Lords Sitting of 30 April 1996

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

Scotland: Wildlife Monitoring
Lord Mackie of Benshie Lord Mackie of Benshie asked Her Majesty's Government:
What action they are taking, through their agencies, to monitor wildlife in the terrestrial, freshwater and marine environments of Scotland.
The Earl of Courtown: My Lords, Scottish Natural Heritage, as the main government agency for conservation of the natural heritage, has the primary responsibility for monitoring wildlife in Scotland. It has an extensive monitoring programme which is co-ordinated with a wide range of other agencies and non-government organisations.
Lord Mackie of Benshie: My Lords, I thank the Minister for that reply. I am glad that the Government are taking an interest. However, is he aware that, without an overall plan for monitoring these important factors, and without the resources, the voluntary labour that is plentifully available will be wasted? What are the Government doing about that?
The Earl of Courtown: The noble Lord is quite right; the voluntary sector is very important in work for the environment all over the United Kingdom. So far as monitoring is concerned, it is recognised that some aspects of wildlife monitoring are relatively well covered. That is true particularly in the case of birds. For others, such as lower plants, invertebrates, fish and mammals, the information base is less developed. The priority in many cases for species and habitats is to establish a satisfactory baseline inventory. As the noble Lord commented, one has to find out what is there in the first place before changes in levels can be monitored. As regards funding, I believe that in the region of £20 million per annum is spent in Scotland on monitoring wildlife:
Lord Mason of Barnsley: My Lords, in relation to such monitoring exercises, especially of the marine environment and the conservation of salmon, to what extent does the Minister think that the north-east drift net fisheries are adversely affecting the salmon stocks in Scottish rivers?
The Earl of Courtown: My Lords, salmon fisheries are a very important part of industry in rural parts of Scotland. We fully recognise the value of wild salmon to Scotland's rural communities and its importance from
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the standpoint of natural heritage. As the noble Lord is aware, we are very concerned over drift netting, and the position is continually being looked at.
Lord Pearson of Rannoch: My Lords, is my noble friend aware that the scientific community, together with landowners and conservationists, are all most grateful for the Government's recent decision to extend their support for the acid rain monitoring programme for at least another year; and that we all hope that that support will continue for many years to come?
The Earl of Courtown: My Lords, I thank my noble friend for letting me confirm that the network is to continue. Much of this is down to my noble friend Lord Ferrers, who is unable to be with us in the Chamber today.
Baroness Nicol: My Lords, is it not the case that the budget for Scottish Natural Heritage for 1996–97 has been cut from £40.3 million to £36 million? How does that tie in with the Minister's assurances that all the services will be kept up? Will he assure the House that Scottish Natural Heritage will continue to support the Joint Nature Conservation Committee?
The Earl of Courtown: My Lords, I thank the noble Baroness, not for all her content but for the point she makes. The commitment remains to ensure that Scottish Natural Heritage is sufficiently well funded to be able to fulfil its statutory and other obligations. Both Her Majesty's Government and SNH are absolutely certain that we shall be able to carry that out. Circumstances have changed, and it should be noted that efficiency savings are available and improvements in effectiveness are expected to follow from the implementation of the recent efficiency review and also The Way Ahead.
The Earl of Clanwilliam: My Lords, will my noble friend inform the House of the large subventions made by this Government to the environmentally sensitive areas, which I believe amounted to some £66 million? Will he also comment on the fact that the Organic Aid Scheme received only £1 million?
The Earl of Courtown: My Lords, I am afraid I did not catch everything that my noble friend said. The environmentally sensitive areas in Scotland are very important. There are 10 such designated areas in Scotland. We continuously review and measure changes in vegetation cover and landscape features; there is also more specific monitoring of individual sites on farms and crofts in the scheme.
Lady Saltoun of Abernethy: My Lords, has anybody monitored the population of birds of prey (raptors) since so many have become protected species, and their effect on the population of small birds, in particular songbirds?
The Earl of Courtown: My Lords, the noble Lady makes a very important point. The Biodiversity Action Plan takes that into account.
Lord Carmichael of Kelvingrove: My Lords, the Minister will be aware that the Scottish Environmental

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Protection Agency and Scottish Natural Heritage are obviously doing much the same type of work in slightly different spheres. We were promised in the 1995 Bill that there would be a memorandum of agreement between the two bodies. Can the Minister say—perhaps not now; he may prefer to write to me—whether there is such a memorandum and where it can be obtained? If it has not yet been published, can he say whether it will be published soon?
The Earl of Courtown: My Lords, I always try to help the noble Lord but in this instance I cannot. I am afraid that I shall have to write to the noble Lord.
Lord Ewing of Kirkford: My Lords, did the Minister notice that yesterday fishermen were taking salmon from the River Tweed at Berwick-upon-Tweed and inserting small radios in the stomach of the salmon before putting them back in the water? If the Minister should be talking over the radio to any of those salmon, can he ask them to persuade their colleagues to swim further north up into the Scottish rivers?
The Earl of Courtown: My Lords, as usual, the noble Lord makes a very interesting point. As I already said to his noble friend, Scottish salmon are very important.
Lord Mackie of Benshie: My Lords, in view of the number of interesting points made, would the Minister do his homework again and see that resources are given instead of being reduced?
The Earl of Courtown: My Lords, I am fully satisfied that resources are available, as are the rest of Her Majesty's Government and SNH. Monitoring will continue and we shall look to the safe environmental future of Scotland.

Training and Enterprise Councils
2.44 p.m.
Lord Dormand of Easington Lord Dormand of Easington asked Her Majesty's Government:
Whether they intend to take any action to improve the working of training and enterprise councils.
The Minister of State, Department for Education and Employment (Lord Henley): My Lords, the three-year licensing process is supporting continuous improvement in training and enterprise councils. To be awarded a licence a TEC must meet rigorous criteria across all that it does. That includes assessment of the TEC's corporate planning and indicators of its strategic impact, a corporate programme and internal capability. Sixty-four TECs have already been awarded licences. The Government's intention is to contract only with licensed TECs after 1997.
Lord Dormand of Easington: My Lords, does the Minister agree that one of the most unsettling and worrying aspects of TECs at the moment is that their legal status is not quite clear? If Oldham TEC wins
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charitable status arising from its court case with the Inland Revenue, would it not make some of the activities of the TECs illegal? Perhaps equally important, would it not affect the liabilities of members of TECs? In those circumstances, is it not likely—in fact, highly probable—that some members will cease to do work for TECs?
Lord Henley: My Lords, the noble Lord is right to draw attention to the uncertainty following the case for charitable status which involved Oldham TEC. I understand that the Inland Revenue has appealed to the High Court the decision of the special commissioners of Inland Revenue to grant Oldham TEC charitable status for tax purposes. At the moment, all I can say to him is that the department is considering with the Charity Commission and the TEC National Council the implications for TECs following that decision if the Inland Revenue fail to win at a higher court.
Baroness Turner of Camden: My Lords, is it a fact that the application for charitable status came about because the TEC in question was concerned about financial resources and felt that obtaining charitable status would improve the financial resources available? Is it also true that TECs constantly seem to have to battle with the Treasury for adequate resources? Furthermore, how do the Government deal with what appear to be varying degrees of effective performance among the different TECs? How is it intended to obtain consistency of performance?
Lord Henley: My Lords, it is not for me to guess the motive behind Oldham TEC's decision to take this matter to the courts. On the wider question as to whether TECs are adequately funded, I do not accept what the noble Baroness said. Overall, TECs' budgets this year, 1996–97, are set to increase. That is a sign of Her Majesty's Government's confidence in TECs. Obviously, we want to make sure that all TECs perform adequately. That is why we introduced the licensing process and why we intend to continue with it.
Lord Gisborough: My Lords, in view of the success of the licensing process, can the Minister say what percentage those 64 TECs represent? What help will be available to other TECs which are less likely to reach the criteria and for how long may that help go on?
Lord Henley: My Lords, I cannot help the noble Lord with the precise percentage of those which have not been licensed. My arithmetic is not up to it at the Dispatch Box. I can assure him that 64 out of 74 TECs have already been licensed. That leaves 10 TECs waiting to be licensed by next year. Certainly, we shall offer what help we can to those 10 TECs to go down with the licence process. I hope that the TEC National Council will do the same. Certainly, we hope that all will be licensed by next year.
Lord Rochester: My Lords, does the noble Lord recall that the policy director of the TEC National Council criticised the bureaucratic procedures under which TECs have to operate? Those procedures were said to be a natural consequence of allowing technocrats, distant from

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the field, to design systems of operation in environments which they had not experienced and did not understand. How does the Minister respond to those strictures?
Lord Henley: My Lords, I am aware of those criticisms. They were looked at by the Employment Select Committee in another place in its recent report on the work of TECs. But, as the committee's report emphasises, there is a balance to be struck between maintaining proper accountability in expenditure of public funds and ensuring that the detailed oversight of checks is not overly bureaucratic. The Government aim to bring greater trust and clarity into their relationship with TECs. I believe that there has already been considerable progress in that area.
Lord Hylton: My Lords, can the Minister say how many councils have so far gone bankrupt? I know of one case in south London.
Lord Henley: My Lords, the only TEC which was forced to go into liquidation was the South Thames TEC. We believe that that was not as a result of fraudulent claims, as alleged by some, but was due to its own inadequate financial control systems. We trust that with the improved measures and licensing procedures that have been introduced that will not happen again.
Lord Peston: My Lords, these councils are called training and enterprise councils. Can the Minister say where the enterprise comes in? What do they do that encourages enterprise? In particular, if they are encouraging enterprise and wish to go bankrupt, should not they be allowed to do so?
Lord Henley: My Lords, the councils work at a local level in partnership to bring about and encourage economic development of their local area. They assist in driving forward national targets for education and training and also help deliver the national training and enterprise programmes of Her Majesty's Government. They are training and enterprise councils, and we believe that they do their job well.
Lord Peston: My Lords, I do not want to press the Minister too much. However, the word "enterprise" has a definite meaning within the market mechanism and it is not about training. It involves enterprise, which is about risk-taking. That is why I should like the Minister to explain what it is that a council can do that encourages such enterprising, risk-taking activity. He has not yet given us an example.
Lord Henley: My Lords, I shall be more than happy to arrange for the noble Lord, Lord Peston, to visit one of the training and enterprise councils. I hope the noble Lord will take me up on that offer. I can refer him to a number of good training and enterprise councils in London, or perhaps the noble Lord would like to travel further afield. It may do him good to see some of the rest of the country. I shall be more than happy to arrange
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that; I am sure too that the TEC involved will be more than happy to show the noble Lord exactly what it can do to encourage enterprise and training.
Lord Dormand of Easington: My Lords, the Government have been encouraging the amalgamation of TECs and chambers of commerce. However, does not the Minister agree that the present position is so uncertain that the Government should be abandoning that situation?
Lord Henley: My Lords, I do not accept that. There is a case to be made for TECs, where appropriate, to merge with their chambers of commerce if they and their chambers of commerce believe something can be gained from that. But that is a decision for individual TECs and chambers to pursue if they believe it to he appropriate.

DSS: Policy Change Effects
2.52 p.m.
Earl Russell Earl Russell asked Her Majesty's Government:
In the light of the reply given by Lord Mackay of Ardbrecknish on 28th March (WA 149) that "While every attempt is made to identify direct implications for other departments arising from public expenditure decisions, it is not feasible to take account of every potential second-order effect, still less to quantify it", what weight should be placed on the Department of Social Security's estimates of the public expenditure consequences of the measures it proposes.
The Minister of State, Department of Social Security (Lord Mackay of Ardbrecknish): My Lords, the Department of Social Security, like all other departments when considering policy changes, consults widely within government to ensure that the full implications of any such changes are properly considered. The nature of such consultation will depend on the policy change in question. Her Majesty's Treasury is fully involved in that process.
Earl Russell: My Lords, I am grateful to the Minister for those remarks. I appreciate that he has difficulty in giving exact figures. But when the Department of Social Security says that a measure will save, for instance, £65 million, we need to understand what that means. In the Minister's Written Answer, when he said that it was not possible to quantify every potential second-order effect, was he telling me that the department takes account of some second-order effects or that it takes account of no second-order effects?
Lord Mackay of Ardbrecknish: My Lords, as I have explained to the noble Earl on a number of occasions, the Department of Social Security works inside the Government and, along with our colleagues in other departments, we try to take into account those effects which may come from decisions that we are proposing to take. Sometimes those are easily quantified but on other occasions they are not, perhaps because they are behavioural and therefore difficult to work out. But we do

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our best and over time the noble Earl will find that on some occasions we overestimate the amount of savings that we make and on other occasions, I am happy to say, we underestimate the amount of savings we make.
Baroness Hayman: My Lords, is it not clear that the savings in one department's budget can cause increased expenditure in others? Is it not important that the Minister looks at his own department—for example, in the area of social security benefits available for pregnant women to provide an adequate diet during pregnancy? Refugee women are of particular concern in that regard at the moment. Is it not clear that savings in social security benefit may increase the incidence of low birthweight babies and the highly expensive care to the NHS for neo-natal intensive care for those children? Is it not important that the overall costs are taken into account?
Lord Mackay of Ardbrecknish: My Lords, that is exactly what I said when I said that we consider with other government departments what the overall implications will be. We aim, and I believe we succeed, to make sure that all our policies result in a net saving to the Government overall. Even though there may be some expenditure to another department, that expenditure will be less than the savings gained by us. Controlling the social security budget is an important issue. In relation to the incidence of low birthweight, as I explained on a previous occasion at this Dispatch Box, giving up smoking is perhaps the single most important thing mothers can do to help the birthweight of their children.
Lord Barnett: My Lords, how does the Minister's department manage to keep within the limits set down by the Chief Secretary to the Treasury if another department does not underspend when his department overspends?
Lord Mackay of Ardbrecknish: My Lords, I am but a boy when it comes to answering a question like that from the noble Lord, Lord Barnett, who knows jolly well how the Treasury keeps government departments under control from the five difficult years he spent doing it in the last Labour Government. The important thing is that government departments are aware of each other's policies. They attempt to quantify any implications that fall to them. When the Government agree on a policy, all the various aspects—the pluses and minuses—are taken into account. As the noble Lord will expect me to say, the Treasury usually expects to come out on the plus side.
Baroness Seear: My Lords, the noble Lord's replies to this Question suggest that the only things that count are those that can be counted. How does the Minister arrive at the social security costs? Is research taking place to find out the costs of the changes being made? Otherwise, we are just relying on figures which have no research base behind them at all.
Lord Mackay of Ardbrecknish: My Lords, I do not agree with the noble Baroness, Lady Seear, that we should not take into account the cost to the general taxpayer of social security. We must take that into account; any responsible government must take it into account, although I appreciate that members of the party
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to which the noble Baroness belongs do not have to worry too much about the increased cost to the taxpayer. When we look at the different decisions we must face in order to control our budget, we look carefully at the consequences of those decisions and at the various research papers on those issues that come out of universities before we arrive at our final conclusions.
Baroness Seear: My Lords, the noble Lord cannot get away with simply sneering at my party, but we will leave that on one side for the moment. He may learn some day that we have rather more say in matters than he predicts. The noble Lord did not answer my question. How do the Government find out systematically what the real costs are? The noble Lord has not yet told us that. To refer to odd papers coming from universities not commissioned for the purpose is no answer at all.
Lord Mackay of Ardbrecknish: My Lords, I suggest that the noble Baroness looks at the report from the Department of Social Security which is published annually concerning the research we fund. She will see a fair body of expensive research funded directly by us in order to address the policy questions we are considering.
Lord Avebury: My Lords, what research was conducted by the department on the second-order effects of disallowment from benefit into crime rates and the catastrophic increase in the number of people in our prisons? If the noble Lord says that no such research exists, how can we make an estimate of the net results of any changes in the benefits when those increases in crime and the huge cost of building new prisons is set off against the reductions in expenditure?
Lord Mackay of Ardbrecknish: My Lords, as I said, we look at all aspects of government expenditure. If the Home Office felt that something we were doing would impinge on its department, it would include the Home Office being involved in any discussions about possible repercussions on public spending. In relation to the rise in crime, I am fairly old-fashioned and take the view that badness has a lot to do with it.
Baroness Hollis of Heigham: My Lords, the Question asks about the cost of DSS activities for other government departments. Perhaps I may ask the Government a question about the cost of DSS activities for the DSS itself. In recent years the Government have cut DSS staff and have stopped home visits, and are now threatening to close the free benefit helpline. Does the Minister agree that at the very same time accuracy in delivering income support has deteriorated very badly indeed; from almost 95 per cent. accuracy three years ago to 78 per cent. accuracy today, an error figure of £750 million? Do the Government see any connection at all between DSS cuts in staff and the increased DSS error in paying income support?
Lord Mackay of Ardbrecknish: My Lords, I think the noble Baroness is a little confused between the past and the future. We have announced that we are looking carefully at a change programme which will bring considerable savings to the Department of Social Security and result in fewer staff. Through that

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change programme we hope, by making the systems more efficient, to reduce mistakes, to reduce the time that is taken and to make sure that benefit goes to the people who deserve it. It is a change programme first attacked by the party opposite in the person of Mr. Chris Smith, its social security spokesman, and then approved of in a leaked letter from the Shadow Chief Secretary to the Treasury, who said that all these possible savings were perfectly feasible.
Baroness Hollis of Heigham: My Lords, will the Minister explain to the House why the error rate for income support has risen by nearly 20 per cent. in three years?
Lord Mackay of Ardbrecknish: My Lords, I shall have to look that up to make sure that the noble Baroness is giving me a correct and accurate figure. One of the problems with income support is that it is complicated and one is very dependent on accurate information coming from the claimant. We hope to simplify the system, improve the way information comes from the claimant, and in that way reduce the number of errors. I hope I have the noble Baroness's support.

A.1: Alconbury Hill
3.1 p.m.
Lord Renton Lord Renton asked Her Majesty's Government:
Why so many hedgerows, shrubs and trees near the A.1 at, and northwards from, Alconbury Hill have been cut down, and whether they will ensure that fresh shrubs and trees will be planted there as soon as possible.
The Parliamentary Under-Secretary of State, Department of Transport (Viscount Goschen): My Lords, site clearance is under way in preparation for upgrading the A.1 to motorway standard between Alconbury and Peterborough. The scheme is one of the design, build, finance and operate contracts. The clearance is necessary for Road Management Group, which has been awarded the contract, to gain access to the site and for the consequent construction of the new road and its structures. Considerable landscaping measures are included as part of the scheme. It is proposed that some 400,000 new trees and shrubs will be planted, which will considerably enhance the existing landscape.
Lord Renton: My Lords, I thank my noble friend for that reply. Perhaps I may remind him that 46 ecological sites are affected by this development. Is he aware that a mass of ancient hedgerows, which produce beautiful blossoms especially at this time of year, have been torn down, unnecessarily in some cases? Will he ensure that their replacements are mature enough to take root and flourish without delay?
Viscount Goschen: My Lords, my noble friend is quite right. This is clearly an important ecological area. That is why such care has been taken to make sure that the environmental impact of the road is minimised and it is why such environmental and landscaping work will
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take place. I can also reassure my noble friend that the work will take place, will fit in and will integrate with the existing landscape. That is one of the major priorities.
Lord Monson: My Lords, when the time comes to replant along the A.1, will the noble Viscount do his best to ensure that the same mistakes are not made as were made when the A.11 was widened from Stump Cross north-north-east towards Newmarket? There the planting was extravagantly dense, with the trees spaced less than a metre apart as opposed to the more normal 2.5 metres or so. Is not this practice expensive and wasteful both initially and when the time comes to start thinning?
Viscount Goschen: My Lords, I am sure that every endeavour will be made to ensure that the planting process is not wasteful and that the end result is an improved environmental area after this major road has been built.
Lord Marlesford: My Lords, does my noble friend recognise that, although the Department of Transport plants oceans of trees along roads, it generally fails to look after them, which means that the trees are wasted? Will he try to explain to the department that the most expensive and time-consuming business in tree establishment is aftercare?
Viscount Goschen: My Lords, clearly the proper maintenance and care of the trees is an important factor. That has been built into the DBFO contract for the Road Management Group. It will have a duty to make sure that the trees are properly maintained.
The Earl of Drogheda: My Lords, might not consideration be given when new roads are made to the possibility of transplanting mature hedges and trees? Given the fact that large earthmoving equipment is present, it is perfectly feasible to do so.
Viscount Goschen: My Lords, I shall ensure that the noble Earl's suggestion is passed on to the Highways Agency. I should have thought that it has already considered the possibility of transplanting trees. But where that is not possible, it is right that we should plant trees—and not just trees but trees and shrubs of the same species as are already in the area—and that they should fully integrate with the existing woodland environment.
Baroness Nicol: My Lords, is it not the case that until now the Department of Transport has subcontracted the care and maintenance of motorway trees to the Forestry Commission? Is that still the practice, or has something happened to change it? Can we not be confident that the Forestry Commission will do a good job?
Viscount Goschen: My Lords, I am not able to advise the noble Baroness on what has happened with previous schemes. I shall find out and let her know. This scheme is rather different because it is one of the new phase of design, build, finance and operate schemes, whereby the party that has been awarded the contract

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not only builds the road but maintains it for a period—in this case, some 30 years. It is therefore its responsibility to maintain the trees.
Lord Renton: My Lords, is it not important that even motorway development should blend with the local scenery and tradition instead of it becoming an incongruous contrast with it? The replanting of shrubs is much more suitable than merely growing masses of trees which may not produce blossoms and which are merely an unfortunate contrast with what has gone before.
Viscount Goschen: My Lords, I could not agree with my noble friend more. It is right and proper that, where possible, the road should blend in with the existing landscape. That is why this new major development essentially follows the same road corridor as the existing A.1. A number of mitigation measures have been taken. There is a combination of trees and shrubs; and more than that, they are of the same species as those already in the area.

Offensive Weapons Bill
3.7 p.m.
Brought from the Commons; read a first time, and to be printed.

Prisoners' Earnings Bill
Brought from the Commons; read a first time, and to be printed.

Public Service: Select Committee
The Chairman of Committees (Lord Boston of Faversham): My Lords, I beg to move the Motion standing in my name on the Order Paper.
Moved, That a Select Committee be appointed to consider the present condition and future development of the public service in Great Britain with particular regard to the effectiveness of recent and continuing changes and their impact on standards of conduct and service in the public interest;
That, for the purposes of the Select Committee, the public service shall be deemed to exclude local government, the National Health Service, schools and institutions of higher and further education, but to include all government departments, executive agencies, non-departmental public bodies and other organisations created by or working for the public service;
That, as proposed by the Committee of Selection, the following Lords be named of the Select Committee:

L. Brabazon of Tara,

L. Croham,

L. Cuckney,

L. Gillmore of Thamesfield,

L. Harris of Greenwich,

L. Lane of Horsell,

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L. Merlyn-Rees,

B. O'Cathain,

L. Rodgers of Quarry Bank,

B. Serota,

L. Slynn of Hadley (Chairman),

L. Taylor of Gryfe.

That the Committee have power to adjourn from place to place;
That the Committee have leave to report from time to time;
That the Committee have power to appoint specialist advisers; and
That the Minutes of Evidence taken before the Committee from time to time shall, if the Committee think fit, be printed and delivered out.—(The Chairman of Committees.)
On Question, Motion agreed to.

Non-Domestic Rating (Information) Bill
Lord Gray of Contin: My Lords, I understand that no amendments have been set down to this Bill and that no noble Lord has indicated a wish to move a manuscript amendment or to speak in Committee. Therefore, unless any noble Lord objects, I beg to move that the order of commitment be discharged.
Moved, That the order of commitment be discharged.—(Lord Gray of Contin.)
On Question, Motion agreed to.

Asylum and Immigration Bill
3.9 p.m.
The Minister of State, Home Office (Baroness Blatch): My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.
Moved, That the House do now again resolve itself into Committee.—(Baroness Blatch.)
On Question, Motion agreed to.
House in Committee accordingly.
[The CHAIRMAN OF COMMITTEES in the Chair.]
Clause 1 [Extension of special appeals procedures]:
[Amendment No. 14, as an amendment to Amendment No.1, not moved.]
The Chairman of Committees: In calling Amendment No. 15, as an amendment to Amendment No. 1, in the name of the noble Lord, Lord McIntosh of Haringey, and if it is not too far out of order to do so, I am sure that we all wish the noble Lord many happy returns of the day.
Lord McIntosh of Haringey Lord McIntosh of Haringey moved, as an amendment to Amendment No. 1, Amendment No.15:
Line 25, leave out from ("persecution") to end of line 27.
The noble Lord said: I thought that the Chairman was supposed to sit in a purely formal capacity. I am grateful to him for his good wishes. I cannot think of a worse way of spending a birthday afternoon than dealing with the Asylum and Immigration Bill.
For the benefit of those Members of the Committee who were not present last Tuesday, Amendment No. 1 is the Government's welcome redrafting of the complicated formulation of Clause 1, which appears in the Bill as printed. My amendment may seem perverse at first sight because it seeks to remove the specified reasons for a fear of persecution
"by reason of the appellant's race, religion, nationality, membership of a particular social group, or political opinion"
from sub-paragraph (4)(a) of the new clause. There are good reasons for that and I hope to show the Committee that the amendment is well justified. The reasons for a fear of persecution given in the new clause are taken from the 1951 convention. We welcome, as we have always done, the continued commitment of the Government to the convention in their legislation, as under the 1993 Act and the immigration rules, and their commitment that those rules shall never be in conflict with the convention.
The United Kingdom has signed other relevant conventions. It is important that they should be taken into account because they properly extend the definition of persecution and, above all, the definition of refugee status. Therefore, on the very sound legal principle that if one includes one list of reasons, then, by implication, one excludes another—I shall not say it in Latin this time—it is necessary to remove the specified reasons in order to include the other reasons.
The UN Convention on Torture, which is surely entirely appropriate to refugee status and therefore to asylum-seeking, with which the clause is concerned, says that an asylum seeker should not be sent back to face torture, inhuman or degrading punishment. The Committee recognised the importance of that in agreeing the amendment proposed by the right reverend Prelate the Bishop of Liverpool last Tuesday. But that is not the only additional convention with which we shall be concerned. I remind the Committee of the European Convention on Human Rights which, in Article 3, extends the reasons not only to cover persecution by a government but also persecution for which governments are not responsible but which they have been unable to stop. An example was given in Committee in another place. Mr. Martinez Quijano, of Colombia, applied for refugee status, not for convention reasons but because he was threatened by the drug barons who control so much of life in that unfortunate country. It was not that the state of Colombia was supporting or in any way condoning the threats made by the drug barons but that it could not bring a halt to their activities. When the case came to the Immigration Appeal Tribunal it recommended that he should be given exceptional leave to remain. The Home Office refused but eventually he was allowed to stay having been granted exceptional leave to remain under judicial review.
In a number of cases adjudicators responsible for appeals have accepted that an applicant has suffered torture but not for reasons given in the 1951 convention. Under those circumstances, as the Minister reminded us when we were dealing with Amendment No. 3 last week, the only power that the adjudicator has is to recommend exceptional leave to remain rather than full refugee status.
By excluding the specific provisions from Clause 1 we seek not to deny the importance of the convention and its reasons but to confirm that we have other international obligations under further treaties and conventions which should be included as proper reasons for an asylum seeker and for refugee status. I beg to move.
3.15 p.m.
Lord Renton: Although I am a keen supporter of the Government and commend them for bringing forward the new clause to replace Clause 1, the argument put forward by the noble Lord, Lord McIntosh of Haringey, is worthy of consideration. However, it is more a drafting matter than the matter of substance the noble Lord tried to indicate that it raises. "Raises" is the operative word. If Members of the Committee look at line 28 on page 2 of the new clause they will see that whereas in line 28 the word "shows" is used, in line 29—
Lord McIntosh of Haringey: I did not move Amendment No. 14 which was concerned with "show" and "raise". I moved, and I am speaking to, Amendment No. 15, which is not about those words.
Lord Renton: In that case I ask the noble Lord to accept my apologies and to say that I shall come back to the matter, if necessary, when I have understood it.
Lord Dean of Harptree: I express some doubt about the amendment. It may be that additional clarification will be of some assistance. The amendment, along with others to Clause 1, substantially weakens the fast-track procedure which I regard as essential to the Bill. It is really the heart of Clause 1. The procedure is important in order to deal with abuses of our hospitality and to ensure that claims which are unlikely to be successful are dealt with as speedily as possible, thus safeguarding the position of genuine claimants. It is essential that there should be adequate safeguards in a sensitive matter of this kind.
The fast-track procedure provides those safeguards. It provides for an adjudicator who is independent. He is appointed by the Lord Chancellor, and he will consider each case on its individual merits. The procedure also provides for appeals. Unless I am mistaken in my understanding, the amendment goes a considerable way to substantially weaken the heart of Clause 1 of the Bill.
Baroness Blatch: In the spirit of unity and consensus, perhaps I may begin by agreeing with the proposition advanced by the noble Lord the Chairman of Committees that the noble Lord, Lord McIntosh of

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Haringey, have a very happy birthday. But now, to business—although I hope that nothing that I say will detract from that proposition.
The noble Lord, Lord McIntosh, proposes to delete the last 15 words of sub-paragraph (4)(a), which is aimed at a claim which does not show a fear of persecution. Under the amendment, sub-paragraph(4)(a) would no longer specify that the persecution must be for reasons of race, religion, nationality, membership of a particular social group or political opinion. The existing text follows the wording of the 1951 convention. Moreover, asylum appeals under Section 8 of the 1993 Act are made on the grounds that the applicant's removal would be contrary to the United Kingdom's obligations under the 1951 convention. It is for those reasons that we consider that sub-paragraph (4)(a) should remain precisely aligned with the convention's criteria.
It is also right to say that nothing in this part of the Bill precludes all our obligations under other international law. If the Opposition really want to incorporate international instruments into our immigration law, they will need to make a far more radical revision of the 1793 Act. That Act provides that it is on 1951 convention grounds that an appeal is exercised under Section 8 against removal. Clause 1 relates specifically and solely to appeals on asylum grounds. It is for that reason that we believe it important to leave it as it is. The example of Colombia which the noble Lord gave a few moments ago confirms that discretion is exercised on the granting of exceptional leave for those applicants who fall outside the 1951 criteria. The question of giving legal effect to the adjudicator's recommendations is to be debated later, as the noble Lord knows, when we reach Amendment No. 48. I hope that Amendment No. 15 will not be pressed.
Lord McIntosh of Haringey: Perhaps I may deal with the last point first. The Minister is right to say that the example that I gave resulted in the person concerned being granted exceptional leave to remain. However, he was not granted that exceptional leave to remain thanks to the Government; he was granted it as a result of judicial review and in the face of that exceptional leave to remain being recommended by the adjudicator, but followed by a refusal from the Home Office. So I do not think that the Minister should use that example to claim credit for the Government's flexibility.
I suppose that the Minister is trying to make me happy by suggesting that I should be much more radical in my attacks on the Bill. However, I would have to be radical going back over a period of 23 years to the 1973 Act. I am not convinced that such a wholesale approach would meet with the approval of the Committee—and still less with the approval of the noble Lord, Lord Renton, if we were to use amendments to legislation now to extend the scope of the 1973 Act. I thought—I still think—I gladly give way to the Minister—
Baroness Blatch: I thank the noble Lord for giving way. I think that we are both wrong. I think that
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I referred to the 1873 Act while the noble Lord referred to the 1973 Act, whereas we are talking about the 1993 Act.
Lord McIntosh of Haringey: Just to compound the confusion, the Minister actually referred to the 1793 Act. In fact, we are concerned with both the 1971 and the 1993 Acts. It was the 1971 Act which first gave statutory authority to the 1951 convention.
I am grateful for the Minister's confirmation that we take account of the United Nations Convention on Torture and of Article 3 of the European Convention on Human Rights. The Minister had better say that because that is what the Committee decided when it approved Amendment No. 3 last week. When it is printed, it will be part of the Bill that torture is to be treated as a proper reason for seeking asylum and for being granted refugee status.
I do not think that the Committee should be asked to express an opinion on this matter. I could indeed have been more radical in my attack on the Bill, but I think that the point was made by the decision taken by the Committee last week, and I beg leave to withdraw the amendment.
Amendment No. 15, as an amendment to Amendment No. 1, by leave, withdrawn.
Lord McIntosh of Haringey Lord McIntosh of Haringey moved, as an amendment to Amendment No. 1, Amendment No. 16:
Line 27, at end insert ("or a risk of torture or inhuman or degrading treatment").
The noble Lord said: My noble friend Lord Dubs spoke to this amendment last week when it was grouped with Amendment No. 3 which was approved by the Committee. I beg to move.
Baroness Blatch: It is important that we debate this amendment. The noble Lord, Lord Dubs, did not speak to Amendment No. 16 last week. I have with me the Hansard of that debate which I have read carefully. The noble Lord spoke specifically to the amendment proposed by the right reverend Prelate the Bishop of Liverpool. The whole debate was about Amendment No. 3. Amendment No. 16 was not mentioned until I wound up and I mentioned it simply because it was grouped with Amendment No. 3. Amendment No. 16 is, however, a free-standing amendment. It is not consequential upon Amendment No. 3 and I believe that if the Committee wants to debate it, it should do so. I certainly wish to speak to the amendment.
Lord McIntosh of Haringey: I acknowledge that although Amendment No. 16 was debated last week, it was the Minister who referred to it specifically rather than my noble friend. The amendments were intended to be taken together. If my noble friend had referred to it more specifically, I should have insisted that the two be taken together. In view of the fact that other amendments on torture are to be considered in relation to later clauses, I shall not press the procedural matter now, and I beg leave to withdraw the amendment.

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Amendment No. 16, as an amendment to Amendment No. 1, by leave, withdrawn.
Baroness Williams of Crosby Baroness Williams of Crosby moved, as an amendment to Amendment No. 1, Amendment No. 16A:
Line 27, at end insert—
("() it does not show a fear of persecution by reason of gender").
The noble Baroness said: The amendment has been tabled partly to learn more about the Government's intentions. I shall move it briefly because we may want to return to the matter in the broader debate on Clause 1 stand part.
Perhaps I may outline briefly why I have tabled the amendment. I refer first to the answer given by the Minister just now. If the Bill keeps closely to a set of criteria upon which the decision as to whether to allow in an asylum seeker is upheld, the issue of whether gender is such a base becomes more important. Perhaps I may say why I believe that this is of such very great importance. In 1951 the list which appears on the face of the Bill was drawn up by the European Convention. I am not trying in any way to amend that convention, but it did not include the issue of gender. That was reasonable at the time because gender would not have been seen as a ground for persecution. Would that that were still so.
I refer to one of the more recent cases to come before the Immigration Appeal Tribunal. It involved a woman in Iran, a financial adviser to a substantial company, who was threatened by a group of fundamentalist Moslems for refusing to wear a veil. She was told that if she refused to wear a veil, she would be treated as a prostitute. She was a Western-educated woman who believed that she was entitled to wear decent and respectable clothes of her own choosing. She was badly beaten in prison and told that if she continued not to wear a veil she would be subject to capital punishment on the ground that she was a prostitute. We were perhaps not aware of such cases in 1951, but alas they are now cropping up regularly, notably in Algeria.
The second reason why I advance the amendment relates to the strong recommendations that were laid down—and accepted by the Government—in the Warburton Report, which, as many Members of the Committee will know, dealt with the systematic use of rape as a weapon of war in Bosnia. Our Government joined other members of the European Community in saying:
"member States are appalled by these crimes and the inhumanity which marks the present conflict".
The recommendations indicated that refugees who had suffered those extreme forms of assault were entitled to special and careful consideration if they applied for refugee status. That is in the Warburton Report, which is in the Library. At that time throughout the European Union a number of women were accepted as refugees because of the terrible circumstances that they had experienced.
More recently, at the United Nations Fourth World Conference on Women in Beijing, the United Kingdom Government, among many governments, gave their name to the recommendations under the action programme, one of which read:
"Apply international norms to ensure equal access and equal treatment of women and men in refugee determination procedures and the granting of asylum, including full respect and strict observation of the principle of non-refoulement".
That is in paragraph (h) in the section of the United Nations action programme which deals with refugees and women who have been subject to systematic violence. I had the honour and pleasure of seeing Her Majesty's Government strongly support the debates in Beijing, fully recognising the specific dangers to which women were subject very much in the context of their gender.
I fully appreciate that this amendment may not be properly drafted, but I hope that the Minister will not object to it simply on drafting grounds. It would be easy to withdraw it and bring it back under proper drafting procedures at Report stage. At this moment I am simply concerned to establish whether the noble Baroness perceives the special reference to social groups as pertaining to women who suffer on the grounds of their gender unspeakable torture and behaviour. She may be able to give us that response. I am sure she will understand that to describe half the human race as a social group is a little odd. I have tabled this amendment with the intention of finding out how Her Majesty's Government feel about it, with the possibility of bringing it back at a later stage in the passage of this Bill. I beg to move.
3.30 p.m.
Lord Campbell of Alloway: I seek clarification on the amendment. With respect to the noble Baroness, does not the amendment extend the traditional definition under the convention of fear of persecution? If so, what practical purpose does it serve? If there is persecution, under the convention as presently defined it is immaterial whether it relates to a man or a woman. I fail to understand the position. There must be something missing from my appreciation. I cannot see what useful, practical purpose is served by the amendment. I say so with respect and in ignorance.
Lord McIntosh of Haringey: There is something missing from the appreciation of the noble Lord, Lord Campbell of Alloway. The noble Baroness is moving an amendment which adds "by reason of gender"; in other words, if a man or woman is persecuted for the other reasons in sub-paragraph (4)(a) that is not affected. But if a woman in particular is persecuted, not for the other reasons but by reason of gender, that is a good reason for the inclusion. To that extent, although the amendment is probably in the wrong place, I support the principle behind it.
Lord Campbell of Alloway: But if he or she is persecuted by reason of gender, that person is nonetheless persecuted within the meaning of the convention. I still do not see the point.
Baroness Williams of Crosby: There is growing evidence of specific forms of maltreatment of those held

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in detention in certain countries—I am reluctant to give the details to the Committee—which are specific to the gender of those detained. I can give some inhumane and unpleasant instances. These are forms of persecution that would not be targeted at anybody of a different gender. It is that particular group of actions against individuals that I am anxious to bring within the scope of the Bill, not because I wish to include all women—which would be ludicrous—but because there is substantial evidence of certain kinds of behaviour by states towards women specifically on the ground of gender. I am advised by lawyers who are concerned in this matter that the wording of the existing convention does not deal with those cases.
Baroness Elles: In view of the comments of the noble Baroness, Lady Williams, I believe that a very strong case has been made on this issue. I should like to put a question to my noble friend the Minister. Sub-paragraph (4)(a) includes a list of grounds on which persecution may be feared. In responding, can my noble friend say whether that is an exhaustive list or whether it is necessary to include the word "gender" to ensure that the cases properly raised by the noble Baroness are taken into account? I believe that the drafting and status of that paragraph will help the Government in deciding whether to accept, perhaps in a reworded form, the amendment moved by the noble Baroness.
Lord Avebury: My noble friend is quite right in saying that at the time of the introduction of the 1951 convention the particular forms of persecution suffered by women in many countries were not widely appreciated. She mentioned Iran in particular. I should like to expand upon that, if I may.
It is not the policy of a few rabid fundamentalists in Iran which causes women to be persecuted for not wearing a Hijab, which is the garb that covers the whole of a person's hair and leaves no part of the skin exposed except the hands. This is the policy of the mullahs' government; that is to say, the theocratic state imposed by Ayatollah Khomeini. It dictates that all women are to be dressed in a particular way on penalty of severe punishment, which may sometimes be inflicted on the spot by the religious police. It may also mean that a woman can be taken to prison and given a long sentence, or even be subject to lashes, for behaviour which is considered wrong in a woman but perfectly all right in a man. I believe that that answers the question posed by the noble Lord, Lord Campbell of Alloway.
Why should there be any specific mention of penalties that are applied to women? In states such as Iran there are forms of persecution that do not apply to men. It is not just a question of dress but a question of the status of women in the particular society: their right to employment, their entry into certain disciplines in the universities, their position under the law and their responsibilities within the family. A woman has no rights over her children in Iran. She has no right to become a judge. The head of state must be a man. Everything in the theocratic state of Iran is male-oriented and calculated to keep women in the position of second-class citizens.
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In the face of that kind of discrimination, if a woman presents herself at a port of entry in the United Kingdom and claims to have been discriminated against as a woman in Iran, and to have suffered persecution by reason of her gender, I believe that it is perfectly right to grant her asylum on that basis and not stick to the letter of the 1951 convention. I absolutely agree with my noble friend that if we cannot do that by strict adherence to the 1951 convention then it must be spelt out on the face of the Bill.
Earl Russell: I hope that the noble Lord, Lord Campbell of Alloway, will forgive me for saying that he made an interesting point. I mean it. It was interesting. It is a point which was made in this place in 1628. The answer it received then seems to be entirely relevant to today. This place was then considering the Petition of Right which was a declaration of liberties. Someone said:
"If we should leave any liberty out of this list, does that mean we do not in future enjoy it?".
The answer of course was that that was not so; that no list of liberties can possibly be exhaustive, because the types of oppression and injustice which may happen are infinite, and no document can possibly specify them all.
The noble Lord will appreciate that within the principles of the common law there is a great deal of room for adaptation to change. If he considers the change in the applications the common law has made of the word "reasonable" over five or six centuries, that will make the point. So the liberties, as spelt out in the UN convention, must be capable of growth.
It is true, as my noble friends have said, that a high proportion of persecution that takes place in the world today is directed at women by reason of their gender. If the type of persecution that is taking place is changing, we must take account of it. It is not just the cases my noble friend has mentioned, it is the cases of women who wish to leave a violent and dangerous husband. They are in many cases treated worse than they were three or four centuries ago. So, where the type of persecution with which we deal is changing, we must recognise that fact. That is the point to which my noble friend wished to call attention.
Baroness Rawlings: I understand fully what the noble Baroness, Lady Williams, is saying about torture and women, but surely if a woman is badly tortured that will come under "torture". It does not need to come under "women" whatever be the torture—when it is against a woman, she will come under the procedure for asylum because she has been tortured. Any man can be tortured in the way that a woman cannot be tortured. We will not insert an extra provision relating to gender for men because men may be tortured in a way that might not be possible for women. In this case including gender may perhaps be going too wide.
Baroness Blatch: I should like to deal with the amendment in two ways. First, I shall deal with the technical aspect of the amendment. The amendment flies in the face of many amendments tabled by the

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Opposition today which attempt to restrict the categories of applicant whom the Bill proposes should be considered for certification.
Amendment No. 16A would insert an additional category of asylum claim to which the special appeal procedure can apply into sub-paragraph (4) in Clause 1. I should say at the outset that the amendment is defective because, as drafted, it would enable the certification of all asylum claims which do not show a fear of persecution by reason of gender.
There is a temptation that we should accept the amendment because it would, in a way, foreshorten some of today's debate. It would allow us to certify the vast majority of asylum claims. I know that that cannot be the noble Baroness's intention, and such an indiscriminate extension is not acceptable to the Government. So in an attempt to safeguard one additional category, the truth is that all other categories would be certified. I know that that is not the noble Baroness's intention.
However, the noble Baroness's intention in tabling the amendment is to prevent us certifying a refused claim under sub-paragraph (4)(a) if it alleges persecution on grounds of gender. The amendment is unnecessary, and I shall explain why. If a person shows a fear of persecution, including a fear based on gender grounds, that person would normally have done enough to escape certification under indent (a). That would be the case, for example, if the applicant alleges that his or her human rights will be threatened because of gender. I have to say to the noble Earl, Lord Russell, that my noble friend Lord Campbell of Alloway's understanding of this part of the Bill is right.
That does not of course mean that a gender-based claim would be exempt from a certificate if it is manifestly fraudulent, or meets one of the other criteria under Clause 1. Nor does it mean that such a claim would always succeed. I can assure the Committee that gender is taken into account in the assessment of individual asylum claims where that is relevant. However, our experience suggests that, in practice, few, if any, asylum applications made in the UK turn solely on the question of gender-based persecution. Applications normally involve claims of persecution on the grounds of race or religion or, for example, that a particular group of women faces persecution. Each case is considered on its merits. Each case that has been mentioned during the debate would be properly considered under even the 1951 convention.
The interpretation of a "social group" convention ground has been raised in debate by the noble Baroness. Our approach is not to define in the abstract whether women or men, or any other set of people, might or might not be regarded as a social group. Each individual claim is considered on its merits to determine whether the applicant can demonstrate, in all the circumstances of the case, that he or she has a well-founded fear of persecution in a particular country for any of the 1951 convention reasons. A range of possibilities exists; for example, from treatment of women generally, which may be discriminatory but may not constitute persecution, to a particular group of men or women
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who, because of the likelihood of persecution, are protected by the terms of the convention. Each set of circumstances, individual or collective, is addressed on its merits.
Gender is taken into account in the assessment of individual asylum claims where that is relevant. The Government believe that it is right that all asylum applications from men and from women should be considered without any discrimination in accordance with the criteria set out in the 1951 UN convention relating to the status of refugees. Each claim is considered on its merits to determine whether the applicant can demonstrate that he or she has a well-founded fear of persecution.
Rape and other forms of sexual violence clearly amount to persecution in the same way as do other acts of severe physical abuse. Whether less prejudicial acts or threats would amount to persecution will depend upon the circumstances of each case. In order to qualify as a refugee, the applicant would need to show that that fear of persecution was well-founded and based on a convention reason.
Women and, indeed, men who do not meet the requirements of the 1951 convention may be granted exceptional leave to remain in the UK if there are compelling humanitarian reasons why they should not be required to leave. The point made by my noble friend Lady Rawlings was right: sexual abuse is not specific to women or gender; men, too, can be sexually abused. There is a great deal of evidence that they are.
If it is serious abuse, it is persecution or torture. The noble Earl, Lord Russell, in his inimitable style, and calling upon his enormous understanding of history to which I defer absolutely, asked whether the list of grounds for persecution in sub-paragraph (4)(a) is exhaustive. The answer is that it is.
Lord Winston: Does the Minister regard separation from one's children unreasonably as being torture? Would that be regarded as being discrimination on the basis of gender? I should like clarification on that point.
Baroness Blatch: I should need to know all the circumstances. That is a broad scenario. It would depend upon why they were separated; what were the conditions of separation; and, frankly, whether it was a man separated from his family or a woman separated from her family. If the degree of persecution were such that it came within the convention, then it would be properly considered as a case within the broad parameters of the convention.
The convention refers to social groups, and I have given some indication that there is considerable interpretation of what constitutes a social group. It is a degree of persecution that would be proper in that case. Without more detail, it is impossible for me to answer that question specifically.

