Asylum and Immigration Bill

HL Deb 02 July 1996 vol 573 cc1306-79

3.6 p.m.

Proceedings after Third Reading resumed.

Clause 9 [Entitlement to housing accommodation and assistance]:

The Chairman of Committees (Lord Boston of Faversham)

My Lords, I should inform the House that if Amendment No. 1 is agreed to, I cannot call Amendment No. 2.

Earl Russell moved Amendment No. 1: Page 7, line 14, leave out subsection (1).

The noble Earl said: My Lords, Amendment No. 1 seeks to leave out subsection (1) from Clause 9. The effect of that subsection, as amended by the Government yesterday, is to provide that anyone in the UK who is subject to immigration control shall not be eligible for any local authority tenancy. We deal here with local authority tenancies, not with the more general homelessness responsibilities on which the House has already voted.

A person is not allowed local authority housing unless he is of a class specified by the Secretary of State. The Secretary of State has not yet specified any classes. We do not know when the Secretary of State will specify any classes or, indeed, whether he is going to do so. Therefore, it becomes vital to ask what the commencement date of the clause will be. If it has a commencement date before the statutory instrument is published, we shall have a much wider restriction than the House at earlier stages of the Bill believed to be the case. If the provision does not come into effect until after the publication of the statutory instrument specifying which classes the Secretary of State intends to exclude, the Bill will come near to leap-frogging the Housing Bill, which repeals this clause altogether and is about to begin its Report stage in your Lordships' House.

It is rather unusual to have a clause in a Bill repealed by another Bill that is already progressing through the second House. I believe the reason for that was to provide help as regards the anomalous situation in which local authorities find themselves, created by the rather unplanned nature of the Government's timing. By stopping housing benefit without stopping local authority obligations to house, the Government place a considerable and unforeseen financial burden on local authorities. That is not a particularly well-planned piece of legislative timing.

There have been negotiations between the Government and local authority associations for government help to local authorities, but that appears to have been going wrong. I wish to ask the Minister, first, whether any progress has been made on those negotiations and, secondly, whether any local authority has yet received one penny under those arrangements. Of course, the burden of handling asylum seekers who are homeless falls particularly on a very limited number of London local authorities and the burden on them is very severe.

In this Chamber I have referred already to a letter which I have received from the Director of Housing and Social Services for the London Borough of Sutton. He tells me that the 5 per cent. threshold which local authority spending must cross before it becomes eligible for any help is 5 per cent. of the total standard spending assessment for social services as a whole. That is not a fence; it is a Himalaya which no local authority can jump.

He tells me also that help under the Children Act is not being allowed to be extended to the families in order to keep them together. In other words, it will lead to children being taken into care, which will of course immensely multiply the cost to taxpayers, of whom I remind the Minister I am one.

Also, when families break up, as they sadly do under stress, the obligation to help is extended to only the one member of the family who has made the claim. That falls particularly severely on women who have been victims of domestic violence who leave their violent partners and find that they are deprived of any help whatever. Those are the technical points.

But the issues in this clause go a great deal wider than that. Under Article 21 of the UN convention on refugees it is provided that, as regards housing, the contracting states shall accord to refugees lawfully staying in their territory treatment as favourable as possible and, in any event, not less favourable than that accorded to aliens generally in the same circumstances. I cannot see how the Government's action can in any way be brought within the scope of that article. In passing, I must once again remind the House that that convention is incorporated by Section 2 of the Asylum and Immigration Appeals Act 1993 so that that is something of which British law may take notice.

I believe that this is yet another case in which the Government are in breach of their international obligations. It is also another instance in which we have a recent Court of Appeal judgment. That Court of Appeal judgment would be plainly repealed by the passage of this clause. Therefore, the first legal point which arises is that it seems that local authorities anticipated the commencement of this Act.

This is becoming a sadly familiar story. I believe that it is part of the increasing ignorance of parliamentary form which is sadly common in the country as a whole. Will the Government issue guidance to make it plain that Acts of Parliament do not come into force until they have had three Readings in both Houses and have received Royal Assent? I hope that that is at least one matter on which we all agree.

