Lords Sitting of 9 February 1993

Preamble
The House met at half-past two of the clock: The LORD CHANCELLOR on the Woolsack.
Prayers—Read by the Lord Bishop of Guildford.

Organophosphate Sheep Dips
The Countess of Mar The Countess of Mar asked Her Majesty's Government:
Whether they consider that Section 19, as defined by Section 132 of the Medicines Act 1968, has been adequately considered when licences have been granted to manufacturers of organophosphate sheep dips.
The Parliamentary Secretary, Ministry of Agriculture, Fisheries and Food (Earl Howe): My Lords, the Government are satisfied that the provisions of the Medicines Act have been applied properly to organophosphate sheep dip products. Nevertheless, all sheep dip products are currently being reviewed by the Veterinary Products Committee to ensure that they meet up-to-date standards of safety, quality and efficacy.
The Countess of Mar: My Lords, I thank the Minister for that Answer. When licences for organophosphate sheep dips were first issued, was the licensing authority aware that sulfotepp, which is 60 to 100 times more toxic than diazinon—the basic constituent of sheep dip—is an integral and unavoidable part of the production process and is much more stable than diazinon and therefore does not break down in the soil but becomes residual? If they were aware of that—I hope the Minister will not hide behind Section 118 of the Medicines Act (the secrecy clause)—are they satisfied that the licensing authority has taken sufficient care to ensure the safety of users and the community and that the quality of the product is satisfactory, considering that the manufacturers are expected to do the quality testing, and that the original laboratory testing—
Noble Lords: Too long!
The Countess of Mar: My Lords, I am asking a question. —was done on the pure products and not on the manufactured ones?
Earl Howe: My Lords, tepp and sulfotepp are known human neurotoxins which can arise as manufacturing impurities and as degradation products from diazinon, which is an active ingredient within some sheep dip formulations. Manufacturers of sheep dips include a stabiliser in the product formulation to prevent any breakdown to tepp and sulfotepp. The specifications for such products set upper limits for the impurities so as to ensure that no significant toxicological hazard can arise.
Lord Stewartby: My Lords, for those who are less expert in these matters than the noble Countess, will
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my noble friend tell us in simple terms whether the scientific evidence supports the anxieties that she has expressed?
Earl Howe: My Lords, the scientific evidence on the safety of organophosphate-based sheep dips is inconclusive. That is why a number of research projects are currently under way to verify the facts.
Lord John-Mackie: My Lords, are there any statistics on how many accidents or illnesses there have been as a result of the use of sheep dip? We have been dipping sheep for a long time.
Earl Howe: My Lords, in the period January 1985 to 27th January 1993, 338 reports, involving 423 people, relating to organophosphorus sheep dips have been received. A significant proportion of the reports received since 1990 relate to historical cases where a suspected adverse reaction had occurred more than one year previously. To put those figures into context, during the same period over 1 million sheep dippings would have been carried out.
Lord Carter: My Lords, is the Minister aware that work by the Poisons Unit at Guy's Hospital, the Southern General Hospital in Glasgow and the South West Environmental Protection Agency all indicate that there is at least a strong possibility that sheep dips are dangerous to human life? Is there not now a need for a proper inquiry and a statement on the matter from the Government to clear up a matter which is now causing considerable anxiety to the agricultural industry?
Earl Howe: My Lords, as I said to my noble friend a moment ago, the scientific evidence is inconclusive. Licences are issued on the basis that a product is safe if used in accordance with the manufacturer's instructions. To ban organophosphate sheep dips, without hard evidence, would be unwarranted and would have serious consequences in terms of animal welfare.
Lord Carter: My Lords, have not the manufacturers indicated that the users of sheep dip should use protective clothing? Have we not just discovered that phenol acts adversely on natural rubber? That was not known until recently.
Earl Howe: My Lords, the labels and instructions for the use of organophosphate compounds containing phenols have been updated from time to time to reflect the latest advice from the Veterinary Products Committee about operator and environmental safety. They have all been included in the review of sheep dip products which is now being undertaken by that committee.
Lord Zuckerman: My Lords, what scientific evidence relating to which particular substance is inconclusive? Are we talking about organophosphorous compounds or some other substance about which there are doubts? Perhaps I may remind your Lordships that organophosphorous compounds are the nerve gas compounds.
Earl Howe: My Lords, the noble Lord is correct in saying that certain nerve gases were developed many years ago using organophosphate compounds. However, they incorporate organophosphate compounds which are different from those used in sheep dips; they are not the same at all. I referred earlier to the fact that evidence on whether organophosphatebased sheep dips are not safe when used in accordance with the manufacturers' instructions is inconclusive.
Lord Campbell of Alloway: My Lords, will my noble friend confirm that the poisons unit at Guy's Hospital, which is involved in research into these matters, will not be disbanded on the latter's merger with St Thomas' Hospital?
Earl Howe: My Lords, that is a matter for my right honourable friend the Secretary of State for Health.
The Countess of Mar: My Lords, is the Minister aware that the number of cases of organophosphate poisoning may be seriously under reported for several reasons? The first is that farmers are stoical and they carry on working regardless of their complaints. Another reason is that GPs have not been good at diagnosing chemical poisoning. Yet another reason is illustrated in reports which I have received from two Welsh farmers and I should like the Minister to take it up. They have reported that their driving licenses have been removed and they have been forced to take eyesight tests because they reported their sheep-dip poisoning to the Veterinary Medicines Directorate.
Earl Howe: My Lords, I am not aware of the particular instances which the noble Countess cites but I shall look into them. It is a matter which the Government take seriously, as they do all suspected adverse reaction reports. Every case that is reported to the Veterinary Medicines Directorate is investigated. I repeat that we must get the matter in proportion and that at present the evidence is not conclusive.

"Braer": Environmental Damage
2.45 p.m.
Lord Campbell of Croy Lord Campbell of Croy asked Her Majesty's Government:
What estimate they have now made of the number of birds killed and of the damage to fish (including shellfish) and to farm crops resulting from the wreck of the "Braer" on the coast of Shetland.
The Minister of State, Scottish Office (Lord Fraser of Carmyllie): My Lords, the total number of birds found dead is now close to 1,600. The number may increase as dead birds are washed ashore or are found in locations which have not yet been searched. Some birds recovered alive for cleaning may not survive. Some oil was carried on to the land by high winds and has affected an extensive area in the south of Shetland. Vegetables on some 25 crofts have had to be condemned and some 2,000 sheep have been moved off the worst affected grazing. The impact on sea fisheries and fish farming has been greater. But it is too
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soon to say what the full extent of the damage will be. Any long-term effect on the fish—for example, of ingestive hydrocarbons—is still being examined.
Lord Campbell of Croy: My Lords, I am grateful to my noble and learned friend for that Answer, especially as sufficient time has passed for rough estimates to be made. What redress is available to the owners of farmed fish which have been rendered inedible and will probably have to be slaughtered—thought to be about one-quarter of the Shetlands stock—and what redress is available to sea fishermen whose customary fishing grounds lie within the exclusion zone?
Lord Fraser of Carmyllie: My Lords, I am pleased to report to the House that last week the International Oil Pollution Compensation Fund agreed to accept claims for salmon due to have been harvested this year but which will now have to be slaughtered. It is too early to take decisions about other farmed salmon. If sea fishermen find that their catches in the exclusion zone are down it will be open to them to claim compensation from the fund. However, it would be premature to reach a conclusion about the future. I understand that the likely cost of claims for the salmon which would have been harvested this year is in the region of £7 million. Clearly, that matter must be worked out between those insuring and those making the claims.
Lord Molloy: My Lords, considering the magnificent work done by voluntary and other organisations to save the lives of the employees on the "Braer", have the owners of the ship been asked to contribute towards the damage that it caused?
Lord Fraser of Carmyllie: My Lords, there are two funds from which compensation will be payable. As cargo insurers Skuld P & I Club of Norway has a limited liability of £5.5 million. In addition, the International Oil Pollution Compensation Fund will amount to some £50 million. It is still early days but there is every expectation that all legitimate claims will be met out of those sums.
Lord Hailsham of Saint Marylebone: My Lords, I realise that my question is marginally outside that on the Order Paper. Has my noble and learned friend any information on otters and seals?
Lord Fraser of Carmyllie: My Lords, yes, I have some information about otters. I understand that of the otter population of Shetland four have been found dead, as have approximately 12 seals. Surprisingly, a large number of seals are basking on rocks not far from the position where the "Braer" foundered and they are surviving satisfactorily.
Lord Bruce of Donington: My Lords, the Minister has given an indication of the various funds out of which compensation may be paid. Is he aware that time is of the essence of the contract as regards many people who are affected? In view of the fact that some of the claims may take some time to settle, will the

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Minister undertake that the Government will make an effort to ease the cash flow problems of the firms and companies involved?
Lord Fraser of Carmyllie: My Lords, the noble Lord makes a very good point. It is for that reason that my right honourable friend the Secretary of State for Scotland has established a bridging fund of something like £1 million which is to be administered by Shetland Islands Council. Its purpose, pending the settlement of claims, is to provide the cash flow cover to which fish farmers in Shetland in particular must have access if their businesses are to survive.
Lord Tordoff: My Lords, the effect of the disaster goes wider than the fish farmers, does it not? Crofters have lost grazing land and vegetable growers have lost crops and are unable to get their crops to market. Will the fund also help those people?
Lord Fraser of Carmyllie: My Lords, certainly. I singled out salmon fish farmers as they are clearly the most affected group within Shetland. However, as I said in my original Answer, vegetables and crops have been damaged and a number of sheep have been moved away. I understand that the insurers are already paying for additional fodder and grazing on other parts of the island. Those people thus affected will have access to the fund should they require it.
Lord Cledwyn of Penrhos: My Lords, is it not accurate to say that the consequences would have been infinitely worse had it not been for the violent weather at the time?
Lord Fraser of Carmyllie: Yes, my Lords. It was originally anticipated that the consequences might be quite as disastrous for the wildlife as the disaster in Alaska. However, it is clear from the final casualties of the sea bird population that nothing like the same degree of damage has been caused to the wildlife, although I regret to say that there have been losses of, for example, the great northern diver, a rare species.
Baroness Nicol: My Lords, since sand eel colonies are affected by oil spillages, can the noble and learned Lord say whether the current research into sand eel populations will be extended by the Government? I understand that the present project is almost finished. Has the Minister yet had the results of the present project and will it be continued in view of the accident? Has the JNCC finished identifying all those areas which need to be identified as special protection areas?
Lord Fraser of Carmyllie: My Lords, I cannot indicate to the noble Baroness the outcome of that research although, in a broader sense, the population of the sand eel is critical not only to fish around the Shetlands and Orkneys but also to the bird population. However, there will be continuing research in relation to the exclusion zone and the fish population around the Shetlands in order to identify whether there is any longstanding damage to the fish caused by the hydrocarbons.
Lord Carmichael of Kelvingrove: My Lords, perhaps I may reinforce the remarks made by my
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noble friend Lord Bruce of Donington and the noble Lord, Lord Tordoff, as regards the number of claims made for compensation. We must remember that many of those affected will be small businesses which will be in dire straits. I hope that the Minister will give some idea of how many claims have been made and how rapidly they will be processed. Will he make sure that there is no red tape which will delay the payment of compensation?
Lord Fraser of Carmyllie: My Lords, the news last week that the fund has already agreed to make payment of compensation indicates that claims are being settled in the Shetlands very much faster than elsewhere in the world where comparable disasters have occurred. I cannot give the noble Lord a figure of the number of claims but I can indicate that of some 64 salmon fish farmers operating 148 sites in the Shetlands, there are only about 17 sites in the exclusion area which presently have fish in the water.
Lord Campbell of Croy: My Lords is my noble and learned friend aware that the International Oil Pollution Compensation Fund, to which he referred, has operated well in previous tanker disasters of this kind? However, the process takes a considerable time. Will the Government do what they can to make sure that the mechanism for payment is speedy because the salmon fish farmers in particular will need interim payments if they are to stay in business?
Lord Fraser of Carmyllie: My Lords, I trust that the mechanism which we have set in place—namely, the bridging fund within the agency of the Shetland Islands Council—will be sufficient to meet any interim claims. However, I assure my noble friend that should any difficulties emerge, the Government are very keen to ensure that the fish farmers in Shetland should not be affected by the disaster.
Lord Richard: My Lords, I understand that following the "Exxon Valdez" disaster, the United States of America insisted that tankers using its waters should be insured with unlimited liability to ensure that the polluter really did pay for the damage that he caused. Are the Government considering any comparable legislation as regards British waters?
Lord Fraser of Carmyllie: My Lords, that matter will have to await the outcome of the inquiry which the noble and learned Lord, Lord Donaldson, is undertaking. However, I assure the noble Lord and the House that funds are available to those who have suffered loss and damage on the Shetland Islands from the two sources I have indicated. It is anticipated that those two funds will in no sense be exhausted in meeting the claims which those individuals have.

Metropolitan Police: Batons
2.55 p.m.
Lord Annan Lord Annan asked Her Majesty's Government:
Whether they will reverse their decision not to consider equipping the Metropolitan police force

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with side-handed or expanding batons, so as to provide police officers with better protection against assaults by criminals.
The Minister of State, Home Office (Earl Ferrers): My Lords, we have agreed to the Metropolitan Police conducting trials of an expandable baton, subject to the outcome of a full scientific evaluation of its wounding potential. We have also agreed to the Metropolitan Police conducting trials of variants of the straight baton which can be carried in the truncheon pocket. My right honourable friend the Home Secretary does not believe that the side-handed baton is a suitable piece of equipment for use by police officers.
Lord Annan: My Lords, I am grateful and encouraged by the noble Earl's reply. I am sure that he will agree that scarcely a week passes without the press reporting a murderous assault on a police officer. Was it not alarming that until very recently the Home Office was not even willing to consider looking into the matter? I am greatly reassured by the news that the Home Office will now do so.
Earl Ferrers: My Lords, I believe that the whole House will share the anxiety of the noble Lord, Lord Annan, as regards the number of police officers who are assaulted. That is quite appalling and intolerable and causes a great deal of anxiety to Her Majesty's Government. However, I am sure that the noble Lord will recognise also that it is important that the style of policing should not change. Manufacturers estimate that a side-handed baton has a wounding potential nine times that of ordinary batons.
Lord Annan: My Lords, with great respect to the noble Earl, a change in the style of policing does not seem to me as important as giving police reasonable protection against these murderous assaults. We are not living in the age of "Dixon of Dock Green", when a villain who is faced with a policeman immediately says, "All right guy, it's a fair cop". We are now dealing with a very different situation. Perhaps the noble Earl will reconsider his statement that the style of policing is all important. What matters is the safety of the police when they are dealing with murderous villains.
Earl Ferrers: My Lords, I have a great deal of sympathy with the noble Lord, Lord Annan, but the style of policing is important. If police officers are to be equipped with weapons which can cause great harm—I repeat that the manufacturers estimate that a side-handed baton will do nine times more damage than an ordinary baton—the noble Lord may wish to take into account what would happen if a police officer were robbed of his baton and it was then used against him. For such reasons, my right honourable friend considered that use of the side-handed baton was not suitable.
Lord Mellish: My Lords—
Lord Stoddart of Swindon: My Lords—
Lord Mellish: Go on, Common Market!
Lord Stoddart of Swindon: My Lords, if the noble Lord would like me to talk about the Common Market, I will do so at any time. However, at present I wish to talk about this Question. Is it not a fact that it is not the arms which the police carry which are causing the problem at present? Is it not that society is paying far too much attention to criminals and their rights and too little attention to the victims of crime and to society generally? Is it not a fact also that the police are sick and tired of taking cases to court when they know that severe penalties will not be imposed on criminals but at the same time decent citizens are being clobbered through the unit fine system? Substantial fines are imposed for small peccadillos while criminals leave the courts laughing at the small fines which have been imposed upon them.
Earl Ferrers: My Lords, the noble Lord, Lord Stoddart of Swindon, captivates the House as usual by expanding the Question to cover pretty well everything to do with the police. I have a great deal of sympathy with what he says. The amount of crime that takes place is quite appalling. I ask the noble Lord to consider the following. People are always asking what the police are doing and why they do not catch criminals. However, I ask the noble Lord to consider what it is that makes a tiny baby of six weeks who is dependent on others for everything become a criminal by the time he is 15 or 16 years old. The peak age of criminal activity is between 15 and 18. All of us, and home and school backgrounds, have a great part to play in preventing that from happening.
Lord Mellish: My Lords, has the bobby on the beat been asked whether or not he wants this thing?
Earl Ferrers: My Lords, there are several bobbies on the beat and I do not think they have all been asked their opinion. However, the organisation which represents them has given the view of the police. It has said they would like this equipment.
Lord Molloy: My Lords, our police do a remarkable job of work but from time to time they find themselves in some difficulties. Is there constant liaison between the noble Earl's department and the representatives of the police as regards matters the latter think should be discussed with Her Majesty's Government?
Earl Ferrers: My Lords, there is constant liaison between the police and my department. It is understandable that the police want to have a piece of equipment which will adequately protect them. However, if we give them that piece of equipment, we will alter the style of policing and we will equip the police with a weapon that is capable of causing considerable damage. If an attacker were to remove such a weapon from the police, he could then use it against them. On the whole that is considered to be undesirable.

Pharmacists: NHS fees
3.2 p.m.
Baroness Nicol Baroness Nicol asked Her Majesty's Government:
What is the average time taken to reimburse pharmacists for work on NHS prescriptions.
The Parliamentary Under-Secretary of State, Department of Health (Baroness Cumberlege): My Lords, pharmacists receive some 80 per cent. of their National Health Service fees and payments within a month of submitting their prescriptions to the Prescription Pricing Authority. The balance is paid a month later when the authority has calculated the exact payment due.
Baroness Nicol: My Lords, I thank the noble Baroness for that Answer. However, does she accept that it is somewhat at variance with the information which I have been given? Is she therefore satisfied that her information is complete? Does she accept that my information is that on average £189 million at any one time is withheld from pharmacists for up to 90 days? Does she consider that this is in line with the Government's policy of supporting small businesses? Does she understand that this can impose considerable burdens on small community pharmacists who have a liquidity problem like any other small businessman? Will she look further into the matter?
Baroness Cumberlege: My Lords, I should be delighted to look further into the matter. However, it would not be possible for the Prescription Pricing Authority to calculate 100 per cent. of all prescriptions within one month. The maximum it can achieve is estimated at around 95 per cent. However, the cost of moving from a payment level of 80 per cent. to one of 95 per cent. would be between £45 million and £50 million.
Lord Desai: My Lords, is the Minister happy that at present the total amount owed by the Government is estimated to be £459 million? Not all of that sum has been owed for a long time. Cannot something be done to make some payment in advance or speed up payment so that small businesses do not suffer?
Baroness Cumberlege: My Lords, I am aware that pharmacists find this a bitter pill to swallow. However, the 1990 CBI, Cork Gully survey showed that a significant number of firms were obliged to accept a period of 60 days or more for payment. One in five businesses are accustomed to normal payments exceeding 75 days. That compares favourably with the department's record of paying 80 per cent. within one month of pharmacists submitting their prescriptions to the Prescription Pricing Authority.
Lord Skelmersdale: My Lords, to put the figures of the noble Baroness, Lady Nicol, into perspective, will my noble friend say what is the total amount paid each year to pharmacists by Her Majesty's Government?
Baroness Cumberlege: My Lords, the total amount paid to pharmacists in terms of fees and charges is £206 million.
Baroness Nicol: My Lords, does the noble Baroness accept that the period of two months or 60 days which she mentioned is probably acceptable to the small pharmacist, but it is the payments after 90 days that cause the problem? I hope that she will be able to look into that matter.
Baroness Cumberlege: My Lords, I have given an undertaking to look further into the matter.
Lord McIntosh of Haringey: My Lords, will the Minister think again about her answer to the noble Lord, Lord Skelmersdale? When she was asked about the total amount paid to pharmacists she gave a figure of £206 million for fees and charges. Will she tell the House the sum that is paid to pharmacists for drugs, which I think is the figure that is required?
Baroness Cumberlege: My Lords, I regret to say that the figure that I gave was for the costs of pharmacy that are met from charges that are paid by patients. Of course 80 per cent. of all items that are currently dispensed are free of charge. I shall inform the noble Lord in due course of the figure which he seeks.
The Countess of Mar: My Lords, has the revision of dispensing fees for pharmacists for 1992 been held up—that was due in April 1992—in the same way as it has for dispensing doctors?
Baroness Cumberlege: My Lords, the system is complicated. I am prepared to let the noble Countess know in full the differences between the dispensing doctors and pharmacists. There are some differences which are difficult to elucidate upon at the moment. I am prepared to do that but it would take a long time. I would rather write to the noble Countess in due course.

Business
Lord Hesketh: My Lords, it may be for the convenience of the House to know that the Committee stage of the Asylum and Immigration Appeals Bill will be adjourned at about 7.30 p.m. for about one hour and that during this adjournment the Maximum Number of Judges Order 1993, the Maximum Number of Judges (Northern Ireland) Order 1993 and the Civil Jurisdiction and Judgments Act 1982 (Amendment) Order 1993 will be taken.

Business of the House: Debates, 10th February
3.6 p.m.
The Lord Privy Seal (Lord Wakeham): My Lords, I beg to move the Motion standing in my name on the Order Paper.
Moved, That the debate on the Motion in the name of the Lord Chalfont set down for Wednesday next shall be limited to 3 hours and that in the name of the Baroness Stedman set down for the same day to 2 hours.—(Lord Wakeham.)
On Question, Motion agreed to.

Asylum and Immigration Appeals Bill: Instruction
3.7 p.m.
Earl Ferrers Earl Ferrers rose to move, That it be an Instruction to the Committee of the Whole House to whom the Bill has been committed that Amendments Nos. 71 to 86 be considered after Clause 2; and that Amendments Nos. 90 to 95 be considered after Clause 8. —(Earl Ferrers.)
Lord McIntosh of Haringey: My Lords, first, I express my gratitude to the Minister and to the Government for acceding to my request yesterday that these amendments should be taken with the clauses to which they refer. It would have made the proper consideration of the business extremely difficult if that had not been agreed to. I am grateful that the Government have been able to agree to that request.
However, a wider point arises which is that it is frequent and normal in longer Bills for schedules to be taken with the clauses to which they refer. That is not a universal custom but it is one which has taken place on many considerable Bills in your Lordships' House. When I use the word "considerable" I intend it to relate to the number of amendments and not just to the sheer physical length of a Bill. I suggest to your Lordships that it is for the convenience of the House that schedules which refer to particular clauses, and therefore cover the same subject matter as those clauses but in more detail, should be taken with the clauses as a matter of course.
It was not until a Government Instruction to that effect failed to appear that I was aware this was not the Government's intention on this occasion. However, I hope it will be thought proper that, unless there is some good reason to the contrary, it should be normal for schedules to be taken with the clauses to which they refer.
Earl Ferrers: My Lords, I am grateful to the noble Lord, Lord McIntosh, for having been so courteous as to express his content at the Motion which I nearly forgot to move. If we can be of assistance to the Opposition we are only too happy to do so. I appreciate that the noble Lord would prefer the amendments which appear as a specific part of a schedule to be discussed in the earlier part of the proceedings this afternoon. I am glad that we have been able to meet the noble Lord over that matter and that we have started on such a felicitous note. I hope that he will ensure that that continues throughout the proceedings.
Lord McIntosh of Haringey: My Lords, I am grateful to the noble Earl for his remarks. It is not only the Opposition who are affected; it is the responsibility of the whole House to ensure that Committee proceedings on Bills are carried out in a logical and open way. I suggest, not merely to the noble Earl but to the Government as a whole, that as a rule, unless there is good reason to the contrary, schedules should be taken with the clauses to which they refer.
On Question, Motion agreed to.

Asylum and Immigration Appeals Bill
3.10 p.m.
Earl Ferrers: My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.
Moved, That the House do now resolve itself into Committee.—(Earl Ferrers.)
On Question, Motion agreed to.
House in Committee accordingly.
[The CHAIRMAN OF COMMITTEES (LORD AMPTHILL) in the Chair.]
Clause 1 [Interpretation]:
The Chairman of Committees: If Amendment No. 1 is agreed to I cannot call Amendment No. 2.
Lord Bonham-Carter Lord Bonham-Carter moved Amendment No. 1:
Page 1, leave out lines 8 to 12 and insert:
(""claim for asylum" means a request made by a person to be allowed to enter or remain in the United Kingdom as a refugee under the Conventions, and to be treated accordingly; and").
The noble Lord said: I am grateful to have the opportunity to speak to Amendment No. 1, which is grouped with a number of other amendments in the list of groupings which is before the Committee. I am also grateful to the noble Earl for enabling us to conduct this business in the way described by the noble Lord, Lord McIntosh, and for being so courteous in acceding to the wishes of the Opposition. I hope that in considering the amendments we propose his courtesy will extend even further and that he will accept them.
The purpose of Amendment No. 1 is to widen the definition of a "claim for asylum" set forth in Clause 1 of the Bill. The definition set out in the Bill requires the Government of the United Kingdom to observe only Articles 32 and 33 of the 1951 convention. Important as those articles are they are not the only legal standard to which refugees should be entitled. The amendment is therefore drafted to extend the scope of that definition of a claim for asylum by removing those elements which circumscribe and restrict it. In other words, it would be contrary to the United Kingdom's obligations under the convention for a claimant to be removed from or required to leave the United Kingdom.
While we welcome the primacy of the Geneva Convention, the definition, as I have argued, effectively provides only for the UK Government to observe Articles 32 and 33. The 1951 definition of a refugee was in many respects a creature of the Cold War. Despite massive movements of population in the period immediately following the end of the Second World War, the definition of a refugee adopted by the United Nations was one which was applicable to individuals rather than to groups and attached a rather restrictive idea of persecution in that refugee status was seen as being obtained by a conflict between an individual and his convictions and the ideology or tenets of the political system of his country of origin.
Since the 1950s, when the UN definition was agreed, flows of refugees of a very different nature have occurred as a consequence of a number of

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factors. They are most apparent in the third world. They have increased as a consequence of the development of air travel and of television. The nature of migration has changed considerably since that definition was drawn up. Now, owing to the events in Yugoslavia, that pattern of population movement has spread to Europe, and Germany is now experiencing the kind of problem with which many third world countries, particularly in Africa, are now familiar.
It is in the light of that changed nature of the movement of populations, and in response to the changing patterns of migration and of refugee status, that wider definitions of a refugee have been adopted by the Organisation of African Unity and the OAS and in the wider remit of the United Nations High Commissioner for Refugees. Hence the reference in the amendment to the convention, whose definition, in our view, should be taken into account in this Bill.
In 1990–91, 40,000 people sought asylum in this country. Of those, 25 per cent. were granted refugee status; 60 per cent. were granted asylum on other grounds; and 15 per cent. were refused asylum. Those proportions should be borne in mind when we consider the clauses of the Bill.
As I understand it, if left as it stands Clause 1, in which a claim for asylum is defined as a claim,
"that it would be contrary to the United Kingdom's obligations under the Convention for him to be removed",
is extremely restrictive in the light of those figures. It excludes the 60 per cent. to whom I have referred and those who have arrived via another country. It excludes also those who have good grounds for making the UK the appropriate country for claiming asylum under the recent Dublin convention.
There are, of course, other conventions to which this country is a party such as the UN Convention on the Rights of the Child. Many of the articles of that convention are relevant to this Bill. We ratified that particular convention and we made a reservation that it should not apply to nationality or immigration. That reservation was not extended to asylum law. The convention, therefore, applies to asylum law. Article 3 of that convention is relevant to our discussions. It provides:
"In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration".
Lord Renton: I hope that the noble Lord will allow me to intervene. Can he say whether that convention also defines "refugee"?
Lord Bonham-Carter: I am afraid that I cannot answer the noble Lord's question. However, it certainly applies to our treatment of children who are refugees, or so I would argue. This Bill does not make any distinction whatsoever between children and adults. That is a weakness which it is imperative should be corrected. The International Covenant on Civil and Political Rights also contains elements which are applicable to this Bill.
It is because all those conventions to which we are party and which relate to the matter under discussion need to be taken into consideration that a widening of
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the definition from the very narrow one set forth in Clause 1 in accordance with the amendment to which I speak is so necessary. I beg to move.
Lord McIntosh of Haringey: I understand that it has been agreed that the amendment will be taken with a number of other amendments. It might be for the convenience of the Committee if I specify which amendments are part of the group. They are Amendments Nos. 2 to 4, 6, 22, 27 to 29, 31 to 33, 35, 37, 101, 103 and 104. All those amendments have a similar effect to the amendment so ably moved by the noble Lord, Lord Bonham-Carter. They seek to extend the definition of "asylum" from the very limited, negative definition of Article 33 of the 1951 convention. The noble Lord referred to the United Nations Convention on Human Rights. The subsequent amendments refer to other conventions: the European Convention on Human Rights, the United Nations Convention against Torture and the International Covenant on Civil and Political Rights, as well as the United Nations Convention on the Rights of the Child. I wish to say a word or two about the relevance of the other conventions to the subject matter of the Bill.
First, the International Covenant on Civil and Political Rights has been signed by the United Kingdom. It was dated 1966. There is no particular reservation by the United Kingdom Government to any part of the convention. Although it is claimed that the provisions of the Bill cannot be in contradiction of the 1951 convention, we argue that some of them are nevertheless in contradiction of the 1966 international covenant. In Article 2.3(a) of the international covenant it is stated:
"Each State Party … undertakes: to ensure that any person whose rights or freedoms as herein recognised are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity".
That immediately raises the whole issue of appeals. They are the subject matter of the Bill, as well as asylum. It is such an important element of the Bill that it has been included in the Short Title as well as the Long Title of the Bill.
We shall later debate clauses which specifically take away the right of appeal and therefore take away the effective remedy which is required by the International Covenant on Civil and Political Rights to which the Government adhered in 1966. Although the Bill provides for some kind of appeal against refusal of asylum, it does not provide for any appeal against detention. We argue that detention is a violation of rights and freedom which requires an effective remedy under the conditions of the international covenant.
Under the Immigration Act 1971 the position is that asylum seekers may be detained with no reason given by the immigration authorities for their detention. We understand that the use of detention will not diminish, and that provision is being made for increased places of detention when the Bill has been passed. There have been very unhappy experiences of detention of asylum seekers in this country in recent years. For example, when large numbers come from

