Lords Sitting of 1 July 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 Lincoln.

Armenia and the British Council
Baroness Cox Baroness Cox asked Her Majesty's Government:
Whether there are any plans to open a British Council office in Armenia.
The Minister of State, Foreign and Commonwealth Office (Baroness Chalker of Wallasey): My Lords, the British Council has no plans to open an office in Armenia in the immediate future.
Baroness Cox: My Lords, I thank my noble friend for that reply, but it will give little comfort to the Armenians, who feel deeply hurt by what they perceive as Britain's discriminatory policy against them. Can my noble friend confirm that there are already centres in Azerbaijan and Georgia and that the British Council intends to open an office in Tashkent? Can she further say why, even with those developments in the region, Armenia is still being left out in the cold?
Baroness Chalker of Wallasey: My Lords, we are not discriminating against Armenia, but we have to decide from a limited budget where we can be most useful in opening British Council offices. There are now 229 offices in 109 countries. Those figures compare rather well with 108 offices in 79 countries some 15 years ago. As regards the countries about which my noble friend asked, the office in Azerbaijan was provided by commercial money. The offices in Georgia and Tashkent are very small indeed. My noble friend should compare the relative interests. That involves looking at where the money can be found and the priorities. Priorities are never easy, but they are important.
Lord Avebury: My Lords, the Foreign Office has a very limited sum of money to spend on British Council offices. Does the noble Baroness agree that throughout history there has been a very close affinity between the Armenian and British peoples; that Britain in particular took the lead in demonstrating the atrocities committed against Armenians in the First World War; and that at the time Britain was one of the foremost champions of Armenian liberty? Therefore, is it not incongruous that, when other countries in the region are privileged to have British Council offices, Armenia is still being ignored?
Baroness Chalker of Wallasey: My Lords, Armenia is not being ignored. If the noble Lord looks at my Answer in Hansard, he will see that I said that there are,
"no plans to open an office in [Armenia] in the immediate future".
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There is a close affinity with Armenia. It is correct that the United Kingdom took the lead in the First World War. But we have to be realistic. If I thought that there was a chance, I would have been more positive. Although Armenia is stabilising its economy, its economy still needs improvement. Our exports to Armenia are far less than those to other countries, which only very recently have had the opportunity of having a British Council office.
Lord Wright of Richmond: My Lords, perhaps I may declare an interest as a director of the company which helped to finance the British Council and diplomatic presence in Azerbaijan. Does the Minister agree that, while it is clearly important that the British Council maintains an adequate presence in the former Soviet Union, it is also very important to ensure that we maintain an adequate diplomatic presence in the former Soviet Union? Is the Minister aware that our diplomatic presence in the former Soviet Union, in the shape of home-based diplomatic staff, is now less than that of the French and under half the presence of the Germans?
Baroness Chalker of Wallasey: My Lords, the answer to all the questions asked by the noble Lord, Lord Wright of Richmond, is yes, I am so aware. I also believe that, although our presence in the former Soviet Union may need to be led by UK-based staff, it can be greatly helped by locally-engaged staff. In fact, we could not operate in those former Soviet republics but for the help of locally-engaged staff. So our presence there is enhanced by them, but led by British-based staff. We would like to do more, but it is a question of priorities.
Baroness Park of Monmouth: My Lords, my noble friend the Minister said that it was not going to happen in the near future. I take that to mean that not too far hence we shall open an office in Armenia. Can she tell me whether we have a new policy of not investing in those countries which might be most friendly to us? Armenia is a stable country and its economy is improving. Frankly—possibly against the views of some—I believe that investment in Azerbaijan may never come to anything because the Russians are going to be difficult and are still fighting a war in Chechnya. Therefore, does the Minister agree that it is worth giving value to the fact that Armenia is a Christian country; that we share a tradition; and also that it is stable and friendly?
Baroness Chalker of Wallasey: My Lords, there is a great deal in what my noble friend said, but she knows full well that we were able to open an embassy office in Armenia only a year ago. We are seeking to make sure that we do everything well. That is why I said in my initial answer that an office will not be opened "in the immediate future". My noble friend knows that I cannot make her promises. Certainly, it is very important that we have a British presence in Armenia. We now have that presence and we shall build on it.
Lord Molloy: My Lords, I acknowledge the reality of the Minister's extremely helpful Answer. Although Armenia has some difficulties, it speaks the English language and regards Great Britain with great esteem. Therefore, will the Minister to do all that she can, whenever she can—I am sure that she will—to help Armenia to progress in the way that has been suggested?
Baroness Chalker of Wallasey: Yes, my Lords.
Lord Pearson of Rannoch: My Lords, further to the answer that my noble friend gave to the noble Lord, Lord Avebury, is my noble friend aware that Armenia has chosen to collaborate with the Midland Bank to set up its banking system and that it is at the moment collaborating with the Association of British Insurers to set up its insurance industry? In view of the simply huge potential which Armenia now has—a very much better potential future, one might think, than most of the other countries of the former Soviet Union—would we not be wise to do our very best to share and assist in that future? In short, can my noble friend change her Answer and say that, although we cannot help Armenia in the immediate future, we can perhaps do so in the very near future?
Baroness Chalker of Wallasey: My Lords, the very reason that we opened an embassy in Armenia was to assist those, such as the Midland Bank and the Association of British Insurers, to help Armenia to get going. We are very aware that its economy still needs improvement. That is why Armenia receives other help from us. However, it is probably a little early to make such a commitment with regard to a British Council office—that is, unless my noble friend is telling me that the Midland Bank and the Association of British Insurers will help us to fund it.
Baroness Blackstone: My Lords, will the Minister accept that the 10 per cent. cut in the British Council's funding, involving drastic economies in the UK and job losses abroad, means that no new council office can be opened without extra funding? Can the Minister tell the House that additional funding will be provided where a British Council presence is needed, as is the case in Armenia, according to our ambassador there?
Baroness Chalker of Wallasey: My Lords, I am well aware that our ambassador has been most active in the past week since he has been home on leave from Armenia. I am also well aware that the British Council receives nearly £100 million from the diplomatic wing and nearly £33 million from the ODA, and it uses that money well. However, the British Council has more offices overseas than even the Foreign Office. Therefore, we must have a sense of priorities, and we need to look at how British Council offices can become more self-financing and at how more efficiency savings can be achieved which will allow it to open more offices.

Manufacturing Output
2.46 p.m.
Lord Ezra Lord Ezra asked Her Majesty's Government:
What they are doing to stimulate activity in the manufacturing sector which, on the latest figures from the Office of National Statistics, continues to fall below the level of last year.
The Minister of State, Department of Trade and Industry (Lord Fraser of Carmyllie): My Lords, we are providing a stable economic environment based on the best inflation performance for nearly 50 years, historically low interest rates, competition and free trade. Manufacturing output has risen by over 8 per cent. since the beginning of the recovery and is at a higher level than last year.
Lord Ezra: My Lords, I thank the Minister for that comprehensive Answer. Is he aware that the statistics for this year so far compared with last year show that although demand for manufactured goods has risen by 4 per cent., the increased production of manufactured goods has risen by only 0.8 per cent. and the import of such goods has risen by 12.7 per cent.? Therefore, is it not a fact that there are two economies in Britain today: the economy about which the Government like to talk—namely, the increase in consumer spending, the rise in house prices and other factors which are likely to lead to the feel-good factor—and the economy about which the Government speak much less; namely, the relative decline in manufacturing, the decline in exports and the increase in imports? Is it not about time that the Government paid more attention to the second economy?
Lord Fraser of Carmyllie: My Lords, I accept that the officially published figures show that the last quarter of last year and the first quarter of this year are not as satisfactory as we would like. However, over the past two years, which seems a more reasonable period to take, manufacturing investment has risen by some 12.5 per cent., including a rise of 14 per cent. in plant and machinery. Possibly more important than looking backwards is to look forwards. My understanding is that all major forecasters expect output to pick up in the second half of this year and to continue to rise next year. On that basis, I think there is good cause to anticipate that manufacturing industry will improve.
Lord Bruce of Donington: My Lords, going back not two years but to 1979, which is the period in office of Her Majesty's Government, does the Minister agree that manufacturing output has increased only marginally in total in that time? Is the Minister aware that the main trouble is import penetration into the United Kingdom of manufactured goods, largely from the European Community, with which we are in deficit—and very substantial deficit at that—coupled with government policies which have resulted in the decimation of large parts of British industry?
Lord Fraser of Carmyllie: My Lords, what I will accept is that manufacturing productivity has grown faster in the United Kingdom than in any other G7 country since 1980. I am also aware that because Germany is our biggest market in the European Union and its economy is relatively static, it has been difficult to increase exports to that country. However, I am sure that the noble Lord and I can agree on at least one matter. As the United Kingdom is the only G7 country where non-wage manufacturing costs form a lower proportion of total labour costs than they did in 1980, it would be extremely undesirable to do anything within the European Union that added to those costs.
Lord Peston: My Lords, the Minister is entirely right in all that he says about causation. Nominal interest rates are lower although real interest rates are not; sterling has been devalued; wage costs are lower; and productivity has risen towards that of our competitors. What puzzles noble Lords is that, given all of those allegedly good circumstances, our manufacturing performance in aggregate is not very good. One can always take two years, one of which looks better than the other. However, anyone looking at the path of manufacturing over the past 10 years or so—especially that part owned by British citizens—cannot possibly be pleased with it. I believe that the whole point of the Question put by the noble Lord, Lord Ezra, is whether the Government are missing something. Is there anything more to be done? I agree with the noble Lord that it is a puzzle. But no one can regard the outcome as currently satisfactory.
Lord Fraser of Carmyllie: My Lords, I accept that in recent quarters some slightly puzzling details have emerged. For example, manufacturing employment has appeared to be going up at a time when output is going down. That has rather levelled out, but productivity has significantly improved. I believe that what I set out in my original Answer is the correct approach to a stable economic environment. I do not believe that we should be unnecessarily pessimistic. I understand that today the Chartered Institute of Purchasing and Supply Managers—whose figures are well respected—has indicated that last month output and new orders grew faster than they have done for over a year. Coupled with that, the CBI anticipates that output will rise over the next four months. That is the reason for my optimism.
Lord Harding of Petherton: My Lords, does my noble and learned friend agree that services have become much more important throughout the western industrial world and that the worry voiced in these exchanges is irrelevant? I believe that most economists would agree with what I say.
Lord Fraser of Carmyllie: My Lords, I do not accept that we should ignore manufacturing. I wish to see it continue to grow and improve as much as possible. But my noble friend is right. One would give a completely distorted picture of the British economy if one did not take into account the dramatic improvement in the supply of services in the United Kingdom. That
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has done a great deal to improve the performance of our economy. Indeed, the growth of our service sector is probably better than that of any other G7 country.

National Health Trusts: Major Contracts
2.52 p.m.
Lord Haskel asked Her Majesty's Government:
How many major contracts have been signed between national health trusts and contractors since Royal Assent was signified to the National Health Service (Residual Liabilities) Act 1996.
The Parliamentary Under-Secretary of State, Department of Health (Baroness Cumberlege): My Lords, Royal Assent was given to this Act on 22nd May. No contracts worth more than £1 million have been signed since then. Information on private finance schemes worth under £1 million is not kept centrally.
Lord Haskel: My Lords, I thank the Minister for her rather disappointing reply. During the debate on the National Health Service (Residual Liabilities) Bill on 21st May of this year, the Minister said (at col. 785 of Hansard) that the Government had approved 54 private finance initiative projects worth more than half a billion pounds and that the reason for rushing the Bill through your Lordships' House was to unlock this work. Can the Minister tell the House what is holding up signature of these contracts?
Baroness Cumberlege: My Lords, I well recollect that debate. I also remember that the noble Lord said that to rush into taking on more liabilities in an area not fully understood would only end in tears. During that debate the noble Lord was anxious that the Government should not rush into these schemes but treat them with caution and weigh them up with discretion. We have done that. There are a number of schemes in the pipeline. There are now 57 schemes worth over £1 million, and we expect to sign several of them in the next few months.
Baroness Hayman: My Lords, can the Minister give the House an estimate of the costs incurred by the NHS on external consultancy and advice on potential PFI schemes? Is it correct that some of the major schemes have run up bills for legal and financial consultancy of several million pounds each without having reached signature? Is the noble Baroness aware that there is near desperation in some parts of the service about the seeming impossibility of getting much needed schemes under way because of the almost Kafka-esque complexity of the current PH rules and their infinite ability to delay and absorb money without producing anything?
Baroness Cumberlege: My Lords, one of the tests of a PFI scheme is that it should give better value for money than conventional financing. Certainly, those schemes which have been completed indicate that the process has been very good value for money. I cite

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Havering Hospital where the savings on the entire scheme were 26 per cent. It improved the standard and quality of services and it guaranteed savings. It was considered to be a great success. Of all the schemes that have been completed, we have no knowledge of any that has not produced a better service than would have been produced using conventional finance. The tradition in the health service was that the building of a hospital took 20 years. Many of these hospitals have been built within five or six years.
Lord Strabolgi: My Lords, can the noble Baroness say how many contractors have withdrawn from schemes under the PFI? Is she aware that these include the Sheffield University and Royal London Hospital Trusts? What is the reason for this lack of confidence on the part of contractors?
Baroness Cumberlege: My Lords, if one has to test schemes, obviously some will not succeed. At the moment 22 have been completed and 12 are under way. We expect other major schemes to be signed within the next few months.
Baroness Jay of Paddington: My Lords, is it not a matter of concern that several major hospitals have been publicly promised by the Department of Health—for example, in Carlisle, Amersham, Norwich, Durham and various parts of the country—and the contracts appear to be in almost permanent suspension because of the hiatus in the private finance initiative? As my noble friends have reminded the Minister, the assumption was that this would be sorted out by the National Health Service (Residual Liabilities) Bill. If the finance is not forthcoming, how do the Government intend to meet the prospective hospital requirements and keep the promises that they have made about new hospitals?
Baroness Cumberlege: My Lords, one of the great successes of the private finance initiative is that £½ billion of extra funding has been attracted into capital programmes in the NHS. We accept that some of the initial time taken may be a little longer but, considering the project as a whole, the construction of a particular unit or new equipment such as a scanner takes less time. That is obvious because of the strong incentives in the private sector to complete on time and contain costs. The added advantage is that the risks are transferred to the private sector.
Baroness Jay of Paddington: My Lords, I believe that the Question put by the noble Lord, Lord Haskel, was not concerned with relatively minor schemes like scanners but with major hospital building programmes. In view of the promises that have been made, can the Minister confirm that, for example, the initial scheme for Carlisle Hospital was agreed in 1989, the one for Norwich was agreed in 1990 and the ones for Swindon and Amersham were agreed in 1993?
Baroness Cumberlege: My Lords, that is very fast progress. My recollection of the NHS is that it took at
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least 20 years to build a hospital. This is much quicker. These schemes will get off the ground, but they are tested, and not every one will succeed. It would be nonsense to test schemes if there was a presumption that every single one would go ahead. We are determined to get value for money.

BSE: Public Inquiry
2.58 p.m.
The Earl of Dudley The Earl of Dudley asked Her Majesty's Government:
Whether they will order a public inquiry into the causes of the infection of British beef and dairy herds with BSE and the links with CJD, and, if so, whether they will publish a report of the findings of the inquiry.
Lord Lucas: My Lords, no. This is a question of the limits of scientific knowledge. Scientific facts, in so far as they are known, have been published and an independent inquiry would not be able to generate new scientific information.
The Earl of Dudley: My Lords, while I thank my noble friend on the Front Bench for the courtesy of his reply, I simply wish to establish the relevant facts. Does my noble friend agree that there are precedents for tribunals of inquiry into disasters, such as Aberfan in 1966, and that the infection of British dairy and beef herds by BSE can be regarded as a disaster? Does he agree that, as the discussions and negotiations with other European governments and the European Commission which have encapsulated the Government's action in respect of BSE have been confidential, there is a need for further action to allay the anxiety of the British public, both as taxpayers in view of the billions which have been expended on BSE and as consumers in view of the unquantified contingent risk of infection by CJD?
Lord Lucas: My Lords, I agree with my noble friend that tribunals are a useful method of finding out the facts where they are not evident. Indeed, not long ago I announced one into child abuse in North Wales. That seems to me the type of situation in which tribunals and inquiries are justified. In this case, there is nothing to be discovered that is not already public. That is principally because our scientific knowledge of this disease is so limited that we have no tools with which to discover further facts. In those circumstances, a public inquiry could do nothing but delay the scientific inquiry which is already taking place.
Lord Cledwyn of Penrhos: My Lords, does the Minister recall that nearly 30 years ago when there were outbreaks of foot and mouth disease and rabies, I set up an inquiry? Since then, there has been no foot and mouth and no rabies. Is there not a case here for setting up a public inquiry?
Lord Lucas: My Lords, I did not know. I am afraid that I must confess to the noble Lord that I was not

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paying attention at the time and it slipped my notice. In those cases, we understand the mechanism of the diseases. We know what causes them and we know how they spread. There is in both cases an infectious agent that we can isolate and study. In BSE, we just do not know. We have our suspicions, but we do not know what causes it. We do not know how it spreads. We cannot replicate it in the laboratory. We have no tools with which to study it. An inquiry would achieve nothing but delay the scientific investigation.
Lord Swinfen: My Lords, bearing in mind that there is a known connection between giving growth hormones to children and their later development of CJD, has any inquiry been made into the possibility of growth hormones being given to cattle causing them to develop BSE for onward spread to humans in the form of CJD?
Lord Lucas: My Lords, the two situations are different. In the case of humans, the growth hormones were derived from dead bodies. Those dead bodies turned out to be carrying CJD. In the case of cattle, the growth hormones are derived from bacteria, and the opportunity to infect them with BSE does not arise.
The Countess of Mar: My Lords, is it not time that we got away from the idea that BSE is an infection? After 10 years of research no infective agent has been found. Would it not be better to use the term "causative agent"? Does the Minister agree that there are many neuro-degenerative diseases, both in animals and in humans, for which no cause has been found and which are much more prevalent than BSE or CJD?
Lord Lucas: My Lords, no, I believe that it is right to term at least the current epidemic of BSE as an infection. We can infect cattle by feeding them the brains of infected cattle. That, to my mind, is as good a definition of infection as one can get. The origin of the disease may be due to a causative agent, but the present epidemic is one of infection.
Lord Jenkins of Putney: My Lords, in answer to my Written Question, the Minister's noble friend the noble Baroness, Lady Cumberlege, said:
"there is still no scientific evidence to link positively any case of Creutzfeldt-Jacob Disease to exposure to Bovine Spongiform Encephalopathy".
The Minister has emphasised that point, but is he aware that in my Question I pointed out that the neuro-surgeon, Alan Colchester, in giving evidence to the Canterbury City Council on 25th May referred to:
"'The transmissions of prions, the infectious agents causing scrapie in sheep, BSE in cattle and CJD in man, to farm animals, wild animals, domestic pets and man".—[Official Report, 26/6/96; col. WA61.]
On the basis of that evidence, which satisfied him and many other people, he successfully opposed the grant of planning permission to renderers to occupy a nearby field. Is that evidence not to be taken into consideration? Does it not add to the idea that a public inquiry might reveal more than we know at present?
Lord Lucas: My Lords, no. I do not know the gentleman concerned, and I am not familiar with that case. Clearly the idea that prions are the infectious agent in this case is a hypothesis. It is a long way from being proved, and there are many reasons to doubt it, such as the existence of different strains of the disease which are not explained by the basic prion hypothesis. There is a great deal that we do not understand about this, including whether it is possible to transfer BSE to humans. That is something which is entirely unproven as yet. We may have some indication during the next year or two as a result of the experiments we are undertaking, but there is no evidence either way at the moment, merely supposition.
Lord Renfrew of Kaimsthorn: My Lords, will my noble friend confirm that many thousands of cattle born after the imposition in 1988 of the BSE prohibition order on infected feedstuffs have become infected? Can he offer any clear explanation of why that should be so? It gives rise to concern that infected feedstuffs have continued to be used. I should have thought that that was a matter which would merit greater clarification than it has received. I should be grateful if my noble friend could offer it.
Lord Lucas: My Lords, within the imperfections that all these answers have, our best indications are that the continuing contamination arose from feed that continued to be stored on farms and, due to the design of their hoppers, was only released at a later date, and cross-contamination in the feed mills which were producing feed for both bovine animals, as they are called, and other species.
Lord Gallacher: My Lords, why do the Government refuse to investigate why so much contaminated feed reached cattle after the feed ban was imposed in 1988? Two thirds of the new cases of BSE occur in such cattle. Is there not a strong case here, as the noble Lord who preceded me has asked, for a public inquiry—not an extended inquiry? There is an obligation to consumers to probe the facts with a view at least to setting fears at rest, if no more than that.
Lord Lucas: My Lords, it is difficult to see how such things could be proved. It is a long time ago. This disease has such a long gestation period that we did not know until six years after the event that there was a problem. Looking back six years, and at such records as were kept, it is extremely difficult to establish—we have been trying to establish for our own scientific purposes—what happened. It is merely supposition. I do not believe that there is any evidence lying out there to which a scientific inquiry could address itself.

Housing Bill
3.8 p.m.
The Minister of State, Department of the Environment (Earl Ferrers): My Lords, I beg to move the Motion standing in my name on the Order Paper.
Moved, That the amendments for the Report stage be marshalled and considered in the following order—

Clauses 151 to 163,

Schedule 14,

Clauses 164 to 197,

Schedule 15,

Clauses 198 to 203,

Schedule 16,

Clause 95,

Schedule 7,

Clauses 96 to 103,

Schedule 8,

Clauses 81 to 84,

Schedule 4,

Clauses 85 to 87,

Schedule 5,

Clauses 88 to 91,

Schedule 6,

Clauses 92 to 94,

Clause 104,

Schedule 9,

Clause 105,

Schedule 10,

Clauses 106 to 116,

Schedule 11,

Clauses 117 and 118,

Schedule 12,

Clauses 119 to 135,

Schedule 13,

Clauses 136 to 150,

Clauses 1 to 7,

Schedule 1,

Clauses 8 to 51,

Schedule 2,

Clauses 52 to 55,

Schedule 3,

Clauses 56 to 80,

Clauses 204 to 208,

Schedule 17,

Clauses 209 to 214.—(Earl Ferrers.)

On Question, Motion agreed to.

Commonwealth Development Corporation Bill
Read a third time, and passed.

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 resolve itself into Committee (on Recommitment) on this Bill.
Moved, That the House do now resolve itself into Committee (on Recommitment).—(Baroness Blatch.)
On Question, Motion agreed to.
House in Committee (on Recommitment) accordingly.
[The CHAIRMAN OF COMMITTEES in the Chair.]
Clause 9 [Entitlement to housing accommodation and assistance]:
The Minister of State, Department of Social Security (Lord Mackay of Ardbrecknish)The Minister of State, Department of Social Security (Lord Mackay of Ardbrecknish) moved Amendment No. 1:
Page 7, line 17, leave out ("who") and insert ("unless he").
The noble Lord said: In moving Amendment No. 1 I shall speak also to Amendments Nos. 2 and 3. The broad purpose of Clause 9 is to ensure that council housing is used to best effect and not allocated to people who may be in this country only for a short time and to align entitlement to assistance under the homelessness legislation with entitlement to housing benefit. The overall policy intention here is to ensure that persons who are subject to immigration control do not have access to housing assistance at the taxpayers' expense if they have no valid claim to it.
As drafted, Clause 9 provides the Secretary of State with a power to specify by order those classes of persons subject to immigration control who are to be excluded from housing entitlement. In effect, that means that exclusion from entitlement of certain classes of person is achieved by subordinate legislation; namely, an order.
We have been considering two issues concerning the construction of Clause 9. The first is that the approach I have just outlined is not consistent with the construction in Clause 10 which deals with the entitlement to child benefit. In Clause 10 it is made clear on the face of the Bill that persons subject to immigration control are entitled to child benefit only if they satisfy prescribed conditions. I think your Lordships will agree that of the two the construction in Clause 10 is clearer.
The judgment of the Court of Appeal on 21st June concerning the validity of the Social Security (Persons from Abroad) Miscellaneous Amendments Regulations 1996 has prompted us to look again at the construction of Clause 9. I shall be moving a new clause after Clause 10 which addresses the main effect of the judgment, so I do not intend to dwell on the detail of it at this stage.
For the purpose of considering these amendments, I would just say that the court ruled that the regulations were ultra vires and unlawful in so far as they deny council tax benefit, housing benefit or income support benefit to asylum seekers whose claim has not been finally determined. The judgment was not unanimous. Two of the three Lords of Appeal hearing the case considered that the appeal should be allowed. But the judgment makes clear that their decision turned on the question of the extent to which subsidiary, or secondary, legislation can be drawn without conflicting with either the enabling statute or with other primary legislation. Those are very proper concerns, and they have caused us to reconsider the construction of Clause 9.
The amendments would bring the construction of Clause 9 into line with the construction of Clause 10. The effect would be to make clear on the face of the Bill that persons subject to immigration control are not entitled to council tenancies or eligible for assistance

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under the homelessness legislation unless they fall within certain classes of such persons specified by order. That would make clear in primary legislation the policy intention that persons subject to immigration control do not have entitlement to housing assistance except where that is warranted.
The classes of person we intend to exclude from entitlement to council tenancies or to homelessness assistance remain unchanged. The policy is unchanged. It is the means of delivering the policy which is turned about. Under Clause 9 as drafted we would specify by order those classes of person subject to immigration control who are excluded from entitlement. Under the clause as amended we would specify by order those who are entitled. We intend that an order under Clause 9(1) would specify that the only classes of person entitled to be allocated a council tenancy would be refugees, persons granted exceptional leave to remain, and persons with indefinite leave to remain.
The order would also specify that persons subject to immigration control who are students attending a full-time course at a UK college or university may be granted a tenancy of surplus accommodation leased by a local authority to the college or university where they are studying.
As regards an order under Clause 9(2), we intend that the classes of person subject to immigration control who would be entitled to assistance under the homelessness legislation would be refugees, persons granted exceptional leave to remain, persons with indefinite leave to remain, and persons who sought asylum on arrival, for as long as their claim is being determined by the Home Office.
The amendments would improve the clarity of the provisions in Clause 9 and ensure that any question as to vires or lawfulness regarding the exclusion of certain classes of person subject to immigration control from housing entitlement would be put beyond doubt.
The arguments about council housing being available and about the homelessness legislation are exactly those I put forward and which the House agreed when we discussed Clause 9 on the previous Committee day. These amendments merely reconstruct the clause taking account of Clause 9 and also of the decision by the Court of Appeal. I commend the amendments to the Committee. I beg to move.
On Question, amendment agreed to.
3.15 p.m.
Lord Mackay of Ardbrecknish Lord Mackay of Ardbrecknish moved Amendments Nos. 2 and 3:
Page 7, line 18, leave out ("who is of a class specified in an order made by the Secretary of State").
Page 7, line 25, at end insert ("unless he is of a class specified in an order made by the Secretary of State").
The noble Lord said: I have spoken to these amendments. I beg to move.
On Question, amendments agreed to.
Clause 9, as amended, agreed to.
Clause 10 agreed to.
Lord Mackay of Ardbrecknish Lord Mackay of Ardbrecknish moved Amendment No. 4:
After Clause 10, insert the following new clause—
SAVING FOR SOCIAL SECURITY REGULATIONS
(".—(1) Notwithstanding any enactment or rule of law, regulations may exclude from entitlement to any of the following benefits, namely—

(a) income support, housing benefit and council tax benefit under the Social Security Contributions and Benefits Act 1992;

(b) income support and housing benefit under the Social Security Contributions and Benefits (Northern Ireland) Act 1992; and

(c) jobseeker's allowance under the Jobseekers Act 1995 or the Jobseekers (Northern Ireland) Order 1995,

any person who has made a claim for asylum and is of a prescribed description.
(2) Regulations may provide that, where such a person as is mentioned in subsection (1) above is subsequently recorded by the Secretary of State as a refugee within the meaning of the Convention—

(a) that person may, within a prescribed period, claim the whole or any prescribed proportion of any income support, housing benefit or council tax benefit to which he would have been entitled had he been recorded as a refugee immediately after he made the claim for asylum; and

(b) where he makes such a claim as is mentioned in paragraph (a) above in respect of housing benefit or council tax benefit having resided in the areas of two or more local authorities in Great Britain, the claim shall be investigated and determined, and any benefit awarded shall be paid or allowed, by such one of those authorities as may be prescribed.