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To finish on the point as to whether the list is exhaustive, yes, it is exhaustive. But as I have said, and I hope that I have convinced the Committee, gender can be taken into account where it is relevant to the degree of persecution.
Earl Russell: Before my noble friend replies, perhaps I may thank the Minister for that reply. Perhaps I may say that an amendment may sometimes be unnecessary because it has been moved when, had it not been moved, it might be very necessary indeed.
Baroness Blatch: The debate on the amendment has been most helpful because the issue has concerned all Members of the Committee. I hope that I have been able to convince my noble friend that the issue of gender will be subsumed within the confined restraints of the 1951 convention. The debate has been useful on two counts; first, in explaining that the amendment is defective and, secondly, in trying to assure the Committee that such cases can be taken into account under the criteria set out in the convention.
Baroness Seear: I believe that the Minister said that "social group" could be applied to "gender group", either men or women. If that is so everyone is covered one way or another. What is the real interpretation of "social group"? Does it refer only to women or only to men?
Baroness Blatch: I said that it depends on the case. Someone may claim to have been persecuted and may have a well-founded fear of persecution. The example was given of a woman who refused to wear a veil being deemed a prostitute. The consequence of being a prostitute is that she may lose her life on that ground alone. It could be that a group of people who fall into that category could be constituted as a group. It would depend on the particular case, the particular degree of persecution and the social group; whether they are women or men, whether they belong to a particular group of women or men, or to a particular group of men or women who are persecuted and hounded simply because they are who they are or because they hold certain beliefs.
Baroness Williams of Crosby: I am grateful to the Minister for that full reply. I wish to clarify only one matter. She said that she needed to know exactly what case one might have in mind; perhaps I may give an example. I am somewhat haunted by my visit to the refugee camps in Croatia when evidence first emerged that there was systematic use of rape as an instrument of war. The Minister will remember that the Warburton Report was published soon afterwards. Would it be possible under the Bill to regard, for example, women subjected to repeated rape, in particular women under the age of maturity, by an enemy group as falling within the special social group definition? I was most anxious about the provision because the list appeared to be exclusive. Unless such women qualify as a special social group they will not
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be covered. That is one of the main reasons why I moved the amendment. Perhaps the Minister will clarify that final point.
Baroness Blatch: I understand that as regards the particular scenario set out by the noble Baroness the answer is yes. Perhaps I may read from Article 33 of the convention. It states:
"No Contracting State shall expel or return a refugee in any manner whatsoever to the frontiers of territories where his life or freedom",
which is the whole purpose of applying for asylum,
"would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion".
Those are the parameters of the convention and all the examples given by the noble Baroness will fall within them. What would fall to be judged is the degree of the fear of persecution.
Lord Campbell of Alloway: In case there is a Division, perhaps I may assure the noble Baroness that if women are treated in the way she said they were, that would, within my concept, totally come within fear of persecution. My intervention, which was not intended to be discourteous, was based upon some such assumption.
Baroness Williams of Crosby: I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 17 not moved.]
The Chairman of Committees: I must point out to the Committee that if Amendment No. 18 is agreed to I cannot call Amendments Nos. 19 or 20.
Lord Dubs Lord Dubs moved, as an amendment to Amendment No. 1, Amendment No. 18:
Leave out lines 31 to 39.
The noble Lord said: In moving Amendment No. 18 I shall speak also to Amendments Nos. 19 and 20. Amendments Nos. 18 and 20 increase the rights of asylum seekers who have been recommended for deportation or for removal from this country. Amendment No. 19 is concerned with the rights of asylum seekers who are refused admission to this country at the airports or the seaports. Although the issues are similar there are some differences between them.
Perhaps I may deal first with the issues concerning deportation or removal of asylum seekers and the rights that they would lose under the Bill but would have if the amendments were passed. The problem is that persons living illegally in this country may at some point be recommended for deportation or the Government may wish to remove them. If that happens and the individual is in fear of persecution in his country he loses the right to have his case considered fully and properly because he will be certificated and therefore fast tracked as a result of the process I have described: the individual will have failed to apply for asylum before the deportation or removal proceedings are commenced.
The difficulty is that the individual may have an impeccable claim that he will be persecuted in his own country. Yet he will lose the right to have his case considered as fairly and properly as would have happened had he made an asylum claim before the deportation or removal procedures were initiated.
It is a well established fact that people may be deported for significant or relatively insignificant reasons. I do not condone any criminal offence, but a fairly minor criminal offence may lead to deportation proceedings starting. An individual will then have a lesser right to claim asylum or to have an asylum claim properly considered. That can be most alarming. Let us suppose that the asylum seeker was convicted in his country of the theft of a loaf of bread. I do not condone for one moment theft or criminal behaviour of any kind. However, one must set against that act what might be the most appalling outcome for that individual if he is returned to his own country. The amendment is tabled in order to ensure that such people have the maximum safeguards in terms of being able to exercise their full rights of appeal.
Amendment No. 19 is somewhat different and is concerned with people who arrive in this country and seek admission. If they do not claim asylum at the port of entry they too may be fast tracked. The amendment seeks to add the words "without reasonable explanation".
People arrive at British ports not knowing the detail of our procedures. If they have a visa to enter the country they may believe that that is sufficient and may intend to apply for asylum after admission. That is normal behaviour. Indeed, the United Nations High Commissioner for Refugees issued a statement to that effect in relation to the 1992 Bill in which it was stated:
"No conclusion with respect to an asylum-seeker's credibility—be it positive or negative—can be drawn from the fact that he has failed to apply forthwith upon arrival to a country".
However, the Bill seeks to draw precisely such a conclusion. It seeks to suggest that the asylum seeker's credibility is less and therefore his rights in terms of appeal procedures and time to deal with the various stages of the appeal will be reduced if there was a failure to apply immediately on reaching the port in this country. Indeed, asylum seekers may be apprehensive that if they claim asylum on arriving at Heathrow or Dover, the authorities might remove them immediately from the country. There is then the danger that they may be returned in stages to the country from which they fled and, therefore, face danger.
In that case, they have had the trauma of escaping from a country where they were facing persecution. They are relieved that they have arrived in Britain. They feel that they want first to get into the country. Therefore, with those worries, it is not surprising that people do not make the claim at the point of entry when they meet immigration officials.
Indeed, I have an unreported decision from an Immigration Appeal Tribunal case, Latif Mohammed v. Secretary of State on 1st February 1991. The judgment stated:
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"It seems to us entirely understandable that a potential refugee would think it far preferable to obtain admission before applying for asylum than applying for asylum at the airport".
It is to protect the rights of asylum seekers in those two situations that I have spoken to the amendments. I beg to move Amendment No. 18.
4 p.m.
Lord Campbell of Alloway: This amendment creates some severe practical problems. Surely if you have a genuine, real, important fear of persecution, either because you have been persecuted or tortured—and you know jolly well how serious that is—or because you are a member of a social group which has been subjected to such treatment, and you wish to claim asylum, in the ordinary way you should do so on arrival in this country.
The noble Lord quoted an unreported decision. There are all sorts of unreported decisions and all sorts of reported decisions. Some of them make sense and some do not. To my mind, the decision which the noble Lord, Lord Dubs, quoted makes no sense at all. I take the noble Lord's point that the procedures, certainly if they change, may well not be known. But surely that problem can be met in an administrative fashion by drawing to the attention of those who enter their position as regards claiming asylum if they wish to do so. Forms could be produced. There are various ways in which that can be done.
The noble Lord said that credibility is lessened if the claim is made after the person has come in rather than at the time of entry. Inevitably that is so. That is inevitable because if there is an urgent, genuine fear, in the ordinary way you state that when you reach this country.
Baroness Williams of Crosby: I should like to say a few words on Amendment No. 19 which would insert "without reasonable explanation" into the Bill. That would indicate that where a reasonable explanation is given, the issues would be set aside and the case looked at afresh.
I am concerned in particular about that because, like the Government, I appreciate that it is very important to draw a distinction between genuine asylum seekers and those who are not genuine. I might put the line between the two at a very different place from the Government, but of course I recognise that some asylum seekers are not genuine. Some asylum seekers are absolutely genuine. The crucial question facing this Chamber is to try to draw a correct distinction.
Without the addition of the phrase "without reasonable explanation", the Bill will almost certainly exclude the most genuine asylum seekers: those who do not have the benefit of legal advice; those who are not particularly knowledgeable about the procedures and ways of the Immigration Service in this country or, indeed, Europe and therefore have not the faintest idea about how our procedures work. Those people will emerge as refugees or asylum seekers in this country often after having undergone an extremely painful and difficult period of time in which they have been very frightened, even to the point of being frightened of losing their lives.

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It seems to me to be wholly unreasonable to expect such a person to go through all the procedures exactly as he should do—and they are very complex procedures; to expect such a person to know that it will help him to put in a claim for asylum the moment he reaches this country; and to expect him to know the complexities of our legislation which, heaven knows, many of us find difficult to follow.
Therefore, I urge the Committee and the Government to consider very carefully the addition of the very limited and simple phrase "without reasonable explanation". That would allow utterly genuine asylum seekers—who often have the worst cases and who do not know our procedures and do not handle them properly—not to be sent back to a country which in many cases has done them great damage before their case has been considered. Therefore, I support strongly Amendment No. 19.
Baroness Gardner of Parkes: I wish to oppose Amendment No. 19. The question of credibility is very much an issue here. The present pattern found by local authorities is that people come to this country on visitors' visas. They move in with supposed friends or relatives who have often given a complete undertaking to be responsible for bearing the entire cost of supporting them. The authorities then find that two days after their arrival, they turn up on the council's doorstep asking to claim housing benefits and any other benefits which can be obtained. I can see that the noble Lord, Lord McIntosh, is looking surprised but I am quoting the experience of London councils which have reported that history to me.
Lord McIntosh of Haringey: I am grateful to the noble Baroness for giving way, but I believe that she is really talking about Clauses 8, 9 and 10 rather than about this amendment.
Baroness Gardner of Parkes: As I understood him, the noble Lord, Lord Dubs, is saying that Amendment No. 19 would mean that people do not have to announce on arrival that they wish to seek asylum. I oppose that. If that is not what he is saying, perhaps I am wrong. But I do not believe that the noble Lord, Lord McIntosh, is right and I am responding to what the noble Lord, Lord Dubs, proposed. Is that correct?
Lord Dubs: Yes, it is. The words that I seek to add to the clause are "without reasonable explanation". Those words apply specifically to people who are refused leave to enter and apply also to deportation and other considerations.
However, I believe that the point which my noble friend Lord McIntosh makes is that later parts of the Bill deal with housing matters. Here we are concerned about the rights of people when they seek to claim asylum. I am concerned that the fast-track procedure weakens their ability to do so effectively.
Baroness Gardner of Parkes: I still believe that we are debating the credibility or lack of credibility of people applying for asylum, whether or not they declare it on arrival. That is certainly the issue which I am addressing.
I consider that the most important issue of the whole Bill is that people should have to declare their position on arrival. That is a tremendous improvement. At present, this country is considered a soft touch in Europe because we do not have nearly such stringent regulations as other countries. I am 100 per cent. behind the genuine asylum seeker, but I am not at all in favour of the so-called economic refugee who wishes to come here.
The noble Baroness, Lady Williams, referred to the words "without reasonable excuse".
Baroness Williams of Crosby: I referred to the words "without reasonable explanation". That is rather different.
Baroness Gardner of Parkes: The words "without reasonable explanation" are even less onerous. Anyone can give an explanation. I sit on an industrial tribunal. There is an extremely heavy onus of proof on an applicant who wishes his case to be considered, even if the application was lodged just one day late. Therefore, the phrase "without reasonable explanation" seems to me to be not nearly definite enough. If we were saying that there had to be a really strong reason—for example, that the person had arrived in such an ill state that he was not able to speak—then I might have some sympathy with the proposal. However, if it is just a case of someone not having thought up his explanation at the time and then having worked it out a few days later, I am afraid that that would not appeal to me. For that reason, I oppose Amendment No. 19.
Lord Avebury: The reason why genuine asylum seekers, of whom there are a great many, do not apply at the port of entry—I take the point made by the noble Baroness about bogus claims; indeed, I am not seeking to defend them—is due to the fact that they wish to obtain proper advice. I believe that the noble Baroness was present in the Chamber when that point was made on the last occasion. Such people are ignorant about our procedures. They arrive at a port of entry, go through the immigration procedures and then consult a solicitor or go to a citizens advice bureau, or whatever other agency is available to them, and ask for an explanation as to how they should present an application for asylum. I do not see how someone in a far-off country, without access to the Immigration Rules or procedures which apply here, could possibly guess the requirements in advance. I give way to the noble Baroness.
Baroness Gardner of Parkes: I am much obliged. Can the noble Lord tell me how such people get here in the first place? Do they not have a visa or some form of entry document when they first arrive? I am sure that they have access to some form of permission to enter the country. Therefore, they have had some advice from someone. I also believe that word gets around pretty

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quickly from one person to another and that such people would rapidly learn that they had to make such an application.
Lord Avebury: No. It does not happen that way. If people were sufficiently aware of the necessity to make such an application at the port of entry and they had a well-founded case, as many of them do, they would follow the advice given by the noble Baroness and, indeed, by the noble Lord, Lord Campbell of Alloway. However, the noble Lord contradicted himself. He said, first, that everyone should know and that if a person had a genuine case then he would present it at the port of entry. But he then went on to say that, if they did not know, the situation would be corrected by some other means. The noble Lord then suggested the distribution of forms at airports. That indicates that there is a problem involved which even someone as hostile to immigrants generally and to asylum-seekers in particular as the noble Lord, Lord Campbell of Alloway, recognises. Therefore, we must deal with it in some way, either by saying that the person can give a reasonable explanation afterwards as to why he did not announce his intention of applying for asylum at the port of entry or by giving sufficient warning at the port of entry. That is perhaps an alternative that the Government should explore.
I do not go along with the noble Lord who suggested that forms should be distributed to everyone who arrives at Heathrow or Gatwick airport. I say that because there would be a vast number of false positives—that is to say, people who are genuinely coming here for a holiday and who have no intention ever of applying for asylum. However, the noble Lord has produced the germ of an idea. For example, notices could be displayed at the principal places of entry into the United Kingdom warning people of the consequences of the failure to declare their hand at the point when they present themselves to immigration officers, if it is their subsequent intention to apply for asylum. That would be one way to get round the problem identified by the noble Lord who moved the amendment.
There cannot be any doubt that other countries have such provisions. Indeed, I discovered only this weekend that the Turks (who are not particularly liberal in such matters) grant an asylum seeker 30 days in which to make an application. The person then forfeits certain rights at the end of that period. However, in this case, we are proposing to impose very much more severe restrictions on the rights of applicants than even a state like Turkey does which is not renowned for its observance of human rights.
I believe that a serious case has been made. If the Government are not able to address it by acceptance of this particular amendment, they should at least promise to take away and consider the suggestion made by the noble Lord, Lord Campbell of Alloway. Of course, I do not say that that particular device is the ideal solution; but, nevertheless, it has at least put into the mind of the Government the thought that something must be done at the port of entry to safeguard the rights of people entering the country who do not make an application when, in the end, it is their intention to do so.
4.15 p.m.
Baroness Blatch: I hope that Members of the Committee will forgive me for intervening at this point. I believe that there is a great deal of misunderstanding both about this part of the Bill and about the amendments. It just might help if I address what I believe to be the misunderstanding. If noble Lords still wish to comment thereafter, I shall certainly listen to what they have to say.
The noble Lord, Lord Dubs, has misunderstood the effect of the Bill. It does not provide the power to fast track all claims which were not lodged immediately on arrival. It is concerned with those who are refused leave to enter at the port of entry—that is to say, it applies to people who attempt to enter as students or visitors but who are refused entry in that capacity and then claim asylum. So they will already have been considered under the 1971 Act. Judging by what has been said, there appears to be a great deal of misunderstanding.
The removal of paragraph (4)(c) enables the Secretary of State to issue a certificate if the asylum application was submitted after the applicant had been refused leave to enter, recommended for deportation by a court, served with a notice of intention to deport, or notified of his liability to removal as an illegal entrant. My noble friend Lady Gardner of Parkes was right regarding what she thought she heard noble Lords opposite saying about the amendment. In fact, I am saying that their interpretation is wrong. I hope that I shall be able to convince my noble friend that what the Bill has to say in that respect is right.
We have become increasingly concerned about late asylum claims. By this I mean claims lodged in order to fend off removal and frustrate the enforcement of the immigration rules. Perhaps I may give the Committee some examples of this form of abuse. There are people who have been here illegally, sometimes for years, who are then apprehended by the immigration service and lodge an asylum claim just as they are about to be removed. Others seek leave to enter as a student or a visitor, for example, and only claim asylum when their application for leave to enter is refused and removal directions are set. The intention is to be able to resolve quickly claims of that sort which are manifestly lodged in order to delay removal action, rather than because the applicant has a well-founded fear of persecution.
Let me make clear, however, that this provision cannot apply to a claim simply because it is made after entry. It will not apply, for example, to someone who enters illegally or overstays his leave but who claims asylum before we take steps to remove him. Late claims will still be considered on their merits in the usual way and there will still be an appeal. But if they prove to be unfounded and asylum is refused, the Bill will enable us to apply the accelerated appeal procedure.
I have listened carefully to the arguments advanced for deleting our proposal to permit certification of claims lodged only after a court recommends deportation following a criminal conviction. It has been suggested that a criminal conviction here might put a person at risk of persecution at home. I am not persuaded—certainly not by what has been said in the course of today's debate. It

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is exceedingly unlikely that a criminal conviction in this country could form a legitimate convention basis for an asylum claim. But, in any event, if a claim made after such a conviction was found to be valid, asylum would be granted. In other words, if the case for asylum was a good one and came within the convention, then of course it would be granted and would not be thwarted by this measure. Similarly, if there are genuine humanitarian reasons why removal should not take place, exceptional leave would be awarded. But where it is found that claims made in such circumstances are not well founded, it is entirely appropriate that we should be able to apply the accelerated appeal procedure.
It has been proposed that we should provide an exception where the applicant gives a "reasonable explanation" for his failure to claim earlier. We think that that is unnecessary and undesirable. In the Bill as drafted, a certificate would only be available where the asylum claim has been fully considered and rejected. If it is found to be a valid claim, asylum or exceptional leave will be granted, despite the circumstances in which the claim was submitted. But if the claim is not well founded, the fact that it was submitted only after the commencement of removal proceedings or the refusal of leave to enter, will almost invariably justify a certificate. We need to send a clear signal that abuse of the asylum procedures in order to frustrate enforcement of our immigration laws will be met robustly.
The late claim provision in Clause 1 indent(c), does not apply to claims simply because the application was not made at the port of arrival. The Bill is clear on the point. The provisions only apply to applications lodged to stave off removal action. That is claims lodged after the applicant has been refused leave to enter and notified of his liability to deportation or his liability to removal as an illegal immigrant. Therefore, we are concerned because it is a growing form of abuse. It is entirely right that the Secretary of State should be able to certify claims lodged in this manner. It is responsible for much of the backlog in the system. I should have thought that noble Lords opposite would realise that this form of abuse is not acceptable. So long as there is a safeguard for genuine and well founded cases of people who have an opportunity to put their case within the system, I hope that our remedy for this kind of abuse in the Bill will be supported by Members of the Committee opposite.
Earl Russell: I recommend to the Government the practice of the noble and learned Lord the Lord Chancellor. During the passage of the Child Support Bill 1991, a provision put a time limit of 28 days on appeals under a particular clause. I put down an amendment without reasonable explanation. It was one of those nights when it seemed as if the House would sit until 3 a.m., so I did not move it. However, when we reached the next stage the noble and learned Lord had incorporated it in the Bill. He had accepted it without so much as my moving it. That was a quite unparalleled act of generosity to which I should be glad to find a parallel. I recommend to the Government the wording
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of their own amendment, Amendment No. 1. Lines 20 and 21 deal with the absence of a passport and there are the words,
"without giving a reasonable explanation".
The noble Baroness said a great deal about abuse. Everyone is against abuse. The noble Baroness is against abuse but in trying to rule out the words "without reasonable explanation" she strengthened my suspicion that the fast-tracking of a case involves an element of prejudging the merits of the issue, or at least there is a risk that it might.
That is a great argument in reply to the noble Baroness, Lady Gardner of Parks, on claiming at the point of entry. There are six or seven places in the Bill where we could insert the words. I suggest that we join issue on that argument on the question of whether Clause 1 stand part.
Lord Dubs: I emphasise the point just made that the expression "without reasonable explanation" is already on the face of the Bill. It is already the wording that the Government used in relation to a person who,
"failed to produce a passport without giving a reasonable explanation for his failure to do so".
All we ask for in Amendment No. 19 is that the same concept of a reasonable explanation should be applied in the case of persons covered by Clause 1, paragraph 5(4)(c), particularly those entering the country as well as some of the other categories. It seems to me that it is not breaching the Government's policy to suggest the proviso that an asylum seeker should give a reasonable explanation. That is all we ask. If the asylum seeker cannot give a reasonable explanation, then his application would have to be fast-tracked. It seems to be a reasonable proposal.
I wish to deal with some of the other points made. Perhaps I did not make myself clear or the Minister may have misunderstood me. I was not suggesting that a criminal conviction would itself lead to an asylum claim. I suggested that an individual might fear persecution in his or her own country, be stupid enough to commit a criminal offence, be deported or threatened with deportation as a result and lose his or her right to have the asylum claim considered as fully as possible because of the threat of deportation.
I am also aware that people arrive here as visitors and students. However, as we discussed the other day, we may demand visas of a country, the nationals of most countries from which asylum seekers come have to have visas, but it is not possible to enter this country with a visa to become an asylum seeker. With the exception of the Bosnians and the Vietnamese, such visas are not granted by this country. Therefore, as applies to most west European countries, the only way in which an individual can arrive here and seek safety is through obtaining a visa as a visitor or student. Of course, that means applying for a visa on grounds other than those on which the person might wish to seek safety here—namely, as an asylum seeker. It is a catch-22 situation; there is no way out.
Therefore, I argue that an honest individual must do as we discussed last time, he must apply for a visa as a visitor or a student. He may arrive here and say: "Let

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me pause for breath, let me seek proper advice as to how to make my asylum claim. First, let me enter the country and then make my asylum claim". That person is then faced with the difficulty that he is in breach of the provision. All we argue is that we should not return to the present position but go part of the way towards the present position. That is all. I contend that Amendment No. 19 is entirely reasonable, as are all the amendments. The words "without reasonable explanation" are surely such that under any fair-minded system in any fair-minded country one would say: "Yes, those are the provisions to which you must adhere. But if you can provide a reasonable explanation, well and good, we will accept it". That is all we ask for in the amendment.
Baroness Blatch: Before the noble Lord decides what he wishes to do about the amendment, I say what he said sounds reasonable, but I invite the Committee to consider this point. It is true that we propose to provide a "reasonable explanation" safeguard in the paragraph dealing with undocumented passengers. The reason we do that is that we accept that there are some circumstances in which an applicant could reach this country without travel documents. But it is more difficult to conceive of a reasonable explanation for a late asylum claim made in the circumstances defined by indent (c). We therefore resist including in the statute a "reasonable explanation" caveat which would unnecessarily complicate appeal hearings. My noble friend Lady Gardner made some relevant points.
The case which we are discussing is where asylum is claimed on the point of removal, following refusal under the 1971 Act, when the case has been heard, on the point of notification of deportation under Section 3(5) of the Act and on the point of notification of removal under paragraph 9 of Schedule 2 to the Act. Those provisions are commonly abused and we have evidence of the extent of that abuse. Given that the asylum applications will he given substantive consideration and an appeal under the accelerated procedure, we think it reasonable to address that form of abuse in this way. I hope that the Committee will not accept the amendment.
Lord Dubs: I am disappointed. Perhaps I may restate the proposition. All we argue is that the words "without reasonable explanation" should be added. If the individual concerned cannot produce a reasonable explanation, then the provisions of the Bill would apply. That is, the fast-track procedure. The individual may be able to produce a reasonable explanation such as where a mother and baby arrive at the airport and the baby is tired or ill. Would anyone wish to go through the complications of claiming asylum then at the airport? Most people who arrive seeking asylum speak little or no English. When I have travelled to distant countries where I do not understand a word of the language, after a lengthy flight and arriving for legitimate tourist or business purposes, I find it difficult to deal with immigration procedures. I may not observe all the notices on the walls.
I suggest to the Committee that it is normal human behaviour that after a long flight one may be confused and have good reason not to make a claim on arrival. If
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such good reason can be demonstrated under the wording "without reasonable explanation", all well and good. That is all we seek. It is a reasonable request and a modest amendment.
Baroness Blatch: It is necessary to respond again to the reason that the noble Lord has given. It again sounds reasonable.
We are referring to the difference between practice and administration, and being humane in the way in which people are refused entry, deported and handled. The noble Lord makes a real point. However, let me give a reason that I believe will attract the Committee. There may be an uprising in the country to which we would be sending someone, and we believe that there are good reasons for considering an asylum application in those cases. We are discussing putting a provision on the face of the Bill giving everyone the opportunity to exercise delay of the procedure. In practice, if a convincing explanation were provided, we would not certify. It would be only in exceptional circumstances that we would not certify—for example, where the claim is based on a coup which post-dates the start of the enforcement action. The main disadvantage of a reasonable explanation proviso is that it would dent the deterrent impact of the late claims provision.
If noble Lords do not wish to rid the Bill of this abuse, they will seek to test the opinion of the House. However, this is an abuse; and in practice the Government are totally cognizant of the examples that the noble Lord gave. Such cases would be handled in a perfectly appropriate and humane way.
4.30 p.m.
Baroness Gardner of Parkes: Perhaps I may ask the noble Lord for an explanation on a point he made. He stated that in applying for a visa people would not be willing to disclose the reason. They may well have to apply for a student or a visitor visa. Does he mean that that would be an acceptable explanation: that one applies for a visa under false pretences so that one can then apply for asylum?
Lord Dubs: Perhaps I may deal with the noble Baroness's question first. I simply reminded the Committee of the basis on which visas are issued, the reasons for which they are issued and the difficulties facing someone who is in fear of persecution in his own country and as regards how he gains a visa to enter this country or to many Western European countries. I simply said that the main way to gain a visa is to apply as a visitor or a student. That is the way in which asylum seekers enter a safe country; otherwise they have no reason for making the journey.
I do not say that that in itself is a reason for exempting those applicants from the provisions of the Bill as drafted. I simply suggest that there may be other reasons known to the individuals, personal to them, which would represent a reasonable explanation. After all, they still have to have their case considered. They still have to demonstrate their case under the 1951 Geneva Convention. That is quite reasonable. I do not want them to be "fast tracked" in such a way as to lose such rights as they may have.

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I turn now to the point that the Minister made. I think that she was suggesting a small concession. However, I contend that it is too small.
Baroness Blatch: I was not suggesting a concession. I was explaining how the procedure works in practice. If there are good reasons why applicants should not be deported, if there are good reasons why they should be given the formal track rather than the fast track procedure, in practice that is exactly what happens. We are against putting on the face of the Bill a right that a reasonable explanation would have to be considered, which would delay the process. Because this is such an area of abuse, we believe that the genuine cases are caught by the way in which we operate in practice. What the noble Lord is insisting should go on the face of the Bill is tantamount to a licence to delay and thwart deportation in genuine cases.
We are talking here of people claiming asylum on the point of deportation, on the point of removal. That is what we say is the abuse. That is what is addressed by the Bill.
Earl Russell: Before the noble Baroness sits down, can she tell us how she knows that it is an abuse before she has heard the evidence?
Baroness Blatch: There is a great deal of recorded evidence of people who have sought asylum on the very point of removal. Students come with permission to stay, and at the end of their course they have to be returned. At the point of returning they seek asylum. Others come for other reasons, overstay, and at the point of removal they suddenly seek asylum. There are those who have been through the 1971 Act immigration procedures and at the point of refusal, where they are deemed to be removed, they then seek asylum. That is the point of abuse, and it is well catalogued.
Earl Russell: But how does the noble Baroness know, before examining the evidence, that that case before her, which is individual, is in point? Perhaps I may remind her of a remark once made by the noble and learned Lord, Lord Ackner: that a man apparently lying dead drunk in a gutter may in fact be a diabetic who has run out of insulin.
Baroness Blatch: I can answer that question too. Let me take the example that I gave of the student who completes a course. He is due to return to another country. He refuses to go at the point of deportation and seeks asylum. The proposition in the Bill is that he should be put through the accelerated procedure. The adjudicator hears the case. If in the case put to the adjudicator there is good reason why he should not have received a certificate in the first place, the adjudicator could set the certificate aside. All I am saying is that those applicants will have their case heard. They will have an appeal right. Therefore, if they have good reason, it will be put before the adjudicator.
Lord Avebury: In that case, will the noble Baroness agree to an amendment, tabled perhaps at Report stage, to sub-paragraph (6) which would make it plain that the adjudicator has the power to set the procedure aside? Sub-paragraph (6) states that,
1500
"If…the…adjudicator agrees that the claim is one to which sub-paragraph (2)(3) or (4) applies … section 20(1) shall not confer on the appellant any right to appeal to the Immigration Appeal Tribunal".
The provision does not state that the adjudicator has the power to set that matter aside.
Lord Campbell of Alloway: Perhaps I may suggest to the noble Earl, Lord Russell, that this is not a matter of histrionics. It is a matter of a reasoned administration to seek to curtail manifest abuse, on which all parties, all Members of the Committee, would be in agreement. When the noble Earl says that we are pre-empting, prejudging the situation, with respect, is that quite fair? It is the entrant who applies after entry who, by a much delayed judgment, then seeks this accommodation. The noble Earl does not seem to appreciate that we are not seeking to stop or in any way impede genuine asylum seekers. But, broadly speaking, something has to be done to stop what has become a manifest abuse.
Baroness Blatch: My noble friend is right. We know that there are cases of abuse because they are all denied asylum and the decision on appeal has been upheld.
Perhaps I may say to the noble Lord, Lord Avebury, and the noble Earl, Lord Russell, that we do examine the evidence. If the evidence supports the application for asylum, asylum is granted. I have given that assurance to the Committee. All we are saying is that Clause 1, the fast track, comes into play only after that decision has been made—in other words, if the view of the substantive consideration and the appeal is that this is not a case for asylum. It is only that point of the procedure that we are discussing. I simply say that it is not an arbitrary or a cursory examination. The case is properly heard.
Baroness Williams of Crosby: I certainly do not want to delay the Committee further. The noble Baroness made the point that there is a real case and I understand that. However, I wonder whether she will consider, possibly on Report, examining further the remarks of my noble friend Lord Avebury, in this sense only. If sub-paragraph (6) in Clause 1 goes through and the further appeal stage is removed, the concern expressed by the noble Lord, Lord Dubs, and others is simply whether, if circumstances have so far changed, we can be assured that, if the asylum seeker advances a reasonable case—in the sections to which she referred most will not, but there may be exceptions—there is an opportunity for such exceptions to be considered.
Baroness Blatch: I have given the Committee an assurance that if there are good grounds for an application to be considered on the normal track rather than the fast track, in practice that is exactly what will happen. What I cannot do is accede to the amendments. We know that this is an area of abuse. In regard to the accelerated appeals procedure, taking all the Opposition amendments together, including removing Clause 1, it is clear that they do not wish to address some of the worst excesses of the system. Amendments have been tabled to remove Clause 1; amendments have been tabled to remove various parts of Clause 1. I am taking all the amendments together.

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We believe that these measures are necessary. There is a particular need for an accelerated procedure. It allows substantive consideration of each case and there is an appeals system. (Those on the normal track then go on to a third stage, a tribunal.) Even at the substantive stage it is possible to decide that the application should go by the normal track rather than the fast track. The case worker makes the decision as to whether Clause 1 is invoked.
We believe the measures are right: first, to address the volume of applicants; secondly, to address abuse; thirdly, for good race relations in this country; and to give proper, and speedier, consideration to genuine asylum seekers. Those are the reasons for including them in the Bill. We know that noble Lords opposite do not wish even to see Clause 1 remain. We believe it is an important part of the Bill.
Lord McIntosh of Haringey: We cannot let that pass. If we accept the argument that the Minister has just made, there is no point at all in having this House as a revising Chamber. As a revising Chamber, we examine every single part of each clause of a Bill and consider whether we can make helpful amendments. We have a fallback position whereby we can say that if we have not persuaded the House (or Committee) of the justice of individual amendments, we will seek a debate and possibly even a Division on the issue of whether the clause shall stand part. But the Minister cannot simply add together all the amendments on a clause and the debate on clause stand part and say that, taken together, they all add up to root-and-branch opposition to the Bill. That is not the case. The position of the Opposition is, and always has been, that we examine the text of a Bill, treating each part individually and carefully, place by place, and make each argument at the appropriate time. I protest against the attitude that the Minister is now taking to the role of the Opposition and to this House as a revising Chamber.
Earl Russell: I also protest against the Minister's attempt to foist upon us her belief that this Bill does anything to remedy abuses.
Lord Dubs: My Lords, I return briefly to Amendments Nos. 18, 19 and 20. Nobody condones abuse of the system. The Minister gave examples where the Government would, as it were, try to meet particularly difficult circumstances—for example, if there had been a coup in the country from which an asylum seeker came. Such examples are not on the face of the Bill. There may be concessions that the Secretary of State might make in individual cases, but they are not on the face of the Bill. When we are talking about the rights of individuals, it is proper that those rights should be stated on the face of the legislation.
The rights of individual asylum seekers not to be sent back to face possible torture, imprisonment and death are absolutely paramount. The reason we are concerned with the procedures that determine whether an individual is to be sent back is that they may determine life or death for that individual. I know from my time at the Refugee Council of instances of persons being returned to countries where there was turmoil and
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persecution, and those individuals were never heard of again. That is why the rights of each individual are so important. The words "without reasonable explanation" which we seek to add to the Bill surely represent the minimum that we could say on behalf of the rights of individuals. It is a minimum additional protection which I contend is reasonable.
I should like to test the opinion of the House on Amendment No. 19. I therefore beg leave to withdraw Amendment No. 18.
Amendment No. 18, as an amendment to Amendment No. 1, by leave, withdrawn.
Lord Dubs Lord Dubs moved, as an amendment to Amendment No. 1, Amendment No. 19:
Line 31, after ("made") insert ("without reasonable explanation").
The noble Lord said: I beg to move.
4.46 p.m.
On Question, Whether the said amendment (No. 19, as an amendment to Amendment No. 1) shall be agreed to?
Their Lordships divided: Contents, 112; Not-Contents, 170.

Division No. 1

CONTENTS

Acton, L.

Gould of Potternewton, B. [Teller]

Addington, L.

Graham of Edmonton, L.

Ashley of Stoke, L.

Grey, E.

Avebury, L.

Halsbury, E.

Barnett, L.

Harris of Greenwich, L.

Birik, B.

Haskel, L.

Blackstone, B.

Hayman, B.

Borrie, L.

Henderson of Brompton, L.

Bristol, Bp.

Hilton of Eggardon, B.

Broadbridge, L.

Hollis of Heigham, B.

Bruce of Donington, L.

Howell, L.

Canterbury, Abp.

Howie of Troon, L.

Carmichael of Kelvingrove, L.

Hughes, L.

Carter, L.

Hylton, L.

Chester, Bp.

Jay of Paddington, B.

Chichester, Bp.

Jeger, B.

Chorley, L.

Jenkins of Hillhead, L.

Cledwyn of Penrhos, L.

Jenkins of Putney, L.

Clinton-Davis, L.

Kilbracken, L.

Cocks of Hartcliffe, L.

Kirkhill, L.

Crook, L.

Lincoln, Bp.

Cudlipp, L.

Lockwood, B.

David, B.

Longford, E.

Dean of Beswick, L.

Lovell-Davis, L.

Dean of Thornton-le-Fylde, B.

McIntosh of Haringey, L.

Desai, L.

Mackie of Benshie, L.

Diamond, L

McNair, L.

Donaldson of Kingsbridge, L.

Masham of Ilton, B.

Donoughue, L.

Mason of Barnsley, L.

Dormand of Easington, L.

Mayhew, L.

Dubs, L.

Merlyn-Rees, L.

Ewing of Kirkford, L

Milner of Leeds, L.

Falkender, B.

Molloy, L.

Falkland, V.

Monkswell, L.

Fisher of Rednal, B.

Morris of Kenwood, L.

Fitt, L.

Nicol, B.

Gallacher, L.

Ogmore, L.

Geraint, L.

Palmer, L.

Gladwin of Clee, L.

Peston, L.

Glenamara, L.

Richard, L.

1503

Ripon, Bp.

Stedman, B.

Robertson of Oakridge, L.

Stoddart of Swindon, L.

Robson of Kiddington, B.

Strabolgi, L.

Rochester, L.

Taylor of Gryfe, L.

Rodgers of Quarry Bank, L.

Thurlow, L.

Runcie, L.

Tope, L.

Russell, E [Teller.]

Tordoff, L.

Sainsbury, L.

Turner of Camden, B.

Sandwich, E.

Wallace of Saltaire, L.

Seear, B.

Wedderburn of Charlton, L.

Sefton of Garston, L.

White, B.

Serota, B.

Wigoder, L.

Sewel, L.

Williams of Crosby, B.

Shepherd, L.

Williams of Elvel, L.

Simon of Glaisdale, L.

Williams of Mostyn, L.

Stallard, L.

Winston, L.

NOT-CONTENTS

Aberdare, L.

Elton, L.

Abinger, L.

Erne, E.

Ackner, L.

Exmouth,V.

Addison, V.

Finsberg, L.

Ailsa, M.

Forbes, L.

Aldington, L.

Fraser of Kilmorack, L.

Alexander of Tunis, E.

Gainford, L.

Allenby of Megiddo, V.

Gainsborough, E.

Ampthill, L.

Gardner of Parkes, B.

Archer of Weston-Super-Mare, L.

Geddes, L.

Arran, E.

Gisborough, L.

Balfour, E.

Goold, L.

Barber of Tewkesbury, L.

Goschen, V.

Belhaven and Stenton, L.

Gray of Contin, L.

Blake, L.

Grimston of Westbury, L.

Blaker, L.

Harding of Petherton, L.

Blatch, B.

Hardinge of Penshurst, L.

Boardman, L.

Hardwicke, E.

Bowness, L.

Harmsworth, L.

Boyd-Carpenter, L.

Henley, L.

Brentford, V.

HolmPatrick, L.

Bridge of Harwich, L.

Hothfield, L.

Brougham and Vaux, L.

Howe, E.

Burnham, L.

Hylton-Foster, B.

Butterfield, L.

Inchyra, L.

Butterworth, L.

Inglewood, L.

Cadman, L.

Ingrow, L.

Caithness, E.

Kenilworth, L.

Campbell of Alloway, L.

Kimball, L.

Campbell of Croy, L.

Kingsland, L.

Carnarvon, E.

Kitchener, E.

Carnegy of Lour, B.

Knollys, V.

Carnock, L.

Knutsford, V.

Chalker of Wallasey, B.

Lane of Horsell, L.

Charteris of Amisfield, L.

Lauderdale, E.

Chelmsford, V.

Lindsay, E.

Chesham, L. [Teller.]

Lindsey and Abingdon, E

Clanwilliam, E.

Liverpool, E.

Clark of Kempston, L.

Long, V.

Courtown, E.

Lucas, L.

Cranborne, V. [Lord Privy Seal.]

Lucas of Chilworth, L.

Crawshaw, L.

Lytton, E.

Crickhowell, L.

McColl of Dulwich, L.

Cumberlege, B.

McConnell, L.

De L'Isle, V.

Mackay of Ardbrecknish, L.

Dean of Harptree, L.

Mackay of Clashfern, L. [Lord Chancellor.]

Deedes, L.

Demon of Wakefield, B.

Mackay of Drumadoon, L.

Dilhorne, V.

Marlesford, L.

Dixon-Smith, L.

Massereene and Ferrard, V.

Donegall, M.

Merrivale, L.

Dundonald, E.

Mersey, V.

Eden of Winton, L.

Miller of Hendon, B.

Elibank, L.

Milverton, L.

Ellenborough, L.

Monk Bretton, L.

Elles, B.

Montgomery of Alamein, V

Elliott of Morpeth, L.

Mottistone, L.

1504

Mountevans, L.

Sainsbury of Preston Candover, L.

Mowbray and Stourton, L.

Saltoun of Abernethy, Ly.

Munster, E.

Sandford, L.

Murton of Lindisfarne, L.

Seccombe, B.

Newall, L.

Sharples, B.

Norrie, L.

Shaw of Northstead, L.

Northesk, E.

Sherfield, L.

O'Cathain, B.

Shrewsbury, E.

Oppenheim-Barnes, B.

Stewartby, L.

Orkney, E.

Stockton, E.

Orr-Ewing, L.

Stodart of Leaston, L.

Oxfuird, V.

Strange, B.

Park of Monmouth, B.

Strathcarron, L.

Pearson of Rannoch, L.

Strathclyde, L. [Teller.]

Peel, E.

Sudeley, L.

Swinfen, L.

Pender, L.

Tebbit, L.

Peyton of Yeovil, L.

Teynham, L.

Pilkington of Oxenford, L.

Thomas of Gwydir, L.

Platt of Writtle, B.

Trumpington, B.

Prentice, L.

Ullswater, V.

Quinton, L.

Wade of Chorlton, L.

Rankeillour, L.

Westbury, L.

Rawlings, B.

Whitelaw, V.

Rees, L.

Wilberforce, L.

Renfrew of Kaimsthorn, L.

Wise, L.

Renton, L.

Wolfson, L.

Renwick, L.

Wynford, L.

Romney, E.

Young, B.

Resolved in the negative, and amendment disagreed to accordingly.
4.55 p.m.
[Amendments Nos. 20 and 21, as amendments to Amendment No. 1, not moved.]
Lord McIntosh of Haringey Lord McIntosh of Haringey moved, as an amendment to Amendment No. 1, Amendment No. 22:
Line 42, leave out ("is") and insert ("has been certified by an Adjudicator to be").
The noble Lord said: In moving this amendment I shall speak also to Amendment No. 24. When dealing with these amendments, it is necessary to say a word about the history of appeals to the Immigration Appeal Tribunal. Until the 1993 Act, there could be a further appeal to the Immigration Appeal Tribunal if there had been an error in law.
Let me remind those who do not remember the passage of that Act that it had two effects. First, it denied that further right of appeal to cases which were, in the words of the Act, "without foundation". But, at the same time, if the Home Office lost a case which was deemed to be without foundation, it allowed the Home Office still the right to appeal. In other words, the abolition of the right to appeal in certain respects was one sided in that the abolition applied only to applicants—appellants—and not to the Secretary of State. Not surprisingly, the result was an increase in the number of judicial reviews, which I am sure the Committee will agree is, in itself, whatever the reason, undesirable.
What is now proposed in the Bill is that a much wider range of fast-track applicants—those defined in sub-paragraphs (2), (3) and (4) in new Clause 1—under the terms of sub-paragraph (6) should be denied the right to appeal to the Immigration Appeal Tribunal.

1505
I want to suggest to the Committee that because that is so much wider a basis of exclusion and because still the Secretary of State will not lose that right of appeal, it would be wrong to extend the provisions as widely as is proposed in sub-paragraphs (2), (3) and (4).
Therefore, the effect of Amendment No. 22 is to say that what are said to be "frivolous or vexatious" claims should have to be certified as such by the adjudicator. Amendment No. 24 ensures that the right of appeal to the Immigration Appeal Tribunal should apply, except to cases which have been certified by an adjudicator to be "frivolous or vexatious". In other words, we go very closely back to the position under the 1993 Act so far as that aspect is concerned.
The arguments for changing the position from the 1993 Act have been made in public by Ministers and were rehearsed in detail during the earlier stages of the Bill in another place. As we know, the fast track procedure is to apply to applicants from countries on the designated list, applicants under sub-paragraph (3) who fail the different passport tests and applicants under sub-paragraph (4) who fail a whole range of tests, including the test of being "manifestly fraudulent" or the test of being "frivolous or vexatious".
What difference does this aspect of the clause make? It is not just a matter of the appeal to the Immigration Appeal Tribunal; it is also a matter of the time allowed for the grounds of appeal to be stated, which is reduced to five working days. We know from the evidence of applications in recent months and years that a high proportion of cases which come to the special adjudicators would fall within the widened provisions of Clause 1. Indeed, until now there has been the provision that the Immigration Appeal Tribunal would allow a reference back to an adjudicator for rehearing and that 70 per cent. of Immigration Appeal Tribunal cases in 1994 made a reference back in that way.
Clearly the Immigration Appeal Tribunal has a significant effect. It has been referring cases back for further hearing; it has been indicating that the processes of the original application and of the appeal are defective in a significant number of cases and therefore that the work of the tribunal is of considerable importance in assuring justice in the consideration of asylum applications.
Therefore, if the Immigration Appeal Tribunal does a good job—as is shown by the facts—and if the effect of that is to reduce drastically the number of people who can avail themselves of the service of the tribunal, something must be wrong somewhere. It must be the case that a considerable number of people who would, if their appeals were heard by the Immigration Appeal Tribunal, have their cases referred back and eventually, in a significant number of cases presumably, gain admission and refugee status or exceptional leave to remain, will no longer be able to do so. For that reason in these two amendments it is necessary to attempt to restrict the denial of access to the Immigration Appeal Tribunal to those cases which are frivolous and vexatious and which have been certified as such by the adjudicator. I beg to move.
5 p.m.
Earl Russell: We are all wrong sometimes. I remember particularly one occasion when I rose in this Chamber and started speaking with great impassioned eloquence to the wrong amendment. I was rescued expeditiously and effectively by my noble friend Lady Williams of Crosby.
The fact that we can all make mistakes is the fundamental ground of the right of appeal. It is especially true in matters of law, and immigration law is extremely complex. It is in a state of perpetual Heraclitean flux. The possibility of error is always there.
One of the crucial roles of the Immigration Appeal Tribunal is to correct errors on points of law. In 1994 it corrected 270 appeals against the special adjudicator's dismissal of an asylum appeal; 200 of those were either allowed or remitted back for rehearing. That is to say, the tribunal corrected 200 errors of law in one year. That is a lot of errors of law. In a precedent-based system, an uncorrected error of law is capable of having a multiplying effect and affecting the determination of many subsequent cases. The keeping up of a body of case law in an area of this magnitude is extremely important. If there were no other reason, that would be a good reason for accepting the amendment.
It is important also not to be too certain that one is right at the first hearing of a case. I recommend to the Government the spirit shown in the case of a puisne judge whose children observed case after case of champagne being brought into the house. They said, "Mummy, what is all that for?" She replied, "Daddy has been upheld in the appeal court". That is the sort of surprise we should all be humble enough to feel.
Baroness Blatch: This is another amendment designed completely to emasculate Clause 1.
Under the special appeal procedure, the Secretary of State can issue a certificate if, having considered the claim, he considers it to be without foundation. The certificate has two effects: first, the applicant has less time in which to give notice of his appeal, and the appeal must be heard quickly; secondly, the appellant cannot seek leave to appeal to the Immigration Appeal Tribunal unless the adjudicator overturns the certificate. Clause 1 does not change the nature of the special appeal procedure, but makes it available in a wider range of cases where the application is considered to be manifestly unfounded.
The effect of Amendment No. 24 to sub-paragraph (6) would be to restore access to the tribunal in almost all certified cases. The tribunal would be excluded only in cases which satisfied the test of being frivolous or vexatious—a criterion which case law has restricted to a very small number of claims, such as those which merely repeat earlier claims or which make no reference to asylum.
Denial of access to the tribunal is an important part of the benefit which the appeal system derives from the accelerated procedure. It reduces the number of applications for leave to appeal which the tribunal is required to consider. It means that the applicant has exhausted his appeal after the adjudication and can be removed immediately, rather than after a further delay

1507
while an application is made for leave to appeal to the tribunal. And it contributes to the overall signal which the Bill sends to would-be asylum seekers that manifestly unfounded claims will be dealt with robustly.
I do not accept the argument that access to the tribunal should always be a possibility as a long-stop safeguard. I remind the Committee of the safeguards that the Bill will leave in place for cases covered by Clause 1. First, asylum claims cannot be certified until after they have been considered substantively in the normal way. All applicants are invited to an interview, and all are given an opportunity to make additional representations afterwards. All claims will still be considered substantively and granted asylum or exceptional leave to remain where warranted. Those refused will still receive a letter setting out the reasons for refusal. And all will still have an appeal to an adjudicator.
Adjudicators are of course experienced members of the legal profession appointed by the Lord Chancellor and wholly independent of the Home Office. Furthermore, if the adjudicator upholds the refusal of asylum but does not agree that the certificate was correctly issued, he can overturn it and thereby restore the appellant's opportunity to seek leave to appeal to the tribunal. This is what would happen, for example, if the adjudicator agreed that the asylum claim was unfounded but did not agree with the Secretary of State's certificate asserting that the claim was manifestly fraudulent.
There seems little point in having an accelerated appeal procedure if we are not even prepared to reduce the normal three-tier system of consideration by the Secretary of State, the adjudicator and the tribunal to a two-tier one. I should also say that Amendment No. 22 is defective. It would require the Secretary of State to certify in advance of the appeal that in his opinion the adjudicator has certified that the claim is frivolous or vexatious. That is obviously nonsensical, since the Secretary of State cannot attest to an appeal determination which has not yet taken place.
It has been argued that most of the tribunal's determinations result in remittal to the adjudicator for a rehearing so that errors can be corrected. It was suggested also that removing access to the tribunal will result in such errors going uncorrected. Concern was expressed that the Bill will result in the loss of the tribunal's role in maintaining the quality of asylum case law. Those concerns are greatly exaggerated. The majority of applications to the tribunal result either in leave to appeal being refused or in the appeal being dismissed after a hearing. A small proportion result in the case being remitted back to an adjudicator, but in our experience the great majority of such remittals result in the refusal of asylum being upheld. Only a tiny proportion result in an appeal being allowed by the tribunal. In those circumstances, I hope the noble Lord will not press the amendment.
Earl Russell: The noble Baroness might with profit look at the judgment of Mr. Justice Hidden last week in the case of ex parte Bostam. I pay tribute to the work done by the special adjudicators but, inevitably, they
1508
differ from each other from time to time. On the issue of safe third countries, they differ quite substantially. If there is no provision for calling in the Immigration Appeal Tribunal, there could be some trouble in reconciling these variations between people who are of equal status.
I wish to make one other point to the noble Baroness. Before she uses words like "frivolous" and "without foundation" with quite such sublime confidence as she has done today, I would ask her to look over debates in this House in the past few years and at the occasions when she has described arguments from this side of the House as being either without foundation or frivolous and then to ask herself how many of them have subsequently been accepted by Her Majesty's Government.
Baroness Blatch: I take exception to the accusation that the noble Earl has made of me. I was not being light-hearted. The determination as to whether an application is vexatious is not my decision; it is that of the adjudicator. So I hope the noble Earl does not believe I am treating it lightly. I also hope that the noble Earl will agree that vexatious cases should be accelerated. We are saying that, not only for those cases but for those cases that are manifestly unfounded, it is right that an accelerated procedure should be considered.
Earl Russell: I shall willingly and eagerly acquit the noble Baroness of the charge of being light-hearted. I also understood entirely that it was not just her own certainty with which we were dealing. We were dealing with adjudicators. But I do not share the noble Baroness's degree of confidence in every stage of this process. That is where I really would like her to be a little more ready to entertain the possibility that decisions taken within the Home Office machinery may be mistaken. She is very resistant to accepting that possibility—that was all I wish to say—and that is frankly a matter of opinion.
Lord McIntosh of Haringey: I found the Minister's reply fascinating because not once, but several times, she used the phrase "manifestly unfounded" as being the basis on which the provisions of Clause 1 would come into effect, whereas the words "manifestly unfounded" do not occur anywhere in Clause 1. Under the 1993 Act there was provision for fast-track appeals procedures and for the denial of access to the Immigration Appeal Tribunal for claims which were "unfounded". Ministers—I acquit the Minister in this House of the charge—have since then consistently referred to such claims as bogus. I am glad that the noble Baroness does not do that and has never to my knowledge done so. But "manifestly unfounded" is not what the clause says.
Clause 1 speeds up the appeals procedure and denies the special appeals procedure unless the adjudicator allows it. It applies to those cases which fall under sub-paragraph (2)—about the designated list—sub-paragraph (3)—about passport defects—and sub-paragraph (4)—about the fear of persecution. In reading sub-paragraph (4)(b) I now see the words "manifestly unfounded". I apologise to the Minister for that. But it is only one of a wide range of conditions