Again in relation to the case heard in the Court of Appeal on 25th June, the issue was in effect one of destitution. The Department of the Environment commenting on the case in the Guardian misled the Guardian reporter, no doubt inadvertently. The Department of the Environment complained that financial need by itself had been found to be a criterion of vulnerability. It has not. Lord Justice Neill spelt that out in words of one syllable. At page 22 of the judgment—and this is the one judge in the other case who judged with the Government—he said: I can take the circumstances of Miss Araya as an example. She has no capital. She has no income. She is prohibited from obtaining employment and therefore has no opportunity of earning any money. She has no family or friends in this country … she has no knowledge of the English language. Apart from any emergency accommodation which has been made available to her, she is homeless".

Therefore, the priority need consists not merely of a lack of money but of a combination of a lack of money with the sheer impossibility of rectifying that situation. If that is not priority need, I do not know what is.

That situation has been putting a great burden on innumerable voluntary organisations of many kinds which have been struggling to cope with the chaos that has been created. In that context, I must join with what my noble friend Lady Williams of Crosby said yesterday about how much we owe to the role of the churches. They have been taking in people in church halls and keeping them out of the rain and frost when perhaps otherwise they would have died. It is a matter of profound gratitude that the Church has not passed by on the other side.

But the overcrowding has been gross. There have been cases of five people having to share one blanket. The churches need their halls, especially at weekends. We cannot expect the churches to do without them for ever. Families and communities again have been trying to take their share of the burden. In one case, a Sudanese women gave refuge to 20 people in her small flat. You cannot go on with that for ever.

I can think of no category of people to whom I have less sense of obligation than I have to convicted terrorists. But we would not treat convicted terrorists like that. We feed them and give them shelter. I do not think that any noble Lord would propose to change that.

I do not see how we can continue to treat people in that way. I believe that it is something that no civilised country should tolerate. Even if the claimants were bogus, no civilised country should tolerate that treatment; but many of them are not bogus. What must they think of this country? I beg to move.

3.15 p.m.

The Minister of State, Department of Social Security (Lord Mackay of Ardbrecknish)

My Lords, I certainly had a feeling of déjà vu when I saw this amendment on the Marshalled List because it has been considered already in Committee and on Report. I do not have a great deal that is new to say although I congratulate the noble Earl on finding something new to say by the simple expedient of not actually speaking directly to the amendment. The amendment removes a subsection of the clause which says that long-term council housing will not be available for asylum seekers, but the noble Earl strayed into the rest of the clause and discussed points on homelessness. However, in a spirit of good humour and good relations, I shall attempt to answer the points which he raised, but I shall not do so at great length because I should then be going very wide of the amendment.

As regards the amendment itself, social housing, council housing and so on is a very valuable asset. As I have told your Lordships before, when people acquire the tenancy of a council house, they gain housing for life. They can stay in it for as long as they wish and they acquire succession rights whereby they can pass on the tenancy to a close relative. They obtain certain rights of assignment. They can exchange that property for a property acquired by another tenant elsewhere and, of course, they acquire the right to buy.

We are concerned that such housing should go to those with a clearly establishe long-term need—people who have the right to remain indefinitely in this country. Those are the groups of people to whom we propose to give entitlement under the homelessness legislation. Perhaps I may remind your Lordships that those are the classes of persons who will be eligible to be considered on the housing list along with all the other British citizens.

Such groups will be refugees; in other words, those who have been granted refugee status. I should point out to the House that seven out of 100 applicants for asylum actually fall into that category. Persons granted exceptional leave to remain will also be in those groups and, similarly, the figure in that respect is 16 out of every 100. Finally, the other group of persons, quite aside from asylum seekers, are those with indefinite leave to remain. Under the Immigration Rules, those people will actually be allowed to apply for and obtain long-term council housing.

I am sure that all noble Lords are in complete agreement that those people ought to be treated in the way that I have just suggested. However, the question remains: should people whose needs are at present quite clearly only temporary be given access to long-term social housing? I do not believe that they should until their claim has been established. I should remind your Lordships that only a tiny minority of such claims are established. I do not believe that they should be given access to council housing, which is what the noble Earl's amendment would do. It would give people whose right to be here is still very much in question that entitlement. Indeed, if one looks at the statistics, one certainly sees that the majority will eventually be found to have no right to be here. The noble Earl's amendment would give all those people the right to join the list for long-term housing.