(3) Regulations making such provision as is mentioned in subsection (2)(b) above may require the other authorities there mentioned to supply the prescribed authority with such information as it may reasonably require in connection with the exercise of its functions under the regulations.
(4) Schedule (Modifications of social security regulations) to this Act—

(a) Part I of which modifies the Social Security (Persons from Abroad) Miscellaneous Amendments Regulations 1996; and

(b) Part II of which modifies the Social Security (Persons from Abroad) (Miscellaneous Amendments) Regulations (Northern Ireland) 1996,

shall have effect.
(5) The Jobseeker's Allowance (Amendment) Regulations 1996 shall have effect as if they had been made on the day on which this Act is passed.
(6) In this section—
"claim for asylum" and "the Convention" have the same meanings as in the 1993 Act;
"prescribed" means prescribed by regulations; "regulations"—

(a) in relation to income support, housing benefit or council tax benefit under the Social Security Contributions and Benefits Act 1992, means regulations under that Act or the Social Security Administration Act 1992;

(b) in relation to income support or housing benefit under the Social Security Contributions and Benefits (Northern Ireland) Act 1992, means regulations under that Act or the Social Security Administration (Northern Ireland) Act 1992;

(c) in relation to jobseeker's allowance under the Jobseekers Act 1995, means regulations under that Act or the Social Security Administration Act 1992;

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(d) in relation to jobseeker's allowance under the Jobseekers (Northern Ireland) Order 1995, means regulations under that Order or the Social Security Administration (Northern Ireland) Act 1992.").

The noble Lord said: In moving Amendment No. 4 I shall speak also to Amendments Nos. 15 and 17. As I announced in the House last Monday, I am today bringing forward primary legislation to respond to the decision of the Appeal Court on 21st June that the regulations on asylum seekers passed by your Lordships on 30th January were ultra vires and that primary legislation alone could achieve what the Government and both Houses of Parliament had agreed.
I should like to remind your Lordships why the Government reached the conclusion that something had to be done to control the increasing numbers of asylum seekers coming to this country and receiving benefits from British taxpayers on what, in the great majority of cases, turned out to be a false basis.
Over the past 10 years the numbers applying for asylum in this country have increased tenfold. In 1984, 1985, 1986, 1987 and 1988 the numbers ranged from 4,000 to 6,000. In 1995 they had reached 55,000. A decade ago the numbers ranged from 4,000 to 6,000 and by last year they had reached 55,000.
The Benches opposite may say that I should not be surprised. They will tell us that the world has become a much more dangerous place. But has it? If it has, and that is the reason for the increase, then surely I should find the same increase elsewhere in Europe. But I do not. Perhaps we may look at the European picture. In 1986, when we had 5,700 applicants, the total for Europe was 228,000. In 1995 the European total had increased to 329,000. That is an increase of 44 per cent. During those years the increase in the whole of Europe was 44 per cent. Our numbers, which were 5,700 in 1986, were 55,000 last year. That is an increase of almost 800 per cent. One needs to compare and contrast an increase of 44 per cent. with an increase of 800 per cent.
If we look at those asylum seekers from the point of view of the success or otherwise of their application, what do we find? In 1985, with 6,200 applicants, 21 per cent. of the initial decisions led to the granting of asylum. Last year, with 55,000 applicants, that had fallen to 5 per cent. In other words, 10 years ago, for every 100 asylum seekers coming to these shores 21 were found to be genuine whereas, last year, only five were. Therefore, the UK has seen a far greater increase over the past decade than the rest of Europe, for which the figure is 44 per cent. in contrast with 800 per cent. in this country. The proportion of those who turn out to be genuine has fallen quite markedly. I do not believe that those figures and those comparisons give any weight to the contention that the world has become more dangerous, only that we have become more attractive.
In social security we have a threefold objective: to pay benefit to the right person at the right time and at the right amount. The "right person" in this context is someone who claims and is found to be a refugee. In 1995, out of every 100 who claimed asylum, after both the initial Home Office decision and any appeals, seven
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were granted refugee status, 16 were granted exceptional leave to remain and 77 were refused both. In other words, months and indeed, in some cases, years of benefit was paid to the wrong person. On the 1995 figures, and excluding dependants, 34,000 people were receiving benefit who turned out not to be genuine refugees.
That cannot be right. We would not accept that degree of error in any of the benefits we pay to our own citizens. And we surely cannot expect our own taxpayers to dig into their pockets to pay around £200 million without justification. Therefore we brought forward our proposals, and made changes from last February, changes which I believe were both fair to genuine asylum seekers and fair to our own taxpayers.
We removed entitlement from three groups of asylum seekers: first, those who entered this country illegally and only later claimed asylum; secondly, those who enter this country claiming to be tourists or businessmen and who undertook to maintain and accommodate themselves without recourse to public funds—and I repeat, without recourse to public funds; and those who had been found by the Home Office not to fulfil the criteria set out in the UN convention.
Under normal rules in the benefits system you have to establish that you have a legitimate claim before receiving any benefit. Of course we accept that asylum seekers have to be treated more generously. That is why anyone who applies at the port of entry—at the first possible opportunity—will be eligible to receive income support at the 90 per cent. rate, housing and council tax benefit, and help under the homelessness legislation. And for anyone here on business, visiting or to study, who finds that his home country has suffered a significant upheaval, his claim for asylum will allow him entry into the benefit system.
Also under normal rules in the benefit system, a British claimant who is appealing does not receive benefit during the course of the appeal. Our proposals will apply the same rules to asylum seekers who appeal as apply to our own citizens. I know that some of your Lordships think that that is particularly harsh. But let us consider the facts. Almost every person who is refused appeals against that refusal and of course stays on benefit—17,000 in 1995. The appeals process is long, and of course every appellant has every incentive to delay the day of decision, and some do. And only three out of every 100 have their appeal upheld. I submit to the Committee that that is not a very good example of benefit going to the right people.
Now, it would be a very fair question to ask me what has happened in the months since February as the policy we agreed here on 30th January has come into effect, and I am glad that that question has been asked. Taking this year's figure for February and comparing it with last year, the number of applicants was down by 6 per cent. In March, it was down by 5 per cent.; in April it was down by 27 per cent.; and in May it was down by 49.16 per cent.—from 3,450 in May 1995 to 1,754 in May 1996.
I am in no doubt that the policy that we agreed in January, and the policy which I am asking the Committee to confirm today, is the correct one. The facts I have

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outlined make it clear that any responsible government had to act, and the results since February justify that action. The new clause and the new schedule put beyond doubt Parliament's powers to restrict benefit entitlement for asylum seekers in the way set out in the February regulations.
I shall explain the amendments in terms of how they achieve their goal. Subsection (1) of the new clause specifically provides in primary legislation for the power to withhold benefit entirely from certain asylum seekers. It therefore directly meets the appeal court's concerns. Having provided for the powers that the court said were missing the second task is to reinstate as from Royal Assent those regulations which the court found to be ultra vires. This is done in the schedule.
The third task is to deal with the unforeseen entitlements that have arisen because of the return to the rules which existed before 5th February. Anyone who obtains benefit because of the court's judgment, will have that stopped once this Bill becomes law. And anyone who comes along after Royal Assent and claims benefit for the period between 5th February and this Bill becoming law solely on the basis of the court's judgment will not be entitled. Those who have obtained money during the period will keep it.
Perhaps I should say a word about those people who were transitionally protected. The provisions of 5th February regarding them still stand as the court did not find against them.
There is a fourth task, and one not arising out of the Court of Appeal's decision. I announced last Monday that once someone is accepted as a refugee he will be able to ask for his entitlements to benefit to be backdated at the asylum seeker rate to the start of his application for asylum. This will bring the treatment of refugees into line with that of British citizens who win an appeal, and will apply to income support, housing and council tax benefit. This will address one of the concerns expressed by the Court of Appeal in its judgment of 21st June.
I have no doubt that in the course of discussing the various amendments tabled by the Benches opposite I will be able to go into greater detail, but I hope that during the debate we can hear some indication of what the two parties opposite would do to deal with the very considerable abuse of the asylum system and the considerable sums of taxpayers' money which have been wrongly spent on people who turn out to have no claim on our hospitality.
On 30th January, when I successfully persuaded your Lordships to join me in the Division Lobby to pass the regulations, I believed that they were sensible measures which, given the facts that I have outlined—and I outlined them then—any sensible and responsible government had to take. I am equally convinced today, and even more so when I examine the statistics for the months which have passed since we agreed to the amended regulations in January. I commend the amendments to the Committee. I beg to move.
[Amendment No. 5, as an amendment to Amendment No. 4, not moved.]
Baroness Hollis of Heigham Baroness Hollis of Heigham moved, as an amendment to Amendment No. 4, Amendment No. 6:
Line 10, leave out ("and is of a prescribed description") and insert ("other than on his arrival in the United Kingdom or within 3 working days of that arrival").
The noble Baroness said: In moving this amendment, I shall speak also to Amendment No. 12. What the Government did in their regulations of January 1996 and what they are seeking to do now is wrong. The judges have declared that those regulations were not merely wrong as a point of law, although they were fairly stinging about that, but that they were wrong beyond that as a matter of principle. Their judgment in the Court of Appeal sounded a note of moral revulsion to a degree rarely heard in a British court.
As Lord Justice Brown said:
"A significant number of asylum seekers [are] impaled on the horns of a dilemma: the need either to abandon their claims to refugee status or alternatively to maintain them as best they can in a state of utter destitution … [this] uncompromising draconian policy contemplate[s] a life so destitute that to my mind no civilised nation can tolerate it".
That is the judgment of an appalled judge. He was not alone. The second judge, Lord Justice Waite, said that the Government's regulations and, therefore, these clauses make it,
"not merely difficult but totally impossible for [asylum seekers] to remain here to pursue those claims".
Even the dissenting judge, Lord Justice Neill, said that the regulations would,
"have an adverse effect on a significant number of genuine asylum seekers. Some may be obliged to return to conditions of danger. Others"—
these are the words of the dissenting judge—
"may be obliged to live in penury or to abandon their claims to asylum".
While accepting that the Government may have been within the technical law, even the sole dissenting judge believed that they were outside the moral law of this country.
Why did the judges give such a stinging rebuke to the Government? They argued that the regulations were illegal and that the regulations—and, therefore, the clauses—are indiscriminate; and, indeed, that the regulations and the clauses are immoral. I repeat: illegal, indiscriminate and immoral.
First, the proposed changes are illegal in the narrow sense because the regulations subverted the intention of the 1993 Act and secondary legislation cannot be used to subvert primary legislation. However, it is not just a technical illegality; and the Minister has made much of this. The judges made it very clear that the proposed changes are illegal in a wider sense because they will run counter to our abidance by the European convention and to our treaty obligations.
Article 23 of the UN convention on refugees of 1951 states that contracting states shall accord to refugees lawfully staying in their territory the same treatment with respect to public relief and assistance as is accorded their nationals. That article is precisely what the Government are failing to observe. The change is illegal.
Secondly, the court made clear that the proposed action was indiscriminate because, under the clauses, and with the regulations, the Government would be denying benefit to those who are genuine asylum seekers as well as those who are not. The Government give benefit to those who are not genuine if they apply at the port of entry but they deny it to those who are genuine if they apply in country. That is indiscriminate, and the judges said that it is wrong.
Thirdly, it is immoral. The regulations and the clauses deny to genuine asylum seekers any meaningful right to pursue their claim. Their choice is between destitution in the UK or detention in their country of origin. As Lord Justice Waite said, that right to pursue their claim is valueless and empty if they cannot survive to pursue it.
Are we saying in this country that people are guilty and not entitled to receive benefit until they prove they are innocent and then denying them the means on which to live while they do so? Are we comfortable with that reading of British justice—guilty until proven innocent with no means of subsistence to enable one to prove one's innocence? Is that our way of life? I repeat, the Court of Appeal's judgment was not merely a technical one under the law; indeed, it reflected a sense of revulsion and outrage against a government policy which has subverted an age-old and worldwide right to asylum.
There can only be one right way to proceed; namely, to ensure that everyone entitled to benefit receives it. We can only know whether people are entitled when we determine their claims. We should separate the deserving, if you like, from the undeserving on grounds of justice, and not on grounds of government convenience which is all that the port of entry test represents.
All of us in the House know that the right way to proceed is to speed up the hearings, not to starve asylum seekers out of them. Other countries determine such applications far more rapidly than we do. Indeed, we are taking 19 months from the determination of the first hearing of new claims; and, indeed, we are getting worse, not better, adding something like 2,000 cases every month to the backlog.
The Court of Appeal made it clear that the Government should provide a basic means of subsistence, if not the full range of benefits, until a claim is determined. Otherwise, what we will see is a Home Office which fails to do its job of securing justice and which, instead, is relying on the DSS to do its work for it. Because we do not offer asylum seekers justice, the DSS will not offer them benefit; because the Home Office will not resolve their claims in decent time, the DSS is seeking to deter those claims on social security grounds; and, because we do not hear applications when we should, instead we deny asylum seekers the means of surviving until we do. In all fairness and in all decency, whose fault is that? Is it the asylum seeker who seeks asylum, or the system which will not hear his application in time?
With this amendment we are not saying that all asylum seekers should receive benefit; we are merely saying that anyone who applies for asylum within three working days of arrival in this country under Amendment No. 6, or seven days under Amendment No. 12, should be treated as though he had applied at the port of entry. No one believes that we should be giving full benefits to economic migrants, students or businessmen who have been in this country for three years. But surely no one believes that someone applying within three days of arrival should be treated as an economic migrant and as though he were a businessman. The question is: is the Government's port of entry test a reasonable one?
I ask Members of the Committee to try to imagine for a moment that they are living in a country, fearing persecution, where the police are accountable to no one, and where official power is arbitrary, frightening and absolute. It is a country where one has no rights at law and no trust in any legal system and where to leave that country one would have to falsify one's papers. Such a person may arrive in this country and may not speak the language. What should he do? What would Members of the Committee advise a son or grandson to do in such circumstances? I would tell my son to get into the country and be safe. I would say to him, "Don't stop at the borders. Get into the country, then apply for asylum." In all honesty and in all honour would any Member of this Committee advise his son or grandson to act differently? I think not.
Since February 1996, the Medical Foundation has seen 45 clients who were refused benefit. They did not apply at the port of entry, though most of them applied within a few days of arrival. Why did they not apply at the port of entry? The reasons given were: first, they were frightened that immigration would send them back; secondly, they wished to get the advice of a lawyer or a friend because they were terrified; and, thirdly, they relied on the advice of an agent who either abandoned or misled them. Therefore, they applied three days later and not at the port of entry.
However, the port of entry test does some things. It distinguishes between those who are confident and apply and those who are frightened and who do not dare. It distinguishes between those who speak English and those who do not; those who are fit and healthy and those who are not; and those who know the system—perhaps even know how to work it—and those who do not. What the port of entry test does not do is distinguish between the genuine and the fraudulent. Government Ministers have never shown at any stage in our debates, in Committee, during Report stage or, indeed, today, that the port of entry test is a genuine test designed to distinguish between the genuine and the fraudulent.
The facts are on our side. In the past six months 205 people who applied at the port of entry won asylum or exceptional leave to remain. Double that number—440—who applied in country, without of course the right to benefit, won their right to asylum or leave to remain. Thirty per cent. of all asylum seekers either obtain asylum or exceptional leave to remain or win an appeal. The majority of those obtain it once they have entered this country.
This amendment is modest. It suggests that within three working days of arriving in this country one should be treated as if one is applying at the port of entry. Three days is not a long period but it probably helps those most deserving of all—those who are true asylum seekers and who have fled conditions so bad that they cannot trust a system which requires them to report at the port of entry. Are we talking about many people? Only a few days ago the Minister said that 15 per cent. only apply in country within one week. This amendment would not add to the number of people who are entitled to remain. However, it may produce a slightly better fit between those who turn out to be genuine asylum seekers and those who get benefit. Is that too much to ask? This amendment in all fairness and in all decency tries to mitigate the worst effects of the Government's bogus test. It does not do much but it will, however, help a little. That is why we move it today. I beg to move.
3.45 p.m.
Earl Russell: Before developing an argument on a matter which may at moments, I fear, become a little heated, it is my great pleasure to be able to give thanks to both Ministers on the Government Front Bench. I thank the noble Baroness—and through her, her officials—for putting right a case of over-zealous enforcement I brought to their attention as recently as late last Wednesday. That is a great pleasure and I thank them warmly. I thank the noble Lord, Lord Mackay of Ardbrecknish, for the concession to students embodied in the amendment he has just moved, which embodies an undertaking he gave me at the Committee stage of this Bill. I thank him warmly for that too.
Before getting into the legal arguments on which I wish to spend most of my time, I wish to touch on some of the arguments that the Minister has developed. He has developed—as I suppose one might have expected—all the arguments about the flood of bogus asylum seekers and the increasing proportion of refusals. I spent most of the first day of Committee on this Bill answering those arguments. I shall not detain your Lordships long with them now. I shall merely quote one example I then used of an asylum seeker from Zaire who was told, "Your description of the soldiers breaking into your house firing wildly in all directions seems to be proof that they were not attempting to seek your life". I do not believe that that person was a bogus asylum seeker. I shall go no further on that point.
On the level of benefits, I wish to quote from paragraph 29 of the report of the Social Security Advisory Committee on these regulations which states:
"Doubts were expressed about the suggestion that the availability of social security benefits is a significant reason for attraction to the UK. Many respondents said that, in their experience, the reputation of this country for fairness, or historic ties between Britain and the applicants' country of origin are much stronger 'pull factors' for asylum seekers. Several of them quoted Home Office research"—
from the Home Office Statistical Bulletin 15/95, table 5.1—
"which suggests that many refugees and those granted exceptional leave to remain are well-educated and enjoyed a better standard of living before leaving their own country".
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There was considerable noise exchanged between the other two Front Benches on whether in-country or port applicants enjoy a greater rate of success. I quote the observation of Lord Justice Simon Brown in the Court of Appeal:
"As for the statistics, these appear to show no significant difference in the rate of recognition as refugees between those applying on arrival — and those who apply after entry".
I am prepared to accept the learned judge's ruling.
In supporting this amendment I argue that it may save the Minister a great deal of future legal trouble. Before this Chamber agrees to reverse the Court of Appeal's judgment, it is important that we should understand exactly what that judgment stated. It stated that the regulations were ultra vires because they conflicted with another Act of Parliament and therefore primary legislation could put the matter straight. As far as that goes it is a correct analysis. But what we would not have guessed from listening to the Minister is what that enactment was that the Court of Appeal believed conflicted with the regulations. It was Sections 2 and 6 of the Asylum and Immigration Appeals Act 1993. That Act not merely guarantees the very right to seek asylum itself; it also incorporates in British law the UN Convention on Refugees of 1951.
What the Court of Appeal found was that those regulations threatened the very right to seek asylum itself. At every stage of the Bill from the speech of the noble Baroness at Second Reading onwards we have had assurances that nothing in this Bill was likely to threaten the rights of genuine asylum seekers. The Court of Appeal found otherwise. Lord Justice Simon Brown stated:
"A significant number of genuine asylum seekers now find themselves faced with a bleak choice: whether to remain here destitute and homeless until their claims are finally determined or whether instead to abandon their claims and return to face the very persecution they have fled".
That was what the Court of Appeal found; that the regulations threatened the very right to seek asylum itself.
Parliament can do whatever it likes. If Parliament chooses to repeal Section 2 of the 1993 Act and to disincorporate the UN Convention from British law, Parliament may do so. But the Government have not asked Parliament to do so. Parliament has asked us to say that a contradiction is not a contradiction. That is something that even the sovereign power of Parliament cannot do. If, like the old lady in the Agatha Christie novel, Parliament were to insist on dividing something into four equal thirds, the courts would be guilty of no disrespect for parliamentary sovereignty if they failed to do so.
The question whether one Act of Parliament contradicts another is not a question for the Government. It is not even a question for Parliament. It is a question for the courts. The Government are trying to assure us that a contradiction is not a contradiction. I am not quite sure that they can do that. It is going to produce an interesting case. I would give the Government the advice my American lawyer once gave me: never be a lawyer's interesting case. The Government may well say that the later Act of

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Parliament takes priority over the earlier one. So in normal circumstances it does, but that rule is not invariable. There can hypothetically be exceptions to it. In this case I do not believe that it applies, because if one looks at line 14 of Amendment No. 4 and at lines 41 to 42 of Amendment No. 4, one can see that they also uphold the convention. The amendment states that,
"'claim for asylum' and 'the Convention' have the same meanings as in the 1993 Act".
In other words, the amendment contradicts itself. It is felo de se. Therefore the courts will have to decide which part of the amendment Parliament meant. I do not envy them that choice.
I do not think that the Government can get out of the dilemma in the only way which would logically have saved them, by repealing Section 2 of the 1993 Act: first, because of the assurances that I have quoted; secondly, because I believe that there is no majority in either House of the present Parliament for such a course; and, thirdly, because that would not get rid of our obligations under international law. I believe it is understood that it may be an act of aggression against another country to send a large flood of destitute refugees into that country's territory rather than accept them in our own. Another country might have a ground of action before the International Court of Justice if it believed that we were doing so. In the present world we are not plentifully equipped with friends. I can imagine such a case being brought.
Under Section 23 (which the noble Baroness, Lady Hollis of Heigham, quoted) and Article 24 of the UN Convention on the Rights of Refugees, refugees enjoy a right to support and to social security. Lord Justice Simon Brown referred to the clause, but was wrongly persuaded by Treasury Counsel that the word "refugee" applied only after people had come into the country. It is made clear by the UNHCR that in any matter to do with the UN convention the definition of refugee applies from the moment of asking for asylum. That was accepted in the Court of Appeal in 1993 by Lord Justice Nolan (as he then was). I have the quotation beside me. The noble and learned Lord upheld exactly the meaning of the word "refugee" which the UNHCR recommends: that it applies from the moment of claiming asylum. Indeed, that is the meaning which applies in this amendment. A person becomes a refugee when his claim is recorded by the Secretary of State within the meaning of the convention. Under that reading, which has the authority of a learned judge in the Court of Appeal, and one who enjoys the greatest respect, that is another reason and another possible ground of action for saying that we are in breach of obligations.
I am aware of the Brind case. I am aware that international obligations are not enforceable in a British court. But in this case they are incorporated. My submission is that before the Government can do what they seek to do they must disincorporate those obligations. The legal advice that I have been given is that we are in uncharted waters; I understand that the point has never been argued. But it might be ruled that when an international obligation has been incorporated
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by legislation in British law, Parliament can disapply it only in express words. That argument would have the great advantage of tending to certainty. Were such an argument to be put before the courts I should listen to it with great interest.
We have here a very serious matter. Judging in the Appellate Committee of this House in 1986, the noble and learned Lord, Lord Bridge of Harwich, said that in matters which may involve a risk to life decisions should be taken only after the most careful and anxious scrutiny. I hope that that argument is as true in this Chamber as it is in your Lordships' Appellate Committee.
The Lord Bishop of Ripon: I support the amendment moved by the noble Baroness, Lady Hollis. She moved an amendment to a clause which seeks to reverse the situation brought about by the Court of Appeal's judgment declaring the withdrawal of benefits from certain categories of asylum seekers to be unlawful. The final words of Lord Justice Simon Brown's judgment include those words already quoted by the noble Baroness, Lady Hollis, as regards the horns of the dilemma. The judgment concludes with this sentence:
"Primary legislation alone could in my judgment achieve that sorry state of affairs".
The primary legislation is that which the clause seeks to enact; and the sorry state of affairs is precisely that already described—namely, the stark choice which faces some asylum seekers either to persist with their claim and become destitute, or to abandon their claim and leave this country.
It is true that Parliament has the sovereign power to legislate as it wills. But to many of us this piece of legislation is repugnant. The chief reason is that it presents some of those seeking asylum with the choice which has been put starkly by the Court of Appeal. Those who apply in country, and those who are appealing against a determination, are to be refused benefit. We have had already a good deal of discussion about the comparisons between those who apply in country and those who apply at port. As I read the figures, for years it has been the case that those who apply in country are as successful, or on occasions more successful, in their claims than those who apply at port of entry. Of those who appeal, a proportion succeed. That proportion has been fairly constant over the years. I know that the noble Lord, Lord Mackay of Ardbrecknish, is a mathematician, as indeed I am. As I read the figures, the proportion of those who achieve a successful determination as asylum seekers has not altered much over a decade. What has altered is the proportion of those given exceptional leave to remain. That figure has dropped dramatically in recent years.
Clearly, we have different perspectives over how far those who do not achieve a successful determination or exceptional leave to remain can be treated as bogus or as economic refugees. But even on the Government's view—that all those who fall into the 77 per cent. are bogus—there are some who have come to this country for genuine reasons; and within both categories (in-country applicants and those pursuing their appeals) there are found to be genuine asylum seekers. Those