1509
under which denial of access to the Immigration Appeal Tribunal applies. The words "manifestly unfounded" refer to a fear of persecution but not to a claim. Therefore, the Minister's defence of Clause 1 does not apply.
As I said, Clause 1 speeds up appeals and restricts access to the Immigration Appeal Tribunal. But what is the Immigration Appeal Tribunal for? It is designed to send cases back to the adjudicator for errors to be corrected. As the noble Earl, Lord Russell, said, there have been a significant number of cases in which it has done so and in which the result has been different from that which would have been the case if there had been no Immigration Appeal Tribunal. That proves the worth of the Immigration Appeal Tribunal and it proves to my mind that it is wrong for it to be emasculated in the way that is proposed in Clause 1.
This issue is very close to one which we have considered on a number of amendments and it is not one on which I wish to seek the opinion of the Committee. However, I have to say that the criticism we have been making is not in the form of a wrecking amendment but of a desire to restore an appeal tribunal which was set up by this Government, which we believe serves a useful purpose, and which is being diminished by the Bill as drafted.
Baroness Blatch: I am grateful to the noble Lord for giving way. Perhaps I may put the record straight. Before the noble Lord decides what he is going to do with the amendment, I believe I misled the House in saying that it was the adjudicator who determined the accelerated procedure. It is after substantive consideration that a decision as to whether it should be normal track or fast track is taken and then of course it is for the adjudicator to hear the appeal. But it is nevertheless after substantive consideration of the case.
Lord McIntosh of Haringey: I hope that nothing I have said compounded that error. I hope I was saying that it is the fast-track appeal that we are talking about and not a fast track for the consideration of the original application. On the basis that I have stated, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
5.15 p.m.
Lord McIntosh of Haringey Lord McIntosh of Haringey moved, as an amendment to Amendment No. 1, Amendment No. 23:
Line 45, at end insert—
("but nothing in those rules may permit any appeal to be determined without the appellant being given the opportunity to present evidence both orally and otherwise").
The noble Lord said: Amendment No. 23 is of great importance. Its importance has been brought to the forefront by the issue on 31st March and the Lord Chancellor's proposals for comment on procedural rules which would affect the role of the adjudicator and the way in which the adjudicator would consider an appeal. These are not, as I understand it—the Minister will correct me if I am wrong—the procedural rules as such which would apply to the state of law after the Bill has received Royal Assent. I understand them to be
1510
procedural rules which are meant to apply to the situation after the passage of the 1993 Act and the subsequent KPMG report in late 1994 on the operation of the Act. What is significant about the rules issued by the Lord Chancellor's Department is that they consistently refer to the need to avoid delay and reduce cost. They seldom refer to the protection necessary for applicants and appellants. That is why we are worried—we express our worry in the form of this amendment—that it may be the Government's intention to allow appeals to be taken on the papers alone without the possibility of an oral hearing.
All the evidence is that that would be an extremely dangerous procedure. I believe that the Council of Tribunals—I am sorry that my noble and learned friend Lord Archer of Sandwell, who is the chairman of the council, is not available to contribute on this issue today—has been carrying out an analysis of the relative success of matters which come before a tribunal when there is a possibility of an oral hearing as compared with matters which come before one when the matter can be decided on the papers alone. There is a great difference between the two procedures. In other words, there is a much greater likelihood of an appeal being found in favour of the appellant if there is an oral hearing than if there is only a consideration of the papers.
The Bill, as drafted, does not say that an appeal can take place without the possibility of an oral hearing. But all the provisions in the Bill, including, notably, the provisions for out-country appeals in Clauses 2 and 3, lead us to fear that it may be the intention of the Government to allow appeals to be considered on the papers alone. This afternoon we are looking for an assurance that that is not the case and that the Government will indeed do what I believe everyone will accept to be the right thing; namely, to have oral hearings when they are necessary. I beg to move.
Earl Russell: We are always at a disadvantage when we have to discuss a major substantive issue in the absence of some of the crucial documents which show how the policy is going to be applied. It means that we do not know exactly what is going to happen or how it is going to work. Without the procedural rules, I do not see we can properly understand exactly how the appeals are going to work.
We are at a disadvantage here. It is perfectly possible that the noble Baroness is also at a disadvantage. It is not the business of this side of the Committee to be in the habit of regularly giving the Government the benefit of every doubt that arises. It is quite possible that were this document to be made available, some of our fears would prove to be unfounded. One must accept that is a possibility. But one has to go on insisting that as long as they have the power to do something which we believe should not be done, one has to go on raising the issue.
The fear that appeals may be done entirely on the papers is not, so far as I am concerned, without foundation. During the last election, which is now quite a time ago, I took part in a radio programme opposite the noble Lord, Lord Waddington, on the subject of immigration. The noble Lord stated categorically that it

1511
was the Government's intention to introduce a system of hearing appeals purely on the papers. That was a statement made by the then Leader of this House, so it clearly was the Government's intention in 1992.
What is rather curious is that this did not appear in the Asylum and Immigration Act 1993 so, clearly, somebody had had second thoughts. What we do not know now is whether the second thoughts have been superseded by third thoughts. We do not know whether the second thoughts were the result of perhaps perfectly genuine difficulty. When a Government have hesitated so long before bringing in a policy which they have proclaimed during an election campaign, one must wonder whether they had good reason not to do so.
In this case what strikes me as the obvious good reason is that when one is dealing with a claim, practically the first thing that one needs to form an opinion about is the credibility of the claimant. I have not yet found any reliable way of judging the credibility of a person based entirely on paper. Believe me, if one's profession is that of an historian, one has to try to do that daily. There is not any way that it can be done adequately. So if one wants to judge the credibility of an appellant, one has to be able to have an oral hearing. Without that the element of lottery in a decision, which is already there, inevitably must increase and that is something that we could not regard as the prevention of abuse.
Baroness Blatch: I shall ignore the political jibe of the noble Earl, Lord Russell. I wholeheartedly agree with him that establishing the credibility of an appellant is the intention of the system.
Earl Russell: Did I hear the noble Baroness right in saying that I had made a jibe? If so, what was it? I do assure her that that was not in the least my intention.
Baroness Blatch: I believe I heard the noble Earl refer to matters being brought up during political campaigns. If I have misunderstood the point being made by the noble Earl, of course I withdraw the comment that I made.
Earl Russell: All I wanted to say was that the point was made by a spokesman acting for the Conservative Party during a general election campaign. I believe that hearing appeals based only on the papers was then the Government's intention, but what interested me was why they changed it. I was not alleging any impropriety about changing their minds—in fact, I was relieved that they did. I just wondered why they changed their minds back again.
Baroness Blatch: It is my intention to ignore the politics of this amendment and to deal with the amendment before me on the Marshalled List.
Amendment No. 23 proposes changes to subparagraph (5) which would prevent the Lord Chancellor from issuing procedural rules which denied the appellant the opportunity to produce evidence in support of his appeal, both orally and otherwise.
1512
The Government cannot accept the amendment. My noble and learned friend the Lord Chancellor has recently issued for consultation new draft procedural rules designed to reduce delays and adjournments. Comments have been requested by 20th May and a copy has been made available to this House. Among a number of important improvements to the rules, our proposals include an extension of the existing powers to resolve the case without a hearing. The draft rules would extend the adjudicator's existing discretion to determine the appeal on the papers in certain circumstances.
It is important to put this proposal in context. The Government have been seriously concerned about unnecessary delays and adjournments in the asylum appeals system. The majority of appeals now take longer to determine than the time prescribed in the procedural rules. Part of the problem is that the workload of the appeals system exceeds its capacity. That is why the Government are currently investing substantial sums in additional adjudicators and additional hearing rooms. The number of determinations nearly tripled last year from 2,400 to over 7,000, and a further very major rise in determinations is planned this year.
But an important part of the problem lies in avoidable delays and adjournments. A study by the consultants KPMG, which was referred to by the noble Lord, Lord McIntosh, which the Government commissioned in 1994 and made available to Parliament in February 1995, highlighted the havoc caused to many lists by last-minute adjournments. For example, the consultants found that there is little incentive for appellants and their representatives to co-operate with the Home Office and the appellate authority in moving appeals quickly through the system. They found that by the appeal stage, when it is becoming clear to appellants that their chances of gaining refugee status are very thin, it is in the interests of most to seek to postpone the final decision.
The report went on to say that the lack of incentive to co-operate with the appeal process is supported to some extent by the analysis of adjournments. It has been noted that significant causes are illness, lack of readiness on the part of the appellant's representative and absence of the appellant or his representative. The report went on to say that it was not suggested that all the adjournment requests are not genuine, but that for many such representatives it is not difficult to get at least one adjournment. The concern of adjudicators was also noted at the misuse of doctors' sick notes. The report commented that the Home Office Appellate Authority and judiciary should remain alert to the incentive for appellants and representatives to delay the processing of appeals.
The new procedural rules are designed to address the problems identified by the consultants. My noble and learned friend the Lord Chancellor has consulted closely senior members of the Immigration Appellate Authority and the Immigration Tribunal, to arrive at a clear and practical set of proposals. They include greater powers for adjudicators to make directions to the parties for the preparation of cases; a presumption against adjournments unless the adjudicator is satisfied that it is necessary for the just disposal of the appeal, and a

1513
stronger presumption against the admission of appeals if notice is not given in time, unless given late, because of circumstances beyond the appellant's control.
Powers to give directions are of no use without sanctions against non-compliance by either party. Therefore, we propose that the adjudicator will be able to proceed without a hearing or to treat the appeal as abandoned, if that is appropriate. In addition, we propose that the existing power to determine the appeal without a hearing may be appropriate in other circumstances. We believe that there may well be cases where it would be both sensible and compatible with justice to proceed in that way. There are cases when, for example, it is plain from the papers that the appellant cannot, or has not tried to dispute the incontrovertible nature of the decision. Where it is plainly unnecessary to hold a hearing, doing so merely adds to the burden on the appeal system.
Perhaps I may stress three points. First, there is already provision for determining appeals without a hearing in certain circumstances. Secondly, we are emphatically not renewing the right to an oral hearing in all certified appeals, as suggested in the Peat Marwick report. All that is proposed is to extend the adjudicator's existing discretion to determine on the papers, if he considers that appropriate in an individual case. It will be entirely up to the adjudicator how far, if at all, he uses such a discretion. We believe that it is an option that should be available to the adjudicator. Thirdly, if an adjudicator uses that discretion unreasonably, the ultimate safety net of judicial review is always available. We do not think that that will happen very often.
We shall, of course, consider carefully all the comments that we receive on the draft new procedural rules, but we cannot agree to Amendment No. 23 as that would foreclose an option that we believe at least deserves to be considered seriously.
5.30 p.m.
Lord Harris of Greenwich: Perhaps I may say just a few words on this, with particular reference to the bizarre statement made by the noble Baroness a few moments ago that my noble friend Lord Russell had made some sort of jibe by referring to a debate that he had had with the noble Lord, Lord Waddington. I am glad that I can get a laugh out of the noble Baroness because it is some little time since I have had the pleasure of watching her smile about anything—no doubt partly because of the unfortunate disclosure of the way in which the crime figures are moving at the moment.
Baroness Blatch: I smile a great deal across the Dispatch Box, but the noble Lord has not been in the Chamber enough to see that.
Lord Harris of Greenwich: I do my best to study the features of the noble Baroness because that always gives me great pleasure but, unhappily, not on this occasion.
The Minister dodged answering the specific question from my noble friend about the statement made by the noble Lord, Lord Waddington. The Minister may recall
1514
that the noble Lord, Lord Waddington, happened to hold the office of Home Secretary for a substantial period of time. May I ask her now whether she will reply to the question? On that occasion, the noble Lord, Lord Waddington, said that the Government were contemplating doing precisely what the Government are apparently now doing; namely, saying that in a number of cases the appeals should be carried out solely on the basis of the papers, without the appellant being present. If that was the position of the Government on that occasion and the Government then decided not to proceed, the question that arises is: why did they change their mind on that occasion and why do they appear to have changed their mind yet again? That seems to be an entirely reasonable question and I hope that the Minister will now reply to it.
The noble Baroness sometimes gives the impression that any criticism, however faint, about any action taken by the Home Secretary or any Minister is in some sense a grave breach of our constitution. Let me reassure her: we do not see things in quite that way. The noble Baroness should not be quite so sensitive when even the mildest points are made, as on this occasion.
Baroness Blatch: The noble Lord presses me to say why the decisions have changed. When speaking to the amendment, I said that we had had the benefit of the KPMG report. I also said that what has changed is that the decision and the discretion are given to the adjudicator. We think that that is absolutely right. I also plead in defence the fact that this is a democratic process. As the noble Lord knows, government is a dynamic. We base our thinking on the latest information available to us. The Lord Chancellor has seen fit to put his proposals out for consultation. They are now out for consultation and if the noble Lord is concerned about them, we hope that he will respond. The proposal is that the special adjudicator should be satisfied, having regard to the material before him, the nature of the issues raised, and the extent to which any directions given under rule 23 have been complied with, that the appeal could be so disposed of justly. It is the adjudicator who must make that consideration. It is the judgment of the adjudicator that it should be appropriate. As I have already said, if the adjudicator acted unreasonably, that would be subject to judicial review.
Earl Russell: Perhaps I may say this in clarification: I made no complaint at all about the Government changing their mind. That must happen. I merely wanted to know why they have changed their mind. I did not think that I was raising a major mystery, but I am now beginning to wonder whether I was.
Lord Avebury: I wonder whether the noble Baroness is aware that the draft procedural rules which she said had been issued by the Lord Chancellor are not available in the Printed Paper Office.
Lord McIntosh of Haringey: Perhaps I may return to Amendment No. 23, to adapt a phrase which I think has been used before. It is entirely legitimate for the Minister to quote from the KPMG report. We quote from reports from time to time when we think that

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appropriate. It is, however, somewhat curious that the noble Baroness should quote from that report and then have to admit that the Government have rejected the report's principal conclusion on this issue. After all, the KPMG report said, as I understand it, that all such hearings should be heard on the basis of the papers rather than orally.
My amendment does not propose any such thing. It states that no appeal should be heard on the papers unless the appellant has been,
"given the opportunity to present evidence both orally and otherwise",
and has chosen not to do so. We are not talking about whether all appeals should be on the basis of oral hearings. We are talking about the opportunity for an appellant to seek an oral hearing if he desires to do so. If I caused confusion by the way in which I moved the amendment, I apologise; but I do not think that the contrast between us is as stated by the Minister. I was arguing that there should be an opportunity for an oral hearing. None of the Minister's arguments seems to address that issue—
Baroness Blatch: I think that I precisely addressed that issue. A very real difference between us is that if the amendment is accepted, the decision as to whether there should be an oral hearing would rest with the appellant. The KPMG report extensively catalogues the abuse of that procedure. We believe that it is right that an oral hearing should be considered, but the decision as to whether there should be an oral hearing should belong to the adjudicator, not the appellant.
Lord McIntosh of Haringey: Then we have correctly identified the difference between us because I certainly take the view that it should be the decision of the applicant for the reasons that I have outlined. Oral hearings produce different results from hearings on the papers and are self-evidently, I should have thought, superior to appeals held purely on the basis of the papers because of the possibilities of cross-examination and of eliminating misunderstandings. I should have thought that that was fundamental not just with regard to tribunals, as the Council on Tribunals recognises, but in all aspects of the law. Where there is conflict of this kind which has to be resolved by judicial or quasi-judicial means, there should be an opportunity for cross-examination and for the matter to be heard in person rather than on the papers alone.
I question whether by these measures the Government will achieve any significant reduction in delays. Surely when issues cannot be resolved on the spot, the adjudicator will seek adjournments in order to solve the discrepancies in the papers. It would be possible to say that an oral hearing should be held at relatively short notice and that there should be a limitation on the time taken for oral hearings. The Minister based her argument heavily on the number of adjournments that are necessary. I suggest that what she proposes—enforced written hearings on the papers alone—will increase the number of adjournments and delays rather than the other way around. The Minister did not seek to provide any evidence—I do not have any—of the
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number of cases in which applicants sought oral hearings. It would interesting to find out, if the proposal to have hearings on the papers alone were implemented, how many applications for oral hearings there would be. I suspect that neither of us knows. Therefore, we are not in a position to make a final judgment. Much to my regret, I suspect that what the Government propose will increase delays and injustice. This is a matter to which I am very likely to return at another stage.
Baroness Seear: Can the noble Minister tell us of any other case in which a matter of this importance can be dealt with by any court in this country without the person concerned having the right to appear in person?
Baroness Blatch: I understand that there are occasions when either the chairman of the tribunal or an adjudicator can make a determination without an oral hearing. I cannot give chapter and verse, and I will write to the noble Baroness.
Lord Winston: Surely the crucial issue is Britain's reputation for fairness and justice. Is that not the key to the whole question? It may not be seen to be a just decision if there is no possibility of making representations in person.
Baroness Blatch: I refer yet again to the proposal put out for consultation by my noble and learned friend the Lord Chancellor. He refers to directions given under Rule 23. It is only if the case can be disposed of justly that my noble and learned friend will not have an oral hearing.
I refer again to the KPMG report. Some of the practices that the parties employ to good effect to win adjournments, which are not treated robustly by all adjudicators, include: seeking multiple adjournments, especially in without foundation cases, where the longer the hearing can be delayed the more likely it is that the case will have to be treated substantively; introducing late evidence, even when there has been plenty of time to collect and submit documents, thus forcing an adjournment; and failing to turn up or to produce the appellants on the basis that they will be given a second chance at a later date, because few adjudicators will use their power to determine the matter on the papers. Even if adjudicators go ahead on the papers, the appellant has a fair chance of having the case remitted for an oral hearing by the tribunal. Those are just some of the abuses. We believe it is fair and proper, and should at least be given fair consideration—which is what my noble and learned friend the Lord Chancellor has done—to submit proposals that say that on the basis of a just disposal the adjudicator should have power to determine the appeal on the basis of papers rather than an oral hearing.
5.45 p.m.
Lord McIntosh of Haringey: I repeat that the Government are not only wrong in principle that oral hearings should be denied despite the wish of the applicant, as my noble friend Lord Winston has pointed out, but it is likely to be counter-productive. When the Minister goes on to quote evidence that has been

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adduced in favour of a policy which the Government have not accepted, I am confirmed in my view that it is a matter which deserves further consideration at a later stage, although I will not pursue it into the Division Lobby today.
Baroness Blatch: I have an answer to the question posed by the noble Baroness, Lady Seear. I am told that nearly all judicial review applications are heard without the applicant giving oral evidence.
Lord McIntosh of Haringey: I beg leave to withdraw Amendment No. 23.
Amendment No. 23, as an amendment to Amendment No. 1, by leave, withdrawn.
[Amendments Nos. 23A to 28, as amendments to Amendment No. 1, not moved.]
Lord McIntosh of Haringey Lord McIntosh of Haringey moved, as an amendment to Amendment No. 1, Amendment No. 29:
Line 62, at end insert—
("() A Special Adjudicator may remit a claim for asylum for reconsideration by the Secretary of State as an alternative to dismissing it where he concludes that the decision rejecting the claim has not been taken in accordance with the law or any relevant rules.").
The noble Lord said: Amendment No. 29 provides that a special adjudicator may remit a claim for asylum for reconsideration by the Secretary of State as an alternative to dismissing it. Special adjudicators, in particular Judge Pearl in giving evidence to the Glidewell Inquiry, have indicated that this is a very important part of their powers and responsibilities. The 1993 Act allows the adjudicator to refer an issue back to the Home Office where there is a conflict of law or a conflict with the Immigration Rules. In practice, it means that the adjudicator believes that the matter has not been considered properly. As I understand it, that provision will still exist in fast-track cases, although such a referral back will be time limited and there will be a restriction on repeated applications for adjournments. That was a matter to which the Minister referred in her most recent answer. The power given to adjudicators to refer back cases to the Home Office has been widely used. I understand that 26 per cent. of safe third country applications (which we will come to consider in Clause 2) have been referred back in this way.
Further, in his evidence to Glidewell Judge Pearl referred to what would happen if the power to refer back cases was denied. He dealt with that matter again when the case of Dr. al-Mas'ari was referred to him. On that occasion he said that if there were no power to refer the matter back, there was a possibility of the case being left in limbo, and nobody would be able to decide whether Dr. al-Mas'ari, or somebody like him, should be granted refugee status. I suppose that a part answer is that he may be given exceptional-leave-to-remain status. That is what the Government have done, although I understand that it is limited to a period of four years.
Nevertheless, on any view of the role of the special adjudicator it must be possible for him to say, not just that in his view the decision is correct or clearly
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incorrect in that the appeal should not be allowed, but that possibly insufficient evidence has been adduced either in the original application or the appeal and the Home Office must look at the case again. I would have thought that that was an open and shut case—which is not the case for appeals themselves—and that it would be right to include the provision as proposed in Amendment No. 29. I beg to move.
Baroness Williams of Crosby: I rise to support the noble Lord, Lord McIntosh. I draw attention to one factor upon which he touched. At an earlier stage I withdrew an amendment that would have removed sub-paragraph (6) in Clause 1. That sub-paragraph dealt with the disappearance of the Immigration Appeal Tribunal as a final point of appeal on a matter of law. As I understand it, it will no longer be available to those on the fast track. The amendment moved by the noble Lord, Lord McIntosh, would give the special adjudicator the right to return a case to the Home Office on the ground that there might be a misdirection in law. Given the disappearance of the Immigration Appeal Tribunal in these cases, it seems to me to be absolutely vital that it should be possible to mount an appeal on a point of law.
Indeed, it is striking that when in the past special adjudicators have referred cases to the Immigration Appeal Tribunal, in a great majority of those references the adjudicator's case has been upheld by the tribunal. Indeed, according to the Home Office's own statistics for 1995, in 1994 74 per cent. of appeals on a point of law were upheld as a result of a special adjudicator's reference back for rehearing on a point of law.
I feel strongly that unless we are to try to put back the Immigration Appeal Tribunal under Clause 1—I appreciate what the Minister has said about trying to speed up endless procedures—it would be wise of the Government to concede the amendment, which would mean that a point of law could be looked at. That is clearly not something that adjudicators are normally qualified to do, as distinct from the Immigration Appeal Tribunal, or in this case the Home Secretary and his colleagues. I commend the amendment to the Government, and hope that they will consider accepting it.
The Lord Bishop of Ripon: The Minister will remember that in a recent meeting we had with the Home Secretary the issue of referral back was raised. My understanding at that time was that there was a disagreement between the noble Baroness and the civil servants over the effect of the Bill. I asked whether the removal of the power to refer back meant that an adjudicator would have to arrive at a decision on the substantive case.
The noble Lord, Lord McIntosh, referred to the possibility of cases being left in limbo. My understanding was that adjudicators would be required to make a decision on the substantive case. If that were to be the situation, the difficulties would be considerable because the adjudicators would not have before them sufficient evidence. An adjournment would be needed. There is a possibility of the system being clogged up

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due to that rather than being freed in the way the Government hope. I hope that the Minister may be able to clarify the points being made and answer the question as to whether adjudicators will be required to make a decision on the substantive case in such circumstances.
Lord Avebury: I should have preferred the noble Lord, Lord McIntosh, to go a little further in the amendment. As he knows, in the case of Dr. al-Mas'ari, to which he referred, the matter was referred to the Secretary of State by the special adjudicator on two occasions but no decision was taken on the substantive application for asylum. Initially, when Dr. al-Mas'ari came here the proposal was to return him to Yemen, the last country from which he had travelled, because, as the Committee may remember from the previous occasion when we touched upon this case, he was originally imprisoned and persecuted in Saudi Arabia. He escaped across the border to Yemen where he obtained a travel document. He came here from that country.
The first decision that had to be made by the special adjudicator was whether Yemen was a safe country to which to send him back. When the special adjudicator decided that it was not, he made a recommendation to the Secretary of State that he should consider the substantive application for asylum, but the Secretary of State failed to do that, and claimed subsequently to have lost the papers. I will leave it to the Committee's judgment whether to believe that.
When another adjudicator decided on the question of Dr. al-Mas'ari's proposed removal to Dominica, he, too, recommended that the Home Secretary should consider his substantive application for asylum. Instead of that, as the noble Lord, Lord McIntosh, pointed out, the Secretary of State, in his wisdom, decided to give him four years' exceptional leave to remain which could be renewed for an indefinite period.
Not only should the special adjudicator's power to remit a claim for asylum be restored by an amendment to Clause 1, the amendment should have provided that in cases where the special adjudicator makes such a reference to the Secretary of State, the latter would have an absolute duty to make a decision on the application for asylum and should not have the power merely to grant exceptional leave to remain or to make some other decision at his own discretion. Surely if we are providing the special adjudicator with these powers, it means that the Secretary of State must do his duty and not slide out of it by the means he has chosen to use.
Baroness Blatch: Perhaps I may say, first, to the right reverend Prelate that I remember the meeting well. It was a useful meeting. It was not a disagreement between myself and the Home Secretary; it was that I got it wrong, and on that occasion the Home Secretary got it right. We have since confirmed in a letter to the right reverend Prelate that his understanding is correct.
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The Government believe that adjudicators should in future in all cases either allow or dismiss the appeal. That is where there seems to have been some misunderstanding, as I have listened to the debate on the amendment. Many people are judging the situation as it prevails at the moment and not as it would be if the Bill were on the statute book. The Bill would therefore abolish the option of referral to the Secretary of State which is currently available in certain circumstances because, as I have said, the adjudicator would either allow or dismiss the appeal.
Referral back adds to delay. In effect, the consideration of the case has to start again. Unless he grants asylum, the Secretary of State has to issue another letter setting out his reasons for refusal, and a second appeal then has to take place. That runs counter to the whole thrust of our proposals which are aimed at speeding up the appeal system.
Referral back to the Secretary of State is entirely unnecessary. It has to be remembered that all cases covered by Clause 1 will have been substantively considered by the Secretary of State. It is important to underline that. It is true that Clause 1 will extend the circumstances in which the Secretary of State can issue a certificate if he refuses an asylum claim. But that does not mean that the Secretary of State is excused from the obligation to consider the asylum claim substantively. He cannot issue a certificate until he has done so. So the applicant will still be interviewed. The grounds for his claim will still be assessed. If asylum is refused, the reasons for refusal will still need to be set out in a letter.
It follows, therefore that the adjudicator should have before him the information he requires to decide whether the applicant qualifies for asylum. He will have the interview notes, the Secretary of State's letter of refusal, any additional grounds subsequently submitted with the appeal and the presenting officer's response to those additional grounds at the hearing. In some cases, the grounds for appeal, if introducing significantly new issues, will have elicited a further written response from the Secretary of State. All of that material will be before the adjudicator in Clause 1 cases. If, exceptionally, the adjudicator requires further comment or information from the Secretary of State, it is open to him to adjourn for that to be provided. The Bill will not change that.
It has been suggested that the option of referral back to the Secretary of State is needed to cater for cases where the adjudicator finds that the Secretary of State's initial decision was legally flawed or failed to comply with the Immigration Rules. That argument reflects a fundamental misunderstanding of the adjudicator's role. Unlike, for example, the Court of Appeal, his role is not limited to reviewing the validity of the initial decision. And he is not restricted to the information which was available at the time that decision was taken. On the contrary, his task is to form his own view of the validity of the asylum claim, taking account of all available information, including any which has come to light since the initial decision was taken. That is a well-established principle, and it would be damaging to change it now.

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So if the adjudicator finds that the initial decision was technically or legally flawed, he should nevertheless go on to form his own view of the validity of the asylum claim and either allow or dismiss the appeal accordingly.
Some may think that cases will be left in limbo if they cannot be referred back to the Secretary of State. There is no such risk. As I have already said, the issue before the adjudicator in all Clause 1 cases will be whether the appellant qualifies for asylum. If the adjudicator allows the appeal, he will be overturning the refusal of asylum. If he dismisses the appeal, he will be upholding the refusal of asylum. Either way, therefore, there will be no question of the case being left in limbo. The third option of referral to the Secretary of State will therefore be unnecessary.
The noble Lord, Lord McIntosh, touched briefly on third country cases. I too hope that we can leave that matter until we discuss it later tonight in the course of considering other amendments. It is quite wrong to suggest that allowing the appeal will leave the case in limbo. If the asylum seeker is still in this country, the asylum claim will automatically be referred back to the Secretary of State. The claim will still be outstanding and the Secretary of State will have to deal with it. In most cases, however, the successful appellant will already have been removed to the third country. Again, I shall deal with that point in more detail when we discuss later amendments.
Reference has been made to Judge Pearl saying that allowing a third country appeal leaves it in limbo. It is difficult to answer because points have been made in the debate. Perhaps Members of the Committee will forgive me if I leave that matter until later. It was mentioned that Judge Pearl told the Glidewell panel that Clause 1 will be counterproductive. What Judge Pearl is reported to have told the Glidewell panel is that the appellate authority's intake currently exceeds its output and that while that remains the position the need to give priority to increased numbers of certified cases will lead to longer waiting lists for other appeals. I know that that view is held by the right reverend Prelate.
We listen carefully to the advice of the chief adjudicator, which is important. He has presided over a very remarkable expansion of capacity and output since his appointment, with the assistance of a major investment of resources which is continuing. However, it is not the Government's position that wider use of the accelerated appeal procedure will of itself reduce overall delays, but we are convinced that it is a necessary part of a wider programme of measures. The package also includes major additional resources now being invested in the appeal system and the improved procedural rules on which my noble and learned friend the Lord Chancellor has just published proposals after consulting the chief adjudicator.
It is important to send a deterrent signal that unfounded claims will be dealt with speedily. If fewer such claims are thereby made, overall delays will be reduced and genuine refugees will then receive asylum more quickly. I hope that the amendment will not be pressed.
6 p.m.
Lord McIntosh of Haringey: It is clear where the disagreement lies. None of us is in favour of delay and we shall support proposals which will genuinely reduce delay. However, the danger arises when delay is in conflict with the interests of justice. After listening carefully to the debate I believe that we may have reached the point where there is a conflict between the interests of justice and delay.
I look again at the wording of my amendment and find it somewhat disingenuous. It states:
"A Special Adjudicator may remit a claim for asylum for reconsideration by the Secretary of State as an alternative to dismissing it where he concludes that the decision rejecting the claim has not been taken in accordance with the law or any relevant rules".
I suggest to the Government that it might well be that the alternative will be the case. In other words, a special adjudicator who does not have the power to refer a claim back to the Secretary of State when he considers that it has not been taken in accordance with the law or any relevant rules—that is, that the procedures were improper—may be tempted to say, "I cannot dismiss the claim because, clearly, the procedures were improper, but if I cannot refer it back I shall have to allow the claim". The Government might well find that at the end of this exercise they are getting more successful claimants not necessarily because their claims are justified but as a result of the restrictions placed on the special adjudicator to try to clear up inconsistencies or potential improprieties in the procedures for the claims.
The whole of the Minister's argument was about the substantive consideration of the claim and I accept that that has not changed. She did not refer to the initial appeal and to the fact that the fast-track appeal procedure is bound to involve some risks to the quality of evidence and the quality of consideration. There is not much point in doing so unless one is cutting some corners. She appears to believe that somehow the combination of the substantive application procedure and the fast-track procedure will produce a result which is perfect in all cases and in which there can be no improprieties. That is not a criticism of the immigration department staff or the adjudicators, but surely in human nature errors will be made. I refer to errors of procedure and of consideration of facts, and to all kinds of errors in the procedure which may become apparent to the special adjudicator. I suggest that, as a result of denying the power to refer back, the Minister will find that there will be more successful applications, some of which may not be fully justified.
Baroness Blatch: In all the cases cited by the noble Lord we are suggesting that the adjudicator has the widest possible powers. He does not consider only procedural matters but he has the powers to determine. In order to make a determination he may continue to seek additional information from the Home Secretary, the Home Office and the applicant. He may seek any relevant or additional information that he believes is important to give a judgment either to allow or to dismiss the appeal. His powers allow him either to dismiss or to allow the appeal, and he can continue to

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keep a case before him until he is absolutely satisfied that he has taken into account all the information he needs to reach that view.
Lord McIntosh of Haringey: There are two answers to that. The first is that if that is the case, it destroys much of the argument about delay. The special adjudicator must call successively for different papers and for responses from the different parties to the appeal to the papers produced by the other side. That is bound to result in a more drawn-out process than a single hearing. Secondly, it is unlikely to be effective. A reconsideration of the case called for by an adjudicator would bring together all the evidence in a way that the adjudicator dealing only with the papers cannot. It might well speed up the appeal.
The amendment does not provide that the adjudicator should not wherever possible determine the appeal. Of course he should. He should either reject or dismiss the appeal whenever he can. However, the most effective way of dealing with a case in respect of which he has a doubt about whether the appeal is justified—a doubt based on the way in which the case was considered before it reached him—in terms of justice and of avoiding delay, would be for the case to be referred back to the Secretary of State for further consideration. Again, as with the previous amendment, we must return to this matter on Report because the Government's position is neither right nor expedient. I beg leave to withdraw the amendment.
Amendment No. 29, as an amendment to Amendment No. 1, by leave, withdrawn.
Baroness Hilton of Eggardon Baroness Hilton of Eggardon moved, as an amendment to Amendment No. 1, Amendment No. 30:
Line 62, at end insert—
("() Nothing in this paragraph shall be construed as applying to a claimant who is, or who appears to be, under 18 years of age, and where the age of the claimant is in doubt or is in dispute the burden shall be on the Secretary of State to demonstrate that the age claimed by the claimant is incorrect.").
The noble Baroness said: In moving Amendment No. 30, I shall speak also to Amendment No. 45. As previous speakers have said, there has been no dramatic increase in immigration in recent years. Very few immigrants have been unaccompanied children. In 1995 only 486 unaccompanied children aged under 18 made applications for asylum at the ports of this country. A further 99 made application after being admitted to the country.
To subject that handful of children to the fast-track procedure seems particularly mean-spirited. Children as well as adults can be the victims of persecution and torture. For example, in conflicts such as that in Rwanda, where genocide was the main aim of the warring parties, many children die merely because they belong to the wrong tribe. In other countries such as Liberia and Angola, children as young as 12 and 13 may be forced to be soldiers. That is not a good start to life as a responsible citizen.
The United Nations estimates that half the world's refugees are children. Inevitably some of those will arrive unaccompanied on our shores seeking asylum.
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The purpose of the amendment is to ensure that children have a full opportunity to present their case for asylum which is unlikely to be possible through the fast-track procedure.
The amendment also places the burden of proof on the Secretary of State to prove that the asylum seeker is over 18 if he has claimed to be a child. Those two provisions need to go together so that the exclusion of children from the fast-track procedure cannot be circumvented by an assumption that they are adults.
The judgment of age is notoriously difficult. My early police experience, which often depended on judging whether somebody was under or over 17 so that he could be sent home or back to approved school, resulted in my endlessly making mistakes as to whether someone was a child or an adult. I learnt rapidly that adolescence is an extremely variable state: boys of 15 may have moustaches and girls with well-developed figures may be only 14; on the other side, pint-sized youths may legally be adults. Therefore, it seems important that immigration officers or other officials should not be able to make a judgment without evidence that the person in question is an adult. If the age of an appellant is at issue at the appeal, lengthy legal arguments as to the young person's real age are likely to ensue. It is essential that a child has legal representation.
It is also possible that the search for documentary evidence may take many weeks. The rules which apply to the interviewing of children make it difficult to arrange or conduct the necessary interviews expeditiously. The complex issues involved therefore make it all the more essential that a child has legal representation; that his rights are protected; and that adjournments may be sought to obtain evidence. For those reasons, it is inappropriate to apply the fast-track procedure to children. It is appropriate to place the burden to prove age on the Secretary of State.
Amendment No. 45 depends on many of the same arguments but it is intended to remove the power to send an unaccompanied child to a third country while awaiting the results of an appeal. Again, it would place the burden of proof to prove that the applicant is an adult on the Secretary of State.
It seems to me that the proposed third country procedure is a denial of justice even to adults, but I believe that it would be barbaric if applied to children. Moreover, it is current government policy not to return a child to a country unless there are adequate arrangements for that child to be met and cared for. That will be far more difficult to fulfil in relation to a so-called third country where presumably a child will have no family or friends. That gives added force to the amendment. In view of those considerations, I beg to move the amendment.
Lord Renton: I would have thought that this amendment, however well intentioned, would cause real problems. The burden of proof should surely lie on whoever has or is most likely to have the necessary information as to the child's age. The Secretary of State will not have that information but the child, the child's parents or anyone escorting him is likely to have it. Therefore, the burden of proof should lie upon the

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claimant and not upon the Secretary of State to disprove the matter. That would be an entirely negative burden to place upon the Secretary of State. I really feel that in the public interest, the Government could not accept this amendment.
6.15 p.m.
Baroness David: The point about these amendments is that these children are unaccompanied. There will be no parent or friend with them who can say for sure that they are over 18 or under 18. A child may well come with false documents which perhaps say that he is 18. There must be some way of proving it and the burden of proof should not be on the young person. I know that it is very difficult to prove it and it may need doctors or paediatricians, to give the proof. But I think that it is very hard to take the view that an unaccompanied child is over 18 when he may well not be.
With these amendments we have at last come to amendments about children. It is important that they are recognised as a very special and vulnerable category of people in an excessively difficult position when coming to a country that they do not know and whose language they do not know. We should give them very special consideration.
The Home Office recognises this in a variety of ways. Current Immigration Rules 352 and 353 apply to unaccompanied children. Under those rules, children are not interviewed unless the information cannot be gathered in any other way. If they do have to be interviewed, they must be accompanied by an independent adult and the interview must be conducted sensibly.
The Government have also maintained a policy of not returning a child to a country unless there are adequate arrangements for that child to be met and cared for in that country. It is argued that it would be inconsistent to make all those exceptions in the case of children but not to make an exception in the case of the accelerated appeals process, such as that provided in Clause 1.
As my noble friend said, 357 unaccompanied children who applied for asylum at ports in 1994 were from countries which the Government propose to designate as generally safe.
In correspondence, Miss Widdecombe, from the Home Office, has argued that children can spend the time that they wait for a decision obtaining relevant evidence to use in their appeal. That is only true if the child or his relative can predict accurately the points which the Home Office will use to refuse the asylum application. In most cases, that is not possible, no matter how experienced is the representative. Sometimes it is clear that a particular issue may arise, such as whether a child will be met and appropriately cared for if returned to his country. It is then that the representative can make some inquiries on that matter at an early stage.
However, often there will be a need to refute the specific reasons given by the Home Office. For example, a child may have lost contact with his parents and not know where they are. The representative can take some measures such as contacting the Red Cross family tracing service or writing to the last known
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address or workplace of the people concerned. If, however, the Secretary of State alleges, in his refusal reasons, that the FCO staff in the country in question have discovered that the applicant's father is working for a particular firm or is residing at a particular address, the representative will still need time to check that information.
It is simply impossible for any applicant or representative to address every possible point or piece of evidence that the other side may raise in advance. Exemption from the Clause 1 procedure would not mean that the cases of children could not be prioritised by the Immigration Appellate Authority as they are now. They could perfectly feasibly continue under the new system. That would mean that children's cases could be dealt with promptly but without the pressure to dispose of the case within 17 days, which will either disadvantage the child or lead to an adjournment beyond that target.
Therefore, this first amendment will ensure that the particular difficulties of asylum-seeking children are reflected so that their cases are given full consideration. If the Bill proceeds unamended, the cases of children will either not be fully considered or they will clog a system designed to accommodate speedy cases.
I turn to the second amendment in this group, Amendment No. 45, which would mean that unaccompanied refugee children could not be sent to safe third countries, either with or without an in-country right of appeal. As I said in speaking to Amendment No. 30, the Government have maintained a policy of not returning a child to a country unless there are adequate arrangements for the child to he met and cared for in that country. Miss Widdecombe, in a letter to David Alton, has reaffirmed that. The letter states:
"I am also happy to reaffirm that even once a child has exhausted his or her appeal rights, the Immigration Service will not seek to return children abroad until reception and care arrangements in their country are made. These arrangements will also be notified on a case-by-case basis to the relevant authorities responsible in this country for the care of the children".
The uncertainty over possible removal to a safe third country and legal disputes over that possibility will prevent them from doing this. Refugee children may have been sent to the UK because they speak some English or because there is a well-established community from their country here. But such factors are even more important for children travelling alone than for adult asylum seekers, so the effect of removing to a country deemed safe is likely to be very much more disruptive and damaging. I hope that the Minister can take the case of these children very seriously and agree to the amendments.
Lord Renton: Will the noble Baroness be good enough to tell us whether the document from which she quoted at length gives any indication of the practice

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which I am sure prevails sometimes of children being sent here intentionally unaccompanied in order to make their remaining here easier?
Baroness David: It is possible that that could happen. However, we must give children the benefit of the doubt and allow them every possible chance to prove their case, rather than assume that they may be in the wrong.
The Lord Bishop of Ripon: The amendment is similar to Amendment No. 49 which is tabled in my name. It is similar in that it puts the burden of proof of age on the immigration officials rather than on the child. However, it is different in other regards as my amendment does not refer specifically to Clause 1. When we come to deal with Amendment No. 49, I hope that we shall be able to debate it in full; but it seemed only right that I should speak on the matter of age determination in relation to Amendment No. 30.
The noble Baroness, Lady David, referred to children as being among the most vulnerable of those who seek asylum on our shores. As we know, it is the case that children are frequently those who suffer most from disorder, violence and civil war in their own countries. Indeed, that has been true throughout history from the massacre of the children in the time of King Herod through to Nazi Germany.
I am speaking now specifically about unaccompanied children who arrive in this country. They are in a highly vulnerable state. It is the case that the Home Office gives them particular consideration. In relation to detention, the Minister said that her understanding is that young people under the age of 17 are detained only as a very last resort. Clearly that is right.
However, despite that Home Office intention, it is the case that the Refugee Council has dealt with 54 unaccompanied asylum seekers under the age of 17 who had been detained. The vast majority of them were detained because the immigration service took the view that they were aged over 18. The problem arises because children travel without documents; with documents which do not belong to them; or with documents which state a false age. I believe that we are all aware of the kind of reasons why that might be so.
If a parent in the country of origin is in detention or in hiding, that often means that a child is unable to obtain a passport. One way of doing so is to present that child as being over the age of majority, in which case the passport on which the child travels gives the age as being over 18. That is then taken by the immigration officials as meaning that the child, in claiming to be under that age, is making a false claim. Further, many people are conscripted for military service under the age of 18 and authorities are often reluctant to allow youngsters coming up to that age to leave their country. Therefore, once again, there will be very strong pressure for those who are under 18 to present themselves as being of a different age.
Such disputes are very difficult to resolve. That is why the intention of the amendment—and of Amendment No. 49 standing in my name—is to say that the burden of proof in those circumstances must rest on
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the immigration officials. It is possible to obtain medical evidence, but I shall not go into such details because I am not qualified medically to do so. However, I understand that it is possible to have X-rays taken which determine the rate of growth of a particular person and which can give some fairly objective evidence as to whether someone is 17 or 18. Some children have been able to provide other forms of documentary evidence.
All of that indicates that the burden of proof of whether someone is over 18 years of age ought to rest on the immigration officials and not on the children who are making the claim. In the event of dispute, the balance should lie with the person making the claim rather than with those who are rejecting it.
Lord Renton: I trust that the right reverend Prelate will allow me to comment. I listened to what he said very carefully and I thought that he indicated that young people were justified in coming here in order to avoid military service in their own countries. If that is so, are we to treat them as people seeking asylum?
Lord Avebury: I should like to intervene briefly to point out to the right reverend Prelate that the use of X-rays for age determination is deplored by the British Medical Association and has been for the past 20 years since it was the subject of an investigation undertaken in my office. At that time, we submitted evidence to the BMA and to the Government showing that the practice was harmful and inaccurate. If I remember rightly—and it is a long time since the study was published—the average error in the use of X-rays for the purpose of age determination in children was plus or minus two years. Therefore, it would not be much good in deciding the cases that we are discussing this evening which are, by definition, on the borderline between 17 and 18.
Further, the use of X-rays for that purpose could be medically harmful. It was stated that they were not to be used in a procedure that was not clinically necessary for the young person. That is the absolute rule that is now adopted by the medical profession. It is known that X-rays are carcinogenic in however small a dose. Indeed, their use is to be avoided when it is for purposes other than clinical. Therefore, we should be extremely wary of suggesting that any scientific evidence could be brought forward that would help to decide the question of the person's age if that was in doubt.
However, it could perhaps be agreed that a group of paediatricians should be asked to advise and that their word would be acceptable both to the appellant and to the Secretary of State. I suggest a panel of them so that an average view could be taken of the opinions expressed. That would be the best way to sort out what is essentially a very difficult and subjective problem to which there is no absolute answer.
The Lord Bishop of Ripon: Perhaps I may just reply to the noble Lord, Lord Renton. Obviously, I did not make myself clear. The difficulty is that if one is, say, aged 17—that is, under the age of conscription—the authorities in a particular country may be very reluctant to allow a child of that age to leave because they may

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consider that he is trying to avoid conscription. If there is a genuine reason why such a child should wish to leave, such as the case where a family is being persecuted, it will be very difficult for that child to escape from the country if he presents himself as being aged 17. That is why to do so at an older age, which would indicate that that age of conscription is past, may in fact help such a child to leave his country.
In response to the noble Lord, Lord Avebury, I can only repeat that I am no medical authority; indeed, he may be right in what he says. However, my understanding is that X-rays had been used in the process. I was merely using them generally as an example of possible medical evidence.
Lord Hylton: Several Members of the Committee have correctly made the point that we are dealing with a very limited number of children per year. Whatever we may do in accepting or rejecting the amendment is not likely to increase that number significantly. Many of those children come from countries where records are simply not kept; or, indeed, if they are, they may have been destroyed or may not be capable of being found in a reasonable period of time.
For those reasons we should follow the line proposed by the noble Baroness, Lady David, and give the benefit of the doubt to anyone who might be an adult but could possibly claim to be a child. In addition, we should make absolutely certain that the most cast-iron and reliable arrangements for reception in any other country have been made before we even begin to consider sending back a child or possible child.
6.30 p.m.
Baroness Williams of Crosby: I am proud to follow the remarks made by the noble Lord, Lord Hylton, who was right. It is a small number of people whose age is in question: unaccompanied children. They are young people incapable of presenting proof in some cases. As the noble Lord, Lord Hylton, pointed out, in countries like Ghana, where I taught, there are no records, birth certificates or other adequate proof of the age of a child. We know that a number of children have come to this country for whom medical proof suggests that they are under the age of 18. A current case is that of a young man who arrived here in December 1994, aged 15, according to medical advice. In April 1996 he is still in detention on the grounds that he may not be under the age of 18. He has been in and out of detention for 18 months. It seems to me appalling that a child against whom no crime is registered, save coming to this country to seek asylum, should be kept in detention for many months. That is not to the credit of our country.
I recognise that the Home Office has always made an exception for children once they are established as being children. The problem is that in some cases the evidence put forward by distinguished medical men and women has been refuted by the immigration service on the grounds that it does not agree.
One has to ask whether we believe that a burden of proof can be reached, and what it is. Surely it should lie with the Home Office, which has access to all kinds
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of expert resources, rather than with one of the most vulnerable people in the world, an unaccompanied child, to prove its age or what it believes to be its age.
I make one other point before we pursue this set of amendments on unaccompanied children. I believe that there is a good deal of evidence to show that children who are below the age of 18 and are returned, if it is held that they are above that age, will return to situations of extreme risk. The right reverend Prelate said that in some countries young children are now being forcibly recruited to serve in the military. Angola is one example, but there are many others. Young children are also forced into prostitution or crime. We are talking of a small number but a large principle.
I conclude by quoting from one of our greatest poets who said in The Merchant of Venice:
"The quality of mercy is not strained,
It droppeth as the gentle rain from heaven".
This amendment above all seems to me to be one where the quality of mercy is appropriate.
Baroness Gardner of Parkes: The presentation of the amendment has been confused and, as I listened, I became more and more amazed. The noble Baroness, Lady Hilton, introduced it clearly and I understood what she said. When the noble Lord, Lord Renton, said that he felt it was wrong to place the onus of proof on the Secretary of State, again I fully understood. Then the noble Baroness, Lady David, said how well the Home Office treats children now and how splendid it all is; and it sounded as though there was not much of a problem. The noble Lord, Lord Hylton, said that there are so few children that it is no problem. That may be true now, but if we create a large loophole plenty more children will come on that basis. That is what we must avoid.
It is easy to put one's age up or down. Some years ago I gave advice to a woman who wished to enter the other place that it was best to lower her age. She did just that and, sure enough, she was selected and elected. Her age was dropped 10 years. Age is tricky.
The noble Lord, Lord Hylton, said that we should give the benefit of the doubt—I am not sure that he used that phrase—to someone who might be an adult but could possibly be a child. That definition is unclear and would cause me concern. People have said in one breath that to obtain a passport one must say that one is over 18 and in the next breath that the Home Office is unreasonable when it examines a passport showing someone to be 18 and takes it that that person is 18. It has been suggested that we should place on the Secretary of State the obligation to prove that the person is not 18 when he or she is clutching a passport stating that that person is 18. The amendment is wrong. I oppose it.
Lord Winston: With respect, surely that is going too far. We do not seriously expect floods of children to enter the country as a result of the legislation and it is wrong to suggest that. I support the noble Lord, Lord Hylton. I see adult patients from all over the world,