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particular countries, they tend to be put into detention en bloc without consideration being given to their individual cases.
When Tamils came from Sri Lanka in 1986–87, they were put into what can only be called a convict ship, the "Earl William". When the convict ship broke away from its moorings and ran aground in the hurricane of October 1987, it was clear that the conditions that existed were unsatisfactory and the use of the convict ship had to be abandoned. Similarly, when Kurds came from Turkey in recent years, they were put into a number of detention centres in Harmondsworth and elsewhere. When two of them attempted to commit suicide by setting themselves alight—one of them did commit suicide; he died later in hospital—urgent efforts (one might say panic efforts) were made by the Home Office to clear the detention camps of large groups of Turkish Kurds.
Detention is clearly part of the policy of Her Majesty's Government for seekers of asylum. One cannot avoid the conclusion that the Government seek to use detention as a way to deter asylum seekers. I claim that that is in conflict with the international covenant. The inclusion of that international covenant would protect human rights in that important respect.
There is a further aspect under the same covenant: the issue of bail. If the Bill were to come within the terms of the international convention, detained asylum seekers would have the right to go before the courts for bail. The provisions of the Bail Act 1976, with its presumption in favour of bail, would apply. That is not the case under the Bill. The inclusion of the international covenant would ensure that the rights of people in respect of bail were protected.
I turn now to the European Convention on Human Rights. That is not only a treaty binding on all signatories of the Treaty of Rome; it was also adhered to by the United Kingdom long before Britain signed the Treaty of Rome. It has been accepted throughout the country by all political parties as being a proper part of our international obligations, although the Government have consistently refused to write it into British law. Because the Government have not written it into British law, I shall not open a wider debate at present. However, I do not think that those who believe that it should or should not be written into British law will deny that the effect is that it can sometimes take months, or even years, for cases to be decided. There is no legal aid for the preparation of the case which would go to the European Commission of Human Rights.
The European Convention on Human Rights extends not only to those who are nationals of the member states—in this case nationals of the United Kingdom—but to all those within the jurisdiction. For example, it provides protection against inhuman or degrading treatments. We argue that the extension of this European convention to which we are signatories to those who are within the jurisdiction extends the protection of the European convention to asylum seekers. We believe that that ought to be recognised in
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the scope of the Bill, and that therefore this European convention should be given comparable status to the United Nations convention of 1971.
Perhaps I may give one specific example of the effect of that provision. It is a matter to which we shall return later. It is the provision of exceptional leave to remain. One can argue the case both ways. The Government tend to argue that because most of those who are refused asylum are given exceptional leave to remain they are not as wicked or exclusive as might appear simply from the asylum statistics.
However, of course, one can take another view of it. The view we take is that instead of entry to the country being a right defined under law and under international commitments —which would be the case if asylum law were properly drafted—we have a much larger number of people being admitted to this country under no rules but simply under the prerogative of the Home Secretary. It is not a matter for Parliament as to how the Home Secretary should decide whether people are given exceptional leave to remain. It is not a matter for Parliament how long passes before they are allowed to bring their dependants; nor is it a matter for Parliament as to how long passes before they are considered as having permanent settlement here.
Thus we argue that the distinction which exists between asylum and exceptional leave to remain is in conflict with other international commitments of this country and that the exceptional leave to remain provision is an example of that, rather than an example of the rule of law in the country.
The amendment of the noble Lord, Lord Bonham-Carter, and subsequent amendments, would significantly not only add to the protection for those who seek asylum in this country but they would add to the effectiveness of the rule of law in the country as a whole.
3.30 p.m.
The Lord Bishop of Ripon: There are many who welcome the United Nations convention of 1951 being on the face of the Bill and who believe that it is a significant step that the convention and the United Kingdom's obligations under it are mentioned in the Bill. I am glad to note that the Government consistently state their intention to honour those obligations.
However, I believe that the drafting of the Bill leaves us with too narrow an understanding of "refugee" and those who are able to seek asylum. I wish to argue that case in three regards. First, in regard to the wording in Clause 1 which refers to the United Kingdom's obligations under the convention for such a person:
"to be removed from, or required to leave, the United Kingdom".
In other words, a "claim for asylum" definitely refers to those who are under some threat of being removed from this country. Article 33 of the United Nations convention refers to that, but as the noble Lord, Lord Bonham-Carter, has already said, there are other articles under the convention which are apparently not mentioned in the Bill. That is why Amendment No.1

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is of such significance. It requires the Bill to refer not simply to Article 33 of the convention but also to other obligations.
The United Nations High Commission for Refugees has expressed its dissatisfaction with the drafting of the Bill in that regard and that dissatisfaction is shared by many of us. That is my first ground for believing that the definition of those seeking asylum needs to be widened.
Secondly, I wish to look at a particular category of refugee: those who have been subjected to torture. There is no mention of torture in the 1951 convention, but there is mention of it in the other conventions and documents mentioned in one of the amendments we are considering. In particular, Article 3 of the European Convention on Human Rights states:
"No one shall be subjected to torture or to inhuman or degrading treatment or punishment".
The United Nations convention against torture defines "torture" as:
"any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession".
We are well aware of the use of torture, sadly, in many countries in the world. We are aware of the enormous trauma that such torture inflicts on many people, especially young people. In a country I know well—Sri Lanka—it is commonplace for young people to be taken into custody and then tortured by such means as beating or hanging upside-down by the feet and so on—horrible acts which are dreadful to contemplate. It is not surprising that people who have undergone such torture should be highly traumatised and suffer for many years afterwards.
Many of the people who come to this country have been subjected to torture. Some are the clients of the Medical Foundation for the Care of Victims of Torture. That organisation has pointed out that many of its clients, when their claims for asylum are eventually decided, are not numbered among those who are granted asylum because at the moment the grounds for asylum are the grounds of the 1951 convention; that is to say, a well-founded fear of persecution on the five grounds.
Many of those who are tortured have their cases considered. They come under the category of those whose claims are considered to be unfounded because they do not fall within the 1951 convention. Yet it is surely clear to most of us that, having suffered torture and possibly being subjected to it when they return to their country, they must be treated as having a proper claim to asylum.
As the noble Lord, Lord McIntosh, pointed out, the majority of those who are not granted asylum are given exceptional leave to remain. Many of those who are tortured fall into that category rather than into the category of those who are given asylum. It seems clear that we need to extend the definition of asylum in order to include a number of categories which were not included within the 1951 definition. Here I support what the noble Lord, Lord Bonham-Carter, said.
Finally, a third ground on which I believe the definition needs widening is that there is no mention in it of those who suffer from civil war. Many of the
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refugees in our world today are such because civil wars are raging in their country. They have lost homes and livelihoods, many finish up in neighbouring countries. Those from the civil war in Sri Lanka are mostly to be found in India, when they are not in Sri Lanka. Very few find their way to our country, but when they do, at the moment they are not treated as those who deserve recognition as needing asylum because they do not fall within the category of having a well-founded fear of persecution. Yet civil war is a reality and many people suffer under it. We should surely not return to lands where that kind of violence rages those people who are likely to suffer from it.
It seems to me that the 1951 definition has a subjectivity to it. It speaks of those who have a well-founded fear of persecution. I argue that for those who are subject to torture there is no question of a subjective element. Torture is objective, it happens to a person. Therefore, there can be no question of making a judgment about whether or not a person is in fear; it is a perfectly clear ground on which someone ought not to be returned to his own country. He ought to be granted asylum. I hope that the Committee will support the amendments.
Lord Renton: This well-intentioned group of amendments makes the Bill wider, but I am sorry to have to say that it will lead to endless wrangles in the courts and will cause disappointment in many cases. The right reverend Prelate the Bishop of Ripon said that the definition in the Bill at the moment is too narrow. I respectfully beg to differ from him. I suggest that the convention relating to the status of refugees and the protocol to it will cover all genuine cases perfectly adequately.
However, if we add those various other conventions, I can only see confusion and argument arising. Reference has been made to them, but perhaps I may develop the theme a little further. First, perhaps I may take the point made by the noble Lord, Lord Bonham-Carter, in moving the amendment, that things have changed since 1951. He relies upon the later conventions as a way of dealing with a new situation. But these other conventions are not all very new. I remember the European Convention on Human Rights because—perhaps like some other Members of the Committee—I took part in discussing it in the Council of Europe in the early 1950s. It was certainly, if I recollect correctly, accepted by about 1954, but not as part of our own law. It is still not part of our law; it is part of the law applicable in the European Court of Human Rights, which is somewhat different. It goes much wider than the question of asylum and refugees. When I asked the noble Lord, Lord Bonham-Carter, whether it contained a definition of "refugee", he was not sure. I must confess that I have not turned it up myself.
Lord Tordoff: Perhaps I may interrupt the noble Lord. I understand on further examination that it specifically refers to refugee children.
Lord Renton: That is splendid—and so does the convention on the status of refugees. I remind the Committee that in accordance with the way in which

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our statutes are interpreted in our courts, the same word may have a different meaning in different contexts. I believe there is a danger that if we refer to other conventions which have a different purpose—perhaps a much wider purpose—from the convention on which the Government are asking us to rely, there could be confusion.
Let us consider the other conventions mentioned in Amendment No. 4. There is the United Nations convention against torture. Torture is a horrible thing, but that convention has a different purpose. The International Covenant on Civil and Political Rights goes very wide indeed. The United Nations Convention on the Rights of the Child has a more limited purpose. But the point is: are we doing any real kindness, or any real service, to those who should be given, and would be given by the interpretation of the Bill, a right of asylum—the right to be treated as refugees—if they do not appear to come strictly within the convention on refugees, but are tendentiously and it is to be hoped made to apply by those representing them and are submitted to the court by those other measures? I believe that we would be doing a disservice to them.
I remind the Committee of what my noble friend Lord Ferrers made clear at Second Reading: the purpose of the Bill is to prevent abuse, as well as the human purpose, on which we are all agreed. It is to help people who are victims of oppression abroad and who have a right to come here within our tradition. But that right has been so much abused that the Government are right to put the matter beyond doubt, and they are carrying out a public service in doing so, by fastening our law to the European convention on the status of refugees. Surely that is the right way to do it. One admires the sincerity, and indeed the ingenuity, of the noble Lord, Lord McIntosh, and the right reverend Prelate, among others. But I believe that they are defeating their own purpose.
Baroness David: Perhaps I may follow up the intervention of the noble Lord, Lord Tordoff. The noble Lord, Lord Renton, asked the noble Lord, Lord Bonham-Carter, about the UN Convention on the Rights of the Child, in reference to refugees. I believe that Article 2 gives the answer:
"States Parties shall respect and ensure the rights set forth in the present Convention to each child within their jurisdiction without discrimination of any kind, irrespective of the child's or his or her parent's or legal guardian's race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status".
That is a general non-discrimination clause. The rest of the convention should be read in that context. It helps to ensure that a child's status as an asylum-seeker or a refugee should not mean any diminution in rights or services. The UN Convention on the Rights of the Child is fairly recent—1989. We have ratified it. I thought that if we ratified a convention, that covered the matter and we should pay attention to it.
The Earl of Onslow: I should like to ask the right reverend Prelate one question. He gave the example of
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a Sinhalese or Tamil refugee from Ceylon going first to India with the implication that he could then come on to this country. Surely the whole point of the Bill is to make sure that we only take people who come to this country as a place of first refuge, not as a kind of stepping-stone refuge. If we allow the stepping-stone refuge principle to come in, it will make a very large hole in what is already a difficult situation.
The Lord Bishop of Ripon: I am grateful to the noble Earl for allowing me to explain. I am sorry if I did not explain myself properly. I did not mean to imply at all that refugees would go first to India and then on to this country. As he probably knows, India is now attempting to return the bulk of them to Sri Lanka. My point was that the bulk of those who are refugees are still in Asia and do not come to this country.
3.45 p.m.
Lord Archer of Sandwell: It was not my intention to intervene in the debate. But I heard the contribution of the noble Lord, Lord Renton, whose experience on these matters we all greatly respect and he caused me to reflect on what I think is the essence of the amendments. Is anyone likely to be excluded by the present state of the Bill who we would all normally all want to say was a refugee? I have not even brought with me the text of the Geneva Convention because I had not intended intervening. But I believe it was the noble Lord who reminded us that the criterion in the Geneva Convention is a well-founded fear of persecution.
"Persecution" as I understand it, means the deliberate infliction of suffering. It seems to me that there is now a very substantial class of people who do not fall within that definition—those who have to leave their homes because their homes have become a battleground in a civil war. It may well be that no one wishes them any particular harm. On the whole armies do not wish any great harm to civilians who stand in their way. The trouble is that they are just indifferent to the suffering which they inflict on them. Those people have to leave their homes not because of a fear of persecution, but because they are likely to suffer in the course of a battle.
Lord Renton: I had not intended to interrupt the noble Lord, but as he seems to think that I was trying to do so—which I was not —I shall take advantage of the opportunity so generously given to me. He is talking of civil war in another country —and there is a horrible one going on now. If all those people who were victims of that civil war and simply wanted to leave that country were to be given admission under any of those conventions, this country could be made to accept tens of thousands of such people at a time when we have nearly 3 million unemployed ourselves. I hope that, on further reflection, what has just been said is not truly relevant to this debate.
Lord Archer of Sandwell: I am not sure that it is irrelevant. What troubles me is the way in which the noble Lord has now rather moved the argument. As I understand it, no one is suggesting that everyone who

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has to leave homes in Croatia because of the civil war should flood into this country. That is not the proposal; it is not the proposal in the Bill; it is not the proposal in any of the amendments tabled.
We are at a much earlier stage of our consideration. We are considering who may make a claim as a refugee. They would first need to come to this country and establish that this was the country of first instance under the convention. A whole number of steps would need to be taken before they found themselves able to stay here. At this stage we are simply discussing who is a refugee. My question was whether the Bill in its present form would exclude from consideration or prevent anyone even directing their minds to someone whom most of us, using ordinary English and applying common sense, would want to call a refugee.
The people to whom the noble Lord referred, on any possible definition, are tragically refugees. They leave their homes because if they stayed there they would face death, injury or other forms of suffering. I stand to be corrected. It may be that when the noble Earl replies he will assure me that they do fall within the Geneva Convention. As I say, I do not have the text with me and to my shame I confess that I have not researched the question. If the criteria is someone who has a well-founded fear of persecution, then persecution is not the word that we would apply to that situation. If that is the case, then it is likely that a whole group of people whom anyone would wish to say were refugees, do not begin to qualify; they fall at the first fence. It seems to me that that gives rise to real anxiety.
Earl Ferrers: We have had an interesting debate on this subject. Nobody would disagree with those who have expressed their anxieties in regard to people who are subjected to the most horrifying torture, beatings and so forth in other countries. If I may say so the right reverend Prelate made an impressive speech on that topic.
Nobody disagrees and nobody would seek to defend that; there is nobody who would not sympathise with the people undergoing that treatment. But our obligations concern our system of asylum. As my noble friend Lord Renton says, this group of amendments would considerably broaden the scope of the Bill by incorporating into primary legislation a number of international agreements. It would widen the basis upon which asylum seekers, whose application for asylum had been refused, were able to appeal. The amendments are misconceived as regards appeal and would not work in the way intended. I shall explain why in a moment. The noble and learned Lord, Lord Archer of Sandwell, asked, in a somewhat broad brush way, whether there are people who would be excluded by the amendments if their applications were refused, and whether people would be prevented from having their cases considered.
Lord Archer of Sandwell: If I may intervene, I asked whether there are any people whom, normally, all of us, as a matter of ordinary English and common sense, would want to call refugees who would not be accepted?
Earl Ferrers: I am grateful to the noble Lord for making his observation more precise. I do not believe that that is a suitable way in which one can address asylum legislation. It must be specific. All kinds of people may be excluded and all kinds of people may be included. We are addressing a specific state of affairs and as our asylum system stands and as we intend that it should work under the new legislation, it is designed to ensure the protection of refugees as defined by the 1951 convention.
Under the 1951 convention our obligations are very clearly defined. They are first, to recognise as a refugee anyone meeting the convention criteria or who has been so recognised by another country and, secondly, to refrain from returning a refugee to a country in which his life or freedom would be threatened for a convention reason.
It is important to stress that the convention itself does not specify how an asylum claim should be determined, nor does it require states to facilitate the entry of asylum seekers to their territory. It is on those precise grounds that the convention works and is subscribed to by such a large number of countries—over 100, in fact. It is unlikely that there would be any universal agreement should we wish to change the current framework. Arbitrary changes by one member state would only lead to confusion.
In the operation of the system we naturally ensure that we do not breach any of the United Kingdom's obligations under other conventions—a point about which the noble and learned Lord, Lord Archer of Sandwell, was concerned—and that we respond to other compelling humanitarian factors. As the noble Lord, Lord Bonham-Carter, and the right reverend Prelate the Bishop of Ripon said, over 60 per cent. of asylum cases are given asylum on other grounds. Only a small minority of asylum seekers are actually recognised as refugees under the 1951 convention. The majority—over 60 per cent. in 1991—received exceptional leave to remain. That is not the same as asylum. In some cases it may be given for genuine humanitarian reasons such as those referred to by the noble and learned Lord, Lord Archer of Sandwell. Often, it is simply as a result of the delays in determining the claims that it becomes impossible to enforce the person's removal. That is one of the points which the Bill seeks to address.
There is a considerable degree of overlap between cases which involve our obligations under the 1951 convention and those which involve issues under Article 3 of the European Convention on Human Rights or the United Nations convention against torture. The rare cases which raise issues under either of those conventions but do not fall within the 1951 convention, are appropriately dealt with by the grant of exceptional leave to remain to which I have just referred.
The noble Lord, Lord McIntosh of Haringey, wanted the European Convention on Human Rights to be given similar status to the 1951 United Nations Convention on Refugees. But neither of those conventions—the one on human rights or the convention against torture—are fundamental to the determination of asylum claims. For instance, the

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European Convention on Human Rights is concerned with a far wider range of human rights than just the protection of individuals against persecution. Therefore it would not be at all appropriate to incorporate those conventions in a Bill that relates solely to asylum. The United Nations Convention on Civil and Political Rights, and the Convention on the Rights of the Child, contain an even broader set of factors. Again, it would not be appropriate to link those with asylum issues.
Lord McIntosh of Haringey: I wonder whether the Minister would allow me to interrupt. He used two expressions that do not correspond with the meaning of the amendments. First, he said that it would be inappropriate to incorporate those conventions into the Bill; he then said it would be inappropriate to link them with the Bill. The amendments we are discussing would not do either of those things. They would add them to the provision in Clause 2 which says that,
"Nothing in the immigration rules … shall lay down any practice which would be contrary to the Convention".
That refers to the United Nations convention of 1951. All we are saying with these amendments is that nothing in the Immigration Rules shall be contrary to these other conventions and covenants—not that they should be incorporated into the Bill as a whole.
4 p.m.
Earl Ferrers: I do not understand what the noble Lord is complaining about. He said that he just wants to add them. He complained that I said that they were going to be incorporated or linked when all he wants to do is to add them. So far as I can see, add equals incorporate or link. The noble Lord looks bored by it. But, as I understand it, what he is trying to do is to add, incorporate or link the provisions of these two conventions to the Bill. I was trying to persuade the Committee that that would be a very undesirable and inappropriate thing to do.
Lord McIntosh of Haringey: I am not bored by it at all. What I am trying to do is to set the record straight. What the amendment provides is that the 1951 convention shall apply to this Bill so far as the Immigration Rules are concerned. Clause 2 states:
"Nothing in the immigration rules … shall lay down any practice which would be contrary to the Convention".
If our amendments are agreed to, nothing in the Immigration Rules shall lay down any practice which would be contrary to the other conventions as well. That is not linking or incorporating. The Minister is simply wrong.
Earl Ferrers: I can only say that I shall have to try to study the noble Lord's diagnosis of these words more carefully. The Bill says that nothing should be done in contravention of the United Nations convention. The noble Lord wants to ensure that nothing is done in contravention of the other two conventions as well. Whether that is adding, linking or incorporating is really an irrelevance. I understand the noble Lord's concern, but the Bill deals with asylum. It deals specifically with asylum. I have tried to explain that if one incorporates, adds or links these other
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matters into the Bill as well one is adding or linking into the Bill issues very considerably wider than matters of asylum.
Lord Tordoff: I am grateful to the noble Earl for giving way. The amendment is not going outside the question of asylum. What it is saying is that this Government and previous governments have undertaken to observe certain other conventions in addition to the one that is mentioned on the face of the Bill. These other conventions also touch on the matter of asylum. What noble Lords on this side of the Committee are seeking to do is to incorporate into the Bill those matters relating to asylum which are contained in the other conventions. The Government are bound by those conventions. All we are saying is that those undertakings which have been given on an international basis should be honoured within this Bill and that there should not be this narrow restriction to the earlier convention.
Earl Ferrers: Of course there is bound to be a narrow restriction because one is dealing with a narrow fact. One is dealing with asylum. What is asylum? A definition of a refugee, or he who will become a refugee after he is granted asylum, is contained in the United Nations convention. "Ah", says the noble Lord, Lord Tordoff, "let us widen this so as to incorporate other conventions". I have given the Committee the assurance that we do not breach any of the United Kingdom's obligations under other conventions. Of course we do not. And we do respond to other compelling factors, as was witnessed by the figure of 60 per cent. which was given by the noble Lord, Lord McIntosh. But the amendments would require claims to asylum to be determined by reference to all the conventions cited. That is very much greater than simply requiring that the Immigration Rules should not contravene those conventions. That is what the Immigration Rules should do. They should not contravene those conventions to which we are properly and correctly subscribers.
Amendments Nos. 1, 27 and 31 seek to provide that an applicant may apply for leave to enter or remain under the terms of any one of the conventions or in the case of a refusal, he or she could appeal on the grounds that the refusal was contrary to the United Kingdom's obligations in any one of those fields. This is simply not possible given the way our immigration legislation is framed. This is very important. The international instruments lay down broad guidelines and principles to which states must adhere. The practicalities of entering or of leaving a state and the regulations attached thereto are for individual states.
For the United Kingdom this means that leave to enter or to remain can only be granted by virtue of the Immigration Act 1971 and that any right of appeal is also set in train only by a decision under the provisions of the Act and not by the basis on which a person wishes to remain here.
Amendment No. 27 seems to suggest that a person might apply for leave as a "refugee" not under the 1951 refugee convention but under the United Nations Convention on Civil and Political Rights. The 1951 United Nations Convention on Refugees is the

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only instrument to which we are a signatory which defines a refugee. It is that about which we are talking. Refugee status is a unique one. As my noble friend Lord Renton said, it confers rights—inalienable rights —on people, rights which cannot be taken away. It is entirely independent of any other status. This definition has no link with the substance of other instruments which deal with different social issues.
Amendments Nos. 27 to 29, 31 to 33, 35 and 37 would broaden the basis on which a failed asylum seeker could appeal. A person whose application has been rejected could appeal by referring to any obligations under other conventions. Amendments Nos. 101, 103 and 104 would make consequential amendments to the procedure rules for asylum appeal.
I can only repeat to the Committee that it is very Important that the United Kingdom remains committed to its obligations towards genuine refugees. We believe that our proposals will ensure that these obligations continue and will be met. When one defines what are our obligations towards refugees, one has to define what a refugee is; and that comes under the United Nations convention. That is what we are determining; and within that determination come all the other humanitarian factors with which noble Lords are concerned. But it would not be right to equate those factors with the very narrow field of asylum.
Lord Renton: I wonder whether my noble friend has noticed that not all the consequential amendments to which we are entitled to refer in this debate would have quite the desired effect. For example, Amendment No. 27 seeks to insert the words,
"as a refugee under the conventions".
One convention would of course be enough if the argument which we have had put before us were to prevail, which, with respect, I hope it will not.
Earl Ferrers: My noble friend is quite right that at the moment a refugee is only categorised under one convention, which is the 1951 convention. The amendment which noble Lords opposite seek to incorporate would enable the other conventions to have an equal and similar status, which is not right.
Lord Renton: It would require it.
The Lord Bishop of Ripon: Perhaps I may press the Minister on one point. As I understand it—the noble Earl has explained the position —asylum is a legal status granted to those who fall within the definition of a refugee. There are some who fall outside that strict definition who are granted exceptional leave to remain. We are delighted that at the moment the administration grants that leave in humanitarian cases. But our concern is that, while asylum is a legal obligation, exceptional leave to remain is a discretionary decision. It is not written into legislation. Therefore those who at present fall outside the definition of refugee, which includes those who have been tortured, have no, as it were, legal status. They are here only on a discretionary decision. Our concern is that some of those seem to fall within the definition of "refugee".
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I instance those who have been tortured as an example. It is clear that some of those people are at present given exceptional leave to remain, but because there is no legal obligation a future administration could operate in a different way; such people who have been tortured could be returned to their own country where they might be subjected to further torture. At present there is no legal obligation that we should provide asylum for them.
It is that distinction between the legal and the discretionary which is our concern. I wonder whether the noble Earl could give any indication of how that anxiety might be met.
Earl Ferrers: I am grateful to the right reverend Prelate for having expressed his concern so clearly. The best way in which I can explain the position to him is that any country has to operate some form of immigration rules. That is the only way in which one can work; otherwise everyone would try to come in, which would be impossible. Therefore we have immigration rules, and anyone who comes into this country is subjected to those rules which, in the vast majority of cases, are fairly broad.
In order to overcome the specific difficulties of people who are persecuted there are the asylum regulations. Those have been agreed by over 100 countries throughout the world and there is an international obligation. They all work on the same basis. If one country starts to operate on a different basis, it throws the whole situation out of kilter.
The right reverend Prelate says that there are these other people whom we really feel sorry for and whom we should like to see come in. I do not believe that it is possible to write into legislation a guarantee of acceptance for those people. The individual circumstances vary enormously and the potential numbers are vast. It cannot be done. That is why, when a person comes here, asks for asylum and is not given it, those who have to take the decision very often grant that person exceptional leave to remain, for the very kind of purposes which the right reverend Prelate has in mind: "You may not qualify legally under asylum, but we think that your situation is so awful that you ought to be allowed in". But that is different from having an internationally accepted legal status.
Lord Merlyn-Rees: I have listened with great interest to the point that the noble Earl has just made, and I operated these rules in my time. But he has raised a point in my mind on which I should be grateful for his advice. I should like to come back to the Immigration Rules, which are basic to the question I am asking.
The Immigration Rules are those that are interpreted by the immigration appeals procedures in their different forms, as I understand it. As the noble Earl has said, it is not possible to broaden a definition of refugee status, or if not refugee status something like it, to the degree that large numbers would come into a country. This is a natural matter for a government to be concerned about, but it is also natural for a government to be concerned about operating the rules in a proper fashion. As I understand the point made, other than the 1951

551
convention on refugee status, which is basic to all we are talking about, there are other conventions which say what they say, without going into them. Could those conventions be called in aid when an appeal is made under the immigration appeals procedure? Are they relevant in any way?
Earl Ferrers: When a person applies for asylum and his case is considered, if it is found that it is such that he cannot be granted asylum, the immigration officials have a duty to consider our obligations under the other conventions to see whether, if this person is sent away, such action would contravene obligations under other international conventions. So the answer to the noble Lord, Lord Merlyn-Rees, is that the matter is taken into account.
4.15 p.m.
Lord Bonham-Carter: This debate has been interesting and has raised some points of significance. The fundamental difference between the two arguments is that the noble Earl says that the result of this amendment would be to widen the scope on the basis of the Bill. That is precisely what we are trying to do. If we did not succeed in widening the definition of claim to asylum by these amendments, we should totally fail in our purpose. That is a rather basic difference of opinion which divides the two sides in this argument.
A second argument was deployed by the noble Lord, Lord Renton, when he said that the purpose of the Bill was to prevent abuse. Although it is important that abuse should be prevented, I do not regard that as the primary purpose of the Bill. I thought the primary purpose of the Bill was to decide on the rules which would apply in law to those people who are granted asylum in this country. That is very different from preventing abuse, although clearly you would have clauses in any such Bill which dealt with abuses of rules which were laid down. It is perfectly clear from what has been said that exceptional leave to remain has played a very large part in dealing with the problem which faces us. The fact that 60 per cent. in this country are people who have been given exceptional leave to remain as opposed to those who have been given asylum shows that the present definition is totally inadequate; otherwise that would not be the case.
We shall argue that one of the results of this Bill will be to erode exceptional leave to remain, and one of its purposes appears to be to diminish the discretion exercised by the Home Secretary in those special cases to which the right reverend Prelate referred. We shall be coming to that later. It is one of the aspects of the Bill which I find most unsatisfactory.
The noble Earl said that we do not breach the conventions to which we are party. I am not sure whether he is altogether right. I think we shall find, in looking at certain aspects in the schedule, that we are going to breach them, if we do not do so already. If one takes the Convention on the Rights of the Child to which I have already referred, Article 10 provides:
552
"Applications by a child or his or her parents to enter or leave a state for the purposes of family reunification shall be dealt with by states parties in a positive, humane and expeditious manner".
People who come here with exceptional leave to remain are unable to unify their families until they have stayed here for four years. I suggest that that is in clear breach of the convention to which I have referred. Therefore, the danger of our breaching conventions to which we are party is very real and should not simply be dismissed as something which does not occur.
We come finally to the point of dispute between the noble Earl and the noble Lord, Lord McIntosh, and my noble friend Lord Tordoff about what we are trying to do in references in these amendments to the conventions to which we are party, all of which are much wider and cover much wider ground than the Bill covers but all of which include references to refugees, and all of which have extended and widened the meaning of "refugee" to take into account the changes to which I referred in my opening remarks in the years since 1951 in the nature of the people who are refugees. It seems to be rather unwise to suppose that a definition devised in 1951 to deal with a situation which pertained then and which was highly influenced by the conditions of the Cold War should be relevant today in a totally different situation. The Cold War has gone, and we need to look at the problem of refugees to which the right reverend Prelate referred so eloquently, which is a genuine humanitarian task which this country has to face together with other countries of the world.
I believe that this amendment attempts to address that in a way that the Bill as at present drafted does not. I think we should discover the feelings of the Committee on this matter.
4.20 p.m.
On Question, Whether the said amendment (No. 1) shall be agreed to?
Their Lordships divided: Contents, 116; Not-Contents, 178.

Division No. 1

CONTENTS

Addington, L.

Cocks of Hartcliffe, L.

Adrian, L.

Cudlipp, L.

Airedale, L.

David, B.

Archer of Sandwell, L.

Dean of Beswick, L.

Ardwick, L.

Desai, L. [Teller.]

Ashley of Stoke, L.

Donaldson of Kingsbridge, L.

Aylestone, L.

Dormand of Easington, L.

Banks, L.

Eatwell, L.

Beaumont of Whitley, L.

Ezra, L.

Birk, B.

Falkender, B.

Blackstone, B.

Falkland, V.

Bonham-Carter, L.

Fitt, L.

Boston of Faversham, L.

Foot, L.

Bottomley, L.

Gallacher, L.

Bridges, L.

Galpern, L.

Broadbridge, L.

Geraint, L.

Brooks of Tremorfa, L.

Graham of Edmonton, L.

Buckmaster, V.

Grey, E.

Butterfield, L.

Grimond, L.

Campbell of Eskan, L.

Hampton, L.

Carmichael of Kelvingrove, L.

Hamwee, B.

Carter, L.

Harris of Greenwich, L.

Castle of Blackburn, B.

Healey, L.

Cledwyn of Penrhos, L.

Hirshfield, L.

Clinton-Davis, L.

Hollick, L.

553

Hollis of Heigham, B.

Prys-Davies, L.

Holme of Cheltenham, L.

Redesdale, L.

Hooson, L.

Richard, L.

Hylton, L.

Ripon, Bp.

Jay, L.

Ritchie of Dundee, L.

Jay of Paddington, B.

Robson of Kiddington, B.

Jeger, B.

Rochester, L.

Jenkins of Hillhead, L.

Roskill, L.

Jenkins of Putney, L.

Russell, E.

John-Mackie, L.

Sainsbury, L.

Kennet, L.

Schon, L.

Kilbracken, L.

Seear, B.

Kirkhill, L.

Sefton of Garston, L.

Llewelyn-Davies of Hastoe, B.

Serota, B.