We do not believe that housing created with taxpayers' money ought to be used in that way. There are plenty of people, especially in those areas of the country where asylum seekers turn up in large numbers, who are looking for long-term social housing—British citizens and indeed the other categories of immigrants that I have mentioned. Therefore, we believe that social housing ought to be kept for those groups of people; namely, British citizens and the immigrants who have been recognised as refugees or given exceptional leave to remain. That is my defence for the subsection. The noble Earl seeks to strike it out of the legislation but, to be honest, he did not really argue on that basis. He talked about other parts of the clause which deal with homelessness.

I turn now the noble Earl's questions. He said that he did not know when the Secretary of State would specify the classes of people. I should point out to the noble Earl that we shall certainly not commence the provisions in the clause until the order is in place, which will be about three weeks later. The Bill will not leap-frog the Housing Bill, which will not be commenced until well into the autumn; whereas, as long as Parliament is willing and the other place does whatever it has to do as regards the amendments which your Lordships have proposed to the Bill, we hope to put the legislation now before the House into effect as soon as possible. As I said, there will be no leap-frogging.

As far as concerns negotiations with local authorities, with the Court of Appeal decision there is no need for grant on homelessness costs because, as I indicated previously, those people who were denied benefit from February, and those who did not apply but can show that they would have done so if the rules had not been changed by this House and the other place, will be eligible for housing benefit again. Therefore, the question of homelessness costs would not arise. However, we still intend to pay grant in respect of costs under the Children Act. We shall be laying a special grant report about that in the autumn.

I turn now to the matter of the threshold. I believe that I have answered the question before. Such thresholds are normal in many grant regimes. Indeed, this grant follows many of the principles of the Bellwin formula grant regime. It seems to me that it is only right and proper for there to be some incentive for local authorities to be prudent with public money. If they received a 100 per cent. grant, there would be no real incentive for them to be careful with public money. Therefore, we believe that it is important to have thresholds in this respect, as we do with many other grants.

As regards the duty to take children into care, I should point out to the House that there is no duty as such. However, a local authority has the option of supporting a whole family in a house. It is within the local authority's discretion to do so, if it feels that that is the best way to honour its obligations under the Children Act.

There is also the question of local authorities not knowing how Parliament works. Perhaps professors of history—dare I say it?—should spend a little more time with their students trying to explain to them how Parliament works so that those who eventually become journalists, for example, will at least have a working knowledge of it and will therefore be able to inform the public. I do not believe that local authorities anticipating parliamentary decisions is an issue that falls under housing allocation. The Department of the Environment is currently considering whether the definition of "priority need" should be reviewed in the light of the second Appeal Court decision. I refer to the decision made last week rather than the one of Friday 21st June. However, I do not wish to say anything further in that respect because I understand that the authorities are still considering whether to appeal to the Appellate Committee of your Lordships' House.

I return now to the amendment before us. I believe that I have made my case on a number of occasions. Long-term social housing should go to people with a long-term and established right to remain in this country. With that explanation, and bearing in mind that I have answered some of his questions which do not actually relate to the amendment, I hope that the noble Earl will feel able to withdraw his amendment.

Earl Russell

My Lords, I thank the Minister for his reply. I am sorry that he has a sense of déjà vu: so do we. I believe that the Minister failed to appreciate one of the logical links in my argument which I did not spell out because I thought that it would be generally understood. When I see large numbers of people who are homeless, I see only one effective route out of that situation; but I see that route being blocked up. I want to open the block. That is why evidence of homelessness is relevant to need for local authority housing. I do not see the logical flaw in that. I grant that the purpose of the amendment has been debated before, but it has not been debated in the light of the present state of the Bill, which has become a great deal tighter as a result of amendments passed yesterday.

As for local authority housing going to asylum seekers, as I understand it, their chances in that respect are a great deal less than their chances of obtaining asylum status. In his comparison, the Minister was trying to draw too firm a series of absolute antitheses. Any ordinary person obtaining local authority housing may lose his job, get on his bike, as proposed by the noble Lord, Lord Tebbit, and go to look for work at the other end of the country. That has happened and people have occasionally had to do so. That person may move in consequence of a bereavement or a family tragedy. One must not assume that people always stay in the same place. The permanence is a lot less absolute than has been suggested by the Minister.