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and with patients from Africa and Asia it is common to find that they do not know when their birthday is. It is a major problem.
With regard to radiography, bone ageing and epiphyseal fusing, which is how the determination of age is carried out, I can say categorically that it is not a good idea to apply a rather invasive medical procedure, which might carry an admittedly slight risk of leukaemia, simply to establish status. That would be a poor principle.
However, there is a bigger problem with regard to the burden of proof of age. We shall see children occasionally entering the country who come from situations where they are refugees and are probably quite poorly nourished. Because of poor nourishment, people's ages may be difficult to determine. Surely, the answer is to be reasonably humane and try to be sensible about the legislation. Unless it becomes a huge problem, with a massive influx—which is unlikely—we should accept that there may have to be vagueness by its nature in determining the age of what appears to be a child. We would have to accept that as a matter of humanity and simple justice.
Earl Russell: I do not believe that the noble Baroness, Lady Gardner, has taken on board the difficulty of determining age without records. In early 16th century England, when people took over their land on coming of age, in many cases the witness says that he was born "in the year in which I broke my leg playing football". The trouble is that he does not remember which year that was. One must be realistic about the degree of certainty which can be expected. When the consequences of being disbelieved may be as great as life itself, the burden of proof must be in favour of the applicant. That is the heart of our case.
Lord Dubs: I support the two amendments because one basic principle is at stake. It is that the interests of the child should come first. That is the policy of the United Nations High Commissioner for Refugees and, I understand, of UNICEF.
In my experience when I was director of the Refugee Council, we looked after and I personally met many unaccompanied refugee children or unaccompanied asylum seeking children. One of their characteristics is that they are more traumatised than any other asylum seekers. They are more traumatised because of their youth and often because of the painful and difficult circumstances under which they managed to leave the country where they were in danger. They may also have been traumatised because their parents were dead or had disappeared. Alternatively, they may have been sent to safety by their parents because the parents feared that the children might be conscripted into an army at the age of 13 or 14 and would almost certainly face death. That separation from their parents would have traumatised the children. Young people who have suffered in that way find it harder to speak for themselves. They find it harder than any other asylum seekers to explain what has happened to them and to put up a good case.
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The procedures that we apply are particularly thorough. They give the child and his representatives every opportunity to get to the truth of the child's background so that the case can be properly and fairly put.
I do not believe that any government would wish to remove a child from this country to circumstances other than those in the best interests of the child. That requires a thorough and painstaking assessment. I believe that the two amendments go some way towards protecting those interests. I hope that the Government will accept these amendments, or some similar proposals.
Baroness Rawlings: With respect to the noble Baroness, Lady Hilton of Eggardon, I agree that children should be treated with great consideration. Under our Immigration Rules unaccompanied children must receive priority. I am sure that any child who has real cause will be admitted. I do not refer now to the debate as regards age. I refer to Amendment No. 45. Surely the reason that we should reject the amendment is that it leaves a loophole. I am not referring to any bona fide child who comes in. It allows for the possibility—which is not infrequent—of children being used by third parties to allow in subsequent members of their family. This is a serious loophole. I am sure, I repeat, that we would never wish to stop any bona fide children from coming into this country; they would not be stopped from doing so.
Baroness Blatch: This is an important and sensitive issue, and one which concerns us all. I hope that I shall be able to allay the fears of noble Lords about the way in which children who are asylum seekers are handled. I share in all the points raised by the noble Lord, Lord Dubs, but the real concern is how those cases are handled and managed in this country as part of the system.
Our proposals to extend the accelerated appeal procedure do not change the special arrangements for considering asylum applications from unaccompanied children. Their cases will continue to be given special priority and care, and will, as now, be considered by specially trained caseworkers. The Immigration Rules state that a child will not be interviewed about the substance of his asylum claim if it is possible to obtain sufficient information from other sources. Where it is necessary to interview a child, that is done in the presence of an independent adult. Unaccompanied children, therefore, are not included in the Home Office short procedure which is based around an early asylum interview to obtain the basis of the claim.
They will also continue to have the services of the Panel of Advisers for unaccompanied children to help them in their dealings with the Home Office and other government agencies.
There is no conflict between our careful approach to applications from unaccompanied children and the proposals to extend the special appeals procedures. Applying the accelerated appeals procedures to children is consistent with the UNHCR guidelines which emphasise the need for speedy determination of their status. Indeed, it is for this reason that appeals made by

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unaccompanied children already receive priority listing by the Lord Chancellor's Department. If a child has no claim to refugee status, speedy return to his family in their country of origin can only be beneficial. Clause I would assist in this process.
The Government recognise that applications from unaccompanied children raise sensitive issues and for this reason we do not propose to certify particularly complex or compassionate cases. Each case would be considered on its merits. We would take into account the child's particular circumstances. We would take account of his ability to understand his situation and to take responsibility for his actions. It would not be reasonable, for example, to expect a young child to know whether the passport he had been given was valid. But the same might not be true in the case of a young person of 17. It is right that the Secretary of State should make these judgments on the merits of the individual case.
I should like to turn to the second limb of Amendment No. 30 which deals with disputes over the age of an applicant. The Immigration Rules define an asylum-seeking child as,
"a person who is under 18 years of age or who, in the absence of documentary evidence, appears to be under that age".
Where a young person holds a valid passport showing him to be over 18 the onus is quite rightly on him to show that the age in his passport is incorrect. Where an applicant has no documents, the Immigration Service, with the assistance of the port medical officer as appropriate, will make a judgment on the applicant's age. Amendment No. 30 would reverse the current position and require the Secretary of State to demonstrate that a claimed age for which there was no evidence was incorrect.
My noble friend Lord Renton made an important point. These amendments are not just about age disputes. I agree with him when he asks how age can be determined without the relevant information. The important point is as regards the people who have the information. But if the benefit of the doubt is automatically conceded to the child, that creates a loophole. It was referred to by my noble friends Lady Gardner of Parkes and Lady Rawlings.
It cannot be right to allow a person to make an unsubstantiated claim to be a child in order to circumvent normal immigration controls. If there is a dispute over the age of an asylum seeker, it is open to him to provide documentary or medical evidence to support his claim. Where that evidence is satisfactory we will accept the applicant as a minor, as we have done in a number of cases. But it is entirely right that the burden of proof should remain with the applicant.
Baroness Williams of Crosby: I apologise for interrupting the noble Baroness. However, the case that I raised is in direct contradistinction to what she says. The young man currently in detention has two very senior medical consultants arguing that he is not 18. They have argued that for two years. The young man is still in detention and, if they are correct, he cannot even now be 18, having been kept in detention of one form or another for two years.
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The noble Baroness gives the Committee assurances to which that case seems to be in complete contradistinction.
Baroness Blatch: I hope that the noble Baroness will hear me out completely before we discuss specific cases. Of course I shall take away a particular case, if the noble Baroness wishes to write to me about it, and ensure that it is properly investigated.
As I said, it cannot be right to make unsubstantiated claims. Where that evidence is satisfactory, we will accept the applicant as a minor, as we have done in a number of cases. But it is entirely right that the burden of proof should remain with the applicant. For the moment, I rest that case, but I shall come back to the issue.
Amendment No. 45 would prevent any child under 18 who claimed asylum in his own right, whether accompanied or unaccompanied, from being removed to a safe third country. The whole debate has been about unaccompanied children. Not a single word has been prayed in aid of accompanied children. This would make it impossible to reunite a child with his own family if the family were in a safe third country. The amendment is in conflict with UNHCR guidance which states that family reunion should be the first priority for a child. I am not aware of any recent case where we have removed an unaccompanied asylum applicant aged under 18 to a safe third country. We would not take such a step unless we had confirmation that suitable reception arrangements were in place in the third country. It is nevertheless right that we should have the option to remove children under 18 to safe third countries in appropriate cases in order to preserve family unity.
The noble Baroness, Lady Hilton, referred to sending children back without suitable arrangements. If we cannot make suitable reception arrangements for children in this category in the third country, we will simply not remove the child. We will only remove the child if those arrangements can be made. But, as I have said, in some cases the parents are already in the third country. In that case, removal to the third country would be entirely appropriate.
The noble Baroness, Lady Hilton, referred exclusively to unaccompanied children, but the amendment covers all children who seek asylum. No case whatever has been made out for exempting accompanied children.
Statistics are important, too. The provisional figures for the last six months of 1995 indicate that cases referred to the unaccompanied children's module came from the following age groups: 38 per cent. claimed to be 17; 29 per cent., 16; 15 per cent., 15; and 18 per cent., 14. Of all the applications, only four were received from children who were 10 or under.
Since January 1995 only two children in total have been returned: one a young man of 17, to Kenya, and a 16 year-old Chinese boy. In the same period, six children made voluntary departures from this country.
It is better for children who have no further basis of stay in the United Kingdom to return home voluntarily, as that is the most comfortable arrangement. We

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encourage that option. However, as I said, no child is removed from this country unless we are certain that reception arrangements have been made. Where voluntary departure cannot be agreed, it may be necessary to take steps to enforce the return—as I said, with the necessary arrangements in place. In the past 12 months, only two refusal decisions involving unaccompanied children were overturned by an adjudicator on appeal.
We are not talking about small numbers. Nearly 30 per cent. of asylum seekers last year were recorded as aged between 18 and 24; nearly 60 per cent. were recorded as being under 30. Were we to reverse the burden of proof, we should give many more such applicants an incentive to lie about their age by pretending to be under 18. Cases of that kind have already come to light. As my noble friends Lady Rawlings and Lady Gardner of Parkes said, that would provide a major new loophole for abusive applications, given the very large number of young asylum seeker applications from those who are around the age of 18.
Finally, I turn to an issue that I know concerns everybody in this Chamber and outside it; namely, how we handle unaccompanied child cases. Under the Immigration Rules applications from unaccompanied children must receive priority. Because of their potential vulnerability, particular care is taken in such cases. Their applications are considered against the normal criteria for determining refugee status.
In response to the growing number of applications from unaccompanied children, a specialist unit was established in the Asylum Division in May 1995 to deal with their cases more speedily and consistently—a development that has been widely welcomed. The Government's view is that unaccompanied children whose asylum applications have failed should be returned to the care of their parents in the country of origin. That is wholly in line with the principle of family unity contained in the United Nations Convention on the Rights of the Child. General Assembly Resolution No. 49/172 of 1994 reaffirmed the importance of family reunification.
The Government made it clear during the passage of the 1993 Asylum and Immigration Appeals Act that we will not seek to remove a child under 18 unless it is possible to put in place acceptable reception arrangements in the country of origin.
The Immigration Rules state that a child will not be interviewed about the substance of an asylum claim if it is possible to obtain sufficient information from other sources. Where it is necessary to interview a child, we have always said that it will be done in the presence of an adult.
The Government fund a panel of advisers to assist unaccompanied children in their dealings with the Home Office and other central and local government departments. The panel is administered by the Children's Division of the Refugee Council.
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Each local authority has a duty under the Children Act to safeguard and promote the welfare of children in need who are within its area. Those duties extend to unaccompanied child asylum seekers and are unaffected by the Bill. The recently introduced benefit changes will also not affect these obligations.
The Red Cross is also used. All unaccompanied children are notified to the British Red Cross Society for inclusion in its register. We encourage use of the Red Cross placing service to re-establish contact with families.
Our present policy is not to remove unaccompanied children to safe third countries unless we have confirmation that suitable reception arrangements are in place in the country concerned. We are not aware of any recent cases where unaccompanied children have been removed to a safe third country.
If the concern of the Committee is the handling and management of such children, the Government meet that in every sense. If the concern is about making sure that children are considered fairly, and speedily where it is appropriate, the Government meet that too.
I hope that the Committee will agree that if we simply concede to this amendment, first, it is far more encompassing than the noble Baroness, Lady Hilton, has accepted, and we should create a loophole which would take us two steps back from where we want to be with this Bill. Understanding the needs of children is central to the Government's concerns in this matter.
Baroness Hilton of Eggardon: I am grateful for the tone and detail of the Minister's response. We need to examine her remarks with considerable closeness. I am not convinced that expedition and speed in dealing with children necessarily produce justice. We shall therefore return on Report very much to the exclusion of children from the fast-track procedure. Although they may be treated as priority cases and the intention may be to return them with expedition and speed to their families, it may in fact deny them the justice that they should receive. We shall therefore return to this point on Report. I beg leave to withdraw the amendment.
Amendment No. 30, as an amendment to Amendment No. 1, by leave, withdrawn.
Amendment No. 1, as amended, agreed to.
On Question, Whether Clause 1 shall stand part of the Bill?
Lord McIntosh of Haringey: I stayed silent on the Question that Amendment No. 1, as amended, be agreed to. Had we succeeded in overturning that, we should have lost the amendment that the right reverend Prelate the Bishop of Liverpool successfully moved last week. However, I want to oppose the Question that Clause 1 stand part of the Bill. I do so for entirely constructive reasons.
Let me be quite clear from the outset. This is not a wrecking amendment. There is a law, introduced only three years ago, for deciding on what basis asylum appeals shall be considered. It includes the provision for a fast-track procedure for unfounded applications and some restriction on access to the Immigration Appeal

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Tribunal. My first point is therefore that there is a law; and it is one that the Government have to prove needs changing before we agree to any change.
The second point to be made is that the provisions in this clause, as in Clauses 2 and 3, are entirely voluntary for the Secretary of State. All the provisions in Clause 1 apply, in accordance with line 8 of the clause as agreed, only,
"if the Secretary of State has certified that, in his opinion",
and so on.
On a number of occasions in dealing with individual amendments, the Minister made it clear that the Secretary of State will not act in accordance with the strict provisions of the Bill but will "temper the wind to the shorn lamb". We welcome all the assurances that were made. However, they are not on the face of the Bill. What is on the face of the Bill is that Clause 1 is optional; it need be applied only if the Secretary of State chooses to implement the certification procedure. That means that a Labour Government will not have to repeal the provision; they will simply not have to certify any claim.
I do not wish to go over the broader issues raised at Second Reading about alternative ways of dealing with the increase in the number of applications. (I see from the clock that I have already been speaking for 50 minutes!) Briefly, the Government's figures about unfounded applications are very far from being the truth.
The term, "without foundation", applies under the 1993 Act to a claim rather than to the application itself. A claim may be unfounded; it may be inadequate in the evidence it produces. That does not mean that the application itself is unfounded or that the applicant should not be granted refugee status. But, even so, the Government continue to say that only 5 per cent. of those who apply are recognised as refugees and neglect to say that, because 18 per cent. are given exceptional leave to remain, 23 per cent. in effect have some validity either for refugee status or for exceptional leave to remain.
We know from surveys that have been carried out by the Asylum Rights Campaign that where adjudicators have been involved, they have said that, even though only 5 per cent. are accepted as refugees, nevertheless 35 per cent. of the cases which they deal with are indeed at risk. The Government laid some stress on the change in the refusal rates, which have gone down. This is not because there has been any increase in bogus applications but because there has been a drastic reduction in the number of grants of exceptional leave to remain.
Not in any sense by opposing Clause 1 do we wish to deny the right of and the duty on the Government to examine carefully and strictly applications for asylum and make sure that there is a proper distinction between applications for economic asylum and those which are based on persecution under the 1951 convention. But having attempted in detail to correct the many anomalies and deficiencies in the clause, we are not satisfied with the clause as it stands.
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Of course, there has been a significant change made in the clause with the addition of the criterion of torture, introduced by the right reverend Prelates and other noble Lords. We welcome that change and would not wish it to be lost. On the other hand, if the Committee decides not to allow the clause to stand part of the Bill, the evil which that amendment seeks to remedy will no longer be there and there is no need for that amendment. For that reason, I hope that the Lords Spiritual, whom I am glad to see in some number in the Chamber, will feel able to support the Motion that Clause 1 should not stand part of the Bill. They do not lose anything of the victory that they and we all gained last week as a result of that amendment.
As always, the onus is on the Government to show what has changed so dramatically since 1993. I believe that no case has been made in the course of our long and detailed consideration of the detail of the clause and that it would be proper for the clause to be removed from the Bill. I beg to move that Clause 1 do not stand part of the Bill.
7 p.m.
Earl Russell: I must congratulate the noble Lord, Lord McIntosh of Haringey, on his eloquence. That was quite the shortest 50-minute speech to which I have ever listened. I found it very refreshing.
I have listened with as much care as I can to nearly two days of debate about the proposed Clause 1. I cannot say that I am in the least bit reassured. Every now and then, when working very late at night, one's mind makes a little leap. Late at night, I was reading for the 150th time the words "fast track" and, catching sight of the number of the clause, I found myself thinking of "Formula 1" appeals. That, it is well known, is a somewhat risky form of transport. I do not feel that it is inappropriate to the provisions of this clause. There is a great deal in the maxim, "More haste, less speed".
I am sure that anyone who has ever handled an immigration case will agree that a great deal of time is taken in trying to meet impossible deadlines and, because they are impossible, the work has to be done all over again. That has certainly been my experience. Moveover, it is what Judge Pearl, giving evidence to the Glidewell panel said in his opinion would be the effect of the clause. I take his judgment on the matter a very great deal more seriously than mine.
Last Tuesday, when I said that being subjected to the fast track procedure was, in effect, a penalty, I noticed that the noble Baroness shook her head vigorously. Yet, later that evening, she said that the fast track would affect those who seek to frustrate our asylum procedures but that those:
"who are honest … will not be adversely affected".—[Official Report, 24/4/96; col. 1120.]
I took that remark as an admission that, being subjected to the fast-track procedure is, in effect, being adversely affected. So I understand it.
One of the new elements about the fast-track procedure compared with that introduced in 1993 is that it will not consider merely whether the appeal is without foundation. If it is found to be with foundation, it cannot

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be referred back. The substance has to be considered. If evidence is needed from foreign countries, it can be a very time-consuming procedure. I have great difficulty in believing that justice can be adequately done.
With regard to the designated list, my noble friend Lord Avebury did the House a great service with the amount of detail that he brought out about the countries selected for designation. My noble friend Lady Seear summed it all up. She said: "If these are the countries that get onto the list, what on earth do you have to do to get off it?" I cannot improve on that remark.
I also feel that in the basic procedure there is discrimination by nationality. I quoted to the noble Baroness Article 3 of the UN convention, which is a legal obligation that this country recognises. We are rightly proud of the way in which we adhere to our legal obligations. That article says:
"The Contracting States … shall apply the provisions of the convention to refugees without discrimination as to race, religion or country of origin".
The noble Baroness objected to that reading on the grounds that the word "refugee" applied only to those whose claim had been accepted. I know that there are passages in international law where the word "refugee" does have that meaning. So I took legal advice on its meaning in the context of the convention. I took it from a quarter that I find far more persuasive than any legal advice available to the Home Office. The advice I received was that under Article 3, and in the words of the convention as a whole, one is a refugee from when one applies until someone proves that one is not. Should that prove to be the opinion of the International Court of Justice, we should clearly be found on that article to be in breach of the convention.
At the very least, this clause puts a new hurdle in the way of applicants from some countries and not from others. If that is not discriminatory, I do not know what is. But my gravest dismay concerns sub-paragraph (3) in Clause 1, which insists on supplying accurate information on arrival. I promised the noble Baroness, Lady Gardner of Parkes, that I would debate the issue on the clause stand part debate and not earlier. I have never stood more astonished at my own moderation than when resisting taking up the issue when she raised it.
My first point is that I believe that we are plainly in breach of our international obligations in taking that line. Under Article 31 of the UN Convention:
"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 reason for their illegal entry or presence".
If that is the international law to which we are subject, the argument that all applications must be made at the ports is most plainly in breach of it.
My second reason for deploring the argument that all applications must be made at ports is the right to representation. We all find immigration law confusing.
1540
Indeed, many of us have addressed our remarks to the wrong part of the Bill and the noble Baroness who drew our attention to that fact must admit that that is so. I do not believe that we are an exceptionally stupid group of people. If we can make that mistake, so can refugees operating in a foreign language. They need representation to help them represent their case and depriving them of that is an extremely severe affliction. That alone would be a reason for saying that the Government are mistaken in insisting that all applications should be made at the port of entry.
My third reason is that mistakes can be made. Mistakes at the port of entry are not easy to rectify. The noble Baroness will have noticed that I quoted throughout the debate from Home Office refusal letters. The survey from which those came was greeted by the Home Office with the comment that they were exceptional. For all I know that may be so; I am not contesting the point. What I say is that if they are exceptional, there are a great many exceptions. If we are to be asked to accept the judgment of those at the ports as the only judgment we are going to get, we need a much higher overall standard than any of which we have yet seen the least evidence.
The noble Baroness talks of abuses. This clause will create far more abuses than it prevents. It sweeps them all up together. As 1066 And All That says about the Zulu War: cause—Zulus; Zulus exterminated—peace with Zulus. That will be the effect of the clause.
7.15 p.m.
Baroness Blatch: The provision set out in Clause 1 is a principle which Parliament endorsed when it passed the 1993 Act. Paragraph 5 of Schedule 2 to that Act provides an accelerated appeal for claims which the Secretary of State certifies as being without foundation. In the light of the growing levels of unfounded applications, the time has come to build on those arrangements. Streamlining is a necessary component of any effective policy for bringing down the large backlog of unresolved cases. And it will also send a strong signal that unfounded claims will be met by robust procedures.
We have already debated this clause in some detail in discussion of proposals for amendments. Much of the concern that has been expressed has been based on misunderstanding of its intention and effect. It is worth reminding the Committee that there are two basic procedural safeguards that will not be infringed in any way by this clause. First, all asylum claims will continue to be considered on their merits against the same convention criteria as all other claims. A certificate under Clause 1 cannot be issued until that has been done. And, secondly, before removal to their country of origin all applicants will continue to have the right to appeal to an independent adjudicator against an adverse decision on their claim.
Clause 1 will allow the Secretary of State to designate countries where there is in general no risk of persecution. We have given an account of how that power will work, what criteria will apply, the factors we will take into account, the countries we would designate if the power were available now, and our proposals for

1541
informing Parliament of the assessments upon which the decision to designate will be taken. The designation principle is not new. Germany, the Netherlands, Switzerland, Denmark and Finland already operate similar arrangements. And let me remind the Committee again of two key points. There will be no blanket ban on claims from designated countries. And applicants will still have an appeal to an independent adjudicator.
But designation will provide the context against which claims from designated countries are considered. And claims which are refused will attract the accelerated appeal procedure, with shorter deadlines for making, hearing and determining appeals. Moreover, if the adjudicator agrees with the Secretary of State that the application is unfounded, that will be the end of the matter. There will be no further avenue of appeal to the Immigration Appeal Tribunal. Last year, at least 97 per cent. of claims from nationals of the seven countries we have indicated as candidates for designation were refused. That is over 6,750 applications. It cannot be right that we must give equal time and weight to claims from countries like Poland, Romania, India, Pakistan, Bulgaria, Cyprus and Ghana as to claims from countries like Iraq, Afghanistan or Liberia.
Earl Russell: The noble Baroness just said that we cannot give equal weight. Has she not abandoned her claim under international law to give claims individual scrutiny? Has not the Home Office just lost another court case?
Baroness Blatch: No. I am saying that individual cases will be properly considered. They will be fully considered. We are making the distinction between those countries from which most applications come and from which most applications fail. If the noble Earl believes that we are in breach of our international obligation by the inclusion of that provision in the Bill, no doubt it will come to light before the end of the proceedings on the Bill through this Chamber.
On the parliamentary procedure for designation orders, the Government accepted the recommendations by the Delegated Powers Scrutiny Committee. The Chamber discussed the degree of safety required for designation. Some entirely misplaced concerns have been expressed about the test required by the Bill. I have made clear that the words,
"in general no serious risk",
do not mean that it would be lawful to designate a country where there was a serious level of persecution aimed at minorities. Nazi Germany patently could not have qualified.
Clause 1 will also allow us to certify refused claims where, on arrival, the applicant was unable without reasonable explanation to present a travel document, or where an applicant obtains or seeks to obtain entry using false papers. The Committee rightly resisted a proposal to delete that provision from the Bill. Destruction of travel documents by asylum seekers attempting to impede the asylum consideration process is a growing problem. We accept that genuine refugees may need to use false papers in order to flee their country. The clause
1542
will not affect them, provided they present and declare their papers on arrival. Provided they do that, no certificate will be issued under sub-paragraph 3, even if asylum is refused.
The noble Earl, Lord Russell, referred first to Article 3. Our own courts in this country, in his challenge to the benefits restrictions, rejected the interpretation of "refugee" put forward by the noble Earl. I must put the question back to the noble Earl, who cited Article 31 of the United Nations Convention. I shall re-read it for the purposes of the point I want to make. It states:
"The contracting state 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".
Nothing in Clause 1 is in breach of that article of the United Nations Convention. I am not sure therefore that I accept the point made by the noble Earl.
Clause 1 introduces other new criteria for certifying that a claim is without foundation. They include claims the basis for which no longer subsists; those lodged only after the refusal of leave to enter or the commencement of removal action; and those which are manifestly fraudulent. We have made clear in our background note the intended scope of these provisions.
Each of the new criteria has a specific application. The clause will not allow us to certify all refused claims. A substantial proportion of cases will continue to fall outside the scope of the certification procedure and will therefore attract the standard appeal rather than the accelerated one. The role of the Immigration Tribunal in developing immigration case law will therefore remain.
Clause 1 will enable manifestly unfounded claims to be processed more quickly. That will help to deter such claims from being made in the first place. Genuine refugees will benefit from reduced abuse of the asylum system. The proposals are a sensible and balanced improvement to our procedures.
In opposing Clause 1, the sum of the amendments tabled to the clause by the Opposition adds up to the fact that some Members of the Committee do not accept the case for an extension of the accelerated appeals procedure.
We believe that a case has been made and I commend the clause to the Committee.
7.19 p.m.
On Question, Whether Clause 1 shall stand part of the Bill?
*Their Lordships divided: Contents, 133; Not-Contents, 81.

Division No. 2

CONTENTS

Abinger, L.

Ashbourne, L.

Ackner, L.

Balfour, E.

Addison, V.

Belhaven and Stenton, L.

Aldington, L.

Blaker, L.

Allenby of Megiddo, V.

Blatch, B.

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Boardman, L.

Lane of Horsell, L.

Bowness, L.

Lauderdale, E.

Brabazon of Tara, L.

Lindsay, E.

Bridgeman, V.

Lindsey and Abingdon, E.

Brigstocke, B.

Liverpool, E.

Brougham and Vaux, L.

Long, V.

Burnham, L.

Lucas, L.

Butterworth, L.

Lucas of Chilworth, L.

Cadman, L.

McColl of Dulwich, L.

Caithness, E.

Mackay of Ardbrecknish, L.

CarnegyofLour, B.

Mackay of Drumadoon, L.

Carnock, L.

Marlesford, L.

Chalker of Wallasey, B.

Masham of Ilton, B.

Chelmsford, V.

Mersey, V.

Chesham, L. [Teller.]

Miller of Hendon, B.

Chorley, L.

Monk Bretton, L.

Clanwilliam, E.

Montgomery of Alamein, V.

Clark of Kempston, L.

Mottistone, L.

Colwyn, L.

Mountevans, L.

Courtown, E.

Mowbray and Stourton, L.

Craigavon, V.

Munster, E.

Cranborne, V. [Lord Privy Seal]

Murton of Lindisfarne, L.

Crickhowell, L.

Newall, L.

Cross, V.

Norrie, L.

Cumberlege, B.

Northesk, E.

DeL'Isle, V.

O'Cathain, B.

Dean of Harptree, L.

Oxfuird, V.

Denton of Wakefield, B.

Park of Monmouth, B.

Dilhorne, V.

Pearson of Rannoch, L.

Dixon-Smith, L.

Peel, E.

Donegall, M.

Perry of Southwark, B.

Dundonald, E.

Peyton of Yeovil, L.

Eden of Winton, L.

Pilkington of Oxenford, L.

Elles, B.

Rankeillour, L.

Elliott of Morpeth, L.

Rawlings, B.

Elton, L.

Rennell, L.

Finsberg, L.

Renton, L.

Flather, B.

Renwick, L.

Gardner of Parkes, B.

Sainsbury of Preston Candover, L.

Gisborough, L.

Sandwich, E.

Glenarthur, L.

Seccombe, B.

Goold, L.

Shannon, E

Goschen, V.

Sharples, B.

Gowrie, E.

Shaw of Northstead, L.

Gray of Contin, L.

Stewartby, L.

Halsbury, E.

Stockton, E.

Harding of Petherton, L.

Stodart of Leaston, L.

Harlech, L.

Strange, B.

Harmar-Nicholls, L.

Strathcarron, L.

Hemphill, L.

Strathclyde, L. [Teller.]

Henley, L.

Thomas of Gwydir, L.

Hesketh,L.

Tollemache, L.

Hogg, B.

Trumpington, B.

Holderness, L.

Vivian, L.

HolmPatrick, L.

Wade of Chorlton, L.

Hylton-Foster, B.

Wakeham, L

Jeffreys, L.

Wharton, B.

Kimball, L.

Whitelaw, V.

Kingsland, L.

Wilcox, B.

Kinloss, Ly.

Wise, L.

Kinnoull, E.

Wynford, L.

Knutsford, V.

Young, B.

NOT-CONTENTS

Acton, L.

Clinton-Davis, L.

Addington, L.

Cocks of Hartcliffe, L.

Avebury, L.

David, B.

Barnett, L.

Dean of Beswick, L.

Beaumont of Whitley, L.

Dean of Thornton-le-Fylde, B.

Birk, B.

Donaldson of Kingsbridge, L.

Borrie, L.

Dormand of Easington, L.

Bristol, Bp.

Dubs, L.

Carmichael of Kelvingrove, L.

Ewing of Kirkford, L.

Chester, Bp.

Falkland, V.

Chichester, E.

Farrington of Ribbleton, B.

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Fisher of Rednal, B.

Merlyn-Rees, L.

Freyberg, L.

Meston, L.

Gallacher, L.

Milner of Leeds, L.

Gladwin of Clee, L.

Murray of Epping Forest, L.

Graham of Edmonton, L. [Teller]

Nicol, B.

Gregson, L.

Rea, L.

Grey, E.

Redesdale, L.

Hamwee, B.

Richard, L.

Harris of Greenwich, L.

Ripon, Bp.

Haskel, L.

Rochester, L.

Hayman, B.

Rodgers of Quarry Bank, L.

Henderson of Brompton, L.

Runcie, L.

Russell, E

Hilton of Eggardon, B.

Seear, B. [Teller.]

Hollis of Heigham, B.

Sefton of Garston, L.

Hooson, L.

Serota, B.

Howell, L.

Sewel, L.

Howie of Troon, L.

Shepherd, L.

Hylton, L.

Stoddart of Swindon, L.

Jenkins of Hillhead, L.

Taylor of Gryfe, L.

Jenkins of Putney, L.

Thomson of Monifieth, L.

Judd, L.

Thurlow, L.

Kilbracken, L.

Tope, L.

Kirkhill, L.

Wallace of Saltaire, L.

Lincoln, Bp.

Warnock, B.

Lockwood, B.

Wedderburn of Charlton, L.

McIntosh of Haringey, L.

Whaddon, L.

Mackie of Benshie, L.

White, B.

Mallalieu, B.

Williams of Crosby, B.

Mayhew, L.

Winston, L.

*[See col. 1558]
Resolved in the affirmative, and Clause I agreed to accordingly.
The Earl of Courtown: I beg to move that the House do now resume.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.

Habitual Residence Test
7.29 p.m.
Earl Russell Earl Russell rose to ask Her Majesty's Government, in the light of the report of the National Association of Citizens' Advice Bureaux, Failing the Test—CAB clients' experience of the habitual residence test in social security, what have been the results of any government monitoring of the effects of the habitual residence test.
The noble Earl said: My Lords, the Minister will remember, I think quite well, a debate we had on the habitual residence test which denies means-tested benefits to people believed not to be habitually resident in this country when the test was introduced. I am now offering the Minister a sporting chance for a return match.
On that occasion each of us had our assessment of what the test was likely to involve. The Minister will take it for granted that his was slightly more optimistic than mine. We now have a body of evidence available. I have the report from the National Association of Citizens' Advice Bureaux, Failing the Test. In that context I would like to say that I have found it by far the most reliable, non-partisan and helpful organisation that regularly briefs this House.
Doubtless, the Minister will have his own monitoring. As is well known, the Department of Social Security will always monitor any of the measures that it brings in. So I am asking the Minister to compare his monitoring with mine to see what happens. I now turn to some figures. Until the end of last year, 25,754 had failed the test and lost means-tested benefit. I understand that that figure can now be updated. There were over 5,000 British nationals in that figure and now, I understand, there are over 9,000.
The percentage of British nationals at the end of 1995 was 21 per cent. and rising. I do not know whether that figure is still rising. Anyone who has been in the Chamber this afternoon will appreciate that I am concerned about the rights of those who are not British nationals. But on this occasion I am going to dwell, first, on the rights of those who are British nationals because to be denied a claim to benefit in your own country when you have no other country to go to, seems to me to be peculiarly wrong. I also believe that it illustrates some of the poor logic in the test.
The Minister himself said on 20th October 1994 that those who were affected, even if they were British nationals, would be, "strangers to this country". I believe that it has not turned out as he hoped. I quote first a case that he has heard me quote before; namely, the niece of our former Leader on these Benches, my late friend Lord Byers. She had gone to Brussels to nurse a sick mother. We all know about the problems of carers, but I believe that it compounds them infinitely if they come home, their caring concluded, and find that they are denied benefit in their own country. Under the new law she is now entitled to benefit in France, but she is not entitled to it in this country and she is North Oxford born and bred. Believe me, I can recognise North Oxford when I meet it! That seems to me to be a little cock-eyed.
Another person with whom I have been in contact—again, not in the citizens' advice bureau sample—had been engaged teaching in France for a number of years. The venture folded and he returned home. He was found not to be habitually resident. So far from the family being strangers to this country, I knew, although he did not, that in the reign of Henry VIII his ancestors had been the biggest taxpayers in England. So much for "strangers to this country"! There are plenty more such cases in the report. I hope the Minister will forgive me if I am a little confused in sorting my papers because, as he knows, I have been otherwise occupied during the afternoon.
There is the case of a man aged 47 who worked in Britain all his life. He went to France to help a friend run a holiday home. After five years the arrangement broke down. We know that that sort of thing happens in small businesses. He returned home and was held not to be habitually resident on the grounds that he had no fixed address and no job. Of course one does not when one returns from running a business abroad. So he was refused benefit. I simply do not see the logic or the sense in that decision.
The test is adversely affecting those who exercise their right to mobility of labour under EU law. There is the case of a scaffolder who spent six months working
1546
in Holland. Work in the construction business is short in this country at the moment. After six months he returned to this country and he was told that he was no longer habitually resident and benefit was refused. There is a carpenter in the building industry who lived and worked in the UK all his life. Because of the recession he was out of work. He was told that there was work available in Germany and he landed up with one of those employers who do not pay. After six weeks he gave it up and came back. He fell foul of the habitual residence test as well. He told the CAB that he was now very worried that if he applied for a building job in Europe again and then at some future point he needed benefit, he might be refused. So he drew the lesson, with apologies to Noel Coward, "Don't put your bike on the Shuttle, Mr. Tebbit".
I remind the Minister that this is not only an interference with people's rights under EU law; it is also a strain on the British Treasury. If people who would otherwise have gone abroad in Europe and worked there during a recession and are prevented from doing it, they remain in this country and they are a charge on the British benefit system. Perhaps for a second I may revert to this afternoon's Question. That seems to me to be the sort of secondary consequence which the Department of Social Security would be very wise to take into account if it genuinely wishes to save money because here, I believe, it is wasted.
A good many people are affected if they return home because of misfortune. For example, a woman went to live in South Africa when she got married and, after a number of years, the marriage broke up. Those of us who sat through the Family Law Bill know that that happens. She came home. She was entitled to a pension of £25 a year because that was under the contributory principle which is not affected. She was not entitled to any top-up from income support. The Minister himself said that people who are British and who were affected, would be strangers to pay-as-you-earn and to tax and national insurance.
I offer the Minister an alternative to eating his words because they are very indigestible. I offer him the alternative of introducing a change in the law that those who are entitled to benefit under the contributory principle shall be found to be habitually resident. I cannot see any inequity in that; it is perfectly possible to do.
There is also a great deal of hardship for anyone who marries abroad. A woman in Spain was the victim of domestic violence. She tried to come home, but could not get benefit. An 18 year-old on a summer contract in Greece, believe it or not, who was injured in a car accident, was flown home and found not to be habitually resident and he was denied any benefit. That might happen to any of your Lordships' grandchildren. It is rather extraordinary. So, first, one does not work abroad; secondly, one does not marry abroad.
The test has worked peculiarly harshly on British people taken abroad while they were children. Before the Minister waxes too clever about that, I warn him that that is my own case. I am prepared to take offence at anything that casts doubt on my Britishness. There is

1547
the example of two British people living in Zambia who were born in Britain. One of them wanted to come back and join the British Army. He could not join by post because the Zambian post is not very good. He was found not to be habitually resident. Another example is that of parents working in the Gulf with children at boarding school in England. When they came of age they were found not to be habitually resident. I am surprised that the oil companies have not protested at that.
I now turn to people who are found in effect to be stateless. A British subject living in Nigeria wanted to be a doctor. She duly qualified, but could not do that in Nigeria because she was foreign. She could not come to look for a job in Britain because she was not habitually resident. Those people really are shunted from pillar to post. That causes considerable hardship and puts yet another burden on local authorities under Section 17 of the Children Act. With all that we have heard today about what is happening with regard to asylum seekers, it seems grossly unfair to put further burdens on local authorities.
During the county council elections of 1993, when the results came through I am afraid that I murmured the old anarchists' slogan, "If voting changed anything, they'd abolish it". I am afraid that I was not mistaken. We find the case of a couple living for a whole week on six pints of milk and one loaf. If that is not gross hardship, I do not know what is. We find the case of a woman who had been living on bread rolls from the Salvation Army, who fainted in the CAB office as she tried to explain her case. I cannot see any useful principle that justifies inflicting that sort of hardship on people who have done absolutely nothing wrong—and I entirely agree with the Government that under EU law they cannot, and should not, discriminate between British nationals and others, which is why I think that they should not do it at all.
The Minister also gave us some assurances on the case law. He said—I regret that I do not have his words to hand, but they are buried somewhere beneath this mountain of evidence—that the Government were not using the test that the House of Commons discussed in 1986—that is, the test of being settled here. He said that they were using something a great deal less onerous. However, as a result of a ruling by Commissioner Howell in 1995, the ground of case law has become something very like what the Minister assured us it was not. Claimants now have to be settled here for a considerable period of time.
As the Minister admitted when we last discussed this, habitual residence is a very vague concept. One set of cases in EU employment law tends to gravitate towards the last place of employment. Another is based on citizenship. That is the line that led to what had previously been thought to be standard precedent. I refer to the case in the House of Lords of ex parte Shah, in which my noble friend Lord Lester of Herne Hill was the successful advocate. In that case the noble and learned Lord, Lord Scarman, made it perfectly plain that a settled period of residence was not necessary; it was a test of intention.
In my view, there is the plainest possible conflict between Commissioner Howell's ruling on the one hand and the judgment of the noble and learned Lord, Lord Scarman, on the other. The noble and learned Lord's judgment is in line with the assurances that the Minister gave us in October 1994. It is also the higher judicial authority. For both those reasons, I suggest that the Department of Social Security should follow that judgment rather than the ruling of Commissioner Howell—that is, if we must have the test at all. Indeed, in the view of these Benches, the test serves no useful purpose. It does not even do very much to achieve the objective which the Government set for it. Like so many things that we have been discussing, it says, "If any are guilty, sweep up the innocent with them", along the lines of Sherlock Holmes' Inspector Athelney Jones, who arrested everyone in the house to make sure that he had got the right person.
If we were in a position to do so, we on these Benches would repeal the test. I hope that the Government, when they ultimately go before the electorate, will tell the people that they will do likewise.
7.44 p.m.
Baroness Hollis of Heigham: My Lords, I am grateful to the noble Earl, Lord Russell, for tabling this Unstarred Question. It is important that we are reminded that the issue of refusing benefit is not a matter of concern only to those who are asylum seekers; there is also the problem of the habitual residence test. Like the noble Earl, I shall draw extensively on the important CAB document, Failing the Test.
The habitual residence test was devised at an exceedingly unpleasant Tory Party Conference to give the Secretary of State a two-minute ovation and a three-minute soundbite. He succeeded in both of those, but failed entirely to consider the effects of what he was proposing.
As we all know, social security benefits come in two packages: insurance-based benefits and means-tested benefits. Insurance-based benefits, such as unemployment benefit, are earned through work and are therefore portable abroad. Means-tested benefits, which test destitution, are not. I accept that those benefits are problematic and they are the benefits that are affected by the habitual residence test. The Government claimed that what they were seeking to do at that Tory Party Conference was to exclude from means-tested benefits those EU nationals, mainly Spaniards advertising in Time Out, who, according to Mr. Lilley, were coming to Britain as tourists for the good life and British social security. The Secretary of State could thus portray himself as simultaneously anti-fraud and anti-European. I wonder whether the Tory Party Conference would have been quite so jubilant if those present had realised just how many other people would be hit by those provisions.
No one—and certainly not these Benches—defends fraud. I do not doubt that when he replies the Minister will quote the figures used last night in the other place by Mr. Evans to show that British nationals are affected less by the provisions than, say, European nationals.

1549
Nonetheless, as the noble Earl said, three groups of people are affected by the habitual residence test: EU nationals, British citizens and what the CAB calls "others".
I turn first to the EU nationals, the group that Mr. Lilley was aiming to hit. Only about half of those who have come through the system have lost their benefit. Why?—because if they are in work or have worked, they are entitled to unemployment benefit on a reciprocal basis; and if they are not in work, they should not have been admitted unless they could show sufficient resources for self-support. When the JSA test is introduced in October, it will apply a tough, actively-seeking-work test for British and EC nationals alike. In so far as there are any additional problems—I accept that there are some—surely the statesmanlike response is to negotiate appropriate reciprocal arrangements and not play the chauvinistic chorus at the Tory Party Conference.
So, the test is not particularly reaching the targeted group, as Mr. Lilley promised at that Tory Party Conference; instead the provisions have reached two other groups who were not originally targeted and about which Mr. Lilley was extremely quiet at that conference. As the noble Earl rightly said, the second of those groups comprises British citizens. Nearly one person in three denied benefit under the habitual residence test is a British citizen whose home country this is. According to the figures that were given last night, that group numbers 9,000.
Perhaps I may give an example from the Independent of 14th February 1996. I refer to the case of Mr. Hugh Sweeney, 39, a sheet-metal worker who, given his trade, was unable to find work in the UK and moved to Australia two-and-a-half years ago looking for work, while continuing to keep his home in Newport Pagnell, on which he paid mortgage, council tax, insurance and water rates. He had a neck injury and came back from Australia. His wife was not very happy there and she came home as well. They have used up all their savings and are living on handouts from his 70 year-old mother-in-law and his brother. He was told that, although he had kept his home here and paid taxes on it and although he is a British citizen, this is not his habitual residence. He is now penniless and has no access to income support.
What about the missionary doctor, returning home after 10 years abroad? As the noble Earl said, what about British building workers? Given the state of our construction industry today, most construction work is to be found on the Continent. The noble Earl referred to the scaffolding worker who went to work in Holland for six months. Building workers often go to Germany for, say, 12 months, doing what the noble Lord, Lord Tebbit, would recommend. On returning home to their permanent address—the very address here that they left—they find that they are ineligible for all benefits.
What about British women who marry foreign or EU nationals and whose marriages break down? They return home to find that they are ineligible for benefit. What about the young woman of Pakistani origin who at 17 went to Pakistan for an arranged marriage and
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returned home, pregnant within eight months to find that she had lost her habitual residence qualification? She had no money and was supported by parents who were themselves on income support. When she gave birth to her baby five months later, it was found to be seriously and worryingly under weight because of the mother's malnutrition. What about the British citizen, originally from Nigeria, who had worked for the National Health Service since 1965, and who was refused benefit to top up a retirement pension after a three-month visit, following retirement, to Nigeria to see former members of the extended family? As the CAB has said, under the habitual residence rule there are two classes of British citizen: a first class, who firmly hug our shores, and a second class, who may seek temporary work abroad and are rewarded for their initiative in coming off benefit by being denied benefit when they return home.
It is even worse than that. I believe that British citizens who return home after working abroad for six or 12 months are in a worse position that EU nationals. If an EU national has worked in Britain for just 12 months and lived in the UK for three years, he or she can travel abroad for six months and keep his benefit. But if he is British and has lived and worked in this country for 30 years and then goes abroad, not for 12 but for three months, he can lose his entire benefit. What is he supposed to do? Where is he to go? On what is he supposed to live? Who is supposed to take him in? Would the Tory Party conference have cheered quite so enthusiastically if Mr. Lilley had said that these were the people that his proposals would hit? One may be talking of one's son or daughter. The noble Earl quoted the niece of Lord Byers. It appears that a measure designed to stop European benefit holidays has given EU nationals a more privileged status vis-à-vis means-tested benefits than British citizens.
I come finally to the "others" category, which interlocks with the immigration and asylum-seeking rules. Few foreign nationals are eligible for means-tested benefits unless they have been admitted by the immigration authorities and settled or they are deemed asylum seekers at the port of entry. People who are legally settled here, after a visit abroad, find on their return that they have lost their benefit. They may travel to see relatives. For example, a Nigerian man, who had lived in Britain for 20 years and recently become unemployed, travelled to Nigeria for two and a half months to attend to his sick father. On his return he was refused benefit on the ground that he was not habitually resident. I refer to a lone parent who was officially recognised as settled in Britain. She went abroad after 11 years in this country to attempt to negotiate the release of her husband from a Middle East country of origin where he was detained. She had a child at school here and was a school governor. She was refused benefit on her return on the basis that she was not habitually resident.
Mr. Lilley wrapped himself in a patriotic flag at the Tory Party conference. He was worried on behalf of British citizens and taxpayers. We, too, are worried about British citizens and taxpayers—that is, those who live and work and pay taxes in this country and who briefly leave this country—perhaps for six months or a

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year—to find work. On their return, perhaps after a marriage breakdown, they find that they have lost all their rights to means-tested benefits. Is our citizenship so fragile or tenuous that it is broken by working for six months as a scaffolder in Holland, by a visit to Pakistan for eight months, or a visit to Nigeria for two months? As for European nationals whom Mr. Lilley was so anxious to exclude, they continue to come and be housed and to claim benefit because that is required under European law.
7.55 p.m.
Lord Mackay of Ardbrecknish: My Lords, at least one matter has been made clear by this short debate. Both parties opposite wish to abolish the habitual residence test and go back to the position before when people could come to this country and immediately claim income-related benefits at a cost to the British taxpayer currently estimated to be £30 million.
Baroness Hollis of Heigham: My Lords, if I may correct the noble Lord, I did not say that we would or would not abolish it. That question did not arise in my speech. However, we shall certainly review it to overcome the difficulties that have been highlighted.
Lord Mackay of Ardbrecknish: My Lords, "review" seems to be the favourite word. I do not know whether I conclude from that that the noble Baroness says on behalf of the party opposite that it may not abolish it but keep it. Having listened to her words, I would not be drawn to that conclusion.
Earl Russell: My Lords, I should like to ask the Minister, in answering a question from the Liberal Democrat Benches not to use the expression "the party opposite".
Lord Mackay of Ardbrecknish: My Lords, I take the reprimand from the noble Earl. I believe that his party is clear on this issue, as is it on the general question of increasing taxation. It stands fairly honestly on the issue, if I may so describe it. The noble Earl clearly wishes to abolish the habitual residence test and accepts that it is an obligation on the British taxpayer to pay the £30 million that I have mentioned. I hope that I am not being unkind to the position of the noble Earl.
Earl Russell: My Lords, since the Minister has introduced the issue of cost, I should like to ask whether he has costed the charge to the British benefits system of people who refrain from using their right to go abroad and work in the EU.
Lord Mackay of Ardbrecknish: My Lords, that is a bit like the question that the noble Earl posed to the House—
Baroness Hollis of Heigham: Exactly!
Lord Mackay of Ardbrecknish: My Lords, I do not know how the noble Baroness can say that from a sedentary position when she has not heard my response. A little patience may be required. If she knows what
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I am about to say, she may intervene and tell your Lordships. I was about to remind your Lordships and the noble Earl of the question that the noble Earl posed last week on the first day of the Committee stage of this Bill. He said that it was a question that he had posed to his father who had been greatly worried by it. As the light from the sun takes seven minutes to get to the earth, how do we know that the sun has not exploded six minutes ago? The question that the noble Earl has just posed is perhaps in that category.
This is an important debate which is about the habitual residence test that applies to income support, housing benefit and council tax benefit schemes. It is concerned with the question whether people who come to this country from abroad, whether they are European Union nationals or British citizens returning from residence abroad, have an immediate right to turn up at the local benefit agency office and say, "Please, kind British taxpayer, will you give us income-related benefits?" We decided that this was a loophole in the system that ought to be closed. In my last speech to your Lordships on this subject, I gave examples of how, certainly in European terms, people were abusing the system. The ways in which it was being abused were given fairly reasonable coverage in Time Out and a Spanish newspaper. People had been advised that Britain was a pretty soft touch so far as concerned what my right honourable friend the Secretary of State, Peter Lilley, called benefit tourism.
This debate has been brought about by the report from the citizen advice bureaux on the subject. I am afraid that we cannot accept any of the recommendations of that report. I should like to explain some of the points that I believe defend our position and make the position of the CAB and that of both parties opposite indefensible, at least concerning the British taxpayer. Until the test was introduced in August 1994, nationals of other European economic area countries could come to this country to look for work and claim income support, housing benefit and council tax benefit for up to six months. At the time we estimated that some 5,000 European economic area nationals did exactly that.
There was considerable anxiety about that state of affairs. Ministerial postbags, stories in the newspapers, and articles in foreign newspapers, indicated that the position was being abused, as I have already said. Investigations revealed that Britons going to another EEA country did not have the same freedom of access to the benefits which are available there. There was, in fact, a one-way traffic which put British taxpayers at a disadvantage.
The noble Baroness, the noble Earl, and the CAB suggested that we should try to persuade our European partners that we should renegotiate the agreement that we have with them so that their systems come more into line with what ours used to be, and allow our nationals to go abroad and immediately to be able to receive income-related benefits in the countries of our European partners. The UK system is not comparable with the social assistance schemes of most of our European partners. We have a legal rights-based system founded on a national scheme. Most of our European partners