Lockwood, B.

Shackleton, L.

Longford, E.

Shannon, E.

McCarthy, L.

Shaughnessy, L.

McIntosh of Haringey, L.

Shepherd, L.

Masham of Ilton, B.

Stallard, L.

Mayhew, L.

Stedman, B.

Merlyn-Rees, L.

Stoddart of Swindon, L.

Meston, L.

Taylor of Gryfe, L.

Milner of Leeds, L.

Thomson of Monifieth, L.

Mishcon, L.

Tordoff, L. [Teller.]

Morris of Castle Morris, L.

Underhill, L.

Mulley, L.

Wallace of Coslany, L.

Nicol, B.

Whaddon, L.

Ogmore, L.

Wharton, B.

Perry of Walton, L.

Wigoder, L.

Peston, L.

Williams of Elvel, L.

Pitt of Hampstead, L.

Williams of Mostyn, L.

Plant of Highfield, L.

Wilson of Rievaulx, L.

Ponsonby of Shulbrede, L.

Winchilsea and Nottingham, E.

NOT-CONTENTS

Ailesbury, M.

Colnbrook, L.

Alexander of Tunis, E.

Constantine of Stanmore, L.

Alexander of Weedon, L.

Cork and Orrery, E.

Alport, L.

Cranborne, V.

Archer of Weston-Super-Mare, L.

Cranworth, L.

Croham, L.

Arran, E.

Cullen of Ashbourne, L.

Ashbourne, L.

Cumberlege, B.

Astor, V.

Dacre of Glanton, L.

Astor of Hever, L.

Davidson, V.

Auckland, L.

Denham, L.

Barber, L.

Denton of Wakefield, B.

Belhaven and Stenton, L.

Derwent, L.

Beloff, L.

Downshire, M.

Belstead, L.

Elibank, L.

Bessborough, E.

Ellenborough, L.

Blake, L.

Elliott of Morpeth, L.

Blanch, L.

Faithfull, B.

Blatch, B.

Ferrers, E.

Blyth, L.

Flather, B.

Boardman, L.

Forbes, L.

Borthwick, L.

Fraser of Carmyllie, L.

Boyd-Carpenter, L.

Fraser of Kilmorack, L.

Braine of Wheatley, L.

Geddes, L.

Brentford, V.

Gibson-Watt, L.

Brigstocke, B.

Gisborough, L.

Brookeborough, V.

Goold, L.

Brougham and Vaux, L.

Goschen, V.

Burton, L.

Greenway, L.

Butterworth, L.

Gridley, L.

Cadman, L.

Grimston of Westbury, L.

Caithness, E.

Grimthorpe, L.

Caldecote, V.

Haddington, E.

Campbell of Alloway, L.

Hailsham of Saint Marylebone, L.

Campbell of Croy, L.

Carnegy of Lour, B.

Hardinge of Penshurst, L.

Carnock, L.

Harmar-Nicholls, L.

Cavendish of Furness, L.

Harmsworth, L.

Chalker of Wallasey, B.

Harvington, L.

Charteris of Amisfield, L.

Hayhoe, L.

Chelmsford, V.

Hemphill, L.

Chilver, L.

Henley, L.

Clark of Kempston, L.

Hesketh, L. [Teller.]

Cockfield, L.

Hives, L.

Coleraine, L.

Holderness, L.

554

Hood, V.

Prentice, L.

Howe, E.

Rankeillour, L.

Huntly, M.

Reay, L.

Hylton-Foster, B.

Renfrew of Kaimsthorn, L.

Ilchester, E.

Renton, L.

Johnston of Rockport, L.

Renwick, L.

Joseph, L.

Rippon of Hexham, L.

Kitchener, E.

Rodger of Earlsferry, L.

Knollys, V.

Romney, E.

Lauderdale, E.

St. Davids, V.

Liverpool, E.

Saltoun of Abernethy, Ly.

Lloyd-George of Dwyfor, E.

Sanderson of Bowden, L.

Long, V.

Seccombe, B.

Lucas of Chilworth, L.

Shrewsbury, E.

Lyell, L.

Simon of Glaisdale, L.

McAlpine of West Green, L.

Skelmersdale, L.

Mackay of Ardbrecknish, L.

Slim, V.

Mackay of Clashfern, L.

Spens, L.

Macleod of Borve, B.

Stanley of Alderley, L.

Mancroft, L.

Stewartby, L.

Margadale, L.

Stockton, E.

Marlesford, L.

Stodart of Leaston, L.

Marsh, L.

Strafford, E.

Merrivale, L.

Strange, B.

Mersey, V.

Strathmore and Kinghome, E. [Teller.]

Montagu of Beaulieu, L.

Mottistone, L.

Swinton, E.

Mountevans, L.

Terrington, L.

Mowbray and Stourton, L.

Teviot, L.

Munster, E.

Teynham, L.

Nelson, E.

Thomas of Gwydir, L.

Newall, L.

Trefgarne, L.

O'Cathain, B.

Ullswater, V.

Onslow, E.

Vaux of Harrowden, L.

Orkney, E.

Vinson, L.

Orr-Ewing, L.

Vivian, L.

Oxfuird, V.

Wade of Chorlton, L.

Palmer, L.

Wakeham, L.

Park of Monmouth, B.

Walker of Worcester, L.

Pearson of Rannoch, L.

Waterford, M.

Peel, E.

Whitelaw, V.

Pender, L.

Wise, L.

Peyton of Yeovil, L.

Wolfson, L.

Plummer of St. Marylebone, L.

Wynford, L.

Porritt, L.

Young, B.

Resolved in the negative, and amendment disagreed to accordingly.
4.30 p.m.
[Amendments Nos. 2 to 4 not moved.]
[Amendment No. 5 had been withdrawn from the Marshalled List.]
Clause 1 agreed to.
Clause 2 [Primacy of Convention]:
[Amendment No. 6 not moved.]
Clause 2 agreed to.
The Deputy Chairman of Committees (Baroness Serota): In accordance with the Instruction agreed to by the House earlier today, the Committee will now consider Amendments Nos. 71 to 86 on page 12 of the Marshalled List. I therefore call Amendment No. 71.
Lord McIntosh of Haringey Lord McIntosh of Haringey moved Amendment No. 71:
Before Schedule 1, insert the following new schedule:

Asylum and Immigration Appeals Bill

  Schedule IMMIGRATION RULES Asylum
  1. A person subject to immigration control may seek to enter or prolong his stay in the United Kingdom by applying for asylum as a refugee or may otherwise indicate a fear of being required to return to his country of origin or habitual residence. All such cases are referred to in these rules as

  555
  "asylum applications". An asylum application made by a person at a port or airport in the United Kingdom will be referred by the Immigration Officer to the Home Office. All asylum applications will be determined by the Secretary of State in accordance with the provisions of the United Nations Convention and Protocol relating to the Status of Refugees. Until such a case has been determined by the Secretary of State no action will be taken to require the person's departure from the United Kingdom.
  2. A person will be granted asylum in the United Kingdom if the Secretary of State is satisfied that—

  (a) he is in the United Kingdom or has arrived at a port of entry in the United Kingdom; and

  (b) he is a refugee, as defined by the Convention and Protocol; and

  (c) refusing his application would result in his being required to go (whether immediately or after the time limited by an existing leave to enter or remain), in breach of the Convention and Protocol, to a country in which his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.

  An application which does not meet these criteria will be refused. The Secretary of State may decide not to consider the substance of a person's claim to refugee status if he is satisfied that the person's removal to a third country would be consistent with the United Kingdom's international obligations. More details are given in paragraph 11.
  Grant of asylum
  3. If the Secretary of State decides to grant asylum and the person has not yet been given leave to enter the Immigration Officer will grant limited leave to enter; if leave to enter has been granted (whether or not the leave has expired) or where a person has entered without leave the Secretary of State will vary the existing leave or grant limited leave to remain.
  Refusal of asylum
  4. If a person seeking leave to enter is refused asylum the Immigration Officer will then resume his examination to determine whether or not to grant him leave to enter under any other provision of the Immigration Rules. If a person who has been refused leave to enter applies for asylum and that application is refused, leave to enter will again be refused and removal will proceed, provided that the applicant remains ineligible for admission under the Immigration Rules.
  5. When a person in the United Kingdom is notified that asylum has been refused he may at the same time be notified of removal directions or served with a notice of intention to deport, as appropriate. When a person with limited leave is refused asylum the leave may be curtailed if he does not meet the requirements of the rules under which leave was granted. Before any decision to deport is reached, full account will be taken of all the relevant circumstances known to the Secretary of State, including those listed in paragraph [164 of the Immigration Rules HC 251].
  Consideration of cases
  6. A failure, without reasonable explanation, to make a prompt and full disclosure of material factors, either orally or in writing, or otherwise to assist the Secretary of State to the full in establishing the facts of the case may lead to refusal. This includes failure to comply with a notice issued by the Secretary of State requiring the applicant to report to a designated place to be fingerprinted, or failure to complete an asylum questionnaire, or failure to comply with a request to attend an interview concerning the application.
  7. In determining an asylum application the Secretary of State will have regard to matters, which if no reasonable explanation is adduced, may damage an asylum applicant's credibility. Among such matter are:

  —that the applicant has failed to apply forthwith upon arrival in the United Kingdom, unless the application is founded on events which have taken place since his arrival in the United Kingdom;

  —that the applicant has made false representations, either orally or in writing;

  556

  —that the applicant has destroyed, damaged or disposed of any passport, other document or ticket relevant to his claim;

  —that the applicant has undertaken any activities in the United Kingdom before or after lodging his application which are inconsistent with his previous beliefs and behaviour and calculated to create or substantially enhance his claim to refugee status;

  —that the applicant has lodged concurrent applications for asylum in the United Kingdom or in another country.

  If the Secretary of State concludes for these or any other reasons that an asylum applicant's account is not credible, the application will be refused.
  8. The actions of anyone acting as an agent of the asylum applicant may also be taken into account in regard to the matters set out in paragraphs 6 and 7.
  9. If there is a part of the country from which the applicant claims to be a refugee in which he would not have a well-founded fear of persecution, and to which it would be reasonable to expect him to go, the application may be refused.
  10. Cases will normally be considered on an individual basis but if an applicant is part of a group whose claims are clearly not related to the criteria for refugee status in the Convention and Protocol he may be refused without examination of his individual claim. However, the Secretary of State will have regard to any evidence produced by an individual to show that his claim to refugee status should be distinguished from those of the rest of the group.
  Third country cases
  11. If the Secretary of State is satisfied that there is a safe country to which an asylum applicant can be sent his application will normally be refused without substantive consideration of his claim to refugee status. A safe country is one in which the life or freedom of the asylum applicant would not be threatened (within the meaning of Article 33 of the Convention) and the government of which would not send the applicant elsewhere in a manner contrary to the principles of the Convention and Protocol. The Secretary of State shall not remove an asylum applicant without substantive consideration of his claim unless:

  a. the asylum applicant has not arrived in the United Kingdom directly from the country in which he claims to fear persecution and has had an opportunity, at the border or within the territory or a third country, to make contact with that country's authorities in order to seek their protection; or

  b. there is other clear evidence of his admissibility to a third country.

  Provided that he is satisfied that a case meets these criteria, the Secretary of State is under no obligation to consult the authorities of the third country before the removal of an asylum applicant.
  12. In any case where it appears that an asylum applicant could be sent to a third country under the terms of paragraph 11 the Secretary of State may nevertheless decide exceptionally to consider his claim to refugee status substantively.
  Previously rejected applications
  13. When an asylum applicant has previously been refused asylum in the United Kingdom and can demonstrate no relevant and substantial change in his circumstances since that date his application will be refused.
  14. When an asylum applicant has come to the United Kingdom from another country which is a party to the United Nations Convention Relating to the Status of Refugees or its Protocol and which has considered and rejected an application for asylum from him, his application for asylum in the United Kingdom may be refused without substantive consideration of his claim to refugee status. He may be removed to that country, or another country meeting the criteria of paragraph 11, and invited to raise any new circumstances with the authorities of the country which originally considered his application.
  Rights of appeal
  15. Where asylum is refused the applicant will be provided with a notice informing him of the decision and of the reasons for refusal. The applicant will be given a copy of any interview notes and any other documents referred to in the refusal decision. At the same time that asylum is refused the applicant may be notified of removal directions or served with a notice of intention to deport, as appropriate. The notice of refusal of asylum will also explain any rights of appeal available to the applicant and will inform him of the means by which he may exercise those rights.").
  The noble Lord said: It may be for the convenience of the Committee if I introduce my remarks on Amendment No. 71 not only by repeating my thanks to the Government for the Instruction that they put down earlier this afternoon but also by explaining the purpose of the amendment, the amendments to it in the name of my noble friend Lord Clinton-Davis and the noble Lord, Lord Bonham-Carter, and subsequently Amendment No. 90 that introduces a new schedule on procedure rules. As will be obvious, we have consulted very widely on the Bill. We have consulted those who are concerned not only with the welfare of immigrants and asylum seekers but those organisations concerned with the application of the law in matters of asylum and immigration. We have consulted organisations such as Justice and the Law Society who are concerned with the application of the law in general. The view almost universally expressed to us is that this Bill—which after all is quite a short, clear Bill—is not adequate for the parliamentary scrutiny that it deserves because the real meat of the Bill is not contained on its face. The real meat comes first in the Immigration Rules, which are an administrative matter and do not come before Parliament at all, and, secondly, in the procedure rules, which are the subject of the negative instrument procedure and will be laid by the Lord Chancellor's Department.
  When one reads the Committee stage proceedings in another place—it is not a practice that one readily recommends to anyone who does not have to do it —one realises that honourable Members in considering these matters had great difficulty in getting at the guts of the subject about which they wished to speak. As I said, the meat of what ought to be in the Bill is not there. What we have done is to table in Amendments Nos. 71 and 90 the draft Immigration Rules as they presently exist and the rules for procedure. The purpose is to illustrate the extent to which, in our view, the rules conflict with the 1951 convention and the other conventions which your Lordships have agreed not to write into the Bill. What we then propose to do with Amendments Nos. 71 to 86 is to illustrate point by point those matters in the Immigration Rules which in our view conflict with the convention and with what we wish to see in Immigration Rules applied under the Bill.
  I appreciate the concern that may be felt at the risk of lengthening a Bill by amendments such as these. I see the noble Lord, Lord Renton, in his place. If the amendments are accepted the Bill will probably be doubled in length, but I believe that that is a price worth paying if it subjects to parliamentary scrutiny
  558
  the very important ways in which in practice immigration officers determine applications from refugees or, as the Bill puts it, asylum seekers.
  The concerns are probably best expressed by the Refugee Legal Centre, formerly the refugee unit of the United Kingdom Immigrants Advisory Service, the body that the Government propose should be responsible for handling appeals from asylum seekers. The centre has expressed the view that many of the rules are inconsistent with the convention and that if they are not subjected to proper parliamentary scrutiny and if some of the fundamental flaws are not addressed the new system will be beset with problems from the day that the legislation comes into force. It has also expressed the view that the decision-making criteria in the rules appear to be closely modelled on those contained in the resolution of the European Community Ministers of 30th November 1992 on manifestly unfounded claims. They are so widely drawn that they have attracted criticism from the United Nations High Commissioner for Refugees as well as from Amnesty International. Both believe that many genuine refugees will have their claims deemed manifestly unfounded and therefore excluded from any serious consideration without there being adequate investigation of substantive claims. The Refugee Legal Centre has expressed the view that the tight deadlines and expedited procedures will need to be counterbalanced by strong procedural safeguards that should be guaranteed by the Immigration Rules. That is partly a matter for the Immigration Rules and partly for the rules of procedure that we will be debating later in the Committee proceedings.
  The clear view of all expert witnesses—those involved in the implementation of the law and in the representation of asylum seekers—is that these matters should be debated in Parliament. We have adopted this procedure for doing so. I invite the Committee at this stage to accept that we move on to consider the amendments to the amendment. When those amendments have been disposed of we can return to consider the draft asylum rules as a new schedule to the Bill in a form which, I hope, we will be prepared to put formally to the decision of the Committee. I beg to move.
  [Amendment No. 72, as an amendment to Amendment No. 71, had been withdrawn from the Marshalled List.]
  Lord Clinton-Davis Lord Clinton-Davis moved, as an amendment to Amendment No. 71, Amendment No. 73:
  In paragraph 1, after ("Refugees") insert ("the United Nations Convention against Torture, the United Nations Convention on the Rights of the Child and the European Convention of Human Rights.").
  The noble Lord said: In moving Amendment No. 73, it will be for the convenience of the Committee if we discuss with it Amendments Nos. 75, 76 and 77. I can take this group of amendments quite shortly because we have already discussed in relation to the Bill many of the issues that are germane. We are now dealing with the practice; it is the practice that matters for the reasons that my noble friend Lord McIntosh outlined. We say that the purpose of the amendments is to cause the rules to come into line with the

  559
  principles adumbrated before; otherwise, if we do not discuss these matters now we will not have an opportunity to discuss them. Our concern is that as far as the practice is concerned for those considered to be at risk there should be full and proper protection. I beg to move.
  Lord Renton: At this stage I shall speak to Amendments Nos. 73, 76 and 77 only. With deep respect, I should have thought that the amendments should be regarded as being out of order, because the Committee has already made a decision on the reference to "convention" in Clause 1, and schedules to a Bill have to be consistent with what has gone previously in the clauses. If in the schedule we are going to add to Clause 1 in the way the Committee has recently decided, after a Division, not to act, then it could not be right to try to bring in the same issue as an amendment to a schedule. I know that in this place we do not have the same strict rules of procedure or the same great discretion given to the Chair—I address my remarks to the Deputy Chairman—and so, in view of the decision taken on Clause 1 by the Committee, I should have thought that the amendment to the first schedule should not be made.
  Lord McIntosh of Haringey: May I be clear about what the noble Lord is saying? Is he referring to Amendment No. 73 only or to all the amendments to Amendment No. 71?
  Lord Renton: I started by saying that I was speaking only to Amendments Nos. 73, 76 and 77, which have just been spoken to by the noble Lord, Lord Clinton-Davis, as amendments to the new schedule.
  Earl Ferrers: I was going to say only that I had assumed that the purpose of the noble Lord, Lord McIntosh, moving Amendment No. 71 was to give us an opportunity to discuss the draft asylum rules. He explained that that was what he wanted to do. I do not believe that many people would seriously propose that the practical and administrative points covered by the rules should be included in primary legislation. The asylum rules will form part of the Immigration Rules made under the 1971 Act. Those rules and any subsequent changes to them will be laid before Parliament and can be debated. It is only to be expected in any matter such as this that changes to procedures will be required from time to time—for example, whether to impose or remove a visa requirement.
  Our present system sensibly allows us an opportunity to discuss important issues while enabling administrative changes to be made relatively easily and quickly. I hope that the noble Lord, Lord McIntosh, does not have any intention of voting on the amendment and so including in the Bill a regime which would become totally inflexible and which would normally, and rightly, be outside the statute, so that it could be adjusted from time to time and be subject to parliamentary consideration.
  If the noble Lord were to try to put the amendment into the Bill, I would advise the Committee to reject it.
  560
  I think that the noble Lord wishes to use the amendment as a vehicle for discussing the asylum rules by which officials will operate the Bill's provisions which the Committee is discussing. I should have no objection to doing that. The Government have published the rules and sought comment upon them. If the Committee wishes to comment upon them under the guise of this and subsequent amendments, that is fine.
  I come now to the point made on Amendments Nos. 73, 75, 76 and 77 by my noble friend Lord Renton. He said that the principle had already been decided by the Committee and it might therefore be —I use the word loosely—improper for that matter to be put to the Committee for a second decision. Of course it is correct and reasonable to discuss the issue. All I would say is that I made the Government's position clear on the first amendment, upon which we had a Division. The remarks I made then apply equally now.
  4.45 p.m.
  Lord McIntosh of Haringey: As always, the Minister is seeking to help the Committee in its consideration of these matters. I am grateful to him for what he has said. He is right when he says that our primary purpose is to see that the Immigration Rules which exist and which the Government have publicised do not conflict with the general obligation set out in Clause 2. That is the thrust of the bulk of our amendments. The intention of the amendments tabled by my noble friend Lord Clinton-Davis is to ensure that the Immigration Rules do not conflict with Clause 2. We claim that there is a contradiction in how the Bill is to be operated, if not on the face of the Bill.
  This is the Committee stage. As to whether we divide on Amendment No. 71, if it is our view that the conflict between the rules and the convention is so great that it is necessary to insert the amendments into the legislation and leave to the Government the problem of reinserting a degree of flexibility, then we may do so. I make no promises one way or another.
  As to the point raised by the noble Lord, Lord Renton, about the four amendments in the group, I recognise the validity of the point he makes: that these amendments, although none of the others, relate to matters which have already been decided upon Division, and it might be better if my noble friend Lord Clinton-Davis were to see fit, with the leave of the Committee, to withdraw the amendment.
  Lord Tordoff: It has been worthwhile putting the amendments before the Committee because there is a distinction to be drawn between the rules which will be operated by immigration officers and the definition of "asylum" in Clauses 1 and 2. It is important to distinguish between the rules which, as the Minister has said, come before this place for debate but which cannot be amended by Parliament, and, by convention, are not rejected by this place. So this is a proper device in order to bring these matters forward. I take the point that the noble Lord, Lord Clinton-Davis, will probably withdraw the amendment, and I support that. Nevertheless, there is a

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  distinction to be drawn between the point that was made before in relation to the definition of "asylum" on the face of the Bill and matters relating to conventions in the operation of the rules. It is interesting to note that the Government will apparently draw up rules which make no reference to those other conventions, but which are rules that will have to be operated by immigration officers at our ports of entry.
  Lord McIntosh of Haringey: The position is slightly worse than the noble Lord, Lord Tordoff, suggests, because Immigration Rules do not come before Parliament in any form. The procedure rules would come under negative resolution, but the Immigration Rules which are the subject of Amendment No. 71 have no parliamentary status.
  The Lord Bishop of Ripon: I support the general point made by the noble Lord, Lord McIntosh. It is the Immigration Rules as much as the Bill itself which arouse such anxiety. There is a sense of frustration that the Immigration Rules are beyond debate. This may be a device to enable us to debate them. It is important that we should be able to do so, not just because, as we glance at them, it seems prima facie that some of them are hardly fair or just, but because they are at odds with Clause 2, which asserts the primacy of the convention. It is that difference between Clause 2 and the Immigration Rules which is causing us such difficulty, as we shall illustrate when we come to debate some of the amendments to the rules themselves. I am glad that we are able to debate the issue. It enables us to express our grave disquiet about the way in which the rules have been framed; that is, in a narrow spirit and at odds with the spirit of Clause 2 of the Bill.
  Lord Hylton: If the amendments that we are discussing were to be accepted flexibility would remain. I say that because under another part of the Bill the Secretary of State will retain his rule-making power. That disposes of the immediate question of flexibility. The advantage of accepting the amendment means that at a later stage the text of the rules can be amended in this Chamber.
  Earl Ferrers: Perhaps I may clarify one or two points because there appears to be a slight element of confusion. The noble Lord, Lord McIntosh, said that the rules do not come before Parliament. Actually they do; they are presented in a Command Paper. That is presented to Parliament and can be Prayed against. Therefore, Parliament can have the opportunity of discussing the rules. Admittedly, the Prayer is either accepted or rejected, but the rules come before Parliament in the form of a Command Paper.
  The noble Lord, Lord Tordoff, said that it is right to consider the matter because the rules are different from the definition of "asylum" with which we dealt in the first amendment. I respectfully disagree with the noble Lord because the rules operate only under the provisions of the Act. Therefore, if the Act defines "asylum" in a certain way, the rules will operate
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  according to the Act. The suggestion that they are two separate items is not correct because the rules depend upon the Act.
  I return to what was said by my noble friend Lord Renton. I do not wish to make too much of the issue; your Lordships' procedures are fairly lax and it is reasonable to discuss the matter. I believe that, procedurally, we should be wrong to vote upon the amendment because the decision was taken in relation to the first amendment, which dealt with the same issue.
  Lord Tordoff: Perhaps I may make a slight correction. The noble Earl said that the Prayer can be voted against. Of course, there is in this Chamber a convention that Members do not vote on Prayers but we may debate them. Members in another place may well vote on Prayers, but that is not the case in this Chamber.
  Lord Renton: We are being asked to do in primary legislation—albeit in a schedule and not in a clause —what we have previously done as a matter of secondary legislation but of a kind which must be laid before Parliament. There are two advantages in secondary legislation. The noble Lord, Lord McIntosh, anticipated what I believe. The first advantage is that it saves putting a great deal of detail into primary legislation. The second is that the Immigration Rules—for whose administration I was once responsible—need to be considered in the light of changing circumstances. The circumstances in which they have to be administered might require them to be amended from time to time. For such amendment to be made the subject of primary legislation each time could cause delays when that should not be the case and could create an added burden for Parliament and be quite unnecessary.
  I believe that it is far better for us to adhere to the practice which has been built up since 1971—that is, more than 20 years—of having the rules made by the Secretary of State and requiring them to be laid before Parliament. I am sure that that is the best way. Alas, the new schedule would alter that procedure.
  Lord McIntosh of Haringey: The House has already set up a Select Committee on delegated legislation. I was afraid that it might not have enough to do so I thought that I would provoke the noble Lord, Lord Renton, into speaking his words of wisdom. The committee can then consider them in considering its terms of reference.
  Lord Renton: Under the noble Lord's amendment the rules would cease to be delegated legislation. This legislation would be primary legislation and that committee would not have the power to consider it.
  Lord Clinton-Davis: The noble Lord, Lord Renton, made a salient and reasonable intervention and I accept the force of his arguments. Nevertheless, I thought that he was out to spoil my day. I could not have forgiven him for that because I have a host of other amendments to move. There appear to be a number of important points relating to the principle that we are discussing, apart from the issues raised in

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  the specific amendments under debate. The first is that we would have no opportunity in any debate to amend what might be unfounded and unjust rules. The main reason for our dealing with the matter in this way—I readily agree that the procedure is somewhat arcane —is to put under scrutiny that which by virtue of the rules we would not normally he able properly to scrutinise.
  Moreover, if the Committee were to declare itself in a particular way on some or any of the amendments, the Government might be induced to recognise that the rules must be changed. Therefore, the exercise is valuable from that point of view. However, my noble friend Lord McIntosh leads on these matters and if he says that I should withdraw the amendments, of course I shall do so. In fact, I was thinking of doing so before he prompted me. The debate has put into perspective the issues that we shall discuss later, and I beg leave to withdraw the amendment.
  Amendment to Amendment No. 71, by leave, withdrawn.
  [Amendment No. 74, as an amendment to Amendment No. 71, had been withdrawn from the Marshalled List.]
  [Amendments Nos. 75 to 77, as amendments to Amendment No. 71, not moved.]
  Lord Clinton-Davis Lord Clinton-Davis moved, as an amendment to Amendment No. 71, Amendment No. 78:
  In paragraph 2, leave out from ("An application") to end of paragraph.
  The noble Lord said: In tabling the amendment we seek to address the issue of the mandatory refusals of applications which do not fall within the criteria. Exceptional leave to remain is a doctrine which falls outside the Immigration Rules and it has always been accepted on that basis. As a result of our debate on Second Reading and debates in another place, it is clear that the Government are not concerned about providing proper protection but they are concerned about the numbers. That is our contention, but no doubt the Minister will disagree.
  I agree with what was said earlier by the noble Lord, Lord Bonham-Carter; grants of exceptional leave to remain are likely to be significantly reduced and applications which otherwise indicate a fear could fall into the typical class of an ELR application. That is categorised as an asylum application, to be refused only on the basis that it does not meet the rest of the criteria.
  I believe that a refusal along those lines could indicate that we are coming to the end of ELR. That is also the view of many people who are concerned with the day-to-day application of the rules. That is a point which the Minister needs to address, because I am sure that this point has been made repeatedly in representations to him and his colleagues. The anxieties which have been expressed by the bodies dealing with refugee matters and ELR—the two are intimately connected—need to be assuaged, if they are capable of being assuaged.
  This point needs to be addressed. I shall listen with great interest to what the Minister has to say about the matter. I beg to move.
  5 p.m.
  Lord Bonham-Carter: I support the noble Lord, Lord Clinton-Davis. Again, we are quite close to the heart of how the Bill will work in practice and we return to the question of what is the purpose of the Bill. The purpose of the Bill is to prevent abuse. The interpretation of this clause becomes more serious if the purpose of the Bill is what I have described it as being—namely, to lay down rules under which people might justifiably claim the status of refugee and claim asylum in this country.
  If, as has been suggested in some quarters, the purpose of the Bill is to reduce the numbers, once more we must look at the matter in a more sceptical light. That is what I fear it is. That is why the whole position of exceptional leave to remain is so important. I suspect that it will be discussed again and again during the course of this Committee stage. I hope that the noble Earl will confront the issue fairly and squarely. The passage which we wish to omit calls for mandatory refusal of applications that do not meet the criteria. That may well have the effect which the noble Lord, Lord Clinton-Davis, suggests. Therefore, as he did, I look forward with interest to hearing the interpretation which the noble Earl puts upon those words.
  The Lord Bishop of Ripon: I should like to comment on that part of the rules which refers to the Secretary of State's discretion to remove a person to a third country if he is satisfied that that would be consistent with the UK's international obligations.
  I see a difficulty in that regard. Article 33 of the Geneva Convention prohibits removal to a country where a person will be at any risk of persecution or at risk of onward removal. In the rules there is no indication of the criteria by which the Secretary of State will satisfy himself as to the situation of a third country or, indeed, whether there is any risk of somebody who is removed to that third country being "onward removed" to a country where he is at risk. My chief anxiety is as regards that removal to a third country.
  Lord Renton: As my noble friend Lord Ferrers is against the schedule, would it not save time if, instead of pressing him to comment on the various amendments moved to it, we were to leave any discussion on those amendments between the noble Lord, Lord McIntosh, and those who have moved the amendments to his new schedule? That may save time and save my noble friend Lord Ferrers a certain amount of trouble.
  Lord Clinton-Davis: We are not necessarily interested in saving the time of the noble Earl, although I am sure that it is invaluable. We wish to save from injustice people who seek asylum upon whom injustice may fall. With respect, I should have thought that that was a rather more cogent point.
  It is only by addressing the points one by one in the way that we have that we are likely to receive a meaningful answer. Otherwise, we may become caught up in a general debate about these issues and points may be lost. That is the sort of thing which

