HL Deb 09 February 1993 vol 542 cc536-602

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.


Clause 1 [Interpretation]:

The Chairman of Committees

If Amendment No. 1 is agreed to I cannot call Amendment No. 2.

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 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 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 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 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 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 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 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 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 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 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 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 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".

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 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: 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
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.
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.
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.
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 moved Amendment No. 71: Before Schedule 1, insert the following new schedule:

  1. Schedule IMMIGRATION RULES Asylum 26,076 words, 1 division