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applicants are presented with the choice of destitution and the pursuance of their claim, or the decision to abandon their application and go elsewhere.
The noble Lord, Lord Mackay of Ardbrecknish, spoke about the way in which the figures have altered over more than a decade. If my memory is right, he referred to about 5,000 asylum seekers who came to this country in 1985 out of a total of some 250,000 who came to Europe. My arithmetic tells me that that is about 1 per cent. of those who found their way to Europe. I ask the Committee whether 1 per cent. in that year was a fair proportion for this country to take of all the asylum seekers who came to Europe. Germany took in much larger numbers. In other words, over this decade we have received a fairer proportion of those coming to Europe.
The noble Lord, Lord Mackay, also referred to the drop in those coming to this country to pursue an appeal. But surely they will be aware that the choice facing those already in the country is one that they will have to face should they come here. It is, therefore, not surprising that the numbers should have dropped.
When the Minister said that he would speak of what had happened since the February decision, I assumed that he would state what was happening to asylum seekers in this country. It is, I suggest, an indication of our difference of perspective that he spoke rather about those who are not coming to the country. What has happened to those who are in the country and who have been affected by the decision to withdraw benefit has been outlined in a report prepared by the community liaison officer of the Roman Catholic Diocese of Westminster. The report suggests that the vast bulk of those who are already seeking asylum in this country are being cared for by their own communities. It suggests that that is a course of action which it will be possible to sustain for a short period but it cannot be sustained in the long term. There are those who have no community in the country to which they can turn and emergency provisions are being made. I quote from the report:
"Churches in Hampstead, Camden, Bayswater and Hackney are providing emergency shelter for asylum-seekers with no welfare benefits. This accommodation is very basic, consisting of mattresses on church hall floors and limited washing and cooking facilities".
The report has a considerable description of what is happening to those who are attempting to pursue both lines of action: to remain in this country to pursue their cause and to continue to try to find some way of surviving while they do so.
We all share a concern that abusers of the asylum system should not be tolerated. There are, of course, abusers of the system, although some of us do not believe them to be so numerous as the Government claim. It is quite right to ensure that they do not profit and the Government are entirely right to pursue a course of action which ensures that that does not happen. But the way that they propose is at the expense of denying to genuine asylum seekers their right to pursue their case. It is the politicians' job to find a way of holding together those two policy decisions, but I suggest to your Lordships that the judgment of the Court of Appeal provides some pointers as to how that might be done.
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They are not necessarily those that I wish to support, but the judgment suggests that a benefit could be provided in kind rather than in cash. It suggests also that the levels of benefit might be set in such a way as to deter those who abuse the system.
However, the point remains that the way forward that is being suggested now is at the expense of those who need the opportunity to pursue their claim and for many of whom it will be found to be genuine. Therefore, I support the amendment.
4. p.m.
Lord Campbell of Alloway: I oppose the amendment. None of the noble Lords who have spoken, nor the right reverend Prelate, has begun to address the essence of the problem. It is that any responsible government must have a policy of some kind—and no one has suggested what it should be—to save abuse by bogus claimants to the tune of £200 million a year paid by the taxpayer. No proposals as to how that should be tackled have as yet been mentioned in the debate, although they were mentioned on commitment. Inevitably on recommitment there is an element of repetition. With the leave of the Committee, I shall be brief because most of what I wish to say has already been said.
In that context, I come to the convention. I agree—as I often do—with the noble Earl, Lord Russell. It is an important international convention, but for the life of me I cannot see in it any provision for benefit. There never has been any. The genuine asylum seekers, the Huguenots, the Lombards and others, came here to seek refuge, not finance or benefit. It is important—
Earl Russell: I am grateful to the noble Lord for giving way. Is he aware that the Huguenots and the others to whom he referred received considerable relief from parish funds?
Lord Campbell of Alloway: I do not say that people who came here never received relief, there was no state relief provided by the taxpayer. Perhaps the noble Baroness will allow me to finish my sentence and then I shall give way to her. I am obliged. Unfortunately, I have forgotten what I was going to say so I shall give way.
Baroness Hollis of Heigham: I wish to affirm the point made by the noble Earl, Lord Russell, that in the period to which the noble Lord referred no one was eligible for state relief. There was no such thing as state benefit. All benefits were parochial benefits. Refugees were treated in exactly the same way as local people. That is all we ask for in the amendment.
Lord Campbell of Alloway: I am grateful to the noble Baroness. What I wished to say relates to the point. The problem is not the same. We live in this century, approaching the next, and the Government have to tax people.
Lord Mackay of Ardbrecknish: I am grateful to my noble friend for giving way. However, I suggest that he

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does not allow the noble Earl to take him too far along historical parallels. It can often lead one up blind alleys, as I know to my cost. Does my noble friend agree that we will provide benefit to all those who apply for asylum on arrival in this country? That is the important point.
Lord Campbell of Alloway: I totally accept that.
The Lord Bishop of Lincoln: Parish relief has been mentioned in the debate and it may help the Committee to have a picture of the situation.
Lord Mackay of Ardbrecknish: Perhaps the right reverend Prelate would not mind giving way. I believe that my noble friend had not finished his speech.
Lord Campbell of Alloway: I shall do my best to finish it. I am grateful to my noble friend. I was coming to the port of entry argument which was discussed on the previous occasion and which confers the benefit. However, before that I was discussing the genuine asylum seeker who comes here to seek refuge, not money. We are now in an age where the Government must watch their expenditure on what has been shown to be a mass of bogus asylum seekers.
The only new matter that arises on recommitment is the judgment of the Court of Appeal. That is of no relevance at all. First, it is totally irrelevant whether the Divisional Court was right, whether the dissenting opinion of the Court of Appeal was right or whether the majority opinion of the Court of Appeal was right. It matters not. We will never know—
Lord Mishcon: If the noble Lord will forgive my interrupting, does he follow that formula when he practices in our courts; namely, that the Court of Appeal's decision does not matter, that it does not matter whether it is a majority or a minority decision? If so, all those of us who are his colleagues would be very surprised.
Lord Campbell of Alloway: I am saying, and I reiterate, that in my opinion in these circumstances the Court of Appeal's opinion, be it a dissenting opinion or a majority opinion, is of no further assistance to your Lordships. That is my view. The noble Lord, Lord Mishcon, is entitled to his view; but I am trying to make a speech and express my own views—and I am not doing very well at the moment!
I would even suggest that Lord Justice Simon Brown's opinion essentially went wrong because he failed to appreciate that in the convention there was no obligation for benefit. By making that error he formulated the "horns of dilemma" argument that appealed so greatly to the noble Baroness, Lady Hollis, at the time. It is simply an opinion of a very eminent legal gentleman who holds high judicial office. It is no more nor less than that. It is no substitute for the opinion of this House, which we are here to express. It is not a criticism of the judiciary; it is an assertion of the importance of this House.
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It comes down to the fact that somehow we have to remove incentives for bogus asylum seekers. If we do, there will be fewer claims clogging up the system. It is idle to compare our system with the systems of other countries in this regard. It has been said that the Netherlands rushes claims through in a matter of weeks. But the Netherlands does not receive half the applications that we do. And why? Because its social security benefits are not a patch on ours. If that were done, we arrive at a situation—
Earl Russell: I am most grateful to the noble Lord for giving way. The level of social security benefits in the Netherlands is higher than here.
Lord Campbell of Alloway: No, with respect that is not generally the case. But we can disagree about that outside. Certain aspects are, but not generally.
I shall just make one more point. If we limit asylum seekers to genuine refugees, the genuine refugees will benefit. It is wrong to say that the proposals that the Government wish to introduce put those who do not apply for asylum at the port of entry at an unfair disadvantage.
The Lord Bishop of Lincoln: I support the amendment. It turns on a distinction; namely, the attempt to define what is bogus and what is true in an asylum seeker. I wish to relate the experience of a particular church in London involved in supporting some 20 asylum seekers who passed through its doors or stayed at the church for periods varying from a couple of nights to a couple of months. They come from a variety of sources: through some agency such as the Refugee Council, the medical foundation and the African Churches Council for Immigration and Social Services. All have applied for political asylum.
To begin with, there was no provision from the local council, and a group of community activists worked with church members to address the needs of those people. Shelter, legal representation, food, money, laundry and baths have been provided. At times, a dozen people have been sleeping on the floor of the church. In cramped and inadequate premises, among frightened and unhappy people, stress levels have been high. Volunteers have had to contend with both verbal and physical violence. The local authority's response has been slow. Some asylum seekers have been moved to hostels, others to unwanted flats and squats—all temporary solutions. In one case (and I could recall several) a woman from the Congo was eventually housed in a hard-to-let flat provided after she was safely delivered of a child weighing a mere 4lbs. She was provided with £1.50 per week in benefits for herself and the child.
These are very difficult cases to decide. The members of that particular church are not politicised; nor are they an extremist group of people. The vast majority have Afro-Caribbean or African backgrounds. They would not generally be in favour of open and unlimited immigration. Yet, despite considerable caution about the refugees and immigrants, they feel a sense of outrage at the effects of this legislation. Surely no one puts up with

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that kind of hardship and deprivation voluntarily. What I have described very simply is a long way from a honeypot of generous benefits.
As the noble Baroness, Lady Hollis, said, the reasons why asylum seekers do not apply at the port of entry are varied and complex. Among them are ignorance about what they are supposed to do and problems with language. In other cases it is due to the general confusion and disorientation experienced by people who have endured traumatic experiences. To expect such folk to behave according to strict procedures and logic is surely unrealistic. That is why some mitigation on the time for applications is so important.
I am sure that I have no need to remind noble Lords that there is extensive teaching in the scriptures about the care of sojourners and refugees and our responsibilities. I was reminded yesterday, hearing the Book of Ruth read in church, that our Lord himself was descended after the flesh from a political refugee. I believe, as do many people in our churches, that the present legislation, unamended, casts a dark shadow across our claim to be a compassionate and Christian country. We would prefer a longer period, but want to support this amendment. I hope the Committee will do so.
4.15 p.m.
The Earl of Sandwich: I, too, wish to speak against the Government's attempt to overturn the Court of Appeal's decision. I believe it was based on very careful consideration, not only of the status of asylum seekers but of the Government's own legislation. The amendment and the regulations are flouting the will of Parliament as already expressed and of the nation—and even the Government's own intentions under the 1993 Act, which were to protect the genuine asylum seeker through the right of appeal. As stated in a recent leader in The Times, the denial of benefits is the wrong remedy for the problem that the Government seek to redress.
The Government have decided to use destitution as another weapon in the armoury of their deterrent policy. They have already condemned those who, for understandable reasons that are clear to anyone who reads the daily newspapers, are unable to apply for asylum in country. I support the right reverend Prelate's remark about making a decision. People have made a decision to leave one country; they have not made a decision as to what to do in the next. The Government are therefore turning their back on the genuine asylum seekers we all want to help. Admittedly, they are a minority within the group, but there is a sizeable proportion of in-country applicants. To support their policy the Government are even distorting their own Home Office figures, talking of nine out of 10 bogus refugees. The Minister has been courteous with figures today, but there has been loose talk by Ministers in another place, which I believe to be quite irresponsible. They have used bogus figures, deliberately excluding those who have exceptional leave to remain. The effect is to besmear the image of the genuine asylum seeker and it is damaging to our race relations.
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I spent some time last Friday at a refugee centre in Vauxhall. I saw a number of volunteers unpacking food and clothing for the genuinely destitute. I mention this for two reasons: first, because there may be doubt among some in this Chamber that genuine destitution any longer exists in central London, in spite of what the right reverend Prelate said earlier. The second reason is because the centre has been established only in the last few weeks, solely for the benefit of hundreds of in-country asylum seekers from Africa, eastern Europe and many other regions, adults and children who have been or are being deprived of benefits and who have nowhere to turn, no relatives, no accommodation and no money. We have heard how churches are having to use whatever resources they can muster themselves.
The Government would presumably like these people to go straight to the ferry or the railway station, even though they—or at least a proportion of them—would be genuine asylum seekers. I quote from the judgment of the Court of Appeal. Lord Justice Simon Brown said:
"I would hold it unlawful to alter the benefit regime so drastically as must inevitably not merely prejudice, but on occasion defeat, the statutory right of asylum seekers to claim refugee status".
I hope that that is some answer to the noble Lord, Lord Campbell of Alloway.
Finally, it is a pity that the DSS has not only done no homework of its own on destitution of asylum seekers; it has also criticised as scaremongers those people who have done their homework. I cite instances for scaremongering on 21st June on "Newsnight" and again on 24th June in another place. The Secretary of State accused the Refugee Council and others of exaggerating claims about the effects of the new regulations. I have known the Refugee Council for over 20 years. I know it is a highly respected body, supported by the voluntary agencies and by government. It has no interest in making exaggerated claims. In fact, unlike the DSS, it has carried out its own research based on practical experience of refugees and with asylum seekers, showing that the regulations have caused severe hardship and suffering. The Refugee Council is not asking for an apology from the Secretary of State; it is simply asking, like many of us here, for a recognition of the facts and of the injustice of the Government's main amendment.
Lord Donaldson of Lymington: I rise to support the amendment. Before doing so, I would like to say a brief word about the role of the Court of Appeal. I say nothing about the remarks of the noble Lord, Lord Campbell of Alloway. However, the noble Baroness, Lady Hollis, suggested that the Court of Appeal had delivered a moral judgment. That is not the function of the courts, and the court did not do so. What the majority did was to say that, in the light of their extremely serious consequences, it did not believe that the regulations were within the scope of the primary legislation, bearing in mind other primary legislation. In other words, they were ultra vires. It was a straight legal decision and nothing more, save of course that people can pray in aid the facts, in so far as they were facts, found by the judges. It is important, however, to realise that there is no conflict. I hope that the media will

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realise that there is no conflict, because their circulation depends upon conflict, or imaginary conflict, and it would be unfortunate that this should contribute to their circulation.
I turn to the merits of the amendment. The problem is very clear. It is particularly clear to people like myself who have been involved in judicial review. Visitors to this country apply to the immigration officer for leave to enter and remain for a wide variety of reasons. He may or may not probe those reasons but, as the Government have made absolutely clear, implicit in the application in every case is that there will be no charge on public funds.
Time goes by and the visitors decide that they would like to stay longer, if indeed they did not always intend to stay longer. They appeal for extensions of time and the like. Meanwhile, life goes on as before for them. But when eventually the end of the road is reached they dive into their back pocket and remove the asylum card; they claim political asylum. That is a monstrous position and the Government have sought to tackle it in a way which, to them, seems plausible, particularly since it is said that the denial of economic benefits to those who come in on the basis that they will not be a charge on public funds is no more than poetic justice.
It is plausible but, in my judgment, it is wrong. I say that for this reason. The remedy needs to be tested, not against the case of the bogus asylum seeker, but against the case of the genuine asylum seeker. When one comes to test it against the case of the genuine asylum seeker, there is again an element of great good sense in the Government's decision—or suggestion—that one should divide those who seek asylum immediately on arrival at the port and those who produce the trump card at a later date. However, as has been pointed out, there are many who arrive in this country in a state of some confusion, in high stress, with language difficulties, fearing the authorities, and so on and so forth. For that reason, in my judgment, the amendment is right to extend the period. I would myself have extended it further than the amendment suggests—to such period as gives the asylum applicant a chance to catch his breath.
The case in the Court of Appeal was an extreme example of the surprising results of simply stopping at arrival. Miss or Mrs. B.—I only know that she was a lady—arrived by Eurostar and immediately changed trains and went to Lunar House to claim asylum. But she would have been in the in-country category, the same category as people who claim asylum six months later. In order to balance that argument, I have to say that I cannot for the life of me understand why she was not sent straight back on the basis that she came from a third safe country. Perhaps that is a detail. There is a case for drawing the line somewhere. The matter is not dealt with by any amendment in this House. I venture to believe that when the line has been drawn—and as I said, I would draw it slightly further away from the port of entry than the amendment suggests—the remedy should not be an economic remedy but should be a refusal to entertain a claim for asylum unless it can be
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proved by the applicant that circumstances in his case have arisen for the first time after arrival giving rise to a well-founded fear of persecution.
As far as I know, there is nothing in the convention which stops time limits being put upon applications for asylum. I would have been very much happier—indeed, I would have supported the Government—if they had said there should be a reasonable time, specifying a reasonable time, after arrival in the port for making an application, saying, "Thereafter, we will not entertain an application. You have been warned on arrival"—by multi-language leaflets or some other appropriate means—"that if you did not ask for asylum now you would not get it". That seems to me to be the right way to address this problem. It honours our obligations under the convention; it is humane; and it takes account of the difficulties which are faced by somebody coming to this country if he is a genuine asylum seeker.
But there is one amendment and, although it does not go the whole way, as I should like, it certainly has my support so far as it goes.
4.30 p.m.
Baroness Rawlings: I thank the Minister for his clear explanation of the new clause. The stories that we heard from Members opposite, the Cross-Benches, and the right reverend Prelates during the long days and nights of our debate surely reveal true and moving situations. If asylum seekers are genuine and abide by the law, they will receive help and no doubt become genuine refugees. This country has for decades had a proud record in respect of refugees, a policy which has enriched the country rather than impoverished it.
I have sat through most of the Bill and read through all the details with great care. We all agree that the Bill deals with a very important situation which is perhaps aggravated by the world population explosion. There were 44,000 asylum seekers in 1995, of which only 5 per cent. obtained refugee status. If asylum seekers apply at the port of entry, there is no problem. We all know that they will receive benefits. But why should anyone from abroad be able to claim asylum at any time after they have been in this country as a tourist, a businessman or a student? Why should they be guaranteed, for at least 18 months, income support, housing benefit and council tax benefit?
We have heard much criticism from the noble Baroness, Lady Hollis. I am absolutely amazed. We heard that the party opposite would advise people to break the law and tell lies. I can hardly believe it. In the unlikely circumstances that the party opposite find themselves in office, would that government repeal this Bill and would they continue to advise people to break the law and tell lies?
I support the Home Secretary and the Secretary of State for Social Security in this long overdue change. We have already seen the fruits of changes: 50 per cent. fewer asylum seekers, saving the British taxpayer

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£129 million; thus making it easier for true asylum seekers whom we want to help to come through. That must be right. I oppose the amendment.
Lord Lester of Herne Hill: I speak in favour of the amendment. I respectfully agree very much with the remarks of the noble and learned Lord, Lord Donaldson of Lymington, and I shall not comment further on that. I want to deal with two matters. One is the relevance of what the Court of Appeal decided as a matter of law; the other is a problem about the ouster clause and what it means.
In a statement last week the Minister said that following the Court of Appeal's decision:
"It is the Government's intention to introduce amendments aimed at restoring Parliament's intention".—(Official Report, 24/6/96; col. 596.)
I suppose that what the Minister meant by "restoring Parliament's intention" was the parliamentary approval given for the 1996 regulations. But, if one is concerned with Parliament's intention, surely what matters is the intention in enacting the Asylum and Immigration Appeals Act 1993. That was the basis for the Court of Appeal's ruling as a matter of law that the regulations were ultra vires.
Parliament's intention has been decided authoritatively as a matter of law by the Court of Appeal. I say "authoritatively decided" because, as the Committee knows, the Government decided to forgo their right to pursue an appeal to the Appellate Committee. In the absence of an appeal to the Law Lords, what the Court of Appeal decided about Parliament's intention is therefore truly an authoritative statement of the law as it stands. Contrary to what was said by the noble Lord, Lord Campbell of Alloway, I believe that the Court of Appeal's decision on the legal issues matters very much indeed in this debate.
I hope the Committee will forgive me if I summarise, in a little more detail than has been heard so far, exactly what the Court of Appeal decided as a matter of law. It said that Parliament,
"has clearly demonstrated by the 1993 Act a full commitment to the United Kingdom's Convention obligations … [and] the 1993 Act confers on asylum seekers fuller rights than they had ever previously enjoyed, the right of appeal in particular".
The Court of Appeal also held that Parliament intended:
"that some basic provision should be made, sufficient for genuine claimants to survive and pursue their claims";
and again that:
"Parliament cannot have intended a significant number of genuine asylum seekers to be impaled on the horns of so intolerable a dilemma: the need either to abandon their claims to refugee status or alternatively to maintain them as best they can but in a state of utter destitution".
The Court of Appeal made it clear that the Secretary of State is fully entitled under the law as it stands to discourage economic migrants by restricting their benefits. Lord Justice Simon Brown pointed out, for example, that we could do exactly what has been done in other European countries. He gave some examples: we could make urgent needs payments at a significantly lower rate than 90 per cent.; or, more draconian, we could allow certain categories of claim, such as the
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in-country claim brought more than four weeks after arrival, to be processed as without foundation claims rather on the lines of the remarks of the noble and learned Lord, Lord Donaldson, a few moments ago. Those are the kinds of options pursued in other countries.
But the Court of Appeal made it quite clear that the Minister is:
"bound to maintain some benefit provision to asylum seekers so as to ensure that those with genuine claims will not be driven by penury to forfeit them, whether by leaving the country before their determination or through an inability to prosecute them effectively".
I apologise for all the quotations. But the amendment tabled by the Government does not restore Parliament's intention in passing the 1993 Act, as found by the Court of Appeal. It frustrates and thwarts Parliament's intention in passing that Act. The Government's intention is directly contrary to Parliament's intention in passing the 1993 Act, because—I see the Minister shakes his head in disagreement—the Government's amendment, as so many Members of the Committee have said, would indeed (to quote the Court of Appeal) impale:
"a significant number of genuine asylum seekers … on the horns of [an] intolerable dilemma",
which, in Lord Justice Simon Brown's memorable phrase, is:
"the need either to abandon their claims to refugee status or alternatively to maintain them as best they can but in a state of utter destitution".
In view of the Minister's disagreement with me, I am bound to say that I cannot understand how the Government can contradict what I said; namely, that what they are doing plainly flouts the intention of Parliament as decided by the Court of Appeal.
If the Government's amendment is passed without any softening amendment of the kind now before the Committee, there will be no benefit provision to asylum seekers merely because they failed to seek asylum on the day when they sought entry. There will be no locus penitentiae. There will be no provision to ensure that those with genuine claims will not be driven by penury to forfeit them, whether by leaving the country before they are determined or because they are unable to prosecute them. That again is contrary to Parliament's intention in passing the 1993 Act. That is an extraordinarily unsightly intention to ask Parliament now to authorise, now at the eleventh hour, coerced by Whips and in some haste.
Moreover—this is the other point I want to raise in relation to the ouster clause—the means chosen by the Government are also troubling. Paragraph (1) of the new clause begins,
"Notwithstanding any enactment or rule of law, regulations may exclude from entitlement to … benefits … any person who has made a claim for asylum".
Read literally, paragraph (1) purports to oust the courts from reviewing whether future regulations are inconsistent with any enactment, including the 1992 and 1993 Acts as well as any rule of law. The principles of legality, rationality and procedural propriety are well known in administrative law.