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  happens on Second Reading. Although I always value any point of view expressed by the noble Lord —I did so in another place when I was there with him—I disagree with him about this suggestion. I do not believe that it would be conducive to the interests of the Committee if we were to proceed along that route nor do I believe that it would be in the interests of those whose applications must fall to the authorities to he dealt with.
  Lord Hylton: It is a sad fact that four or five years ago the majority of people arriving in Britain and seeking asylum were given full refugee status. Since then, it has become the practice to give more and more people exceptional leave to remain and fewer and fewer people full refugee rights.
  That has dramatic consequences for the people concerned. Once they have been given ELR it means that they cannot bring in their wives, children and immediate dependants. That has been clearly shown in the case of those Kurds from Eastern Turkey who arrived in this country in large numbers in 1989 and in somewhat smaller numbers since that time. Most of them were not given full refugee status. However, the Secretary of State was sufficiently impressed by their cases to give them exceptional leave. He thought that it would be dangerous to send them back to Turkey. However, he seems to have failed to take into account the circumstances of their wives, children and close dependants, who were and still are subject to police harassment and deprivations of all kinds caused to them by the authorities. Those families remain divided.
  At present there is a hunger strike taking place close to the Home Office building to protest about the status that people are given and the consequences for them. I urge the Government to have second thoughts about this whole matter.
  Earl Ferrers: First, I express my deep gratitude to my noble friend Lord Renton for his courteous anxiety that I should not have any more work to do than is necessary. I value that. I hope that he will continue to exercise his mind in that direction and I invite Members of the Committee opposite to do the same. That would be extremely helpful.
  I agree with my noble friend Lord Renton that it would be wrong, for the reasons which were explained earlier, to put the rules into the Bill. These are administrative matters which are dealt with better in secondary rather than primary legislation. If dealt with in primary legislation, they are inflexible.
  Having said that, I realise that Members of the Committee opposite wish to ask the Government various questions about the rules. We published the rules and we have said that we are happy for them to be considered. If this is a vehicle by which that can be done, it satisfies a public desire.
  The noble Lord, Lord Hylton, refers to various people who sit outside the Home Office. He says that their rights should be considered. The right reverend Prelate was also anxious about that. We are implementing what are internationally agreed rules;
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  that is, the determination of who is a refugee. I return to the point that that is qualified by the United Nations Convention on Refugees.
  Having defined what is a refugee, you then have to work out how you are going to deal with that person and the other applicants who come into this country who may seek asylum but who may be determined not to be true refugees.
  The point about the amendment is quite simple and it is a matter about which the right reverend Prelate the Bishop of Ripon is anxious. The best way to help him is to explain what might happen. A person might come from another country and might come to England having travelled via a safe third country. According to international convention one only takes a refugee in when he has come from a country where it is considered he is in danger. It is an accepted convention that a person only has the right of asylum in the first country to which he goes. He cannot therefore pick and choose. He cannot go to France, for example, and then decide to come to England because he thinks England might be better.
  The rules are quite clear. If a person comes from a safe third country, he has to be returned to that safe third country. That principle is accepted by all countries that are parties to the United Nations convention. If this amendment were to be applied, it would mean that we would be obliged to accept anyone who had come, from a country, admittedly one where he was being persecuted or enduring other suffering, but who had then gone to a safe third country, for example France, before coming to England. The rules are perfectly clear and the convention is perfectly clear. People are not accepted when they have come from safe third countries. Asylum seekers are only accepted when they have come from their country of origin.
  Baroness Seear: I ask this question merely for information. Does this really mean that if someone has merely stopped over as it were, for example in Austria—I understand huge numbers of refugees have gone there—while fleeing a country where he has been in great danger, he must stay in Austria indefinitely and he has no rights to go elsewhere? That is extremely hard on Austria apart from anything else. Is that really correct?
  Lord Bonham-Carter: I hope I may add to those comments. I am informed by the United Nations High Commission for Refugees with reference to another clause in this Bill that,
  "The rules embodied in paragraph 11 appear to be based on the assumption that there is an international principle whereby a person who has left his country in order to escape persecution must apply for asylum in the first safe country he has been able to reach. It should however be pointed out that no such international principle exists".
  I do not know whether the High Commission is right, but it appears to speak with some authority on this matter.
  The Lord Bishop of Ripon: I make a further point in relation to this matter. I could envisage circumstances in which a person leaves one country, for example, passes through another country and ends up in the UK. He or she may have roots in this country; for

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  example he may have friends in this country or a community with which he or she is in touch. England in that case would be the natural country in which that person's claim is considered. The fact that a stop-over or a pause has been made in another country does not seem to me to be sufficient reason for the UK to deny the determination of such a claim to remain here.
  Earl Ferrers: The right reverend Prelate says that a person may leave a country because he is in fear, go to another country and stop over there and then come to Britain, for example, because he has friends here. If one is seeking asylum one does so because one wants to leave one's country of origin because one is being persecuted there. The principle is that it is the first country one enters which has the obligation to accept one as a person seeking asylum. The right reverend Prelate says in a most charming way that if someone has some friends in England he may prefer to seek asylum there. One cannot operate a world-wide asylum system by allowing people to choose the country to which they go.
  The matter that concerns the right reverend Prelate would be covered under the principle of exceptional leave to remain. If a person were to ask for asylum in this country and were told he could not be granted asylum because he had already gone through a safe third country, it may be that under certain circumstances, perhaps because the person concerned had connections with this country, an immigration officer may decide to grant that person exceptional leave to remain. However, that is different from giving such a person a categorical legal right merely because he is an asylum seeker. On that basis alone such a person, having passed through a safe third country, would not have the right to remain.
  The Earl of Onslow: I hope that my noble friend can help me on this matter. What happens if someone arrives, say from Croatia, and he has stopped a fortnight in Austria on the way and we tell him that he is not entitled to asylum here and therefore he must go back to Austria? Do the Austrians have to accept that person or does that person remain in perpetual motion travelling from Vienna to London and back again?
  5.15 p.m.
  Earl Ferrers: I have tried to explain that if a person leaves a country and goes to another country and sits like a bumble bee in that country for a fortnight he cannot then move to another country and then demand asylum. He is obliged to accept asylum in the country to which he goes when he leaves his own country. One cannot run a system which permits people to hop around the world and choose the country where they wish to claim asylum.
  The Earl of Onslow: I am in total agreement with the Government on this point. I am merely asking for my own information what happens if a chap arrives here from a previous safe country and he is not allowed to remain here. Can we send him back to the
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  previous safe country? What physically happens to him? I ask this question for information. As I have said, I totally agree with my noble friend on this point.
  Earl Ferrers: I can only tell my noble friend that each case has to be considered on its own merits. It would be invidious of me to say what would happen in a particular case when I do not know the conditions of that particular case. If a person comes here seeking asylum and he does not qualify for it, but nevertheless there are extraneous circumstances, he might well be given exceptional leave to remain. The view of the United Nations High Commission for Refugees is that European Community member states' acceptance of the Dublin Convention and the resolution of the host third countries shows that there is an internationally accepted principle here. The convention forbids a return to a country where a person's life or freedom would be threatened. That is the principle under which we operate and that is one of the reasons why we accepted the Dublin Convention. No doubt we shall discuss that convention later. The United Kingdom is a signatory to that convention. It provides a clear route in this matter.
  Lord Mishcon: I hope that the noble Earl will kindly help me on rather a different issue on this amendment. My suggestion is that the paragraph which the amendment seeks to remove from the Immigration Rules is completely unnecessary in any event. I invite the Committee to consider paragraph 2 which states:
  "A person will be granted asylum in the United Kingdom if the Secretary of State is satisfied that",
  the three conditions that are mentioned in the paragraph are met. The first condition is that the person,
  "is in the United Kingdom or has arrived at a port of entry in the United Kingdom".
  He has to satisfy the authorities that that is the situation. Secondly, he has to satisfy the authorities that,
  "he is a refugee, as defined by the Convention and Protocol".
  Therefore a necessary condition of his being granted asylum is that he is found to be a refugee within the convention. The third condition of his being granted asylum is that if the Secretary of State were to refuse his application the person would be returned to a country, wherever that may be, where he would be persecuted. I hope that I may paraphrase the condition printed in the Marshalled List.
  If those three conditions have to be satisfied for asylum to be granted, will somebody kindly tell me —I look to the noble Earl to do so—why one needs the additional statement that,
  "The Secretary of State may decide not to consider the substance of a person's claim to refugee status if he is satisfied that the person's removal to a third country would be consistent with the United Kingdom's international obligations"?
  That condition already appears under heading (c). The following statement adds nothing at all. If an applicant has to satisfy all those three conditions, would someone explain to me—I say this with all humility—why the final statement is necessary in any event?
  Earl Ferrers: The noble Lord, Lord Mishcon, sought help and invited me to provide it. I shall do my best to assist the noble Lord. It is curious for one such as myself to be in the position of helping an eminent lawyer such as the noble Lord, Lord Mishcon, but I am happy to have a shot.
  If the noble Lord looks at paragraph 2 he will see that it reads:
  "A person will be granted asylum in the United Kingdom if the Secretary of State is satisfied that".
  Certain conditions are then listed. However, at the end of the paragraph it is stated that he does not even have to consider the substance of the claim if the person has come from a third country. That is what is meant by the words,
  "if he is satisfied that the person's removal to a third country would be consistent with the United Kingdom's international obligations".
  One of those international obligations is that one does not accept a person from a safe third country. Therefore, if someone has come from a safe third country the asylum officer dealing with the case can say that that particular man has no case. He would not even have to consider the substance because that person had already come from a safe third country.
  Lord Mishcon: I acknowledge the noble Earl's courteous description of me. I invite him to repeat it as often as he wishes. However, although that was a very polite answer, it was not by any means a relevant answer.
  If the paragraph said that the substance need not be considered should the refugee applicant have come from another country which was safe, I would understand the noble Earl's reply. It says no such thing. It says that the Secretary of State need not consider the substance of a person's claim to refugee status if he is satisfied that the removal of that person from this country to a third country —not the arrival here from a third country—would be consistent with the United Kingdom's international obligation. As I read that paragraph—and I may be incorrect in my interpretation—it means that where the Secretary of State is satisfied that removal to a third country would be consistent with the United Kingdom's international obligations—for example, removal to France, which the Secretary of State knew happened to have vacancies at that time for refugees—he could say that there was no point in his looking into the three conditions, namely, that the man was a refugee and had arrived in the United Kingdom and so on. He could say to that person that he had made arrangements with his opposite number in France and the man could go to France. That is what it means. It has nothing to do with the country from which the person comes. It relates to the country to which the refugee may go.
  I find it extremely difficult to understand, first, the paragraph in relation to the Minster's explanation of it, and, secondly, why it is necessary in any event in view of the three conditions which have to be satisfied and which are set out in paragraph 2. Obviously, I am anxious not to waste the time of the Committee if my point is not of substance, but it appears to me that one of the arguments for agreeing to the amendment is that the last paragraph is not necessary in any event.
  Earl Ferrers: The noble Lord, Lord Mishcon, would never waste the time of any Committee because his points are always of interest. He will also realise that the rules are drawn up to be interpreted and understood by people whose speciality lies in many directions but may not lie in the same direction of legal finickiness, as the noble Lord, Lord Mishcon. The paragraph is included as a matter of clarity. It says that an application which does not meet those criteria will be refused. It then goes on to say that more details are given in paragraph 11. The person reading that can then look at paragraph 11.
  The noble Lord shakes his head. I am not succeeding in convincing him. I am merely trying to tell the noble Lord, that, as I understand it, the paragraph indicates that where a person comes to this country from a third safe country he can be sent back. I see that I have not convinced the noble Lord. Perhaps the best that I can do is to take clearer advice and write to the noble Lord. I can assure him that if he is not satisfied by that he will not be satisfied by anything.
  Lord Mishcon: Any chance of receiving a letter from the noble Earl is very welcome.
  Lord Tordoff: If the noble Lord, Lord Mishcon, reads paragraph 11 he will see that his suggestion that the Secretary of State, or whoever it might be, may have been in touch with a third country is not necessarily the case. That paragraph states specifically that:
  "Provided that he is satisfied that a case meets these criteria, the Secretary of State is under no obligation to consult the authorities of the third country before the removal of an asylum applicant".
  That makes the case worse rather than better.
  Lord McIntosh of Haringey: If we needed any evidence as to the necessity of the procedures which we have adopted of tabling the schedule for debate and then considering amendments to it, this debate has proved that we were right to do so. We have shown, and my noble friend Lord Mishcon in particular has shown, that the Immigration Rules are badly drafted. They contain cross-references which in themselves contain contradictions. We have also shown that the Minister does not understand them. The Minister in his response, in which he made a blanket statement that no applicants coming from third safe countries will be accepted, has shown that he does not understand the complexity of the wording of his own rules.
  If the Minister were right and we had never accepted applicants coming from safe third countries, then we would have no asylum applications whatever. There are no direct flights from Mogadishu; there are no direct flights from Adana in eastern Turkey or Sulaymaniyah in northern Iraq; there are no direct flights from northern Sri Lanka. If there were there would have had to be very complex arrangements for visas to be issued in those places in the first place before people could be allowed on planes subject to the carriers' liabilities conditions of this very Bill.

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  I grant that the rules seek to find a way of dealing with applicants who come from third safe countries. We have a Minister who asserts that they do not do so.
  Earl Ferrers: The noble Lord is running away with himself. I did not say that we do not do so. I tried to explain to the noble Lord that there is an obligation under law concerning people who seek asylum. One can send them back to safe third countries but one does not have to send them back. If one does not send them back one gives them exceptional leave to remain.
  The noble Lord, Lord McIntosh, said very generously that I do not understand the rules. That was a little extreme, even for the noble Lord, Lord McIntosh. I have understood the rules perfectly clearly. What I tried to do was to explain to noble Lords opposite what they are. Perhaps I failed to do so.
  Lord McIntosh of Haringey: Perhaps I may be allowed to rephrase my remarks. I certainly do not wish to give offence to the Minister for whom I have a great deal of respect. He has brought out into the open the inadequacy of the draft Immigration Rules. The amendment of my noble friend Lord Clinton-Davis seeks to deal with one particular inadequacy of the drafting. I, as the mover of the original amendment, would be happy to accept his amendment to my own.
  Lord Clinton-Davis: This short debate has yielded some interesting points, not least the inexorable logic of my noble friend Lord Mishcon. I was not his articled clerk for nothing. I would not say that my noble friend has shown the Minister not to understand all the rules. That would be fantasy. The Minister has indicated to the Committee that he wishes to think about the explanation that he has given. He is rightly concerned that he has not persuaded us as to why the paragraph should remain.
  It is not enough, however nice it may be for my noble friend Lord Mishcon to receive his missive, that it should be confined to the two of them. The issue goes wider than that. The public have a right to know. I hope that it will not be just a piece of confidential information passing between the two of them, however elegant the correspondence may be.
  In a later debate we shall return to the subject of international obligations, raised by the noble Earl. I question the point raised in his answer to the noble Lord, Lord Bonham-Carter. The UNHCR has not added the qualification to the basic point that it makes. However, we shall return to the issue later; I do not wish to take up the time of the Committee now.
  I wish to raise a point on the legal pernicketiness on the part of my noble friend Lord Mishcon. I do not believe that it is the case. We are anxious that the rules should be comprehensible. If they are open to ambiguity—it is plain that they are because the noble Earl indicated that he would take advice and return to the point in one way or another—that is not legal pernicketiness. People who are seriously affected by the rules must understand them, as those advising on such matters must understand the rules. If someone
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  with the legal experience of my noble friend has difficulty in understanding the point, I am sure that it is a matter which should exercise us all.
  I do not propose to take the matter any further. My noble friend has indicated that he is prepared to accept the amendment. I am grateful. I find it surprising that he is so generous. I accept what he has said immediately.
  On Question, amendment to Amendment No. 71 agreed to.
  [Amendment No. 79, as an amendment to Amendment No. 71, had been withdrawn from the Marshalled List.]
  5.30 p.m.
  Lord Clinton-Davis Lord Clinton-Davis moved, as an amendment to Amendment No. 71, Amendment No. 80:
  In paragraph 4, line 7, leave out ("under the Immigration Rules.").
  The noble Lord said: As drafted, the rule impairs the discretion to admit entry outside the rules. It abolishes the possibility of exceptional leave to remain being granted. Therefore that provides an inconsistency in itself. In the amendment we seek to ensure that the discretion to grant exceptional leave to remain stays. I beg to move.
  Lord Bonham-Carter: In dealing with the last amendment, the noble Earl did not confront the question of whether or not the inevitable consequence of the Bill is to reduce the numbers granted exceptional leave to remain. The amendment moves in the same direction. Perhaps in his reply the Minister will tackle the point. It is the view of many people on reading the Bill that one of its functions is to reduce the numbers of people who are granted exceptional leave to remain in this country. With all its disadvantages—the noble Lord, Lord Hylton, referred to them—it has been a safety net for a large number of people.
  Earl Ferrers: Let us deal with that point first. The purpose of the Bill is to avoid abuse. I do not think that even the noble Lord, Lord Bonham-Carter, believes that there is no abuse to the system. The result of that abuse is that the system becomes clogged. One of the results of clogging-up the system is that some people are given exceptional leave to remain. It is not the purpose of the Bill to cut down the number of people who are given exceptional leave to remain, but that may well be one of the results. If the result of the Bill is expedition of people's claims for asylum and for immigration, and such claim is satisfied in one way or another more quickly, then the number of cases granted exceptional leave to remain is likely to be fewer.
  Amendment No. 80 omits the reference to the Immigration Rules. I believe that there is a misunderstanding. The person who is refused asylum will automatically have his circumstances examined to see whether he can nevertheless be allowed to enter the country on an exceptional basis—in other words whether he can be granted exceptional leave to remain. Exceptional leave, by its very definition, is outside the Immigration Rules, and is therefore not

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  referred to in paragraph 4. Where the applicant who has no leave to enter is refused asylum, and there is no case for exceptional treatment, he will be further examined to see whether he can qualify under one of the Immigration Rules. I hope that that answer satisfies the noble Lord.
  Lord Hylton: I accept from the Minister that there has been a limited number of cases of abuse. They are few. What clogs up the system is not abuse; it is what is occurring in the world. It depends on how much persecution, civil war and violence exists. That is the first consideration.
  The second consideration with regard to the system in this country is this. How many people from the remainder of the world succeed in arriving in this country despite such factors as the Immigration (Carriers' Liability) Act?
  Earl Ferrers: I do not like to disagree with the noble Lord. He accepts that there are a few occasional abuses but states that what messes up the system is what is happening in the rest of the world. I do not agree with that. What clogs up the system is the number of people who come to this country and abuse the system. The troubles in the world cause more people to move about and cause more people to wish to come to this country.
  However, one has to have perfectly reasonable rules. Even the noble Lord, Lord Hylton, will agree that one has to have reasonable rules for immigration, otherwise the country will be open to everyone. The problem arises when people abuse those rules. That is totally different from saying that there are so many people moving around the world that more people wish to come to this country.
  Lord Hylton: There is a third factor which I have omitted. What is the capacity of our system for handling the people who present themselves? We all know that the number of immigration officers, and people dealing with asylum cases, has been considerably increased during the past 12 months. That has made a considerable inroad into the backlog.
  Earl Ferrers: It is perfectly true that many extra people have been involved in trying to deal with the backlog. However, so many people have the right and ability to remain, and to appeal—and while they appeal they stay longer—that the time it takes to satisfy the application runs into years. Very often it is because they have abused the system; that as a result of having stayed in the country so long, our system is obliged to keep them.
  We are trying to simplify the system so that those who justly come here are able to come and do not have their applications messed up, but those who do not have a right to come, should not do so.
  Lord McIntosh of Haringey: I do not know whether I should be glad or sorry that we are bringing out into the open matters which the Government may not have wished to be brought into the open. I am glad to see the noble Lord, Lord Renton, in his place again. On an earlier amendment he said that the purpose of the Bill was to prevent abuse. The Government have not
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  put it quite so crudely. I should have thought that the purpose of the Bill was to establish a just and workable system for dealing with refugees coming to the country.
  I was discouraged from thinking that—and perhaps the noble Lord, Lord Renton, is right—when I heard what the Minister has just said. He repeated what I can only call the canard that what is wrong with the immigration system—the reason it is clogged up —is because of abuse. That is not the reason why the immigration system is clogged up at all. It has been clogged up in the past because it has been under-staffed and has not had the facilities to deal with the increasing number of applicants.
  It is another canard, I suggest—and one repeated by the Government and their supporters all over the place—that those who are refused admission under asylum rules are automatically those who are abusing the rules. Of course they are not. The rules are extremely tight. They rely on the 1951 convention, which, as we have seen, is out of date in many ways. There are plenty of genuine applicants who under a more just and equitable system would be granted entry but who are not granted it under our rules. That is the reason we are debating the rules. To say that all those who fail to obtain entry are abusing the system and causing it to clog up is a misrepresentation of the true situation.
  Once again, I think that my noble friend's amendment and our persistence in putting the rules before the Committee have revealed a situation which is profoundly unsatisfactory. I suggest to the Committee, without in any way wishing to curtail debate, that it may wish to support my noble friend's amendment.
  The Lord Bishop of Ripon: I have listened carefully to the exchange between the noble Lord, Lord Hylton, and the noble Earl. It seems to me that the evidence points to the case lying with the noble Lord. It seems absolutely clear that the backlog of cases was due to the enormous number of people coming into the country—far more in 1989 than previously. Almost all the extra people who came in 1989 came from countries such as Somalia, Uganda and the Kurdish part of Iraq. The backlog to which the Minister referred was created because of the greatly increased numbers. It was brought about by those circumstances.
  To refer, therefore, to this situation as an abuse of the system does not seem to me to be justified. How are these people said to be abusing the system when all that happens is that they are waiting for their case to be determined? It takes a long time because of the backlog, but I cannot see how the word "abuse" can be used in those circumstances.
  Earl Ferrers: Perhaps I may put the right reverend Prelate's mind at rest. I did not say, nor did I imply or intend to imply, that those who were appealing or clogging up the system were abusing it. I did not intend to give that inference at all. I said that there are people who abuse the system, and I defy any Member of the Committee to say that there are none. I can tell the Committee, as I told the House on Second

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  Reading, that one person so abused the system that he applied for social security under 50 different names. In my book that is abusing the system. However, I certainly did not wish to give the inference that all those who appealed were abusing the system. Of course that is not so.
  Lord Clinton-Davis: I gather that my noble friend is once again exercising his generosity and accepting my amendment. Perhaps I may add two or three words to what has already been said. I am glad that the noble Earl qualified an inference that some of us drew from what he said which he thought was unjustified. None the less, it was an inference that we felt he was making.
  When we get the situation into proper perspective, the abuses that have resulted in convictions before the court number 27. However inconvenient that may be, it is not tantamount to clogging up the system. Of course it is not helpful; none of us is in favour of abuse, but we need to get it into a proper context. The truth is that staffing shortages were recognised by the Government, albeit late in the day. They have taken steps to rectify the position.
  I do not wish to pursue the point further at this stage. My noble friend indicated that he was prepared to accept the amendment and I am content with that.
  On Question, amendment to Amendment No. 71 agreed to.
  5.45 p.m.
  Lord Clinton-Davis Lord Clinton-Davis moved, as an amendment to Amendment No. 71, Amendment No. 81:
  In paragraph 5, leave out second sentence.
  The noble Lord said: Again I can be brief in moving this amendment. Its purpose is to underline a point. The rules indicate a proposal to serve a notice of intention to deport at the same time as the refusal of asylum. The possibility of curtailment of leave is at the least a threat to intending asylum seekers of the draconian consequences of a failed application. Consequently, we feel that the amendment is wholly justified on that basis. I beg to move.
  Earl Ferrers: The noble Lords, Lord Clinton-Davis and Lord McIntosh, are having a fine afternoon. One puts up an amendment and his noble friend then accepts it. It is curious that Members of the Committee opposite are rewriting the immigration laws, but that is a little bit of fun that they may have.
  Lord Clinton-Davis: I have been known to withdraw an amendment or two.
  Earl Ferrers: I look forward to that. It will be fun. I shall deal with this amendment simply, unless the noble Lord, Lord McIntosh, wishes to accept it, as he has the others.
  Amendment No. 81 would delete the provision relating to curtailment of leave. The powers to curtail a person's stay are in Clause 7, to which there are a number of amendments. I think that it would be best to discuss it then. If we were to amend the rules under this amendment, it would have no effect as the powers to curtail would still be in the Bill under Clause 7.
  Lord Clinton-Davis: The noble Earl is going to be surprised; I am going to withdraw the amendment! I beg leave to do so.
  Earl Ferrers: Does that mean that the noble Lord has realised that he has made a mistake?
  Lord Clinton-Davis: Far from it. I never recognise such a possibility. It is just that I think that it is more appropriate to have the debate on another occasion.
  Amendment to Amendment No. 71, by leave, withdrawn.
  Lord Clinton-Davis Lord Clinton-Davis moved, as an amendment to Amendment No. 71, Amendment No. 82:
  In paragraph 5, after second ("deport") insert ("or remove").
  The noble Lord said: This is simply a drafting amendment. What we seek to arrive at is that all persons who are threatened with enforced departure should have their cases considered in the light of all the relevant circumstances. I beg to move.
  Earl Ferrers: Amendment No. 82 would require consideration to be given to the factors which are listed in paragraph 164 of the current Immigration Rules not only before a decision to deport a person is taken but also before a decision to remove a person is taken.
  The Immigration Act 1971 makes a distinction between those who are or have been lawfully in this country and those who have not been here lawfully. Those who have been here lawfully can be removed only by the process of deportation, and consideration must be given to the factors listed in paragraph 164 to determine whether deportation is the appropriate course in their particular case. Paragraph 164 is not concerned with those who have never been here lawfully and who are subject to removal; that is, people who have been refused leave to enter or illegal entrants. I suggest that the amendment would blur that distinction.
  Lord McIntosh of Haringey: I am not convinced by the Minister's argument and am disposed to accept the amendment of my noble friend.
  On Question, amendment to Amendment No. 71 agreed to.
  Lord Clinton-Davis Lord Clinton-Davis moved, as an amendment to Amendment No. 71, Amendment No. 83:
  Leave out paragraph 6 and insert:
  ("6. Failure to assist the Secretary of State in establishing the facts of the case, without reasonable explanation, may lead to refusal.").
  The noble Lord said: This amendment will take a little longer to discuss. I start with a point which is significantly missing from the whole environment of the way in which these issues are dealt with. People who are subjected to persecution and torture are in an extremely vulnerable position and condition. In the course of preparing for the debates on the Bill, large numbers of people came forward with great experience in this field, including the UNHCR, the Refugee Council, which I chair, and many organisations which I do not propose to list here and now. They are involved in seeking to succour the victims of

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  torture. They came not only to see us; they came to see the Government. They made representations to the Government on numerous occasions. They tried to persuade the Government. Frequently it is extremely difficult to persuade people who are seeking asylum to trust other people who are invigilating their position. It is necessary to secure their confidence if justice is to be done and to break down barriers to try to influence them, in the friendliest way, to enable them to tell those investigating the cases about the traumatic experiences that they have suffered.
  We have had experience after experience, not simply within the particular area that we are considering now, of people who did not want to talk about their war experience; people who did not want to talk about being imprisoned as prisoners of war; and people who for some considerable period of time did not want to talk about the situation affecting them following an accident.
  I am a solicitor. I used to be involved in litigation and I know how difficult it sometimes is—I am sure that this is the experience of other lawyers in the Chamber—to persuade perfectly genuine people to talk about something which they have experienced and which in their lives is utterly terrible. The situation those poor people are frequently in is precisely that. They may have been threatened with torture. They may themselves have been tortured. Certainly most of them, I suggest, suffered from a measure of persecution. I wonder whether the Minister accepts that that is the situation. It requires a great deal of sensitivity in order to raise that measure of confidence.
  I have to say, from my experience in this field, as a lawyer and as a Member of another place, that sometimes even today they are treated with great hostility and a lack of understanding. That may not be so in every case, but it happens. The Minister must acknowledge it. Mistakes occur in the Immigration Service just as they occur in the police force.
  I should like to know whether the Minister accepts that a hostile approach or, to put it a little differently, an approach which is not necessarily intended as hostile on the part of the immigration officer but which is perceived as such by the asylum seeker can simply build up those inhibitions which I was talking about a moment ago. Is it therefore beyond the bounds of reasonable possibility that such people simply will not open up to an immigration official, whether at a first interview or a second interview, or whether it is to another immigration official altogether, in order to reveal those intimate details about their experiences?
  That is why we say that the issue merits special attention, as indicated in the handbook issued by the United Nations High Commission for Refugees. Paragraph 198 states:
  "A person who because of his experiences was in fear of the authorities in his own country may still feel apprehensive vis-á-vis any authority. He may therefore be afraid to speak freely and give a full and accurate account of his case".
  That statement comes from a body which is renowned internationally in terms of dealing with refugees. It has insisted it is something which must appear in a separate paragraph in its handbook. That is, I believe, simply an acknowledgment of a reality to which, with
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  respect to the Government, no attention is given in the checklist or elsewhere in the draft rules. I want to know why not. Why not simply adopt that UNHCR procedure in the rules themselves?
  The significance of the omission, in the words of the rules or in practice, can be absolutely devastating so far as a genuine asylum seeker is concerned. We regard the matter as very important indeed. I know that we shall debate the issue of fingerprinting later, but that too is relevant to what we are considering now. It may even be regarded as potentially an even more traumatic experience in the eyes of somebody genuinely seeking asylum in this country.
  One can perceive fairly easily that this situation may represent to somebody who is escaping from persecution a symbolic association with the very sort of authority from which he or she has been escaping. I do not believe it is any answer to say, in those circumstances and in the circumstance to which I was alluding a moment ago, that fingerprinting is the norm in many other countries and that in this country we can go along this line because we do not associate it with criminality. I do not see that in practice that is how the matter will be perceived.
  I am sure that at the present time in this country only people who are suspected or convicted of crimes are fingerprinted. I do not believe that we should depart from that practice and widen it. It is not beyond the realms of probability that a later rational explanation for the refusal or failure to be fingerprinted, or indeed a failure to report—it simply becomes the same sort of thing—is likely to fall on deaf ears. That is the risk. In the eyes of the Home Office, a person who refuses to acknowledge such issues, which stand out in the Immigration Rules, effectively stands condemned. The psychological realities can lead to risk of penalty being ignored.
  The amendment is designed to ensure that genuine asylum seekers are not so penalised—perhaps victimised would be a better word to use—and that a sensitive and compassionate view is taken of the situation in which the asylum seeker finds himself or herself in the process of the application being determined. I believe that those are realities. If the UNHCR can recognise them, I think it behoves the Government to do likewise. I beg to move.
  6 p.m.
  Lord Gridley: Perhaps I may give some explanation of the way I feel about Amendment No. 83. The Opposition speak of people who have been tortured. Torture has taken place in many parts of the world. It is relevant to find out why. It is because various factions in a country where it is practised use their method of torturing a person to get something out of him. It means that the country is being run under various systems.
  It is only too easy for people to come to this country and say that they have been tortured when in fact they may not have been. Are we to accept their word entirely? To think that under those circumstances it is possible for the British Government to go all over the world trying to find the relevant evidence to substantiate the claim would be most unreasonable.