I do not see why the Minister is quite so worried about housing being given to people who might not be allowed to remain in this country. I say that because, if their claim is finally found after appeal to be without foundation, the Government have the right to deport them. The Minister sounded as if he were telling me that the Government are incapable of exercising that right efficiently. That may be a misapprehension; but, in that case, it is a misapprehension that the Minister risked creating.

There is also the question of priorities. The Minister makes a point which I hear. But I make a point about gross physical hardship, both to asylum seekers and to those who are helping to support them, which I believe to have priority. I cannot see why the Minister does not recognise my point. The Minister is unwise to invoke the Bellwin scheme. When I first arrived in this House, I was enlisted by people from my local authority to help obtain assistance under that scheme for storm damage caused in the great gales of 1987. It was practically impossible to find any damage severe enough to come under the Bellwin scheme.

As this is the last time that we can argue the point, and as I seem to have entirely failed to persuade the Minister by any other means, I must test the opinion of the House.

3.29 p.m.

On Question, Whether the said amendment (No. 1) shall be agreed to?

Their Lordships divided: Contents, 82; Not-Contents, 159.

Division No. 1
CONTENTS
Addington, L.	Lockwood, B.
Archer of Sandwell, L.	Longford, E.
Avebury, L.	McCarthy, L.
Beaumont of Whitley, L.	McIntosh of Haringey, L.
Berkeley, L.	Mackie of Benshie, L.
Blackstone, B.	McNair, L.
Bruce of Donington, L.	McNally, L.
Carlisle, E.	Mar.C.
Carmichael of Kelvingrove, L.	Mason of Bamsley, L.
Carter, L.	Mayhew, L.
Castle of Blackburn, B.	Merlyn-Rees, L.
Clancarty, E.	Melhuen. L.
Cledwyn of Penrhos, L.	Milner of Leeds, L.
Clinton-Davis, L.	Monkswell, L.
Cocks of Hartcliffe, L.	Morris of Castle Morris, L.
Dean of Beswick, L.	Newcastle, Bp.
Donaldson of Kingsbridge, L.	Nicol, B.
Donoughue, L.	Plant of Highfield.L.
Dormand of Easington, L.	Prys-Davies, L.
Dubs, L.	Rea,L.
Ewing of Kirkford, L.	Redesdale, L.
Ezra,L.	Richard, L.
Gallacher, L.	Robson of Kiddington, B.
Gladwin of Clee, L. [Teller.]	Rodgers of Quarry Bank, L
Glenamara, L.	Russell, E. [Teller.]
Graham of Edmonton, L.	Sainsbury, L.
Grenfell, L.	Sandwich, E.
Grey.E.	Scanlon, L.
Habgood, L.	Sefton of Garston. L.
Harris of Greenwich, L.	Serota, B.
Hayman, B.	Sewel, L.
Hollis of Heigham,B.	Shepherd, L.
Hooson, L.	Stallard, L.
Howell, L.	Strabolgi, L.
Howie of Troon, L.	Taylor of Blackburn, L.
Jay of Paddington, B.	Taylor of Gryfe, L.
Jenkins of Hillhead, L.	Tordoff, L.
Jenkins of Putney, L.	Turner of Camden, B.
Judd, L.	Varley, L.
Kennet, L.	Williams of Crosby, B.
Kirkhill, L.	Williams of Elvel, L.