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I cannot tell whether or not that is the Government's intention. On the face of it, the first words of the ouster clause seem to be calculated to prevent the courts from deciding whether, for example, the regulations were arbitrary or manifestly irrational; whether they were directly or indirectly discriminatory; whether they breached fundamental human rights; whether they breached the 1951 Refugee Convention and so forth.
I doubt whether the courts would interpret the ouster clause in a sweepingly broad way—for example, so as to exclude a hypothetical case where the regulations discriminated on the basis of race or subjected asylum seekers to degrading or inhuman treatment, or prevented them from having access to courts. I gave notice to the Minister asking whether he would be kind enough to explain in his reply what the Government intend to be the proper scope and limits of the ouster clause in paragraph (1). I do not mean to suggest that the Government intend to discriminate unfairly against asylum seekers, whether directly or indirectly; I do not mean to suggest that they intend to subject them deliberately to inhuman treatment or to breach the 1951 convention or any of the other international human rights codes by which the country is bound. I am concerned with the Government's intentions on the matter and would be grateful for a reply to that question.
In every other European country, in virtually every other Commonwealth country—even in the colony of Hong Kong—the validity of this kind of measure would be tested in the courts against some constitutional legal guarantee. In this country, rightly or wrongly, the way our system works is that all that the Government need is a majority vote in each Chamber and the hope that our courts will give literal effect to a wide ouster clause. That is why the Minister's reply on the scope and effect of the ouster clause is important.
In any event, I hope that the Government, in the end, will not have a majority for the amendment in its unamended form. That would produce extremely harsh effects, be likely to lead to further clashes in our courts and be in breach of the international human rights laws.
4.45 p.m.
Baroness Gardner of Parkes: I have listened carefully to the debate today. We have heard much of it before but today we are dealing with a specific context. I support the Government in opposing the amendment of the noble Baroness, Lady Hollis, who said that people arrive here perhaps having been let down by an agent or abandoned. Who are those people? Are the agencies concerned the type referred to by the right reverend Prelate or are they instead commercial entrepreneurs, shipping people overseas because it is a good commercial venture? We must be careful about that situation.
As a lay person I understood the court to say that the regulations were not acceptable because they were not contained in primary legislation. If the Government introduced primary legislation to the same effect, that would be different. If I am wrong in that regard, perhaps someone will clarify the situation for me.
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The noble Lord, Lord Lester, suggested that some basic provision should be made. I agree. He may have read editorials in the newspapers following the court judgment in relation to how many European countries provide some type of hostel accommodation. The right reverend Prelates told us how much the Churches, the community and society are doing to help. As I understand it, if an application for asylum is successful, the person will receive total benefit backdated for the whole of the period and therefore the Churches or community groups who have given so generously should then be able to obtain a refund of the money outlaid. Their work is extremely admirable and charitable.
I was fascinated by the legal part of the speech of the noble and learned Lord, Lord Donaldson. I absolutely agree with him. He referred to people coming here and saying that they would not be an imposition upon the social structure of the country. I would point out again what I pointed out at Committee stage; that is, that many people arrive here with a letter either to or from a friend or relative who says that they will be totally responsible for the person but the applicant later pulls out of their pocket the asylum card that they want to play.
The Australians are much smarter than us in that regard. If one carries a letter saying that someone will entirely support them, a bond must be put up to match the words. If one then imposes upon the social security services or any other benefit department, the person who is supposed to be responsible must meet the bill. In England we are much more generous in that we do not ask people to do that. A genuine asylum seeker receives all the benefits.
We must be careful in accepting the amendment in that it would mean that all those people I mentioned—the students, the illegal entrants, the over-stayers—would be covered. Only 5 per cent. are accepted on the first round; that is a small proportion who are accepted as being genuine asylum seekers. In fact, the over-stayers would have to overstay considerably before coming into the three-day section, but we are also speaking to Amendment No. 12.
The right reverend Prelate mentioned language as being a major difficulty. That is something we tend to overlook. If people spend long periods here waiting for asylum, they should be given an opportunity to learn the language. It is a genuine difficulty that they face. Many of those who have their housing benefit cases heard, sometimes years later, are often still unable to speak a single word of English and that is not very encouraging.
I cannot accept the remark of the noble Earl, Lord Sandwich, in relation to flouting the will of this Chamber. That is not the point. I support the Government's view that the amendment should not be accepted.
Lord Avebury: The noble Baroness did not quote the Court of Appeal correctly. It did not criticise the fact that the Government's proposals were not in primary legislation; it said,
"True, no obligation arises under Article 24 of the 195 I Convention until asylum seekers are recognised as refugees. But that is not to say that up to that point their fundamental needs can properly be

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ignored … Rather I would hold it unlawful to alter the benefit regime so drastically as must inevitably not merely prejudice, but on occasion defeat, the statutory right of asylum seekers to claim refugee status".
That right, as my noble friend Lord Lester explained, was contained in primary legislation and was contravened by what the Government proposed to do. That is why the Court of Appeal found as it did. The noble Baroness's difficulty in comprehending the judgment of the Court of Appeal is occasioned by the Government's reluctance to allow the Committee adequate time to consider these amendments. The noble Baroness may shake her head, but there is a fundamental principle at stake here. I gave the office of the Leader of the House notice that I was going to raise the fact that on Thursday afternoon he said that the documents in question and the proposed amendments, together with the explanatory leaflets,
"were available to the whole House in the way that I think the noble Lord, Lord Shepherd, would approve".—[Official Report, 27/6/96: col. 1021.]
I went immediately into the Library and the documents were not there; neither were they in the Printed Paper Office. That was at 10 minutes to four o'clock. I had to wait a whole hour before the documents were finally brought from the office of the noble Lord, Lord Mackay of Ardbrecknish. The officials there told me that they were being rushed across specially. So the documents were not there when the Leader of the House said that they were. I ventured to point out during a speech concerning another matter that the noble Baroness, Lady Blatch, was handling that afternoon that that was not acceptable. If a Minister says something from the Front Bench one expects it to be true. I am not blaming the Leader of the House at all, but only saying that if something is claimed by the Front Bench and it turns out not to be true, the Government must make a correction to it at the earliest possible opportunity.
Lord Mackay of Ardbrecknish: I am grateful to the noble Lord for giving way. Perhaps he was not here on Friday and has not had the opportunity to read Hansard. When my noble friend the Chief Whip moved the Business Statement on Friday, he apologised on behalf of the Leader of the House for the fact that the Leader had inadvertently misled the House. Perhaps I may say that he misled the House because I misled him. I had thought that the letters had been placed in the Library. They were supposed to have been but, regrettably, they were not. My secretary made every endeavour to get them over immediately he heard that my instruction had not been carried out.
Lord Avebury: I am most grateful to the noble Lord for that explanation. I am sorry that I was not in the House on Friday to listen to what was said then. I was not here on Friday because I spend a great deal of my time outside this Chamber listening to people from other parts of the world explaining the kinds of situations which give rise to refugees. Among other things on Friday, I had a meeting with Aliza Marcus, who is a former Reuters correspondent in Ankara. She was arrested and thrown in prison and tried under Article 8 of the anti-terror law there before finally, as a result of international pressure, being allowed to leave the
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country. Many other people charged under that provision would be delighted to do so. That is the reason why many of them come here.
Later on I met Mr. Jawhar-al-Souchi, whose father and 29 other immediate members of his family were murdered in the village of Kilken in Northern Iraq by forces loyal to Mustafa Barzani the leader of the KDP. I am all the time listening to situations which give rise to the flow of refugees. It is completely ridiculous for the noble Lord to say at the Dispatch Box at the beginning of this debate that the world has not become more dangerous but we have become more attractive and that that is the reason for the increase in the number of people applying for asylum in the past 10 years. I do not know where he gets that impression. I suggest that he reads, for example, the works of the Carnegie Foundation which list 132 internal conflicts taking place throughout the world; the works of the distinguished American lawyer, Karen Parker, who summarises the internal conflicts which are occurring all over the world; and the works of Professor Hurst Hannum on self-determination. There is much information available in the public domain which the noble Lord could look at, showing that these internal conflicts which give rise to the flow of refugees are a great deal worse than they were 10 years ago.
Lord Mackay of Ardbrecknish: The noble Lord is the first to address the question that I asked. Would he like to speculate for a moment as to why we alone are seeing this huge increase in the number of refugees when all our European friends are not?
Lord Avebury: I would not speculate on that because we are addressing a piece of United Kingdom legislation, not legislation that applies in Holland or Germany. If I were to trespass into those areas I might become even less popular with the Committee than I am already.
The noble Lord also invited those who follow him to express an opinion on what alternative the Government should follow. I am attracted by the ideas expressed by the noble and learned Lord, Lord Donaldson of Lymington. If we refuse to entertain a claim for asylum after a reasonable interval has elapsed from the date of arrival, that would be a very reasonable way of looking at the situation. As has been said, if a person enters this country as a visitor, remains here for six months and then applies for an extension so that he or she completes the whole year—which is the limit, and not 18 months, incidentally, as the noble Baroness, Lady Gardner of Parkes, said—
Baroness Gardner of Parkes: I did not mention 18 months.
Lord Avebury: It may have been the noble Lord, Lord Campbell of Alloway. In any event, the limit is 12 months beyond which a visitor would not be allowed to stay here. If at the end of that period a person lodges an application for asylum, then on the face of it it is likely not to be genuine, although there are always

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circumstances which may have arisen since the person first entered which had not been envisaged at the time of first arrival.
The Government could have provided that for someone who after six months or 12 months here as a visitor or in some other capacity then lodged an application for asylum, prima face it would be rejected unless he or she could show that a material change had taken place in the country of origin in the time that they had been here. But they have not chosen that way. They have cut everyone off from benefit who has failed to lodge an application at the port of entry. As has been said frequently in the past, there may have been very good reasons for that and sometimes those reasons may be acceptable.
I do not wish to detain the Committee for long, but perhaps I may mention one case out of many about which I have been in correspondence with the Minister who deals with immigration, Mr. Timothy Kirkhope. A gentleman was a refugee in France. Originally he came from Iraq. As part of a sweep, the French police arrested him and others, and he was deported back to Iraq in February 1986. It was accepted that he had been detained and tortured there. When he was taken to Orly Airport he protested, "Shoot me now rather than send me to Baghdad. I would rather spend 20 years in a French prison than return to Iraq". Nevertheless, he was seized by four police officers, given an intramuscular injection and thus rapidly found himself unable to move. Immobilised by drugs, he was escorted onto an Iraqi airlines plane surrounded by French police, who accompanied him to Baghdad and handed him over to the Iraqi police.
When he finally escaped from Iraq and returned to Europe, it seemed hardly surprising that he was not keen on accepting French hospitality and applied for a transfer of asylum to the United Kingdom. But in their wisdom the appellate authorities found against him and he fell back on the mercy of the Secretary of State, who after considerable representations had been made and being aware of the fact that the refugee was under immense psychological and financial stress, made worse by the cuts in his benefit, graciously agreed that he would reconsider the matter. In the meanwhile this gentleman, who without doubt had suffered intolerable hardship and persecution in Iraq and who did not wish to remain as a refugee in France, therefore, came to this country looking for asylum. But he has been destitute since February, having no benefits at all.
I am glad as a result of the amendments that have been tabled by the Government that benefit will be restored, but how are we to know that such cases will not arise in future? I am certain that we have gone much too far in denying benefits to perfectly genuine asylum seekers such as the person I mentioned. I think that we should take the provisions away and look at the
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alternatives that have been suggested by others, including the noble and learned Lord, Lord Donaldson of Lymington.
Baroness Rawlings: Before the noble Lord sits down, perhaps I may quote to him the pre-February rules:
"all asylum seekers were eligible to claim the full range of income-related and non-contributory benefits. Entitlement to Income Support, Housing Benefit and Council Tax Benefit ran from the start of the asylum claim to its final determination and appeal over 18 months".
5 p.m.
The Lord Bishop of Oxford: Not long ago I had the opportunity to visit Rectory Road United Reformed Church in Stoke Newington, to which the right reverend Prelate the Bishop of Lincoln has already referred. I met there a Nigerian involved in the recent Ogoni environmental protests. He was arrested, tortured and pressurised to give evidence against his family and friends in return for his freedom. Having been set free, he fled without giving evidence. We also heard from a young French-speaking woman from the Congo who spoke no English and who was seven months pregnant. Her fiancé was murdered for his political activities and she fled the country out of fear for her safety and that of her unborn child.
As we know, under the Government's legislation only those who apply for asylum at the port of entry qualify for benefits, but the two to whom I have referred are just two among many who did not apply at the port of entry but who, in the judgment of fair-minded people, are genuine seekers of asylum. This is a modest amendment which we should support. It allows only three days after arrival at the port of entry in which to make a claim.
The United Reformed Church minister (who has dealt with a good number of refugees and asylum seekers in his Church who are in a state of destitution) says that he has doubts about the claims of only one or two of the people with whom he has dealt. One of those was a mentally ill woman from Poland who was in any case vulnerable and at risk.
Under the Government's new concession, benefits can be backdated for those who are later shown to be genuine asylum seekers. The noble Baroness, Lady Gardner of Parkes, referred to that and the noble Baroness, Lady Rawlings, pointed out that all genuine seekers of asylum in this country will be treated fairly. But how are such people to live in the meanwhile? The efforts of voluntary bodies and the churches—heroic though they are—cannot possibly provide the basic minimum conditions of living at which we should be aiming; nor does it seem either appropriate or fair for voluntary bodies to have to judge who is genuine and who is not. They are not trained to distinguish between genuine and fraudulent claims; nor do they have the resources to examine the evidence in the thorough-going way that is needed.
The noble Lord, Lord Mackay of Ardbrecknish, spent some time suggesting that the world was not becoming more dangerous. That has just been refuted by the noble

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Lord, Lord Avebury. However, whether or not the world is becoming more dangerous, the fact is that it remains dangerous and that because of civil unrest, detentions, extra-judicial killings and even outright conflict there are people in this country who did not claim at the port of entry but who are genuine asylum seekers. The refugees we saw at the Rectory Road Church in Stoke Newington who were found sleeping on the floor in conditions of some discomfort and rising tension came from Somalia, Chechnya, Romania, the Gambia and Nigeria.
As editorials in The Times have put it:
"The problem with regulations drafted so sweepingly is that they affect genuine refugees along with bogus claimants".
It is for that reason that refugee organisations, the churches and other religious bodies cannot support the new regulations. The Board of Deputies of British Jews says that the proposals:
"represent a grave denial of the safety, human rights and welfare treatment which should be the hallmark of any civilised society".
That stand is supported by the Jewish Chronicle and is endorsed by many other religious bodies.
A better way must be found of identifying bogus asylum seekers. A number of ways have been suggested this afternoon. We must find a way which does not cause the hardship that is now being inflicted on a good number of genuine seekers of asylum who have already suffered enough in their own countries without having further indignities heaped on them here.
Viscount Mountgarret: I wonder whether my noble friend on the Front Bench will be kind enough to clear up a point that has been troubling me for some time while I have been listening to the debate. I apologise to my noble friend for not having been here when he delivered his opening speech. I regret that my train was a little delayed.
The emotive issues posed by these amendments are very real and understandable. To many of us, including many of my noble friends—or at any rate some of them—it would appear that on the face of it we are being a little hard hearted and heavy handed. On the other hand, my noble friend said in answer to my noble friend Lord Campbell of Alloway that asylum seekers would be given benefit or help where appropriate and where necessary—from day one was what I understood—
Noble Lords: No!
Viscount Mountgarret: Perhaps I may just finish. The question that I want to ask my noble friend is this: if a person seeks asylum at a port of entry to this country, is he entitled to receive some assistance and benefit until his case has been considered by the Home Office? If that is so, I see little reason for the amendments. However, if that is not so, I personally feel a little uneasy. I wonder whether it would be possible for my noble friend to clarify that point, if only for myself. I apologise to noble Lords if I am wasting the Committee's time.
Lord Wolfson: We all have good hearts, I am sure, but we must seek to differentiate between genuine and
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other claimants. I am concerned about returning anyone to a country with little or no human rights. Can my noble friend the Minister tell us what firm protection there is in that regard?
Perhaps I should add that a number of my grandparents were admitted to this country from Russia about a century ago. Naturally, I am most appreciative of a policy that permitted that to happen. Although they had very small resources, they were not a charge on the state but were supported by the Jewish communities in Glasgow and London.
Viscount Waverley: It seems to me that the intention of the Government is to address the tens of thousands of bogus applicants who in the interim benefit from our welfare system and, in so doing, to reduce the backlog of those waiting to hear the outcome of appeals. That will help to ensure the position of those with a genuine claim.
The effect of the legislation will leave no doubt as to the procedures that should be adopted when applying for asylum in this country. I believe that it is the lack of understanding of procedures which complicates matters and presents the ammunition with which to cry "Foul". The rules will be clear. When asked by an immigration officer about the purpose of a visit to the UK, asylum seekers must speak without fear of intimidation. The world knows that we in this country live by rules governing fair play. That is surely why asylum seekers select the United Kingdom in the first place. We must ensure, on the other hand, that we do not fall into the trap of being singled out as a country with procedures that can be manipulated by, for example, organised syndicates. Nevertheless, I believe that on balance the Government are moving in the right direction, although more needs to be done to accelerate the procedures.
The UN convention of 1951 was created to tackle issues arising from the Second World War. Times have changed and different circumstances must now be addressed. I give an example. The need to encourage refugees to return to their countries of origin when circumstances allow to assist in their future development is critical. The brain drain has a devastating effect and needs to be reversed.
5.15 p.m.
Baroness Williams of Crosby: It may be for the convenience of the Committee if I speak briefly to Amendment No. 12 which is in my name. The amendment would extend the right to benefit to those entering the country and claiming asylum up to seven days after the date of entry. It would also extend the period for those attempting to appeal against an initial decision to refuse asylum. The right reverend Prelate the Bishop of Oxford gave several first-hand examples of those who appeared on every possible basis to be genuine refugees but who were not sufficiently well informed and failed to apply at the point of entry. The noble Baroness, Lady Hollis, gave several reasons why people did not necessarily apply at the point of entry but applied a matter of days afterwards. It is part of the human condition that those who enter the country will not be able, within a few minutes of getting off an

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aircraft—often having been rushed onto that aircraft by security guards or army personnel, perhaps under the threat of death—to make out a strong case for remaining in this country.
Amendment No. 6, which is being considered together with Amendment No. 12, is an extremely modest proposal. It proposes that an asylum seeker should have just three days in which to put together his case. My amendment goes a little further. The noble and learned Lord, Lord Donaldson, gave his reasons for believing that the period should be slightly longer. He said that he would support a longer period than that proposed in Amendment No. 6. The same view was expressed by the right reverend Prelate the Bishop of Lincoln.
I shall give a couple of reasons why I believe the qualifying period in the amendment in my name is the minimum reasonable qualification that the Committee should support. Before doing so, I shall deal with two widespread misunderstandings. The first is summed up in a letter in today's edition of the Daily Telegraph. It is written by a very vigorous Russian refugee. He claims that there is no need for benefit to be extended to asylum seekers. He had sustained himself. He gives a long list of jobs. He refers to washing dishes, cleaning doorsteps and other ways in which traditionally, throughout the world, immigrants have sustained themselves before being able to get decent jobs. But he seems unable to understand that immigrants and asylum seekers have no right to seek work in this country. If they seek work within the first few months of their arrival they are outside the law. According to the remarks of the noble Lord, Lord Mackay of Ardbrecknish, one is firmly instructed not to advise people to break the law, so such people cannot be advised to seek work. Frankly, the letter in the Daily Telegraph is beside the point.
Another misunderstanding is that this country has been specifically targeted by new waves of asylum seekers. The noble Lord, Lord Mackay of Ardbrecknish, made this point very forcefully in his initial statement. I give some figures which I believe to be the most recent ones. In Germany the number of asylum seekers rose from 165,400 in 1994 to 168,600 in 1995. Those figures are more than three times the numbers applying to this country for asylum. More to the point, Germany continues to sustain those people with hostel accommodation and a basic allowance of DM80 a week for every adult and DM40 a week for every child. To imply that the United Kingdom is uniquely generous and is uniquely targeted is not true. Holland is another country that has been named. That country provides basic means of life to asylum seekers. Admittedly, Holland has seen a fall in the number of people applying for asylum from 52,000 in 1994—about the same level as those applying to this country but the Netherlands is about a quarter of our size—to 29,300 in 1995. Because Holland is a quarter of our size the figure is proportionately twice the number who apply here.
I turn to a subject that has been forcefully argued by the right reverend Prelate. I need hardly add to it nor detain the Committee. I should like to place on record my immense respect the work of churches of all denominations, the Jewish faith and voluntary
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organisations. They have responded in an amazing way to the appeals and demands of those seeking asylum whom they believe, for the reasons given by the right reverend Prelate the Bishop of Oxford, to be genuine cases. Case after case has come to the attention of all noble Lords who have spoken on this Bill. They provide example after example of people who have been tortured, and have medical evidence to show they have been tortured or maltreated in their own countries and who, at least at the first stage, have been refused asylum.
I do not wish to cast doubt on the procedures, but there are some very troubling cases. At Report Stage I raised the case of Mr. Igbinidu from Nigeria. I believe that he is still waiting for his fate to be decided. In his case, no fewer than four of the leading medical experts at the University of Oxford have supported the validity of his case, yet he has still not been accepted for asylum. One asks oneself just what is demanded.
Finally, I turn to a number of points raised by the noble Baroness, Lady Blatch. By the by, I thank her for her kindness in making available to me the immigration rules and the amendments to those rules to enable me to take part in the discussion fully informed. I return to what she said at Committee stage on this Bill about an amendment passed by noble Lords on 23rd April. The subject was torture. My noble friend Lord Lester of Herne Hill and the noble and learned Lord, Lord Donaldson, referred to the intentions of Parliament. The intentions of Parliament were expressed by the amendment on torture. The noble Baroness responded in a very generous way:
"We are trying to arrive at a situation whereby a genuine claim of torture is properly considered and, if genuine, is well-founded at the first stage of consideration".—[Official Report, 23/4/96; col. 1057].
She went on to say that it would be very helpful to have evidence supported by a medical certificate in order to establish the claim of torture.
How does one establish a claim of torture before one arrives in this country? How does one obtain medical evidence of torture if one comes from a country like Nigeria or Zaire where no doctor will put his life at risk by providing medical evidence which will tell against him when the individual concerned has left the country? How can one expect genuine asylum seekers who have been tortured to obtain, even in three days, the medical evidence they require to establish that fact, bearing in mind that it took Mr. Igbinidu, with the support of the University of Oxford, six or seven months to establish his right to stay in this country because he was held, on medical opinion, to have been tortured?
If the opinion of this Chamber and Parliament is to be treated with the seriousness it deserves—and with the seriousness with which we want the public at large to treat parliamentary procedures—I urge that this amendment, which enables Parliament's intention to be carried out, be passed. First, the amendment would extend the length of time during which an asylum seeker would have to establish the bona fides of his claim to seven days. Secondly, the right of appeal should be upheld and people should not be driven to destitution in an attempt to establish their right of appeal. The Home Office should speed up its own procedures rather

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than place on the backs of voluntary organisations, the Churches and others the responsibility of making the procedures work.
Lord McIntosh of Haringey: I have just been notified by the Public Bill Office that the Government at this moment have put down amendments to this amendment to be debated tomorrow. Three amendments have been put down in the name of the Minister, the noble Baroness, Lady Blatch, to Amendment No. 4, the new clause that we are now debating. What sort of procedure is that? We are being made fun of.
Lord Mackay of Ardbrecknish: Perhaps I may help the noble Lord. We are debating Amendment No. 5 to my Amendment No. 4.
Lord McIntosh of Haringey: Amendment No. 6.
Lord Mackay of Ardbrecknish: It is Amendment No. 6, I am sorry. I forgot that Amendment No. 5 was withdrawn. I believe that I know the amendments that have been put down. They are to try to make clearer on the face of the Bill what is the intention, but they do not affect the principles in any shape or form. They were put down as soon as we could, because on Thursday the noble Lord was complaining that we were putting amendments down too late. The Third Reading is tomorrow. Would the noble Lord have preferred me to wait until towards the end of business today? Surely it was better to put down the amendments now so that the noble Lord has the opportunity to see them as soon as possible.
Lord McIntosh of Haringey: No, I was not complaining that the Government were putting down amendments too late. I was objecting to the fact that we were debating amendments too early. That is exactly what is happening now. It would clearly be inappropriate to interrupt the proceedings now—
Lord Hailsham of Saint Marylebone: Hear, hear!
Lord McIntosh of Haringey: If the noble and learned Lord will allow me, I suggest that the usual channels should take an urgent decision as to whether it is proper to proceed tomorrow with Third Reading of the latter part of the Bill.
Lord Campbell of Alloway: What is all this fuss about? If in the course of debate a point is made—I do not know what it was—that causes the Government to think that it might be a good point, why on earth should not the Government put down amendments? I cannot see that there is any objection. What is the objection?
Lord Mishcon: Will the Minister be kind enough to indicate to the Committee why a frank announcement was not made that that procedure was going to be adopted?
Lord Mackay of Ardbrecknish: I did not think that that was necessary. I explained that the amendments had
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been put down as soon as possible to give Members of the Committee as much time as we could give before Third Reading tomorrow. That is the complaint. I had a complaint last week that they were not put down quickly enough. I can assure the Committee that they have nothing to do with the amendment before us, to which, if the Committee will allow, I should like to reply. I should like to deal with the various points that have been made during the debate.
The debate has ranged a good deal wider than the narrow points in the amendments which suggest that in-country applicants should—in my shorthand—be considered to be at-port applicants or on-arrival applicants if they apply within three days or indeed within seven days. The debate has run a good deal wider than that.
My noble friend Lord Mountgarret had my sympathy when he asked a question, because I have occasionally asked the same question during the course of the debate. I asked myself, "Am I removing benefits from absolutely everybody who comes here for asylum?". Of course I am not. I am saying clearly that anyone who applies for asylum on arrival in this country will receive benefits until the application is considered in the fullness of time by the Home Office. I hope that that answers my noble friend's question.
The right reverend Prelate the Bishop of Ripon talked about choice. People have a choice. The choice is that they can apply on arrival. I failed to understand today, as I failed to understand on every previous occasion I heard it rehearsed, why people who come to this country seeking asylum, seeking our protection, should be so suspicious of us when they get to the port of entry that they continue to say that they want to come here for other reasons and that they will accommodate themselves and maintain themselves without recourse to public funds. I fail to answer that point.
Baroness Williams of Crosby: On the specific point that the Minister is making, in that case why is it that at least 12 per cent. of those who apply after port of entry are found to be genuine refugees? That is quite apart from those who are given extended leave to remain. It does not sound as if every genuine refugee is dealt with at the port of entry.
Lord Mackay of Ardbrecknish: That is because at the moment they have the choice of applying on arrival or of waiting until they get inside, whether they are genuine or not. The fact is that the great majority are not genuine. The facts are there. They speak for themselves: 77 per cent.—I was grateful to the noble Lord on the Cross-Benches for saying that I gave accurate figures, and indeed I use them again accurately—are found not to be justified.
If Members of the Committee had been listening to the debate without knowing those figures, they would have believed that the whole thing had been inverted: that 77 per cent. had been found to be justified and that only a very few had been found to be without justification. The facts are as I said. The figure is 77 per cent.

