Asylum and Immigration Bill

HL Deb 01 July 1996 vol 573 cc1217-68

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) 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 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 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 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—

1. (a) income support, housing benefit and council tax benefit under the Social Security Contributions and Benefits Act 1992;
2. (b) income support and housing benefit under the Social Security Contributions and Benefits (Northern Ireland) Act 1992; and
3. (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—

1. (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
2. (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—

1. (a) Part I of which modifies the Social Security (Persons from Abroad) Miscellaneous Amendments Regulations 1996; and
2. (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"—

1. (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;
2. (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;
3. (c) in relation to jobseeker's allowance under the Jobseekers Act 1995, means regulations under that Act or the Social Security Administration Act 1992;
1221
4. (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 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 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 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". 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 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 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 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. 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 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.

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 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.

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 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 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 £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 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.

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.

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 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 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 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 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 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 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 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 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 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 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.

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 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 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 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 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 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 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.

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.

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.

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.

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.

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 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 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—

1. (a) "the 1996 Regulations" means the Social Security (Persons from Abroad) Miscellaneous Amendments Regulations 1996; and
2. (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)—

1. (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
2. (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)—

1. (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);
2. (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
3. (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. Council tax benefit 4. In regulation 3 of the 1996 Regulations (amendment of regulation 4A of the Council Tax Benefit Regulations)—

1. (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);
2. (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
3. (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—

1. (a) shall not be entitled to the benefit for any period beginning on or after the day on which this Act is passed; and
2. (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—

1. (a) by virtue of regulation 12(1) of the 1996 Regulations (saving); or
2. (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)—

1. (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
2. (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)—

1. (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);
2. (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
3. (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—

1. (a) shall not be entitled to the benefit for any period beginning on or after the day on which this Act is passed; and
2. (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—

1. (a) by virtue of regulation 11(1) of the 1996 Regulations (saving); or
2. (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.