NOT-CONTENTS
Addison. V.	Harmar-Nicholls, L.
Ailesbury, M.	Henley, L.
Aldington, L.	Hertford, M,
Alexander of Tunis, E.	HolmPatrick, L.
Allen of Abbeydale, L.	Hothfield, L.
Ashboume, L.	Howe, E.
Astor of Hever, L.	Hylton-Foster, B.
Attlee, E.	Ilchester, E.
Balfour. E.	Inglewood, L.
Belhaven and Stenton, L.	Ironside, L.
Birdwood, L.	Johnston of Rockport, L.
Blaker. L.	Kimball, L.
Blatch. B.	Kintore,E.
Boardman, L.	Knollys, V.
Boyd-Carpenter, L.	Lane of Horsell, L.
Bradford. E.	Lauderdale, E.
Brentford, V.	Lindsay, E.
Bridgeman, V.	Liverpool, E.
Bridges. L.	Lucas, L.
Brougham and Vaux, L.	McConnell.L.
Broughshane, L.	Mackay of Ardbrecknish, L.
Bruntisfield, L.	Mackay of Clashfem, L. [Lord Chancellor.]
Butterworth. L.
Cadman, L.	Mackay of Drumadoon, L.
Caldecote, V.	Macleod of Borve, B.
Campbell of Alloway, L.	Macpherson of Drumochter, L
Campbell of Croy, L.	Manton, L.
Carnarvon, E.	Marlesford, L.
Camcgy of Lour, B.	Merrivale, L.
Carrington, L.	Mersey, V.
Cayzer. L.	Middleton, L.
Chalker of Wallasey,B.	Miller of Hendon, B.
Chelmsford, V.	Milverton. L.
Chesham, L. [Teller.]	Monckton of Brenchley, V.
Chorlcy, L.	Montagu of Beaulieu, L.
Clanwilliam, E.	Montgomery of Alamein, V.
Clark of Kempston. L.	Mottistone, L.
Coleraine, L.	Mountevans, L.
Constantine of Stanmore, L.	Mowbray and Stourton, L.
Courtown. E.	Moyne, L.
Cranborne, V. [Lord Privy Seal.]	Munster, E.
Crathome, L.	Napier and Ettrick, L.
Crickhowell. L.	O'Cathain, B.
Cromer, E.	Palmer. L.
Cuckney, L.	Park of Monmouth, B.
Cullen of Ashbourne, L.	Pender, L.
Cumberlege, B.	Peyton of Yeovil, L.
Davidson, V.	Pilkington of Oxenford, L.
Dean of Harptree, L.	Plummer of St. Marylebone, L.
Denham. L.	Rawlings. B.
Demton of Wakefield, B.	Rees, L.
Dixon-Smith, L.	Renfrew of Kaimsthorn, L.
Donaldson of Lymington, L.	Renton, L.
Downshire. M.	Renwick, L.
Eden of Winton, L.	Rodney, L.
Ellenborough, L.	St. Davids, V.
Elliott of Morpeth.L.	Saint Oswald, L.
Elton, L.	Saltoun of Abemethy, Ly.
Ferrers. E.	Seccombe, B.
Finsberg. L.	Sharples, B.
Flather,.	Shaughnessy, L.
Forbes. L.	Shaw of Northstead, L.
Fraser of Carmyllie, L.	Skelmersdale, L.
Gainford, L.	Slim, V.
Gardner of Parkes, B.	Strafford, E.
Geddes. L.	Strange. B.
Gibson-Watt, L.	Strathclyde L.
Gilmour of Craigmillar, L.	Sudeley. L.
Glentoran, L.	Swinfen, L.
Goschen, V.	Swinton, E.
Gray of Contin, L.	Tebbit, L.
Grimston of Westbury, L.	Terrington, L.
Hailsham of Saint Marylebone, L.	Teynham, L.
Halsbury, E.	Thomas of Gwydir, L.
Harding of Petherton, L.	Tonypandy, V.

Trumpington, B. [Teller.]	Weatherill, L.
Ullswater, V.	Wharton, B.
Vivian, L.	Wyatt of Weeford, L.
Wade of Chorlton,L.	Wynford, L.
Walton of Detchant, L.	Young, B.

Resolved in the negative, and amendment disagreed to accordingly.

3.39 p.m.

[Amendments Nos. 2 to 4 not moved.]

Earl Russell moved Amendment No. 5: Page 7, line 31, at end insert— ("( ) Nothing in this section shall apply to any person who has applied to a housing authority as a homeless person either—

1. (a) before the date of commencement of an order made under this section; or
2. (b) before becoming an immigrant of a class specified by the Secretary of State by an order made under this section.").

The noble Earl said: My Lords, Amendment No. 5 concerns the issue of retroactivity. It is, I think, common ground that this House does not like retroactive legislation. It passes it in extreme circumstances but the case for retroactivity on each occasion has to be made out with considerable care. The point of the amendment is to deal with people who had already claimed asylum before the legislation came into effect; or, at the material time of commencement were not immigrants of a class specified by the Secretary of State.

We cannot spell out what that means until we have some idea what classes the Secretary of State will specify. However, I understand that the vires will allow the Secretary of State to specify any classes he might choose. Therefore, in both those cases we think that people should not be affected by the clause unless they came into the country and claimed asylum after the commencement of the Act.