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I do not see why people cannot apply at the port of entry. There is no reason for not doing so on arrival into this country. We have plenty of interpreters on hand to help them if they do not understand English. If we do not have an interpreter for the particular language because they come from a country from which very few come, their application is taken then and the interpreter is arranged as quickly as possible thereafter. They are still considered to be on-arrival applicants. There is no problem about that. Those people who come here as genuine refugees can have the benefits system come to their aid by merely applying at the port of entry.
Again, to listen to the debate one would think that hardly anyone applied at the port of entry. That is not true. A considerable number apply at the port of entry. The majority of those who apply at the port of entry come from those countries which I believe noble Lords and right reverend Prelates can easily quote as examples of where they are liable to persecution. They appear to be not so traumatised, not so out of their wits, that they do not realise, "At long last I have got to safety. I will say to these British officials, 'Please, I am here as an asylum seeker"—because they have to say something to the British officials. It is not as if they can slip through quietly without a word.
Such people have either to say, "I am an asylum seeker", or, "I am here for up to six months, and I will not be a burden on the public purse". They have to say one or the other. It does not seem to me to present any difficulty that they are asked to say clearly at that point, "I am an asylum seeker".
The noble Baroness made much of the fact that such people may want in to get advice. She made much of the fact that they may, indeed, have been taken in by the people who had arranged their passage here and told to slip inside the country and then get advice. That seems to me to be a pretty false argument. Of course we know that there is an asylum industry. That is why so many people come here who do not turn out to be genuine. If you do slip in, there are people here who will help you ensure that you tell the right story. You might not do that if you are asked to do it on arrival at the port of entry.
Members of the Committee who have been listening to the debate should remember that anyone who comes here as a genuine asylum seeker can receive benefits if they apply at the port of entry. That is the logical place for people to apply, and not, as the statistics clearly show, some months after they have been in this country. The percentage is in the high 20s for those who apply after they have been here a year. I can tell the noble Lord, Lord Avebury, that, interestingly enough, they all have permission to visit for a maximum of six months. So we are talking about people who have already overstayed their welcome. Well over 30 per cent. do not apply until well over six months.
There may be genuine asylum seekers. I do not deny the figures. I have never made any attempt to argue my case on the principle that there are not some in-country applicants who are genuine. Indeed the provision that states that the Home Secretary can designate a country
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as being a country that has suffered great upheaval since the person came underlines the fact that we accept that circumstances can change and that someone who is in country may well find that the position back home has changed dramatically and that they then need to claim asylum. If they do so in those circumstances and their country has been designated, they will receive the benefits and help of our system.
I believe that the statistics relating to the time people wait before they apply suggest that many of those people are applying fundamentally because they have come here and, in the words of the noble and learned Lord, Lord Donaldson, they like the look of the place. They have used it as a trump card in order to see whether they can stay here at least for a good few more months while the application and then the appeal are considered. That is the position.
I now turn to some of the other points made on the issue. First, perhaps I should make it perfectly clear that the court did not rule that the regulations were ultra vires the United Nations convention. That was not an issue before the court and so it made no ruling on it. Article 23 of the refugee convention applies to recognised refugees. These changes will ensure that genuine refugees will indeed receive their full entitlement. I am happy to recognise that a number of noble Lords appreciated the change that we made in backdating the benefits for those people who apply and are eventually found to be genuine; for example, those who apply in country or those whose appeal is upheld. Contrary to some of the extravagant language of the noble Baroness, Lady Williams of Crosby, the figure is only three in 100.
The noble Earl, Lord Russell, suggested that the Home Office research showed that refugees gave up a higher standard of living to come here. Yes and no. The survey from which he quoted related to those granted asylum or exceptional leave to remain. However, as I have pointed out, only a small proportion of all the asylum seekers fulfil those two qualifications. The survey says nothing about those whose claims were not accepted for either category. Therefore, I am afraid that one cannot draw the conclusion that all the people who come here and seek asylum come from somewhere where they had a better standard of living.
The reality is that many come from somewhere where life is not easy and not good. I can understand economic migrants wanting to come to a country which will improve their position. That is sound common sense from their point of view. I fully appreciate it. It is just a pity that we cannot do more to help them. However, I do not believe that we can open the doors of this country and say, "If you just say, I want asylum', and the reasons are whatever we will take you in and give you benefit". I do not believe that that is a sustainable argument.
As regards the UN convention, we do not believe in any way that the new clause and schedule offend the UN convention. The Court of Appeal stated that no obligations arise under Article 24 of the 1951 convention unless the asylum seekers are recognised as refugees. The important thing is that they are recognised as refugees—
5.30 p.m.
Earl Russell: I must ask the Minister to read the judgment of the noble and learned Lord, Lord Nolan, on the Khaboka case, Immigration AR 1993, 489. He stated:
"The term 'refugee' means what it says. It will include someone who is only subsequently established as being a refugee".
That is the law.
Lord Mackay of Ardbrecknish: Neither of us is a lawyer. However, I should point out to the noble Earl that the case to which he referred was a third country removal case. I do not believe that it is relevant here. However, that may be a matter about which lawyers will come to argue. I should have thought if Parliament makes it clear what the position is, that ought to be sufficient for the courts. Indeed, on page 26 of the judgment of the Court of Appeal there is the interesting sentence:
"The Secretary of State"—
that is my right honourable friend Mr. Lilley—
"is answerable to Parliament rather than the courts".
I am standing, if you like, in his place here being answerable to your Lordships' House, this high court of Parliament. I suggest that if we decide that the provision ought to be in primary legislation we have fulfilled the legal points that the Court of Appeal made. It stated,"This ought to be in primary legislation. You ought not to have it in secondary legislation". If this House and the other place decide that it should be in primary legislation, we have fulfilled the legal criticism of the Court of Appeal.
That leads me to the question asked by the noble Lord, Lord Lester—although, to be honest, it was more clearly directed at Amendment No. 5, which his noble friend did not move. But in the interests of good debate I shall try to answer his question. As I have said, the court's ruling was on the narrow legal question of whether our policy on benefits for asylum seekers could be achieved by secondary legislation. The Government's amendment is designed to address that specific issue. It means that regulations specifying the circumstances when asylum seekers should and should not qualify for benefits are protected from challenge on the grounds that they conflict with other enactments. That covers asylum and immigration Acts and could also apply to other legislation and to general rules of law.
The noble Lord, Lord Lester, suggested that the power given by the clause was very wide. However, noble Lords should remember that its purpose is a very specific group of regulations made for a very specific purpose. We do not intend going beyond that and certainly have always made perfectly clear our intentions of applying social security legislation on a fair and non-discriminatory basis.
In addition, the provision does not seek to restrict the jurisdiction of the court in entertaining judicial review challenges. Lord Justice Simon Brown
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indicated that the restrictions contained in the regulations should be in primary legislation. As I have said, that is what the amendment sets out—
Lord Mishcon: The Minister quoted from the judgment and talked about the need for primary legislation. He was absolutely accurate, but would he, in justice, read out the sentence in full? It appears on page 35 of the judgment and states:
"Primary legislation alone could in my judgment achieve that sorry state of affairs".
Lord Mackay of Ardbrecknish: The first part of the sentence is rightly a view which the Court of Appeal can have. The second part of the sentence is rightly a view which we can dispute across this Chamber. I bow, as do the Government, to the decision of the Court of Appeal on legal grounds. I am afraid that we must argue out the benefit politics of it on political grounds. That is what this Chamber is for and not what the courts are for.
Lord Lester of Herne Hill: I am extremely grateful to the Minister for clarifying what I call the ouster clause. I believe that I heard him say that it was not intended to oust judicial review. Does that mean that the Government do not intend that future regulations will be in any way immune from challenge on the basis of illegality, irrationality or lack of fairness?
Lord Mackay of Ardbrecknish: I believe that I made it perfectly clear that the provision does not seek to restrict the jurisdiction of the courts in entertaining judicial review challenges. I do not believe that I can qualify that or add to it in any way.
I suppose that I should at least be grateful that the two amendments providing for three days and seven days appear to show that the two parties opposite are beginning to accept my argument about the number of people coming to this country and claiming benefit. Therefore, one presumes that the provision of three days and seven days is the way in which the parties opposite would deal with the issue—
Baroness Williams of Crosby: Given what the Minister has said, perhaps I may confirm that my party is strongly in favour of repeal. The reason we are moving the amendment is that we believe that it would be best to have a qualified approach rather than the one that the Government are proposing. We do it with little enthusiasm.
Lord Mackay of Ardbrecknish: I am perfectly clear about that. Having listened to the noble Baroness's friend Lord Russell on a number of occasions, I had thought that the Liberal Democrat policy would be that they would repeal the legislation. They are quite content to have this increasing number of people coming to this country and claiming asylum.
Baroness Williams of Crosby: That does not follow. The Minister will be aware that on several occasions I have raised the issue of the Home Office procedures and the possibility of speeding them up. I believe, with

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great respect, since he is a fair-minded man, that his final conclusion in his latest remark was not in the least justified.
Lord Mackay of Ardbrecknish: I am trying not to take too long, but if I keep on being interrupted I shall take some time. I was just coming to that point. The only policy that I can see—and the noble Baroness has said that it is the Liberal Democrat policy—from the party opposite is that, somehow or other, we must speed up Home Office decisions. I wonder whether any of your Lordships have ever tried rowing a boat against an increasing tide or wind. No matter how much effort you put into it, the increasing tide keeps driving you back. That is the problem that we have in relation to this particular difficulty.
Since the time of the 1993 Act, the productivity of the Asylum Directorate has improved by 240 per cent. The number of decisions made in 1994 was 21,000, in 1995 it was 27,000, and this year we are on course to reach 37,000 decisions. Decisions have increased by 1,000 per month after the 1993 Act to 3,000 per month now. Appeal determinations have increased from 2,400 to 7,000 and are projected to be 19,000 this year. The new short procedure, which the parties opposite opposed, means that cases can be dealt with in a matter of weeks rather than months. Most third country cases are dealt with in less than 48 hours. We have invested £37 million over three years on more caseworkers and adjudicators. Asylum staff have increased eightfold since 1988 from 100 to 800. We have done all that but still the numbers increase and it is literally like rowing against the tide.
Most of our European neighbours were finding their asylum procedures swamped by vast increases. That is why most of them introduced legislation similar to that contained in Clauses 1 to 3 of the Bill. Here in the United Kingdom we are also looking at new appeals procedure rules in order to reduce the scope for delay and pressure on the appeals system. We are taking this seriously and we have tried very hard. But frankly, until something is done to decrease what is, I am afraid, the attraction of this country for asylum seekers who are not seeking asylum from political pressure or oppression but from economic difficulties and poverty, whatever resources the taxpayer puts into the Home Office, we shall find it more and more difficult to keep abreast of the increasing number of applications.
A number of individual cases were detailed. I am not in a position to go into those in any great detail. Of course, Members of the Committee have an advantage over myself and other members of the Government because asylum seekers who feel that they have a case are not slow to go to noble Lords opposite and make representations. On the other hand, those who have made bogus asylum claims and have drawn them out do not come running to me or any of my noble friends to explain how they have managed to do that. Therefore, in a way, the dice are loaded against me.
But there are some cases which puzzle me. Twice this afternoon we have heard of cases which involve people who have come from Belgium and who use Belgium as
1258
their first port of entry into Europe from their country of origin. The right reverend Prelate the Bishop of Lincoln mentioned one case, as did the noble and learned Lord, Lord Donaldson—the case in the Court of Appeal judgment.
I have a simple question in relation to that. Why do people not apply when they arrive in Belgium? It seems to me that Belgium is a perfectly safe country. I cannot believe that it is not a safe country, as one of our fellow members of the European Union. Not even my most Europhobic colleagues would consider that Belgium was not a safe country. Therefore, why do asylum seekers come here? Why do they not stay in Belgium? That leads to the problem of arrival by Eurostar, on which the procedures are not as finely tuned as they are at Heathrow.
However, it is interesting to note that whichever way we look at the argument, some Members of the Committee—and I am grateful to those who have said this because it helps the debate and gives us some common ground—have accepted that there are a number of applicants who are not genuine. Indeed, the Court of Appeal said that. I cannot remember what it said, but it more of less said that it was for the Government to work out how to deal with that problem. The right reverend Prelate the Bishop of Ripon also said that it is for politicians to find a way to deal with the problem. We have found a way. We believe that this is the right and proper way in which to deal with this matter and we believe that we have every justification for going down that road.
The right reverend Prelate the Bishop of Ripon asked me to discuss the statistics he mentioned. I find some difficulty with his first statistic. In 1985–86, we were looking at 2.5 per cent. to 2.75 per cent. of the European total coming to this country and by 1995, that had increased to 16.7 per cent.
The noble Baroness, Lady Williams, referred to the Netherlands. I thought that she had chosen a particularly bad example because in 1994 the Netherlands had 52,600 applicants, which last year was reduced to 29,300. By contrast, in 1994 we had 44,200, which increased last year to 55,000. Therefore, the figure was decreasing in the Netherlands whereas here it was increasing. The noble Lord, Lord Avebury, highlighted one or two places in the world where we agree there are major problems. But the fact remains that if there were major problems all around the world which were increasing, would not all our European friends be seeing the same pattern? It would not merely be this country which would be seeing the kind of increase that we have seen. I have explained to the Committee that that increase has meant that we have gone from receiving 2.5 per cent. of all the applications in Europe in 1985 to 17 per cent. today. That is a very considerable increase indeed.
I do not believe that people need another three days or another seven days in which to make an application. If they have found a way in which to reach this country and have identified it as a safe place to come and apply for asylum, as we believe it is and will remain, nothing will remove that right. If people believe and have

1259
decided that the United Kingdom is the best place to come to, I can see no justification for providing that they may apply at any time after they have reached these shores. If they apply at the time of entry, they will receive income support at the 90 per cent. level and be eligible for housing benefit, council tax benefit and consideration under the homelessness legislation until the Home Office makes a decision on the case. That seems proper and fair. It is proper and fair to the people coming from abroad who are genuine, and proper and fair to the British taxpayer, who had to spend more than £200 million more last year because of the number of people coming here with no good cause for doing so.
I do not believe that three days or seven days should be accepted. Our proposal in relation to people applying on arrival to this country is generous and fair. We should stick to that. If the amendment is not withdrawn, I trust that my noble friends will join me in the Division Lobby.
5.45 p.m.
Baroness Hollis of Heigham: This has been a long debate. Members of the Committee would not expect and, I am absolutely sure, would not want me to seek to reply to many of the points which have been raised, and so tellingly.
The Minister has threatened us with the floodgates argument—floodgates of numbers and costs—as though this amendment seeks to overturn the entire Bill. That is not true. This amendment has a much more limited aim. There is only one question before us: in relation to the legitimacy of the port of entry test, is it reasonable to give a three-day discretion for those people who should apply at the port of entry but fail to do so? That is the only question.
The Government's case would be valid, if, and only if, the port of entry test genuinely distinguished between those who are entitled to asylum status and those who are not, if it distinguished between those who are genuine and those who are fraudulent. That can be the only justification for such a test. The Minister conceded just 10 minutes ago that he has never sought to say that. He has never said that the port of entry test does what any reasonable person might expect it to do, which is to distinguish between the genuine and the fraudulent and give benefits to the genuine and deny them to the fraudulent. He has not even sought to argue that.
This amendment seeks to modify the port of entry test for one very simple reason. As the Minister grudgingly accepted, the port of entry test does not distinguish between those who are genuine and those who are fraudulent. It merely distinguishes between those who can cling on to their legal rights by their fingertips and those who cannot. That is what it distinguishes between: those who can survive without it and go on to claim for asylum and those who cannot.
Many speakers today, especially on the opposite side—for example, the noble Baronesses, Lady Gardner of Parkes and Lady Rawlings, the noble Lord, Lord Campbell of Alloway, and indeed others—have
1260
spoken as though what the amendment sought to do was to give benefit to all and sundry; that is to say, tourists, students and businessmen. That is not the case. The amendment would do no such thing, nor are we proposing that it should. We are simply saying that a person should either apply for asylum at the port of entry or within a few days of arriving in this country.
The Minister asked, "Why are they so suspicious of us? Why do they not apply at the port of entry". Again, I ask Members of the Committee to put themselves in the place of an asylum seeker—not a British man in France, but an asylum seeker from Zaire, Nigeria or parts of Ceylon, with perhaps false papers, which indeed can be an indication of a person's desperation; in other words, a person coming from a shadowy world of illegality, lawlessness and intimidation.
If you come from a country where you expect the police to be corrupt, you will hesitate before applying to the police in this country. If you come from a country where the immigration controls are arbitrary and unfair, you will fear that the immigration controls in this country will be the same. If you come from a country where you have had to operate on the dark side of the law, you will maintain your suspicions here until two or three days after your arrival when you may have the confidence, the strength and the ability to recover from your ordeal. I give way to the noble Baroness.
Baroness Gardner of Parkes: The noble Baroness said that several Members of the Committee on this side have stated that business people, visitors and so on would be seeking such help. However, the typical pattern is that people arrive in this country and declare on the statement that they will not require any social help whatever but within three days they present themselves, having changed their mind, stating that they would like to claim asylum. That is a very common picture.
Baroness Hollis of Heigham: No. The picture that we are trying to paint is of someone who is a student, a tourist or a businessman and is likely to be applying after a month, three months or six months and not within two to three days after arrival in this country. All the evidence from doctors, the clergy, charities and the various other organisations involved suggests that those who are most in need of asylum are precisely those who are too frightened and intimidated to apply for it at the port of entry.
The amendment has a very modest aim. It does not challenge the central thrust of the Bill; indeed, it does something much simpler. It asks that those who come to this country seeking asylum with genuine fear of persecution should be given three days' grace to allow them to report themselves to the immigration authorities. I repeat: three days' grace. We are not talking about a few months, a few years or indeed something that will involve enormous public expenditure; we are talking about three days' grace for some of the most distressed and vulnerable people in the country.

1261
Finally, I return to the comment made in the judgment of Lord Justice Simon Brown. If such a modest amendment cannot be accepted by the Government, are we really willing to condemn asylum seekers to contemplating,
"a life so destitute that to my mind no civilised nation can tolerate it"?
That is the choice. I repeat: a life of such destitution that,
"no civilised nation can tolerate it".
Three days' grace would allow those who are genuine asylum seekers to have the confidence and the support to do what they should perhaps have done at the port of entry—namely, to apply for asylum—but could not by reason of their health or their fears. If Members of the Committee were in their shoes, I am sure that that is what they would do. In that hope, I should like to test the opinion of the Committee.
5.54 p.m.
On Question, Whether the said amendment (No. 6), as an amendment to Amendment No. 4, shall be agreed to?
Their Lordships divided: Contents, 158; Not-Contents, 155.

Division No. 1

CONTENTS

Ackner, L.

Donoughue, L.

Addington, L.

Dormand of Easington, L.

Annan, L.

Drogheda, E.

Archer of Sandwell, L.

Dubs, L.

Ashley of Stoke, L.

Ewing of Kirkford, L.

Attlee, E.

Ezra, L.

Avebury, L.

Falkender, B.

Bancroft, L.

Falkland, V.

Barnett, L.

Farrington of Ribbleton, B.

Beaumont of Whitley, L.

Fisher of Rednal, B.

Berkeley, L.

Gage, V.

Birk, B.

Gallacher, L.

Blackstone, B.

Geraint, L.

Borrie, L.

Gladwin of Clee, L.

Brentford, V.

Glenamara, L.

Bridges, L.

Gould of Potternewton, B.

Brightman, L.

Graham of Edmonton, L. [Teller.]

Broadbridge, L.

Gregson, L.

Bruce of Donington, L.

Grenfell, L.

Callaghan of Cardiff, L.

Grey, E.

Carmichael of Kelvingrove, L.

Hamwee, B.

Carr of Hadley, L.

Harris of Greenwich, L.

Castle of Blackburn, B.

Harrowby, E.

Chichester, Bp.

Haskel, L.

Chorley, L.

Hayman, B.

Clancarty, E.

Hilton of Eggardon, B.

Cledwyn of Penrhos, L.

Hollick, L.

Clinton-Davis, L.

Hollis of Heigham, B.

Dahrendorf, L.

Holme of Cheltenham, L.

Dainton, L.

Hooson, L.

Darcy (de Knayth), B.

Howell, L.

David, B.

Howie of Troon, L.

Dean of Beswick, L.

Hylton, L.

Dean of Thomton-le-Fylde, B.

Irvine of Lairg, L.

Desai, L.

Jakobovits, L.

Diamond, L.

Jay of Paddington, B.

Donaldson of Kingsbridge, L.

Jeger, B.

Donaldson of Lymington, L.

Jenkins of Hillhead, L.

1262

Jenkins of Putney, L.

Rochester, L.

Judd, L.

Rodgers of Quarry Bank, L.

Kennet, L.

Russell, E. [Teller.]

Kilmarnock, L.

Sainsbury, L.

Kinloss, Ly.

St. John of Bletso, L.

Kintore, E.

Sandwich, E.

Lester of Herne Hill, L.

Scanlon, L.

Lincoln, Bp.

Seear, B.

Listowel, E.

Serota, B.

Lockwood, B.

Sewel, L.

Longford, E.

Shaughnessy, L.

Lovell-Davis, L.

Shepherd, L.

McCarthy, L.

Simon, V.

McIntosh of Haringey, L.

Simon of Glaisdale, L.

Mackie of Benshie, L.

Stallard, L.

McNally, L.

Stoddart of Swindon, L.

Mar,C.

Strabolgi, L.

Mar and Kellie, E.

Strafford, E.

Mason of Barnsley, L.

Taverne, L.

Mayhew, L.

Taylor of Blackburn, L.

Merlyn-Rees, L.

Taylor of Gryfe, L.

Meston, L.

Temple of Stowe, E.

Mishcon, L.

Thomas of Walliswood, B.

Molloy, L.

Thurso, V.

Monkswell, L.

Tonypandy, V.

Morris of Castle Morris, L.

Tope, L.

Murray of Epping Forest, L.

Tordoff, L.

Nicol, B.

Turner of Camden, B.

Ogmore, L.

Varley, L.

Oxford, Bp.

Wallace of Coslany, L.

Palmer, L.

Wallace of Saltaire, L.

Peston, L.

Warnock, B.

Phillips of Ellesmere, L.

Wharton, B.

Plant of Highfield, L.

White, B.

Prys-Davies, L.

Wigoder, L.

Rea, L.

Wilberforce, L.

Redesdale, L.

Williams of Crosby, B.

Richard, L.

Williams of Elvel, L.

Ripon, Bp.

Williams of Mostyn, L.

Rix, L.

Winchilsea and Nottingham, E.

Robson of Kiddington, B.

Winston, L.

NOT-CONTENTS

Addison, V.

Cranborne, V. [Lord Privy Seal.]

Ailsa, M.

Cromer, E.

Aldington, L.

Cuckney, L.

Alexander of Tunis, E.

Cumberlege, B.

Allenby of Megiddo, V.

Dacre of Glanton, L.

Astor of Hever, L.

De L'Isle, V.

Barber, L.

Dean of Harptree, L.

Barber of Tewkesbury, L.

Denton of Wakefield, B.

Belhaven and Stenton, L.

Digby, L.

Birdwood, L.

Dixon-Smith, L.

Blaker, L.

Downshire, M.

Blatch, B.

Dundee, E.

Blyth, L.

Eden of Winton, L.

Boardman, L.

Ellenborough, L.

Bowness, L.

Elliott of Morpeth, L.

Boyd-Carpenter, L.

Elton, L.

Brabazon of Tara, L.

Feldman, L.

Bruntisfield, L.

Ferrers, E.

Burnham, L.

Fraser of Carmyllie, L.

Butterworth, L.

Gainford, L.

Caithness, E.

Gardner of Parkes, B.

Campbell of Alloway, L.

Gibson-Watt, L.

Campbell of Croy, L.

Gilmour of Craigmillar, L.

Carnegy of Lour, B.

Goschen, V.

Chalker of Wallasey, B.

Gray of Contin, L.

