would be necessary either way on Report if Amendments Nos. 68A and 69A were acceptable in principle. Amendment No. 68A would repeal Schedule 2 to the 1971 Act and Amendment No. 69A would insert a new schedule into this Bill so that people would need to look in only one place for the administrative provisions concerning control on entry.
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As when we tried a similar exercise during the proceedings on the NIA Bill in 2002, we acknowledge that in order to complete the task it would be necessary to amend the references made to Schedule 2 in other legislation passed since 1971, but we do not accept that it is a difficult or insuperable task. If the Home Office cannot be bothered, I am sure that Margaret Phelan could be persuaded to help for a suitable fee. The real problem here is that there is a lack of political will to undertake this task. The Minister who replied to the amendment tabled in 2002, the noble Lord, Lord Bassam, dismissed it in 16 sentences, saying that it was practically impossible to consolidate the Acts relating to immigration and asylum until the whole reform package had been put together. He went on to say that the Government would consult the Law Commission in due course, which he had the grace to acknowledge was as long as a piece of string. Some three and a half years later, neither the Law Commission nor the Joint Committee on Consolidation Bills have been consulted. Nor can anyone take it seriously when a Minister says that a point will be reached when the endless flow of Bills comes to a stop because the tottering edifice of reform has been topped out.
Obviously the Government do not mean just the programme of Bills relating to immigration and nationality in the last manifesto because if there were no further ideas for legislation in this Parliament, there would be plenty of time for consolidation and they could safely give an undertaking today that the Law Commission would be asked to start work immediately. In fact, the Law Commission Recommendations: Implementation Log, which lists 292 reports and programmes undertaken since 1966, does not even mention any of the subjects we are considering in this Committee—immigration, asylum or nationality. In the Ninth Programme of Law Reform, laid before Parliament in March 2005, the Law Commission says that its,
"work on consolidation has, in recent years, been adversely affected by a number of factors over which it has no control".
In the case of electoral law, for example, work has had to be suspended several times by a reorganisation of ministerial responsibility. That happened again when the Government were considering their response to the Electoral Commission's Voting for Change.
So we come to this legislation, which Mr McNulty himself called a "legalistic jigsaw puzzle". He took to heart the suggestion made by my honourable friend the Member for Oxford West and Abingdon on the need for consolidation, admitting that it was "perhaps overdue", and that consolidation ought to take place,
"in the next year or two, if possible".—[Official Report, Commons Standing Committee E, 19/10/2005; col. 61.]
That, surely, is a matter of political will. In the case of pensions legislation, the DWP agreed to fund the cost of additional resources needed by the Law Commission for drafting. If the Home Office were to agree that consolidation of the law on immigration, asylum and nationality should take priority, why
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should it not follow the excellent example set by the DWP and agree to pay for the staff the Law Commission needs to undertake this job?
If, however, the Government are content to put off consolidation of the law on immigration indefinitely, as they were in July 2002, would they at least consider asking the Law Commission to have a go at it piecemeal? We have shown again with Schedule 2 that it can be done and we would like to see a little progress rather than the total inertia we had on the last occasion. I beg to move.
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