We have had an argument about the deterrent effect of the withdrawal of benefits and housing assistance. The Minister advanced the argument again yesterday. However, if deterrence is to have any logical meaning, it can apply only to deter acts committed after the commencement of the legislation; otherwise it is a complete nonsense. I hope to hear a reassuring answer. I beg to move.

Lord Campbell of Alloway

My Lords, this surely is not retrospective legislation as ordinarily understood. Clause 9(1) does not confer any right to a priority for long-term housing. It confers merely a facility. That facility does not square with the amendment. The amendment does not bite on a facility; it bites merely on an entitlement which does not exist.

Lord Mackay of Ardbrecknish

My Lords, in the amendment we are considering again what happens to people who are subject to immigration control as regards homelessness legislation. We are being asked to consider two cases. First, there are people who sought assistance under the homelessness legislation before Clause 9(2) of the Bill had effect, and who then find that they are outside the scope of an order continuing their entitlement under the homelessness legislation. We are also asked to consider the case of people who initially have entitlement under the homelessness legislation but who subsequently lose that entitlement when their immigration status changes.

I wish to make the Government's position absolutely clear on these points. We intend to align entitlement under the homelessness legislation with entitlement to housing benefit. For so long as someone is entitled to housing benefit by virtue of his immigration status—for example, by being a person who sought asylum at the time he arrived in this country—or, if he retains an entitlement to benefit as part of the transitional package associated with the benefit changes that will flow from what is now Clause 11 of the Bill, he will retain entitlement to assistance under the homelessness legislation. That is what an order under Clause 9(2) will provide for.

If your Lordships agree to Amendment No. 5, it will mean that persons from abroad who are here on limited leave—such as visitors and overseas students, who have not been entitled to social security benefits since 1994—would continue to be entitled to assistance under the homelessness legislation, and the entire cost of meeting that obligation would fall on the housing authority.

Your Lordships will be aware of the immense burden that this could impose on the few housing authorities which would receive most of those cases. It was in recognition of just that problem that we have been proposing to make a special grant available to local authorities to meet a substantial part of the cost to them that would have followed from the early withdrawal of housing benefit in February. That is no longer necessary. But it remains important that we are able to make the scope of the homelessness legislation consistent with the rules on housing benefit.

At Report stage the noble Earl argued that the provision was retrospective and would unduly affect people who entered the country before these provisions were in force and with no expectation that they would be introduced. In other words, they were relying on the safety net of the homelessness legislation. The Government have for many years had a clear policy that visitors and other persons who are given limited leave to remain enter the country on the basis that they will have no recourse to public funds. We are back to this difficult problem—it appears difficult for some people to grasp. People who apply in country have said when they enter this country that they are coming here for business reasons, to visit, study, or whatever it may be, and that they will have no recourse to public funds. That is the condition on which they are granted entry.

What the noble Earl says confirms what I have been telling your Lordships all along during discussion of the Bill; namely, that those people are saying one thing to the immigration authorities but mean something entirely different. They come here because they see the availability of these benefits. One of the benefits they see is that if they come into a category that falls within the homelessness legislation the local authority will help them to gain housing—albeit short term—in this country. Therefore we are doing no more than ensuring that the conditions of entry to which such people agreed when they walked into this country are observed in practice.

The noble Earl also raised the question of what happens to someone being accommodated under the homelessness legislation when his entitlement ceases as a result of an adverse decision on his application for asylum. The answer is that his entitlement under the homelessness legislation, as I have said before, will match his entitlement under social security benefits. They will cease at the same time. If that person wishes to remain in this country pending the outcome of an appeal—I need not remind your Lordships that only three out of every 100 appeals actually succeeds—it is for him to make his own arrangements for his continuing financial support; or, as many of them do, he may look to his own ethnic community for assistance.

The policy here has two related strands. It is not just a matter of ensuring that those people who enter this country on the basis that they will have no recourse to public funds do not receive benefit. It is equally to ensure that local housing authorities are not faced with further additional costs.

I am not sure whether the noble Earl wishes to pursue the matter to a vote. I hope that he will not, but will withdraw the amendment. However, if he does not do so, I hope that my noble friends will support me in the Lobby.