Chelmsford, V.

Greenway, L.

Chesham, L. [Teller.]

Hailsham of Saint Marylebone, L

Clanwilliam, E.

Harding of Petherton, L.

Clark of Kempston, L.

Harlech, L.

Coleraine, L.

Harmsworth, L.

Colwyn, L.

Harris of Peckham, L.

Courtown, E.

Hayhoe, L.

1263

Henley, L.

Norfolk, D.

Hesketh, L.

Norrie, L.

Holderness, L.

Northesk, E.

HolmPatrick, L.

O'Cathain, B.

Hooper, B.

Oppenheim-Barnes, B.

Howe, E.

Park of Monmouth, B.

Hylton-Foster, B.

Pearson of Rannoch, L.

Ilchester, E.

Peel, E.

Inchcape, E.

Pender, L.

Inglewood, L.

Peyton of Yeovil, L.

Johnston of Rockport, L.

Pilkington of Oxenford, L.

Kimball, L.

Platt of Writtle, B.

Lane of Horsell, L.

Prentice, L.

Lauderdale, E.

Prior, L.

Lawson of Blaby, L.

Rankeillour, L.

Layton, L.

Rawlings, B.

Leigh, L.

Rees, L.

Lindsay, E.

Rennell, L.

Lindsey and Abingdon, E.

Renton, L.

Lucas, L.

Renwick, L.

McColl of Dulwich, L.

Romney, E.

McConnell L

St. Davids, V.

Mackay of Ardbrecknish, L.

Saint Oswald, L.

Mackay of Drumadoon, L.

Saltoun of Abernethy, Ly.

Macleod of Borve, B.

Seccombe, B.

Manton, L.

Sharples, B.

Marlesford L

Stewartby, L.

Marsh, L.

Strange, B.

Strathclyde, L. [Teller.]

Massereene and Ferrard, V.

Strathcona and Mount Royal, L

Merrivale, L.

Sudeley, L.

Mersey, V.

Swinfen, L.

Miller of Hendon, B.

Tenby, V.

Milverton, L.

Teviot, L.

Monk Bretton, L.

Thomas of Gwydir, L.

Monson, L.

Tollemache, L.

Montgomery of Alamein, V.

Trumpington, B.

Mottistone, L.

Vivian, L.

Mountevans, L.

Wade of Chorlton, L.

Mountgarret, V.

Waverley, V.

Mowbray and Stourton, L.

Wedgwood, L.

Moyne, L.

Wilcox, B.

Munster, E.

Wise, L.

Murton of Lindisfarne, L.

Wolfson, L.

Napier and Ettrick, L.

Wyatt of Weeford, L.

Nelson, E.

Wynford, L.

Resolved in the affirmative, and amendment agreed to accordingly.
6.5 p.m.
[Amendments Nos. 7 to 14, as amendments to Amendment No. 4, not moved.]
The Deputy Chairman of Committees (Lord Burnham): The Question is, That Amendment No. 4, as amended, be agreed to?
Lord Mackay of Ardbrecknish: We have reached the end but no one has spoken so I presume that I am not in a position to reply to the various points that have been made. I commend the amendment to the Committee.
6.8 p.m.
On Question, Whether the said amendment (No. 4, as amended) shall be agreed to?
Their Lordships divided: Contents, 153; Not-Contents, 140.

Division No. 2

CONTENTS

Addison, V.

Hylton-Foster, B.

Ailsa, M.

Inchcape, E.

Aldington, L.

Inglewood, L.

Allenby of Megiddo, V.

Johnston of Rockport, L.

Astor of Hever, L.

Kimball, L.

Attlee, E.

Lane of Horsell, L.

Barber, L.

Lauderdale, E.

Barber of Tewkesbury, L.

Lawrence, L.

Belhaven and Stenton, L.

Lawson of Blaby, L.

Birdwood, L.

Layton, L.

Blaker, L.

Leigh, L.

Blatch, B.

Lindsay, E.

Blyth, L.

Lindsey and Abingdon, E.

Boardman, L.

Lucas, L.

Bowness, L.

McColl of Dulwich, L.

Boyd-Carpenter, L.

Mackay of Ardbrecknish, L.

Brabazon of Tara, L.

Mackay of Drumadoon, L.

Brentford, V.

Macleod of Borve, B.

Brightman, L.

Manton, L.

Bruntisfield, L.

Marlesford, L.

Burnham, L.

Marsh, L.

Butterworth, L.

Massereene and Ferrard, V.

Caithness, E.

Merrivale, L.

Campbell of Alloway, L.

Mersey, V.

Campbell of Croy, L.

Miller of Hendon, B.

Carnegy of Lour, B.

Milverton, L.

Carr of Hadley, L.

Monk Bretton, L.

Chalker of Wallasey, B.

Monson, L.

Chelmsford, V.

Montgomery of Alamein, V.

Chesham, L. [Teller.]

Mountevans, L.

Clanwilliam, E.

Mountgarret, V.

Clark of Kempston, L.

Mowbray and Stourton, L.

Coleraine, L.

Moyne, L.

Colwyn, L.

Munster, E.

Courtown, E.

Murton of Lindisfarne, L.

Cranborne, V. [Lord Privy Seal.]

Napier and Ettrick, L.

Cuckney, L.

Nelson, E.

Cumberlege, B.

Noel-Buxton, L.

Dacre of Glanton, L.

Northesk, E.

Darcy (de Knayth), B.

O'Cathain, B.

De L'Isle, V.

Oppenheim-Barnes, B.

Dean of Harptree, L.

Park of Monmouth, B.

Denton of Wakefield, B.

Pearson of Rannoch, L.

Digby, L.

Peel, E.

Dixon-Smith, L.

Pender, L.

Downshire, M.

Peyton of Yeovil, L.

Dundee, E.

Pilkington of Oxenford, L.

Eden of Winton, L.

Platt of Writtle, B.

Ellenborough, L.

Prentice, L.

Elliott of Morpeth, L.

Prior, L.

Elton, L.

Rankeillour, L.

Ferrers, E.

Rawlings, B.

Fraser of Carmyllie, L.

Rees, L.

Gage, V.

Rennell, L.

Gainford, L.

Renton, L.

Gardner of Parkes, B.

Renwick, L.

Gibson-Watt, L.

Romney, E.

Gilmour of Craigmillar, L.

St. Davids, V.

Goschen, V.

Saint Oswald, L.

Gray of Contin, L.

Saltoun of Abernethy, Ly.

Greenway, L.

Seccombe, B.

Hailsham of Saint Marylebone, L.

Sharples, B.

Harding of Petherton, L.

Stewartby, L.

Harlech, L.

Strange, B.

Harmsworth, L.

Strathclyde, L. [Teller.]

Hayhoe, L.

Strathcona and Mount Royal, L

Henley, L.

Sudeley, L.

Hesketh, L.

Swinfen, L.

Holderness, L.

Teviot, L.

HolmPatrick, L.

Thomas of Gwydir, L.

Hooper, B.

Trumpington, B.

Howe, E.

Vivian, L.

1265

Waverley, V.

Wilberforce, L.

Weatherill, L.

Wilcox, B.

Wise, L.

Wedgwood, L.

Wolfson, L.

Wharton, B.

Wynford, L.

NOT-CONTENTS

Ackner, L.

Kilmarnock, L.

Addington, L.

Lester of Herne Hill, L.

Archer of Sandwell, L.

Lincoln, Bp.

Ashley of Stoke, L.

Listowel, E.

Avebury, L.

Lockwood, B.

Bancroft, L.

Longford, E.

Barnett, L.

Lovell-Davis, L.

Beaumont of Whitley, L.

McCarthy, L.

Berkeley, L.

McIntosh of Haringey, L.

Birk, B.

Mackie of Benshie, L.

Borrie, L.

McNair, L.

Bridges, L.

McNally, L.

Broadbridge, L.

Mar, C.

Bruce of Donington, L.

Mar and Kellie, E.

Callaghan of Cardiff, L.

Mason of Barnsley, L.

Carmichael of Kelvingrove, L.

Mayhew, L.

Castle of Blackburn, B.

Merlyn-Rees, L.

Chichester, Bp.

Meston, L.

Clancarty, E.

Mishcon, L.

Cledwyn of Penrhos, L.

Molloy, L.

Clinton-Davis, L.

Monkswell, L.

Dahrendorf, L.

Morris of Castle Morris, L.

Dainton, L.

Murray of Epping Forest, L

David, B.

Nicol, B.

Dean of Beswick, L.

Ogmore, L.

Dean of Thomton-le-Fylde, B.

Oxford, Bp.

Desai, L.

Peston, L.

Diamond, L.

Phillips of Ellesmere, L.

Donaldson of Kingsbridge, L.

Plant of Highfield, L.

Donoughue, L.

Prys-Davies, L.

Dormand of Easington, L.

Rea, L.

Drogheda, E.

Richard, L.

Dubs, L.

Rix, L.

Eatwell, L.

Robson of Kiddington, B.

Ewing of Kirkford, L.

Rochester, L.

Ezra, L.

Rodgers of Quarry Bank, L.

Falkender, B.

Russell, E. [Teller.]

Falkland, V.

Sandwich, E.

Farrington of Ribbleton, B.

Scanlon, L.

Fisher of Rednal, B.

Seear, B.

Gallacher, L.

Sefton of Garston, L.

Geraint, L.

Serota, B.

Gladwin of Clee, L.

Sewel, L.

Glenamara, L.

Shaughnessy, L.

Graham of Edmonton, L. [Teller.]

Shepherd, L.

Gregson, L.

Simon, V.

Grenfell, L.

Simon of Glaisdale, L.

Grey, E.

Stallard, L.

Hamwee, B.

Stoddart of Swindon, L.

Harris of Greenwich, L

Strabolgi, L.

Haskel, L.

Strafford, E.

Hayman, B.

Taverne, L.

Hilton of Eggardon, B.

Taylor of Blackburn, L

Hollick, L.

Taylor of Gryfe, L.

Hollis of Heigham, B.

Temple of Stowe, E.

Holme of Cheltenham, L.

Thomas of Walliswood, B.

Hooson, L.

Thurso, V.

Howell, L.

Tonypandy, V.

Howie of Troon, L.

Tope, L.

Hylton, L.

Tordoff, L.

Irvine of Lairg, L.

Turner of Camden, B.

Jakobovits, L.

Varley, L.

Jay of Paddington, B.

Wallace of Coslany, L.

Jeger, B.

Wallace of Saltaire, L.

Jenkins of Hillhead, L.

Warnock, B.

Jenkins of Putney, L.

White, B.

Judd, L.

Wigoder, L.

Kennet, L.

Williams of Crosby, B.

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Williams of Elvel, L.

Winchilsea and Nottingham, E

Williams of Mostyn, L.

Winston, L.

Resolved in the affirmative, and amendment agreed to accordingly.
6.17 p.m.
Clause 11 agreed to.
Clause 12 [Short title, interpretation, commencement and extent]:
Lord Mackay of Ardbrecknish Lord Mackay of Ardbrecknish moved Amendment No. 15:
Page 8, line 31, after ("Act") insert ("except section (Saving for social security regulations) and Schedule (Modifications of social security regulations)").
The noble Lord said: I have already spoken to the amendment. I beg to move.
On Question, amendment agreed to.
[Amendment No. 16 not moved.]
Lord Mackay of Ardbrecknish Lord Mackay of Ardbrecknish moved Amendment No. 17:
Before Schedule 1, insert the following new schedule—
("SCHEDULE MODIFICATIONS OF SOCIAL SECURITY REGULATIONS
PART I
SOCIAL SECURITY (PERSONS FROM ABROAD) MISCELLANEOUS AMENDMENTS REGULATIONS 1996
Preliminary
1. In this Part of this Schedule—

(a) "the 1996 Regulations" means the Social Security (Persons from Abroad) Miscellaneous Amendments Regulations 1996; and

(b) expressions which are used in the 1996 Regulations have the same meanings as in those Regulations.

Income support
2. In regulation 8 of the 1996 Regulations (amendment of the Income Support Regulations)—

(a) paragraph (2) so far as relating to the sub-paragraph added to regulation 21(3) of the Income Support Regulations as sub-paragraph (j); and

(b) paragraph (3)(c) and (d), shall have effect as if the 1996 Regulations had been made, and had come into force, on the day on which this Act is passed.

Housing benefit
3. In regulation 7 of the 1996 Regulations (amendment of regulation 7A of the Housing Benefit Regulations)—

(a) paragraph (a) so far as relating to the sub-paragraph added to regulation 7A(4) of the Housing Benefit Regulations as sub-paragraph (g);

(b) paragraph (b) so far as relating to sub-paragraphs (a) and (b) of the paragraph substituted for regulation 7A(5) of those Regulations; and

(c) paragraph (c),

shall have effect as if the 1996 Regulations had been made, and had come into force, on the day on which this Act is passed.

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Council tax benefit
4. In regulation 3 of the 1996 Regulations (amendment of regulation 4A of the Council Tax Benefit Regulations)—

(a) paragraph (a) so far as relating to the sub-paragraph added to regulation 4A(4) of the Council Tax Benefit Regulations as sub-paragraph (g);

(b) paragraph (b) so far as relating to sub-paragraphs (a) and (b) of the paragraph substituted for regulation 4A(5) of those Regulations; and

(c) paragraph (c),

shall have effect as if the 1996 Regulations had been made, and had come into force, on the day on which this Act is passed.
General
5.—(l) Subject to sub-paragraph (2) below, any person who is excluded from entitlement to income support, housing benefit or council tax benefit by any of the provisions which are modified by the preceding provisions of this Part of this Schedule—

(a) shall not be entitled to the benefit for any period beginning on or after the day on which this Act is passed; and

(b) shall not be entitled to the benefit for any period beginning on or after 5th February 1996 except on a claim made before the day on which this Act is passed, or an application made before that day for the review of a decision.

(2) Nothing in this paragraph shall apply in any case where a person is entitled to the benefit in question either—

(a) by virtue of regulation 12(1) of the 1996 Regulations (saving); or

(b) by virtue of regulations making such provision as is mentioned in section (Saving for social security regulations) (2) of this Act.

PART II
SOCIAL SECURITY (PERSONS FROM ABROAD) (MISCELLANEOUS AMENDMENTS) REGULATIONS (NORTHERN IRELAND) 1996
Preliminary
6. In this Part of this Schedule "the 1996 Regulations" means the Social Security (Persons from Abroad) (Miscellaneous Amendments) Regulations (Northern Ireland) 1996.
Income support
7. In regulation 4 of the 1996 Regulations (amendment of the Income Support (General) Regulations)—

(a) paragraph (2) so far as relating to the paragraph added to regulation 21(3) of the Income Support (General) Regulations (Northern Ireland) 1987 as paragraph (j); and

(b) paragraph (3)(b), shall have effect as if the 1996 Regulations had been made, and had come into operation, on the day on which this Act is passed.

Housing benefit
8. In regulation 5 of the 1996 Regulations (amendment of the Housing Benefit (General) Regulations)—

(a) paragraph (a) so far as relating to the sub-paragraph added to regulation 7A(4) of the Housing Benefit (General) Regulations (Northern Ireland) 1987 as sub-paragraph (g);

(b) paragraph (b) so far as relating to sub-paragraphs (a) and (b) of the paragraph substituted for regulation 7A(5) of those Regulations; and

(c) paragraph (c), shall have effect as if the 1996 Regulations had been made, and had come into operation, on the day on which this Act is passed.

General
9.—(1) Subject to sub-paragraph (2) below, any person who is excluded from entitlement to income support or housing benefit by any of the provisions which are modified by the preceding provisions of this Part of this Schedule—
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(a) shall not be entitled to the benefit for any period beginning on or after the day on which this Act is passed; and

(b) shall not be entitled to the benefit for any period beginning on or after 5th February 1996 except on a claim made before the day on which this Act is passed, or an application made before that day for the review of a decision.

(2) Nothing in this paragraph shall apply in any case where a person is entitled to the benefit in question either—

(a) by virtue of regulation 11(1) of the 1996 Regulations (saving); or

(b) by virtue of regulations making such provision as is mentioned in section (Saving for social security regulations)(2) of this Act.").

The noble Lord said: I spoke to this amendment with Amendment No. 4. I beg to move.
On Question, amendment agreed to.
Schedules 1 to 3 agreed to.
House resumed: Clauses 9 to 12 and the schedules reported with amendments; then, Standing Order 44 having been dispensed with pursuant to Resolution of 28th June, Report received. It was ordered that the Bill be printed as amended.

Asylum and Immigration Bill
6.20 p.m.
Read a third time.
Clause 1 [Extension of special appeals procedures]:
Lord McIntosh of Haringey Lord McIntosh of Haringey moved Amendment No. 1:
Page 2, line 2, at end insert ("without giving a reasonable explanation of his failure to do so").
The noble Lord said: My Lords, in moving Amendment No. 1 I wish also to speak to Amendment No. 5. I shall do so briefly, but there is a Motion now before the House, or there will be, and if the noble Lord, Lord Jakobovits, wishes to intervene after I have introduced Amendment No. 1, it would be appropriate for him to do so. I am sure that he will find a way of relating his remarks to my amendment.
We debated Amendment No. 1 at an earlier stage, but the Government gave a quite inadequate answer on it and the issues are still far from clear. Clause 1 is concerned with the special appeals procedures, the so-called fast-track procedure. Subsection (3) deals with the issue of whether the appellant produced a valid passport. Subsection (3) applies if the appellant,
"failed to produce a passport without giving a reasonable explanation for his failure to do so" or; "produced a passport which was not in fact valid and failed to inform the officer of that fact".
In Amendment No. 1, we propose that the proviso:
"without giving a reasonable explanation of his failure to do so",
should be added to subsection (3)(b). In other words, the same proviso as is contained in paragraph (a) should also be provided in paragraph (b).
Without going over all the ground which was debated at an earlier stage, I wish to make a point which may be helpful to the noble Lord, Lord Jakobovits. It is a matter on which the United Nations High Commissioner for Refugees has given us specific advice and I hope that the noble Lord will feel that the issue of adherence to the United Nations convention on refugees of 1951 and, from time to time, the views of the United Nations High Commissioner for Refugees is of enormous importance and pervades the whole of the Bill. The UNHCR specifically allows that genuine refugees may have false papers, they may break the law and may lie at the port of entry. That is relevant to the decision which the Committee has just taken about applications at the port of entry. People who are perfectly genuine refugees may find it necessary to produce false papers; they may have a reasonable explanation of their failure to produce a valid passport, but they fail to produce it.
The all-pervasive point, which relates to the decision which the Committee took on Amendment No. 6 which we have just debated, is that using such methods—in other words, lying at the point of entry, having false papers and breaking the law—is often an indication of genuine fears. If you wish to come to this country you do not come and produce a fake passport unless you have fears about being returned to your own country. You do not try to talk your way in if you wish to be an asylum applicant, unless you have the kind of fears which are often shown by prevarication or even lying at the point of entry. So genuine fears should only count if no reasonable explanation can be given.
I do not deny that there are people who come to this country who tell lies in order to get here and seek entry for economic reasons. It is not our concern to deny the Government's intention that there should be a fast-track procedure for such people. However, the clause as drafted provides so many other ways of excluding the possibility of people's claims being given full consideration that it would be reasonable to make this modest change and to provide that there could be a reasonable explanation for having a passport which is not valid and failing to inform the officer of that fact. That is not a way of telling whether a person is a genuine applicant. I fear that the fast-track procedure could, under those circumstances, work to the disadvantage of genuine applicants. I beg to move.
Lord Jakobovits: My Lords, I am intensely grateful to the noble Lord, Lord McIntosh, for giving me a reliable peg on which to hang remarks which, for reasons I shall now explain, I could not make earlier. I have only just returned from a seven-week academic assignment in Australia and New Zealand. Therefore, I could not participate in earlier debates on this important Bill. With the leave of the House, perhaps I may be permitted to speak briefly at this stage. This may be as good a slot as I am likely to find for remarks on a Bill of deep and profound concern to me.
Let me say at once that I must declare my interest. I myself entered this country as a refugee from Nazi oppression about 60 years ago. How lucky I was to arrive before refugees were renamed "asylum seekers"
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with, I think, overtones or connotations of being mentally unbalanced. I owe my life and the lives of my immediate family to Britain's hospitality and magnanimity in offering us a home and a refuge, not to mention the undreamt of opportunities which have come my way. I am obviously keen to see similar blessings made available to others in need.
Permit me to recall my maiden speech just over eight years ago on the Immigration Bill of 1988. I concluded with a plea:
"to remember that we are all, each one of us, temporary residents on this planet where we have to learn the art of living together in harmony before our visa expires and we are called to migrate to another world".—[Official Report, 4/3/88: col. 377.]
In the present debate one cannot but deplore the deep divisions, passions and antagonisms aroused on both sides of the argument, inside as well as outside this House. It is surely a thousand pities and an irony that a measure designed to encourage and regulate the practice of kindness and charity should sow so much bitterness among ourselves.
In my remarks I want to attempt to narrow the divisions and find some common ground likely to command maximum agreement and consensus. On the one hand, surely as a nation nurtured in the biblical heritage we ought to be united in submitting to the precept in the Book of Leviticus:
"And if a stranger sojourn with you in your land, you shall not oppress him. The stranger … shall be with you like the home-born among you, and you shall love him as yourself".
Other injunctions, too, call on us to extend social benefits to the native-born and the stranger alike.
Once an alien finds himself on these shores, whatever his legal status on arrival, it would be quite wrong and cruel to deny him the elementary claims to food and shelter granted to any native citizen. It would be morally unacceptable to expose him to hunger or homelessness. One hopes that, by decisions made in the course of this debate and the one earlier, that will indeed be effected.
On the other hand, whether such an alien alighting on our shores should be admitted or allowed to stay is a different matter altogether. Clearly there are grave and widespread abuses. Many plead political persecution when, as we heard, what draws them to this country is economic advantage rather than escaping from some threat to their lives or their freedom.
Britain is among the world's most densely populated countries. It is only realistic to accept some limit on fugitives from countries with populations numbering scores of millions or more, if the social health of our society is to be maintained and especially if the innate tolerance of our citizens is to be preserved against excesses and prejudices born of fear or deprivation.
In an unstable and increasingly hungry world, drained by civil wars, famine and over-population in many countries, the pressures of migration could mount dramatically and far beyond the capacity of a single country to absorb. An equitable balance, based on existing economics and populations, ought to be worked out on an inter-European or global basis to determine how any anticipated or actual flow of refugees is to be allocated in a manner that does justice to hosts and refugees alike.