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run a much more discretionary scheme which is much more locally based. In the countries of most of our European partners, residence permits are required. It is those residence permits which exclude UK nationals from their benefits. The habitual residence test reciprocates the residence permits required in those countries. I doubt whether any progress can be made in that regard.
Most of our European friends would tell us, as they do on so many other things, that we should put our own house in order rather than ask them to make changes. In this case, we have put our own house in order. We have put ourselves much more in line with the way these matters are dealt with in the EU. I should have thought that the parties opposite might welcome that piece of European integration on social security.
We decided that we had to take action. How we took action is of course through the habitual residence test, for the reasons that I mentioned. A person is entitled to income support if he satisfies the conditions of that entitlement. Income support followed the history and methods of supplementary benefit introduced by the Labour Government back in 1966. That legal entitlement, as I said, contrasts with similar benefits in other European countries. We could not go down the same line as them without a dramatic change to the basis upon which we pay out social security to all our citizens. Our solution had to be consistent with Article 6 of the Treaty of Rome which prevents discrimination on the grounds of nationality. That is how we came to the habitual residence test. That is why it has to be a test for everyone and not just for the citizens of our fellow European countries. It is a test which has to be applied also to returning citizens of the UK. I made that point firmly last time we debated the subject: if it were not for that European dimension, we could probably find a way of preventing Europeans from coming here and keep the door open, so to speak, for any British citizen, no matter how tenuous their links with this country, to come here and receive benefit immediately. We could not design a system which did that, because that would be in breach of Article 6 of the Treaty of Rome, which is why the habitual residence test touches both.
Baroness Hollis of Heigham: My Lords, would the Minister care to confirm that at the Tory Party conference Mr. Peter Lilley did not mention that the scaffolder, the building worker, or the missionary doctor—British citizens—would be denied benefit; and that that would be the implication of the habitual residence test?
Lord Mackay of Ardbrecknish: My Lords, I shall come to the issue of British citizens affected by the test in a moment. As I recall the speech, my right honourable friend was turning his attention to the problem coming from the Continent. I know that the noble Baroness is a fully paid up member of the European Union movement—those who support being in Europe—as I do. We have to pay regard to the articles of the treaty and ensure that we obey them, and treat citizens of our fellow EU member states in the same way as we treat our own.
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As I have said previously, I accept that the noble Earl does not believe that we should have attempted to address the problem. He believes that we should not have tried to introduce the test; but we did so. That is why some British citizens are caught by the test.
Earl Russell: My Lords, if I may be permitted a clarification, I did not say we should address it at all. I said in October 1994—and I say again—that we should address it through the availability for work and seeking work rules. That seems to me to be properly attuned to the individual case in the way that this blunt instrument is not.
Lord Mackay of Ardbrecknish: My Lords, I understand the point that the noble Earl is making. I am glad to hear that he approves of the test that we are going to apply in JSA to actively seeking work, and so on. But of course those tests, where they deprive someone of benefit, do so for a short time only. It is not the same as the situation at which we are looking, where people come from abroad and expect to be given benefits for 13 weeks in the case of someone from Europe, and 26 weeks in the case of a British citizen coming from outside Europe.
The position about the tests is that in European terms many more people were, so to speak, caught by the test than we first thought. There are more people coming from the Continent to this country and claiming benefit. Of the people who come from other states of the EEA and take the test, some 50 per cent. pass and some 50 per cent. fail (some 14,000 each of the 28,000 who have taken the test). In the case of UK nationals, the figures are much more favourable regarding passing the test. Of the 105,000 who have taken the test, 91 per cent. passed; and 9,700 failed.
A great deal has been made about the people who failed. Perhaps I might say a few words about them; but let us remember that over 90 per cent. passed the test. The test, I believe, is fair. A reading of Commissioner Howell's view, which was referred to by the noble Earl, gives a reasoned view of the test and gives in a clear way the parameters that we should apply. I appreciate that the noble Earl disagrees with Commissioner Howell. He took into account the Shah case. In paragraph 22 he refers to it in particular. He refers to it elsewhere, also. He said:
"In my judgment this factual approach to the meaning of habitual residence is not in any way inconsistent with anything said by Lord Scarman in Shah's case".
I believe that Commissioner Howell did take into account Shah's case. The test of course does not discriminate on grounds of nationality. It enables British citizens who have established habitual residence in this country to have short absences abroad without terminating their habitual residence and losing benefit. Commissioner Howell's judgment makes clear the parameters that adjudicators should take into account.
Some anecdotal evidence of cases has been given. We could swap cases across the Floor of the House; but I shall take the first lady quoted by the noble Earl. I do not want to get into the detail of people's circumstances, because, as your Lordships know, one of the difficulties that Ministers in the Department of Social Security have

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is that they have an obligation of confidence to those people who make application. It is pretty common knowledge, and is reported, that the person to whom the noble Earl referred lived in Belgium for 10 years. I believe that it is reasonable to suggest that her home was, and she intended her home to be, in Belgium. She was not, by any common person's definition of the words, habitually resident in the UK.
Earl Russell: My Lords, is it not a common experience that caring for an elderly parent may be a long-term operation but it is not normally a life sentence?
Lord Mackay of Ardbrecknish: My Lords, I believe that there is a little more to it than that, but I do not wish to go into the case because it is confidential. However, for whatever reason, the lady lived for 10 years in Belgium. That is a long time by anyone's definition of where one is habitually resident. I do not believe that she could be described as being habitually resident in the United Kingdom.
Perhaps we may take the case of the 63 year-old Scotsman and his German-born wife who have lived in Germany for the past 22 years. They returned on holiday to see the husband's mother and to assess whether to come here to retire. By no stretch of the imagination could they be described as habitually resident in the UK. There is the case of the 22 year-old woman now living in Turkey, having married a Turkish citizen three years ago. She returned to the UK to take advantage of the National Health Service because she was pregnant, and would be returning to Turkey. There is no justification for her asking the British taxpayer to keep her while she is here. A woman aged 17 was given a one-way ticket to the UK by her parents. She was born and brought up in Nigeria, had not worked here and had made no arrangement as to what she would do when she arrived.
A 26 year-old woman lived in Pakistan for the first 11 years of her life and came to the UK for eight years in 1987. She returned to Pakistan to get married, spent one month in the UK in 1992 and returned with two small children in June 1994. She hopes that her husband will be able to join her when he gets a visa. I do not believe that that person can be described by the ordinary use of English words as habitually resident in the United Kingdom.
A woman aged 28 was born in London and taken to Nigeria by her parents when she was eight. She was educated in that country, worked there, was married and came to the UK on 19th August with her eight month-old child. On 23rd August she claimed income support as a lone parent separated from her husband who had remained in Nigeria. There is no way she can be described as being habitually resident in this country.
Those are all UK citizens and the kind of people whom the noble Earl is honest enough to say, having come into the United Kingdom—there is no dispute that they are allowed into the United Kingdom—he would allow them to turn up at the benefits agency and ask, "Please may we have money from the British taxpayers?". They are British citizens who failed the
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test; and of course on the borderline of any test there will be difficult cases. The appeal system exists to try to resolve such cases. Decisions such as that by Commissioner Howell help the adjudicator to decide and the appeal system to resolve the matter.
The fact is that as regards a few people on that borderline who perhaps could argue one way or another, 90 per cent. clearly passed the test and were habitually resident in this country. They are given the benefits that they seek. Only 9 per cent. failed the test. That in no way downgrades British citizenship or is unfair to people who really do have a close link with this country. A few of the examples that I have given suggest that they do not have a close relationship. Of course they can come here and as British citizens they have a right of abode here, but I do not believe that that necessarily gives them the right immediately to be supported by United Kingdom taxpayers.
I have instanced the cases of a few people who were born here perhaps a long time ago, brought up in another country and left the UK many years ago for a new life. For a variety of reasons they wish to return here now. The Government have no objection to them returning; they have every right to do so. However, to suggest that they have an immediate right to social security is quite another step and we believe that a line must be drawn. Of course it is unfortunate that some people decide to return here and are penniless. They should have given that some thought before they left the country in which they lived and in many cases worked, in which they were married and in which they had children. They should not decide, "Well, if we go back to dear old Britain they won't bother. There taxpayers will pay us whatever we are due from the social security system, regardless of whether we have many links of the habitual residence kind with the United Kingdom".
That test is the first test of residence in the income-related benefit schemes for at least 50 years. Of course it was a radical decision to start the test and there have been and are bound to be teething troubles. We recognise that that is the case. We have trained the officials who deal with the cases and we shall gain experience with the passage of time. We recognise that there was not case law which specifically addressed the habitual residence test in relation to income support, although comprehensive guidance was provided. The Social Security Commissioner dealt with the case of a British citizen late last year. Commissioner Howell's decision identifies a number of points which have been in dispute. Some half-a-dozen cases will come before the commissioner in the next few months which will further clarify the interpretation and operation of the test. We recognise that there have been delays in the appeal procedure, but these delays have been reducing and appeals take, on average, 21 weeks to be heard. Obviously, some are heard more quickly than others, but that is no different from United Kingdom citizens totally resident in this country who are also appealing against social security decisions—
Baroness Hollis of Heigham: My Lords, I realise that the Minister has been generous in giving way as often as he has. But how comfortable is he with the fact

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that as regards the appeals ratio the appeals are heavily in favour of those who claim and that a number of those who are winning their appeals are British citizens? What on earth are they supposed to live on during the 21 weeks when the appeal is heard?
Lord Mackay of Ardbrecknish: My Lords, we have dealt with the question previously as regards asylum seekers. They are in no different a position from United Kingdom citizens who have never been further than this country, have paid their taxes and so forth and have decided to appeal against a decision not to give them benefit. They do not receive benefit while they are appealing. I cannot believe that it would be right to say that people whose residence here is doubtful as regards claiming the benefit ought to be given the benefit while they appeal, while United Kingdom citizens who have stayed here and about whose habitual residence there is no doubt should be denied benefit while they appeal. I find the position that we are taking perfectly and absolutely logical.
If the noble Baroness is suggesting that the party opposite will change that system and allow people to receive benefit while they appeal, that is fine. That is at least one commitment that has not been reviewed and that is definite in the social security system which the party opposite would like to see in place. But I have to tell the noble Baroness that she may find it expensive.
Earl Russell: My Lords, I beg the Minister's pardon. He again referred to "the" party opposite. That is inaccurate.
Lord Mackay of Ardbrecknish: My Lords, I apologise again to the noble Earl. I must try to remember that there are two parties opposite. If it in any way helps the noble Earl and defends myself, perhaps I may say that sometimes when I look at his party I see a clearer view of its policy on taxes and spending than I see when I look at the party directly opposite me. It is pretty hedgy about whether it will increase spending. In fact, only the other day Mr. Gordon Brown stated clearly, as seen in a newspaper headline:
"Labour may freeze public spending at present levels".
Obviously, that includes the saving of £30 million we are making from the habitual residence test. I am not surprised that the noble Baroness is thinking about reviewing the test; that makes no commitment to increase public spending by the £30 million we have saved.
In conclusion, I believe that there was an abuse. There can be no argument about that. There certainly was an abuse of our social security system. We had to act to combat that abuse. Our action had to be within European law. That is why we introduced the habitual residence test. We believed that it was the best solution. It quite clearly enables the great majority of British citizens to continue to receive benefit even when they have been out of the country for a while. We believe that those people who are not habitually resident should not be supported by the British taxpayer. That includes those who are pursuing an appeal.
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In short, we were faced with a problem. It may not have been the biggest problem in social security history but, as I have explained to your Lordships before in that old Scottish phrase, many a mieckle makes a muckle, and £30 million is a fairly substantial "mieckle" (which is a little bit). All those little bits add up to a great deal of money in relation to social security and one must look at them all.
We believed that this was a problem which had to be tackled. We tackled it. Of course, it is always easy to decline to tackle difficult problems and to allow taxpayers' money to be spent even when you feel that there is no justification for it. We have not taken that route. We have tackled that difficult problem. I believe that we have tackled it sensibly and sensitively. As the system evolves and the decisions of the commissioners and so on come clearer into case law, even the CAB may see that the system defends the rights of taxpayers who are also citizens of this country and may also have something to do with the CAB. It defends their position from those people who have no justifiable right to receive benefits from the said British taxpayer.
Lord Lucas: My Lords, I beg to move that the House do now adjourn during pleasure until half-past eight.
Moved accordingly, and, on Question, Motion agreed to.
[The Sitting was suspended from 8.21 to 8.30 p.m.]

Asylum and Immigration Bill
House again in Committee.
The Deputy Chairman of Committees (Lord McColl of Dulwich): Before I call Clause 2, I should inform Members of the Committee that in Division No. 2 the number of noble Lords who voted "Content" was 134 and not 133 as announced.*
*[see col. 1544]
Clause 2 [Removal etc. of asylum claimants to safe third countries]:
The Lord Bishop of Ripon The Lord Bishop of Ripon moved Amendment No. 31:
Page 2, line 34, at beginning insert—
("(A1) Nothing in this section shall be construed as applying to—

(a) a person who can show a reasonable claim that he has been the victim of torture in a country in which he is claiming to fear persecution; or

(b) a person who is claiming to fear persecution in a country which has a recently documented record of torture.").

The right reverend Prelate said: This is the first of the amendments relating to Clause 2. Its wording is identical to an amendment which was accepted in Committee last week. However, I believe that it is worth spending a moment looking at the implications of the amendment for Clauses 2 and 3. The combination of those two clauses effectively, in my view, removes the right of appeal against removal in certain cases. Therefore, it is a damaging provision for asylum seekers.
Under Clause 2, certain categories of asylum seeker can be removed to a safe country, which we know now is to be limited to countries in the European Union, and Clause 3 limits their right of appeal to one which is to be made from outside this country. It is clearly the case that on occasions those countries which are claimed to be safe have not proved to be so. Indeed, various examples can be given of countries such as Italy and Belgium, which have, in certain circumstances, returned asylum seekers when it was thought that they would be secure.
It is clear that the combination of those two clauses makes it possible that asylum seekers will effectively be removed beyond the safe third country before they have had the opportunity to exercise their right of appeal. In those circumstances, it seems right that we should consider the implication of this for those who come under the terms of the amendment. I do not propose to repeat the debate which took place last week, but it was made clear then that there was considerable feeling in the Committee over the matter regarding those who had either been victims of torture or who claim,
"to fear persecution in a country which has a recently documented record of torture".
It would be helpful to know what is the Government's intention in relation to Clauses 2 and 3 and with regard to the amendment. In the light of last week's Committee decision, do the Government regard it as right that the provisions of that amendment should in fact be taken to refer to Clauses 2 and 3, as well as to Clause 1? I should be most grateful if the Minister could make some comment in that respect. I beg to move.
Lord Dubs: I rise to express my support for the amendment. I seems to me that one of the key difficulties with Clause 2 is that there are insufficient safeguards against the asylum seeker who is removed to a safe third country being in turn removed to another country and then possibly to the danger that he faced when he originally fled. That is the crux of the safe third country argument. If we had sufficient safeguards it would not be such a critical issue. In the absence of such safeguards, we must have cause for concern. The amendment exemplifies precisely why there is so much cause for concern.
Members of the Committee agreed last week that we must pay particular regard to the victims of torture. It would seem to me to be the worst possible outcome if individuals who were liable to be sent back to face torture were removed from this country with no assurance that the immediate country to which they were removed would allow them to remain there. We have real difficulties in that respect.
The evidence of the Medical Foundation for the Care of Victims of Torture (which carries out such an excellent job in looking after those victims) has drawn attention to the fact that the hypothesis that I have developed is actually a very real one and that, at times, people are returned or are close to being returned to
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countries from which they will in turn be removed immediately to the country where they were threatened with, or possibly subjected to, torture.
Baroness Williams of Crosby: The view of the Committee with regard to the issue of victims of torture seems to me to have been very clearly reached on the first day of our proceedings. As the right reverend Prelate pointed out, the purpose of the amendment is to extend that safeguard to cover Clause 2. As the noble Lord, Lord Dubs, said, Clause 2 raises the whole issue of what is sometimes called "a safe third country". The United Kingdom Government is bound to comply with Article 33 of the UN convention on refugees, which states very plainly that no country on any grounds whatever may return an asylum seeker to another country without the certainty that he or she will be safe in that country.
The fear is that, even though the list of countries provided by the Government is limited to the European Union plus, as I understand it, other countries specifically designated by the Secretary of State, there are real concerns about what may arise in certain cases. Indeed, in some cases there are very close connections between third countries and others closely associated with them. That is particularly true of metropolitan countries and their former colonies, to which refugees or asylum seekers may be returned, subject to the rules on refoulement of the UN Convention, without the authorities having adequately satisfied themselves that those people will be safe in the country in question.
A kind of brutal "pass the parcel" is emerging among countries of the world in sending refugees to and fro among themselves. It is because we very much fear that process that we are trying to exempt those who are victims of torture from the provisions of Clause 2, as well as those in Clause 1. I am delighted to support the right reverend Prelate in his amendment.
Lord Runcie: I should like to add just a few words in support of the right reverend Prelate, not least because my name is attached to the amendment. It was not my intention to make a speech; indeed, I have not come here armed with one. In the light of the debate on the previous amendment of this character, I had assumed that the matter would also be settled as regards Clause 2. That was, perhaps, rather naïve of me.
What prompted me to respond to an invitation to back the amendment was simply my own experience in helping to set up the Medical Foundation for the Care of Victims of Torture, which has pioneered the identification, the treatment and, indeed, a greater awareness of the existence of torture. I should also like to express my admiration for the work of Helen Bamber and her associates during that period. It was at that time that I was able to spend some time at the foundation and saw for myself the victims of torture in Iraq, or the effects on the Kurds. I was most impressed by the expertise which had been built up there.
That led me to believe that the UK had established a reputation in drawing the attention of the international community to the existence of torture and the possibilities in the identification and treatment of

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torture. I was convinced that in any new Bill about asylum, the appalling phenomenon of torture in the present day should be established in the provisions, and that this country should even err on the side of generosity when it came to the consideration and treatment of people who came from countries where torture was a recognised practice. I therefore support the amendment.
Baroness Rawlings: We have debated the subject of torture already under Clause 1. Of course genuine victims of torture will be protected by the Bill. However, what worries me is that yet again the amendment is not about the victims who have been tortured and who seek asylum. Forgive me if I have misunderstood, but, as I understand it, the proposals are to allow asylum seekers into the country, not if they have been tortured themselves but merely if they come from a country where torture exists.
8.45 p.m.
Baroness Blatch: I believe that someone said from a sedentary position that the amendment does not say that. However, I believe that the second limb of it does say that. The noble Lord, Lord Dubs, was concerned about safeguards. I join him in that I too and the Government are concerned about safeguards. However, with a note of cynicism, I must say that it does not matter how I describe the safeguards and tell the Committee that they exist, some Members of the Committee will refuse to accept my word.
Amendment No. 31 is concerned with the minority of cases where we decide to remove an applicant to a safe third country. But before I speak to that amendment, I propose to add to what I said last week about cases which are considered substantively in the United Kingdom.
All sides of the Committee agree that torture is utterly repugnant. All agree that the aim of our asylum procedures must be to protect victims of torture. But it is clear from last week's debate that many of your Lordships remain unpersuaded on two key issues. First, that our procedures do in fact provide effective protection and would continue to do so under the Bill. That is not believed. Secondly, that most current asylum applicants are at least unfounded and at worst abusive; and that if we provide loopholes they will be exploited on a large scale. Let me begin by addressing those two key issues.
I address the safeguards first. Our objective is to ensure that victims of torture are identified. The Asylum Directorate takes account of all available evidence, in particular about the individual case, but also about whether there is a consistent pattern of serious human rights violations in the country of origin. Claims are considered against the 1951 convention criteria. That is to say, a well founded fear of persecution by reason of race, religion, nationality, membership of a particular social group or political opinion. There is no universally agreed definition of persecution and it may take many forms. But the Government have no doubt that torture is one of them and that a person with a well founded fear of torture will qualify for asylum under normal conditions.
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Victims of torture who have not been persecuted for a convention reason do not therefore qualify for asylum. But we are also bound by our obligations under other international instruments. Article 3 of the European Convention on Human Rights and Article 3 of the UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment both prohibit removal to a country where there are substantial grounds for believing that the applicant would be tortured. It has been suggested that because these instruments are not incorporated into UK law, they provide insufficient protection for victims of torture. I refute that. First, if an applicant engages our obligations under either the UN convention on torture or the European Convention on Human Rights, but not under the 1951 convention—for example, because the reason for the fear of torture is not one specified in the criteria for refugee status—exceptional leave will normally be granted. Secondly, individuals have an avenue of redress under the European Convention by taking their case to the European Commission and the European Court of Human Rights in Strasbourg.
One of the first elements in the induction training for asylum case workers is to raise awareness of the barriers genuine refugees may face in relating their experiences to officials. Additional training is given to those who will interview asylum applicants. Detailed guidance and training on assessing asylum claims, including the appropriate standard of proof to apply, also form an element of the induction programme. The United Nations High Commission for Refugees and other independent bodies contribute to the Asylum Directorate's training. At a meeting with officials on 3rd April the Medical Foundation for the Care of Victims of Torture has now also been invited to contribute to training. I join the noble Lord, Lord Runcie, who referred to the important work of the medical foundation.
Very great weight is attached to any medical evidence. If an applicant claims to have been tortured, the case worker will ask whether an examination has been carried out and request a copy of the report if it has not been submitted. Case workers also have access to the guidelines for the examination of survivors of torture which have been prepared by the medical foundation. We are considering some suggestions by the foundation for structuring the interview in such a way as to create an environment which encourages applicants even further to disclose fully the details of their claim; for example, through the greater use of open-ended questions. It is already our policy to seek to provide an interviewer of the same sex as the applicant in cases identified as sensitive.
Last week there were some misconceptions about the time allowed for consideration. The Bill does not affect the initial decision time. At present, the average decision time for a new claim is nine months, except in cases handled under the Home Office's short procedure, where cases are at present decided in three to six weeks.
The short procedure involves a shorter interval between application and interview, and between interview and decision. But interviews and decisions are accorded the same level of consideration and under the

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same standard of proof as other cases. The standard the applicant has to meet is a modest one—no more than a reasonable likelihood of persecution. None of that would be changed by the Bill. Any case which proves not to be straightforward can be taken out of the short procedure and considered at greater length. Requests for an extension in individual cases so that medical evidence can be prepared are very carefully considered. We have issued an instruction that the refusal of such a request by the medical foundation must not be taken at a lower level than senior executive officer. Medical evidence submitted after an initial refusal will be fully considered. If the refusal is maintained, reasons for doing so would normally be given in writing.
All evidence submitted after the Home Office decision is also considered by the adjudicator. It is open to an adjudicator to grant an adjournment to enable the applicant to produce further evidence, including of course evidence of torture, if he considers this necessary in the interests of justice. Again, neither the proposed new procedural rules nor the Bill itself will remove the possibility of adjournment where it is justified.
That is a summary of the safeguards which apply. We are not complacent and want the safeguards to be as effective as we can make them. That is why we asked officials to discuss them with the medical foundation.
But we also have to take into account the other side of this equation; namely, the widespread exploitation by abusive applicants. The Bill's opponents have so far had very little to say about that side of matters. Indeed, some have sought to pass off the problem of abuse of asylum procedures as a figment of the Government's imagination. That position is, however, untenable in the face of overwhelming evidence to the contrary. Last year only 5 per cent. of applicants were found to qualify for asylum and another 16 per cent. for exceptional leave to remain on compassionate grounds. That leaves 79 per cent. of claims which were refused. If the Home Office were refusing large numbers of genuine applicants, it would be losing large numbers of appeals. But the fact is that only 3 per cent. of appeals against refusal of asylum were upheld last year. Some of our critics, such as the Asylum Rights Campaign, have sought to counter this very telling statistic by attributing the appeal results to bias on the part of adjudicators. Words fail me. Such a claim is totally unfounded. Adjudicators are experienced members of the legal profession, appointed by my right honourable friend the Lord Chancellor, and are wholly independent of the Home Office.
That is why the Government opposed Amendment No. 3 last week. Applicants would be able to avoid having their appeal accelerated merely by claiming that they had been tortured, no matter how untruthfully, or by pointing to instances of brutality by members of their country's police or security forces, no matter how isolated or irrelevant to the applicant's individual circumstances.
However, the Government accept that the Committee has expressed a clear wish that we should acknowledge the special vulnerability of victims of torture, and should do so on the face of the Bill. We therefore intend to
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bring forward at Report a modified amendment to Clause 1. Broadly speaking, this would reflect the principle that there should be an exemption for victims of torture from the accelerated appeal procedure, but it would be expressed in a way which would avoid laying Clause 1 wide open to evasion by people who are not victims of torture.
I have indicated the extensive safeguards that apply to protect victims of torture. I shall now turn to Amendment No. 31, which is concerned with the minority of cases which we do not consider substantively, and where we decide instead to remove the applicant to a safe third country. These are almost always applicants who claim asylum after arriving here from one of our western European neighbours—in 80 per cent. of cases from France, Germany, Belgium or the Netherlands.
The Government take a very straightforward view of such cases. First, we consider that our immediate neighbours, all of whom are advanced democracies with developed legal systems and asylum procedures, are just as capable as we are of complying with their international obligations and protecting individual rights. This means that, if someone is a genuine refugee or victim of torture, he will be just as safe presenting his claim in Germany as he will be presenting it here. Secondly, like all European countries, we take the view that asylum seekers should look for refuge to the first safe country to which they come. If they arrive from a safe third country in which they could have claimed asylum, we reserve the right to return them. That is a long-standing principle which is, for example, already stated in the Immigration Rules. Indeed, it is embodied in the Dublin Convention, which Parliament endorsed in 1991.
The purpose of Clause 2 is to render the safe third country policy more effective by removing the delays inherent in an in-country right of appeal. But Amendment No. 31 would insert a very large loophole into Clause 2. The first part of the amendment says that the Secretary of State should be prevented from returning an asylum seeker to a safe third country if the applicant has shown a reasonable claim that he is a victim of torture. This would mean that, by including a torture claim in his application, the asylum seeker would be able to fend off removal. In order to form a view on whether the applicant had "shown a reasonable claim" of torture, the Secretary of State would be compelled to assess the asylum claim substantively. By the time he had done that, removal to the third country would probably no longer serve a useful purpose, and the third country would often no longer be prepared to take him back. The whole purpose of the safe third country policy is to enable applicants to be removed quickly without substantive consideration of the claim. For that reason alone, Amendment No. 31 could render Clause 2 ineffective and is therefore unacceptable to the Government.
The second leg of the amendment would prevent removal to a third country if the country of origin has a recently documented record of torture. That is a totally

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irrational proposition. If a third country is indeed safe, why should the conditions of the country of origin be regarded as an obstacle to removal? Moreover, there are very few countries where there are not from time to time allegations of misconduct by members of the police or security forces. But that is very different from saying that torture is systematic or widespread, or that a particular applicant would be at any risk of torture if he were returned to his country. This part of the amendment alone could very well be used by appellants to prevent the issue of a Clause 2 certificate in a high proportion of cases, without any basis in a substantial risk to the applicant.
Do the supporters of the amendment deny that it would render Clause 2 inoperable? Do they deny that it would establish a loophole which could be widely exploited? I have not heard a convincing response to these questions. The truth is that many of the Bill's critics reject the Bill's asylum provisions altogether and would not mind in the least if Amendments Nos. 3 and 31 rendered them ineffective.
Some have argued that it is inhumane to remove an applicant, even if it is only to one of our European neighbours, if he or she is suffering the traumatic effects of torture. Of course, we do not remove people if they are medically unfit to travel. If there are concerns on that score, the port medical officer is on hand. But the Government do not accept that anyone who claims to have been tortured should be exempt from removal. That would, as I said earlier, simply create too big a loophole. If they are genuine refugees and genuinely too traumatised to travel, they would have shortened their journey by claiming asylum before reaching the United Kingdom in the third safe country through which they travelled.
Amendment No. 31 is irrational, unjustifiable and would be very damaging to Clause 2. I urge the Committee to vote against it.
The Lord Bishop of Ripon: Before the Minister sits down, perhaps I may press her on one point. The noble Baroness said that the Government will bring forward an amendment at Report stage in order to ensure that the victims of torture are referred to on the face of the Bill. I am very glad to hear that. Is she willing to explore the possibility of that amendment being applied also to Clause 2?
I take the point that few people may come within the category of victims of torture likely to be removed in that way. In that case, the amendment would have little effect. However, in view of the widespread concern on the matter, will the noble Baroness state whether the government amendment will extend to Clause 2 as well as Clause 1?
Baroness Williams of Crosby: Before the noble Baroness responds, perhaps I may raise the possibility of the short procedure being extended to other countries. It was announced by the Home Office on, I think, 16th March of this year. Can the Minister
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tells us whether the safeguards which she told us applied to people who conceivably might be victims of torture would still apply if the short procedure were extended beyond the group of countries on the designated list?
Lord Avebury: Before the Minister finally replies, perhaps I may raise this point. If she is prepared to consider an amendment to Clause 2, will she differentiate between countries through which an asylum seeker has passed? As she described, the majority of these cases fall into the category whereby someone has entered Britain via a European Union state and might have claimed asylum on the way through. In other cases, the person arrives in this country as effectively the first country of asylum because any other territory through which he passed was not a safe country. The Government propose to send the individual to an allegedly safe country through which he has never passed. I realise that there are not many such cases. However, I asked the noble Baroness's honourable friend, Miss Widdecombe, whether there was any intention of applying the Dominica technique to other asylum seekers, apart from Dr. al-Mas'ari. She said that the Government would do so if the circumstances made that seem expedient. I wish to place a barrier on the removal of asylum seekers who may have been subject to torture to a third country which falls into that category.
I would prefer that the Government do not have the power to send individuals to allegedly third countries outside the European Union. But since we are now referring to these particular asylum seekers who have been subject to torture in their countries of origin, and since the right reverend Prelate has asked whether the Government are prepared to consider any amendment to Clause 2, it would be wholly within the spirit of the Government's objection that the vast majority of such people come through safe third countries if such an amendment applied only to third countries through which those individuals had not passed. I hope that the Government might take that point on board before Report stage.
Lord Hylton: Before the noble Baroness replies, perhaps I may, first, apologise that I was in Russia during the first day of the Committee stage. I apologise too that I was unable to listen to the right reverend Prelate the Bishop of. Ripon moving this important amendment.
Does the Minister accept that Turkey is a country with a recently documented record of torture? Will she also confirm that Turkey has experienced very nearly 12 years of very serious armed conflict, which has led to enormous displacement of population and extreme abuses of human rights? Does she agree that torture has to a considerable degree become institutionalised, and anybody detained by the security services in that country is at some risk of torture? Will she tell the Committee whether any abusive applications for asylum in this country have been received from people coming from Turkey?
9 p.m.
Lord Dubs: I shall make just a few comments in relation to the Minister's remarks before she replies. I am disappointed that she thinks some of us do not listen to the safeguards that the Government apply to—
Baroness Blatch: I said, "did not believe".
Lord Dubs: The Minister says that we do not believe the safeguards. We should have to discuss which ones they were. Certainly, where there are safeguards which protect an individual asylum seeker, I welcome them, as I am sure do other Members of the Committee.
If we do not believe all the safeguards, it may have nothing to do with the Minister's remarks. It may be because we have some experience of the Government's practice over the years as regards asylum seekers. There is sometimes a difference between the way asylum seekers are treated and the Government's statements as to what the policies are. That is where disbelief sets in. I do not cast any aspersions on what the Minister says. It is a matter of how the policy is implemented down the line. There are too many examples of how it has been implemented for some of us to sit back and say that everything is all right.
A second point made by the Minister to which I wish to draw attention was that there was a safeguard in the European Convention on Human Rights and the European Court of Human Rights. Although Britain has lost more immigration cases in the European Court of Human Rights than any other European country, possibly second to Italy—the Minister says that that is not so; but the fact is, we have lost a large number of immigration cases over the years. The problem is that it is a long process. Many asylum seekers may have been removed and returned to the country from which they fled. In those circumstances, fighting a case is very difficult.
Thirdly, none of us condones or supports abusive applicants. They undermine the concept of asylum, which is a fundamental human rights concept. It is easy for governments to say that applications are abusive even before there is any evidence of that. The Minister herself has certainly not said that. However, I must remind her that some of her colleagues over the years have, as it were, denied that asylum seekers had any basis for their claims even before those individual cases had been considered. There is extensive chapter and verse which I and many of my noble friends could quote to support that assertion.
I turn to the substance of the Minister's remarks. There is a real difficulty. She said that such cases are not considered substantively. The problem with removals to safe third countries is precisely that; namely, the Government on their own admission do not consider those cases substantively. I have serious doubts as to what that means in terms of the adequacy of their scrutiny. I fear that many are barely considered at all. The difficulty is that as a result of a case not being considered substantively, victims of torture may not be identified by officials. That is surely one of the main concerns in relation to Clause 2 and the way it operates.
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The Minister talked about the tradition of safe third countries and said that it was a long-standing principle. I beg to differ. It is a long-standing principle that individual asylum seekers who have spent a considerable period of time in a safe third country should be returned there. By "a considerable period of time" I mean weeks or months. That has been the practice for many, many years. I cannot remember the date when the Immigration Rules were changed; I believe the policy emanated from one of the secret committees in Brussels. However, what has happened in the past two or three years is that the Immigration Rules themselves incorporated a change, and certainly the practice then became that if an asylum seeker spent any period of time in a safe third country en route to Britain—I mean circumstances such as being in transit at an airport, or spending just two or three hours driving across part of that country—that is now the basis for applying the safe third country rule. That is what causes concern.
Nobody says that if an asylum seeker spends three months in France, he or she should then be accepted into our asylum procedures here. What I am saying, however, is that if somebody happens to spend half an hour in transit at Charles de Gaulle Airport, it seems against this principle that that individual should be sent back to France without any firm guarantee (as we shall cover in relation to a later amendment) that the individual will then be allowed to have his or her claim fully considered by the French authorities. It is the absence of that further safeguard that makes us concerned that the effect of these proposals is that victims of torture—and, as later amendments will show, other asylum seekers as well—may be sent back into danger. There is a loophole here which the Government's assurances have not dispelled.
Baroness Blatch: A very large number of questions have been raised. I shall try to address myself to all of them. First, I accept what the noble Lord, Lord Dubs, just said. I have never made the claim that he condones abuse of the system. However, if one looks at the amendments tabled to this Bill, many seek to make abuse of the system easier; and some not only make it easier but create even more loopholes which make it possible for abuse to be increased.
In regard to the other point made by the noble Lord, Lord Dubs, about simply landing in another safe country, travelling to another safe country, and then coming on to this country, we do not concede—nor indeed do our courts—the principle of seeking asylum in the first safe country on the assumption that the person fleeing for their lives or from a fear of persecution should seek haven in the first safe country that they come to. That is the principle on which the propositions in the Bill are made.
The safe third country principle has been repeatedly endorsed by our own courts. It applies when a person has had an opportunity to claim in a third country. The noble Lord, Lord Avebury, referred to Judge Pearl and the al-Mas'ari case. The judge held in the al-Mas'ari case that it is lawful to send an asylum seeker to a country with which he has no connection where

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appropriate. Of course, he took a different view about a particular country in that case, but the principle of sending persons to that country as a safe country was considered lawful.
The noble Lord, Lord Hylton, asked about Turkey. First, I made it clear in another part of the Bill—I believe on the first day of Committee—that Turkey is not a country that we were considering adding to the list, for some of the reasons given by the noble Lord. In 1995, 50 applicants were recognised as refugees; 35 were granted exceptional leave to remain; and 910 were refused. But I am not in a position to say on what basis those refusals were founded. Certainly there were 910 refusals.
Again, the noble Lord, Lord Dubs, referred to the ECHR. His point was absolutely taken about the length of time. But however long the process, we shall not remove a person until Strasbourg has made a determination and completed the work in considering that case.
Lord Dubs: I thank the Minister for giving way. I understand what she said. The difficulty is that under the safe third country rule individuals are removed very quickly. Getting a case en route to the European Court of Human Rights in Strasbourg takes a long time. It will be almost impossible for an asylum seeker to take advantage of that particular provision, given the speed with which people are removed.
Baroness Blatch: What is important is that the needs of the asylum seeker are properly catered for. If the asylum seeker is quickly removed—I believe that I have already made the point, and I hope very clearly, that we would not send someone who was medically unfit to travel—and was returned to a third safe country, exhausted the appeal system and wished to take his case to the European Court (and equally if someone was returned to this country), under our international obligations under the ECHR we would honour his right to petition and that person would not be removed while that took place.
In reply to the right reverend Prelate, for all the reasons that I have given—although I say, with a note of cynicism, that there seems to be a dogged determination not to believe what I say—I believe that we have spelt out sufficient safeguards and discussed in some detail how the system works under Clause 2. We do not envisage making an amendment to Clause 2.
I can give the noble Baroness, Lady Williams, an unequivocal yes. The same safeguards would apply to any safe third country added to the list. I have also made clear that the countries that we were considering possibly adding to the list were the United States, Canada and Switzerland. It would be difficult to argue that they were not safe third countries. I believe that I have answered all the outstanding questions asked of me.
The Lord Bishop of Ripon: Perhaps I could make two comments. First, in reply to the noble Baroness, Lady Rawlings, I thought that I understood her to say that the intention of the amendments was that those who
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came under these categories should be given a positive determination of their asylum status. I do not understand that to be their intention at all. It is simply that the safeguards should be thorough and in place. It is not that any decision is made about which way the final determination should go.
Let me echo what the noble Lord, Lord Dubs, said about abuse. It is quite clear that nobody condones abuse. We are all united in wanting to make sure that those who abuse the system are disposed of as quickly as possible. There is disagreement about who falls into that category. I understood the Minister to say that all those who neither received asylum status nor had an appeal allowed, nor were given exceptional leave to remain, were to be regarded as abusing the system. Many of us find that difficult to accept. We accept that there are some who abuse the system, but not the totality of those whose claims are refused.
I am disappointed that the Minister is not able to make any concession on Clause 2 in relation to the amendment. We shall reserve our position and consider what we shall do at Report. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 32 not moved.]
Lord Avebury Lord Avebury moved Amendment No. 33:
Page 2, line 42, leave out ("to which subsection (4) below applies,") and insert ("which is or forms part of a member State of the European Union, or is designated for the purposes of this paragraph in an order made by the Secretary of State,").
The noble Lord said: This is a drafting amendment to improve the readability of the Bill. It does not alter the meaning in any way. I hope that the noble Baroness will concede that.
The amendment would delete the phrase to which subsection (4) applies and transfer the wording from subsection (4) into the parent, Clause 2(1)(c), so that paragraph (c) will then read:
"except in the case of a person who is to be sent to a country or territory which is or forms part of a member state of the European Union or is designated for the purposes of this paragraph in an order made by the Secretary of State".
That is very much clearer than the drafting in the original Bill where one has to look away from Clause 2(1)(c) to see what the meaning of the whole clause is. When one looks at subsection (4) it appears to stand on its own and not relate to anything at all. It is better if the relevant wording is put back where it belongs and one can then see the sense of the whole paragraph.
While I am on my feet, perhaps I can ask the noble Baroness to reply to the second leg of my question on the previous amendment; that is, whether the Government will reconsider their attitude to sending people to third countries with which they have no connection. In her reply the noble Baroness said that Judge Pearl found that the Government had acted lawfully in attempting to send Dr. al-Mas'ari to Dominica, a place with which he had no connection, a place with a different religion and culture and which was in every way wholly unsuitable for a person with Dr. al-Mas'ari's background.
The Minister said that the three countries which it was proposed to designate were the United states, Canada and Switzerland. If she can assure me that those are the only three countries that will ever be on the list, that will give me a certain amount of reassurance. If she can further reassure me that people will not be sent to the United States, Canada or Switzerland unless there is a good reason for them to go there—for example, because they have family connections or other links—that will be highly acceptable to the whole Committee.
What is objectionable is the notion that at the whim of the Secretary of State a person can be sent, not to a country through which he or she may have passed and where the Government take the view that the applicant ought to have applied for asylum, but to some third country with which the applicant has no conceivable connection.
When we considered the case of Dr. al-Mas'ari, the Government said that there was a precedent from the French sending 20 asylum seekers not to their country of origin but to Burkina Faso. They said that there had been no successful challenge to that operation. I pointed out recently that that was wrong and several of those asylum seekers had successfully contested their deportation to Burkina Faso in the French courts.
Generally speaking, over the whole of Europe, we ought to resist the principle that asylum seekers who come to any European country should be bundled out of the continent and placed in some third country which is completely alien and foreign to their way of life, culture and background. If we believe in treating people in a civilised manner—after all, they are asylum claimants, though they have not had their cases considered substantively—we must severely limit the scope of the countries to which we send them. If Canada, the United States and Switzerland are to be the only three designated countries, I am happy with that. But I should like a further assurance from the Minister that only people with some connection with those countries will be sent there. I beg to move.
9.15 p.m.
The Lord Advocate (Lord Mackay of Drumadoon): I am dealing with this amendment and I regret to say that the answers I give on behalf of my noble friend Lady Blatch will not be acceptable to the noble Lord, Lord Avebury, but I give them nonetheless.
In relation to his first point, I can give no assurance that we will reconsider our position in relation to sending applicants back to safe countries with which they have no connection. In the case about which there has been some reference already this evening, Judge Pearl acknowledged that such an approach was compatible with the convention and therefore no assurance is appropriate with regard to that.
Equally, with regard to increasing the number of countries that the Secretary of State may have in mind to designate in an order, as set out in subsection (4) of Clause 2, again it would not be appropriate to give any categoric assurance at this stage that they will not be increased. Likewise, restricting the sending of applicants
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to countries—Canada, the United States and Switzerland—merely if there are family ties, is not an assurance that I am in a position to give. I am sure the noble Lord, Lord Avebury, will not be surprised to hear those answers, but those are the considered views of the Government in this matter.
In moving the amendment, the noble Lord said that he had no intention of trying to change the meaning of the clause. Unfortunately, the amendments have that very effect. In Clause 3(2) there is a reference to Clause 2(4). The effect of the Committee accepting the amendments would be to render Clause 3(2) completely ineffective and to render Clause 3 contrary to the intention of the Government in bringing forward the Bill.
I accept that the noble Lord does not intend in any sense to wreck the effect of Clause 2 but his attempt to make things clearer has a contrary effect. For that reason, I must invite the Committee not to accept the amendment.
Lord Avebury: The noble and learned Lord is not quite correct in what he has just told the Committee because it would be very easy to amend Clause 3(2) by substituting Clause 2(1)(c) for Clause 2(4). The clause would then refer to the correct passage in the earlier clause. If the Government were to accept the amendment on the basis that it was a simpler form of language than they have in the Bill, there would indeed have to be a consequential amendment to Clause 3. That would be very easy to put in at a later stage.
However, on the more substantial points, I am indeed, as the noble and learned Lord anticipated, extremely disappointed with his answer. I shall have to come back at Report stage with some further amendments to ensure that we place some limits on the power of the Secretary of State to designate so-called safe third countries. We know exactly how this power has already been used by the Secretary of State. We have to try to ensure that we clip his wings at Report stage to prevent him from doing it again. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Dubs Lord Dubs moved Amendment No. 34:
Page 3, line 12, after ("territory") insert ("has given an undertaking that it will consider the application and").
The noble Lord said: This is a crucial amendment as regards the principle of Clause 2. Although I accept that one or two of the arguments have already been used in relation to the earlier amendment dealing with victims of torture, I think it is right to state what are the key concerns about Clause 2 as exemplified by the amendment.
The first difficulty is the one I mentioned earlier. Before a third country removal the individual asylum case is not considered substantively. There is therefore a weakness in the procedures and it is possible that a person with a well founded fear of persecution may well be removed. The problem is that there is no assurance that the country to which that individual is removed will itself consider substantively the claim for asylum.

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Indeed, the individual may not be allowed to enter into the procedures at all in the third country to which he or she has been removed.
The UNHCR recognised this difficulty. Perhaps I may quote from a statement it put out in 1993 regarding the then Asylum and Immigration Appeals Bill. It said:
"Mere assumptions as to the safety of an asylum seeker in the third country cannot be sufficient ground for his removal from the country in which he is requesting asylum".
In a paper commenting on this Bill the UNHCR made the position even clearer. It stated:
"UNHCR is of the opinion that there can be no automatic or reliable assumption that simply because an asylum seeker passed through another EU state or some other liberal democracy, en route to the United Kingdom, the country is 'safe' against refoulement, whether directly or indirectly … Because of the current lack of consistency in inter-state practice, and the attendant risk of refoulement, UNHCR is not supportive of unilateral action by states to return asylum seekers to countries through which they have passed, unless the prior agreement of that receiving state is first obtained".
We have two alternative propositions. The first is contained in the Bill in that the Secretary of State has certified that it is his opinion—in other words, he simply has to believe that everything may turn out all right for the asylum seeker. Against that, we have this amendment which says that the country to which the individual is to be removed—that is to say, the safe, third country—has given an undertaking that it will consider the application.
That is surely a crucial difference. All we are asking for is that when there is a removal to a safe, third country it is not the Secretary of State's opinion that that country will consider his application that is sufficient, but that we have some assurance from that country that the individual's application will be considered properly.
I understand that in the other place the Government put forward the objection that this process would take a little time. We are talking about individual human rights. If another government is not willing to give us an assurance that the asylum seeker returned to that country will be allowed to enter into the asylum procedures, then what assurance do we have that fairness will be done to that individual? If the government of the safe, third country is not prepared to confirm to us what the intentions are, how can we possibly risk sending the person back? The danger is that that government in turn may say that the asylum seeker spent a few minutes passing through another safe, third country. That government in turn will pass the individual on and in the end there is no assurance that he will not be sent back to the country from which he originally escaped. These provisions are not confined to European Union countries. So far as I can tell, they can apply to any country and that gives further scope for argument.
I wish to ask the Minister a further question: in the earlier debate on the amendment dealing with torture victims, the Minister said that there was a principle about applying for asylum. Possibly, I tacitly accepted that when I should have talked about the practice of applying for asylum. The noble Baroness mentioned international law. I wonder what is the basis for that
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proposition. It may be a practice that the Government welcome and one that has been adopted for some time by a number of countries on the basis of a lengthy stay in the country before moving on and then the principle of the safe, third country applies. In fact, I do not believe that there is such a principle. I believe that we have used that word as it applies to a practice which governments have adopted. I am really concerned about the way in which Clause 2 will operate. The safeguard in this amendment will give us all some assurance. I beg to move.
Baroness Williams of Crosby: It may be for the convenience of the Committee if I speak to this amendment and then I shall be able to consider saving time on the amendment that is in my name because I believe that the principle is very much the same.
I wish to make three points. The first is that the provisions in the 1993 Act for the suspension of an appeal are being removed under Clause 2 in this Bill. In plain English that means that a person can appeal against being sent to a third country prior to the legislation now before the Committee, and have the right, while the appeal is being considered, not to be sent out of the country. Under the provisions of this Bill, as I understand it, they will be sent out of the country and the only right will be to appeal from the country to which they are sent.
Therefore, the noble Lord, Lord Dubs, and I are asking for an assurance that that appeal will be allowed to proceed in the country to which the asylum seekers are sent before being sent there. If there is no such absolute commitment by the country to which they are sent, it is by definition not for them a safe country because they cannot pursue their appeal in that country, albeit that they may have a right, on the face of the Bill, to do so. It is a non-substantive right.
The second point is that in many cases it would be almost impossible to raise and to maintain an appeal from a third country, even a friendly third country, because of the difficulties of getting advice and counselling on the basis on which to make a successful appeal. It is therefore all the more important to ascertain that that third country will allow that person to proceed through the processes of appeal.
The third point is that it lies with the United Kingdom Government relatively easily to meet the anxieties expressed by the noble Lord, Lord Dubs, and myself. The reason that I say that it should be relatively easy to do that is because, as a result of Her Majesty's Government's own representations, issues concerning intergovernmental co-operation on home affairs and internal security come under the third pillar of the European Union. That third pillar is intergovernmental and is not part of the acquis communautaire. That intergovernmental agreement enables government members of the European Union to agree on how to deal with a number of issues. What could be easier than to persuade them to agree on a successful intergovernmental agreement under the third pillar with regard to entering into assurances about refugees being sent to other European Union countries?