Earl Russell

My Lords, before the Minister sits down, will he clarify one vital point on which I hope that I have understood him accurately? Am I to understand that the alignment with housing benefit means that those who have entered the country and claimed asylum before 5th February will not be subject to this clause?

Lord Mackay of Ardbrecknish

My Lords, those who entered this country and claimed asylum before 5th February are protected by the transitional arrangements which we agreed. If they claimed asylum properly, until the next decision is made they will continue to receive housing benefit and to be subject to the homelessness legislation.

Earl Russell

My Lords, I am most grateful to the Minister. That was the principal point that I wished to elicit from him. I am extremely glad to hear him say it.

Perhaps I may say cursorily to the noble Lord, Lord Campbell of Alloway, that one can have an entitlement to a facility. I am sorry that the noble Lord is not in his place to hear me say it, but if he wishes to apply for a facility to which he is not entitled he will soon discover the distinction.

On the point which the Minister has made repeatedly about public funds, one must see an asylum seeker entering the country as being in a position which is very much analogous to being under duress. I have already drawn the parallel and I make no apology for reiterating it, since the Minister repeated the point to which it was a reply. If one were to have a severe climbing accident and were asked, before being rescued, to undertake to pay the six-figure cost of the rescue, one might legitimately argue that the promise had been extracted under duress.

I shall not again quote Article 31.1 of the UN Convention. I believe that the Government are in breach of it, but I shall not pursue the point now and beg leave to withdraw my amendment.

Amendment, by leave, withdrawn.

Clause 10 [Entitlement to child benefit]:

[Amendment No. 6 not moved.]

Clause 11 [Saving for social security regulations]:

[Amendment No. 7 not moved.]

Baroness Hollis of Heigham moved Amendment No. 8: Page 8, line 28, at end insert— ("( ) This section does not apply to a person whose claim for asylum has not been determined by the Secretary of State within three months of the date on which it was made.").

The noble Baroness said: My Lords, the amendment stands in the names of myself and my noble friend Lord McIntosh of Haringey. It proposes that if a claim for asylum status is not determined within three months, the claimant should be entitled to benefit. That would locate responsibility firmly where it should lie: that is, with the Government for having failed to determine the claim within three months. At the moment, there is a financial incentive for the Government to be inefficient, to delay determination in order to avoid paying benefit. That is bad public policy. What is worse is that it means that some of the most vulnerable and destitute people are starved out of their right to pursue their claim because they have no means of subsistence. Why should those seeking asylum be penalised because our systems are inefficient?

At the moment, it takes 19 months from the initial receipt of a claim to its determination. We still have unresolved claims going back to 1991. I believe that the figures are: 15 per cent. in 1991, 15 per cent. in 1992, 25 per cent. in 1993 and 25 per cent. in 1994. Over 10,000 asylum seekers, as at last February, have been waiting since 1991 for their claims to be determined. The current backlog which was 46,000 in 1993 is now nearly 68,000 and is rising by 2,000 a month.

The Government will presumably say what they said last night; that is, that many extra staff are being employed but that they are "being swamped by a rising tide" and such suitable metaphors. What one normally does with a moored boat on a rising tide is to loosen and lengthen the rope. The Government are failing to do that. As I understand it, the Government have appointed 500 additional caseworkers who heard just under 44,000 applications last year. That is a rate of 1.7 cases determined per week per caseworker. It means either that the decisions are difficult and time consuming because the claimants may well be genuine or that the competence of the staff and the Government is less than satisfactory. Such is not the case in other countries where they deal with asylum claims much more expeditiously than us.

The amendment therefore firmly locates responsibility for delays and the refusal of benefit where it belongs: with the Home Office. Asylum seekers should not be put into a prolonged state of limbo because the Government have not got round to determining their claims. Just because the Home Office cannot get its act together, that is no reason for the DSS to deprive people seeking asylum the benefit on which to survive in the meantime. It is deeply unfair to make asylum seekers the victims of Home Office dilatoriness. I beg to move.

Lord Mackay of Ardbrecknish

My Lords, I find this an interesting and intriguing amendment. The noble Baroness wishes to impose a time limit of three months on the Home Office to reach a conclusion about applications. She suggests that the Home Office has a deliberate policy of delaying because, of course, it delays the payment of benefit. That is not true because—

Baroness Hollis of Heigham

My Lords, will the Minister give way? I did not say that the Home Office had a deliberate policy of delay. The words I used were that at the moment there is a financial incentive for the Government to be inefficient. Those are the words I used.