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Moreover, in our own minds we should convert the country from appearing to be an asylum into becoming a sanctuary. That will turn us all in the end into beneficiaries, being, as we hope, advantaged rather than impoverished by the newcomers and by their culture, and perhaps even by their economic contributions, as happened notably in the United States of America. To the degree that new arrivals feel welcome and appreciated, they will work harder to become an asset rather than a liability. Successful integration depends on hosts and newcomers alike. And that success is a true measure of our civilisation.
6.30 p.m.
Baroness Blatch: My Lords, I am in some difficulty. I have enormous admiration for the noble Lord, Lord Jakobovits. He has made a wide-sweeping speech but, I believe, a Bill do now pass speech. He was invited personally by the noble Lord, Lord McIntosh, to make that speech. At this stage of the proceedings I am charged to respond to an amendment to the Bill. Therefore I shall respond to the noble Lord's remarks when I come to wind up the debate. He made some important points and it would be right for me to respond to them. However, if the House will forgive me, I shall reply to the amendment on the Marshalled List.
Identical amendments tabled by the noble Lord, Lord McIntosh, and his colleague, the noble Lord, Lord Dubs, were debated fully in Committee and on Report. I am therefore very surprised that the noble Lords have again decided to return to this issue at Third Reading. I explained in detail in Committee and on Report why the amendment was unacceptable. Therefore I shall have to be repetitious; the amendment has not changed, nor has my retort to it.
We have consistently made clear that we expect asylum seekers to be completely honest and frank with our immigration authorities on arrival in this country. Dishonesty and concealment damage credibility. Of all people, they damage the credibility of the asylum seeker himself. We accept that there might be circumstances where a genuine refugee would need to use false papers in order to flee a country in which that person had a genuine fear of persecution. Under the Bill, no adverse consequences arise for the asylum seeker merely because that person presents an invalid, forged or stolen passport on arrival here, provided that the applicant declares the forgery to the immigration officer. But what is unacceptable, and casts doubt on credibility, is an attempt to pass off a fake identity or forged passport as genuine. It is the dishonesty inherent in such an attempt which triggers the accelerated appeal procedure. That is why we are unable to accept this amendment.
Those presenting false papers to our immigration officers are, after all, not doing so out of necessity. By definition, they have already fled the country in which they claim to fear persecution and have arrived at their chosen place of safety. Such deception cannot be condoned. They have even been asked about the forged document or the papers that are not in order. In order to answer that question they will have to be dishonest if they choose deception rather than honesty at the point of entry. I regard that as needing some courage, too.
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Like the rest of Clause 1, sub-paragraph (3) will not prejudice the consideration of the asylum claim on its merits. If the claim is valid, asylum or exceptional leave will be granted regardless of document deception used on arrival. And the Bill will not penalise the genuine asylum seeker who has to travel on false papers, provided he is honest and declares the false papers on arrival.
I reject the argument that sub-paragraph (3)(b) as currently drafted is contrary to the terms of Article 31 of the 1951 United Nations convention, as hinted by the noble Lord, Lord McIntosh. Article 31 states that refugees shall not be penalised on account of their illegal entry provided they present themselves without delay to the authorities and show good cause for their illegal entry and presence.
First, the issue of a certificate only comes into play after the claim has been considered fully and on merit and has been found to be invalid. By definition, therefore, the Secretary of State has concluded that the applicant is not a refugee under the terms of the convention.
But, secondly, applying a certificate to a refused asylum claim, thereby triggering an accelerated appeal procedure, cannot be construed as imposing a penalty in terms of Article 31. As I have just said, repeating what I have said on many occasions, all claims will still be considered on merit in the usual way. All applicants will still have an appeal to an independent adjudicator if the claim is refused. This is a perfectly adequate procedure in such cases and cannot be termed a penalty. Moreover, those who enter or attempt to gain entry using false papers would have had ample opportunity to present themselves to the UK authorities to apply for asylum when examined by an immigration officer on arrival. It is the dishonesty inherent in deceiving the immigration officer that triggers the certificate if the claim is refused.
I confirm that the noble Lord coupled Amendment No. 5 with this amendment. That was my understanding. As I understand it, Amendment No. 5 appears to proceed from the misapprehension that any asylum seeker who uses deception in order to secure his passage to the United Kingdom will automatically and consequently fall within the terms of the offence which would be created by Clause 4. That is simply not the case.
As I have said during consideration of the Bill, we recognise that asylum seekers may have to practise deception in order to leave their own country and travel to this country. I say again that what we do not accept is that having arrived in the United Kingdom, the deception, such as reliance on false travel documents, is maintained in an effort to secure entry in a capacity other than as a refugee. An asylum seeker who has employed deception in order to reach the United Kingdom but then presents himself at the control and seeks asylum will have absolutely nothing to fear from the offence in Clause 4.
However, the effect of the amendment would not only be felt on entry. It would also completely remove a criminal sanction when an asylum seeker practises deception in order to secure leave to remain. It is

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difficult to imagine any circumstances where an asylum seeker would need to employ deception in order to secure leave to remain as a refugee or on an exceptional basis unless he actually had no claim to such status and his asylum claim was a work of fiction or deception. I am unclear why the noble Lord, Lord McIntosh, and colleagues who support him in the amendment wish to see such people free from the threat of criminal conviction and punishment, but I have to accept that that is what the noble Lord does mean. For all of those reasons, I hope that the amendment will not be accepted.
6.45 p.m.
Lord McIntosh of Haringey: My Lords, the Minister quoted, entirely properly, from Article 31 of the 1951 convention. However, I should remind her—I am not entirely clear whether the point was made at an earlier stage—that the UNHCR in April this year produced guidelines on detention which explain the provisions of Article 31 in more detail. It is not that I am concerned with detention. I am concerned with the interpretation which is to be placed on Article 31. The document says:
"Given the special situation of a refugee, in particular the frequent fear of authorities, language problems, lack of information and general insecurity, and the fact that these and other circumstances may vary enormously from one refugee to another, there is no time limit which can be mechanically applied associated with the term `without delay' … Along with the term 'good cause'… it must take into account all of the circumstances under which the asylum seeker fled (e.g. having no time for immigration formalities)."
That places a slightly different complexion on the issue from that the Minister put on it. However, this is not a matter which I wish to pursue to a Division.
Before I seek leave to withdraw the amendment, perhaps I may say that I quite understand the difficulty which the Minister had in responding to the more general comments of the noble Lord, Lord Jakobovits. I am sure he also understands the position. Of course, the problem is that the normal time to intervene is on the Motion that the Bill do now pass. That will not actually happen until tomorrow. I am sure that honour is satisfied by having allowed the noble Lord to make his very valuable remarks at this time without blaming the Minister for not responding to them. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Williams of Crosby Baroness Williams of Crosby moved Amendment No.2:
Page 2, line 24, leave out ("in the country or territory to which he is to be sent") and insert ("prior to his arrival in the United Kingdom.").
The noble Baroness said: My Lords, I make no apology for detaining the House briefly on this amendment. The purpose of the amendment is that someone who has shown evidence of torture should not be returned to a country other than the one from which he comes if there is a likelihood that he will be tortured or returned to a country which will torture him if he is sent back to that country.
In Committee an amendment was agreed to deal with people who showed evidence of having been tortured. The Government responded, at least to some extent, to that decision. In the amended Bill subsection (5) of Clause 1 states:
"This sub-paragraph applies to a claim if the evidence adduced in its support establishes a reasonable likelihood that the appellant has been tortured"—
That was what the House wanted—
"in the country or territory to which he is to be sent."
What that means, I understand, is that the protection would only cover someone who was about to be returned to the country in which he had been tortured. It would not cover someone who was about to be returned to a country other than one in which he had been tortured, which might nevertheless torture him, or might send him on to a country in which he might be tortured.
In case noble Lords feel that I am making a purely abstract argument, I shall give two examples. All noble Lords will have read of the desperate plight that the state of Myanmar finds itself in. It is what used to be called the country of Burma. Very terrible things are happening to those who, with an extraordinary degree of courage, are supporting the almost certain victor of the last election in Burma, Miss Aung San Suu Kyi. She is defying the whole of the military government by persisting in arguing claims for democracy to return in Burma. Burma is a country which does not have any inhibitions about torturing dissidents and opponents of one of the most terrible governments in the world.
There have been cases in which people returned to other East Asian countries, specifically Thailand, have then been sent back to the country from which they came. Thailand is a country to which it is quite probable that people would be returned. It is apparently a safe sort of country. There is a great danger that Thailand, which has practised so-called reforms—meaning the return of people to the country of origin, directly in the face of the United Nations convention relating to refugees—might do it again.
The second example, to which the noble Lord, Lord Mackay of Ardbrecknish, referred, relates to the case of Belgium. The noble Lord said, justly enough, that most of us would regard Belgium as a safe country, certainly one that does not torture its citizens or those who flee to it. The trouble is that there is already clear evidence that in certain cases Belgium has returned Zairean refugees to another of the most dreadfully governed countries in the world, namely, Zaire. Indeed, some refugees have been sent straight from the airport in Brussels on to Zaire without so much as their cases being considered even for a matter of moments.
It is against that background that this modest amendment is directed, so that the Government cannot return someone, and I repeat the phrase,
"if the evidence adduced … establishes a reasonable likelihood that the appellant has been tortured".
We are not questioning that. We want to make sure that the person cannot be returned to a country which might continue to torture him.
It is a modest amendment. However, because I move an amendment about torture, I want to raise two questions with the noble Baroness, Lady Blatch. I raised these questions previously but the noble Lord, Lord Mackay of Ardbrecknish, did not respond to them, no doubt for reasons of lack of time. They are so important to the intentions of this House that I raise them again on this amendment about torture.
At the Committee stage of the Bill the noble Baroness, Lady Blatch, said:
"We are trying to arrive at a situation whereby a genuine claim of torture is properly considered and, if genuine, is well-founded at the first stage of consideration".—[0fficial Report, 23/4/96; col. 1057.]
Later she went on to say:
"I referred to the very great importance and weight which are attached to any evidence of torture, especially when supported by a medical certificate".—[Official Report, 23/4/96; col. 1058.]
A few moments ago this Chamber decided that it would extend the right of asylum seekers from asylum given at port of entry only to three days, although that decision was taken against the advice of the Government. I ask the House to consider two situations. The first is where somebody who has been tortured applies for asylum at the port of entry. He is likely to have at most half an hour, perhaps an hour, with the immigration authorities. By the nature of things, he cannot advance medical evidence, unless it is highly improbable that he has medical evidence of torture from his own country. How then does he obtain the medical evidence? By leave of this Chamber, he may now be given three days to get that medical evidence.
The noble Baroness shakes her head. I repeat that I asked that question before and no answer was given to me. Therefore I am entitled to raise the matter again. What steps does he take to get medical evidence in this country if he is on the fast track? I am still not clear how far victims of torture will be removed from the fast track. I repeat the question. Can we hear from the noble Baroness how somebody establishes that there is a reasonable likelihood that he is a victim of torture in a matter of an hour or so before an immigration officer at the port of entry? Or, if he applies under the new amendment within three days, how can he establish that likelihood, unless he is able to get a medical examination in this country, which, as most of us know, is very difficult to do within three days? Indeed, in some cases it is close to impossible. That is my first question. How does he establish what brings him within the amendment agreed by this Chamber?
My second question relates to how asylum seekers can establish likelihood, if they remain on the fast track. I am not yet clear whether the amendment takes all possible people who claim to be victims of torture out of the fast track. I am sure that the Government will say, with some justice, that they cannot simply accept an a priori statement of torture as grounds for establishing likelihood. So my second question is: what establishes the likelihood of the claim? How do they go about establishing that likelihood and what would the Government regard as adequately fulfilling the conditions that they themselves have now laid down as a way of meeting the mood of this Chamber?
It is on the basis of the answers to those questions, which I believe are absolutely crucial in terms of the intention of the House, that I shall decide whether to press the amendment to a Division. I beg to move.
Earl Russell: My Lords, my noble friend is quite right. On the first day of Committee on the Bill, the Minister entirely conceded the major premise on which my noble friend's amendment rests. The Minister said that it was quite impractical, before returning a person to another country, to gain an undertaking that that country would consider his claim. That was a very significant admission. It means that, when we return a person to another country which is not the country from which he came, we cannot be certain that that country will not again "billiard ball" return him, until he ends up back in the country from which he came. So for that reason, if for no other, my noble friend is quite right. It is whether he has been tortured in the country from which he comes and not whether he has been tortured in the country to which he is to go which is material.
I shall not detain the noble Baroness now with all the case law. She has heard it from me before. Although we disagreed profoundly at the beginning of the Bill on the significance of the judgment in ex parte Bostam by Mr. Justice Hidden, the noble Baroness on her own interpretation of that case concedes that such "billiard ball" returning to a third country may be possible. It has happened. That is all that the supporters of my noble friend's amendment need to prove. As I see it, one case would be enough. I have with me a great many more cases but I shall not detain the House with them.
We next need to consider my noble friend's point about how a claim to torture can be established. I have two points on the torture amendment, which I very much welcomed. One concerns the exemption from the fast track; the other comes under paragraph (7) in Clause 1, that the invocation of the torture amendment disapplies the prohibition of appeals to the Immigration Appeal Tribunal. Those are both crucial matters.
We are agreed that the mere assertion that one has been tortured is not enough by itself to establish a foundation to a claim. But obtaining the most eminent medical experts from Oxford takes time. They tend to have other engagements and other commitments, not all of which can instantly be set aside. So establishing adequate evidence to lay the foundation for a claim of torture must take some time. It is our recurrent fear that that time will not be available under the fast tracking procedure and therefore that victims of torture who are fast-tracked will be returned before they have been able to establish the evidence.
The appeal point is also vital. The Minister heard what my noble friend had to say about the case of Mr. Igbinidu. I cannot understand why the Home Office has not accepted that case. It tends to show that initial decisions on the question of torture may give rise to a need for appeal. I feel that there is here a question of natural justice. If the Minister were to accept my noble friend's amendment, she would protect the Government

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from a good many court cases in which I do not believe she would wish to become involved. I am delighted to support the amendment and hope that it is accepted.
Lord Hylton: My Lords, the noble Baroness, Lady Williams, raised at least two important points on this amendment. I am very happy to support her. However, to my mind the matter goes somewhat wider.
When the Bill left this Chamber after Committee, page 1, line 20 read:
"(2)(b) a person who is claiming to fear persecution in a country which has a recently documented record of torture".
That wording was agreed in this Chamber by a substantial majority of votes. I have no doubt that it could be argued that it was a form of words which went rather too wide. But to my mind constitutional convention would indicate that the Government should have accepted it and not attempted, as they have done, to eliminate it by their own amendment, which was carried at Report stage.
In my view, the very least that would be acceptable is that the country in which the person claims to have a fear of persecution, which may involve him being tortured if he is returned there, should be a country named in a report of the UN High Commissioner for Refugees or possibly named in a report of the UN Special Rapporteur on Torture. I do not know whether that point can be considered at this late stage; in my opinion it is extremely important.
7.p.m.
Baroness Blatch: My Lords, we have debated the safeguards for victims of torture at length during Committee and Report. Sub-paragraph (5) exempts applicants from having their appeal accelerated if it is reasonably likely that they have been tortured in the country to which they are to be sent.
During Report, I argued against an amendment to cover countries from which applicants had come. The noble Baroness, Lady Williams, now returns to this point. Her amendment, to which the noble Lord, Lord Soper—who is not in his place—also put his name, proposes to extend the scope of sub-paragraph (5) even wider, so that it would apply regardless of the country in which the applicant had been tortured.
The case for sub-paragraph (5) is that where torture has occurred there is likely to exist a sufficiently strong prima facie case that the appeal ought not to be accelerated. But that argument cannot be advanced if the torture has occurred in a different country. The fact that the applicant has been tortured elsewhere has no bearing on whether he is at risk in his own country.
I return to the example I gave at Report. If we are returning an Indian national to India, the fact that he may have been tortured in a third country—say Iraqis irrelevant to whether he is at risk in India. In other words, if after examination an asylum claim is refused and meets one of the criteria in Clause 1—for example, because it is manifestly unfounded—the accelerated appeal procedure should normally be available. The fact
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that the applicant may have been tortured in a country other than the one to which he is to be sent ought not to prevent us from applying it.
The noble Baroness raised the case of an applicant who has been tortured in his own country but whom we are sending elsewhere. Might not the country to which we are sending him return him to his own country where he was indeed tortured? The answer to that is that we are discussing Clause 1 and Clause 1 is concerned only with removing people to their country of origin. Removals to third countries are governed by Clause 2. The Secretary of State has to certify that the third country will not itself remove the applicant elsewhere otherwise than in accordance with the 1951 convention. The great majority of such removals would be to other European Union countries or to other designated safe third countries with highly developed legal and asylum systems. Where the third country has not been designated and is not a member state of the European Union, the applicant will have a non-accelerated in-country appeal.
The noble Baroness said that I had not responded to her questions. Indeed I have, but I shall do so again because it is important that I should. Applicants do not have to prove on entry that they have been tortured. On entry they are making their claim for asylum. That is important. If they make their claim for asylum on entry, that claim must be considered. If, however, as part of that claim, part of their case is that they have been or are in fear of being tortured, it is important that they establish that at the first hearing. It is not until after that first hearing that the certification process applies.
If somebody needs to find medical evidence to support his claim, then time for that evidence to be found is given. That has nothing whatever to do with the three-day amendment that we passed earlier. The three days relate to making the claim for asylum, not to providing substantive evidence that the person has been tortured. The same explanation applies to establishing a likelihood. The point at which an applicant needs to establish the likelihood of having been tortured will be at the adjudication point. Where the adjudicator has given time for the applicant to amass his evidence, he will consider it and then make one of three judgments. First, he may dismiss the case because it is manifestly unfounded; secondly, he may take the view that the evidence is so overwhelming and what has been said in support of the claim is such that he believes that torture has taken place—in which case Clause 1 would be disapplied; or, thirdly, he may believe that a likelihood has been established, in which case again Clause 1 would not apply.
The problem the noble Baroness introduces in regard to time to provide the evidence is taken into account. However, as a caveat to that, judgments will have to be made about somebody who takes an unreasonable amount of time and clearly is not showing signs of producing or securing evidence. All reasonable accommodation is made at the adjudication point.

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I believe that there is confusion between applying for asylum at the point of entry and having to prove or establish a likelihood that an applicant has been tortured.
Baroness Williams of Crosby: My Lords, I am grateful to the noble Baroness for her further explanation. I read carefully through all stages of the Bill and now the noble Baroness has made the situation clear beyond peradventure. I am grateful to her for that.
We mentioned the case of Mr. Igbinidu, about which we were particularly concerned. Perhaps I may take another example from my noble friend Lord Avebury. He has an instance of an asylum seeker who came from Iraq. He was returned to France as a safe country and was then sent from France back to Iraq, where we understand he has again been tortured. It is that kind of case that led me to ask these questions in such precise terms. I hope the noble Baroness will forgive me for pressing her for more clarity. I am sure she will understand that these are precisely the kinds of case about which the House is concerned.
In the light of the Minister's response I shall not press the matter to a Division. I thank her once again for her answer and will send her details of the specific case that I mentioned. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The Earl of Courtown: My Lords, I beg to move that consideration after Third Reading be now adjourned. In moving this Motion, I suggest that proceedings on the Bill begin again at five minutes past eight.
Moved accordingly, and, on Question, Motion agreed to.

Industrial Tribunals (Northern Ireland) Order 1996
7.5 p.m.
The Parliamentary Under-Secretary of State, Northern Ireland Office (Baroness Denton of Wakefield)The Parliamentary Under-Secretary of State, Northern Ireland Office (Baroness Denton of Wakefield) rose to move, That the draft order laid before the House on 17th June be approved.
The noble Baroness said: My Lords, I beg to move that the Industrial Tribunals (Northern Ireland) Order 1996, a draft of which was laid before your Lordships on 17th June 1996, be approved.
In moving the Industrial Tribunals Order, I shall speak also to the Employment Rights (Northern Ireland) Order. The purpose of these interrelated orders is to consolidate by re-enactment the Northern Ireland provisions dealing with industrial tribunals and employment rights. At present these provisions are scattered throughout eight much amended enactments, the earliest of which dates back to 1965.
Recently, your Lordships dealt with the consolidation of the provisions covering industrial tribunals and employment rights in enactments relating to Great Britain. In Northern Ireland the legislation on industrial tribunals and employment rights is in line with
1280
that in Great Britain. However, the successive amendment in Northern Ireland of one enactment by another since 1965 and the resultant spread of provisions over many instruments is not conducive to an easy understanding of the law on these important areas, which affect the rights of individuals.
As regards the Employment Rights (Northern Ireland) Order—that is, unfair dismissal, maternity, redundancy and entitlement to detailed statements associated with wages—the law in Northern Ireland is completely in line with that in Great Britain. That order follows the form and terminology of the Great Britain consolidation but there are differences in the content of the Northern Ireland orders.
One difference between the Employment Rights Act and the Employment Rights (Northern Ireland) Order concerns Sunday working. In Northern Ireland, there is no legislative provision for Sunday betting and at present Sunday trading law is the same as it was in England and Wales prior to the Sunday Trading Act. There is therefore no need in the order to reproduce those important rights for shop workers and betting office workers which were introduced in England and Wales when Sunday trading and betting provisions were amended.
Another difference arises from the fact that in the Northern Ireland statutes the right of an individual under trade union legislation has always been regarded as an integral part of an individual's employment rights. Those rights include access to employment, action short of dismissal, rights in relation to trade union duties, interim relief upon complaint of infringement of those rights and procedures for handling redundancies.
Before turning to the Industrial Tribunals Order, I would draw your Lordships' attention to the minor new provision amidst what is otherwise the re-enactment of extant provisions. Article 14, paragraphs (7) to (9), makes special provision for the reckoning of the period of continuous employment for those whose professional training of necessity requires successive periods of employment with different health service employers. With the special provision, the move from one health service employer to another will not break the continuity of employment in calculating a period of continuous employment for a health service employee undergoing professional training.
I now turn to the Industrial Tribunals (Northern Ireland) Order, which re-enacts the industrial tribunal provisions scattered throughout the present legislation. There are no new provisions and the Northern Ireland ones are in line with the Great Britain provisions for industrial tribunals in the Industrial Tribunals Act 1996. However, in Northern Ireland there is no equivalent of the employment appeal tribunal. A person in Northern Ireland may take his or her case to the Court of Appeal on a point of law by way of a case-stated. In 1995, I initiated a review of the industrial tribunal procedure which elicited comment on the lack of a Northern Ireland employment appeal tribunal system. Consideration of the review is under way and more work is needed before a decision can be made on the advisability of changing the Northern Ireland system.

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This order is not a suitable vehicle for such a major change, especially change which would require detailed consultation with many interested parties.
Together these orders consolidate for Northern Ireland the present legislation on industrial tribunals and employment rights in a convenient form, making it more accessible to the individual, the professionals and the tribunals. I commend these orders to your Lordships as a worthwhile and significant step in simplifying a code which should be available to all. I beg to move.
Moved, That the draft order laid before the House on 17th June be approved.—(Baroness Denton of Wakefield.)
Lord Williams of Mostyn: My Lords, I thank the Minister for her introduction. It is obviously sensible to bring together a mass of legislative provisions. I am not sure that I can entirely agree with the Minister's concluding description of a simple code, bearing in mind that its volume will provide happy employment for lawyers at least for many years to come. I particularly welcome the explanation for Article 14 because it gives additional and justified protection to those who work in the National Health Service.
I have one or two questions. Is there any present thought being given to altering the Sunday trading laws in Northern Ireland, bearing in mind a rather different religious culture, in that perhaps more people go more readily to places of religion in Northern Ireland than they do in England and Wales? Similarly, is there any question of introducing the opening of betting offices in Northern Ireland? Is that under contemplation?
The Minister was good enough to say that she had instigated in 1995 a review of the situation with regard to employment appeal tribunals and the lack of availability in Northern Ireland. The year 1997 is not far from us, so the EAT is rapidly going to become the brother of the CICB, I believe, in that the Government constantly cogitate but do not decide. The EAT is a very important part of the mechanism in England and Wales because it offers the opportunity of not simply a presiding judge but also of representatives of people who know industry. Subject to one blemish, it has generally worked well in this country.
The blemish is delay. I wish to focus on that briefly as regards the industrial tribunal in Northern Ireland. What is the average length of time that it takes to have a case determined from the point of first application? Certainly in south-east England delays are up to two years. That is wholly unacceptable for someone whose only means of income has been taken away, whose only capital is his labour and who is not helped in any way, unless he happens to be in a union, by legal assistance and advice. Have the Government any proposals or thoughts about the introduction of legal aid to assist people in industrial tribunals? If the answer is no, is it contemplated that legal assistance will be available on a law shop basis, for instance? After all, the industrial tribunal was introduced—a hollow laugh is called for here—to be speedy and informal. It is very slow and it has the most convoluted legislation which an ordinary
1282
lay person, acting alone, cannot deal with. What is the backlog in Northern Ireland in the industrial tribunals system at the moment?
Generally, this is a sensible, somewhat overdue mechanism for drawing together a mass of disparate provisions into two self-contained codes and on that basis I welcome it. But I believe that the industrial tribunals system still lacks resources to give what people really need, which is the speedy determination of what is at the centre of their lives; namely, loss of a job.
7.15 p.m.
Lord Beaumont of Whitley: My Lords, we too from these Benches welcome these orders in general. In particular, Articles 13 and 14 of the industrial tribunals order are worth while.
I have two questions. The first relates to the industrial tribunals order at page 7 in Article 6(3)(b) which introduces the unusual concept that if at any time the parties give their written consent for the tribunal to hear solely through the chair, they are not allowed subsequently to withdraw that consent and insist that two other members of the tribunal are present.
That raises two worries. The first is that people will be reluctant to give their consent to having the case heard solely by the chair because they know that they will be unable to withdraw their consent and insist on having other members of the tribunal there at a later stage if they are unsatisfied with the chair at the beginning. For that reason, the provision will presumably lead to more three-member tribunals, rather than fewer, as is presumably intended.
Secondly, it is an uncomfortable departure from normal practice. In criminal and civil proceedings most written statements can be withdrawn. Why is the case of industrial tribunals peculiar enough to warrant peculiar treatment? I realise that this is not specific to Northern Ireland. It is true in England. But I do not believe that it is a very good thing, and it needs to be justified.
I wish to ask a question about the employment rights order and Article 238 on page 217. The employment rights set out in this order do not apply to a significant number of people in Northern Ireland, including those who are in Crown employment. The public sector in Northern Ireland employs a far higher proportion of people than in the rest of the United Kingdom. The article is carefully worded so that it applies only to some people in Crown employment. Do these provisions remove the right for members of various security institutions to join a trade union, as in GCHQ? In that case, I believe that this is not to be welcomed. Approximately how many people are exempted from these employment rights by Article 238? I hope that the noble Baroness will be able to answer those questions. But in general we give these orders a hearty welcome.
Baroness Denton of Wakefield: My Lords, I thank your Lordships for the general welcome for these orders. I agree with the noble Lord, Lord Williams, that perhaps a simpler code is the correct description. I also thank noble Lords for their courtesy in notifying me of their concerns.