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  I speak from personal experience because I was tortured by the Japanese. When I happened to go back to that country after the war I found a system in place where every faction was against every other faction in trying to run things. People were telling all kinds of stories about themselves. That kind of thing happens when people lose confidence. Therefore, I say tonight that the argument of the noble Lord, Lord Clinton-Davis, that we must trust people and they must trust us is beyond what is required in the Immigration Rules. What is required is evidence that the truth is being produced in this country and that the person has definitely suffered from torture.
  Lord Hylton: I support what was said by the noble Lord, Lord Clinton-Davis, in moving Amendment No. 83. I am in regular touch with the Medical Foundation for the Care of Victims of Torture. That organisation was formed in the first place by the medical section of Amnesty International. During the five or six years it has been in existence it has treated and cared for some thousands of people who have experienced torture in third countries and have come to Britain.
  I should like to quote from what the foundation said in a document dated January 1993, which simply repeated the substance of previous documents prepared in relation to the earlier Bill on the subject. The foundation says:
  "The testimony of our patients has shown that people who have been imprisoned and tortured find it very hard to talk about their experiences with anyone. This difficulty is similar to that of rape victims who, feeling degraded, find it very hard to reveal what happened. And rape is often part of torture. Such asylum seekers are often fearful that information may be passed back to their own country and endanger family and friends. They are not always aware without advice of what information is relevant, or it may not be readily available".
  In relation to the Government, the Bill and the rules, the foundation went on to state:
  "We urge that an assurance be given that the difficulties experienced by tortured asylum seekers in recounting their experiences should not be held against them so as to prejudice their claim".
  That I can heartily support.
  In that context I should like to mention also that the question of interpreters being used when people who do not understand or speak English are being interviewed and assessed is of paramount importance. I suggest that it is necessary to have fully fluent interpreters who are capable of taking a sympathetic approach to an asylum seeker and in particular to one who has suffered torture or other maltreatment.
  Finally, the training of immigration officers and of adjudicators who have to handle those matters is another aspect which probably needs more thought and certainly the greatest amount of care.
  Lord Boyd-Carpenter: Of course one understands the feelings of those who have been subjected to inhuman practices and abuse and that they may well be in a neurotic state. But if the Committee will look at paragraph 6, which the amendment proposes to delete, it offers a perfectly reasonable set of proposals.
  Of course, one must assume, as I do, that the British officials who will administer the provision will do so with sensitivity and taste. But it is also their job to get
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  at the facts. It is known that a good many people seek to enter this country who are not entitled to qualify as refugees but who simply regard life in this country —sensibly as it happens—as a great deal more preferable to life in most other countries. Therefore it is necessary that they should be carefully examined. Paragraph 6 seems to get it about right. I hope that the Committee will not accept the amendment.
  Lord Mishcon: I rise because of the contribution made by the noble Lord, Lord Boyd-Carpenter. He is right to refer to the wording of the clause about which we are talking. The benefit of the debate I hope will be that the Secretary of State, with the able assistance of the noble Earl, Lord Ferrers, will be able to look at the Immigration Rules and see whether they are too harshly worded and whether an immigration officer who is not too sympathetic to the applications made to him will want to act rather like the barrack-room lawyer one often found in the Army: he would look at his little book on the Army Act and decide in stern circumstances to administer what may have been even more than a rebuke to a recalcitrant soldier.
  I accept the invitation from the noble Lord, Lord Boyd-Carpenter. I am looking at the rule and pretending for a moment that I am an immigration officer, well trained to ensure that the rules are abided by. Let us look at them and then look at the amendment.
  First, the rule refers to,
  "A failure, without reasonable explanation".
  Therefore I must give an explanation which the immigration officer thinks is reasonable. What if I fail to do that? I must not only tell him about "material factors", but I may fail to "make a prompt" disclosure. I suppose I may do it a day late in his view, or I do not do it when he asks me; it must be prompt.
  There must be "full disclosure". That is not just a disclosure; it must be absolutely full. It must be "of material factors". Therefore I must disclose in regard to material factors, but not only in regard to material factors, because it goes on,
  "either orally or in writing, or otherwise to assist the Secretary of State".
  Therefore, it is not only a question of my making a prompt and full disclosure of the material facts; there may be other things that I have not done. Although I have done all that, I have not fulfilled the "otherwise" or "to the full". I do not know why the word "full" appears again after the words "full disclosure" in the second line. I suppose it makes the bureaucratic case a little more substantial.
  The paragraph goes on,
  "in establishing the facts of the case may lead to refusal".
  The provision then talks about a failure to keep an appointment for fingerprinting and so forth. I do not want to go into that because I then say to myself, having heard the words uttered so far, "What are we trying to do?" Are we not saying to the applicant, "If you do not establish the facts of your case to our reasonable satisfaction, you know that it may lead to a failure"? When exercising the powers of the person interviewing the applicant that is surely all we want to say to any human being. In the words of the amendment we say,

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  "Failure to assist the Secretary of State in establishing the facts of the case, without reasonable explanation, may lead to refusal".
  It is simple, it is humane and it is not punctilious.
  Lord Boyd-Carpenter: Before the noble Lord sits down, is it not a considerable advantage to the applicant to have spelt out, as paragraph 6 spells out, the kind of things which he is expected to establish? The few words of the amendment give him no guidance and no lead at all as to that. Surely if the noble Lord himself were in that position he would find it helpful to have spelt out in advance the headings of the matters on which he would have to satisfy the authorities so that he knew what to say and what he was ready to do.
  Lord Mishcon: I have been invited to answer a question put by the noble Lord, Lord Boyd-Carpenter, and I do so very readily. I do not think that this is here for the advantage of the applicant. The words which make it prompt, full and so on are there for the person who is exercising the discretion to determine whether the application that is being made should fail. If the noble Lord visualises that the normal applicant who will come to our shores as a refugee will find it helpful if someone shows him the wording of this rule as it now exists in paragraph 6, I think that we are dealing with a very unreal situation.
  I by no means wish to attack our immigration officials. They do a very difficult job in the main, but they are human. Like policemen, who are human, we find that there are a few members of the flock who not only take their responsibilities too seriously but act in a way which was never meant by Parliament or by a Minister. I say that you get all that you want by giving an immigration official the discretion to say, and I repeat these words, "You have failed to assist the Secretary of State in establishing the facts of your case. You have done so without reasonable explanation. This may lead to refusal". What more does one want?
  The Earl of Onslow: It seems to me that the amendment allows the immigration official to be more of a barrack-room lawyer than does paragraph 6. Furthermore, if someone wants to come here and establish the fact that he is a genuine asylum seeker, he has to prove the case and prove it properly. As my noble friend Lord Boyd-Carpenter said, it is much fairer to have it spelt out than to accept the words proposed in the amendment. The amendment contains the words "without reasonable explanation". What is a reasonable explanation? The amendment would allow the immigration official almost to say, "You are not speaking the Queen's English", or something like that. The existing provision is much fairer. The man must be allowed, or must be asked, to make a full and prompt explanation and disclosure of why he wants to come here and why he should be allowed asylum. That seems to me much fairer than the amendment proposed by noble Lords opposite.
  Lord Mishcon: Before the noble Earl sits down—I promise the Committee that this is the last time that I shall speak on this amendment—he will find the words "without reasonable explanation" in Rule 6.
  The Lord Bishop of Ripon: I am grateful to the noble Lord, Lord Mishcon, for giving our debate some substance. I had felt a certain air of unreality about it as we went through amendment after amendment conscious that there was a substantive amendment to be considered in due course. In inviting the Secretary of State along with the noble Earl the Minister to take note of our debate in considering the Immigration Rules, he has indicated that we are perhaps doing something of significance in the Chamber this evening. I certainly believe that we are. It seems to me that for the first time in considering these rules we have come to a point where there is a widespread disquiet among those who work in this field about this rule. What we are attempting to do is to express that disquiet in this Chamber. I believe the noble Lord, Lord Mishcon, has done that extremely well.
  The noble Lord, Lord Boyd-Carpenter, talked about people coming to this country in a neurotic state. I do not think that that word is quite the correct one. Surely the word "traumatised" would more accurately describe the state in which they arrive. It is our concern that people who come to this country in that state should have proper treatment that underlies our desire to amend the rules as they stand.
  The proposed amendment is a more balanced and fair one. It is not in any way intended to be a guide for those who seek asylum. I cannot see asylum seekers wanting to seek out the Bill and to look up copies of it. From where will they get copies of the Bill? They might indeed look to proper advice at that stage. Such advice would be from those who have knowledge of the Bill. The Bill and the rules are to provide some kind of guidance for the immigration official and for those who are advising asylum seekers—not for the seekers themselves. The revised amendment more properly gives a fair balance and a better account of the situation. The rules as they stand undoubtedly give a kind of narrow view. Like many of the rules, they seem to be a number of hurdles over which asylum seekers have to jump rather than a way in which immigration officials can be guided fairly to make a proper and just claim of their desire to seek asylum.
  6.15 p.m.
  Lord Bonham-Carter: The right reverend Prelate raised an interesting point when he said that people may seek advice. That is one reason why they may not wish to give a prompt explanation. Before giving an explanation of why one is seeking asylum in a foreign country whose rules one does not know or understand, one of the things an intelligent person might do is to seek advice. If one has to seek advice, there may be some delay. If there is some delay, one will fall foul of one aspect of the provision that we are trying to amend.
  However, the point I want to raise is one which I have raised before. The Bill makes no distinction between adults and children. Does this clause really apply to children? If not, should it not be made clear that it does not apply to children? If it does apply to children, it is absolutely ludicrous. Do we really expect an unaccompanied child coming to this country to

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  carry out all those steps which the noble Lord, Lord Mishcon, described so aptly? We should have an answer to that simple but nonetheless important question.
  Earl Ferrers: I am quite happy to give the noble Lord an answer to that simple but fundamental question. Of course it applies to children. All immigration matters apply equally to children as they do to adults. We shall come to children later so let us dispense with that for the time being. But to suggest that one could have a form of immigration that did not apply to children would not be at all suitable.
  Lord Bonham-Carter: I am grateful to the noble Earl for giving way. Surely it would be possible to have different rules applying to children and adults. That happens in many aspects of life. Children are not allowed to do some things which adults are allowed to do. The law of England in many respects distinguishes between adults and children. I do not see why immigration law should be an exception.
  Earl Ferrers: I suggested that we would come to children a little later on. What we are dealing with here is the consideration of cases. I was glad to see that noble Lords opposite accept that asylum applicants have a duty to co-operate as fully as possible in the asylum process. I agree with the noble Lord, Lord Clinton-Davis. It would be quite wrong if there was a hostile approach to people when they came here or if the approach of immigration officers was perceived as hostile. That could frighten people. If that were to be the case, people would get frightened. I agree with my noble friend Lord Boyd-Carpenter that these matters should be handled with taste, decency and care. I would hope that they would be.
  The noble Lord, Lord Hylton, said that the torturing of asylum seekers and the effect that it had had on them should not prejudice their claim to asylum. All I can say to that is that it certainly should not; and I hope that it would not. That is why one cannot make laws about this matter. One must depend on the way in which the individual officer deals with each individual case.
  The noble Lord, Lord Clinton-Davis, asked why we did not include the handbook of the United Nations High Commissioner for Refugees. The handbook is a very valuable and worthwhile guidance document, and all asylum division staff are issued with a copy. The views of the United Nations High Commissioner for Refugees are widely respected. Indeed, they are often sought, and regard is had to any court judgment which affects asylum seekers. But the handbook is not exhaustive, as is acknowledged by the authors; nor is it in any way definitive. Both the handbook of the United Nations High Commissioner for Refugees and court rulings can only be guides, and they are subject to change and challenge. On this basis I think it would be wrong to incorporate them into legislation which is necessarily much more unwieldy.
  The noble Lord, Lord Mishcon, invited your Lordships to extend your imagination, I think to the limit, when he suggested that we should consider what
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  it would be like if the noble Lord, Lord Mishcon, were an immigration officer. I have thought of the noble Lord, Lord Mishcon, in many guises, but not until this evening had I thought of him in that guise.
  It is very difficult for the Government, because when we spell out matters noble Lords say "It is too long. Why don't you shorten it?" When we make it shorter, noble Lords say "Let's spell it out and find out what the Government mean". I agree with my noble friend Lord Boyd-Carpenter that it is better when it is spelt out. The noble Lord, Lord Mishcon, said that these rules were not designed for the advantage of the applicant. That is true. They were designed for the instruction of the officer and how he should carry out the rules and the law under which those rules are made. The noble Lord, Lord Mishcon, said that he thought that it would be much better to have the proposed amendment in the Bill because it would give the immigration officer much more discretion. However, earlier, the noble Lord had referred to the barrack-room lawyer. One wonders what that person could do if he had wide discretion. If the noble Lord and others are frightened of what immigration officers could do, I think it is better clearly to spell out what they should do.
  Also, this amendment deletes two requirements which we believe to be crucial in establishing the bona fides of the applicant and in ensuring a system which is free from delay and misuse. The aim of the whole system is to speed up and unclog the decision-making process at all levels. At present many applicants delay claiming asylum until they have exhausted all the other immigration avenues. Others take many months to return a questionnaire. Others fail repeatedly to attend for interviews, or they progressively change their stories.
  Earlier this evening I was tackled about the question of abuse. I am bound to tell your Lordships that some 15,000 cases were refused last year for the simple reason that the applicants failed to attend the interviews or to provide information despite repeated requests. That is an abuse of the system, and it also clogs up the system for the genuine applicant. In some cases this may be the result of fear and confusion, but in others it is not; it is a case of dragging out the procedures. I think that that is unacceptable.
  Applicants will continue to be able to seek professional help and advice in presenting their cases. They will be given every opportunity to put their stories in writing and at interviews, but there must be some onus on them to take advantage of these opportunities, and there must be some sanction against people who are deliberately non co-operative. It is right to spell out in the rules the lines the immigration officer should take, and I think that the rules as prescribed are correct.
  Lord Tordoff: I should have thought that the people who have been described by the noble Earl would have been caught within the terms of the amendment. Clearly, in many cases the sort of people he was describing are people who have failed to assist the Secretary of State.
  I should like to ask a specific question about paragraph 6, where it says:

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  "This includes failure to comply with a notice … or failure to complete an asylum questionnaire".
  What does that mean exactly? Do we know what is in the questionnaire? I do not think it is in the rules. I have seen questionnaires that ask all sorts of questions which I could not answer. I can imagine some people coming from foreign parts finding it difficult to answer the question about their mother's maiden name. Would that preclude them from coming in under the rules? People are afraid that there are artificial trip wires being put into the rules and that they may be used, by people who are not necessarily as scrupulous as one might wish, to prevent people getting in.
  Earl Ferrers: The noble Lord, Lord Tordoff, says that there are some artificial trip wires being put up for these people. That is not the case at all. It is a very simple questionnaire —I do not have it in front of me —asking about personal details of their family. The noble Lord, Lord Tordoff, says that they might find that very difficult to answer. All I can say is that I should be surprised if the person cannot provide his family details. I have no doubt, if we are not careful enough—I am not suggesting this—that we shall have the noble Lord, Lord McIntosh, putting down a questionnaire, and then your Lordships will be invited to alter it and the noble Lord, Lord McIntosh, will accept your Lordships' alterations. But I really think that is going too far. The questionnaire is perfectly simple, and if people fail to complete it, indicating what they are doing and where they have come from, that is a perfectly good reason for saying "You can't be a genuine applicant".
  Lord Tordoff: But there are cases where people cannot answer apparently simple questions—people coming from areas of great turmoil, for instance the children to whom my noble friend referred coming from Bosnia who have been split from their families at an earlier stage. They may very well not be able to answer the kind of questions that may seem quite simple to us.
  All I am saying is that, on paper, this appears to be a very rigid set of rules. Admittedly, there are not too many of them, but they can be interpreted extremely rigidly. The amendment seeks to widen the scope for discretion.
  Lord McIntosh of Haringey: The Minister should not tempt me. He should know that I have been a market researcher for 35 years and I spent all that time writing questionnaires, and if I am tempted I will put a questionnaire into the Bill.
  Earl Ferrers: I did not want to tempt the noble Lord. We must let him concentrate his efforts where they are better used.
  Lord McIntosh of Haringey: I prefer a questionnaire to some of the econometric equations which tend to appear in government legislation.
  The thrust of this useful discussion has been about the issue of whether it is better to spell things out or to allow flexibility. In general, I would agree that it is more helpful to spell things out. Unfortunately, on this occasion the advice of the United Nations High Commissioner for Refugees is quite explicit: that
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  spelling out conditions is not advisable and not welcome when all those conditions are designed to help refusal. That is the thrust of paragraph 6 of the rules which we are now considering. It is also the thrust of paragraphs 7 to 10 of the rules. If the spelling out is all one-sided it is undesirable, and the flexibility proposed by my noble friend in this amendment is desirable.
  Lord Clinton-Davis: I should like from my own experience as a lawyer dealing with immigration cases to illustrate briefly what my noble friend has said. It seems somehow to be in conflict with the experience of the noble Earl.
  Immigration officers do abuse their authority, bully people and treat them scandalously. That is not acceptable. I am not seeking to assert that all immigration officials behave in that way. As I said earlier, that would be a travesty of the position. But, if these rules are for the benefit of the immigration official as the Minister said, why should we not draw to the attention of those who do not understand their duties properly the fact that a person—who, because of his experiences, is in fear of the authorities in his own country—may still feel apprehensive vis-á-vis any authority? He may be afraid to speak freely and give a full and accurate account of his case. A reminder is needed. If the Minister says that the measures are for the benefit of the immigration official, I do not see why he is reluctant to include provisions like those contained in the rules.
  Earlier on the Minister said that it was for the benefit of the asylum seeker because he wanted to know where he stood. So the Minister is seeking to have the matter both ways. However, since my amendment is accepted I am content.
  On Question, amendment to Amendment No. 71 agreed to.
  6.30 p.m.
  Lord Clinton-Davis Lord Clinton-Davis moved, as an amendment to Amendment No. 71, Amendment No. 84:
  Leave out paragraphs 7 to 10 and insert:
  ("7. In determining an asylum application, the Secretary of State will have regard to matters and criteria contained in the UNHCR Handbook of procedures and criteria for determining refugee status and such other guidance as may from time to time be given by the UNHCR or decisions of the European Court of Justice and Court of Human Rights.
  8. In determining an asylum application from a child under the age of 18, the Secretary of State shall have regard to—

  (a) the ability of the child to articulate a well-founded fear of persecution; and an assessment of that child's ability shall in all cases be made by an independent childcare expert who has particular experience in dealing with refugee children;

  (b) specific characteristics of the child's ethnic, national or religious or other social group, and the effect that this may have upon the child's application for asylum; and

  (c) the whereabouts and circumstances of the child's parents and other family members or guardians, either in the country from which refuge is sought, or elsewhere.").

  The noble Lord said: I fear that this amendment is going to take a little longer because it encompasses a checklist which we are seeking to scrutinise and amend. The whole concept of a checklist of this kind

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  has been assailed briefly in the last debate by the noble Lord, Lord Tordoff. I endorse that particular point of view.
  Another purpose that we should be seeking to fulfil is, as I said a moment ago, to have regard specifically to certain criteria which are set out in the UNHCR handbook and such other guidance that may be given from time to time by that body or by decisions of the European Convention on Human Rights and by the Court of Human Rights.
  In the case of a person under the age of 18 we say that there should be a requirement that the Secretary of State should have regard to the matters which we set out in the amendment under paragraphs (a), (b) and (c). Our objection to the draft regulations is wide. The regulations state:
  "In determining an asylum application the Secretary of State will have regard to matters, which if no reasonable explanation is adduced, may damage an asylum applicant's credibility".
  Does that mean all matters? I believe that it must because no other construction is possible. It is tantamount to saying, as these rules do, that refusal will almost certainly follow if an application fails to meet any of the criteria which are listed. I believe that there is a likelihood of the Secretary of State drawing adverse inferences as regards the applicant's credibility which could lead to palpable injustice.
  Perhaps I may go through these matters. The first is,
  "that the applicant has failed to apply forthwith upon arrival in the United Kingdom, unless the application is founded on events which have taken place since his arrival in the United Kingdom".
  That point was made earlier by my noble friend Lord Mishcon. The use of the word "forthwith" is very much more onerous than Article 31 of the 1951 convention provides. I am not at all sure that it is not seriously in conflict with that article which states:
  "The Contracting States shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened in the sense of Article 1, enter or are present in their territory without authorisation, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence".
  Article 31.2 states:
  "The Contracting States shall allow such refugees a reasonable period and all the necessary facilities to obtain admission into another country".
  That is not applied as far as this matter is concerned.
  Then there is the question of false representation. The second matter reads,
  "that the applicant has made false representations, either orally or in writing".
  Do such false representations include those made to authorities elsewhere in the country from which the asylum seeker is fleeing? Are they false representations to the airline staff to enable the refugee to get on board an aircraft? Is it false representations—which I assume is what the Minister has most in mind—to the immigration authorities here? That is contrary to Article 1 A of the convention itself. I shall not burden the Committee with that at this stage. But there is a palpable conflict as far as that is concerned.
  Perhaps I may illustrate what I mean. The article itself defines a refugee as a person who has a
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  well-founded fear of persecution outside his country of nationality. There is no reference to the circumstances or the means whereby that person came to be outside his country. But the essence of the Immigration (Carriers' Liability) Act 1987 is that refugees cannot get out of their country of persecution without visas or travel documents.
  These issues were addressed by Mr. Justice Schiemann in Yassine (1990) reported in immigration Appeal Reports at page 354. He said this:
  "He who wishes to obtain asylum in this country short of prior contact with the Home Secretary offering him asylum, has the option of:

  1. Lying to the United Kingdom authorities in his country in order to obtain a tourist or some other sort of visa;

  2. Obtaining a credible forgery of a visa;

  3. Obtaining an airline ticket to a 3rd country with a stopover in the United Kingdom".

  I believe that the learned judge summarised the issues very clearly indeed. The issues set out here simply do not address the merits of an application for asylum. In this amendment we are seeking to address the realities which are ignored in the criteria which have been adopted in the draft rules.
  The third element here is,
  "that the applicant has destroyed, damaged or disposed of any passport, other document or ticket relevant to his claim".
  That is a point raised in previous debates. Sometimes the refugees simply have no alternative but to get rid of their travel documents or passports in order to escape. Does not the Minister accept that? Another ground is,
  "that the applicant has undertaken any activities in the United Kingdom before or after lodging his application which are inconsistent with his previous beliefs and behaviour and calculated to create or substantially enhance his claim to refugee status".
  Again, that blithely ignores the experience which is set out in the handbook itself in paragraphs 94 to 96 which deal pertinently with these specific issues. The handbook recognises that persons can become refugees—using the jargon "sur place"—where they cannot show that the authorities knew of their political beliefs before they left their own country but where their true state of mind gives rise to a fear of persecution if they are required to return.
  The terrors of persecution in their home country can be such that any hint of opposition can result in persecution, torture and imprisonment. It is only when the refugee comes to a free country and a safer environment where he knows that he will not be subjected to those kinds of pressures, that he feels sufficiently safe to express his genuine views in public. He may feel impelled to do so because of the injustice that is happening in his home country. To take that into account as an assessment of whether or not he should be given asylum seems an absolute travesty of what ought to be happening. Should not a genuine refugee in a democracy feel that there are obligations upon him to speak of his experiences and his thoughts? That may make him more vulnerable if he is returned home, but to impose that kind of condition is utterly absurd and short of reality.
  I turn to the question of the asylum seeker lodging concurrent applications in the United Kingdom or in another country. That point was raised very pertinently by the noble Lord, Lord Bonham-Carter,

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  in the Second Reading debate. It was never properly addressed by the Minister in his reply. One understands why it is necessary to make concurrent applications. One may feel that there is absolutely no alternative. To regard that as a significant black mark against an asylum seeker is to fly in the face of reality.
  Paragraph 8 of the draft rules states:
  "The actions of anyone acting as an agent of the asylum applicant may be taken into account in regard to the matters set out in paragraphs 6 and 7".
  Is that not utterly absurd? The tragedy is that its absurdity may have the most draconian consequences. How can the actions of people acting as agents of the asylum seeker, if undertaken without the express approval of the asylum seeker, affect the credibility of the applicant? Does it make sense at all?
  I turn to paragraph 9:
  "If there is a part of the country from which the applicant claims to be a refugee in which he would not have a well-founded fear of persecution, and to which it would be reasonable to expect him to go, the application may be refused".
  There is no reference to "a part of the country" in any of the other rules of which I am aware; certainly not in paragraph 91 of the handbook. How does that accord with the spirit of Article 1A of the convention that talks not of a part of a country but of that country?
  Paragraph 10 offends a fundamental premise of the convention and the handbook because it is asserted over and over again that claims should be considered on an individual basis. The Government contravene those provisions by saying that it is permissible to deal with people as a group. There is a presumption that if one is involved in the activities of a group one is tainted. The burden of establishing that one is innocent in one's purposes falls upon the asylum seeker. It is very difficult to discharge that burden. I believe that it is not only wrong in law but absurd in practice.
  Paragraph 7 of our amendment deals with children. We anticipated this matter in some respects in earlier debates. I agree wholly with the the noble Lord, Lord Bonham-Carter, that the law prescribes that children are dealt with on a totally different basis from the generality of the law in many respects. Why should the law relating to asylum be different? Part of the preamble to the United Nations Convention on the Rights of the Child reads:
  "The child by reasons of physical and mental immaturity needs special safeguards and care".
  That is recognised in many areas of the law and should be recognised in the law relating to asylum. The matter is also dealt with in the 1988 guidelines for refugee children and in paragraphs 213 to 219 of the handbook. I suggest it is obvious to most of us in this Chamber that children have to be dealt with separately and therefore need to be dealt with separately in the rules. It makes absolutely no sense that that should not be so. As this is perhaps one of the few occasions when we are able to scrutinise the rules, I hope that the benefit of the debate will be that the Minister will say that the Government have to do something about it.
  I shall try to be brief because I bear in mind that time is passing. We believe that because the rules are
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  to be dealt with for the benefit of immigration officials, there is specific reason for making sure that children are mentioned definitively. I do not know why the Government have chosen not to do that. No doubt the Minister will seek to explain. I believe that the sense of those on this side of the Chamber, and I hope of some on the other side, is that the case that we make out to deal with children specifically and differently is an overwhelming one. I beg to move.
  6.45 p.m.
  The Lord Bishop of Ripon: It is becoming clear that the objections of some of us in the Committee to the Immigration Rules rest not only upon our difficulties with particular rules but upon the overall effect of them. I referred earlier to the rules as a set of hurdles. The noble Lord, Lord Tordoff, referred to them as a set of trip wires. In the paragraphs of the rules we see a whole series of factors. The United Nations High Commissioner for Refugees has expressed objection not only to the draft rules but also to the effect of the rules in totality. In measured language the UNHCR says that evaluation of credibility is a process that involves the consideration of many complex factors, both objective and subjective, that are impossible to enumerate and all possibly of equal importance. As such, any selection of factors which should be given special consideration when assessing a claim will necessarily be arbitrary.
  The real point is that if in addition the selection is made with the declared aim of providing the Home Office with a list of reasons to refuse applications for asylum the impression conveyed is one of bias against asylum seekers. The heart of our objection is that the rules convey the impression of bias against asylum seekers. If that appears to be the case to the United Nations High Commissioner for Refugees it also appears to be the case to some of those in this country who are working in the field. I refer for instance to the Refugee Legal Centre. The centre was set up by the Government to provide advice and legal representation on appeal to those seeking asylum. The centre has expressed objection both to the rules as a whole and to particular rules. I do not want to go through the list as the noble Lord, Lord Clinton-Davis, has already done so. However, one particular rule seems to put asylum seekers in a virtually impossible situation. I refer to the rule dealing with the destruction of documents. Not only does rule 7 apparently contravene Article 31 of the 1951 convention, which prohibits the imposition of penalties upon refugees on account of their illegal entry or presence, but it also seems to provide an almost insurmountable hurdle to their ever arriving here at all—a hurdle that was made higher by the carriers' liability Act.
  Many asylum seekers are in a Catch-22 situation. Someone cannot be recognised as a refugee unless he has left his country of origin and sought asylum elsewhere. Yet, as we know, there is no provision in the asylum rules to grant entry clearance as an asylum seeker for someone overseas. How are they to reach this country? In many cases it can be only by the acquisition of false documents. The fact that those documents are destroyed during the journey surely

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  does not make the seeking of asylum of any less merit. That is the only way in which a person can reach this country. That rule seems to contravene the spirit and the letter of the UN convention.
  Lord Finsberg: Perhaps I may make a brief contribution, because I spent 22 years in another place with a constituency that had a large immigrant population. Without its support I may not have held that seat for 22 years. I found that two kinds of people would come to me for advice on the old rules and, looking at the new rules, I do not see that much difference. There were those who spun one the most heart-rending stories. They produced documentation, and, I must confess, for the first few years I believed them. I took up every case. I became more and more disillusioned, because there was clear evidence of a deliberate attempt to flout the then rules to enter this country illegally. During those 22 years I found only two cases where I felt that the immigration officers had acted unfairly and harshly. I should like to pay a warm tribute to immigration officers for the difficult job that they do. It is all too easy to criticise them, and yet they are doing a job. As my noble friend the Minister said, when they are investigated many of the cases turn out to have a non-response.
  The other type of case was one where a man would come and say that he wished to bring in his wife and children. I cannot recall one case where a child, by itself, was the subject of a problem. So I shall not address that issue, because I have no real experience of it. However, I can see that there may be problems. One has to decide what age is a child. There are many children capable of mastering the most intricate computers, something which most Members of the Committee cannot do. So I do not necessarily say that a child's standard of intelligence is not sufficient to cope with the questions put by an immigration officer. Nonetheless, I can see that there can be problems, and I shall be interested to hear my noble friend's reply to that point.
  It is helpful to have the rules spelt out as they are now proposed. I take the point on the destruction of documents made by the right reverend Prelate. One clearly needs some documentation to reach this country. It is not always false documentation that is required. The flexibility and the knowledge of an immigration officer would be helped greatly if the refugee said, "In order to get out of the country, I had to get forged travel documents. Here they are." That would command more respect and more likelihood of being admitted, other things being right, than if the refugee tore up the documentation and so put himself or herself outside the new rules. On balance, the amendment is not one that is worthy of support.
  Lord Wilberforce: I can well appreciate the desirability of spelling out a number of points for the benefit of the officers who have to deal with difficult cases, and of the person who is applying. I have no comment to make about paragraph 7 and what is set out there. I leave that to other Members of Committee. The paragraph that troubles me greatly is paragraph 9 which deals with "a part of the country".
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  As the noble Lord, Lord Clinton-Davis, dealt with the issue rather briefly, perhaps I may spend a few moments looking at it. The paragraph puts the officer dealing with the case, and the applicant, in an impossible position and creates a mass of bureaucratic requirements and procedures which will clog-up the machinery.
  Let us bear in mind that the person involved (the asylum seeker) has, to start with, satisfied the requirement of showing that he is a refugee within the convention. He is a person who has escaped from a country in which he was under a genuine, well-founded fear of persecution: he was in a village in Croatia which was attacked by the Serbs; his house was burnt down; his village was destroyed; his relatives may have been shot; he cannot possibly return there. He has, on the face of it, fulfilled every requirement for being a refugee. Are inquiries to be made about whether there is some other part of the country to which he can go where there is no persecution, which may be 100 miles away with armies in between? Will the adjudication officer have to consider such a situation? That relates not only to a place such as Yugoslavia, but to somewhere such as Somalia where at the time there may be some remote area of the country where there is no persecution. Are inquiries to be made into whether there is such a place to which he should go?
  One looks at the paragraph and one asks, first, who is to prove what? When the unfortunate officer has someone in front of him who has left a country and who satisfies him that he has been persecuted and tortured, does he then have to inquire as to whether there is some other place in the country to which he could have gone? If he has to do that, is he not in great difficulty and likely to involve a great deal of complication and difficulty.
  Even worse, of course, is the position of the refugee seeker. The officer may say, "You could have gone to Kosovo; you could have gone to Macedonia; you could have gone to the north of Somalia. Why did you not go there?" How will the unfortunate man, woman or child be able to satisfy those requirements?
  Even at the first instance that will greatly increase delays and complications. It will provide every opportunity for difficult appeals and will clog-up the machinery. One may perhaps compare the position with what happens in homelessness cases. The paragraph may have been drafted by reference to and analogy with cases of homelessness. One knows that it is a defence available to a local authority called upon to provide accommodation that someone has rendered himself voluntarily homeless. One then embarks upon a great many difficult inquiries: he was in a house; he could have stayed there; there was plenty of room for him; he was able to be looked after; there were cooking facilities; but he says that is not possible because there are already 10 people in the house; he could not get on with his mother-in-law; and it was impossible to live there. Those are genuine cases which occur in relation to homelessness and British subjects in this country who are well able to deal with such a situation. How much more difficult