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With respect, it seems to me that the whole clause suffers from the fact that we do not have a safe and certain set of assurances from other EU member states about the handling of genuine asylum seekers. I believe that it would be possible to achieve that under the third pillar. Indeed, we have no other way of dealing with this because there is no European parliamentary accountability for the third pillar, only an intergovernmental one. Therefore, it lies very much with Her Majesty's Government to raise the issue within the third pillar and to try to get a satisfactory set of commitments from other EU states to say that they will allow appeals in their own countries. That seems to be the minimum required to make the Government's assurances about safe third countries into a reality and a certainty. I commend Amendments Nos. 34 and 35 to the Committee.
9.30 p.m.
Lord Hylton: I support the principles of Amendments Nos. 34 and 35. Those of your Lordships who can recall the time of the Cold War and the beginnings of détente will know that there were many cases of people being shuttlecocked from one country to another. They were usually stateless people whom no country would accept. I believe that one man spent many months of his life on a ferry going between Hong Kong and Macau. That is the kind of situation that we wish to avoid. We wish to avoid transfers from Britain to a supposedly safe country, on to other safe countries, and to unsafe countries.
The Minister has implied that it would be possible for those who are removed from Britain to a safe third country, probably in Europe, to conduct their appeal from that third country in our jurisdiction and in our courts. Something has already been said to point out the extreme difficulties of such a procedure. Therefore, if somebody is to be removed to a safe third country, that person needs to be able to get proper advice which is relevant to that country and to conduct the appeal entirely in that country. I support the amendment.
Earl Russell: In days gone by when they used to duck witches, it used to be a principle of the test that a guilty witch would float and an innocent witch would sink. The third country appeal is a bit like that. If the third country is in fact safe, you can prosecute the appeal—I shall not say "perfectly adequately", but you can prosecute it.
However, if the third country is not safe for the particular applicant, you cannot prosecute the appeal. All that can be said when the applicant disappears into God knows where—perhaps a prison in Zaïre—is, "We lost him". That is why the undertaking that the third country is prepared to receive the applicant is vital to the process of removal to a safe third country and to third country appeals. Without that, Clauses 2 and 3 are, in my opinion, completely unacceptable.
The noble Lord, Lord Dubs, hit the nail on the head when he pointed out that the key issue was access to the process. This is where the undertakings are needed.
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I should like to quote some observations mainly by UNHCR on European Union countries. Regarding Greece, it was said:
"Whilst the legal situation and current practice in Greece may not provide wholly satisfactory guarantees that asylum seekers will be readmitted to Greece, UNHCR considers that effective protection could, however, be ensured in specific cases through explicit undertakings by the Greek authorities, expressed for example in bilateral communications between the governments concerned".
That is exactly the procedure that we recommend in this amendment.
Take the case of Italy. In 1993 a Sri Lankan asylum seeker was returned from the United Kingdom to Italy. Italy imprisoned him. He was then sent to Thailand, which is not a signatory to the UN convention. The UNHCR's recommendation was the following:
"Pending clarification of this incident, I have requested the Home Office not to return asylum seekers to Italy without the necessary safety conditions having been verified with the Italian authorities".
That is the question to which this amendment asks for an answer.
Take the case of France. For example, I refer to the principle that arose in the case of Berdjane. The appellant was returned to France from the United Kingdom on third country grounds. He arrived in France and was asked for his papers. Of course, all of his papers were for admission to the UK. He did not have papers for admission to France because he had not intended to be admitted to that country. He was told that he was an illegal immigrant and could be detained for 24 hours, after which he had to leave France. The Home Office adjudicator who considered that case said:
"It appears to be the practice that claims are not accepted from illegal entrants who are returned to France. This raises the risk and possibility of refoulement".
Even in countries within the European Union there is a severe risk of not being admitted to the process. I do not believe that we can return applicants to third countries until we are sure that they are admitted to the process. If we regard that as an acceptable procedure, it will be done to us in return.
Last Tuesday I asked a question to which I would welcome an answer from the noble Baroness. I did not get it then. Perhaps I raised it at the wrong moment and she was not prepared for it. I refer to a hypothetical asylum seeker from Chad who wishes to apply for asylum in France because he speaks the language. He escapes overland through Nigeria, catches a plane to London—because he is much more likely to catch a plane if it is going to London than Paris—makes his way to France and is referred back by France to the UK under the third country rule. In those circumstances, what are we to do with that applicant? Do we admit him to our procedures—in which case well and good? It may not be quite what is wanted but it is better than nothing. Do we send him back to France—in which case we play battledore and shuttlecock? Do we send him back to Nigeria? If so, will Nigeria send him back to Chad? If that is the case, both we and France are in breach of our international obligations. I remind the noble Baroness that, since a great many planes touch down here on the way to continental European destinations, if there is a perpetual batting to and fro of third country applicants

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the flow of refugees to this country is likely to increase rather than diminish, which I understand is not the intention of the Home Office.
Lord Mackay of Drumadoon: In moving the amendment, the noble Lord, Lord Dubs, recognised, as he recognised earlier this afternoon and this evening, that it is acceptable on occasions to pass applicants on to safe third countries. It is clear from what the noble Earl, Lord Russell, said, that his objection to what the Government propose is much more fundamental. It is right therefore that the Committee should appreciate the importance placed on the provisions set out in Clauses 2 and 3.
The Government believe that the effectiveness of our immigration control is weakened significantly if economic migrants can travel from country to country until they pick one where they want to work, and feel that it would be of economic benefit for them to stay there. They seek to achieve that objective by claiming asylum.
A procedure which allows quick removal sends out a clear signal, which the Government believe requires to be sent out, that we are determined in this country to maintain the integrity of our immigration controls. If we are unable quickly to remove applicants to safe third countries, it becomes, for reasons which will be well understood by the Committee, more difficult, and, in certain instances, impossible to do so.
If there is a substantial delay in the matter being raised, it is more likely that the third country will decline to take such people, and, more important, if the appeal procedure is allowed to run before the removal takes place, it becomes much easier for the applicant to seek to create some doubt as to whether a safe country would deal with him in the way that the Bill proposes.
Accordingly, it is important to bear in mind what is set out in Clause 2. Subsection (1) provides that the Secretary of State has to certify that in his opinion certain conditions are fulfilled—those conditions being set out in subsection (3). I need not repeat them. It is not sufficient for the Secretary of State just to pluck an opinion out of the top of his head. He has to be satisfied that it is reasonable for him to hold that opinion, and any opinion that is then incorporated in a certificate is of course susceptible to judicial review by a process which is well known to the Committee.
It is important to bear in mind that this is a structured approach which is designed to back up the effectiveness of our controls which are deemed to be appropriate if we are to send the right messages.
Before I turn to deal with the specifics of the amendments, it may be of assistance to the Committee if I set out the Government's general position on agreements and undertakings in third-country cases. The Government are not opposed to bilateral or multilateral agreements where they can be negotiated. A later amendment is concerned with the Dublin Convention, to which my noble friend Lady Blatch has referred, which provides a mechanism for determining which member state is responsible for determining asylum applications lodged in the EU. This country ratified that convention
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some five years ago. We look forward to it coming into force. In the meantime, removals to France are covered on a case-by-case basis by a bilateral agreement which we have negotiated separately. We have a similar, although not identical, agreement with the Spanish authorities.
We do not accept that third-country removals should be held up in the absence of such agreement, and the Immigration Rules which apply in this country make that clear. Paragraph 345 of those rules provides that, so long as the applicant had the opportunity to claim asylum in the third country, or there is other clear evidence that he is returnable there, the Secretary of State is under no obligation to consult the authorities of the third country before the removal of the asylum applicant.
If we were obliged in every case to obtain undertakings from third countries on a case-by-case basis, we would for all practical purposes be unable to operate an effective third country policy. We believe that it would encourage third countries to refuse to take applicants back and applicants would know that they could travel from country to country within Europe before finally claiming asylum in this country, safe in the knowledge that Parliament would have prevented their being returned to the safe country from which they came. An applicant who had previously been refused asylum by another European country would come to this country and lodge a further claim here safe in the knowledge that we would be forced to consider his claim substantively rather than return him to the country which had previously refused asylum.
The precise terms of Amendment No. 34 would prevent removal of an asylum seeker to a safe third country unless that country had given an exclusive undertaking that it would consider his asylum claim. We see no justification for introducing such a principle. The certificate which the Secretary of State requires to pronounce is to the effect that in his opinion, which is already subject to judicial review, the government of that country or territory would not send the asylum seeker to another country or territory other than in accordance with the convention. The Government consider that that is an adequate reassurance.
If the third country refuses to consider the claim substantively it does not follow that there has been a breach of the convention or that the asylum seeker has been placed at risk of persecution. For those reasons, the amendment is not acceptable.
I turn to a number of points which Members of the Committee have raised. The noble Lord, Lord Dubs, asked whether third country removal is a principle of international law. It may well be that there has been some confusion in the Committee about whether it is a principle or a practice. The Government proceed on the basis that the practice is consistent with the terms of the 1951 convention, which is widely recognised by the fact that the practice is followed in a large number of countries.
The noble Lord, Lord Hylton, asked about the ability to conduct appeals from safe third countries. The Government are satisfied that that is a reasonable

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assumption to make. As may arise in detail on a later amendment, it is perfectly possible for legal advice to be obtained from this country in connection with such appeals where appropriate legal aid is available to people who are not resident in this country. The countries concerned are, in accordance with Clause 2(4), member states of the European Union. The intention is to include three other countries; Canada, the United States and Switzerland. I find it difficult to believe that in these days of communication by fax, telephone and post it is impossible to make appropriate arrangements for such appeals to be properly put forward.
I turn to the somewhat hypothetical case raised by the noble Earl, Lord Russell, involving Chad, Nigeria and France. If the hypothetical situation be as described by the noble Earl and the route followed was from Nigeria to the United Kingdom I understand that the claim would be considered substantively and would not be dealt with in any other way.
Various comments were made in passing about procedures in France, Greece and Italy. Clearly, Her Majesty's Government keep in touch with their European partners about the way in which they handle their asylum and immigration procedures.
If there were any serious concern about what was happening in a particular country, I venture to suggest that it would be very difficult for the Secretary of State to grant a certificate in terms of subsection (3)(c) of Clause 2; namely, that it was his opinion that the Government would act in accordance with the convention. If there were such serious weaknesses, it is unlikely that the convention would be followed. For those reasons, I urge the Committee to reject Amendment No. 34.
Baroness Williams of Crosby: I ask the noble and learned Lord to deal with one point which I raised to which he has not replied. He indicated that the Government could not accept amendments of the kind we are putting forward. He referred to "safe countries". How does he define a safe country if he has no assurance that that country will allow the use of an appeals procedure for asylum seekers?
Moreover, he did not reply to the point made by my noble friend about what we would do when treated as a third country by another country because the people concerned had gone through the UK on their way to a European Union country. It seems to me that that matter can be dealt with adequately only under the third pillar, to which the noble and learned Lord did not refer. Will he not consider those points?
Lord Mackay of Drumadoon: I apologise for not dealing in detail with every point that was raised.
As regards the third pillar, there are informal discussions between member states about their prospective procedures. The Government are not prepared to go to the extent of reaching an agreement beyond that which is set out in Clause 2(3). Otherwise, by a different route, one is effectively getting into a situation which this amendment and similar later
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amendments are designed to achieve; namely, to require on a case-by-case basis or on some omnibus basis an absolute guarantee not that the case should be dealt with in accordance with the convention but beyond that, that it should be dealt with substantively in that particular country.
I shall reflect further on the other points raised by the noble Baroness. I shall either deal with them on later amendments or write to the noble Baroness about them.
Lord Dubs: I thank the Minister for dealing with the many questions that have been put to him in the debate. However, he has done nothing to reassure me that the system will work fairly and properly.
A great deal seems to depend on the opinion of the Secretary of State. I am not suggesting that the Secretary of State would not act on his own best judgment, but the fact is that there would be no proper assurance that the government to which the individual was returned under the Clause 2 provisions would not in turn say that there was another country to which the person should be moved. By that time the safeguards about which we have heard would no longer be applicable. Indeed, if the individual was moved quickly from the safe third country to which we had sent him, the provisions for appeal under Clause 3 would hardly be operative because the individual would not be in a position to exercise those rights. But we may come onto that in a few moments.
As his argument against the amendment, the Minister said that it would be too time-consuming to deal with the matter on a case-by-case basis because every time we wanted to send somebody back we should have to obtain that country's agreement that the individual's claim would be considered there. A subsequent amendment deals with the Dublin Convention, but in a sense that convention already provides a possible model. There is no need to do it on a case-by-case basis. We could enter into agreements with other countries to the effect that they would allow the claims of whoever we sent to them to be properly considered, provided that we could demonstrate that such individuals had spent some time in the other country. Then, in turn, we would do likewise if the journey had been in the reverse order.
It seems to me that we have a model in the Dublin Convention; that we have a precedent that this could be done by agreement; and that it need not be done on a case-by-case basis. Therefore, I do not see why the Government are so reluctant to move in that direction. Indeed, we will put the argument more clearly in the context of the Dublin Convention in a short while when we deal with that amendment. I am rather disappointed that the Government do not accept that there is a problem which has been stated by several Members of the Committee.
The problem is that once a person is removed from this country there is no assurance that any country will allow him to claim asylum there. The individual will, in turn, be moved from country to country until he may well be left in the original country from which he escaped and where he may face danger. That is the gap in the system. If we could find some way of closing it, we could then accept the thrust of the policy. However,

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in the absence of any assurances, I am somewhat dismayed. Perhaps the Minister would care to comment further before I decide what to do about the amendment.
Lord Mackay of Drumadoon: It may help if I give Members of the Committee certain examples of what might happen in the event that there is the shuttling backwards and forwards about which so much concern has been expressed. It is important to bear in mind that we are dealing here with member states of the European Union. Whatever our differences may be on certain issues that fall to be debated in European institutions, we are still talking to each other. We would like to think that we are still behaving humanely when matters of such sensitivity have to be settled.
Let us suppose that we removed an applicant to France and that that country immediately granted the asylum seeker leave to remain but was not prepared to consider his asylum application. The applicant might, for example, secure leave on the basis of a marriage to a French national or on some other sympathetic basis. In such circumstances, the applicant would be perfectly safe in France. In that case, I venture to suggest that there is no reason why we should have required an undertaking of the nature sought by the amendment that the application would be dealt with by implication on a substantive basis.
Another alternative is that we remove an asylum seeker to France and the latter has evidence that the applicant had originally travelled to France via Germany. Again, I venture to suggest that Members of the Committee would not object to the French authorities acting in accordance with the terms of the convention—and, no doubt, their own domestic legislation—and coming to the conclusion that it was a matter for Germany to address the substantive application in terms of the convention, thereby passing the asylum seeker back to that country. That is a second clear example of a case which would not pass the test set out in the amendment.
A third example is that France, having had the applicant sent back to them, might then return the applicant to this country. As I have already indicated, one would suspect—and, indeed, one would certainly hope—that such cases would not occur very often. However, if they do, it is important to bear in mind the fact that there is no obligation on the Secretary of State to issue such a certificate, nor is there any obligation on this country to keep the game of shuttlecock going backwards and forwards. Indeed, if recent experience is anything to go by, one would hope that noble Lords would draw that to the Government's attention and seek to ensure that such cases were dealt with on a reasonably sensible and perfectly humane basis.
The trouble is that the amendment seeks to focus the opposition which many Members of the Committee bring to the Bill on the suggestion that because, some months if not years after other countries in Europe did so, this country is putting forward legislation to tighten our immigration controls and prevent us having to deal with a disproportionate number of cases which are ultimately rejected on appeal, that is to the detriment of the bona fide cases which we would prefer to deal with
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sooner. Far from seeking to achieve the Bill's objectives, putting the additional proposals into the legislation seeks to frustrate them. That is why the amendment is unacceptable.
Lord Dubs: I heard with interest what the Minister said. I am emphatically not trying to frustrate the purpose of the Bill with the amendment. I am simply trying to bring in minimal safeguards for the people who are caught by the provisions. I wish to consider what the Minister said and reserve the right to come back to the matter on Report. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 35 not moved.]
10 p.m.
Lord Dubs Lord Dubs moved Amendment No. 36:
Page 3, line 14, at end insert ("and
() his removal from, or the requirement for him to leave, the United Kingdom would be in accordance with the terms of the Dublin Convention.").
The noble Lord said: The amendment stands in the names of myself, my noble friend Lord McIntosh and the noble Earl, Lord Russell. It seeks to use the Dublin Convention to provide the framework for third country removals. My intention is to secure that, if the amendment were accepted, then third country removals would be on the basis of the Dublin Convention; that they would therefore be confined to European Union countries; and, most important, that the Dublin Convention would determine the state responsible for examining asylum applications. That is the key difference between using the Dublin Convention and the Bill as it stands.
I repeat, because it is the most important point in the amendment, that the Dublin Convention specifies which state is responsible for determining or examining an application for asylum lodged in one of the member states of the European Community. If the Government adhere to the Dublin Convention, as they say they do, and if before too long the remaining countries sign it, then we have a sensible model for dealing with third country removals within the European Union. It is a model which meets the concerns which several Members of the Committee expressed in earlier debates on the clause. Therefore the amendment makes sense and provides a good basis. We could move forward on that understanding.
Of course, there would still be the difficulty with countries not party to the Dublin Convention or countries outside the European Union. But at least if they were within the European Union it would mean progress, given that most of the third country removals involve people who have come to this country from France or Belgium. I beg to move.
Lord Avebury: I welcome the amendment because it places limits on the countries to which the Secretary of State could send the applicant. It removes the power which otherwise exists in Clause 2 for the Secretary of State to designate third countries indefinitely on a whim. I am worried by the statement from the Minister earlier

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that we shall begin with countries that we may think are acceptable like the US, Canada and Switzerland. However, on the face of it the Bill contains the power to extend the list indefinitely and to send applicants to bizarre third countries like Dominica. I wish to see that power removed from the Bill. It is an excellent idea that we should limit the Secretary of State to countries which will enter into the Dublin Convention. They are the ones from which the vast majority of people concerned have arrived, as the noble Lord, Lord Dubs, said. I believe that the tiny minority we might wish to send to third countries other than those which belong to the Dublin Convention could be safely left outside the procedures of the Bill.
I hope that the amendment will be acceptable. A multilateral agreement which did not require individual acceptance by every country, as proposed in the previous amendment, is a superior way to tackle the issue. The amendment would be a vast improvement to the Bill. I hope that the Government will accept it.
Lord Hylton: If I were the Minister, I would cling to Amendment No. 36 as to a lifebelt thrown into a stormy sea. Surely the amendment solves the problem so far as concerns the European Union.
Amendment No. 35 was spoken to by the noble Baroness, Lady Williams, but not moved and therefore barely debated. It gives a model for third countries where a written agreement has been negotiated. The Minister told us that a bilateral agreement was already in existence with Spain. Spain is a member of the EU. Surely that agreement could be adapted to other countries which are not members.
Viscount Brentford: Perhaps I may ask this out of ignorance. The noble Lord, Lord Avebury, spoke of leaving aside other countries. If the amendment were passed, what would be the position of third countries such as the United States and Canada?
Baroness Blatch: The noble Lord, Lord Hylton, described the amendment as a lifebelt thrown in a stormy sea. After I have spoken to the amendment, I hope he will understand that I should be in the stormy sea for a very long time—or at least until the final country had ratified the convention.
Amendment No. 36 would require the Secretary of State to certify in third country cases that an applicant's removal from, or requirement to leave, the United Kingdom would be in accordance with the terms of the Dublin Convention. The Dublin Convention, as the Committee is aware, is concerned with determining which European Union state should be responsible for examining asylum applications. The United Kingdom Parliament ratified the convention in 1991. The Government support the early ratification of the convention by the two original signatories, the Netherlands and Ireland, which have not yet ratified it, and look forward to it coming into force. We believe that there can be advantages in multilateral agreements covering third country returns where such agreements can be negotiated. The Dublin Convention should lead
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to greater certainty in the handling of cases where applicants have transited other member states before applying for asylum in the United Kingdom.
To the extent that Amendment No. 36 is concerned with ensuring that the United Kingdom observes its obligations under the Dublin Convention, it is unnecessary. The United Kingdom has ratified the Dublin Convention. I can assure the Committee that we take our international obligations very seriously. We will, of course, fulfil our obligations under the Dublin Convention once it comes into force.
It is important to state that it is a European-wide convention. It requires multilateral and not bilateral arrangements. It requires all the countries to sign up to common disputes procedures. Until it is ratified by all countries it is very difficult to bring the measure into being.
However, the amendment would prevent us from making third country removals under the provisions of the Bill until the Dublin Convention comes into force. The convention will not come into force until two months after it has been ratified by all the original signatories. We cannot say when that will take place. The terms of the convention require us to follow certain procedures, jointly agreed by all the countries following ratification by all the countries, in conjunction with the third country which we believe responsible for considering a specific case. We could not expect countries such as France to follow the Dublin Convention's procedural requirements before that convention is in force.
In effect, Amendment No. 36 would put on hold third country removals indefinitely until the Dublin Convention came into effect. Ratification has already been delayed for six years and there is absolutely no telling how much longer it will take. For that reason, the amendment is completely unacceptable to the Government.
Lord Dubs: Before the Minister sits down, may I ask her a question? I heard what she had to say. What will be the position, when the Dublin Convention is signed and ratified and comes into force, for individuals whom we send from Britain to one of the EU countries? Will the provisions be under the Dublin Convention or under Clause 2? They are different, for the reasons I stated earlier.
Baroness Blatch: We do not believe that they are incompatible. Under the provisions of the Dublin Convention the United Kingdom would consult with the authorities of the member state that was responsible for considering a particular asylum claim. The United Kingdom would provide the third country with evidence which suggested that that country was responsible for considering the asylum claim: for example, travel tickets indicating that the applicant had indeed been in that country before arriving in the United Kingdom. The third country would indicate whether or not it agreed with the United Kingdom's claim and assessment that it was responsible for considering the claim. If the third country then agreed that it was the state responsible for considering the

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claim, it would be obliged under the Dublin Convention to take the applicant back. The process will not always be as smooth-running as that. There may be occasions when that is disputed. Then, under the Dublin Convention, common arrangements would be agreed for the resolution of disputes.
Baroness Elles: Perhaps I may just confirm, and ask my noble friend the Minister to confirm also, that under the third pillar work is going on to achieve minimum standards for the reception of asylum seekers. Although the Dublin Convention is mentioned—as my noble friend more than correctly said, it is not yet fully ratified and has not come into force—the effect of this joint action on the minimum conditions for the reception of asylum seekers might fill the gap in the meantime. I accept, as my noble friend says, that this amendment is totally irrelevant to international legal obligation at the moment.
Baroness Blatch: My noble friend is absolutely right. Certainly discussions are going on under the third pillar. We shall continue under that pillar to have the greatest possible degree of co-operation between countries. It could not quite match up to the full terms of the Dublin Convention. When it is fully ratified, the signatories to it will agree the procedures commonly between them.
I must apologise for not returning to the question raised by my noble friend Lord Brentford. I hope that by now he has gathered that we are talking about European Union member states that are subject to the Dublin Convention.
Baroness Williams of Crosby: Before the noble Baroness concludes her remarks, following the point raised by the noble Baroness, Lady Elles, can she give the Committee any idea at all as to how long it is likely to be before the Dublin Convention is ratified? If she cannot do that, will she at least give us an assurance that Her Majesty's Government are doing everything they can within the third pillar to persuade other EU member states to sign? She mentioned in particular the Netherlands and Ireland.
Baroness Blatch: That is an important point. I give the noble Baroness an absolute assurance that we are anxious that the two final countries ratify the agreement. I hope the noble Baroness will accept that I am giving an honest reply to her question. The difficulty in regard to Ireland coincided with the change of government, and therefore it is our understanding that the convention may be signed quite quickly by Ireland.
In regard to the Netherlands the situation is more difficult. It is looking for more centrality of the European Court of Justice, and that is not agreed by the other member states. The issue between the Netherlands and other states is more fundamental and may take longer to resolve.
Lord Dubs: I thank the Minister for her detailed answers to the various points and in particular her detailed explanation of the Dublin Convention. It seemed to meet many of the concerns expressed in this and other amendments. All we can do is hope that the
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Dublin Convention will come into force quickly. Then we should have assurances that we failed to achieve in relation to earlier amendments. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Dubs Lord Dubs moved Amendment No. 37:
Page 3, line 14, at end insert ("and
() that the person who has made a claim for asylum does not have close ties or connections with the United Kingdom.").
The noble Lord said: I shall be brief. The purpose of the amendment is to ensure that an asylum seeker is not returned under the safe third country rule if he or she has close ties or connections with the United Kingdom. My experience of dealing with individual refugees and refugee matters has been that it is sometimes very painful for individual asylum seekers to find that one member of the family has found safety in one country and they themselves are in another country, and that it is extremely difficult for the two to be able to live together because neither of the states will allow it. Or, rather, I should say that it is my experience that our Government have been more reluctant to allow such movements than perhaps have some other European governments.
On this specific amendment, it is simply a matter of saying that it is surely wrong in principle to remove a person who has well-established, close ties in this country to another country where he might have no ties or no connections. For example, there might be relatives here; the individual might have had part of his education in this country; he might speak English; and he might be qualified for particular occupations or jobs in this country, and so on—all of which would make it sensible to allow such an individual to stay here.
The number of times that it may happen would not be very many. It would not breach the principles of the government legislation but it would represent a little humanity and common sense in dealing with individuals who are close to this country and who would therefore settle well if given the chance to do so. I beg to move.
10.15 p.m.
Earl Russell: Last January I listened to the Secretary of State in another place moving the regulations to deprive asylum seekers of benefit. He was asked how they would live without it. He replied that they could rely on family members and members of their own community in this country. Whether or not that is a satisfactory or sufficient answer, it is clearly convenient to the Secretary of State. It is a convenience of which he will deprive himself and of which other national governments will deprive themselves unless the principle of allowing family members and close relatives to come together is accepted. It is the kind of arrangement which it would be extremely helpful to have done by international agreement.
The point made by the noble Lord, Lord Dubs, about families separated by finding refuge in different countries is a real one. The noble Baroness may just possibly recall some correspondence that we had a few

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months ago concerning an Iraqi couple. The woman had found refuge in this country and the man had found refuge in Denmark. The couple had subsequently divorced but he wished to maintain access to his children. In fact, it was extremely difficult to persuade the Home Office that he was not trying to do it in order to become an immigrant to this country. For example, it was necessary to point out that he enjoyed a far higher level of benefits in Denmark than he did here.
That kind of case gives rise to an immense amount of work. I am sure the noble Baroness is aware that the Home Office machinery for dealing with immigration and asylum cases is heavily loaded. It would seem to me to make sense to do something which would take some of the weight off it. I do not see why people should not be allowed to settle in a country where they have relatives, perhaps know the language, can put down roots, get work and flourish rather than in a country where they would be fish out of water.
At Second Reading I put to the noble Baroness a case to which I have not yet had an answer. I should like to have one. Let her imagine the unimaginable—the unthinkable—situation, of her needing to be a refugee from this country. Imagine that she wishes to go to Australia, where she perhaps has a son or daughter living, but because the plane touched down at Dubai, she is required to live the rest of her life in Dubai. That would be a rather silly arrangement. It would be much better to let her go to where she would be at home.
Therefore, the principle of allowing family members to be united is not only humane; it is also, in the end, for the administrative convenience of the governments concerned. I very much hope that it will be adopted.
Lord Hylton: This is another important amendment and it may be helpful to the Committee if I quote a substantive part of a written parliamentary reply signed by the Minister and dated 27th March. It said:
"The Secretary of State will normally decide to consider a case substantively [that is, on its merits] if the applicant's spouse or unmarried minor child is in the United Kingdom, or, if the applicant is an unmarried minor child, the applicant's parent is in the United Kingdom. In addition, discretion is exercised according to the merits of individual cases where the applicant is a parent whose married minor is in the United Kingdom (or vice versa); the applicant is an elderly or otherwise dependent parent; or the family link is not one which would normally be considered but there is clear evidence that the applicant is wholly or mainly dependent on the relative in the United Kingdom and that there is an absence of similar support elsewhere".—[Official Report, 27/3/96; col. WA139.]
I am extremely grateful for that reply. It indicates that the Government attached great importance to the principle of family reunion. I hope that principle will always be borne in mind and will be applied to the maximum possible extent.
Baroness Blatch: The noble Lord, Lord Hylton, has almost made my case for me, but I shall respond fully to the amendment.
The Government believe that it is appropriate, in considering potential third countries, to take into account any evidence of substantial links with the United Kingdom which would make it reasonable for the applicant's claim for asylum to be considered here
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on an exceptional basis. But for reasons which I will set out, we do not consider that provision in primary legislation covering ties is either appropriate or necessary.
As has just been said, we already operate a concession under which asylum seekers are not normally removed to a safe third country, but are instead admitted into our own asylum procedures if they have close ties here. The concession and the details of what are regarded as close ties have been published in Butterworths Encyclopedia of Immigration Law and we have no plans to alter it. It may assist the Committee if I set out details of that concession.
Cases are normally considered substantively in the United Kingdom, despite the applicant's arrival via a safe third country, if the applicant's spouse is in the United Kingdom; if the applicant is an unmarried minor and is a parent in the United Kingdom; or the applicant has an unmarried minor child in the United Kingdom. I am glad to reaffirm that. The term "in the United Kingdom" extends beyond people who are present here with leave to enter or to remain. It also covers a person who applied for asylum at the port of entry and who has been granted temporary admission to the United Kingdom while their asylum application is being considered.
Our policy that we do not normally remove an applicant on third country grounds if he or she has a parent, spouse, or dependent minor child present in the United Kingdom, either with valid leave or as an asylum seeker, is fully consistent with the principle of family unity and we exercise our discretion in the applicant's favour in the great majority of cases covered by the concession.
There is a further category of cases where the removal to a third country may be waived according to the merits of the individual case. Cases which fall into that category are as follows: where the applicant is a married minor with a parent in the United Kingdom; the applicant has a married minor child in the United Kingdom; the applicant is an elderly or otherwise dependent parent; or, finally, the family link is not one which would normally be considered but there is clear evidence that the applicant is wholly or mainly dependent on a relative in the United Kingdom and there is an absence of any similar support elsewhere.
Factors which may influence the exercise of discretion in all those cases include language skills—if the applicant is fluent in English but not in the language of a third country—and cultural links with the United Kingdom and the third country. Those are sensible and reasonable criteria to apply on a case-by-case basis. It would be extremely undesirable to transcribe that concession into a binding statutory requirement.
It is not hard to imagine circumstances in which it would be entirely appropriate to remove an applicant to a safe third country even though the applicant may have close ties or connections with the United Kingdom. The Secretary of State must therefore retain the discretion to consider the individual circumstances of each case to determine whether substantive consideration of a claim in the United Kingdom is justified.

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Let me give an example. Let us suppose that a non-European Union national committed a criminal offence in another European Union country and then attempted to gain entry to the United Kingdom on asylum grounds to avoid prosecution. Even if the applicant could demonstrate close ties with the United Kingdom, it might well be appropriate to return him to the European Union country rather than consider the asylum claim here. Amendment No. 37 provides no scope for discretion in such matters and would prevent removal in the case I have given as an example.
The noble Earl, Lord Russell, invited me to think the unthinkable. Even if I were to think the unthinkable, I would think first of all that I was fleeing for my life—because that is what asylum is about—or from the risk of persecution. I would be jolly thankful to find any safe haven at all. But if that country responded to my request in the way that we respond to requests under the arrangements we have set out, I believe I would be in very good hands.
Lord Dubs: I thank the Minister for her clear explanation of the way in which close family ties and other connections are respected in practice by the Home Office. In the light of that clear and helpful statement, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Dubs Lord Dubs moved Amendment No. 38:
Page 3, line 14, at end insert (" and
("() that the person has been afforded the opportunity of speaking by telephone with an authorised representative").
The noble Lord said: This is a very simple amendment and I shall be extremely brief. The purpose of the amendment is to afford an individual who is about to be removed on third country grounds the opportunity of speaking by telephone to an authorised representative, be that a solicitor or other person appropriate for dealing with asylum appeals. If an individual is being removed, he will have the opportunity to establish whether he wishes to pursue an appeal and can set in motion the process before he has left the country.
I appreciate that there will still be difficulties as to whether there will be any support for such an application by his representative here after he has left the country. Perhaps the Minister can comment on that. But, essentially, I am seeking to provide a simple and easy assurance that a telephone conversation at the very least is possible before the individual is removed from the country. I beg to move.
Lord Mackay of Drumadoon: The effect of this amendment when taken with Amendment No. 44 would be to add an additional certification requirement in third country cases. The Secretary of State would be required to certify that the applicant had been afforded the opportunity to speak by telephone to an authorised legal representative. But the certificate, as set out in Clause 2, is currently designed to cover the safety of the country to which the applicant is to be removed. Access to legal advice and representation is not a matter which ought to be covered by the certificate.
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If the United Kingdom is not responsible for considering an applicant's asylum claim, then, for the reasons I indicated earlier, our objective must be to remove him as quickly, albeit as sensibly, as possible. In cases where removal is to a European Union country, we do not accept—again for the reasons I have made clear—that the appeal process should be able to begin while the applicant is still in the United Kingdom because there is no reason to doubt that it can be initiated upon arrival in a European Union country. It is for that reason that Clause 3 of the Bill, to which we shall pass shortly, provides that an applicant cannot bring or pursue an appeal while he is in the United Kingdom.
However, I am happy to give an assurance that asylum seekers, in respect of whom a certificate has been granted in terms of Clause 2, will be given access to a telephone before removal and will be provided with the telephone numbers of the Immigration Advisory Service and the Refugee Legal Centre, both of which are funded in terms of Section 23 of the 1971 Act to provide advice and assistance in connection with appeals. That is current Immigration Service practice and I am happy to give an assurance that that will continue.
On that basis I hope that it will not be necessary to press the amendment. As I explained earlier, and I need not repeat it considering the time of the evening, there is no practical reason why legal aid cannot be made available to applicants who are abroad nor is there any good practical reason why they cannot receive such legal advice and assistance as is necessary to bring forward an appeal. Clearly, it may be more difficult to do so than if one is resident in London and has the opportunity of going backwards and forwards to a solicitor's office or to a legal centre as often as one wishes. But the Government are satisfied that it can be done from these countries and for these reasons I invite the Committee to reject both these amendments.
10.30 p.m.
Lord Hylton: If the Government are prepared to allow applicants to make telephone calls to these two quangos, which do valuable and much appreciated work on behalf of applicants, why will they not extend that principle to a solicitor or a barrister if the applicant has one already?
Lord Mackay of Drumadoon: I am not excluding the possibility that when access is given to the telephone it can be used to telephone the solicitor or counsel or whoever the applicant is already in touch with. What I am objecting to and the reason why these amendments are opposed, is the proposal that that should become part of the certification procedure. I venture to suggest that that is a different matter from giving access to the telephone. Once one has that, one can ring whoever one wishes, but, for people who have no legal advice already, the telephone numbers of the two quangos which have been referred to will be provided. I hope that that will be accepted as a reasonable means of

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making contact between the applicant who has been made subject to a condition and whose removal is imminent.
Lord Dubs: Before the Minister sits down, may I put one further question to him? Assuming, as he says, that the Government will facilitate such a telephone conversation with a lawyer or a person from IAS or the refugee legal centre, if the case is complicated and the adviser believes that the matter cannot be fully resolved on the telephone, will the Government make it possible for a meeting to take place between the adviser and the asylum seeker before the latter is removed?
Lord Mackay of Drumadoon: The point raised by the noble Lord is a valid one. I shall take instructions on it. However, I am in a position to say—and this will come as no surprise to the Committee—that if it is clear that an application for judicial review is imminent, then to avoid any embarrassment and inhumanity, some delay will be allowed to allow the application for leave for judicial review to be made. If that is granted, then in practical terms that has the effect of staying removal until the case has been heard by the High Court.
As regards guaranteeing that there will be sufficient delay to allow a lawyer of an applicant's choice to attend on the applicant, and although I can understand why the point has been made, at present I am not in a position to give such an assurance, but I shall take instructions on it.
Lord Dubs: The Minister has certainly met the issue part of the way by saying that he will take instructions on it and will consider it further. On that basis I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 39 not moved]
Lord Clinton-Davis Lord Clinton-Davis moved Amendment No. 40:
Page 3, line 16, leave out from ("State") to end of line 17.
The noble Lord said: This amendment stands in the names of my noble friends Lord McIntosh and Lord Dubs and in that of the noble Earl, Lord Russell. I should declare at once that I am a president and former chairman of the Refugee Council.
We are seeking to ensure that only European member state countries will be considered safe third countries for the purposes of those not entitled to an in-country right of appeal. The mischief, as we see it, in the Bill as it stands in this regard is that it would be open to the Secretary of State to add other countries—whatever countries he saw fit—to the list, allowing removal without an in-country right of appeal. Unsafe countries could thus be added, but Parliament would have absolutely no right to comment before the additions to the list were made, resulting in removals without a prior right of appeal. That is a serious situation. In fact, the Government took a position previously and succumbed to pressure which moved them away from that position in another place. The United Nations High Commissioner for Refugees also criticised the Government. Although they have retreated from their
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original position, there is absolutely no assurance that they would not revert to that stance either in part or in whole once the Bill is enacted.
I want to ask the Minister why there is a need for a list of safe countries at all. The fact is that 95 per cent. of all current cases involve return to EU member states, so we are left with the remaining 5 per cent. Does that really justify a special list?
The Refugee Legal Centre and UNHCR undertook a certain amount of research into that situation and an analysis of the 736 safe third countries determined between September 1994 and December 1995. The few non-EU member states to which the Home Office proposed removal numbered only 10, involving a very small number of cases. In two-thirds of cases, the certificate that the removal to the country was safe was overturned by a special adjudicator. I repeat: why do we need a special list?
The Lord Advocate referred earlier to the fact that he doubted whether Switzerland could possibly be regarded as other than a safe country, but in fact we have cases where the special adjudicators overturned two-thirds of the decisions involving return to Switzerland. I repeat: is there any purpose in having a safe list? I beg to move.
Earl Russell: I rise briefly to clarify the procedure that is involved in the designation. The provisions state "by order". As I understand it, they do not state "by statutory instrument", so it is my understanding that there is no parliamentary control over the operation of this.
This is an argument about delegated powers, which the noble Baroness and I have had so many times that we could do it in our sleep. I assure her that I am not asking her to do that. The noble Baroness will, of course, invoke flexibility. I point out that her flexibility is everybody else's inflexibility. However, I am deeply grateful for her concession on this in the course of moving Amendment No. 1 a week ago. Would it be in the spirit of that concession to make some concession to an expression of parliamentary opinion that the designation of a particular country was not, in fact, desirable? Would the Government pay attention to that if it happened? If they would, it would relieve me greatly.
Baroness Blatch: I find this debate extraordinary from noble Lords who have taken such a close interest in the Bill. First, the noble Lord, Lord Clinton-Davis, is actually wrong. I know that he has not been present throughout all our discussions on the Bill. The Secretary of State cannot, simply on a whim, add a country to the list. There is no way in which he can do that. That is done by Parliament under the negative resolution procedure. The noble Lord can see from the next amendments which stand in my name that,
"The first order under this section shall not be made unless a draft of the order has been laid before and approved by a resolution of each House of Parliament",
and that,
"A statutory instrument containing a subsequent order under this section shall be subject to annulment in pursuance of a resolution of either House of Parliament".
That is a fundamental misunderstanding.

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The noble Earl, Lord Russell, referred to a concession that I had made in debating Clause 1. I noted his excitement about what I had said. I was simply reminding the Committee that when an order came before the House under the affirmative resolution procedure it had to take a view upon it. If for some reason it was believed that that order was not fit to be approved, it would be for the House to take that view, whether in whole or part. The noble Earl knows that it is not possible to amend the order on the Floor of the House. It would be a matter of rejecting or accepting the order.
We have taken the power to extend non-suspensive appeals to non-European Union countries. There are some countries outside the European Union which have proven and highly developed asylum procedures. It is not sensible that an asylum seeker should be able to delay removal by disputing the safety of Switzerland, for example, any more than it is sensible for an applicant to be able to delay removal by disputing the safety of a European Union member state. The Government believe that an out-of-country appeal is an adequate safeguard for asylum seekers who are to be returned to countries with highly developed and proven asylum procedures. That will be the key criterion for designation under Clause 2. The United States, Switzerland, Norway and Canada meet that condition. Those four countries are candidates for designation under Clause 2.
We will use the designation power under Clause 2 sparingly. We may wish to extend non-suspensive appeals to a country such as Australia (to which the noble Earl was anxious to send me a few moments ago) if we begin to receive asylum applicants who have travelled via that country. But we would not want to use the power under Clause 2 to extend non-suspensive appeals to countries which did not have proven asylum procedures. We do not envisage that we will make frequent additions to the list of countries to which applicants may be removed without a suspensive right of appeal.
I defend my right honourable friend. He is not up to any mischief. It is for Parliament to decide whether or not to add other countries to the list.
Lord Avebury: Does that mean that the Minister's colleagues have no intention of adding Dominica to the list? Although I have tried to probe this matter on several occasions, the noble Baroness has not given me a direct answer. I do not think anybody can say that Dominica has highly developed and proven asylum procedures; yet, as the noble Baroness will concede, the Government recently attempted to send someone to that country. I think that we should be told more about those countries it is intended to add to the list, apart from those already mentioned. If those are the only four countries that the Secretary of State has in mind, we know exactly where we are, but if we give him an open-ended power to add whatever countries he sees fit to add in future, even though it is to be subject to the affirmative resolution procedure, it will confer far too wide a power on him, bearing in mind the conduct that he has exhibited in other cases in the past.
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I also take this opportunity to ask the noble Baroness why this subsection, if it were to be amended in the manner suggested, would refer to a member state and not a member state of the European Union. Was it the intention of the draftsman that one should be left to guess whether "member state" meant a member of the European Union, the United Nations, the OSCE or any other multi-lateral organisation of which Britain was a member?
Baroness Blatch: To deal with the final point raised by the noble Lord, my understanding is that it is quite common in legislation to refer to member states. It assumes that they are members of the European Union and not any other group. I refer to the European Communities Act 1972. I am saying that it is normal, and it is assumed that it is EU members and not members of any other grouping.
I have to return to what is being said glibly in the debate: references to the Home Secretary having a wide open power to use as he wishes. He does not. But of course the power in the Bill to add additional countries continues. It will be, if my amendments are accepted, for Parliament to take a view. We have no plans to add Dominica to the list. I have given the number of countries that we consider, but I cannot say that Dominica would not at some future time be a candidate for the list. We have no plans to add Dominica to the list. I have given the number of countries that we envisage. I have said also that we would not wish to add to the list frequently.
10.45 p.m.
Lord Clinton-Davis: With respect, the Minister has not answered the point I made. She has said that the Government have kindly agreed to introduce an amendment, to which we shall be coming in a moment, so that a statutory instrument will have to be approved by both Houses of Parliament. I understand that. But, as we know, the difficulty in dealing with subordinate legislation of this kind is that the Government are unlikely to be at any risk.
I repeat the question I posed earlier. In the light of the evidence that exists, why do we need to have this list of safe third countries? I shall give the Minister chapter and verse now. I thought that she had known about the situation. Let me go over the research that was undertaken to which I referred earlier. The only non-EU member states to which the Home Office proposed removal were: Bulgaria, two cases (0.3 per cent. of the sample); Czech Republic, two cases (0.3 per cent.); Kenya, 20 cases (2.7 per cent.); Romania, one case (0.1 per cent.); Tanzania, three cases (0.4 per cent.); Canada, one case (0.1 per cent.); Hong Kong, one case (0.1 per cent.); Norway, one case (0.1 per cent.); Switzerland, six cases (0.8 per cent.)—I have referred

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earlier to what happened in some of the Swiss cases—and the USA, eight cases (1.1 per cent.). It is almost a case of de minimis, is it not?
Baroness Blatch: I do not know why the noble Lord is running through a list of countries which have not featured in my thinking as candidates for the list.
Lord Clinton-Davis: They are non-EU member states.
Baroness Blatch: I have given the countries that we have it in mind to add. I have also said that it will be for Parliament, through the normal procedures, to determine whether countries are added to the list. The noble Lord asked me why we need a safe third-country principle in the first place. We know that noble Lords opposite did not like Clause 1. We now know that they are pretty unhappy with the principle of a safe third country in Clause 2. I am at a loss as to how noble Lords can at any time profess to be broadly in favour of the Bill. It is becoming pretty clear that noble Lords opposite are not in favour of the Bill.
Perhaps I may answer the direct question asked by the noble Lord, Lord Clinton-Davis. It is an internationally accepted principle that asylum seekers should seek the protection of the first safe country that they reach. In general, we do not consider that applicants should be able to pick and choose their preferred country of refuge. Where there is evidence that an applicant travelled through another safe country en route to the UK, that person's asylum application may be refused without the substantive merits of the asylum claim being considered. They may be removed to the third country, in which they can then apply for asylum. That principle has operated for many years.
We have created Clause 2 which gives a non-suspensive appeal right to a person coming from one of those countries which will be designated. The noble Lord is looking awfully bored. I have been here for very much longer than he has. I have to stay the pace, so I hope that he will at least hear me out while I answer his questions.
Lord Clinton-Davis: I have said nothing.
Baroness Blatch: It was the body language to which I was referring.
Lord Clinton-Davis: Body language? I was looking at my noble friend.
Baroness Blatch: The Government have created a non-suspensive appeal right. We have restricted it so far to EU member states. We have given an indication that we intend to consider additional countries. I have named which they are likely to be. I have said that we do not envisage using the measure frequently. I believe that it is a power that should be included in the Bill. I hope that the Committee will accept it.
Lord Clinton-Davis: I suppose that body language is definitively out in this Chamber. If I see any Members of the Committee engaging in body language I shall
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create a scene, I promise! There is to be no body language here. However, there is discontent and the Minister has not answered the point that I raised. We are dealing with a situation which is plainly de minimis in terms of the evidence. I have a high personal regard for the Minister, as she knows, but that does not stop me criticising her on a matter of substance. Body language or not, the Minister has not dealt with the evidence, which is plain, and I have a feeling that she is not going to deal with it tonight. Am I right or wrong?
Baroness Blatch: Read the body language!
Lord Clinton-Davis: She is not going to deal with it. I am not satisfied with the response but I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Blatch Baroness Blatch moved Amendment No. 41:
Page 3, line 17, at end insert ("by statutory instrument").
The noble Baroness said: In moving Amendment No. 41, I shall speak also to Amendment No. 42. Unless the noble Earl, Lord Russell, has any objection, in order to save time I shall refer to his Amendments Nos. 42A and 42B.
Earl Russell: On this occasion I shall not move my amendments.
Baroness Blatch: In that case, I shall speak to my own amendments. I have already explained to the Committee that we are taking the power to extend non-suspensive appeals to non-European countries because there are some countries outside the European Union which have proven highly developed asylum procedures. We have considered carefully the report of the Select Committee on the scrutiny of delegated powers. We have accepted its recommendation that the initial order designating safe third countries to which applicants may be returned without a suspensive right of appeal should be subject to the affirmative resolution procedure. Government Amendments Nos. 41 and 42 give effect to that recommendation. I beg to move.
On Question, amendment agreed to.
Baroness Blatch Baroness Blatch moved Amendment No. 42:
Page 3, leave out lines 18 to 20 and insert—
("() The first order under this section shall not be made unless a draft of the order has been laid before and approved by a resolution of each House of Parliament.
() A statutory instrument containing a subsequent order under this section shall be subject to annulment in pursuance of a resolution of either House of Parliament.").
The noble Baroness said: I beg to move.
On Question, amendment agreed to.
[Amendments Nos. 42A and 42B, as amendments to Amendment No. 42, not moved.]
[Amendments Nos. 43 to 45 not moved.]
Clause 2, as amended, agreed to.
Clause 3 [Appeals against certificates under section 2]:
[Amendment No. 46 not moved.]
Baroness Blatch Baroness Blatch moved Amendment No. 47:
Page 4, line 18, at end insert—
("() Paragraph 29 of Schedule 2 to the 1971 Act (grant of bail pending appeal) shall have effect as if the references to appeals under sections 13(1), 15(1)(a) and 16 of that Act included references to appeals under this section.").
The noble Baroness said: Amendment No. 47 will provide bail rights to detained applicants awaiting a third country appeal under Clause 3. Under the Government's original proposals for strengthening our third country procedures, all appeals against removal to a third country would have been exercisable only from abroad. But we looked further at that point in the Bill and decided that it would normally be appropriate to retain an in-country right of appeal if the applicant were to be removed to a third country outside the European Union. The Bill was amended in another place to give effect to that decision.
Bail rights are linked to appeal rights. Detained asylum seekers awaiting an appeal on third country grounds under the 1993 Act already have the right to apply for bail. When all third country appeals were going to be exercisable only from abroad, there was no need to extend bail rights to cover appellants exercising the new right of appeal under Clause 3 of this Bill. But now that it is possible that there will be some appellants detained in the United Kingdom pending a Clause 3 appeal, we need to extend bail rights to such people. Amendment No. 47 does that. It is consistent with the Government's general approach of ensuring that asylum seekers detained pending an appeal have the right to apply for bail. I commend it to the Committee.
Lord McIntosh of Haringey: On Second Reading we welcomed the extension of bail rights and we welcome this further extension.
Lord Hylton: I also very much welcome this extension to bail in principle. However, will the Minister give an assurance that bail will not be set so high as to be completely beyond the means of the people in question?
Baroness Blatch: The granting of bail is not a matter for me as a politician or a Minister. It would be a matter for the authorities.
On Question, amendment agreed to.
Clause 3, as amended, agreed to.
Lord Dubs Lord Dubs moved Amendment No. 48:
After Clause 3, insert the following new clause—
ADJUDICATOR'S RECOMMENDATION
(".—(1) In Schedule 2 to the 1993 Act, after paragraph 3 there shall be inserted the following paragraphs—
"3A. Where a special adjudicator confirms a refusal, variation, decision or directions against which a person has appealed on the grounds mentioned in subsections (1) to (4) of section 8 of this Act, he shall determine forthwith whether there are other circumstances which, in his opinion, justify allowing the person to enter or not requiring the person to leave the United Kingdom.
3B. If a special adjudicator determines that there are such circumstances, he shall direct that the Secretary of State shall grant leave for the person to enter the United Kingdom if he has not already been granted such leave and to remain in the United Kingdom for as long as those circumstances shall continue to exist."
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(2) In paragraph 4(1) of Schedule 2 to the 1993 Act, after the words "section 8 of this Act", there shall be inserted the words "and paragraph 3A of this Schedule".").
The noble Lord said: The purpose of this amendment is to enable an adjudicator to allow appeals for compassionate reasons. Under the current rules, an adjudicator can allow an appeal only if he finds that the appellant is a refugee as defined by the 1951 convention. An adjudicator cannot allow an appeal if the applicant qualifies to stay here under any other international treaty; for example, the European Convention on Human Rights. Nor can an adjudicator allow an appeal if he believes that the appellant is likely to suffer or even be killed if removed but not for a convention reason or if the adjudicator believes that the appellant should be allowed to remain here for compassionate reasons; for example, ill health.
In such circumstances, the only power that an adjudicator has is to make a recommendation to the Home Office and the Home Office is not obliged to follow such a recommendation. If this amendment were to be passed, the adjudicator would have greater powers to allow appeals on compassionate grounds on the lines that I have stated. I beg to move.
Lord Mackay of Drumadoon: Amendment No. 48 would represent a fundamental and, I have to say, unwelcome departure from the existing role of the special adjudicator. Responsibility for the exercise of discretion outside the Immigration Rules in individual cases rests with the Secretary of State: this amendment would go against that principle. It would in effect give special adjudicators at large powers to grant exceptional leave and would mean that we would be obliged to accept any recommendation from a special adjudicator that exceptional leave be granted. That would be wrong in principle.
Another reason why we consider this amendment unacceptable is that it overlooks the fact that the question of whether exceptional leave should be granted is already built into the initial consideration process. Anyone refused asylum has had the case for exceptional leave fully examined. It is only if the adjudicator's recommendation arises from exceptional compassionate circumstances which have not previously been considered, and which would merit the exercise of discretion outside the Immigration Rules, that we would be likely to consider accepting such a recommendation. We believe that this is a perfectly reasonable policy for the Government to follow. I therefore urge the Committee to resist this amendment.
11 p.m.
Lord Dubs: I hear what the Minister says. Of course, given the fact that exceptional leave to remain is a discretion exercised by the Home Secretary, it is perhaps worth commenting that the proportion of all asylum claims granted ELR dropped very rapidly. Speaking from memory, some three or four years ago the figure for those granted ELR was something like 60 per cent. but it is now down to about 20 per cent. Therefore, there has been a rapid drop. As ELR is a discretionary status, it is clear that the Home Office has deliberately sought