1283
As regards Sunday trading, that has been at consultation in Northern Ireland. The responses are being considered at the moment. My honourable friend will be bringing forward the results. However, a decision has been made in that there is a very strong groundswell in Northern Ireland against Sunday betting and there are no plans to proceed in that area at the moment. Should Sunday trading come forward, the protection of employees will be exactly the same as in Great Britain.
The noble Lord, Lord Williams, also asked whether we plan to proceed speedily with the employment appeal tribunal review. I disagree with the noble Lord. There are, I hope, still five months left in 1996—and 1997 seems a long enough period to give us time to look at the aspects which are being reviewed. This matter must be looked at in considerable depth because the aim was to have a simple and straightforward way in which people could examine such questions.
In addition, a report is due from SACHR on the operation of the fair employment legislation in Northern Ireland. We look forward to that. We imagine that the report will have ramifications for the fair employment tribunals which operate alongside the industrial tribunals. A lot of information is now coming towards us on which a decision can be made. I hope to give some comfort to the noble Lord when I say that we have not felt any great dissatisfaction with the current modus operandi.
I believe that we are all concerned about delays in relation to industrial tribunals. With a routine inquiry, the average length of time from registration of an industrial tribunal complaint to an offer of a first listing date for a hearing is between 15 and 20 weeks. I stress that that is the period for a straightforward matter and when it comes to sex discrimination and equal pay cases, the delay is somewhat longer. There is a backlog of 8,631 cases if one includes those categories with industrial tribunal cases. I hasten to assure your Lordships that that figure is inflated by the fact that about 80 per cent. are representative cases—that is, the outcome of several cases depends on the result of one. However, it is recognised that the industrial tribunal system is under pressure. That is why there is at present a review of industrial tribunals and that is why various steps are being considered to speed up the resolution of cases and to streamline procedures. It is intended that the present backlog of cases, which concerns us all, will be addressed as part of that review.
Legal aid is not available for legal representation at industrial tribunals. That is the same as the position in Great Britain. If the position in Great Britain were to be reviewed, we would take that into account in Northern Ireland. I stress again that the two orders that we are considering consolidate the present legislation.
The noble Lord, Lord Beaumont, referred to Article 6(3)(d) which again is a re-enactment. It is not a new provision. It is equivalent to Section 4 of the Industrial Tribunals Act, but that, too, will be considered in the review of industrial tribunals. I am sure that that will be the case here in Great Britain as well as in Northern Ireland. As the noble Lord rightly said, that is a matter of concern in both areas of legislation.
1284
These provisions do not deal with the right of employees to join a trades union. That is dealt with in the Trades Unions and Labour Relations (Northern Ireland) Order 1995. The numbers affected are therefore not relevant to this legislation.
With those answers, and saying that I shall read Hansard, I believe that I have covered all the questions that have been raised, and I commend the order to the House.
On Question, Motion agreed to.

Employment Rights (Northern Ireland) Order 1996
Baroness Denton of Wakefield: My Lords, I beg to move.
Moved, That the draft order laid before the House on 17th June be approved.—(Baroness Denton of Wakefield.)
On Question, Motion agreed to.
Lord Chesham: My Lords, I beg to move that the House do now adjourn during pleasure until 8.5 p.m.
Moved accordingly, and, on Question, Motion agreed to.
[The Sitting was suspended from 7.25 to 8.5 p.m.]

Asylum and Immigration Bill
Proceedings after Third Reading resumed.
Clause 2 [Removal etc. of asylum claimants to safe third countries]:
[Amendments Nos. 3 and 4 not moved.]
Clause 4 [Obtaining leave by deception]:
[Amendment No. 5 not moved.]
Clause 5 [Assisting asylum claimants. and persons seeking to obtain leave by deception]:
[Amendment No. 6 not moved.]
Clause 8 [Restrictions on employment]:
Lord Hylton Lord Hylton moved Amendment No. 7:
Page 6, line 16, leave out ("subsection (2)") and insert ("subsections (IA) and (2)").
The noble Lord said: My Lords, I beg to move Amendment No. 7 and to speak also to Amendment No. 8. The wrongs and injustices which these amendments address date back as far as 1981, when the Government allowed rich employers coming to the United Kingdom to bring with them domestic workers. These workers were tied to one employer and risked deportation if they left that employer for whatever reason. This system led to abuse and exploitation, which continue at the rate of several hundred cases a year, as I mentioned at Report stage.
I give examples of actual and typical cases. A is a Nigerian brought here direct by Nigerian employers in January 1991. She escaped from them in December 1995. During all that time she received no salary, was

1285
continually slapped and beaten by the employers and locked in their house. On average she worked 17 hours per day without a day off. B is from India. She worked in Qatar. Her Qatarian employers brought her to this country in June 1995. She received no salary for three months before and three months after her arrival. She signed an unread contract in Qatar which the employer removed from her as soon as he left the British Embassy. She had no day off or time off and worked from 5.30 a.m. until 1 or 2 a.m. the following day. C is from the Philippines. She was interviewed in London by a voluntary organisation on 1st May. She worked in London for four years without receiving any salary. Her visa expired in April 1996 but her employers did not renew it. She suffered rape five times while on her employer's premises.
The figures that I gave in Committee on 2nd May (at cols. 1795 and 1801) and the cases that I have quoted indicate that the Government's safeguards of interviews in the country of departure, leaflets and model contracts do not provide effective protection. In practice, employers make a mockery of them. I explained this to the noble Baroness Lady Blatch at Report stage on 24th June (at col. 748). All she could say in reply was that the workers were part of the family staff. Unfortunately, that does not always protect them from grave abuses, often amounting to slavery.
The noble Baroness was kind enough to say to me on 2nd May that the Government would continue to consider ways of eliminating and dealing with abuses. Two months have now passed. What is the result of that consideration? How do Her Majesty's Government propose to eliminate these abuses? For example, have they studied the ways in which vulnerable immigrant workers are protected in the Netherlands, Canada and other countries?
On Report I made the modest suggestion of an interdepartmental committee to study the abuse and exploitation of which I am complaining. No fewer than eight noble Lords have supported me, and no one has attempted to justify the present situation which has lasted 15 weary years, punctuated by cases like that of Mrs. Swami and the Kuwaiti princesses. On 24th June the Minister told me that the Government saw no need for an interdepartmental committee. She assured me that the Home Office, the Foreign Office and the DfEE were in constant touch. If that is so, why has adequate protection for desperately vulnerable people not yet been provided?
I have come reluctantly to the conclusion that the Government do not want to do anything and that they hope the problem will just go away. I have suggested a means of achieving realistic solutions to serious problems. If the Government will not adopt the obvious means, I urge your Lordships to accept my amendments, even if they may be ill-drafted, as a measure to obtain improvements to what is a long-lasting and intolerable situation. I beg to move.
Earl Russell: My Lords, Clause 8 makes the problem of which the noble Lord, Lord Hylton, complains much worse than it was before. You cannot escape unless you
1286
can work. So if the Government are not going to withdraw Clause 8, all they can do is accept the amendment.
Baroness Blatch: My Lords, this is another amendment that we debated in Committee and on Report. As I said on those occasions, I understand the intentions behind the amendments. I have to say, and put on record yet again, that I utterly deplore any abuse or exploitation of domestic servants of the sort described.
However, I remain of the opinion that it would not be right to accept the amendments that the noble Lord has proposed. They would place the people concerned in a privileged position compared to all others subject to immigration control. They would not, however, rule out the possibility of the sort of abuse we have heard about by the original employer or indeed the new employer, even though the new employer would not be subject to any penalty as provided for in this Bill. The only thing from which they would be exempt is employing that person.
I have explained on previous occasions the measures we take to ensure that those who accompany their employers to this country do so of their own free will and only when proper maintenance and accommodation are available for them. We also take steps to ensure that those domestic servants who seek an extension of stay are protected. Extensions are granted only when we are satisfied that satisfactory arrangements continue. Servants also receive a further copy of the leaflet they received with their passport before entry—addressed to them personally—to remind them of their rights and of the protection given by the law in this country.
We keep these arrangements under close review in conjunction with other government departments. However, I do not think that the proposed amendments are the right way to improve upon them. I hope therefore that the noble Lord will not press the amendment.
The concession for domestic workers was introduced in 1980 when the Department of Employment ceased to issue work permits to unskilled workers. It was felt that such workers would be disadvantaged if unable to come to the United Kingdom with their employers and might lose their jobs and, as a result, the concession outside the rules was created. Such domestics are admitted only if they meet strict criteria and are not permitted to change employers or escape enforcement action, except in the most exceptional compassionate circumstances. We are talking about 12,000 entry clearances issued to overseas domestic workers every year. If the noble Lord is looking for a real answer, perhaps I may suggest that it is to abandon the concession. He is concerned about these young people who are domestic servants for their employers and who want to remain in their employ. The concession, by and large, works well for most of the young people.
The concession works well, but since it was introduced there have been several highly publicised cases of domestics being abused. I can give examples which may coincide with those given by the noble Lord. For example, there is Cindy Dindial, whose employers

1287
were sent to prison; Helen Samuels, whose employer suffered a similar, although less severe fate; and Essaki Muttu Gopal, who was convicted of the manslaughter of his employer following prolonged abuse. These types of serious cases are few and far between, but the operation of the concession is kept under close review to ensure that the existing employer/employee relationship stays on the right lines when they are in the United Kingdom.
Apart from giving abused domestic workers free access to the employment market, the amendment would place an additional responsibility on police officers, doctors and solicitors. They would be left in the invidious position of having to make subjective judgments on what constitutes substantial physical abuse or serious economic exploitation and to be satisfied that those arose from the employment. That would be invidious. I have said before, and I repeat, that they have the full protection of the law, as does any citizen of this land. The only answer to address the noble Lord's concern would be to abandon the scheme. I do not make the case for abandoning the scheme.
Lord Hylton: My Lords, before the Minister sits down, will she make it clear whether she is making an offer, on behalf of the Government, to abolish the concession?
Baroness Blatch: My Lords, no, I am certainly not doing that. We considered the concession carefully. We believe that it is right. Where young people have been continually in the employment of someone in a foreign country and but for the concession would be left without a job in their country and they are willingly working for their employer—when I spoke earlier, I made the point that these are young people who come of their own free will rather than lose their job—this is an important concession. We stand by it.
The amendment would give the young people for whom the noble Lord is concerned a licence to work for another employer. If we take this amendment with another amendment to which we shall come later, they could be employed in any other form of work in this country. That is a licence we do not give lightly to anyone. As I said, the numbers are rather large: 12,000 people have recently come under entry clearance. It would be a concession that I do not advocate from the Dispatch Box.
Lord Hylton: My Lords, we now know where we are. It is not sufficient for the Minister to say that she utterly deplores these practices. We are seeking from the Government some means of preventing such practices from happening—by spot checks, by many different means, I do not know.
As for saying that my amendments would place people in a privileged position, after what they have endured that is small recompense. As for repeating what has been said over and over again, that while they are here with the first employer they enjoy the protection of the law, that is a dead letter. It is just not enforceable. It is not available to the people who are suffering these abuses.
1288
As for extensions of stay, that may provide some opportunity to exercise legal rights, but I am much more interested in preventing abuses from ever happening. I should make it clear that when I moved Amendment No. 7, I spoke also to Amendment No. 8. I wish to take the opinion of the House.
8.19 p.m.
On Question, Whether the said amendment (No. 7) shall be agreed to?
Their Lordships divided: Contents, 90; Not-Contents, 76.

Division No. 3

CONTENTS

Addington, L.

Lockwood, B.

Archer of Sandwell, L.

Lovell-Davis, L.

Ashley of Stoke, L.

McCarthy, L.

Avebury, L.

McIntosh of Haringey, L.

Barnett, L.

Mackie of Benshie, L.

Beaumont of Whitley, L.

McNair, L.

Berkeley, L.

Mar and Kellie, E.

Bruce of Donington, L.

Mason of Barnsley, L.

Callaghan of Cardiff, L.

Merlyn-Rees, L.

Carmichael of Kelvingrove, L.

Methuen, L.

Cledwyn of Penrhos, L.

Milner of Leeds, L.

David, B.

Monkswell, L.

Dean of Beswick, L.

Morris of Castle Morris, L.

Dean of Thornton-le-Fylde, B.

Murray of Epping Forest, L.

Desai, L.

Nicol, B.

Donoughue, L.

Ogmore, L.

Dormand of Easington, L.

Plant of Highfield, L.

Dubs, L.

Ponsonby of Shulbrede, L.

Ewing of Kirkford, L.

Rea, L.

Falkender, B.

Richard, L.

Farrington of Ribbleton, B.

Robson of Kiddington, B.

Fisher of Rednal, B.

Rodgers of Quarry Bank, L.

Gallacher, L.

Russell, E. [Teller]

Geraint, L.

Sandwich, E.

Gladwin of Clee, L.

Seear, B.

Graham of Edmonton, L.

Sefton of Garston. L.

Gregson, L.

Sewel, L.

Grenfell, L.

Shepherd, L.

Grey, E.

Stoddart of Swindon, L.

Hamwee, B.

Strabolgi, L.

Harris of Greenwich, L.

Taverne, L.

Haskel, L.

Taylor of Blackburn, L.

Hayman, B.

Taylor of Gryfe, L.

Hilton of Eggardon, B.

Thomas of Walliswood, B.

Hollis of Heigham, B.

Thurso, V.

Howell, L.

Tordoff, L.

Howie of Troon, L.

Turner of Camden, B.

Hylton, L. [Teller]

Varley, L.

Irvine of Lairg, L.

Wallace of Saltaire, L.

Jay of Paddington, B.

White, B.

Jeger, B.

Williams of Crosby, B.

Jenkins of Hillhead, L.

Williams of Elvel, L.

Jenkins of Putney, L.

Williams of Mostyn, L.

Judd, L.

Winchilsea and Nottingham, E

Kennet, L.

Winston, L.

NOT-CONTENTS

Addison, V.

Blatch, B.

Ailsa, M.

Blyth, L.

Aldington, L.

Boardman, L.

Allenby of Megiddo, V.

Bridgeman, V.

Belhaven and Stenton, L.

Carnegy of Lour, B.

Biddulph, L.

Chalker of Wallasey, B.

Blaker, L.

Chesham, L. [Teller.]

1289

Clark of Kempston, L.

Mackay of Ardbrecknish, L.

Courtown, E.

Mackay of Drumadoon, L.

Cranborne, V. [Lord Privy Seal.]

Macpherson of Drumochter, L

Dean of Harptree, L.

Marlesford, L.

Denton of Wakefield, B.

Miller of Hendon, B.

Digby, L.

Monk Bretton, L.

Dilhorne, V.

Mountevans, L.

Dixon-Smith, L.

Napier and Ettrick, L.

Downshire, M.

Northesk, E.

Dudley, B.

O'Cathain, B.

Elton, L.

Oppenheim-Barnes, B.

Feldman, L.

Peel, E.

Gardner of Parkes, B.

Pilkington of Oxenford, L.

Gibson-Watt, L.

Rankeillour, L.

Goschen, V.

Rawlings, B.

Gray of Contin, L.

Renton, L.

Harlech, L.

Renwick, L.

Harmsworth, L.

Rodney, L.

Harris of Peckham, L.

Sharples, B.

Henley, L.

Shaw of Northstead, L.

Hertford, M.

Skelmersdale, L.

Hesketh, L.

Strange, B.

HolmPatrick, L.

Strathclyde, L. [Teller.]

Howe, E.

Tebbit, L.

Inglewood, L.

Teviot, L.

Kimball, L.

Thomas of Gwydir, L.

Lane of Horsell, L.

Trumpington, B.

Leigh, L.

Wade of Chorlton, L.

Lindsay, E.

Wakeham, L.

Lucas, L.

Wise, L.

McColl of Dulwich, L.

Wynford, L.

Resolved in the affirmative, and amendment agreed to accordingly.
8.27 p.m.
Lord Hylton Lord Hylton moved Amendment No. 8:
Page 6, line 24, at end insert—
("(1A) Nothing in this section applies to an employee who was employed as a domestic worker and in respect of whom a police officer, doctor or solicitor has certified that he has previously suffered substantial physical abuse or deprivation, or serious economic exploitation, arising from previous bonded employment.").
The noble Lord said: My Lords, I beg to move.
On Question, amendment agreed to.
[Amendment No. 9 not moved.]
Earl Russell Earl Russell moved Amendment No. 10:
Page 7, line 13, at end insert—
("( ) Any employer who invokes this section in order to refuse employment to a person protected by subsection (2) shall be guilty of an offence, and shall be liable on summary conviction to a fine not exceeding level 3 on the standard scale.
( ) Any employer who invokes this section in order to refuse employment to a British subject shall be guilty of an offence, and shall be liable on summary conviction to a fine not exceeding level 5 on the standard scale.").
The noble Earl said: My Lords, Amendment No. 10 deals with the effects of Clause 8. Throughout we have argued that it will be a severe deterrent to employing people, especially black British people. If there is a threat put on employers one way, which I do not welcome, there must equally be a threat the other way; otherwise it will produce all the types of case I have already outlined of failure to employ black British and a worsening of race relations. I beg to move.
8.30 p.m.
Baroness Blatch: My Lords, perhaps I may say at the outset that I have an enormous respect for the noble Earl and I suspect that noble Lords opposite will support him on this amendment. However, I wish that noble Lords opposite had been as much against racketeering in the United Kingdom as they appear to be against racketeering abroad. I have spent a great deal of time at the Dispatch Box trying to persuade noble Lords to support us in our attempts to take measures against racketeering in this country.
These amendments before the House create new criminal offences in Clause 8 which seek to take extra-territorial jurisdiction.
Lord McIntosh of Haringey: My Lords, the Minister must not make assumptions about what Members of the Opposition think. We have not spoken on the amendment and I did not propose to do so. She must make no assumptions about our attitude.
Baroness Blatch: My Lords, perhaps I may be forgiven for making those assumptions because at previous stages of the Bill the noble Lord has shown some sympathy for measures which provide extra-territorial jurisdiction. This is not the first time that this matter has been before the House.
As I say, I should have more respect for the amendments had the noble Earl supported the Government in their attempts to deal with racketeering. Frankly, racketeering, wherever it takes place, is something up with which we should not put.
Earl Russell: My Lords, I have pressed the Government hard for proper financing of the Serious Fraud Office and I have not got it.
Baroness Blatch: My Lords, we have put two very practical measures in the Bill designed to do something about those who exploit the most vulnerable people in this country. We could not look to the noble Earl for support of that nor could we look to other noble Lords opposite for their support. Therefore, I find the amendment before the House very strange indeed.
The amendment would create two further criminal offences within Clause 8. It would become an offence: to invoke Clause 8 in order to refuse to employ a person "protected by subsection (2)"; and to invoke Clause 8 in order to refuse to employ a British subject.
The intention behind the amendment, as I understand it, is to deal with the concerns outlined by the noble Earl during Report stage—not today because he seems to be in something of a hurry—about cases where employers have, in recent years, misunderstood the entitlement to work of a range of people who were in fact entitled to work in the United Kingdom.
I certainly do not want to deny that mistakes have been made by employers in assessing eligibility to work. However, I do think it is misleading to suggest that those errors imply that employers will not be able to carry out the checks which they may wish to make as a result of the provisions of Clause 8.

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At the moment there is inevitably some confusion. However, common sense suggests that the position will be very different once Clause 8 is enacted. It will be a straightforward matter for all employers to make any necessary checks of documents in the future because the Government will be providing employers with written guidance and a helpline facility, neither of which exists at present. The sorts of misunderstandings about eligibility to work which sometimes occur at the moment without such advice should not be taken to mean that employers will not be able to understand passport endorsements, where this is necessary, when clear guidance is available to them.
I find it difficult to envisage that employers will in the future refuse jobs to people who have provided them with one of the specified documents because of Clause 8. Clause 8 will provide a reason for asking for some documentation from all potential employees. And failure to provide any of the specified documents will provide a reasonable justification for refusing to take on a potential employee. But, when relevant documentation has been produced, there is no reason to refuse employment because of Clause 8. The guidance and helpline facility should guarantee this.
Even those who are British need to be prepared to produce one of the specified documents to back up their claim to be able to work. A documented National Insurance number, a British passport, a British birth certificate or a certificate of registration or naturalisation would all be satisfactory documents to establish that no offence would be committed in relation to the holder of the document concerned. It would be entirely unreasonable to render employers liable to a criminal offence if they are not prepared to offer employment to British people who do not produce one of the specified documents and who cite Clause 8 as the reason. Noble Lords opposite profess to be concerned about employers. In view of that, I find these amendments quite outrageous.
Lord McIntosh of Haringey: My Lords, I must repeat what I said and ask the Minister to address her remarks to the mover of the amendment and not the official Opposition.
Baroness Blatch: My Lords, I am sorry that the noble Lord is so touchy about these things. I base my assumptions on what he has said on Second Reading, in Committee, on Report and now at Third Reading. I should indeed welcome it if the noble Lord had a change of heart. Perhaps he will make that clear to the House.
If an assertion of nationality is not backed up by a specified document, how could it be reasonable to make an employer liable? Employers would have to take assertions of nationality at face value if that was the case.
The amendment tabled by the noble Earl refers to British subjects rather than British citizens. I assume that his intention was to refer to British citizens. For while there are still some people with the status of
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British subject, many of them are not in fact entitled to live and work in the United Kingdom. Perhaps the noble Earl will make that clear.
Earl Russell: My Lords, I had intended to refer to those who are British subjects and British citizens. But the words "British subject" have a long and honourable history and I am not ashamed to use them.
Baroness Blatch: My Lords, but the amendment does not say that. I must take the amendment at face value. The amendment refers to "British subjects".
I appreciate that the noble Earl is concerned that people from the ethnic minority communities will be unduly affected by Clause 8. As I have made clear before, employers will need to treat all new employees in the same way. I have made equally clear that this legislation is positively not a licence to discriminate. Employers will need to check all new employees—if they choose to check any—if they are to comply with the Race Relations Act.
We do not think that there will be the sort of problems which the noble Earl clearly envisages based on cases which have been brought to his notice. When employers have guidance about Clause 8 we believe that they will be able to implement it fairly and without undue difficulty. The proposed new offences are not necessary and would not be helpful—and their drafting is defective.
I repeat once more that there is an inconsistency because noble Lords wish to use the very same type of measure to make racketeering an offence abroad but refuse doggedly to make it an offence in this country. That is an inconsistency that this House should not accept.
Earl Russell: My Lords, the noble Baroness really must try to avoid imputing to people on the other side of the House agreement with opinions which she happens to hold.
She imputes to us opinions which she has asserted. She assumes that our motives would be what they would be were we to agree with her opinions. I must explain this to the noble Baroness because it is important that she should get it right. She says that she has brought forward in this Bill two practical measures to deal with racketeering. She therefore thinks that we support racketeers because we do not support her measures. Were we to believe that she had put forward practical measures to deal with racketeers, of course we would support her. We believe that the noble Baroness has done no such thing.
We believe that the noble Baroness has introduced measures which will enormously increase racial discrimination and which will catch only the honest men while being evaded by the racketeers. The noble Baroness must have read the report by the Glidewell panel that national insurance cards are on sale for £500 each in Southall. Racketeers will have no difficulty with this clause.

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In general the noble Baroness must avoid making that mistake. She must assume that we have the motives which are appropriate to people holding our opinions and not to people holding hers. To do otherwise is the mistake of a bad politician.
Lord Elton: My Lords, I have become increasingly fascinated by this debate as it has developed. If the noble Earl is tempted to take the opinion of the House, he owes to the rest of us an explanation of what seems to me to be a very confusing procedure and how it will work. The debate should then be widened from one between himself and my noble friend on the Front Bench.
Earl Russell: My Lords, that is a fair request to which I shall accede.
On these Benches, we think that this procedure is mistaken but that, if it is mistaken, it must be even-handed. We believe that the proposal imposes a mistaken pressure on employers which encourages them to do something which in our view is illegal and should not be done. I accept that that is not the noble Baroness's view and we do not impute that intention to her. But we believe that the clause puts a great deal of pressure on employers not to employ black British. We do not share the Minister's confidence in the ability of employers to recognise such provisions as exceptional leave to remain. Indeed, there is ample evidence to the contrary.
If I may so put it, if you have to play on a pitch which is unfit for play, we believe that that pitch should be the same for both sides. The pressure on employers not to employ black people—and that is what the clause amounts to—should be equalled by a pressure on them to employ black British people against whom they are not allowed to discriminate by law. We do not think that the scales should exist; but, if they do, we believe they should be equal. I hope that the noble Lord finds that that explanation makes sense, whether or not it is acceptable. If he does not, I should be grateful if he would intervene again because I would like us to understand each other.
Lord Elton: My Lords, my difficulty is that, as I understand it, the noble Earl's speech is about protecting employees, whereas the effect of the amendment would be to protect those who are protected by subsection (2) of the clause which, as I read it, means employers not employees.
Earl Russell: My Lords, such a point necessitates a referral to my papers. I trust that the House will forgive
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me while I do so. I must admit that we on these Benches have always said that the time-scale within which this was being done was extremely short. Inevitably, our attention has been concentrated most heavily on the Government's amendment that we have been discussing.
Yes, on looking again at the clause, I now see what I have done. I thought that subsection (2) said that employers were protected in employing people who had those documents. My object was to deal with employers who refused to employ people who produced some of the legal documents. I believe that that is an exceptional intention but I accept that the amendment is defective.
However, employers have constantly refused to employ people who produced legal qualifying documents. Indeed, on Report I gave an example of a case, to which the Minister responded, where someone produced a German passport. Refusal of exceptional leave to remain is perfectly common. I tried to produce a draft amendment in order to prevent employers from refusing to accept perfectly good qualifying documents. I grant that I have done so in a hurry. As I said, I believe that the drafting is defective. I give way to the noble Baroness.
Baroness Blatch: My Lords, I am much obliged. I believe that there is also some confusion about the way in which the noble Earl introduced the amendment. As I understand it—and the noble Earl can correct me if I am wrong—he is suggesting making a criminal of an employer who does not recruit to his company a person who does in fact produce the requisite documentation. Under the Bill, which the noble Earl has criticised so vigorously throughout—as, indeed, have other noble Lords opposite—we do not even make a criminal of an employer who secures one of the authorised documents, even if that document subsequently turns out not to be in order. We would regard such an offence to be that of the person who submitted and proffered the documentation. Am I right in my understanding of the noble Earl's amendment?
Earl Russell: Yes, my Lords; I believe that we are getting closer to an understanding now. There is a problem with employers declaring people ineligible who have produced perfectly good qualifying documents, but clearly I am not addressing that in the right way. In the circumstances, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The Earl of Courtown: My Lords, I beg to move that proceedings after Third Reading be now adjourned.
Moved accordingly, and, on Question, Motion agreed to.
House adjourned at a quarter before nine o'clock.