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  would it be for officers, who may not be well-trained to deal with such cases, and for the unfortunate person who has left a country of persecution.
  The amendment suggests deleting those precise requirements and substituting a general reference to the handbook. There is a good paragraph in the handbook (paragraph 42) which says in general terms that one has to have knowledge of the conditions in the applicant's country of origin, which is an important element in assessing the applicant's credibility and so on and whether his continued stay in the country of origin had become intolerable for the reasons stated in his application. Surely that provides the adjudication officer with enough authority and a basis to deal with a case along broad lines rather than having to have to follow this legalistic paragraph which will make his life difficult, the life of the refugee impossible, and the administration of the paragraph a cause of delay and difficulty.
  I hope that the noble Lord, Lord McIntosh, will be able to accept the amendment and that the Minister may be able to reassure us that that proposal or a reference to the paragraph is a better way of dealing with the matter.
  7 p.m.
  Lord Donaldson of Lymington: Perhaps I may comment on paragraph 9. I listened with my usual sympathy to what my noble and learned friend said, but I find it difficult to know exactly what the paragraph means. It states:
  "If there is a part of the country from which the applicant claims to be a refugee in which he would not have a well-founded fear of persecution, and to which it would be reasonable to expect him to go".
  It is not a part of the country to which it would have been reasonable to expect him to have gone. Is the paragraph dealing with the situation from the point of view of the aspiring asylum seeker sitting in Heathrow? The question then is, "Would it be reasonable to expect the asylum seeker to buy a ticket to the part of the country in which he would be safe?". If the answer is yes, I can see every reason for refusing him asylum. However, if what is meant is, "Is there another part of the country to which he should have gone?", that might be a reason for refusing asylum. However, as he has not gone he is faced with a slightly different situation. That issue should be clarified.
  I seek clarification on part of paragraph 7. I do not believe that I have met professionally a case in which documents have been destroyed. I should like to know what is the experience of the Home Office as regards the destruction of documents. Everyone seems to be assuming that asylum seekers destroy forged documents. Why would an asylum seeker destroy a forged document which he has used to leave the country? I should rather expect an asylum seeker to destroy a genuine document with which he had left the country. If an asylum seeker leaves the country of his alleged persecution with a brand new passport recently issued by the authorities, doubt is cast, although not conclusively, on his relations with those authorities. I should have thought that there was force in paragraph 7, but perhaps I do not understand the facts of the situation on the ground.
  Earl Russell: I wish to ask the noble Earl only one question. How large an area of the country will qualify as a part?
  Lord Wilberforce: The noble Earl might have amplified his question by asking what, for this purpose, is a country?
  Earl Ferrers: That is the kind of problem which arises when one starts to discuss all these different matters. We see here another example of the noble Lord, Lord Clinton-Davis, trying to remove a great hunk of the rules and replacing it with something smaller. I have no doubt that his noble friend Lord McIntosh, when asked whether he accepts the amendment, will say that he does. It really is a most curious procedure when one Member of the Committee opposite proposes an amendment and his noble friend on the same Front Bench accepts it. It is nothing to do with the Government as the two carry on a lovely tweedle-dum and tweedle-dee act. It is great fun for some.
  We have written down clearly in the Immigration Rules the kind of matters to which immigration officers ought to address themselves. Having done that, some Members of the Committee say that that is not fair, that this is not right and that that is unclear. I find it extraordinary that they are prepared to remove those rules and insert something which is far more vague. They will give immigration officers wider carte blanche rules with which to make the wrong decisions.
  I appreciate what was said by my noble friend Lord Finsberg about immigration officers. His experience showed that they seldom make a mistake. But everyone is human and people will make mistakes. I agree that immigration officers have a difficult task which they carry out with astonishing ability.
  Amendment No. 84 removes paragraphs 7, 8, 9 and 10 of the rules, which set out the criteria by which cases are to be considered. That would leave no guidance to those who operate the asylum procedures nor to the applicants. The determining of an asylum claim is a complex matter, as the handbook issued by the United Nations High Commissioner for Refugees makes clear. Since the convention lays down no rules by which that should be done we must approach the problem by considering what it is that must be established and how best to achieve it.
  The various methods which have evolved in this and in other countries, with the guidance of the United Nations High Commissioner for Refugees, are the result of experience. Ideally, one would wish for conclusive independent corroboration of everything which is claimed by an applicant. That would be of benefit both to the applicant and to the assessor. However, in reality, that is rarely possible. As a result, the asylum division staff must rely on a combination of factual information which is obtained from a variety of sources and an assessment of the individual who is making the claim. In other words, the credibility of the asylum seeker is a key factor. When interviewing him and speaking to him, his credibility is a key factor. In reaching a judgment, it is impossible

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  to ignore certain factors. It is perfectly natural and justifiable to query why a man did not claim asylum as soon as he arrived in a safe country.
  The right reverend Prelate the Bishop of Ripon was concerned also about the concealing of a man's identity by destroying documents. It is perfectly reasonable and right to question a man about why he has destroyed his documents. In answer to the noble and learned Lord, Lord Donaldson, I must point out that we have had experience of people destroying documents. I cannot say whether they were legal or illegal documents because, of course, they were destroyed. If the destroyed documents were legal I agree with the noble and learned Lord that that is curious. However, the fact is that people come into this country having destroyed their documents. In some countries the fashionable process is, as they say, to flush them down the toilet. Why one should want to do that I do not know but the fact is that people enter the country without documents. It is perfectly right and reasonable that they should be questioned about why they have no documents. It may be that the applicant has a perfectly good reason and the draft rules make it clear that only in the absence of an explanation will refusal be allowed.
  The amendment also deletes the provision which allows account to be taken of the actions of an agent who represents an applicant. I regret to say that we have seen examples of agents being paid sums of money to produce what they call "an asylum package". That will ensure the applicant entry into the United Kingdom or an ability to stay here. It cannot be possible to ignore such events; they happen.
  The noble and learned Lord, Lord Wilberforce, was concerned about other "parts" of a country. It is not unreasonable to question whether an applicant might reasonably have sought refuge in a safe part of his own country. In many countries unrest or other political or internal problems are localised perhaps because of the actions of a particular group. Other parts of the same country may be perfectly safe and the residents there may be able to enjoy a secure and trouble-free life. It would seem more logical for an applicant who claims to fear persecution to stay within his own country but in a safe part—a country with which he is familiar and where the language and the cultures are the same and where he is closer to family and friends—rather than travelling to a remote country with which he has no connections at all. Therefore, it is not irrelevant for that question to be asked.
  With regard to the proposal relating to group refusals, it is not intended that that power should be used frequently. If no one in a group claimed anything distinctive as an individual but relied on the general circumstances of the group and it was clear that those circumstances raised nothing in relation to our convention obligations, we might refuse entry to the group. There may be occasions on which a party arrives and it can show no reason why its members should be admitted under asylum procedures. That would occur where the claim was made on behalf of the group. However, any individual who is able to
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  show that his claim can be distinguished from that of members of the group would be dealt with in the normal way.
  The noble and learned Lord, Lord Wilberforce, and the noble Lord, Lord McIntosh of Haringey, asked why we do not use the handbook. As I said earlier, it is not an exhaustive document and the fact that it is not was acknowledged by the authors. It is not a definitive document. It must be a guide. It can be subject to change and challenge. On that basis I suggest that it would be wrong to incorporate it into legislation, which is necessarily a far more cumbersome vehicle.
  Perhaps I may turn to that part of the amendment which deals with children. I know that that is a matter about which your Lordships are anxious. I know that the noble Lord, Lord Bonham-Carter, is anxious about it even though he has prevailed upon himself not to intervene on this amendment. It would add a new dimension to the legislation by incorporating special provision for all child asylum seekers, whether or not they are unaccompanied. I am not sure whether the noble Lord intended to include extra safeguards only for children who are unaccompanied, but the amendment would have a wider effect than that.
  It is clearly important that any dealings with children should be conducted in an understanding and sensitive manner. None of us would take exception to that. All immigration officers and asylum division staff are aware of that and they act sympathetically. Unaccompanied children are placed as quickly as possible with an appropriate carer, whether a relative or a member of the local authority social services department. In assessing an asylum claim, the whole range of circumstances of an individual is taken into account. Children are not returned to any country where it is not clear that there are adequate reception arrangements in place which have been confirmed in advance. Indeed, few children who arrive here are ever returned simply because of the problems which surrounds such arrangements.
  A claim for asylum must be assessed against the convention criteria. It does not matter whether you are a child or adult, the convention criteria are the criteria by which the asylum application must be considered. Due allowance must be made and is made for the maturity and ability of the child to express himself. Obviously reliance is placed on the assessment of social or welfare workers.
  To develop a formal system of the type envisaged seems to be over-elaborate and might actively encourage people to place their children within our system. The current systems offer adequate safeguards. I should not have thought that such a system would be necessary for those who arrive as part of a family group. To proceed in such a way would complicate the handling of family applications.
  I recognise that there is anxiety about children, and in particular children who become involved in the asylum process and how they are dealt with. I assure the noble Lord, Lord McIntosh—and I know that this will bring a smile to his face—that I shall consider the position of children. I shall see whether we can give

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  further consideration to including in the final version of the rules which will be laid before Parliament appropriate guidelines on the treatment of children.
  Lord Bonham-Carter: Goaded by the noble Earl, I shall make a brief intervention in relation to Immigration officers. The Committee should not go away with the idea that immigration officers are infallible. Of visitors' appeals to the Immigration Appeals Tribunal, 25 per cent. are upheld. That is quite a substantial number.
  Lord McIntosh of Haringey: The Minister had his moment of fun about the procedures that we have adopted and I do not begrudge him that. However, the quality of the debate that has taken place on the amendment, the interventions from the two noble and learned Lords and the last remarks of the Minister have fully justified our initiative in taking this step. It would be proper for us to accept the amendment into the substantive amendment so that we can go forward with the progress that we have already made.
  Lord Clinton-Davis: I am grateful to the Minister for what he said in the final sentences of his reply. As my noble friend said, that wholly vindicates the position that we have taken in tabling the amendment. Whether or not the Government will draft something in similar terms remains to be seen.
  The Minister kept on asking why an immigration officer should not ask certain questions. It is not the asking of the questions but the presumptions of guilt which arise from the application of these rules to which we object. I am delighted that my noble friend has accepted the amendment.
  On Question, amendment to Amendment No. 71 agreed to.
  7.15 p.m.
  Lord Clinton-Davis Lord Clinton-Davis moved, as an amendment to Amendment No. 71, Amendment No. 85:
  Leave out paragraphs 11 to 14 and insert:
  (".If the Secretary of State is satisfied that there is a safe country to which an asylum applicant can be sent his application will normally be refused without substantive consideration of his claim to refugee status. A safe country is one in which the life or freedom of the asylum applicant would not be threatened (within the meaning of Article 33 of the Convention, and the provisions of the other Conventions listed in paragraph 1) and the government of which would not send the applicant elsewhere in a manner contrary to the principles of the Conventions and Protocol.
  .The Secretary of State shall not remove an asylum applicant without substantive consideration of his claim unless he has no connections with the United Kingdom and—

  (a) the asylum applicant has not arrived in the United Kingdom directly from the country in which he claims to fear persecution and has had an opportunity, at the border or within the territory of a safe third country, to make contact with that country's authorities in order to seek their protection under the Conventions and Protocols; or

  (b) there is other clear evidence of his admissibility to a safe third country.

  .Before returning a person under this paragraph, the Secretary of State is under an obligation to provide written confirmation from the authorities of the safe third country that the applicant will be admitted to its asylum determination procedure.").
  The noble Lord said: I must be brief but this is an important issue that needs to he argued more fully. At an early stage of our debates this afternoon the noble Lord, Lord Bonham-Carter, asked the Minister what was the assumption behind his assertion that there is an international principle governing the situation of a person who has left his country to escape persecution; namely, that he must apply for asylum in the first safe country which he has been able to reach. Attention was drawn to the UNHCR briefing on this point. Therefore, I ask the Minister on what he bases that presumption. Is there any principle or rule in international law which prescribes the situation? According to the UNHCR, the answer is that there is none.
  I wish to ask a few other questions of the Minister. In relation to paragraph (10) what indication is there of what might constitute exceptional reasons for a person's claim to be considered here? Does having family members in the United Kingdom constitute exceptional reasons? What duty is there on the Secretary of State to consult the authorities to ensure that no refoulement will take place in the safe country? As was stated by the noble Lord, Lord Bonham-Carter, there is a risk that some refugees could be shunted from one country to another and treated rather like pariahs, with no country being prepared to accept responsibility for them. We say that safeguards should be introduced in order to deal with that situation. There are many other points which I should have raised had time permitted. I beg to move.
  Lord Tordoff: I should like to point to the fact that cases exist in which people are sent back to third countries where the authorities of this country obviously believe that they are safe but they are wrong about that. I refer to today's Guardian which states:
  "Kurds win compensation. The Home Office has agreed to make ex gratia payments of £5,000 each to three Kurdish asylum seekers detained by the Turkish authorities for 34 days after their plane was sent back".
  Those people were presumably sent back to Turkey because the authorities of this country believed that they would be safe there. The authorities were clearly wrong and the Home Office has had to pay £15,000 to clear up that matter.
  Earl Ferrers: It will come as no great surprise to the noble Lord, Lord McIntosh, to hear me say that we believe Amendment No. 85 contains several unacceptable provisions. In keeping with earlier amendments which we have already debated, it seeks to incorporate other international conventions into the text. I have explained our position on this to the Committee. We do not think that it is appropriate to include provisions of other conventions, however good they are, and even where we have signed up to them, in a Bill which is specifically concerned with asylum. We simply cannot have, as part of the arrangements for dealing with asylum which require international effort and co-operation, provisions which go wider than asylum and which may not evoke international unanimity. Of course these matters are important: they form the backdrop against which our decisions are taken, but I respectfully suggest that they go wider than the specific obligation to individual refugees.

  599
  If a country is told by another that the latter is sending back an applicant because he has arrived from the former, and is asked whether it will receive him, the country's natural reaction is to let him stay where he is because he will be safe. The right way out of this difficulty is to get international agreement on the criteria for assigning responsibility. This we have done in the Dublin Convention, which we have ratified and which we hope can be brought into operation in the near future.
  The amendment further provides that an applicant may not be removed unless he has "no connections" with the United Kingdom. It is already our practice to waive our normal third country policy if a person arriving here can show that he has close ties with this country. It is not possible to specify exactly what these might be in every case, as situations vary so much. However, as a general rule, immediate family members might constitute such a tie, particularly if there were a degree of dependency on such family members involved. However, the effect of the proposed text would be that any possible connection, however weak—for example, a holiday in London 10 years ago, membership of Manchester United Football Supporters' Club which a person had joined by post or a connection with a relative, however distant—perhaps a second cousin once removed—would oblige the United Kingdom to take responsibility for examining the claim, even if the applicant had stronger ties in the third country from which he had arrived. That cannot be right.
  The other major change proposed is that the Secretary of State should be obliged to obtain written confirmation from the receiving country that the returned applicant would be admitted to the asylum procedures. I do not think this is necessary, given that the Secretary of State must first satisfy himself that the third country is indeed safe—in other words, that the applicant would not be at risk there and that it would not send the applicant elsewhere in breach of the 1951 convention. These safeguards guarantee the applicant's safety. It is then for the other country to determine on what basis to treat the applicant.
  Lord Tordoff: With all due respect, that does not answer my question about the Kurds, where the system has clearly been shown to fail.
  Viscount Buckmaster: I support this amendment. I believe it is thoroughly sound. I had a post in Uganda, where I was responsible for refugees. I remember cases where mistakes were made and refugees were sometimes sent to countries which were not safe and several refugees suffered considerably as a result. I remember a classic case of this which occurred in London. At the time I was in the Foreign and Commonwealth Office. A young Ugandan man came to Britain. He was refused admission to Britain and he was sent to another country. I believe that country was Zaire. However, the authorities in London did not check the route that his plane was to take. The plane went to Zaire via Uganda. The man was hauled out of the plane by the Ugandan authorities—this occurred in the time of Amin's persecutions—and he was
  600
  imprisoned and suffered greatly. He managed ultimately to escape. That incident was entirely due to the fact that the authorities in London had not taken proper precautions and had not made the proper preparations for dealing with his case.
  Earl Ferrers: It is always difficult to comment on individual cases. The noble Lord, Lord Tordoff, referred to Kurds. The Kurds in Turkey may base their claim on particular actions of security forces in the South East. Many Kurds of course live perfectly normal lives in Istanbul. The noble Lord, Lord Tordoff, mentioned compensation. I do not think that that matter is relevant. If people were returned to Turkey, for example, and there were subsequent doubts about whether they had sought asylum, compensation would not be a matter of concern.
  On Question, amendment to Amendment No. 71 agreed to.
  [Amendment No. 86, as an amendment to Amendment No. 71, not moved.]
  Lord McIntosh of Haringey: I have carefully considered the position as it was discussed when Amendment No. 71 was first moved some hours ago. I know the Minister feels strongly that this is not a matter that should be put to the vote. However, I have taken into account the high quality of debate that has taken place on the amendments to Amendment No. 71. The amendments are on the record as substantive criticisms of the way in which the Government have approached the formulation of immigration rules. They have been supported by many outside organisations with a deep understanding of this matter. I believe it would be proper for the Committee to show its appreciation of the debate that has taken place by approving the original amendment as now amended. That may result in problems for the Government in terms of flexibility. However, I have enough confidence in their ingenuity in finding ways of securing by further amendment the flexibility that they feel they require. It is proper that the Committee, having given this matter its consideration, should now express its view.
  Earl Ferrers: The noble Lord, Lord McIntosh, cannot get away with it quite as easily as that. He has drawn the rules to the attention of the Committee. He has provided a great service in doing so. We have had an interesting debate this afternoon about the rules. They are complicated and they are sensitive. The Committee has criticised them, has expressed anxiety about them and has asked questions about them. The noble Lord is anxious about the time, as we all are. However, I must say that I do not think it is right to include these rules in statutory legislation. They are inflexible. The whole point of having such rules is that they should be subject to subordinate legislation. It is not right to include them in statutory legislation.
  The noble Lord, Lord McIntosh, has suggested that, if the Committee were to accept the amendment and the rules were to be included in statutory legislation, the Government would find some way of maintaining flexibility in this matter. However, with the greatest of respect, I must say that is an

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  irresponsible way in which to treat legislation. Either the rules should be included in the primary legislation or they should appear in secondary legislation. In my view they should appear in secondary legislation. I hope the Committee will not accept the amendment.
  7.28 p.m.
  On Question, Whether the said amendment (No. 71), as amended, shall be agreed to?
  Their Lordships divided: Contents, 63; Not-Contents, 117.

  Division No. 2

  CONTENTS

  Acton, L.

  Kirkhill, L.

  Airedale, L.

  Lockwood, B.

  Archer of Sandwell, L.

  Longford, E.

  Ashley of Stoke, L.

  McIntosh of Haringey, L.

  Barnett, L.

  McNair, L.

  Beaumont of Whitley, L.

  Mason of Barnsley, L.

  Birk, B.

  Meston, L.

  Bonham-Carter, L.

  Mishcon, L.

  Broadbridge, L.

  Morris of Castle Morris, L.

  Buckmaster, V.

  Nicol, B.

  Carmichael of Kelvingrove, L.

  Pitt of Hampstead, L.

  Cledwyn of Penrhos, L.

  Plant of Highfield, L.

  Clinton-Davis, L.

  Prys-Davies, L.

  David, B.

  Richard, L.

  Dean of Beswick, L.

  Ripon, Bp.

  Desai, L.

  Robson of Kiddington, B.

  Donoughue, L.

  Rochester, L.

  Falkland, V.

  Russell, E.

  Fitt, L.

  Sefton of Garston, L.

  Galpern, L.

  Serota, B.

  Graham of Edmonton, L.

  Shepherd, L.

  Grey, E.

  Taylor of Blackburn, L.

  Hampton, L.

  Taylor of Gryfe, L.

  Hamwee, B.

  Thomson of Monifieth, L.

  Harris of Greenwich, L.

  Tordoff, L. [Teller.]

  Hollick, L.

  Turner of Camden, B.

  Hollis of Heigham, B.

  Underhill, L.

  Howell, L. [Teller.]

  Whaddon, L.

  Hylton, L.

  Wigoder, L.

  Irvine of Lairg, L.

  Williams of Mostyn, L.

  Jay of Paddington, B.

  Winstanley, L.

  Jenkins of Hillhead, L.

  NOT-CONTENTS

  Aberdare, L.

  Crickhowell, L.

  Alport, L.

  Cumberlege, B.

  Annaly, L.

  Denham, L.

  Archer of Weston-Super-Mare, L.

  Denton of Wakefield, B.

  Donaldson of Lymington, L.

  Arran, E.

  Downshire, M.

  Astor, V.

  Ellenborough, L.

  Barber, L.

  Elton, L.

  Belstead, L.

  Faithfull, B.

  Blatch, B.

  Ferrers, E.

  Boardman, L.

  Finsberg, L.

  Borthwick, L.

  Flather, B.

  Boyd-Carpenter, L.

  Fraser of Carmyllie, L.

  Braine of Wheatley, L.

  Gainsborough, E.

  Bridgeman, V.

  Gisborough, L.

  Brookeborough, V.

  Goold, L.

  Buckinghamshire, E.

  Goschen, V.

  Burton, L.

  Gridley, L.

  Cadman, L.

  Grimston of Westbury, L.

  Caithness, E.

  Hacking, L.

  Campbell of Alloway, L.

  Harmsworth, L.

  Campbell of Croy, L.

  Harvington, L.

  Carnegy of Lour, B.

  Hayhoe, L.

  Carnock, L.

  Hemphill, L.

  Chalker of Wallasey, B.

  Henley, L.

  Chilver, L.

  Hesketh, L. [Teller.]

  Clark of Kempston, L.

  Hives, L.

  Colnbrook, L.

  Hothfield, L.

  Colwyn, L.

  Howe, E.

  Cranborne, V.

  Jeffreys, L.

  602

  Jenkin of Roding, L.

  Renton, L.

  Johnston of Rockport, L.

  Rodger of Earlsferry, L.

  Kimball, L.

  St. Davids, V.

  Lane of Horsell, L.

  Saltoun of Abernethy, Ly.

  Lindsey and Abingdon, E.

  Seccombe, B.

  Long, V.

  Shrewsbury, E.

  Lyell, L.

  Skelmersdale, L.

  Mackay of Ardbrecknish, L.

  Skidelsky, L.

  Mackay of Clashfern, L.

  Stewartby, L.

  Macleod of Borve, B.

  Stodart of Leaston, L.

  Mancroft, L.

  Strange, B.

  Margadale, L.

  Strathclyde, L.

  Marlesford, L.

  Strathmore and Kinghorne, E [Teller]

  Mersey, V.

  Morris, L.

  Swinton, E.

  Mottistone, L.

  Thomas of Gwydir, L.

  Mountevans, L.

  Torrington, V.

  Mowbray and Stourton, L.

  Trefgarne, L.

  Moyne, L.

  Trumpington, B.

  Munster, E.

  Ullswater, V.

  Norrie, L.

  Vaux of Harrowden, L.

  Orr-Ewing, L.

  Vinson, L.

  Oxfuird, V.

  Vivian, L.

  Pearson of Rannoch, L.

  Wade of Chorlton, L.

  Pender, L.

  Wakeham, L.

  Peyton of Yeovil, L.

  Whitelaw, V.

  Plummer of St. Marylebone, L.

  Wise, L.

  Prentice, L.

  Wynford, L.

  Reay, L.

  Young, B.

  Rees, L.

  Resolved in the negative, and amendment, as amended, disagreed to accordingly.
  Viscount Astor: My Lords, I beg to move that the House do now resume. In moving this Motion, I suggest that the Committee stage resumes at 8.35 p.m.
  Moved accordingly, and, on Question, Motion agreed to.
  House resumed.

Maximum Number of Judges Order 1993
7.36 p.m.
The Lord Chancellor (Lord Mackay of Clashfern)The Lord Chancellor (Lord Mackay of Clashfern) rose to move, That the draft order laid before the House on 21st January be approved [17th Report from the Joint Committee].
The noble and learned Lord said: My Lords, I beg to move that the draft Maximum Number of Judges Order 1993 be approved. I shall speak also in favour of the approval of the draft Maximum Number of Judges (Northern Ireland) Order 1993. Both orders were laid before the House on 21st January 1993. I shall formally move the Northern Ireland order later. The orders are made respectively under Section 2(1) of the Supreme Court Act 1981 and Section 2(1) of the Judicature (Northern Ireland) Act 1978.
The maximum number of Lords Justices was increased from 23 to 28 by the Maximum Number of Judges Order 1987 and there are now 28 judges holding appointment. The order proposed will increase that maximum number to 29.
In considering the justification for a further increase in the number of Lords Justices in England and Wales I hope that it may be helpful to set the matter in the context of demands on the Court of Appeal Civil Division and the resources which have been available to that court in recent years.
At the end of 1991, my noble and learned friend Lord Donaldson of Lymington, the then Master of the Rolls, in his review of the legal year, drew attention to the need for a:
"small increase in the judicial establishment of the Court of Appeal",
which at that time, in addition to himself, stood at 27 Lords Justices. In the following year the new Master of the Rolls echoed that call by identifying an increase in the number of Lords Justices sitting in the Court of Appeal as one means of helping to reverse a trend of increasing backlogs of work in that court.
The number of final appeals received in the Civil Appeals Office over the last seven years has remained roughly constant at about 900 cases a year. Although interlocutory appeals over that period have increased from under 700 receipts to nearly 800 in 1992, it still seems unlikely that the rise in backlogs of about 25 per cent. can be accounted for by the number of additional appeals. Rather, it seems that the number of cases disposed of has fallen. It is not easy to determine the exact causes lying behind that fall, but the increase in reserved judgments from 15 per cent. in 1986 to 31 per cent. in 1991 suggests that one reason is that cases are becoming more complex and are therefore taking longer to dispose of. That view is reinforced by an increase in the number of civil appeals which take more than a week to hear.
In the light of the increasing backlogs and the call made by my noble and learned friend Lord Donaldson for a small increase in the judicial establishment, which his successor echoed, an additional Lord Justice was appointed last month. That brought the complement up to the statutory limit and my wish to add a further Lord Justice to the strength has necessitated the order which we are considering this evening.
I recognise that it may be argued that, given the current position in the Civil Division of the Court of Appeal, an increase of two Lords Justices is not in itself sufficient. I should explain to the House that the ability of the Court of Appeal to get through its business is not determined solely by the number of Lords Justices. An internal report in 1989 which the then Master of the Rolls endorsed made it clear that the need for Lords Justices could be lessened by employing more legal staff in the Civil Appeal's Office. It was in recognition of that fact that I have since provided for five new legal posts in that office.
For the sake of completeness the House in considering the justification for the proposed increase in the limit will wish to bear in mind, the Civil Division of the Court of Appeal aside, that Lords Justices also sit in its Criminal Division and in the Divisional Court as well as undertaking extra curial work such as public inquiries and the chairmanship of such bodies as the Security Commission.
The second named order—the Maximum Number of Judges (Northern Ireland) Order 1993—will increase the maximum number of puisne judges of the High Court of Justice in Northern Ireland from six to seven, thereby enabling the appointment of another judge. At present in Northern Ireland the High Court
604
is comprised of the Lord Chief Justice and six puisne judges, which is the maximum number permitted under Section 2(1) of the Judicature (Northern Ireland) Act 1978.
I have reviewed, in consultation with the Lord Chief Justice of Northern Ireland, whether the appointment of an additional judge of the High Court would be justified at this time. The High Court judges in Northern Ireland perform a wide range of functions in the superior courts. In addition to dealing with the business of the three divisions of the High Court itself, the judges undertake a proportion of the criminal work of the Crown Court, in particular the trial of serious terrorist cases at Belfast Crown Court. The judges are required also to assist in the work of the Court of Appeal on a regular basis.
In respect of criminal trials, these are demanding an increasing commitment of judicial time. Some 80 per cent. of the Crown Court caseload dealt with by the High Court judges consists of the most serious terrorist trials, which are often of considerable length and complexity. It is obviously important for delays in all court proceedings to be kept to a minimum; this is particularly so in criminal cases, where the liberty of the subject is often involved. Accordingly in my discussions with the Lord Chief Justice we have agreed that the appointment of an additional judge will ensure that more judicial resources will be devoted to the work at Belfast Crown Court.
Measures have been taken already to ease the pressure on the High Court in respect of some civil work; the most notable step is a number of staged increases in the civil jurisdiction of the county courts in Northern Ireland which are likely to help by removing the more routine and lower value cases from the Queen's Bench Division. That measure has recently started. My information is that it is working well. We shall continue to keep its working under review.
It is clear nevertheless that the work of the High Court in a number of areas is steadily increasing. For example, the business submitted to the Queen's Bench Division increased overall by 23 per cent. between 1987 and 1991. The number of applications for judicial review increased three-fold between 1988 and 1991. In addition, a new commercial list has been recently introduced to give higher priority to commercial actions.
After careful consideration of the current and predicted workload of the Court of Appeal and the superior courts in Northern Ireland, I have reached the conclusion that additional appointments are necessary at this time and will assist in the more efficient dispatch of the business of those courts and that this House should further discharge its responsibility by approving the draft orders. I commend the orders to your Lordships.
Moved, That the draft order laid before the House on 21st January be approved [17th Report from the Joint Committee].—(The Lord Chancellor.)
7.45 p.m.
Lord Williams of Mostyn: My Lords, the House will be grateful to the noble and learned Lord for his clear exposition as to the background for the two orders. It is plain from the judicial statistics for 1991 that the increase is necessary. In 1990, 912 final appeals were set down in the Civil Division of the Court of Appeal. Nine hundred final appeals were disposed of during that year and 642 were still outstanding at the end of 1 he year. In 1991, 866 final appeals were set down; 782 were disposed of and at the end of the year 722 (an increase) were still outstanding. Similarly, in the Criminal Division of the Court of Appeal more appeals were outstanding at the end of 1991 than at the end of 1990. As the Lord Chief Justice said in your Lordships' House recently, it is approaching a national scandal that those who are awaiting their appeals in the Criminal Division of the Court of Appeal and who may have their convictions quashed should be languishing in custody.
We on this side welcome any attempt to increase the speed and efficiency with which appeals in the two divisions of the Court of Appeal are heard. We welcome the proposals, in so far as they go.
I make two observations. As the noble and learned Lord has indicated, the Lords Justices are not confined to judicial business. At present Mr. Justice Scott is heavily and fully engaged in other work. That means that his contribution to the Court of Appeal will have been removed for a period of many months.
The other observation I make, since I do not believe that a former Master of the Rolls could reasonably make it, is to pay full tribute to the work of the individual Lords Justices. It is exceptionally onerous work. It is not confined to sitting in court. There is an enormous amount of out-of-court work in terms of pre-appeal reading, the preparation of judgments and so forth. I believe that all lawyers from other jurisdictions who see our Courts of Appeal at work marvel at the quality of the work and the way that that quality of work is delivered with insufficient resources.
Perhaps I may touch briefly on other matters. The position lower down in the court system still troubles us. The single most important cause of delay is shortage of full-time judge power. In the Crown Office list waiting time for judicial review is at least 18 months. Bearing in mind the nature of the cases and the applications for judicial review, that simply is not tolerable. Should the Asylum and Immigration Appeals Bill pass through without substantial modification, delays will grow. In the Chancery Division at present a trial requiring more than three days of judicial time will wait almost two years. There is substantial delay in the Queen's Bench Division, in the Employment Appeal Tribunal and for criminal trials which need to be heard by a High Court judge. The Answer given in your Lordships' House recently indicates that the average period of waiting by an appellate from an industrial tribunal to the Employment Appeal Tribunal is about two years.
I am regretfully surprised and a shade disappointed that, despite all that has been said from both this side of the House and, more pertinently and powerfully, from those who hold high judicial office, we are not
606
today considering a request from the noble and learned Lord the Lord Chancellor for an increase in the number of High Court judges, which I respectfully suggest is long overdue.
We therefore welcome the increase but are troubled as to whether the noble and learned Lord has given himself enough room for manoeuvre. Last Wednesday, your Lordships' House heard from the Lord Chief Justice that the present Master of the Rolls has estimated that 20 per cent. of the sitting time in the Court of Appeal (Civil Division) is taken up by litigants in person. If the eligibility proposals which we debated fully on an earlier occasion are forced through, that percentage will undoubtedly increase. That will involve further delays.
In 1987 your Lordships' House considered a request for an increase in the number of Lords Justices of Appeal from 23 to 28. The noble and learned Lord, Lord Denning, said on that occasion that the most important thing in a system of justice is that it should be quick in order to suit the needs of the people. Priorities may have changed since 1987. There may be a colder, harsher economic wind. Some may believe that these days delay is not the most significant denial of justice. Certainly in this House and in another place Ministers provide us with alternative injustices almost daily. Delay remains a significant blemish on the face of our system. As I said earlier, we therefore welcome this modest step but regretfully believe that it is too modest.
I turn succinctly to the question of Northern Ireland. The quality and distinction of the judges there are quite unmatched. Outside those who deal with Northern Ireland and its judicial system, that quality may well be largely unknown. It is certainly insufficiently commended. I willingly pay tribute to the quality of the judges in Northern Ireland since I can in part speak from personal experience. I do not think that any of us can begin to contemplate the burdens of the judges in Northern Ireland with all normal domestic life taken from them and with the necessity for 24 hour security. There are constant burdens not simply on the judges but on their families and those who know and love them. But we believe that the judiciary in Northern Ireland is severely overstretched.
As the noble and learned Lord indicated, delays in criminal trials, particularly where the allegations are of terrorist activities, are substantial. I have to say at once—again because I have carried out personal research with our colleagues at the Bar in Northern Ireland—that some of the delays cannot be attributed to the judges or the insufficiency of their number. Many defendants in terrorist cases request adjournments themselves because they want—not unreasonably it may be thought—counsel of their choice. But for whatever causes, trials in Northern Ireland are continuing on the unhappy basis that defendants have waited in custody, without bail, for up to two years. That cannot be right from the defendant's point of view nor from that of the complainant or witnesses nor for the repute of our system in Northern Ireland, when it is looked at by people abroad who may not be entirely favourable or generously inclined towards us.