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to reduce the number of persons getting exceptional leave to remain simply by administrative decision. That explains why there has been such a sharp drop in the number of persons allowed to stay in this country.
That was a dramatic drop and was engineered by the Government. I had hoped that the amendment would, as it were, prove a better basis for granting ELR by allowing the adjudicator to allow specific appeals on grounds for which the Government normally grant ELR. However, I see that the Government are not to be persuaded and so I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The Lord Bishop of Ripon The Lord Bishop of Ripon moved Amendment No. 49
After Clause 3, insert the following new clause—
YOUNG UNACCOMPANIED ASYLUM SEEKERS
(".—(1) This section applies to a child who arrives or is present in the United Kingdom unaccompanied by a parent, adult relative, guardian or other adult who assumes responsibility for the child, provided that the child has made an application for asylum in the United Kingdom or has expressed a fear of return to his country of origin or country of habitual residence.
(2) If a doubt arises as to whether any such child is or is not under the age of 18 years, such child shall be regarded as being under the age of 18 years unless the Immigration Officer is able to prove to the contrary.
(3) No child who arrives or is present in the United Kingdom unaccompanied by a parent, adult relative, guardian or other adult who assumes responsibility for the child shall be deported, removed from or required to leave the United Kingdom unless adequate arrangements exist for the child's reception and care in the country to which it is intended he should be sent.").
The right reverend Prelate said: With this amendment we return to the question of the determination of age. I should like to make a few points in that connection. The noble Lord, Lord Avebury, and I had an exchange about X-rays. The difficulty that we are in at present is that those children whose age is subject to question have a choice: they can either remain in detention with adults, or they can undergo the X-ray process to which the noble Lord, Lord Avebury, took such exception. Faced with that choice, it is difficult for them to make such a decision.
As I understood him, the noble Lord, Lord Winston, said that any determination of age would be liable to some degree of uncertainty; indeed, I believe that he mentioned something like two years as the possible extent of that uncertainty. The noble Lord, Lord Avebury, also mentioned the possibility of having a panel of paediatricians. I wonder whether the Minister would be willing to consider a proposal for such a panel to be established. There is, of course, no such panel at present. It is clear that children whose age is the subject of dispute are in very considerable difficulty. We have already given an account of the numbers of such children and the situations in which they find themselves. Therefore, it seems clear that we need to find some way of resolving the matter. I wonder whether the suggestion of such a panel would be acceptable, given the fact that there will be a degree of uncertainty. However, that uncertainty will not be so wide as to
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make the determination of age totally random. Clearly if you can get it right within two years, you would at least have some idea of whether you are dealing with a 16 year-old or a 20 year-old.
When we debated previous amendments, the Minister spoke about existing policy; indeed, I was most grateful to her for the way in which she did so. It seemed to me that what the noble Baroness was saying did embody the substance of subsection (3) of the amendment. I wonder, therefore, whether she would consider the contents of that subsection to be suitable for inclusion in the Bill. It is quite clear that the Immigration Service is operating its policy with sensitivity. That point has been made both by the Minister of State, Ann Widdecombe, and by the noble Baroness. Does the Minister feel that that part of the amendment would be worthy of consideration? I beg to move.
Viscount Brentwood: I originally wanted to support the amendment in principle, but I believe that my noble friend has answered my concerns about the treatment of young people. I hope that the noble Baroness, Lady Williams, will write to my noble friend with the details of the youth who has been in and out of detention for two years. I believe that my noble friend shares with me a horror of people under the age of 18 being in detention at all.
It is important that we investigate such situations to ensure that they do not recur. Young people awaiting the determination of an asylum application should not be kept in detention. Perhaps my noble friend could see that they are fostered out while the appeal is pending, I should be much happier with that.
My noble friend answered the questions posed by subsections (2) and (3) of the amendment and I am not sure that anything more is needed. However, I should like a further assurance that we will continue to treat child asylum seekers with the utmost care, and not push them into detention just because an assessor considers that they might be over 18. We have been informed, I think by the Refugee Council, that quite a number of juveniles have been detained because they were originally thought to be over 18 when they were not.
Baroness Williams of Crosby: I apologise that I was not in the Chamber when the noble Viscount started his remarks, but I wish to give him the assurance that I have every intention of writing about the case to the noble Baroness. It troubles me because my understanding is that as of 1st April the young person was still in detention and had been there for a substantial part of the past 18 months. I shall send the details to the Minister.
Baroness David: Despite the careful speech of the noble Baroness in response to the earlier amendment moved by my noble friend Lady Hilton, there are still anxieties about children being detained when they come to this country. So I am happy to support the right reverend Prelate's amendment.
After the sad death of Lady Faithfull earlier this year, I have taken on the job of chairing the all-party Group for Children for the remainder of the Session. I am anxious to follow her example in attempting to improve

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the plight of unaccompanied children asylum seekers. I am sure that most Members of the Committee here today will remember the amendment put forward by Lady Faithfull and the noble and learned Lord, Lord Brightman. Members will remember their successful efforts during the passage of the 1993 Asylum Bill through this House, when the noble and learned Lord moved an amendment at Report stage to set up the panel of advisers for unaccompanied refugee children at the Refugee Council. I very much regret that the noble and learned Lord is not here today as he has been seriously ill and, although improving, he will not be back for another week. His help would have been very much to our advantage while discussing these children. His amendment, which was supported on all sides of the House, was won by a large majority, 169 to 114.
The panel, set up and funded by the Home Office, has been highly successful and is working well. The Minister referred to it when she spoke earlier. The panel is very keen for the amendment to be accepted, as it would help in its work and give more power to its elbow. None of us can contemplate the detention of children with equanimity. Nor can we tolerate the removal of children to a country without certainty that they will be adequately cared for when they arrive there. And this does no more than put into law the informal Home Office policy that now exists and which again I spoke to earlier.
The acceptance of this amendment would be a real step forward in the protection of vulnerable children. I hope very much that the Minister can look on it favourably.
Lord Henderson of Brompton: I break my silence for the first time during the Committee stage to say that I too very much hope that the noble Baroness will respond favourably to the amendment. I especially bear in mind the words which she uttered earlier today which I noted, that understanding the need of children is very much the intention of the Government. If she could only display the generosity of that sentiment in regard to this amendment and the next, I should be most grateful, as I am sure would most of the Committee.
Lord Dubs: I support the amendment. I have already declared an interest in the Bill. Until about a little under a year ago, I was director of the Refugee Council. I was director at the time the panel was established. I hope that I played some part in ensuring that it came effectively into operation. I believe that it has been a success. It has done a great deal to protect the rights of unaccompanied refugee children.
The amendment would go one stage further. There can be no one who accepts the principle that children should be detained. I visited Campsfield House a couple of years ago. Children were detained there. I know that children have been detained at other centres run by the Home Office, prisons, and detention centres. It seems to me deplorable that young persons against whom there are no criminal charges, who are perfectly innocent, are being detained on the decision of a Home Office official. No matter how worthy the official, and how
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objectively the official seeks to use his or her powers, it seems wrong in principle that anyone should be denied his liberty in this country without a proper judicial process.
The amendment does not deal with that principle, but it provides a safeguard against children being held in detention. I give it my warm support.
Lord Winston: Perhaps I may ask the Committee to take note of one case which has just been drawn to my attention by the refugee legal centre. It illustrates some of the difficult problems with regard to age. An asylum seeker arrived in the UK in December 1994 when he was 15, giving his age as 21. He was held in detention for four months before being granted bail by the independent adjudicator into the care of Hillingdon social services. They accepted that he was a minor under 18.
The Immigration Service has always maintained that he was an adult. The asylum seeker has since been detained twice and is currently in detention as at 1st April 1996. That is despite two reports by independent medical experts. I know both medical experts. One is Dr. Persoff, a consultant fellow of the Royal College of Physicians; the other is Dr. Peter Renton, an expert radiologist whom I have known for many years.
Dr. Persoff reports that both clinically and radiologically the age of this asylum seeker is just now over 17, which accords with his stated age of birth. Dr. Peter Renton reports on his radiology, saying that the distal radial growth plate is on the point of fusing but is not yet totally fused, which would make his age around 17. So there is some congruence on that issue. However, the immigration services still do not believe that the asylum seeker is a minor, and he is being detained in a unit with adults. No special provision is being made for his education. It illustrates the difficulty of this grey area.
Lord Avebury: I am sorry to hear from the noble Lord that radiological techniques are being used for age determination despite the fact that he deprecated them earlier. I ventured to point out earlier that the BMA reached the conclusion that radiological techniques for age determination should not be applied, and that it was incorrect and ethically wrong to use a technique of an invasive nature, as the noble Lord has already pointed out, when there is no clinical necessity for it.
I say this with some regret because the absence of any reliable techniques for age determination was one of the factors which gave rise to the earlier amendment. It is at the centre of the amendment moved by the right reverend Prelate.
I suggested—I still believe that it is a sensible idea—that one should ask paediatricians to express an opinion and, if the Home Secretary wishes, take a majority opinion of several of them if there is doubt.
I warmly support the right reverend Prelate in the third of his paragraphs. If we could get the concessions that the noble Baroness said already exist written into the statute book, it would be highly desirable. Whatever the present Home Secretary may do regarding ensuring that adequate arrangements exist for the child's

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reception and care overseas, if it is not a statutory obligation it could always be watered down or eliminated by someone less liberal who occupies the post of Home Secretary in the future. I hope therefore that the noble Baroness will find it possible to do as the right reverend Prelate suggests and incorporate at least subsection (3) in the statute.
11.15 p.m.
Lord Burnham: Is the case to which the noble Lord, Lord Winston, referred in relation to this amendment the same as that referred to by the noble Baroness, Lady Williams, on a number of occasions in speaking to this amendment and earlier ones? It seems remarkably familiar.
Baroness Williams of Crosby: I think that is so.
Baroness Blatch: It is very difficult to respond to particular cases. I hope the noble Lord will write to me with the evidence that he cites in the course of this debate. I shall reply fully to him and make any reply I give to either the noble Baroness or the noble Lord available to Members of the Committee who have been interested in the debate.
I have to say to the noble Lord, Lord Avebury, that through both these and earlier amendments there is a desire on the part of the Opposition and the right reverend Prelate to put the burden of proof on the Home Secretary. It would seem that, given that the Home Secretary will not have the information that will give the particular age of a person—particularly in the case cited, in which the child himself actually claimed to be another age—that immediately causes a problem. To deny the methodology for determining age seems quite extraordinary and would create a conflict. As the noble Lord knows, I shall oppose the reversal of the burden of proof.
The amendment as worded would apply to any child who had expressed a fear of return, even where that fear was not based on any convention reason. It also confuses the issue of whether a child is a refugee with the issue of whether a child should be removed.
As I set out in great detail earlier, we recognise the potential vulnerability of an unaccompanied asylum seeking child. That is why we have special provisions in the Immigration Rules for handling their cases. Last year we set up a special case working unit to ensure that their applications were given priority and were considered by specialist case workers. That development has been widely welcomed.
During the passage of the Asylum and Immigration Appeals Act 1993, my right honourable friend the then Parliamentary Under-Secretary of State said in another place that the Government would not send an unaccompanied child to another country, whether or not that child had claimed asylum, unless they were satisfied that safe and adequate reception arrangements had been made. I am happy to repeat that commitment today. Any return of an unaccompanied child is arranged by negotiation with those responsible for his or her care.
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The Government's view is that where a child has no claim to refugee status it is normally right that he or she should be returned to their own family, community and culture. That is consistent with UNHCR guidelines which emphasise the importance of family unity.
If a child has no claim to refugee status but we cannot be satisfied about reception arrangements, then we grant the child exceptional leave to remain. But the decision whether to return a child must be made after the child's asylum application has been considered.
The amendment as worded would apply to any child who had expressed a fear of return, even where that fear, as I said, was not based on any convention reason; it is therefore open to abuse. While we sympathise with the sentiments behind the amendment, we cannot agree that it would add anything to our present safeguards for unaccompanied children.
Amendment No. 49 also deals with disputes over the age of an applicant. As I have already explained, the Immigration Rules define an asylum seeking child as a person who is under 18 years of age or who, in the absence of documentary evidence, appears to be under that age. This amendment would reverse the current position and require the Secretary of State to demonstrate that a claimed age for which there was no evidence was incorrect. I explained in relation to other amendments why it is right that the burden of proof should remain with the applicant.
To return to the statistics I gave on this point earlier, the vast majority of applicants are 16 or 17. It seems to me that if somebody claims to be 16 or 17—indeed, if somebody older than 18 claims to be 16 or 17—in order to enjoy the more generous provisions, it is incumbent upon somebody to prove that that is his (or her) age. That is the case of the person who I understand from what has been said had claimed to be 24 when in fact that person was only 15, 16 or 17.
The right reverend Prelate asked me a particular question. We are prepared to look at any evidence submitted on behalf of the applicant as to the applicant's age. That can include medical evidence and indeed any evidence that would substantiate the age that is claimed. But we see no need for setting up a new mechanism for that purpose.
Let me also say to the right reverend Prelate, who referred to a statutory reference to reception arrangements, that we believe that such a measure is unnecessary. It would address a non-existent problem. No one—certainly no one speaking in the debate today, now or earlier—suggested that our approach to ensuring reception arrangements in the receiving country is anything other than scrupulous. We have never been found wanting in that regard. I therefore hope that the amendment will not be accepted.
The Lord Bishop of Ripon: I am a little disappointed that the Minister is not willing to look a little more favourably on the amendment, especially in view of the widespread view in this House that, although our practice is good, it would be even better were it enshrined in statute. Clearly, I shall withdraw the amendment, but I hope that the noble Baroness will be willing to consider

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the matter a little further. We shall return to this matter on Report. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness David Baroness David moved Amendment No. 50:
After Clause 3, insert the following new clause—
REFERRAL OF CHILDREN TO PANEL OF ADVISORS
(". Where a person is, or appears to be, or alleges that he is, under the age of 18 years and expresses a fear of return to his country of origin, it shall be the duty of those statutory services who are aware of his circumstances to refer him to the Refugee Council Panel of Advisors for Unaccompanied Refugee Children, unless the child objects to such a referral.").
The noble Baroness said: The amendment stands in my name and that of the noble Lord, Lord Henderson of Brompton. It would ensure that all statutory authorities that became aware of the circumstances of an unaccompanied refugee minor would have a duty to refer that child to the Refugee Council's panel of advisers for unaccompanied refugee children.
We are still dealing with children but also with a new point. On the last amendment, I explained about setting up the panel of advisers and how it was agreed. In fact it opened in 1994. Since then it has received just over 1,000 referrals. Currently, it is headed by a co-ordinator who runs a team of 29 advisers. Last year, the National Institute of Social Work conducted an evaluation of the panel and found that it met all its stated objectives. The Home Office has agreed funding. Indeed, it has increased the funding. Local authorities agree that the panel has been a help to them in their work, and more importantly, refugee children have found that there is someone at hand to help them through a bewildering asylum process and ensure access to those services to which they are entitled. In short, the panel has been a success.
The majority of cases are referred to the panel by the Immigration Nationality Department of the Home Office. There have, however, been many cases where a child who had entered the UK has not been immediately or promptly referred to the panel. That may be because he (or she) has not claimed asylum, even though the child fears to return to its country. In such cases, a child may enter the country without claiming asylum and may subsequently be referred to a social services department as being unaccompanied and without a carer; or it may come to the attention of social services or the local education authority that a child unaccompanied by its parents is being cared for in an informal arrangement with members of the child's community.
Social services departments may be more concerned with providing care to a child than sorting out the child's immigration status, which may be a lengthy process and will depend on gaining the trust of the child, who will have to explain how it reached the UK, its reasons for travelling and how long it had been here when the social services department intervened. It is important, though, that children who are in fear of returning home should make a prompt application for asylum and should benefit from the Refugee Council's expertise and an independent adviser's support in the process right from the start. The amendment seeks to ensure that that is
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the case by ensuring that all such children are promptly referred to the panel, regardless of the point at which they claim asylum.
I have a number of examples—not referred to before—bearing out my argument. I will just state one. A 16 year-old boy from Zaire was referred to the panel in January 1996, though he arrived in the UK in 1994. He had been looked after by a local authority and was placed with foster parents. At the time of referral his immigration status was unclear; indeed, the reason for referral was to seek the assistance of the panel in establishing his status. The adviser arranged legal representation and accompanied the young man to the Home Office so that the question of his status could be resolved. He further liaised with the social services department so that he could be referred for some much needed counselling.
That case outlines just one example where the panel received referrals. It is anxious to help with the difficulties because we do not want children remaining illegally. They may have come as a visitor and over-stayed, but they are therefore here illegally and it is important that someone helps them properly to establish their status. The amendment is simple and would probably not involve many children. It would be a great help and the panel is keen for the amendment to be accepted. I hope it will be. I beg to move.
Lord Henderson of Brompton: Perhaps I may say a few words in support of the amendment moved by the noble Baroness, Lady David. I would have thought that the Government could accept this amendment. I hope that I can have the attention of the noble Baroness.
Baroness Blatch: I apologise to the noble Lord, but I have been concentrating extremely hard on this Bill and every now and again I have to confer with my Whip for information. I hope the noble Lord will forgive me for that.
Lord Henderson of Brompton: Of course I accept the graceful explanation of the noble Baroness—but she is again talking to her noble friend instead of listening to me while I make a few points.
All I wish to say is that the noble Baroness, Lady David, expressed the view of the panel that the reference to the Refugee Council panel of advisers should be as early as possible. The panel has many examples. The noble Baroness gave one. It is too late at night for me to give others. But there is no doubt that the panel is working extremely well. It would work much better if there was a statutory requirement for reference to it of appropriate children to be made early. That is all there is to it. I hope that the noble Baroness will look at the amendment sympathetically.
The Lord Bishop of Ripon: I add my support to the amendment. Clearly the panel of advisers which was established during the passage of the 1993 Bill has proved a great success. It met all its stated objectives, as the noble Baroness, Lady David, said. Funding has been agreed for it; local authorities agree that it has been

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a help to them, and refugee children themselves find that there is someone at hand to help them through this bewildering process.
There have been cases—indeed, a good many—where children have entered this country but have not been promptly or immediately referred to the panel. That creates difficulties. They may be referred to a social services department which will be more concerned with providing care than with sorting out the immigration status. It is important that the children should have access to the panel of advisers, which has proved itself so well. I hope therefore that the noble Baroness will give favourable consideration to the amendment.
Baroness Williams of Crosby: This appears to me to be precisely the kind of amendment that the Government may feel able to accept. It does not raise questions about bogus applications or about methods of getting around procedures. It is simply an extremely helpful proposal to refer young people to this expert council of advisers. I hope that the Government, who have so far been reluctant to accept amendments, at least on the occasion of today's Committee sitting, will consider doing so.
The amendment would relieve some of the burden of work on the immigration department. It would enable the Refugee Council panel of advisers to make its own judgments about the child and how much he or she might be at risk, and, indeed, perhaps about the precise age of the child. However, the crucial point is that the child would have people to whom he could turn, people whom he could learn to trust and people whose job it would be to try to assist him to resettle in this country, if that were the ultimate outcome of the case. I wonder whether the Minister might not consider accepting what seems to be a wholly helpful amendment and not one that constitutes any clash of ideology or principle.
Lord Hylton: In replying to an earlier amendment the noble Baroness the Minister took exception to the words,
"expresses a fear of return".
One understands her reason for doing so in that she thought that in the context of previous amendments this was too wide. I do not think that objection can be made in the case of this amendment. I say that because, being in a strange country, a child may easily have genuine fears of all kinds. It is such fears that can best be dealt with through the help of the panel of advisers.
I say in passing about the panel that it fulfils the kind of role that is fulfilled in this country in respect of British children by people like the amici curiae or the Official Solicitor. Therefore, the panel of advisers is extremely valuable in ensuring that the child's state of mind and all his personal details are dealt with in an appropriate manner. I hope that the amendment will commend itself to the Government.
11.30 p.m.
Baroness Blatch: I am again somewhat perplexed by the example given by the noble Baroness, Lady David. I hope that she will write to me with details of it. She
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said that the child arrived in 1994 and was not referred until 1996. If that is the case, did he arrive as an asylum applicant in 1994? Were the authorities aware of him in 1994 as an applicant for asylum? If that is the case, I am quite puzzled, because my understanding is that child applicants are dealt with almost within hours of arrival. I find it very strange that someone has been in the country for two years without being referred. I would ask the noble Baroness to write to me with details of the case to which she has just referred.
The panel of advisers is a non-statutory body administered by the Refugee Council. The advisers act as friends to unaccompanied children seeking asylum and assist them in their dealings with the Home Office, social services and other agencies. In the last financial year the panel dealt with around 700 children. The panel is valued by all those working with unaccompanied children and has proved to be another positive development in this sensitive area.
Amendment No. 50, as drafted, would extend the services of the panel to children who were here with their families. That is neither necessary nor appropriate. The purpose of having a panel of advisers is to offer help to children who do not have relatives or guardians who can look after their interests. It is entirely right that a child who is with relatives should look to his or her own family for assistance.
The amendment would also place a statutory duty on all the agencies dealing with a child to refer him to the panel. A child asylum seeker is likely to have dealings with several different agencies; for example, education services, health services and, if the child is unaccompanied, social services. It would be unnecessarily complicated and burdensome to require all these bodies to refer a child to the panel. Well over half of all referrals are made in the first instance by the Immigration Service or the Asylum Directorate. That is done extremely speedily after they enter the country. Our special unit dealing with unaccompanied children checks to see whether a new case has been referred, and if there is any doubt it will contact the panel. The Asylum Directorate and the Voluntary Services Unit have regular meetings with the panel to discuss its performance and matters of mutual interest. The current arrangements are working well. We do not know of any complaints about them. The cases which have been raised in the course of this debate really are very strange. We intend to look into them, but we see no need for any change. Therefore, I hope that the amendment will not be pressed.
Baroness David: I thank all those who have spoken in support of the amendment. Quite a number of people have done so and I am very grateful for that. I am very disappointed with the Minister's response. It is the children who have slipped through the net and have not been noticed, about whom we are concerned. I believe that the boy from Zaire had been here since 1994 and he had somehow slipped through the net. His immigration status had not been satisfactorily dealt with. That is the sort of case we do not want to let slip through.

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If the wording of the amendment is being criticised, I intend to have it looked at. I shall take the amendment away for the time being. I shall come back with it because it is a very reasonable one which will help a certain number of children who are not referred at the moment and who have slipped through. I am sure that the criticisms of the wording of the amendment will be noted. I shall certainly return at Report stage with a slightly differently worded amendment which will take account of the Minister's response.
I still believe that it is a very disappointing reply. We are asking for a very simple thing which will help the children. The panel is very ready to deal with these situations and to help the children. As I say, I am very disappointed. I shall take the amendment away and see whether I can bring something back which will be more acceptable to the Minister.
Baroness Blatch: I do not know how many times I have said it during the course of the day, but I am surprised that the noble Baroness has not accepted my word that unaccompanied children who apply for asylum are referred to the panel, the social services, education and all the other agencies. Is the noble Baroness actually citing the case of a child entering the country in 1994, seeking asylum and not being referred until 1996? Is she saying that the child slipped through the net? That means that perhaps the authorities were not even aware of the person being in the country. How can the Government possibly respond to a problem which they do not even know is there? The noble Baroness must explain how the child was made known in 1994 and not referred to the panel until 1996.
Baroness David: The point is that they had not applied for asylum. They may have been here.
Baroness Blatch: But we did not know about it.
Baroness David: Indeed, and that is the point. We do not want to have children here on an illegal basis. That is the whole point of the amendment.
Baroness Blatch: If we do not know that they are here, we cannot refer them to any panel, statutory or otherwise. Unless we actually know that they are here, how can any measure in this Bill help?
Baroness David: I am not saying that the Government can do it. In this amendment we are asking the local authority, or whoever knows about them, to refer them to the panel. I am not saying that it is the job of the Home Office because it may not know about this. If the child is with foster parents, or something like that, or in the care of the social services, they must know about it. But they may not have taken the action to give the child proper asylum status. That is what we want to try to put right in this amendment. I beg leave to withdraw the amendment
Amendment, by leave, withdrawn.
Lord Clinton-Davis Lord Clinton-Davis moved Amendment No. 51:
After Clause 3, insert the following new clause—
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SECRETARY OF STATE'S ASSESSMENT OF COUNTRY
(" .—(1) The Secretary of State shall make available to any asylum applicant or appellant on request his assessment of the conditions in the country of nationality or habitual residence of the applicant or appellant, provided that in the preceding 12 months at least 50 asylum applications were made by applicants from that country.
(2) Any assessment provided in accordance with subsection (1) shall include information on general political circumstances, on abuses of human rights by the national government or any other person and on the legal system.").
The noble Lord said: We seek here greater transparency on the part of the Secretary of State. We want him to publicise his assessment of conditions in the countries from which asylum seekers originate. I believe that that is a perfectly reasonable thing to expect. The UNHCR sets out in its handbook guidance for the states which interpret the 1951 convention. I shall not quote that because the Minister is very familiar with it. The essence of it is that a knowledge of conditions in the applicant's country of origin is an important element in assessing the applicant's credibility.
The Government made some moves in another place because Ann Widdecombe, the Minister of State at the Home Office, said in Committee (at col. 89 of Hansard on 11th January 1996) that the Government had undertaken to provide Parliament with country briefing papers prepared by the Home Office about conditions in countries which are to be designated. She also said that in deciding whether that fear was well founded, asylum case workers would rely on information provided by the individual and by the Foreign and Commonwealth Office and on updated information on the conditions prevailing where the man lived, including on the country in which he lived and the particular geographical area from which he came. That is all very fine.
The problem is that taking, for example, Nigeria, the way in which the Home Office went about its business of assessing the situation was wholly defective. In 1994 the American State Department reported of Nigeria:
"The Government routinely detains human rights monitors, journalists and political opponents throughout the year for publishing statements critical of the government".
Of course, it got much worse than that - with attacks on trade union activists, on political activists and on anybody who criticised the Nigerian Government. Then we had the arrest and ultimately the judicial murder of Ken Saro-Wiwa. At that very time when Ken Saro-Wiwa and his colleagues were being detained, the Home Office, with its all-pervasive wisdom, was telling immigration officials that there was no evidence that Ogonis faced persecution from the Nigerian authorities for membership of MOSOP. That is extraordinary and outrageous. It shows how defective the judgment of the Home Office can be. But perhaps it is not the judgment of the Home Office; it may be the judgment of the Foreign Office. In any event, it is the judgment of the Government and they must face up to that responsibility.
When the matter was raised in another place, the Minister chose not to reply to that point. I believe that it is important that the Government should not only make country assessments in countries to be designated

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available, but that they should provide the maximum information in the most public way. The material should be made available not simply to Parliament by putting it in the Library; it should be made available to applicants and appellants so that they can assess how relevant it is. They should be in a position to challenge inaccuracies. That is simply not the case at present.
It is interesting that in a recently published report, commissioned by the Asylum Rights Campaign, a special adjudicator is quoted as having stated in a determination of an asylum appeal:
"In this case the Secretary of State 'understands' that if an individual is not politically active and is only involved in trade unions, he has no reason to fear persecution. I find some difficulty in following that argument and I do not know where he 'understands' it from"—
that is, where the Secretary of State understands it from. I think that we should all like to know where the Secretary of State understands it from.
I have a case at present involving a Nigerian. The Secretary of State says, "I have no reason to believe that this man is at risk", in a situation where he has been actively involved in this country over some years now against the Nigerian Government—against that dictatorship. The Government must be much more frank and open because it can be a matter of life and death. It is not satisfactory for the Government to live in a make-believe world and to say that somehow or other most people are okay in Nigeria and have little to fear. That is not the case. The Secretary of State knows that and I fear that in this respect his conduct has not been up to the highest standards that we expect of a Home Secretary. I beg to move.
11.45 p.m.
Lord Avebury: I support the noble Lord's amendment and underline the fact that the Home Office has, to my knowledge, published only two country assessments. Those assessments relate to Nigeria and Ghana. It would be very helpful if we knew the background to the department's thinking on many other states from which asylum seekers arrive in this country. I am afraid that the knowledge of the Home Office is grossly inadequate. I reach that judgment on the basis of the standard of the replies given by the noble Baroness in the individual country debates held last week. Some of those misstatements have been repeated in a letter from the noble Baroness that I received only this morning. I did not bring the letter with me and I do not read it out. But I remember two statements in particular. One was that the National Human Rights Commission in India had jurisdiction over Kashmir. I had pointed out to her in last week's debate that it was specifically estopped from looking at human rights violations in that territory. The other statement was that the International Committee of the Red Cross had access to places of detention in Kashmir, whereas only recently it had been forced to withdraw. The knowledge of the department as to the situation in that territory is grossly inadequate.
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We have already heard about Nigeria from the noble Lord who moved the amendment. We also touched on this matter last week. The Home Office had to withdraw the first instalment of its country assessment on Nigeria when it was heavily criticised, as the noble Lord, Lord Clinton-Davis, will remember in a pamphlet published by the Refugee Council under the title Beyond Belief: The Home Office and Nigeria. That contained a long litany of errors and omissions in the Home Office's document, some of which we had already taken up. For example, it was said that the National Consultative Assembly was an elected body for the majority of delegates. It had to be pointed out to the Foreign Office and the Home Office that only 300,000 people voted for the elective seats on the National Consultative Assembly but that a third of the seats were nominated by the military head of state, General Abacha. It was that kind of omission and distortion of the facts which gave a totally misleading impression of the state of human rights in Nigeria and the likelihood that anybody would have to seek asylum from that country. It is not surprising that, given that the wrong impression has been created by the Home Office document, during the first four months of 1996 there has not been a single asylum application from Nigeria accepted in this country. I believe that applicants are entitled to know what is being said about these countries so that they can contest the misstatements of fact and errors by way of omission that lead adjudicators in some cases to reach the wrong decisions.
Earl Russell: The noble Baroness may be well advised to accept the amendment. It may save a great deal of trouble. Should she not accept it, it is my understanding that, if Parliamentary Questions were to be tabled asking for the assessments for each country in turn and severally, the noble Baroness would be bound under the procedure for Questions to Ministers to give answers which did not knowingly mislead the House. It might be tidier and more economical if she accepted the amendment instead.
Baroness Blatch: Does the noble Earl suggest that I have misled the Committee, that I may mislead the Committee or that I would not mislead the Committee?
Earl Russell: None of those matters at all. I simply suggest that the noble Baroness would be under an obligation to answer the Questions.
Baroness Blatch: With or without the amendment, I am under an obligation to answer questions honestly at the Dispatch Box. I believe that I have always done that. I was extremely open with the noble Lord, Lord Avebury, in the point that he raised on country matters on another part of the Bill. I have written to him fully in a letter since then and have no objection to his making that public. I refer in particular to the point raised by the noble Lord on Kashmir. The noble Lord admitted that the Human Rights Commission had been invited to investigate an incident and that it had been an extra-judicial killing. Even that point has been referred to previously.

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Asylum seekers often base their claim, at least partly, on allegations of human rights abuses and persecution in their country. Wherever that is a significant issue in the claim, the letter giving reasons for refusal will respond by setting out the Secretary of State's view. That view can then of course be challenged by the applicant on appeal. In addition, we have made available written country briefs on Nigeria and Ghana setting out our assessment of conditions in those countries. Those briefs are available to applicants, representatives and adjudicators.
Furthermore, we have undertaken to provide assessments of all countries we put forward for designation under Clause 1. Those briefs will be provided to Parliament as well as to the appellate authorities and will be available to applicants. Similar briefs on other countries of origin are also planned.
Against that background, I oppose the amendment for two reasons: first, it is unnecessary; and, secondly, it gives unjustified prominence to an issue which should form only one element in the overall consideration of the asylum claim. At present the Secretary of State is under a requirement to consider all matters which are relevant to the asylum claim. In setting out reasons for refusal, he must address any matters which are central to the claim. To the extent that that requires responding to allegations about conditions in the country, the obligation to do so is already here.
But the assumption behind the amendment is that the assessment of general conditions in the country is prescriptive of the decision. That is misguided: each case is considered on its individual merits, taking account of the facts and the circumstances relating to the particular case. An applicant from a country with human rights defects may be at no risk of persecution, and an applicant from a country with a good record may, nevertheless, have a well-founded fear of persecution. In short, the obligation on the Secretary of State should be to give reasons for refusing the application. We see no merit in imposing any requirement beyond that.
Much has been said about Nigeria. I shall say just a word or two about it. The Government of course share the concerns about the human rights record in Nigeria, including the deplorable execution last November of Ken Saro-Wiwa and his eight associates. We are monitoring the complex situation closely with the FCO, but consider that individual Nigerians whose claims have been individually considered and properly determined can be returned under normal immigration procedures. We have no reason to believe that those being returned are facing difficulties. The Home Office disclosable brief on Nigeria was updated in December 1995 to take account of more recent developments, including the execution of Ken Saro-Wiwa. Further updates will be delivered as necessary.
The overall assessment remains that ordinary Nigerian citizens can express their political opinions without fear of persecution. Independent adjudicators overwhelmingly agree with Home Office decisions in
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Nigerian cases. The Refugee Council report of 9th October criticising earlier background brief was highly selective. It overlooked the essential point that asylum applications are considered on their individual merits. That is our obligation under international agreements. A full response was sent to the chief executive of the Refugee Council on 15th December 1995.
Perhaps I may say to the noble Lord, Lord Avebury, that the Home Office did not withdraw the Nigerian brief. The first version was made public months before the deplorable execution of Ken Saro-Wiwa and his colleagues. It was entirely right to update the report to take account of those and other relevant events, and that is precisely what happened.
Lord Clinton-Davis: I find that reply mind-bogglingly complacent and indifferent to the realities of the situation within Nigeria. How does the Minister know with certainty that the individual cases with which the Home Office is dealing are people who will not disappear? Does it keep an eye on them? How does it know?
The truth of the matter is that they do not know. How on any reasonable basis could the Government come to the conclusion at which they arrived in 1995 before Ken Saro-Wiwa was killed while under arrest? How could they come to a conclusion which was so markedly different from that of the United States? The fact of the matter is that they misled themselves, quite apart from misleading the country, because they wanted to come to that conclusion.
In the light of all those circumstances, how, realistically, could the Government have reached those conclusions in good faith? Of course, they have an overwhelming desire to ensure that we have as few asylum seekers as possible, so the conclusion is that, if there is any doubt about them, send them back, even to Nigeria.
The Minister says that the amendment is unnecessary. I come to a sharply different conclusion. I believe that there is an obligation on the Committee to press the Government on this point. She says that each case must be decided on its merits. I do not believe that the Government are capable of deciding each of these cases on its merits because they do not know what will happen to these people. She says that such people may by at no risk of persecution. That is far from certain. I believe that the Minister's response is so unsatisfactory that I wish to seek the view of the Committee.
11.56 p.m.
On Question, Whether the said amendment (No. 51) shall be agreed to?
Their Lordships divided: Contents,12; Not-Contents, 37.

division no.3

contents

Avebury, L.

Harris of Greenwich, L.

Clinton-Davis, L.

Hylton, L.

Dubs, L.

McIntosh of Haringey, L

Graham of Edmonton, L. [Teller]

Ripon, Bp.

Hacking, L.

Russell, E. [Teller.]

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Williams of Crosby, B.

Winston, L.

NOT-CONTENTS

Addison, V.

Kinnoull, E.

Blatch, B.

Lindsay, E

Brabazon of Tara, L.

Liverpool, E.

Brentford, V.

Long, V.

Brougham and Vaux, L.

Lucas, L.

Burnham, L.

Lucas of Chilworth, L.

Carnock, L.

Mackay of Ardbrecknish, L

Chalker of Wallasey, B.

Mackay of Clashfern, L. [Lord Chancellor]

Chesham, L. [Teller]

Courtown, E.

Miller of Hendon, B.

Cumberlege, B.

Mountevans, L.

Dean of Harptree, L.

Northesk, E.

Denton of Wakefield, B.

O'Cathain, B.

Dixon-Smith, L.

Rankeillour, L.

Gardner of Parkes, B.

Rawlings, B.

Goschen, V.

Shrewsbury, E.

Harlech, L.

Stockton, E.

Henley, L.

Strathclyde, L.[Teller.]

Inglewood, L.

Trumpington, B.

Resolved in the negative, and amendment disagreed to accordingly.
12.4 a.m.
Baroness O'Cathain Baroness O'Cathain moved Amendment No. 51A:
Before Clause 4, insert the following new clause—
CARRIERS' LIABILITY
(". In section 1 of the Immigration (Carriers' Liability) Act 1987, after subsection (2) there shall be inserted—
"(2A) No liability shall be incurred under subsection (1) above in respect of any person who on arrival is granted leave (including limited leave) to enter or remain in the United Kingdom.".").
The noble Baroness said: Before moving this amendment, I should like to express my gratitude to the officials in the Public Bill Office and the Government Whips' Office who have been most kind in rearranging the position of Amendment No. 67 which is now Amendment No. 151A so that I can be absent on Thursday to attend to a sad family matter abroad. I apologise to Members of the Committee who may have been inconvenienced because of that but I am exceedingly grateful for the help and courtesy that I have received.
On Second Reading, I raised anxieties about the operation of the Immigration (Carriers' Liability) Act 1987. I sought guidance on the scope of the Bill to establish whether I might draw that Act into our debate. I have been advised that the Bill's wording, which includes the words "other connected matters", provides me with such an opportunity. While some may think that the issue I am raising is peripheral to the core concerns raised in the Bill, I believe, nonetheless, that this is an important opportunity to put right a particular injustice.
I had been aware of the broad problems consequent upon the carriers' liability legislation for some time, but my awareness was certainly heightened when I joined the board of British Airways. At this point I must, of course, declare an interest in that respect. However, I can assure Members of the Committee that my concern about the issue is certainly not solely due to the
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inconvenience and financial penalty incurred by British Airways, other airlines or even shipping companies. Indeed, the Chamber of Shipping, which represents the ferry industry, supports the amendment. My concern is the fundamental issue of wanting to see justice and fair play done.
My amendment relates to one very specific element of the carriers' liability Act which I will describe later. Members of the Committee may benefit from a brief description of the background to the issue. The Immigration (Carriers' Liability) Act requires carriers to pay a charge, as they call it, of £2,000 in respect of any passenger that they bring to the United Kingdom who is carrying incorrect documentation; or, indeed, in some cases, no documentation at all. Documentation seems to go mysteriously missing between the check-in point in the foreign country and the arrival point in the UK.
Carriers accept that responsibility; indeed, most of them employ considerable resources to comply with the requirements. I do not seek to question the expectation of UK Immigration in respect of compliance generally with the Act. However, since Second Reading, I have visited Frankfurt Airport to see for myself the problems created by the legislation. The difficulties that check-in staff encounter in attempting to comply with all the complexities of the legislation are truly mind boggling and, quite honestly, have led me to assert that all staff dealing with the processing of passengers for flights—and, indeed, for sea crossings—to and from the UK are expected, in effect, to act as unpaid immigration officials.
There is also quite a disturbing side to the process. Experience over many years has indicated that illegal immigrants, who, in the overwhelming majority of cases, are actually economic migrants and not genuine political asylum seekers, come from countries where the colour of their skin is different to the majority in this country. Because of many cases where such people have proved to have had incorrect or forged documentation, the check-in staff are doubly wary. They are trained to engage in what is euphemistically called "profiling" in an attempt to avoid causing an offence under the terms of the Act. However, by that very attempt to avoid causing an offence under one Act they are running a huge risk of committing an offence under another; namely, legislation dealing with racial equality.
I have to say that I am most grateful to my noble friend the Minister, who gave me some time a few weeks ago and listened to my explanations regarding the background to my concerns. At our meeting with officials, I was able to expose much of the detail of certain cases; and, indeed, I had a most sympathetic hearing. The purpose of the Immigration (Carriers' Liability) Act was to reduce the number of passengers arriving in the UK with no proper documentation, indicating in the great majority of cases that they had no right to be here. The airlines and ferry companies had to tighten up their procedures and accept that, if they make an error, they have to face the consequences in terms of fines or charges for detention.
I personally feel that that is harsh. Let us just imagine the stress put upon check-in staff who have to process upwards of 200 passengers in 20 minutes or so. During

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the period of each process they have to ensure that tickets and passports are valid and that they meet the seat requirements of those individual passengers. Australia has one stamp and one visa; the United Kingdom has something like 17 different stamps and forms of visa. Coping with passports in Arabic, Chinese, Nigerian, Sri Lankan and so on leads to a huge number of permutations. Six seconds per passenger does not give much time to do all that.
In order to cope with the complexity, British Airways alone has a dedicated department of five full-time staff whose responsibility is to train check-in staff in 80 countries on how to detect forged passports and visas. It is a complex undertaking made even more complex by the fact that in many cases the staff in those countries do not belong to British Airways, they are staff who work for a local monopoly or the handling agency and who do not have the same incentive to ensure that all is correct. This activity alone costs British Airways some half a million pounds per annum. On that basis, the total costs for all airlines and ferry operators bringing passengers to this country could amount to a significant sum.
My amendment addresses immigration expectations under certain very specific circumstances when it actually allows an incorrectly documented passenger to enter the United Kingdom by granting what is called leave to enter or exceptional leave to enter. This normally occurs when incorrect documentation is acknowledged not to be a wilful act of deception. The passenger is in effect given the benefit of the doubt. Under these circumstances, I submit that the carrier ought also to be given the same benefit of the doubt resulting in exemption from the fine of £2,000. At Second Reading I described the case of the mother with the new-born infant who had omitted to get the new-born infant registered on her passport. It was a passport which, incidentally, was utterly correct in very other respect. The mother and infant together were granted leave to enter but the carrier was fined £2,000. Laudable common sense and compassion were extended to the mother and infant, but not to the carrier.
A similar situation arose again with an airline where a mother with four children on her passport but not on her visa arrived in the United Kingdom. Again, of course, the children were granted leave to enter, but on this occasion it cost the airline £8,000. In another case, a former diplomat arrived from America with a visa which had expired. Being known as a reputable person, of course he was granted leave to enter, but the airline again had a £2,000 fine. I have made the point before but it is one worth repeating that, while UK immigration on such occasions shows laudable common sense and compassion towards the passenger, that is not extended to the carrier. The only person to benefit is the passenger who caused the problem in the first place.
Carriers do not know how many such cases occur, but an examination of the statistics suggests that in 1994–95 a total of 2,742 passengers arrived without a visa, or with a visa that had expired, but were subsequently permitted to stay. That total represents more than a quarter of the total number of inadequately documented arrivals in the United Kingdom that year. Removing
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those passengers from the equation would, of course, relieve carriers of a sizeable burden, but it would also reduce the vast amount of paperwork by the immigration service that each case involves.
One of the major concerns raised in the debate on the Asylum and Immigration Bill has been the requirement for additional resources to speed up applications for asylum. If my amendment is accepted, it would certainly free up resources which could then be channelled into helping genuine asylum seekers.
Just as an aside, in Germany—a country so often held to be the example of best practice—the immigration authorities do not fine carriers for breaches of this kind, provided they have made best efforts to prevent their occurrence. Similarly, Canada adopts the German practice. This amendment seeks to put us on a similar footing and I submit that it is logical and fair. I beg to move.
Earl Russell: We have been dealing all day so far with injustices to the weak and helpless. We are now dealing with an injustice to the rich and powerful, but that does not make it any less of an injustice. Justice is proverbially blind and an injustice to one person is just as much an injustice as an injustice to another. It is in that spirit that the Committee should consider the amendment, which seems to me to offer a serious case.
I agree that it is an improper privatisation, in effect, of government responsibility by handing responsibility for the quite important job of checking some technical papers to a body which is not part of the public service, whose objectives are different and which can get its staff to do it only by an exhaustive process of training which is not part of their normal work.
I remember one case referred to in 1991 when we discussed the issue previously. My noble friend Lord Harris of Greenwich states that it was not quoted by him. It concerns a flight from Toronto to Copenhagen. It touched down at Glasgow and was prevented from going on by bad weather. The airline very properly decided that, since it could not fly its passengers further that day, it would get them a hotel overnight in Glasgow and fly them on the next day when the weather was better. It was made to pay the fine for each passenger that it landed. That is slap within the purpose of the amendment. Those passengers were given leave to enter; they went on the next day; and they did no possible harm to the United Kingdom. What really sticks in my gullet about that case is that the imposition of the fine was an incentive to be neglectful of air safety. I am most grateful to the airline that it did not succumb, but it should not have been put under that temptation.
I understand that this situation is costing British Airways £2.5 million a year. It is a considerable sum of money which begins to approach the character of taxation. I do not know by what authority that taxation is raised. It is taxation for things which are not under British Airways' control and not morally, legally or otherwise its responsibility.
Let us take the example of the case put forward by Singapore Airlines. A lady, Mrs. J. Mbabazi, was flying from Singapore to Abu Dhabi. Her flight was delayed,

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so she got on a flight to London which had a connecting flight. It was expected that she would not go outside the airport area. However, entirely unforeseen by the airline, she decided to land herself in London and spend the night at a hotel because she was tired. That is a perfectly intelligible decision and not in any way the airline's responsibility. But the airline was fined for it.
Airlines are made to pay for any so-called mistake, but they are not given any financial support for doing the Government's work for them. That provides a contrast with the procedure under the Education (Student Loans) Act 1990 when a similar piece of government administrative work was offloaded on to the universities. I was glad—I welcomed it warmly at the time—that the Government agreed to pay the universities for the work they did for them. If the Government must insist on carriers' liability, I do not see why they should not apply the same principle here.
We have been debating much this evening on the third country removal in which people are shuttled to and fro between airlines. That is done at the airlines' expense. When the noble Baroness turned down the amendment asking for the third country to agree to the removal before the person was removed, she was unloading a great expense on the airlines for something that was no responsibility of theirs.
Finally I wish to ask the noble Baroness this question. I shall return to the issue if we do not receive an answer tonight. Clause 5(1)(b) makes it an offence to assist an asylum seeker—an offence to assist someone in doing what is perfectly lawful. Does that clause create a new carriers' liability? I think we should be told.
Lord Brabazon of Tara: I have my name to this amendment. I support my noble friend's remarks. My noble friend the Minister will be aware that in the past I have been somewhat critical of the operation of the Immigration (Carriers' Liability) Act. As has been said, it is not the job of airline or ferry employees to act as unpaid immigration officials. I know that both the airlines and the ferry companies have spent large sums of money in training their people to enforce the provisions of the Act as best they can. It therefore seems exceptionally unfair if, following the entry of someone who is given leave or exceptional leave to enter this country by immigration officials, the airline or ferry company should still be liable to pay the £2,000 fine. It is as if you won a case in the courts and, even though you won the case, you were still expected to pay the costs of the prosecution. That is not fair. My principal argument on this issue is one of fairness.
The noble Earl, Lord Russell, quoted a case from Singapore Airlines. If he had not done so, I should have quoted it myself. That person came into this country, previously having no intention of staying here. Finding that she had a 12-hour wait in transit at Heathrow, she decided to come into London. I have no doubt that, having done so, she spent some money, which was all to the good of the economy of London. She then returned to Heathrow and departed on her way to Entebbe, where she originally intended to go. The
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immigration officials had given her leave to enter this country; yet the airline was still fined £2,000. That is just not fair.
I continue on the case of Singapore Airlines only to say that, under the regulations, last year (1995) Singapore Airlines was involved in 42 cases under the Immigration (Carriers' Liability) Act. In 31 of those the fines were waived following often protracted appeal. In three-quarters of the cases the fines were waived. I suppose that could be used as argument either way. In my opinion it means that current legislation is badly drafted and needs to be brought into order. If someone can be charged 42 times and let off 31, there must be something wrong with the way the law is being operated.
My noble friend referred briefly to the ferry industry. I know that it feels very strongly about this issue, too. There is a slight difference between the ferry industry and the airline industry. It costs probably only £20 for a foot passenger to get across from the Continent to here on a ferry. Therefore the fine of £2,000 is 100 times the basic fare. At least the airlines probably receive a little more from their passengers to offset against the fine than the ferry companies do. Furthermore, the ferry companies have the problem of people hiding themselves in the back of trucks, in containers and so on, which at least the airlines do not have.
The ferry companies feel particularly aggrieved; and I ask my noble friend to address this issue. Why is the Channel Tunnel, which is in direct competition with the ferries across the Straits of Dover, exempted from all these fines when the ferry companies operating exactly the same route are liable to pay £2,000 every time they bring an illegal immigrant across? I hope my noble friend will examine these issues with care.
This amendment is not designed to upset the entire Immigration (Carriers' Liability) Act. It is designed only to address one particular anomaly; namely, of those people who, after they arrive here, are allowed by the immigration authorities to stay; yet even after they are allowed to stay the poor old carrier, whether a ferry company or an airline, is still fined £2,000. That does not seem fair.
Lord Mountevans: I too want to support the amendment of my noble friend Lady O'Cathain. I dare say that it will come as no surprise to those who are aware of the implications of the carriers' liability legislation. On the other hand, it may surprise the Committee to hear that I shall not raise the case of the Gurkha band because I believe that it is famous enough already.
It might be asked why carriers have a liability in the context of immigration control. After all, the airlines and the shipping companies—whose case would, I am sure, have been well advanced by the noble Lord, Lord Greenway, had he not been prevented by a bereavement from being here this evening—pay for the provision of immigration services at our airports and ports, as do the taxpayers; in other words, at the frontiers.