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The suggestion that we make—I hope in a spirit of helpfulness—is that it is essential to have three High Court judges sitting continuously at Crumlin Road court-house in Belfast. I should be grateful if the noble and learned Lord could confirm that the increase of one judge will lead to that situation. Though recognising that the noble and learned Lord has a good deal more intimate knowledge of Northern Ireland than we do, we suggest that those pressures would point to an increase of two High Court judges in Northern Ireland rather than the present one. Accordingly, we on this side of the House welcome the step that is proposed but are regretfully pessimistic that it may not be sufficient.
Lord Meston: My Lords, I speak only to the English order, wishing to support the views which have just been expressed by the noble Lord, Lord Williams. This is a depressing and hardly revolutionary order. It suggests that the powerful case for more judges in the High Court, which was put before the House in the clearest terms on at least two occasions in the past year, has not so far had any effect.
The procedures and administration of the Court of Appeal have been immensely improved and streamlined in recent years, thanks to the efforts of the noble and learned Lord, Lord Donaldson of Lymington, in the Civil Division. I like to think that both branches of the legal profession have responded to the combination of carrots and sticks which he offered during that period. That has undoubtedly mitigated the problems, but the pressures of work in the Court of Appeal clearly remain. As has been said, the work is onerous and often complex and quite serious delays persist, not least because appropriate priority has to be given to certain categories of urgent cases such as those involving children.
The Court of Appeal therefore still has to rely upon puisne judges who are needed elsewhere and upon retired judges. The pressures on the Court of Appeal inevitably have an effect on the rest of the administration of justice. It is a great shame that the opportunity has not been taken to address the wider problems of manpower in the High Court about which your Lordships have recently heard. For example, your Lordships may remember being told of the problems in the commercial court. As the noble Lord, Lord Williams, reminded us, yesterday we were told at Question Time that the average delay in securing a hearing before the Employment Appeal Tribunal is two years. That means that in employment cases, a matter may come before the Court of Appeal years after it was first heard in an industrial tribunal.
Now is not the time to expand upon those problems, particularly as they have been discussed recently in the House. But I ask at this stage whether the noble and learned Lord the Lord Chancellor can indicate whether anything more can be expected in the foreseeable future.
Lord Fitt: My Lords, the noble and learned Lord the Lord Chancellor will be aware of the crucial importance of the courts in Northern Ireland. There is a divided community where it would appear that on
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occasions a significant section has no faith in and does not place its trust in the judicial system and the judiciary. I have never taken that view, but I am realistic enough to know that certain sections of the Northern Ireland community would like to cast aspersions or suspicion on the whole judicial procedure in Northern Ireland.
I refer only to Northern Ireland, after some years of experience there. It is of crucial importance that the one judge—and it has already been advocated that there should be two—should have the support and trust of the whole community in Northern Ireland. I can see difficulties arising in the future and I should like to put a case to the noble and learned Lord the Lord Chancellor.
In the late 1960s a vacancy occurred in Northern Ireland for a judge. There were many applicants at that time for the position because it was before the advent of the civil rights movement and before the danger became obvious to judges. One of the applicants for the vacancy in the High Court was a man who had a brilliant war record with many military honours for his service in the Army during the war. He had many academic qualifications, as well as legal and other qualities, and he applied for the job. However, before his application was put in he knew that he had little chance of getting it. Through some of his friends an approach was made to me. I asked why he had not got the job —he was an ex-serviceman; he had many military commendations and all those academic qualifications. The reason given was that he was a Catholic and therefore at that time he could not be appointed to the position.
I was then a Member of another place. I approached the Lord Chancellor and the Attorney-General at the time and told them that in my estimation, without any legal qualifications whatever, I thought that the man might be a possibility for the position. They told me that they would look into the matter, see what were his qualifications and speak to me later. Both did so. They came back to me and told me that they were under a great deal of pressure—the words which they used were that they were "under an awful lot of pressure"—from the Northern Ireland Government which was still in existence, to appoint (again using their words) "one of their own". That meant that he was not to be a Catholic.
The whole matter dragged on for a few months and then I was told from someone in another place that the Lord Chancellor, who always had the responsibility for appointing the Northern Ireland judges, was under such extreme pressure from the Northern Ireland Government that he could not appoint a Catholic on his own. Remember, that Catholic had a brilliant war record and excellent academic qualifications. In order to escape the pressure being exerted, the Lord Chancellor would appoint two judges. So they appointed the person I spoke of and they appointed another judge who was the Unionist nominee. That is a very sad reflection on the whole judicial system in Northern Ireland. The noble and learned Lord the Lord Chancellor will be aware in relation to the judge who is about to be appointed that there will be people

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in Northern Ireland who will be looking at his religious affiliations rather than his judicial qualifications.
I am only too well aware that at the present time there are many Catholics in Northern Ireland who are unwilling to accept the position of a judge of the High Court. As has already been said by my noble friend Lord Williams, they take upon themselves all sorts of security arrangements. They are under guard 24 hours a day. Many of them are very unwilling. The same thing applies to members of the Protestant community who are doing very well in a financial sense at the Bar in Northern Ireland and who are unwilling to undertake all the responsibilities and security arrangements involved in taking up the position of a judge.
I ask the noble and learned Lord the Lord Chancellor, who takes the final responsibility for the appointment which is about to be made, whether it will be done on the recommendation of the Bar Association. Or will there be political or religious considerations coming from Northern Ireland in relation to the person about to be appointed? I only mentioned that case, of which the noble and learned Lord the Lord Chancellor is probably aware—all he has to do is look at the history; it was in the late 1960s—to point out to him how crucially important it is that the judge about to be appointed has the support and the trust of the whole community in Northern Ireland.
8 p.m.
Lord Ackner: My Lords, I have frequently, consistently and most sincerely paid tribute from time to time to the outstanding powers of advocacy of my noble and learned friend the Lord Chancellor. I am sure that, mindful of the anxieties that have been expressed about the very serious shortage of senior judges, he has focused all those powers upon the Treasury in the hope of remedying the situation. I therefore express my deep sympathy that he will be standing before us today with virtually nothing to offer. I say virtually nothing to offer because, as has already been pointed out, Lord Justice Scott is to be taken away from the Court of Appeal and will no doubt be out of commission for a very long time. That is not an unusual situation. The report which my noble and learned friend will have received from the present Master of the Rolls mentions that last year one member of the court was engaged on an inquiry for the whole legal year, save for five days at the end. That is a recurring situation.
I have no doubt that in the course of exercising his powers of advocacy, my noble and learned friend will have drawn the attention of the Treasury to four quite distinct grounds for increasing the number—not up to 29 but, I venture to suggest, certainly to 35.
The first ground is the report of the Master of the Rolls, Sir Thomas Bingham, which was delivered at the end of last year. I quote from only a small portion of it. He starts his introduction by referring to the conclusions of my noble and learned friend Lord Donaldson as the previous Master of the Rolls, who ended his conclusions for the 1991–92 report with a sad statement, warning that,
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"if changes are not made, the next report is likely to be considerably more gloomy than this".
Sir Thomas Bingham then added immediately afterwards:
"Regrettably, that pessimistic prognosis has been borne out in the year now under review".
He went on to say:
"the total of appeals outstanding at the end of the legal year, reveals a relatively gradual but very steady increase over the period, from 925 outstanding appeals on 30 September 1986 to 1214 on the same date in 1992. Over the last year alone there has been an increase of 79, from 1135 outstanding appeals to 1214".
I emphasise what follows:
"This is a very significant increase, given that on average one 3-judge division of the Court hears about 75 appeals in a year".
There is therefore a justification for three more Court of Appeal judges, leaving aside the replacement of Lord Justice Scott, merely to keep the increase at bay, let alone account for what exists at the moment.
Continuing with the report, the Master of the Rolls pointed out that the Court of Appeal, Civil Division, has great demands on it outside the civil appellate work.
"Throughout the legal year, 3 Lords Justices sat in the Court of Appeal Criminal Division and 2 in the Queen's Bench Divisional Court. At any time the judicial strength of the Civil Division was therefore reduced by 5 Lords Justices".
He also went on to say that two Lords Justices, one the Deputy Chief Justice and the other the senior presiding judge have:
"duties in connection with such matters as Judicial Studies and various aspects of Security".
The report produced by the Master of the Rolls is accordingly my first point. My second point, which is quite separate, is the Judicial Pensions and Retirement Bill, which is shortly to return to this House. Noble Lords may remember that that Bill is about to achieve a number of features. On the pensions side, the judicial pension is to be downgraded for the senior judges and the circuit judges, who will have to serve 20 years for their pension instead of 15. But on the age side, very much in answer to judicial pressure, the retirement age is to go down from 75 to 70; and what is significant to the point I am now making is that, once this part of the Bill becomes law, no judge over 75, retired or otherwise, may sit in a judicial capacity.
On 30th June 1992 on Second Reading of that Bill, I pointed out to the House that figures I had received from the Lord Chancellor's Department over the previous year showed that 500 judge-days had been sat by judges over 75; and, in the Court of Appeal, 100 judge-days by judges over 80. I quoted from the review of my noble and learned friend Lord Donaldson this statement:
"Retired Lords Justices provide the biggest source of reinforcement and without their help the work of the Civil Division would be in dire straits".
He listed the eight retired Lords Justices who had sat during that year, and five of them were over 80 years of age. The Master of the Rolls currently lists eight judges, four of them—nature having taken its toll—now over 80 and one who will be 80 next year. That makes five out of his eight.
The number of legal weeks sat by retired judges in the Court of Appeal is 48½. In order for that work to be dealt with, at least two more Lords Justices are

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required unless the provision in the Bill has been included merely for cosmetic purposes and will not be brought into effect for year after year.
The third ground, quite separate and distinct, is the Bill being debated today—the Asylum and Immigration Appeals Bill. As I understand it, it is common ground in the department of my noble and learned friend the Lord Chancellor and in the Home Office that if the appellate provisions in that Bill remain as drafted, there will be a significant increase in applications for judicial review. That will involve Court of Appeal judges sitting in the Divisional Court and Court of Appeal judges sitting in the Court of Appeal. More judges will be required—a point made by my noble and learned friend Lord Woolf on Second Reading.
My fourth and final separate point has already been referred to by the noble Lord, Lord Williams of Mostyn; that is, the consequences of the drastic reduction in legal aid. Around 20 per cent. of Court of Appeal work is taken up by litigants in person. It must follow as night follows day that if those drastic cuts occur there will be more and more litigants in person. It is common ground that litigants in person involve an enormous extra demand on court staff for advice and on judges for ensuring that the litigants understand the case and what is happening in court.
Those four separate grounds show what a pathetic offer has been made by the Treasury; an offer somewhat like the provision of a strip of Elastoplast to staunch a haemorrhage. It is a refusal properly to fund the administration of justice which is beginning to become near contemptuous.
Lord Hylton: My Lords, I owe the House an apology. I assumed that the two orders would be moved separately. I find that I am wrong and that they have been moved simultaneously.
I wish to welcome the Northern Ireland order as a small step in the right direction. I say that because I understand that it is possible for a given judge to hear a case in the court of first instance and then again, as a member of a panel of judges, to hear the same case on appeal. That seems a situation greatly to be avoided if at all possible in that we all expect fresh judicial minds to be gathered together at the appeal stage. It is a matter about which I have been in correspondence with the noble and learned Lord the Lord Chancellor and I hope that the situation will soon begin to improve.
8.15 p.m.
Lord Donaldson of Lymington: My Lords, in addressing the House the noble Lord, Lord Williams of Mostyn, said that I could hardly be expected to pay tribute to the Lords Justices. I do not know why he said that. Perhaps of all Members present in the House today I know more about the work that they do. I should therefore like to take this opportunity of paying a heartfelt tribute to them.
By definition their work is difficult because of the level at which they are working and the fact that they are examining the work of other judges. Often the
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problems which face them are novel: at times they are called upon to interpret the law in a way which causes the law to grow. That is not something which is done lightly. They are prepared, as I well know, to sit at all hours should emergencies arise. On many occasions appeals have been brought perhaps in the middle of a Friday afternoon when it was necessary that they be decided before the weekend. Lords Justices have had personal engagements which they have readily set on one side in order that the work of the court may go on.
It should be known that it has never been a case of trying to persuade individuals to sit. The first person who is asked to sit invariably agrees to do so. Whatever else may be in doubt, there is no way in which the productivity of the Court of Appeal can be increased by means of increased effort on the part of the judges. They are working flat out and, indeed, I have heard their work described by other judges as in the nature of working on a treadmill.
The Court of Appeal must be looked at as a whole, not only the civil division but also the criminal division, as has already been made clear. Criminal work has priority. I make no complaint about that. But I, as Master of the Rolls —and I do not doubt that this is also the experience of Sir Thomas Bingham, my successor—while accepting that criminal work has priority, have found it disappointing that our establishment should be imperceptibly whittled away by the legitimate demands of the criminal division. The Lord Chief Justice made clear that in his opinion the present state of the work of the criminal division is wholly unacceptable in terms of the delay in the hearing of appeals. In order to mount an extra court in the criminal division one needs a Lord Justice and two puisne judges. As he does not have the puisne judges to sit to make up the extra division, it may be that there is no immediate need for a Lord Justice on that account. But the moment that he has additional puisne judges—as I hope he will in the near future —there will inevitably be a request from him to Sir Thomas to provide yet another Lord Justice to work in the criminal division. That will compound the problems which face the civil division.
My noble and learned friend the Lord Chancellor said that I had asked for a "small" increase in the civil division. All I would say is that it is not that small. I certainly asked for a small increase; I meant small against the background of 27. I do not have access to the correspondence which I had with the Lord Chancellor's officials while I was in office—not that it was taken away from me but merely that I did not wish to be burdened with all the files. My recollection may therefore be inaccurate but I believe that I was saying to him and to his officials that we need certainly three and probably five additional Lords Justices. Therefore, while the present offering is extremely welcome, it is a crumb in the scale of comfort and far more are needed.
The noble and learned Lord also said that I asked for a legal staff and have now been provided with it. That is true. Two years ago, or perhaps a little more, I asked for legal members of staff and I got them in July of last year. The purpose of having the legal staff was to make the court more efficient in the sense that

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work when put before the court would be better prepared—papers and the like—and also to ensure that, in so far as there was knowledge within the court as to parallel decisions or lines of argument which needed to be considered by the judges, it was made available to them. But I do not think anyone ever thought —certainly I never thought—that the provision of legal staff would make a very significant contribution to the amount of work which the court was able to get through. It makes some contribution, of course, but not the kind of contribution which perhaps might be implicit in my noble and learned friend's remarks today.
Among the resources that I was able to call upon there was one judge of the family division—a puisne judge—who helped us out for half the year, or perhaps a little more, the other half being provided by the President of the Family Division sitting in the Court of Appeal. It is entirely right that the President of the Family Division and the Vice-Chancellor for the Chancery Division should spend as much time as they can in the Court of Appeal. They are very senior judges. We need their specialist experience in developing the law. But they cannot sit all the time. So an agreement was reached some years ago that, in so far as the President of the Family Division could not sit, he would ask one of the puisne judges to sit. But it was only intended to be a temporary arrangement. It is wrong in principle that one should have a puisne judge sitting in the civil division of the Court of Appeal who in many cases has to hear appeals from judges of similar standing. Indeed it could happen—although we administratively tried to avoid it—that the judge concerned was involved with an appeal from a judge who was far senior to him in his own division. It must always be remembered that if he is sitting in a court of three his may be the decisive voice. So at least half a Lords Justice was absolutely essential if we were to be able to replace the Family Division judge, useful though his work is. I fear that this small offering will not enable my successor to do so.
The backlog began to rise at the end of 1991, and I warned of it. Sir Thomas Bingham, giving a report which in fact covered my year of office, said that the backlog was getting worse. My recollection of the monthly figures—I used to watch monthly figures, as my successor no doubt does—showed not only that the backlog was increasing but that the rate of increase was increasing rapidly. That does not seem to be in any way reflected in the proposed order.
My noble and learned friend Lord Ackner referred to the Asylum and Immigration Appeals Bill as likely to create more work through judicial review. That may be so—I hope not —but that is more work at one stage removed. Clause 9 provides a direct appeal for the first time to the Court of Appeal from the Immigration Appeal Tribunal. I was asked if I objected to it. I said that I did not and that I thought that it was right and sensible. But I certainly never contemplated that it would not be used.
There are only two ways of tackling the problem in the Court of Appeal. One is to produce a considerable increase in the judicial strength of the Court of Appeal. The other is to activate the power given under
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Section 8 of the Courts and Legal Services Act to put in place a proper filtering system to get rid of hopeless appeals without having a full hearing. The figures show that the rate of success of that class of appeals which has passed through a filter is considerably higher than the rate of success of those appeals which are brought as of right. It is a lesson which should be learnt.
My final point is one which has always caused me both anxiety and irritation. It is that although this House will be told—and rightly told—that it is being asked to increase the statutory limit on the number of judges, what matters on the ground is what is known along the judicial corridors (perhaps "in the trade" is the wrong expression) as the Treasury limit. There are two limits. One is the statutory limit, which is approved by both Houses of Parliament. Then there is another limit. One cannot appoint up to that statutory limit without the leave of the Treasury. For most, if not all, of the time when I was Master of the Rolls we were held down below the statutory limit.
I can well understand that successive Lord Chancellors would not want to trouble each House of Parliament with increases in the judicial establishment from month to month or even on a half-yearly or yearly basis. But what really should be done here is to take a giant leap forward in terms of the statutory limit, putting it as high as can conceivably be required and then use it up with Treasury consent as the case demands. I hope that I can be assured by the noble and learned Lord the Lord Chancellor that with this very small increase in the statutory limit he also has Treasury concurrence to judges actually being appointed within that limit.
Lord Morris: My Lords, the noble Lord, Lord Williams of Mostyn, makes a most telling and sensitively modulated and understated case for the injustices that occur through shortfalls in judicial time arising out of the shortages in judicial appointments in the High Court. However, it is my view—I suspect that it must be the view of others—that the cost of delivering the administration of justice has to be conceived of as a whole. The noble Lord, Lord Williams, must bear in mind that a diminution of taxpayers' funds being spent on legal aid might allow funds to be available for the appointment of senior judges or vice versa. It is fundamental to the role of government to avoid single issue politics and to consider cost priorities. That is my noble and learned friend the Lord Chancellor's horrendous problem. Those noble Lords who are disappointed by these orders cannot possibly have it both ways.
The Lord Chancellor: My Lords, I think that I detect no opposition to the approval of the draft orders and so anything more I have to say is really by way of supplement. I begin by assuring my noble and learned friend Lord Donaldson of Lymington that I hope to be in a position to see another Lord Justice in place immediately the order comes into effect.
I quoted from my noble and learned friend's last report as Master of the Rolls the phrase to which he referred in correspondence. He supplemented that and it will not surprise your Lordships to know that his

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memory of what he was asking for in correspondence is not overstated. When requests were made for staffing of the appeal office it was estimated in support of that application that five lawyers in the office would save the time of about two Lords Justices.
I endorse very much the view that the members of the Court of Appeal do a supremely important job supremely well and extremely willingly. I am very conscious—perhaps not quite as conscious as my noble and learned friend Lord Donaldson of Lymington—of the work that they do and I have had the opportunity of reviewing quite a lot of it in detail in the Appellate Committee of your Lordships' House. I know the high quality and care with which these judgments are prepared, and I think it would also be fair for me to say that one of the matters that continually attracts admiration from visitors is the extent to which the Court of Appeal is able to deliver immediate judgments on very complicated cases, and sometimes in areas with which the members of the court individually were not perhaps particularly familiar in practice but where they have been able to formulate their views quickly, clearly and well and deliver judgments even more rapidly than your Lordships' House is able to do.
I should also like to take this opportunity of saying what I have had an opportunity of saying in public from time to time—that I very much admire the way in which all the judiciary of Northern Ireland carry out their functions. I must say that I have the impression on the whole that the community in Northern Ireland respects the impartiality of the judges. I have heard comments from time to time on the justice process as a whole, but so far as the judges themselves are concerned my impression is that they command confidence.
It is my responsibility to advise Her Majesty on the appointment of judges in Northern Ireland. Your Lordships may rest assured that I do so on the basis of the talents and suitability of the individual in question. I am under no pressure from anyone to appoint members of a particular religious affiliation. Of course, I would not yield to such pressure, but it is fair to say that I am not under any such pressure from any quarter. Sense would dictate that one has to have some regard to that factor in the situation in Northern Ireland as a whole. But, as the noble Lord, Lord Fitt, knows well, there are Protestants and Catholics on the High Court Bench in Northern Ireland and I believe that that will continue. Certainly, when it comes to an individual appointment I seek to recommend appointment on merit alone.
The Lord Chief Justice of Northern Ireland and I have agreed that the extra judge will have the effect of making it possible generally to have three judges sitting at the Crumlin Road. He does not guarantee that it could be all the time because there are sometimes exigencies to be dealt with, but the idea is that there should be three High Court judges sitting at Crumlin Road.
The position so far as High Court judge power is concerned is as I explained it in the answer to an Unstarred Question by the noble Lord, Lord Irvine of
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Lairg, some time ago. I expect to receive the report of the committee quite soon and then I shall need time to consider its recommendations in detail.
I am aware of the matters to which my noble and learned friend Lord Ackner has referred, and one must take account of all the circumstances. The Government have to take account of all the pressures for resources these days, and at present my position is that I am able to put forward this order in respect of the Court of Appeal. Other matters in relation to the High Court will have to await the report of the working party to which I earlier referred.
The position so far as the Court of Appeal generally is concerned and the list has been described in the present report by the Master of the Rolls for the year ending 1992. He says there that there would appear to be only three ways of reversing the trend of increasing backlogs. The first is:
"To increase the number of cases heard by the Court in a year. Assuming that all divisions of the Court are fully listed … this would mean reducing the time spent on each appeal or on some appeals. Steps have already been taken in this direction (by providing time for pre-reading, and by submission of skeleton arguments)".
This gives me an opportunity of paying a very warm and sincere tribute to the work in that direction which my noble and learned friend Lord Donaldson of Lymington carried out. A great deal was done under his chairmanship. The present Master of the Rolls goes on to end that paragraph by saying:
"Further steps are under consideration".
The second way is:
"To reduce the number of appeals reaching the Court for full hearing".
As has been mentioned, power to alter and require leave to appeal is in the Courts and Legal Services Act, and the present Master of the Rolls says:
"Experience suggests that this could be done"—
that is to say, extending the present requirements for leave to appeal
"with minimal risk of excluding appeals with any chance of success".
The third is:
"To increase the number of Lords Justices sitting in the Court of Appeal".
He continues:
"Courses (ii) and (iii) are matters for political, not judicial, decision. And it seems unlikely that the problem can be solved by adoption of any single course in isolation. It seems likely that some combination of these three courses can alone offer the hope that the present disquieting trends can be reversed".
So far as the other matters that have been raised are concerned, I think none of them would suggest that this order should not be approved. I therefore renew the Motion that your Lordships should approve this order.
Lord Donaldson of Lymington: Before the noble and learned Lord sits down, he has suggested that other steps would be taken by, for example, activating Section 8 of the Courts and Legal Services Act. Is he able to tell us that those steps are being taken, because I have asked for them to be taken for a very long time now?
The Lord Chancellor: As my noble and learned friend knows, we have discussed this a great deal. A lot of controversy existed about that provision. A degree of difference of opinion existed about it on the Cross

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Benches. As my noble and learned friend knows, I have had the intention of bringing forward proposals as soon as possible, and I believe that "possible" is becoming a good deal nearer than it was the last time we discussed it.
In conclusion, I should perhaps say, noticing the noble Lord, Lord Hylton, there, that so far as I understand the position it is not necessary for a judge who took the trial to sit in the Court of Appeal so far as the judicial manpower in Northern Ireland is concerned.
On Question, Motion agreed to.

Maximum Number of Judges (Northern Ireland) Order 1993
The Lord Chancellor: My Lords, I beg to move. Moved, That the draft order laid before the House on 21st January be approved [17th Report from the Joint Committee]. —(The Lord Chancellor.)
On Question, Motion agreed to.

Civil Jurisdiction and Judgments Act 1982 (Amendment) Order 1993
8.38 p.m.
The Lord Chancellor The Lord Chancellor rose to move, That the draft order laid before the House on 25th January be approved [17th Report from the Joint Committee].
The noble and learned Lord said: My Lords, the purpose of this Order in Council is to make adjustments to the rules which govern the allocation of jurisdiction to the courts of the different parts of the United Kingdom in civil cases. The first part of the order deals with cases which have a connection with more than one part of the United Kingdom: where the plaintiff is English and the defendant Scottish, for example. The second part deals with rules of jurisdiction in Scotland.
The existing rules allocating jurisdiction within the United Kingdom are set out in Schedule 4 to the Civil Jurisdiction and Judgments Act 1982. They largely —-but not entirely—follow the rules in the 1968 Brussels convention on jurisdiction and the enforcement of judgments in civil and commercial matters. That convention deals with jurisdiction and the enforcement of judgments as between member states of the European Community, and the main purpose of the 1982 Act was to give effect to the convention in the United Kingdom. When Spain and Portugal acceded to the Brussels convention in 1989 the opportunity was taken to modify some of the rules of jurisdiction. We have decided, after consulting interested bodies within the legal profession, that the intra-UK rules of jurisdiction in Schedule 4 should also be amended.
The power to do this comes from Section 14 of the 1982 Act. The order makes amendments to Schedule 4 in three areas: contracts of employment, related claims concerning a contract and real property, and holiday lettings.
Article 5(1) of the Brussels Convention provides that in contract cases a defendant may be sued in the
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country of his domicile or in the courts for the place of performance of the contract. That article has now been amended to include a provision relating specifically to individual contracts of employment. The amendment provides that the place of performance of such a contract is the country in which the employee habitually carries out his work. If he does not habitually work in any one country, he may choose to sue the employer in the courts for the place of business through which he was engaged.
The flexibility accorded by this new provision is intended to benefit the employee, as the weaker party in the contractual relationship. I see no reason why Schedule 4 should not be amended to keep it in line with the Brussels Convention in this respect, and the order provides accordingly. For example, its effect will be to make it clear that a person from Belfast who works there for a company based in London will be able to bring proceedings against the company, in a matter relating to his employment, in Belfast.
The order also permits a further choice, which is given to a plaintiff employee by a new fifth paragraph in Article 17 of the Brussels Convention. That paragraph invalidates a choice of court agreement in cases concerning a contract of employment unless the agreement was made after the dispute arose. However, it allows an employee (but not an employer) to take advantage of a pre-dispute agreement which confers jurisdiction on a court other than that of the defendant's domicile or that of the place of performance of the contract.
A new paragraph 4 in Article 6 of the Brussels Convention provides that, where in a contract case the plaintiff is suing the same defendant over rights in rem in real property, then, if the two actions can conveniently be combined, he may bring both actions in the country where the property is situated. I believe that there is merit in enabling two issues between the parties to be dealt with by the one court in a single set of proceedings. A similar provision has therefore been added to Schedule 4.
Finally, Article 16(1), which gives exclusive jurisdiction in proceedings relating to immovable property to the courts of the state in which the property is situated, has been amended with respect to the particular case of short-term holiday lets. It now contains an exception in cases relating to tenancies concluded for temporary private use for a maximum period of six consecutive months. In such cases the courts of the defendant's domicile also have jurisdiction, so long as both the landlord and the tenant are natural persons—that is to say, not companies—and are domiciled in the same contracting state. We agree that this special provision is justified. It would mean, for example, that a dispute between two English people over a holiday letting in Scotland would not have to be heard in Scotland if it was more convenient for it to be dealt with in England. I should add that the consultation paper which preceded the preparation of this order canvassed a slightly different amendment to Article 16(1), but we have since concluded that this cannot be adopted since the powers in Section 14 of the 1982 Act enable

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amendments to be made to Schedule 4 only if they correspond with those made to the Brussels Convention.
The second part of the order consists of amendments to Schedule 8 to the 1982 Act. This schedule contains the rules as to jurisdiction within Scotland. At the time of implementation of the Brussels Convention it was decided to take the opportunity to review and codify the Scottish rules of jurisdiction. Following the recommendations of the 1980 Report of the Scottish Committee on Jurisdiction and Enforcement, chaired by Lord Maxwell, it was decided that the Scottish rules should generally follow those of the Brussels Convention. Schedule 8 therefore provides a comprehensive code of jurisdiction for Scotland.
After consulting representatives and members of the legal profession in Scotland and receiving a favourable response, I have decided that the rules in Schedule 8 should also be amended to bring them into line with the revised Brussels Convention. The Lord Advocate has agreed with that view. The amendments made by the order to Schedule 8 have the same effect as those for Schedule 4 which I have already explained.
I believe that these amendments are useful. They have the support of the judiciary and interested bodies within the legal profession. I commend them to the House. I beg to move.
Moved, That the draft order laid before the House on 25th January be approved [17th Report from the Joint Committee]. —(The Lord Chancellor.)
Lord Williams of Mostyn: My Lords, we express our support for this order.
Lord Meston: My Lords, I join in welcoming this proposal, in particular the flexibility in employment cases which it is to introduce even though it is apparently to deny Englishmen the delights of litigation in Scotland.
The Lord Chancellor: My Lords, I am sorry that it should have that effect. I am not sure that it would. I am grateful for the support which the proposal has received.
On Question, Motion agreed to.

Asylum and Immigration Appeals Bill
8.45 p.m.
House again in Committee.
Clause 3 [Fingerprinting]:
The Deputy Chairman of Committees (Lord Aberdare): If Amendment No. 7 is agreed to, I cannot call Amendment No. 8.
Lord McIntosh of Haringey Lord McIntosh of Haringey moved Amendment No. 7:
Page 2, line 5, leave out from ("his;") to end of line 8 and insert ("except that asylum-seekers under the age of 18 years, whether unaccompanied or a dependant, shall not be finger-printed.").
The noble Lord said: With this amendment we start our discussion of Clause 3. Looking at our
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amendments on this clause I feel that we are only scratching the surface of the absurdities that exist there—that is to say, the extent to which a full-blown fingerprinting procedure is brought into asylum law without any clear indication of how it is going to operate, what effect it will have or what relationship it will have with fundamental civil rights.
I am not an out-and-out opponent of fingerprinting under all circumstances. I myself have been fingerprinted at 3.30 in the morning when awakened by the police, who said that they had stopped somebody driving a car in the boot of which there was stolen property which had come from my house. They insisted on coming round at that moment to obtain a statement from me and also to obtain my fingerprints. At 3.30 a.m. one is not very conscious of one's civil rights. On reflection I am sure that I should have said "What are these fingerprints to be used for? Can I be assured in writing that they will be destroyed when the occasion for their use has expired?" and so on, but I did not do that. I was anxious to make my statement and to get back to bed. I was so anxious that I wrote the statement myself rather than trust a policeman to write it for me and then I signed it. The police thought that was an extraordinary procedure.
So, of itself, fingerprinting is not objectionable. However, the fingerprinting of asylum seekers is a very extraordinary procedure. When the original Bill first came before another place in November 1991, Ministers described it as being a process to maintain our system's integrity and to help check cases where there is evidence of multiple social security claims. That is what it is intended to do.
That is all very well, but every time we have asked about multiple applications for asylum we have come down to very small figures. Only this afternoon the Minister admitted that there were only 27 convictions for multiple applications. One or two of them have been very dramatic and Ministers quote them at all possible opportunities. But that does not mean of itself that it is a very serious problem.
It is now being claimed that fingerprinting is going to be used for other purposes as well. It is to be used for co-ordinating the activities of the Department of Social Security and the Home Office Immigration Service. I do not see any explicit plans for that to be done. I do not see any provision that fingerprints are going to be obtained by the Department of Social Security and, when inquiries are made of the Home Office, produced for checking against the Home Office records compiled under this clause.
If it were suggested that the Department of Social Security were to begin fingerprinting applicants for benefit I believe that there would be a much wider outcry than there has been on this particular provision. I certainly do not see how in practice the proposed fingerprinting will be effective. I realise that to some extent I am speaking about the wider issues that can be covered in a debate that the clause stand part of the Bill. I promise the Committee that that means I will not repeat my arguments when we come to that debate, but I think it is proper that

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amendments on particular subjects should be introduced by a general conspectus of the position as regards fingerprinting.
Ministers, in dealing with the previous Bill, did not give any assurance that fingerprints would be kept confidential in any way; indeed, they said they were not persuaded that there were any grounds for treating them any differently from even more sensitive material. A number of people will feel that there are grounds for treating fingerprints with a good deal of confidentiality and that we are far down the road to a police state if we start to fingerprint those who are not accused of any criminal activity. I must remind the Committee that that is the situation with asylum seekers. They are not being accused of any criminal activity, nor, to refer back to my own case, are they being required to be witnesses in any case involving criminal activity. For the first time fingerprinting is being extended to what is in effect a civil proceeding, even though it may be thought of as an international civil proceeding.
That leads me to my next query about fingerprinting. What are the international implications of fingerprinting? If it is to be effective and government are worried about concurrent applications to different countries, will the fingerprints be made available to immigration departments in other safe countries? If so (in the classic phrase) I believe that we should be told. But we are not being told how those fingerprints will be used. We are told in subsections (6), (7) and (8) about the provisions for the destruction of fingerprints. I welcome that. However, that does not give any indication of the kind of provision that there would have to be analogous to that in the Data Protection Act 1984 if the security of fingerprinting and the transfer of fingerprints to unsuitable third parties were to be prevented.
I turn to the first of the specific amendments on the Order Paper in the name of myself, the noble Baroness, Lady Seear, and the right reverend Prelate the Bishop of Ripon. The noble Baroness sends her apologies. She is lecturing in Guildford this evening and is unable to be with us. In this amendment we turn to perhaps the most obvious and extreme of the intrusions on civil liberties introduced by Clause 3, that is, the proposal that fingerprinting should be extended to children under the age of 18 or (if you like) to minors. I find the proposal quite extraordinary. In the context of what I have already said I can just about understand that the Government may seek to argue that the fingerprinting of adult applicants is a justifiable procedure, although I disagree with that argument. But to argue that it should be extended to those under the age of 18 seems to me absolutely extraordinary.
I invite the Committee to consider the position of these children coming to this country. We must assume for the purposes of debate that they are coming from countries where there has been oppression, persecution and perhaps torture and where action has been taken against them and their families by the authorities, because it is authorities that undertake these actions. The idea that one of the first things to happen to them in what is supposed to
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be a safe haven is that their hands should be plonked down on an inked pad and then on to a sheet of paper is most extraordinary. The right reverend Prelate correctly said that the state in which they find themselves is traumatic. Surely, this is exactly a situation that will revive all the worst fears that they have. It will revive the trauma and reduce or remove their confidence in the independence and justice of the authorities in the country in which they find themselves. I do not believe that as a civilised country we should in any circumstances wish to impose these fingerprinting procedures on children coming to this country. Certainly, this extension of what otherwise is a procedure adopted in criminal cases seems quite extraordinary. I beg to move.
The Lord Bishop of Ripon: During the Second Reading debate some of us expressed our disquiet over the matter of fingerprinting. I expressed disquiet on the ground that I was not convinced that it was necessary. I inquired why the standard acknowledgment letter should not be a sufficient requirement to avoid multiple applications. I understand that the purpose of fingerprinting is primarily to avoid that. I have seen very little evidence that the standard acknowledgment letter is not successful in greatly reducing the number of multiple applications. The Minister replied at Second Reading that he felt fingerprints were the only totally safe way, but I have yet to see evidence that there is multiple application under the standard acknowledgment letter. I am by no means convinced that this is necessary. If to that is added the weight of argument that we have already heard it seems to me that there is a strong case against fingerprinting.
The case has been argued on the ground that it is an infringement of our civil liberties. It is not the custom in our country to do it except when people are accused of criminal offences. As I argued on Second Reading, for those coming to this country the association between fingerprinting and what they may have already experienced will be a traumatic experience.
When we apply the provision to children the case becomes even more overwhelming. I can find no evidence that children under 18 are making multiple applications. Why is it necessary that they should be fingerprinted? Why should it be included in the Bill when there is no apparent abuse that is sought to be remedied? If that is the case, I also argue that children and teenagers are more likely to be in trauma than adults as a result of experiences they have had in their own country. I believe that the amendment that asylum seekers under the age of 18, whether unaccompanied or dependent, should not be fingerprinted is a wise and proper one.
The Government have made the concession that children under 16 must be fingerprinted only in the presence of an adult who is not an authorised person. That is a welcome concession, but there is no indication of who is an appropriate adult. Further, there has been no real concession on the matter of age. Is it not possible for the Government to consider setting a minimum age for fingerprinting along the

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lines of the amendment? I believe that because fingerprinting is unnecessary for children we should take serious note of the amendment.
9 p.m.
Lord Tordoff: In the absence of my noble friend Lady Seear who, as the noble Lord, Lord McIntosh, has already said, has an engagement elsewhere tonight, I should not want the argument not to be reinforced from these Benches. It is a subject upon which Liberals, from way back, have felt strongly. That is not to say that these days one might not take a slightly more relaxed view about it. Indeed, like the noble Lord, Lord McIntosh, I have been fingerprinted in somewhat similar circumstances. After arriving at Heathrow at 12.30 a.m. and finding that the car that was going to take me back into the centre of London had been broken into, the police wanted my fingerprints to check with the fingerprints that were already in the car to see whether any extraneous ones could identify the miscreant. I gave them willingly because it was late at night and I did not worry too much about my civil rights.
On the other hand, it is clearly in the minds of people in this country, let alone people from overseas, that fingerprinting is something which is attached to criminality. It is that flavour of criminality associated with fingerprints that we do not want to attach to people who are seeking refuge in this country. The Government may think that they are all criminals, I do not know. But they should not give that impression. The case was argued well by the right reverend Prelate. I shall not add to the argument. I wish merely to say that I am entirely behind the arguments put forward by the noble Lord, Lord McIntosh, and the right reverend Prelate.
Baroness Faithful: One is bound to ask, why fingerprints? There is another side to the coin. It might be in the interests of some children to have their fingerprints taken, because, for instance, under the Children Act 1989 it is sometimes possible to reunite children with their families. Some families who put a child on an aeroplane to save it for the time being, but hoping to see it again later, have the child's fingerprints taken before it comes to this country so that they may reclaim the child later. That sounds far-fetched, but it has been known to happen. There is another side to the coin.
Lord Renton: The effect of Amendment No. 7 would be to exempt all people under 18 from fingerprinting. The noble Lord, Lord McIntosh, made it clear that he did not object, in principle, to the fingerprinting of adults. How right he is.
Lord McIntosh of Haringey: I should make myself clear. I do not object to fingerprinting under all circumstances, but I have not said that I would approve of the fingerprinting of asylum seekers.
Lord Renton: If I may say so, the noble Lord's experience in this matter —I am looking at it in the broad—must be some years out of date. It is now known, and well-established—some statistics can be
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given I understand—that many people come here under one name and seek asylum. The application is turned down. They then try again under another name. That is called making multiple applications. There are vast numbers of them. There are those who succeed in avoiding the net, and the social security people have great problems. People sometimes apply for social security under more than one name. That has been done on a considerable scale.
Lord Tordoff: Perhaps the noble Lord will give way. Is he suggesting that the whole population should be fingerprinted so that no one should be able to make multiple social security applications? It does not seem to me that the social security benefit argument bears upon the asylum argument. It is a smokescreen that has been put up by the Government.
Lord Renton: I hope that it will never come to that, but it so happens that there are people who have been given the privilege of coming to this country to live who have done that more often than the native people of this country. Perhaps noble Lords will look at the Explanatory Memorandum where Clause 3 is explained. They will see how fingerprinting will work. Clause 3:
"provides for a person who has made a claim for asylum to be required to have his fingerprints taken, or to attend for fingerprinting, and empowers an immigration officer or constable to arrest without warrant a person who fails to comply with a requirement to attend".
It continues:
"Fingerprints are to be destroyed at the end of ten years or (if sooner) one month after the person concerned has been granted indefinite leave to remain in the United Kingdom. Similar powers may be exercised in relation to any dependant of such a claimant but a child under 16 may only be fingerprinted in the presence of an independent adult".
We come to that point in greater detail in the next amendment.
I should mention, because the noble Lord, Lord McIntosh, did not seem to be aware of it, that there are many countries which fingerprint all or some of the people arriving in those countries. I have been fingerprinted in two different parts of the world on my first visit to friendly countries. I only hope that it has not been found so necessary to do that in more recent years. Within the European Community, it is only the Republic of Ireland which has not taken some power to fingerprint asylum seekers. In France and Switzerland, where extensive computer checks have been run on asylum applicants, between 5 per cent. and 20 per cent. have been found to be multiple applicants; that is to say, people trying to make applications more than once.
A strong case as regards fingerprinting has been made out. I believe that the Government have it about right. For social security purposes it is only right that there should be a power to take the fingerprints of people under 16, but in the presence of a person of full age who is not an authorised person—in other words a police officer or an immigration officer. I hope and expect that my noble friend Lord Ferrers will feel it right to resist the amendment.
Lord Tordoff: The statement made by the noble Lord, Lord Renton, was not of his usual high standard. He said that people who come into this

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country are more liable to be social security scroungers than people who are indigenous to this country. That statement is unworthy of him.
Lord Renton: I understand that the position I described is the actual position.
Lord McIntosh of Haringey: I hesitate to interrupt on the same basis because I know that the Minister has yet to reply. I admit that in a sense I opened the debate widely to encompass social security matters. The noble Lord, Lord Renton, is usually most meticulous in confining his remarks to the particular amendment before the Committee. I must remind him that it refers to those under the age of 18. As social security benefits were taken away from 16 and 17 year-olds there are no social security implications under this amendment.
Lord Renton: But we must bear in mind that where people on social security have the right to claim benefit in respect of dependants it is only right that the position of the dependants should be known. There should not be multiple applications in respect of dependants.
Viscount Buckmaster: I support what was said by the noble Lord, Lord Renton, about multiple applications. The other day I was talking to some Bangladeshi friends in the Gloucester Road area. After careful interrogation one man told me that he had a friend who had five different houses in that area and they were all obtained by completely false applications made through the usual channels.
Although the practice of fingerprinting has largely died out it used to be common in the Persian Gulf and parts of Arabia, which I knew well. Fingerprints were widely used as receipts on payrolls. The practice has largely died out but in the minds of primitive Africans the fingerprint is still thought of as a receipt.
Viscount Brentford: To ensure that I have no friends in the Committee perhaps I may say that I am as unhappy with the amendment as I am with the original draft of the Bill. As I said on Second Reading, I am unhappy with the provision for the unlimited fingerprinting of minors under the age of 18 in particular. Tonight during the supper break I spoke with a friend who is or has been chairman of the National Consumer Council. She said that if one fingerprints children who are asylum seekers they will be traumatised for life. I am unhappy with the proposal.
On the other hand, I take account of what was said by my noble friend Lord Ferrers on Second Reading. He said that often when people arrive in this country without documentation one cannot tell their age. If the amendment were accepted it would be easy for someone to say that he was 17 when in fact he was 20. One would have no evidence to dispute that.
Rather than accepting the amendment or the provisions in the Bill, will my noble friend accept an amendment along the lines of the words he used on Second Reading. They fit exactly with what I believe should be in the Bill. He said that one of the difficulties that would arise if we were to put in the age would be wrangles about that person's age. He added:
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"We made it perfectly clear that we had no intention of routinely fingerprinting young children".
But the Bill gives the Government the power to do so.
"but we think that it is important to retain the possibility of fingerprinting in particular cases, to avoid creating a loophole which could be abused".—[Official Report, 26/1/93; col. 1221.]
I should strongly support the amendment as drafted if it included the provision that in certain particular cases the Home Office had the power to fingerprint children. I do not accept the Bill as it is drafted, but I should be prepared to give my noble friend that exemption if it would be an acceptable compromise.
Earl Ferrers: I sometimes think that we get too fussed about fingerprinting. It is a fairly modest thing to do and as a result of having done it people who conduct their lives correctly have nothing whatever to fear. It is only those who conduct their lives improperly who have cause for fear. The noble Lord, Lord McIntosh of Haringey, said that he has had his fingerprints taken and that he did not object to it in principle provided that it was applied under all circumstances. Indeed, the noble Lord, Lord Tordoff, also said that he had his fingerprints taken. I accept that there is a degree of apprehension at the thought of fingerprints being taken but I believe that that is exaggerated.
The noble Lord, Lord Tordoff, said that it is reminiscent of a police state. In this case, this has nothing to do with the police at all. In fact, it was not the noble Lord, Lord Tordoff, who said that but the noble Lord, Lord McIntosh of Haringey. This is entirely a matter for Home Office officials dealing with asylum cases.
The right reverend Prelate said that there is no evidence of multiple applications. The noble Lord, Lord McIntosh, gave my noble friend Lord Renton a rocket in the most delightful way and said that my noble friend's speech about social security had nothing to do with the amendment because the amendment deals with whether or not children under the age of 18 should have their fingerprints taken. I thought that that was a bit rich coming from the noble Lord, Lord McIntosh of Haringey, who spent the first five minutes of his speech on a clause stand part debate discussing the merits of fingerprinting. My noble friend was quite right to refer to that.
People who contravene those rules make false applications. The right reverend Prelate is worried about that. However, I can tell him that 27 people have been convicted of making multiple applications, which involved 700 different identities. The noble Lord, Lord McIntosh of Haringey, said that that is not many. It is rather like the proverbial maid who, when she was accused of having an illegitimate baby, said, "well, it is only a small one". However, those people have committed crimes and have been convicted of them. Of course, there may be others who remain undetected.
The Government are merely saying that we must fingerprint people in order to prevent such abuse. The right reverend Prelate the Bishop of Ripon said that that is not fair and that people are traumatised. I accept that people who come to this country under these circumstances may be in a traumatic state.

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However, if they are in such a state, it seems a fairly modest request merely to ask them to put their fingers on a pad, if that is what they must do to get from an uncomfortable country into a more comfortable one. I do not believe that that is a particularly difficult request when it is known that many people come here fraudulently.
My noble friend Lord Brentford was kind enough to quote what I said on Second Reading. It is not anticipated that it will be necessary to fingerprint every child. We do not intend routinely to fingerprint very young children. However, there will be circumstances in which fingerprinting is both necessary for identification purposes and desirable in the child's interests. It is important that we should have the power to be able to do that without hindrances which would necessarily result from complex exemptions.
A small proportion of unaccompanied children arrive here seeking asylum in their own right. It can be very difficult to asses visually the age of such children who arrive here without documents. A rigid requirement to treat differently children of a particular age would be operationally difficult as well as inappropriate, particularly if the age limit were as high as 18.
The right reverend Prelate was concerned that there should be a minimum age. He and the noble Lord, Lord McIntosh of Haringey, accept that it is difficult to assess people's ages. I do not know whether the right reverend Prelate has looked at any 15 year-olds lately but he might have mistaken them for 18 year-olds. It is always difficult to judge. The policy to exclude those below a certain age from the fingerprinting provisions might exacerbate the considerable problems posed by the disposal of identification documents. A 19 year-old might find it very helpful to dispose of his papers and then claim that he is only 15. There is no reason why a child might not be drawn into fraud by making false applications in the same way as adult applicants are. We need to prevent that.
The noble Lord, Lord McIntosh, wanted to know whether the Department of Social Security would have access to fingerprints. The department will not take fingerprints nor will it have access to fingerprints taken by the Home Office. The Home Office will take fingerprints to establish the identity of asylum applicants before issuing the standard acknowledgement letter which the Department of Social Security will expect to see produced when an asylum seeker claims benefit. It is a simple process that we are suggesting should be included in the Bill. Members of the Committee have suggested making a cut-off date. I believe that would prove to be complicated in practice. I repeat the undertaking that I have already given: it is not expected that every child should always be fingerprinted. However, the power should be there.
The Lord Bishop of Ripon: I wish to press the Minister on one point. He referred to the 27 cases of multiple application. I accept that those took place. My query relates to whether those occurred before the present form of standard acknowledgement letter was
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in place or after that date. Can the Minister tell the House how many cases have occurred since the present form of the standard acknowledgement letter was established? I have heard it said by those involved in this field that that device has been successful in reducing multiple applications.
Earl Ferrers: I cannot answer that question. I shall try to find out about it. The point is that many of the people we are discussing make fraudulent applications. If a fingerprinting system were established, it would go a long way towards preventing those fraudulent applications. If this is a case of "belts and braces"—though I do not think it is—there is nothing wrong with that.
Lord McIntosh of Haringey: I am sure the Minister in his reply made what he thought was an uncompromising speech about this amendment. The Minister may not welcome this suggestion but I believe his response was bristling with opportunities for compromise and with opportunities for reaching a reasonable solution. He has already said the matter we are discussing would not be a routine procedure. Ministers in another place have said the same thing.
The Minister has made it clear that one of the problems with choosing the age of 18 is that it is possible that some people over the age of 18 would pose as under 18 year-olds. The obvious solution to that is to state that fingerprinting could be used on those who appear to be, or are deemed to be, over the age of 18. Some such formula could be used. If the problem is the age of 18, perhaps the Government should adopt the age of 14, the age of puberty, or the age of 10. Any contributions would be gratefully received on that matter, as the power the Government are taking is clearly above and beyond the requirements of the situation.
There may well have been 700 claimed identities in the 27 applications we have discussed. However, one should not insert a whole clause in the Bill on the basis of 27 convictions, particularly as the Minister could not answer the relevant question asked by the right reverend Prelate on whether the multiple applications took place before the standard application document had been brought into force.
I suspect that a great deal of what is in this Bill represents sheer stubbornness on the part of the Government. They introduced it in 1991 and it fell before the 1992 general election. During that period it was possible first of all to increase the number of immigration officers so that the queue for asylum decreased dramatically. Secondly, it was possible to introduce a standard application letter with a photograph so that problems of mistaken identity, or misuse of identity, were reduced. I suspect that the situation in late 1992 and 1993 is that the vast bulk of this Bill is not necessary at all. It is only rigidity and a sense of amour propre on the part of the Government that has made them bring it forward under changed circumstances.
But surely there is room for compromise on the fingerprinting of children. That is a specific point. The noble Lord, Lord Renton, talked about multiple applications in vast numbers. That needs some

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substantiation if the Committee is to take it seriously. I regret that the noble Lord referred to his supposition that people who come into this country are more likely to make false social security applications than native people. Like the noble Lord, Lord Tordoff, I do not think that that is worthy of him or that that is the way his mind really works. Nor do I believe that there is any evidence that that is the case.
The noble Lord assumed that I did not know that fingerprinting is required in countries in the European Community other than Ireland. Of course I know that fingerprinting is required. But I am concerned that we should retain our civilised attitude towards such matters and should not be drawn into fingerprinting simply because other countries already require it.
The most effective and valuable speech was that of the noble Viscount, Lord Brentford. I beg the Government to listen to him and perhaps to talk to him between now and Report stage. In his reference to what the Minister said at Second Reading he appeared to identify a spirit of compromise which could be acted on. I should he very pleased to talk to the Minister between now and Report stage. I do not ask him to agree to any particular course of action, but I believe that this is a matter to which we ought to return at some stage. On that basis I would prefer not to press the amendment at present. I believe that there is room for manoeuvre. I hope and believe that the Government will recognise that when they consider the arguments which have been put forward tonight. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord McIntosh of Haringey Lord McIntosh of Haringey moved Amendment No. 8:
Page 2, line 8, at end insert ("and who is either the parent, guardian or advocate of the child, or a social worker or other responsible adult aged 18 or over who is not employed by the police or the immigration service.").
The noble Lord said: In the absence of the noble Baroness, Lady Seear, and since my noble friend Lady David is unable to be present, I am the only person in the Chamber whose name appears on the amendment. Therefore I rise to move the amendment, and I shall do so fairly formally.
The amendment was put forward in another place by Mr. Robert Maclennan. It seemed to me a very modest and reasonable amendment. I thought from Ministers' responses in Committee in another place that it had struck home to some extent and that there might be room for manoeuvre. It was the only Liberal Democrat initiative in Committee in another place and I am happy to leave the thrust of the argument to them. I beg to move.
Lord Tordoff: In the absence of my noble friend Lady Seear I should like to speak to the amendment. It relates to the same subsection as the previous amendment. The subsection as it stands states that:
"fingerprints shall not be taken from a person under the age of sixteen except in the presence of a person of full age who is not an authorised person".
It is interesting that the Government are apparently able to distinguish those people who are under 16 whereas they are not able to distinguish those people who are under 18. We had a long argument in
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connection with the previous amendment in which it was suggested that it would be very difficult to accept that amendment because it related to people who were under 18. The Government said that it was very difficult to tell the age of people from various parts of the world. However, apparently they can tell when people are under 16 even though they cannot tell whether they are under 18.
The purpose of the amendment is to ensure that in the case of people under the age of 16 the,
"person of full age who is not an authorised person",
is someone in whom the child can have confidence and that it is not accepted that it is not a policeman or immigration officer but is someone who is nominated by a policeman or immigration officer. The amendment is intended to define a group of people in whom the child can have trust and in whom the system can have trust. It spells out a number of people —parents, guardians, advocates of the child or social workers. We are talking about people who understand children and are able to talk to the child and act as an interpreter for the child in a very difficult situation.
The amendment is self-explanatory. I commend it to the Committee.
9.30 p.m.
Lord Renton: Perhaps I may say this with deep respect. The two noble Lords who have spoken in support of the amendment have indulged in a self-defeating exercise. They want exemption for children under 16. The Bill is more generous than their amendment in that respect. It refers to,
"the presence of a person of full age who is not an authorised person".
Those words in the amendment are unnecessary because an "authorised person" is defined under Clause 3(1) as,
"an immigration officer, constable, [or] prison officer",
and so on. Therefore the words,
"who is not employed by the police or the immigration service"
are unnecessary. They overlap what has gone before, and, indeed, narrow the provision.
The expression,
"parent, guardian or advocate of the child, or a social worker or other responsible adult aged 18 or over",
is a fairly full definition. However, it is of less wide effect than the words in the Bill, which are,
"in the presence of a person of full age".
That is a very wide definition. We know that the motives of the noble Lords opposite are well intentioned. I should have thought that they would wish to leave the Bill as it stands.
Lord McIntosh of Haringey: I have seldom heard from the noble Lord a more profound misunderstanding of the purpose of an amendment. It is most unlike him. The intention of the Bill as drafted is to provide that the witness to the fingerprinting shall be,
"a person of full age who is not an authorised person".
Indeed, it is a concession which was agreed by Government in another place. However, we are asking that the protection of children be extended by ensuring that the person is not merely qualified by not being an authorised person—that is a police officer, immigration officer, or whatever the case may be—but

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should genuinely be someone who can be relied on to have the interests of the child at heart. Therefore it is precisely that closer definition of a person who is not an authorised person and is a witness of the fingerprinting which is required by the amendment.
We are conscious of the Bill's provisions. We are conscious of what the amendment states. It is not a mistake on our part. That is the provision we seek. We are looking for someone who can be relied on genuinely to have the interests of the child at heart. We do not refer to someone, for example, who is simply plucked off the streets, as used to be the case with coroners' juries.
Lord Renton: The noble Lord has said that I do not understand the purpose of the amendment. All that I can say is that he has no idea of its effect.
Earl Ferrers: I do not like to interrupt this repartee across the Floor of the Committee. The noble Lord, Lord Tordoff, made great play with the point that on the last amendment the Government had said that one cannot tell whether a person is over or under the age of 18, and yet in this case one can tell who is or is not under 16. The noble Lord believed that he had made a good point. I say this to him. Had the last amendment succeeded, people were going to be excused the requirement to be fingerprinted. Under the Bill as drafted, people under 16 will be given a right. The right that they are given is to be attended by an adult. If a person says, "I am under 16", it will be up to them to show that they are under 16. In the Bill we give them a right.
I can assure the Committee that we accept the principle that the person should be someone who is independent of the immigration authorities and the police. Where the child has a parent, guardian or legal representative, or a social worker who is already known to him, we normally expect that person to be present during the procedure. However, I shall certainly consider bringing forward an amendment at a later stage to put that beyond doubt.
Lord Tordoff: I am grateful to the noble Earl for that. As the noble Lord, Lord McIntosh, has already said, the essence of the amendment is to make sure that the person who is with the child is someone with whom that child can communicate and who is on the child's side. If the noble Earl can work that into the Bill, we should be most grateful.
Lord McIntosh of Haringey: I shall have to find some occasion to disagree with the noble Lord, Lord Tordoff, in order to avoid the accusation which the Minister makes that we always agree with each other. However, I do agree with him. The Minister's last sentence was extremely encouraging when he said that he would look for a way on this. I shall not try to
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paraphrase what he said but it was that action might be taken between now and a later stage. On that basis and on the basis that I shall be glad to talk to him about it between now and the later stage, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
On Question, Whether Clause 3 shall stand part of the Bill?
Lord McIntosh of Haringey: I was rightly chided for raising wider issues in introducing the first precise amendment but I promised that I would not repeat the arguments that I put in support of Amendment No. 7 at this stage. Let us be quite clear about the position of the Opposition on fingerprinting. We are not opposed to it as part of the detection of crime, whether it is fingerprinting of criminals or presumed criminals or of witnesses—as was the case with the noble Lord, Lord Tordoff, and myself.
What we are opposed to is the extension of fingerprinting to what is not a criminal activity. We are not impressed by the arguments from the 27 cases that there is a vast amount of criminal activity involved in the seeking of asylum. We are certainly not impressed by the argument that because a high number of applications for asylum fail, that itself is evidence of abuse. We think that that accusation is a misuse of the English language.
We suspect that the vast majority of the asylum applications which fail do so because of the peculiarly restrictive nature of our asylum rules. We are borne out in that assertion by the fact that a high proportion of asylum applications which are refused result in the granting of extended leave to appeal.
These are matters to which we shall return at Report stage. I do not believe that it is appropriate at this time of night that we should seek to divide the Committee on the clause as a whole. We shall keep our powder dry on these matters and I shall not pursue my opposition to the Motion that Clause 3 stand part of the Bill.
Earl Ferrers: If the noble Lord is kind enough to keep his powder dry, I too shall keep mine dry. Clause 3 agreed to.
Viscount Astor: I beg to move that the House do now resume.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.

Croydon Tramlink Bill [H.L.]
Reported from the Select Committee with amendments, and recommitted to an Unopposed Bill Committee.
House adjourned at twenty-one minutes before ten o'clock.