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But things are not so simple as they seem. It seems to me that in this country we operate a three-tier system of frontier control. The noble and learned Lord, Lord Templeman, who is not in his place, recently chaired a working party on open frontiers in the European Union. His working party summarises the Government's policy as being threefold: pre-entry, which we are discussing tonight; entry; and post-entry. Post-entry—internal follow-up checks—do not concern me tonight. Entry—the checks at ports and airports—need not delay me. After all, as I explained, they are already paid for by the shipping companies and airlines and by the taxpayer. But then there is the pre-entry element. Put simply—it has been well explained already this evening—the carriers pay for a job to be done and are then penalised to the tune of £2,000 per passenger for not doing that job properly at the passenger's point of embarkation. That is a £2,000 a throw penalty.
British Airways staff, PRO staff or even the hired staff (hired, I might add, to take care of customers and not to act as the first line of British immigration control) do not show graduate level skills in the different types of basic travel document currently in general circulation. Let me name a few. There is the British passport—yes, one would expect them to cope with that. The status of a serviceman travelling on a military ID card is somewhat more complex. The seaman's book or certificate when being used in a TWOV, as the trade knows it (Transit without Visa), is okay; but if it is a matter of entering the UK to join a ship, visas may be required, depending upon the seaman's status. As for the Kinderausweis issued by the Germans and assorted kinds of refugee documents, let me casually let them pass.
But the check-in staff cannot be so casual. One slip and the carrier is prone to a £2,000 penalty. Having dealt with the passport and/or document, the check-in staff can find themselves faced with at least five different kinds of British visa. Go further and there may be nine or more endorsements entered on the passport on earlier occasions, some still valid and some very much less so.
So to where is the check-in person to turn? With skill, he or she can decide that real documents are in order. But fakes are another matter. After all, 55 years ago our POWs in Germany could produce relevant and convincing documents using only the facilities available in the camps in which they found themselves. How much easier is it to do so now using the technology that is available?
I have concentrated on carriers' liability and the insurmountable problems that such legislation poses to the carriers concerned, British and foreign. I appreciate that the Immigration Service has made progress in being available to train the carrier staff concerned. But despite that, the carriers incur considerable additional costs in staff training and in seeking to prevent offences. The ferry companies alone incur penalties now approaching £1 million a year, or they are misjudging 50,000 passengers' documents. They and their airline colleagues are then penalised for badly performing a job which I believe Immigration is already paid to do.
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I do not believe that any of us would expect an immigration officer to fly a 'plane or captain a ship. No more would I expect check-in staff to act as immigration officers. I am not aware of the former happening; the latter happens, I fear, all too often.
I welcome my noble friend's amendment. I conclude by saying that the benefit of the doubt, if extended to the passenger, should also be extended to the carrier. I am convinced that in almost every case the carrier's staff or agents have surely done their best.
12.30 a.m.
Lord Hacking: I should like shortly to support my noble friend's amendment. I say "shortly" because it is a matter of regret—though I understand the circumstances of the relisting in the Marshalled List—that my noble friend the Minister is having to deal with this difficult matter at half-past midnight.
It has been drawn to the Committee's attention that the provisions of the Immigration (Carriers' Liability) Act place particularly onerous burdens on carriers. The noble Earl, Lord Russell, talked about taxation without representation. Figures have been given about the cost to British Airways. I have a figure that the cost in the amount of fines to all carriers is somewhere in the region of £5.5 million per annum. If that is not taxation without representation, what is?
It must be acknowledged that the United Kingdom is not alone in asking airline officials to act as immigration officers. Those Members of the Committee who have been to the United States of America know that, when the visa was a compulsory requirement for entering that country, airline officials at 'check in' had to look at one's passport to see whether one had a valid visa. Again, when we leave the United States of America, we do not pass immigration officials; we hand in our passport, and exit permit contained in it, to the airline carrier. This permit is removed from the passport by the airline and not by immigration officers. We are therefore not alone in this.
My objection to the provisions and my support for my noble friend rests in this position. It is unacceptable that airlines should be punished when the offences themselves are treated as technical offences. That is the point. It is an unfair burden and, as the noble Earl, Lord Russell, said: an injustice is an injustice to the big and the powerful as it is also an injustice to the weak and the helpless.
Lord Clinton-Davis: At the beginning of my short remarks I declare an interest as the president of the British Airline Pilots Association, which supports the airlines in the representations that they have made to the Government in this regard. I am pleased too that the Chamber of Shipping, to which the noble Lord, Lord Brabazon, referred, is also supporting the representations. He is right to point out that there is a serious anomaly because the Channel Tunnel services are unaffected, whereas the airlines and the shipping industry are affected by the Immigration (Carriers' Liability) Act.

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What I find intriguing about this matter—I agree with the view—is that it is an unfair situation. The noble Lord repeated that several times. He said that it was not fair. It was not fair. What seems to have passed him by is the unfairness of certain other elements of the Bill. They seem to have passed the noble Baroness by. The noble Lord, Lord Hacking, is unconcerned about those other matters. It is a Bill that is replete with unfairness and an administrative system that has gone berserk.
I too am deeply concerned about injustice but I am not selective about it. I want to assure the noble Baroness that, seething with indignation over this issue—as are a number of her noble friends—she may have every confidence that we on these Benches will join her in the Lobby when she decides this evening to vote against the Government. That is the test. One can seethe with indignation as much as one likes; but that is the test. I wonder how far the noble Baroness is prepared to push this matter.
Baroness O'Cathain: I am grateful to the noble Lord for allowing me to rise at this point. First, I should like the noble Lord to know that I am not seething with indignation. I am drawing attention to something that is unjust and unfair, but I am certainly not seething with indignation. I have never seethed with indignation in your Lordships' Chamber. It is not a pretty sight and I hope I never do.
Secondly, the noble Lord, Lord Clinton-Davis—for whom I have a great deal of admiration and respect—is quite unfair (another case of "unfairness") to say to me that I am selective in looking at things that are unfair and unjust. It is up to each person to look at every item in the Bill and make a judgment. I have done that. The fact that I have not jumped up and down to indicate seething indignation is because I have not seen a case for it. I believe deeply that the Bill is right in principle. That is not because I sit on these Benches but because I believe that for too long this country has allowed economic migrants to pretend that they are political asylum seekers. This Bill seeks among other things to turn that one round.
Lord Clinton-Davis: I was interested to hear the Second Reading speech of the noble Baroness in her brief intervention. She said that the Bill is right in principle. That is her view. She is entitled to that opinion. I wonder whether she agrees that it is right in detail as well. Is she wholly happy about these matters? Unfairness and injustice are the principles that guide her in relation to this matter. I say that she is selective. That is my opinion. I am entitled to express it as well.
What the noble Baroness did not say in that very long intervention is what she intends to do about this injustice and unfairness. Will she remain in her seat tonight if the Government are not prepared to give way?
Baroness O' Cathain: What I intend to do tonight is to listen to what my noble friend the Minister says. When I moved the amendment I indicated that I had already spent some time with the Minister and with officials and that I had been greatly heartened by their
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understanding of the basic issues. I am looking forward to hearing what my noble friend the Minister has to say. I shall then make a judgment on what I shall do over the remaining stages of the Bill. With all due respect, I shall not be guided by the noble Lord, Lord Clinton-Davis.
Lord Clinton-Davis: It would be a great wonder if the noble Baroness were to be guided by anything I had to say. I would begin to question my own judgment if that were the case. At the end of the day we shall of course listen very carefully to what the Minister has to say—that is critical—but what will happen if the Minister does not accede to the noble Baroness's views?
I shall listen with interest, too. Perhaps a critical test will be deferred tonight. Perhaps it will arise at Report stage or at an even later stage of the Bill. Even if the noble Baroness is not seething with indignation, she is deeply concerned about the injustice of the matter, and if she does not get the right response I imagine that, with her due diligence, she will pursue the Government into the Division Lobbies on this matter. But that remains to be seen. I believe it is an injustice. I believe that there are anomalies which need to be cured. I support the noble Baroness in her limited objectives tonight.
Lord Brabazon of Tara: The noble Lord has said that those of us who have our names to the amendment should press it in the Division Lobbies if we do not get a satisfactory reply from the Minister. Can I take it then that every Opposition amendment from now on, if it does not get a satisfactory reply from the Minister, will be pressed in the Division Lobbies? If so, I suppose I had better set aside a little more time for the Bill.
Lord Clinton-Davis: The noble Lord is right; he should set aside a good deal more time. We shall exercise our discretion as to where the most injustice and unfairness arises. And because he is concerned about those issues, we look forward to seeing him in the Division Lobby with us.
Lord Harris of Greenwich: Perhaps I may say a few words on this important question. As the noble Baroness, Lady O' Cathain, will be aware, if she presses her amendment tonight she will win the Division. Therefore, if she withdraws the amendment, we shall draw our own conclusions as to why she has taken that action.
I wish to revisit a debate which we have had in the past on this question. Some years ago I moved a Prayer to annul a regulation which increased the fine under the Act from £1,000 to £2,000, and I received a substantial amount of support from noble Lords on the other side of the House. On that occasion we discussed a number of cases. Perhaps I may have the attention of the noble Baroness, Lady Blatch, because I am hoping that she will respond in a moment if she is good enough to pay attention to what I am saying.
On that occasion I drew attention to one particular case affecting a ferry company. A Nepalese military band had lawfully entered this country on the basis of visa which they had a right to, and there was no

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difficulty about that. But they made the grave miscalculation of leaving this country to play Nepalese military music in Germany. They returned to this country in order to fly back to Nepal from London airport. They found that because they had not got a double entry visa, the ferry company was fined a very substantial sum of money.
On that occasion I did not secure any coherent explanation as to how that could conceivably be justified. What British interest was possibly served by fining a Nepalese military band who simply wanted to go home from London airport? The fact of the matter was that the noble Lord, Lord Waddington, who was a former Home Secretary and then Leader of the House, decided to reply to the debate. He gave a number of assurances that, unhappily, did not lead to any improvement in the situation. As this amendment will clearly not be pressed tonight by the noble Baroness, Lady O'Cathain—if I may speak on her behalf—I hope that between now and the Report stage of the Bill the noble Baroness, Lady Blatch, will look into this question.
I can understand the problems as regards the department. There is a serious difficulty here and I do not make light of the administrative problems as far as the Immigration Service is concerned. Nevertheless, I cannot believe that it is sensible to proceed in the way that we have.
There was another case of an Icelandic baby who was brought to this country for urgent medical treatment. The airline was fined. I repeat that there is genuine difficulty as far as the immigration department is concerned. At some stage there has to be a substantial review of these procedures, because I cannot believe that proceeding in this way makes any sense whatever.
Lord Hylton: I have been opposed to the principle of carriers' liability ever since the Act was introduced in 1986 or 1987. I believe I have joined in resisting it on subsequent occasions when it has been debated in your Lordships' House. The noble Baroness, Lady O'Cathain, has tonight helpfully explained to us the compliance costs which are imposed on the companies in coping with this legislation. Her noble friend on the same Bench gave us some kind of order of magnitude of the amount that is raised by the charges in each year.
In the nature of economic life, these things are passed on to us innocent customers by way of additional fares. That is what we object to very strongly. It is a modest amendment because it deals only with the technicalities of the charges imposed on those who are subsequently allowed to enter or stay in the United Kingdom. I hope that the Minister will pay attention to the extraordinary weight and strength of opinion which have been expressed tonight from her own Benches, including the opinion of the noble Lord, Lord Brabazon of Tara, a former Minister in the Department of Transport.
The Earl of Kinnoull: I briefly add my support to my noble friend. I believe that she made a most powerful case. I congratulate the noble Lord,
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Lord Clinton-Davis, on his skill in producing hilarity at 12.45 in the morning. He loosened off another volley of shot which, sadly, missed its target.
The amendment does one simple thing. It seeks to stop a fine being imposed on an airline if the participant is accepted, either temporarily or permanently, by immigration.
One issue has not yet been mentioned. I refer to the fact that there has been quite a high success rate of appeals against the fines—of about 40 per cent., I think. I hope that my noble friend will take that into account because it clogs up the courts unnecessarily and for that reason—let alone the injustice, about which all noble Lords have spoken—I hope that my noble friend will respond to the amendment with her usual sympathy and courtesy. That will add to the skilful way in which she has steered the Bill through the Committee tonight, despite the landmines which have been floating around during the past hour.
12.45 a.m.
Baroness Blatch: The noble Lord, Lord Clinton-Davis, has not been with us for most of the Bill's progress although he has joined us this evening and enlivened our proceedings somewhat. However, perhaps I may advise him that we have voted three times today and that his colleagues have protested a great deal on many amendments—amendments about which they were showing some signs of indignation, about which they were concerned and about which they writhed in agony and great anxiety in relation to injustices which they claimed—but they chose not to press those amendments. Indeed, as I said, even on all the amendments that we have discussed today, we have voted only three times.
I thought that the noble Lord was quite offensive to my noble friend. His outrage was pompous and childish. In that, he was joined by the noble Lord, Lord Harris of Greenwich, whose colleagues have protested greatly today, but have not challenged—
Lord Clinton-Davis: Childish?Lord Clinton-Davis: Childish?
Baroness Blatch: That is a word to have fallen from the lips of many other colleagues in respect of the noble Lord on such occasions.
Perhaps I may answer the question asked by the noble Earl, Lord Russell, about Clause 5(1)(b). If the airline knowingly colluded, assisted or facilitated—I think that that is the legal jargon—an illegal immigrant or entry into this country, it would be caught by Clause 5(1)(b), but we are not talking about airlines knowingly carrying passengers for the purpose of illegal entry. Indeed, even with passengers who travel with or without documentation which is in order, the airlines are still not aware that, on arrival, they will seek entry into the country—
Earl Russell: I am grateful to the Minister and understand and accept the point that she is making, but the point about Clause 5(1)(b) is that it is not confined

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to illegal entry or deception; it applies to any asylum seeker. Does that mean that any airline which flies any asylum seeker will suffer carriers' liability?
Baroness Blatch: Clause 5(1)(b) relates to the entry into the United Kingdom of anyone who is known to be an asylum claimant. The provisions relate to illegal entry and harbouring. Clause 5(1), which amends subsection (1) of Section 25 of the 1971 Act, relates to assisting illegal entry, and paragraphs (b) and (c)relate to illegal entry and to illegal harbouring after entry.
Lord Harris of Greenwich: If I may be impertinent, I suggested that the Minister should follow what I was saying, but she was having an interesting conversation with her noble friend at the time. I was not referring to an airline; I was referring to a ferry company that brought into this country a Nepalese military band which had lawfully entered this country, gone to play Nepalese military music in Germany, and returned to this country only to catch a plane from Heathrow. A fine was imposed. Why? What British interest was served? They were not asylum seekers. They were not illegal immigrants. When the Minister mentions illegal immigrants, her voice trembles with indignation. But we are not talking about that; we are talking about a uniformed military band. How can it conceivably be in the interests of this country to fine the ferry company in such circumstances?
Baroness Blatch: The noble Lord is becoming overexcited. I am not referring to his point but to a point raised by the noble Earl, Lord Russell. He asked me specifically about Clause (5)(1)(b). The airline would not be caught by Clause 5(1)(b). I turn to the point raised by the noble Lord, Lord Harris, who appears to be rather excitable at the moment. The noble Lord is rather extravagant with his body language. Given that carriers' liability is tied to documentation which is not in order, is the noble Lord suggesting that all the documentation in that case was in order and therefore the carrier's liability levied was inappropriate?
Lord Harris of Greenwich: If the noble Baroness refers to Hansard tomorrow she will see that the first time I spoke to this question about 20 minutes ago I explained the matter in some detail. If the noble Baroness cares to write to me—which may be a simpler way of dealing with the problem—perhaps she can explain how any British national interest was served by fining a ferry company in the circumstances that I described.
Baroness Blatch: If it occurred under these provisions and passengers were carried with incorrect documentation it would be reason to consider the carrier liable. But my understanding is that the noble Lord had extensive correspondence on the issue years ago when he first raised the point. If there is anything more to say over and above what I have said in response to him, I shall write to the noble Lord. It is my custom to do just that in relation to points not properly replied to in debate.
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The Immigration (Carriers' Liability) Act 1987 places an obligation on air and sea carriers to ensure that all passengers brought to the UK hold valid passports or acceptable travel documents and, where necessary, are in possession of valid visas. Given all the examples that have been recited round the Chamber, I do not know whether the people referred to—the noble Lord, Lord Harris, has not answered my question—were carrying documentation that was in order. This measure was introduced to stem the flow of inadequately documented passengers who were being brought to the UK in the late 1980s. It remains an essential element in our immigration control. It acts as a major deterrent, both to passengers who know that they require proper documentation before travelling and to carriers who need to consider their commercial interests against their legal responsibilities.
While the costs may be unwelcome to many carriers, the concept of requiring carriers to ensure that passengers are correctly documented for their journey is not unique to the UK. It is underpinned by Annex 9 to the Chicago Convention which states that carriers should seek to ensure that passengers have the requisite documentation when they embark. Thirty-nine countries have similar legislation, including Canada, Australia, Germany, France, Belgium and Denmark. The basis of charging is similar, but each country has naturally adopted its own system of application. I have some sympathy with my noble friend, of which he is aware from discussions that we have had within the department, in that anything we can do to facilitate the ease with which that duty is carried out is to be welcomed. I can assure my noble friend that we shall continue to do what we can to make it a smoother operation.
Since the Act's introduction on 5th March 1987 about £91.5 million has been levied in charges on passengers. However, a charge is imposed as a matter of strict liability only if a passenger requires leave to enter the UK. There is no liability if leave to enter is not required: for example, in respect of EU or EEA nationals. Additionally, where liability exists it is based solely on the question of the inadequacy of the passenger's documentation. There is no linkage between that and whether or not a passenger is granted leave to enter. That is a matter for the immigration officer who will make a judgment based on all of the circumstances available to him. It is quite a separate matter from the responsibility of the carrier.
The responsibility for deciding whether or not to carry a passenger rests with the carrying company in every case. If a carrier knowingly carries a passenger whose documentation is wrong or inadequate then it seems only right that it should be liable to be charged accordingly.
The 1987 Act and the Immigration Act 1971 are entirely separate. There is no requirement that a carrier should additionally satisfy itself that a passenger will be acceptable to the UK authorities on arrival. That judgment can be exercised only by the immigration officer. The carrier cannot, and should not, be expected to anticipate that decision. That is not to say that the Government are not prepared to waive charges where

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we believe that it is right to do so. Where a charge has been incurred by a carrier in respect of a passenger who is recognised as a refugee under the convention and protocol and any dependants, it is the Government's policy to refund the charge if it has already been paid, or to waive it if it has not been paid. We believe that that seems fair and just to all parties.
Lord Avebury: What about the person granted exceptional leave to remain? Is it waived then?
Baroness Blatch: I only said what I said, if the noble Lord is attributing to me things that I have not said. I have said it applies where the person is recognised as a refugee under the convention and protocol. That does not include exceptional leave to remain. The noble Lord is putting words into my mouth.
Lord Avebury: I only asked a question. I am not putting any words into the Minister's mouth.
Baroness Blatch: I have always understood that it is improper to conduct any discussion while someone is standing at the Dispatch Box, and certainly from a sedentary position.
Lord Avebury: Perhaps—
Baroness Blatch: The noble Lord spoke before he stood to ask me to give way.
I know that my noble friend is concerned also that a charge could be levied when the passenger is admitted by an immigration officer and subsequently detained and removed as an illegal entrant. Such circumstances are rare, although liability would exist under the 1987 Act and the Immigration Act 1971. I am sure that we would want to be practical. If the documentation was good enough to have deceived an immigration officer, it would be unfair to have expected airline staff to have picked it up.
Other than that, the only pertinent issue is that of passengers' documentation. No matter what may be the eventual decision of the immigration officer under the Immigration Act, the Government cannot accept that there can be any reason to excuse the carrier for knowingly carrying an inadequately documented passenger. We therefore cannot support the amendment.
I shall refer to particular points. As I have already said to the noble Earl, Lord Russell, Clause 5(1)(b) does not create a new carrier liability, because airlines would have no reason to know that a properly documented passenger intended to claim asylum.
I find the point raised by my noble friend Lord Brabazon fascinating. I should like to think more about it. As I understand it, the Channel Tunnel is exempt because the immigration takes place on the train and not after the passengers have alighted, as happens with the ferries. I do not know, but my feeling is that the figures used by my noble friend show that charges can be waived in appropriate circumstances. I have referred to that.
The noble Earl, Lord Russell, referred to offering assistance to the airlines. First, it would be inappropriate for the Government to offer financial assistance, but the
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immigration service provides extensive training. Up to the end of 1994, 284 training visits had been made to 82 countries since the Act came into force. That is a practical way of helping the airlines. We shall continue, as I have said to my noble friend, to assist in ensuring that this is the smoothest operation possible.
Lord Harris of Greenwich: Perhaps I may say to the Minister before she concludes her remarks that the body language of the noble Lord, Lord Brabazon of Tara, is admirable, if I may speak on his behalf. I am deeply neutral on this question, but I suspect that he may be as puzzled as I am to hear the Minister's response on the question of the cross-Channel train. Once someone gets on that train, the train will not stop and deposit that person in France if he or she does not have the appropriate travel documents. Therefore, they will undoubtedly arrive in this country. However, the company responsible for running the trains is not charged under this Bill. How can that possibly be justified? I am puzzled. Perhaps the Minister would like to explain.
1 a.m.
Baroness Blatch: If the noble Lord had been paying attention to what I said he would have heard me agree that I was interested in the question myself. I said to my noble friend that I would like to reflect more on the question that he posed. I simply gave him the answer of which I had been advised for the purpose of tonight's debate, but I am just as puzzled as the noble Lord. I will take that matter away and think about it.
Earl Russell: I was a little intrigued by what the Minister said about Clause 5(1)(b). Naturally, I am relieved if it does not create a new carriers' liability, but I was a little puzzled by the ground that the Minister gave: that the airline should have no ground for thinking that a properly documented passenger intended to claim asylum.
For the purpose of argument, let us suppose that the passenger tells the cabin staff that he wishes to claim asylum and asks how to set about it. I could imagine that that could happen. Does that make the airline guilty of an offence? If so, why should it be an offence to assist someone to do what is in itself perfectly legal?
I was also taken aback by her reply to my noble friend, who asked on the matter of the Nepalese military band what conceivable British interest could be served. The Minister simply said that the documents were not in order and imagined that that was a complete and sufficient answer. I was completely taken aback until suddenly the penny dropped; this is where the Home Office discovered the concept of the mandatory minimum sentence. The Minister sees that it stirs up a hornets' nest.
Baroness Blatch: In response to the example of the noble Lord, Lord Harris, I asked him whether the documentation of the members of the band was in order and he was unable to answer that. The interest as regards the British, and the interest under the measures with which we are dealing tonight, refer to people arriving in this country with documentation that is not in order.

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I do not know whether they were foreigners landing in Britain with documentation that was or was not in order. I have asked the question of the noble Lord, Lord Hams, and he simply has not answered it.
Lord Harris of Greenwich: I am puzzled that the Minister should raise that rather bad point because in my first intervention on this matter I explained the facts. Unhappily, the Minister was engaged in an agreeable conversation with her noble friend Lord Goschen and therefore did not listen to what I was saying. I pointed out that they had a single entry visa to the United Kingdom, which I concede. After that they had gone to play Nepalese military music in Germany. They had returned to this country in order to board a plane at Heathrow to return to Nepal. The carrier, the ferry operator, had to pay a fine for each member of the band. My question was simple; what British national interest was served by that?
Baroness Blatch: I hope that this is the last time I have to rise to deal with this matter. The carrier is liable only if the documentation is not in order. If the documentation is in order there is no liability on the carrier.
Baroness O'Cathain: I am grateful to the eight Members of the Committee who spoke in support of my amendment. I noted that no one spoke against it except my noble friend the Minister. I tabled the amendment because, as I said, I have always conceded that if the documentation is not in order, that is the carrier's liability. I am specifically worried about cases where the documentation has been proved not to be in order, yet the immigration authorities say that people can stay. I believe that there is an injustice there.
I should like to say also to the Minister that of course the legislation is not unique to the United Kingdom. My noble friend gave Canada and Germany as examples. But, in turn, I also referred to those countries because I said that, in cases exactly as those I have just described where the documentation was not in order so that, therefore, technically there should have been a fine, the immigration authorities gave leave to remain because there was obviously no wilful act. Germany and Canada do not impose the stringent conditions which we impose in this country.
There is still a measure of incomprehension between us on this matter. This is a relatively early stage of the Bill. I shall not rise to the bait which was so nobly spun at me by the noble Lord, Lord Clinton-Davis, and others. I shall not divide the Committee, but I shall return to this question. In the circumstances, I think that it is about time that I actually withdrew the amendment.
Amendment, by leave, withdrawn.
Clause 4 [Obtaining leave by deception]:
Baroness Williams of Crosby Baroness Williams of Crosby moved Amendment No. 52:
Page 4, line 23, leave out ("by means which include") and insert ("knowingly by material").
The noble Baroness said: I suspect that this may be the last brief debate this evening but it is a matter of considerable concern. Clause 4 is a small but extremely disturbing clause because it introduces into the terms of the Immigration Act 1971 new wording of a very unclear kind. The Act states in Section 24(1):
"A person who is not patrial shall be guilty of an offence punishable on summary conviction with a fine of not more than £200 or with imprisonment for not more than six months, or with both, in any of the following cases—if contrary to this Act he knowingly enters the United Kingdom in breach of a deportation order or without leave".
I want to underline the words:
"he knowingly enters the United Kingdom".
Since a criminal offence is involved, and, indeed, the possibility of imprisonment, it is important that this Act refers to the fact that the action is taken "knowingly". Under the proposals in the new legislation, the word "knowingly" is dropped and in its place we have the vague phrase that there are:
"means which include deception by him".
That phrase does not relate the deception to the person concerned; does not make it clear what is the nature of the deception; does not say whether the deception is material to the person receiving leave to enter the United Kingdom; and does not indicate whether that deception is knowingly undertaken. That seems to me to be extraordinarily unsatisfactory drafting for legislation emerging from this Chamber or the other place.
Indeed, the wording and the meaning of "deception" is, to say the least of it, disturbingly bald. Given that in Clause 5—to which I shall refer only because we are not debating it now—this offence extends to those who may aid or abet that extremely unclear definition of what is wrong in Clause 4, the net widens and widens to bring in the possibility of a criminal offence for a very large number of people, both in this country and outside it—people in this country who in many cases for the best reasons in the world are attempting to help somebody with a legitimate claim to be an asylum seeker in this country.
What also troubles me greatly is that there are many, many examples of the unknowing use of deception. It is made more disturbing by the fact that, if my understanding is right, later this year the Home Office intends to set out extremely detailed ways in which those who seek to remain here or to extend their leave to enter and remain here will be obliged to fill in very detailed forms in order to do so. Those detailed forms will, I understand, require documents to be attached to the request and such documents will have to be in order.
The bureaucratic obligations that are being mounted for those who seek asylum in this country are now becoming so great that it is very unlikely that almost any of us could actually satisfy them without in some way or other making a mistake. Clearly that unintentional mistake might be captured by the word "deception". I hope that I am wrong. It may be that the Minister will be able to assure me that I am wrong and that the word "deception" will indeed be interpreted in very different ways.
However, what I genuinely do not understand is why the Government should replace the clear wording of the 1971 Act in an area that, I repeat, extends to criminal offences and which, therefore, should be made very clear, with the unclear wording in the current legislation which appears to me to be so vague in its possible interpretation that it could in fact mean that many perfectly honest men and women may be caught by virtue of the word "deception" when they had no intention of knowingly using deception; and indeed, no intention of seeking to remain by the use of deception. Even at this very late hour, I very much hope that the noble Baroness will be able to assure me that my interpretation of Clause 4 is simply wrong. I beg to move.
Lord Clinton-Davis: I rise simply to apologise deeply to the Minister whom I continue to hold in high esteem and also to express my support for the amendment just moved by the noble Baroness. It is indeed a most important issue.
Baroness Blatch: I hope that I shall be able to help the noble Baroness. From what she said, it appears that the amendment has been motivated by a desire to protect from prosecution for the new offence proposed in Clause 4 those who enter or remain by deception practised by a third party of which they themselves are ignorant.
Decided cases have established that a person who gains entry on the basis of deception practised by a third party may be removed as an illegal entrant. That will continue to be the case. However, it is not our intention that people who enter in such circumstances should be caught by the offence which would be created by Clause 4. For an offence to have been committed, the person who obtained leave to enter or remain would himself have to have practised deception. To have any effect, the deception would also have to have been material.
It is not the Government's intention to criminalise those who have unwittingly gained entry by deception. As currently drafted, we are satisfied that Clause 4 offers such people protection from prosecution. I hope that that explanation is helpful to the noble Baroness.
Baroness Williams of Crosby: I thank the Minister for that response. However, I feel that I must press the issue one step further. Perhaps the Minister could explain to me why the original use of the word "knowingly" in the 1971 Act could not be repeated in the 1996 legislation. I believe that its inclusion would clarify the use of the word "deception" and ensure that we did not have an interpretation so wide that not only might people be caught by it but, also, there could be considerable reasons for opening the door to blackmail directed at immigrants into this country and, indeed, at asylum seekers. I say that because the word "deception" in such terms is so broad and, therefore, one might be able to threaten people with revelations in that respect if we do not have a more precise wording in Clause 4.
Baroness Blatch: Again, I believe that the noble Baroness is introducing the notion of a third party who
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may well have colluded or collaborated in that respect; or, worse, exploited an entrant into the country. I am not able to explain the read-across to the 1971 Act to which the noble Baroness referred. However, I can say that those who unwittingly practise deception—in other words, those whose intention was not to be deceitful—are covered. Moreover, as I said, the third party would not be caught. I repeat, those who obtained leave to enter or remain would have had to practise deception and, for the provision to have any effect, the deception would have to be material. I shall check the point about the read-across to the 1971 Act and come back to the noble Baroness.
Baroness Williams of Crosby: I thank the Minister for that and beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 53 to 55 not moved.]
Clause 4 agreed to.
Clause 5 [Assisting asylum claimants, and persons seeking to obtain leave by deception]:
Lord Clinton-Davis Lord Clinton-Davis moved Amendment No. 56:
Page 4, line 30, leave out ("or has reasonable cause for believing").
The noble Lord said: This will be the last amendment that we shall move this evening, but it is an important issue. I shall wish to read what the Minister says because the issue gives great concern to the legal profession, as I am sure she is aware. We all agree on the objective that the Government have set: to attack the racketeers. There are too many of them who exploit immigrants and asylum seekers, at great cost to the asylum seekers and great profit to themselves. When I was in another place, a large number of people in inner London exploited such people unmercifully.
However, the problem is that the drafting is so wide that it will also attack lawyers and organisations who seek to give genuine advice to asylum seekers. The solicitors' own professional rules are not as extensive as the clause. The Law Society believes that there is a real risk that the clause as drafted will undermine the solicitors' duty to act in the best interests of their clients. Solicitors are under a professional duty not to act on clients' instructions where they know that deception is involved. The suggested amendment to the clause that we propose will reflect that duty, without undermining the solicitor/client relationship.
It would be extremely difficult for any adviser to disprove that he or she had reasonable cause for believing that an application included deception. The amendment suggests that a more reasonable level of proof is to demonstrate that there was knowledge of deception.
There is another problem in that I do not believe that the provisos contained in Clause 5(2) will necessarily save the lawyer giving bona fide advice in circumstances along the lines I suggested. I hope that the Minister will reflect further on the matter. It is a

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reasonable amendment which in no way attacks the principle of the Bill which she holds so dear. I beg to move.
The Deputy Chairman of Committees (Lord Brougham and Vaux): I have to advise the Committee that if Amendment No. 56 is agreed to, I cannot call Amendment No. 57.
Baroness Blatch: The noble Lord announced that these are the last amendments. I assume that Amendments Nos. 58 and 61, which are directly related to this amendment, are not referred to here and will not be moved tonight.
Lord Clinton-Davis: No, they will not.
Baroness Blatch: This group of amendments seeks to establish a higher standard of proof than that which currently applies for the existing offences of facilitating the entry of an illegal entrant, and then seeks to apply that higher standard of proof to the new offence of facilitating for reward the entry of an asylum claimant and facilitating the acquisition of leave to remain by deception. By removing the words,
"or has reasonable cause for believing",
completely from the wording of the offences or removing that phrase and instead inserting "believes", the amendments would provide the convenient and ready-made excuse of "I did not know". This would allow racketeers to plead innocence through ignorance and to proceed without prosecution, pocketing their ill-gotten gains on the way.
Raising the standard of proof required to secure a conviction is clearly inappropriate if we are serious about dealing with racketeers. We really must do something. I have not seen or heard anything which suggests that the standard of proof set out in the existing offence is disproportionately low or that it has led to the mounting of inappropriate prosecutions. Consequently I can see no justification for raising the standard of proof from that clearly established in the Immigration Act 1971. We need to be firm about this. The law needs to be robust, and the messages to the racketeers need to be unequivocal.
I am not clear why the Opposition wish to amend the new provisions and, in the amendments which will not be moved tonight, then seek to delete them. When we discuss Amendments Nos. 58 and 61—it will probably be on another day—we shall have the opportunity to consider in full why these new offences are necessary.
The Government have introduced into the Bill two new offences. Let us be clear about what they are: assisting illegal entry into the United Kingdom knowingly; and assisting by deception an illegal entrant to remain in the country. That is the evil trade that is being prosecuted by racketeers. It should not be allowed to flourish. Clause 5(1)(b) and (c), as set out in the Bill, are absolutely necessary. I have no hesitation whatsoever in asking the Committee to reject the amendment.
Earl Russell: Before the noble Lord replies, I wish for one important piece of clarification. If one of us
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should assist a person to come through the port on papers which do not show any intention to claim asylum, and he immediately claims asylum in the country, would we commit an offence in doing so?
Baroness Blatch: If the noble Earl does that for gain, the answer is, yes, he would have committed an offence.
Lord Clinton-Davis: I am disappointed by the Minister's reply, which leaves no room for doubt in her mind. I think that there is a great deal of room for doubt as to its effect on those who genuinely seek to give advice. I believe that the provision will act as a deterrent.
As I said earlier, I am with her about racketeers. I have no time for them. But solicitors are not required, indeed it is contrary to the rules of solicitors, to probe their client's honesty. I have been a solicitor for rather a long time—too long, some may say—but the fact is that there seems to be no reason in principle why an adviser who is misled by an unscrupulous client should have to pay for that client's lack of honesty.
There is a real problem here. The Minister should try to meet it. Will she say that she will reflect further on the representations made by the Law Society? The noble Baroness is under no obligation to say that she will amend the Bill in consequence, but I should like her to say that she will reflect further on those representations. They are made in good faith by a professional organisation which has a clear interest to ensure that no injustice is done to members of the profession: that they are not held at risk of prosecution for a situation in which they would normally be doing that which they are required to do. If they have raised these issues, they should be taken seriously. I invite the Minister to reflect on that point. I shall be interested to hear what she has to say.
Lord Hylton: It seems that a probable case has been made out that solicitors and barristers may be caught by provisions aimed at racketeers. When the Minister replies, will she also say whether or not voluntary and volunteer advisers working mainly for voluntary organisations and often for charities will also be in the same plight?
Lord Avebury: The noble Lord, Lord Hylton, raises an important point. I should like some assurance on it. I find myself on numerous occasions being asked for advice by someone in a country of origin who wishes to claim asylum in the United Kingdom.
Perhaps I may cite an instance to the noble Baroness. A lawyer in Sri Lanka received death threats. Five of his colleagues had been murdered. He was advised that the best thing to do would be to leave the country. We facilitated his entry into the United Kingdom. Under this provision, should I have committed an offence and been liable for the penalties? In her initial remarks I believe the noble Baroness said that a condition had to be that the assistance was given for reward. In that case, the volunteers mentioned by the noble Lord, Lord Hylton, or Members of this House and another place

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who give unsolicited advice and do not charge for it would be exempt from prosecution. It would be helpful if the noble Baroness gave an assurance on that point.
Baroness Blatch: The noble Lord will see that under Clause 5(2)(a) volunteer advisers are not caught in relation to asylum seekers because they operate "otherwise than for gain". That is partly the answer I gave to the noble Earl, Lord Russell, a moment ago.
The noble Lord, Lord Clinton-Davis, asked about seeking exemptions that could apply to solicitors. It is very difficult to justify that. Unfortunately, some solicitors become involved in this evil trade and bring people here illegally. The noble Lord expressed some concerns on the part of the Law Society. As is my custom, I always reflect on everything that is said in the course of debate at any stage of a Bill and will reflect on those particular points.
The principle relates to the racketeer who, for gain, assists illegal entry—a practice that is very, very common—and assists by deception an illegal entrant to remain in this country. We believe that they are appropriate offences, and I should like to think that they are supported on all sides of the Committee.
Earl Russell: The noble Baroness needs to explain a little further what is meant by the words "for gain". Let us assume, for example, that a Member of another place with a large ethnic minority representation in his constituency and a very small majority assists asylum seekers to enter, believing that that will forward his re-election. Is that done for gain, or is it not?
I wish to make another point, I hope with the capacity to get attention, because it is a matter of very great personal importance to me. The noble Baroness has conflated two matters, one of which we agree is an evil trade, the other of which we on these Benches believe to be perfectly legal; namely, assisting people to pass by deception through the port in order to claim asylum in the country. We believe that that is part of our international obligations. Were any of us to criminalise ourselves by doing that, we should be placed in very great difficulty. I hope the noble Baroness will take that point on board.
Baroness Williams of Crosby: I have one further question before the Minister replies. In addition to the extremely serious point made by my noble friend, will she say another word or two about the reference to bona fide organisations? The phrase in the Bill is:
"a bona fide organisation whose purpose is to assist refugees".
Will the noble Baroness let us know whether a bona fide organisation with several purposes, one of which is to help refugees, would meet the meaning behind this part of the clause? As she will appreciate, there are a number of organisations whose main purpose may be, for example, to discover whether human rights are being breached in other countries but whose secondary purpose is to assist refugees. The phrasing is rather broad. She may be able to help me on that point.
Baroness Blatch: I believe I can help on that point. The noble Baroness will see that Clause 5(2) affords the kind of protection to which she refers when one is concerned with bona tide cases.
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I have to say to the noble Earl that I am astonished at some of the insinuations that underlined the comments he made a moment ago. If a Member of Parliament advises people in the normal course of his duties, first, I do not make the assumption that he is doing it for electoral purposes, since it is the duty of a Member of Parliament to offer advice. If he is doing it as a Member of Parliament in those circumstances and not for gain—that is, taking some payment, whether in kind or in money—then he will be entirely free from being caught by these provisions.
In answer to the noble Baroness, I am advised that bona fide organisations with several purposes would qualify, if they were indeed bona fide. That has to be the assumption; but that was the point made by the noble Baroness. Again, there is no need to deceive immigration control in this country because it is not an offence to claim asylum. One can deceive to get out of the country but not to get in. So we arc talking about deliberate deceit.
First of all, we regard racketeering as a very evil practice indeed. We are making it an offence in this Bill. Noble Lords wish to remove the offence.
Lord McIntosh of Haringey: No.
Baroness Blatch: Oh, yes, noble Lords do. Amendments Nos. 58 and 61 ask to remove those two offences from the Bill: remove existing illegal entry and remove assisting by deception an illegal immigrant to remain in this country. I have read those two amendments, although they are not being moved this evening.
I want to give the example of a racketeer convicted in May last year—one of the rare successes, I have to say, in the current fight against such people—who was estimated to have earned £1.25 million in five years through his immigration activities. Police who investigated the case estimated that the racketeer had handled over 1,000 cases and had arranged about 650 marriages, in addition to submitting countless bogus asylum applications, where he had invented the substance of the claim. Once again, failure to act—which is what deleting the offence from the Bill means and that is to what the noble Lords have put their names; that is what deleting the offences from the Bill would amount to—would provide an open invitation to racketeers and facilitators to profit by ruthlessly trading on the aspirations of others. The noble Lords can wriggle all they like, but those amendments are down on the Marshalled List today.
Lord Clinton-Davis: The noble Baroness has made a very serious allegation and I must rebut it immediately. She has attacked a number of us tonight and she is very testy. But the fact is that she said that in effect we intended to aid and abet the racketeers. That is offensive. She has all the armoury of the draftsman and she is able to do that perfectly well. She can draft; and she sometimes makes a lot of mistakes herself in the drafting. She frequently has to come back to the House with a massive number of amendments to the legislation that the Government bring forward. It is much more difficult for us to draft.

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I made it very clear—did I not?—over and over again, that we have no time and no room for racketeers. She knows very well the inadequacies that affect any Opposition. She will find that out in a year's time, anyway. But she has not begun to deal with the broad brush approach which will attack the bona fide practitioner. In no other field is a solicitor required to investigate whether his client has committed an offence. If the client says that that is his defence to something, the solicitor has to accept it. The solicitor can say, "Look, I don't think you'll stand much of a chance in court; but if that's what you want me to represent to the court, I must do that." It is his (or her) duty to say that. This particular provision goes far beyond that and creates a situation where solicitors will be very rueful about acting in this sort of case. That would be a tremendous disadvantage not only to the client and the solicitors alone but to the country, because people are entitled to proper representation.
Earl Russell: On behalf of these Benches, I should like to associate myself with everything that the noble Lord, Lord Clinton-Davis, said. This is a matter of intense personal importance to me. If the noble Baroness could draft a clause which would catch the racketeers and separate them from those who wish to continue to assist those who claim asylum in the country, she would find no one on this side of the House who would support racketeers. I am a great enthusiast for keeping the law, as the noble Baroness knows. But when I talk of observing the law, I include our international obligations, especially if they are reinforced by an Act of Parliament as recent as 1993.
The noble Baroness knows how I interpret the UN Convention. If she were to place me under an obligation in relation to the Bill, in conflict with what I regard as my legal obligations under the UN Convention, I would be placed in severe difficulties. The noble Baroness knows, and will remind herself if she walks down the corridor to Central Lobby, that I come of a family which has made a cult of political martyrdom. I think that that can be overdone. I now agree with St. Augustine that martyrdom does not deserve the name unless one makes an attempt to avoid it. It is that attempt in which I am now engaged.
Lord Hylton: Before the noble Baroness replies, perhaps I can say that at the end of a long and arduous day it seems to me that she has made a serious charge against the Opposition Front Bench. I hope she will agree that it is possible that she may have overlooked the distinction between a probing amendment and a substantive amendment. If that is the case, some of the problems may be solved.
Baroness Blatch: First, no one suggested that these are probing amendments. Secondly, I referred to what I. read. I do not need a bank of officials to tell me that the amendment to remove lines 31 to 33 and lines 34 to 36 in the names of the noble Lords, Lord McIntosh and Lord Dubs, and the noble Earl, Lord Russell, removes two new offences which were added to the Bill to deal
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with racketeering; that is, assisting illegal entry into the United Kingdom by deception, and assisting, by deception, an illegal entrant to remain in this country.
Those are important provisions in the Bill. Up until this moment those offences have been supported almost universally, even by the Opposition's colleagues in another place. But it is not banks of officials who placed that interpretation on this; I simply read the words on the page that those two new offences are to be removed from the Bill.
The noble Earl, Lord Russell, expresses a genuine concern. However, if he wants to advise and help somebody who may fall under the United Nations Convention 1951, he has absolutely nothing to fear if he is not exploiting those people: if he is advising them and helping; if he is not doing it for gain and he is not deceiving the authorities. At the point of entry the noble Earl would want, in their interests, to make sure that asylum was sought properly under the rules. I hope the noble Earl is not suggesting that he believes it is a bona fide activity to help somebody, by deception, to remain in this country without making that known to the authorities.
All I am saying is that these are important offences. Up until this moment they have been universally supported and I am surprised that they are not supported by noble Lords opposite.
Lord Dubs: I did not intend to say anything at all. But, in all fairness, it is only proper to respond to what the Minister said. I appreciate that the Minister has spent around nine-and-a-half hours on the Front Bench. That is a long time—far too long—and I have enormous sympathy for her because it is an unreasonably long period of time to do what the noble Baroness has been doing.
Having said that, I must go on the record. Years ago when I was in the other place, I was so angry about racketeers that I went to see the immigration Minister to protest that there were not enough measures to deal with racketeers. I have been involved in such issues for a long time. Anybody in the other place who represented an inner city constituency will know exactly what racketeers do; how they undermine our constituents in the other place and how they obtain sums of money. It seems wrong in principle that those people should continue to act as they do.
I regret that the Minister suggested that some of us had different motives. Frankly, we are seeking to withdraw the remaining amendments because of the lateness of the hour. That must be a worthy motive at this time of the evening. Some of those amendments are probing amendments. We have not had a chance to say so and the Minister is attacking us for tabling them. It is a normal convention in this Chamber, as it is in the other place, that amendments at Committee stage are tabled to test in detail the Government's thinking— no more and no less than that. We have had the Minister saying, on the one hand, that we have not taken enough amendments to a vote, implying that we were not committed enough to them, and, on the other hand, that there was something wrong with our motives because we put down amendments which were there simply to

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test the motives of the Government. I regret that the Minister has made those allegations against us. I am disappointed that she has seen fit to lower the tone of the debate in that way.
Baroness Blatch: It was certainly not my intention to lower the tone of the debate. As for the taunt about not pressing amendments, it was entirely in response to noble Lords opposite who have been rather offensive to my noble friend, who was not pressing the only amendment that she had on the Marshalled List today. I was saying that there were many amendments on the Marshalled List today which had not been pressed to a Division. I do not make that criticism other than to make the point that the noble Lord was being unfair to my noble friend, when it is not unknown for her to go through the Lobbies against the Government on occasions when she feels it is appropriate to do so.
It is not lowering the tone to say that the new provisions, which the Government want and with which the Opposition now say they do not agree, deal with unscrupulous racketeers who organise the illegal entry into the United Kingdom of people not entitled to come here by providing them with fictitious asylum claims, organised marriage rackets and bogus educational establishments whose sole purpose is to deceive the immigration authorities. These racketeers ruthlessly exploit their victims. These two amendments were aimed at that. Noble Lords have made it quite clear that they do not agree with that and they also have amendments on the Marshalled List to remove these new offences from the Bill.
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I simply draw the conclusion that noble Lords have spoken against the amendment and they have put down amendments to remove the two new offences from the Bill. I draw only the most appropriate conclusion from that.
Lord Clinton-Davis: The Minister is afflicted by the Howard syndrome. That is the problem. The trouble is that they cannot recognise an important point when it is raised by a professional organisation of great repute and by organisations such as the Refugee Council and many others which are concerned about the welfare of people. The noble Baroness cannot see that. She is completely blind to argument tonight. We do not blame her because it is late. Her reason has succumbed to the lateness of the hour.
The other factor is that in the other place the Minister agreed to consider Clause 5(1) so that it would be better targeted on racketeers. Why did she not say that tonight? Why did she not agree that there was room for improvement? That is all we are asking for. We are certainly not on the side of the racketeers—and she knows it. What she is trying to gain is some obscure political point. She really has not done herself credit tonight. In all the circumstances, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 57 to 66 not moved.]
Clause 5 agreed to.
[Amendments Nos. 67 and 68 not moved.]
Lord Lucas: I beg to move that the House do now resume.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.
House adjourned at sixteen minutes before two o'clock.