Lord Mackay of Ardbrecknish

My Lords, the noble Baroness has put her argument the wrong way round. There is no financial incentive for the Government to be dilatory at the moment but there may well be potential for that accusation once my changes have been brought in because people will lose benefit after the first Home Office decision. However, at the moment the longer the decision is spun out, the longer people remain on benefit.

I do not know whether the noble Baroness is a ballroom dancer; if so, she may know that it takes two to tango. The delays currently in the system are put into the system by the applicants, both in their first request for asylum to be considered in the Home Office and then in subsequent appeals. The more they delay—especially the appeal stage—the longer they stay on benefit in this country. That is one of the problems which I brought to your Lordships' attention. It seems to me that the noble Baroness has gone a fair part of the way in agreeing with me, without saying so, that it is one of the major problems in the system.

The situation is made even worse and more difficult for the Home Office, as I explained yesterday, when one considers the increasing numbers of asylum applications we have seen in this country. I do not wish to go over the figures in great detail again but remind your Lordships that a decade ago the figures ran at 4,000, 5,000 or 6,000 applicants per year; last year they reached a total of 55,000. That is a fair tide. The seafaring example that I gave the noble Baroness was of rowing against that tide: the harder one rows, the less chance one has of succeeding if the tide is flowing ever faster. That is what is wrong here.

We have made considerable improvements in the asylum system which I explained to your Lordships yesterday. We made 21,000 decisions in 1994, 27,000 in 1995 and we are on course to make 37,000 decisions in the current year. There have also been unfortunate delays with appeal determinations largely because of the terrific increase in applicants. If we still only had 4,000, 5,000 or 6,000 people applying for asylum, I might well be able to accept the noble Baroness's amendment, so long as the applicants did not stall, delay and ask for adjournments and reconsiderations. However, the position is that we have managed to increase appeal determinations from 2,400 in 1994 to a projected 19,000 this year.

What I find most intriguing about the noble Baroness's amendment is that she wants the whole process to be speeded up, yet her party opposed the short procedures which the Home Office and the Government introduced and are introducing in order to carry out the speeding-up process. We introduced the short procedures so that people entering the country are interviewed quickly and their cases dealt with quickly. It is intriguing that the noble Baroness's party opposed the speeding up that would have come from the short procedure.

It is all very well to say that if a decision is not made within three months—and I presume that is for in-country applicants—then those applicants should be allowed benefit. But at the same time the noble Baroness says, "By the way, we don't like you using a short procedure and we voted against it when you tried to introduce it". We introduced the short procedure which I believe will greatly help. Of course, we are at one and agree that it is important that we make decisions quickly. It is important for the British taxpayer who, I remind noble Lords, pays out £200 million every year to people who turn out not to be justified in their claims. But it is also important for the genuine asylum seekers.

I should have thought we would all want decisions to be made as quickly as possible so that the uncertainty is removed as quickly as possible. I should like to have heard yesterday and today some positive measures which would help us to deal with the increasing numbers and to prevent that increase so that we could deal with the genuine cases quickly and not have them sitting for months wondering whether they will receive asylum.

That is not the right way to proceed. The right way is the direction that we are taking. The figures I gave yesterday, when noble Lords were kind enough to ask me what had happened since we made the changes in February, indicated that by May there had been a reduction of 50 per cent. in the number of asylum seekers. If that kind of trend continues and we can bring the figures down so that they are much more in line with the numbers seeking asylum from our fellow Europeans, we shall be able to do what the noble Baroness wants us to do and deal with asylum applications very quickly. The measures I have proposed will do that. I really do not need an amendment from the noble Baroness stipulating three months when I have had her opposition to every other part of my department's policy and the policy of the department of my noble friend Lady Blatch in order to deal with the increasing number of asylum applicants in this country.

4 p.m.

Baroness Hollis of Heigham

My Lords, I am very disappointed with the Minister's reply. This is the usual process that we see throughout Tory social security legislation: when in doubt, finger the victims; it is all their fault for seeking benefits; if only they were clued in enough conveniently not to seek benefits, we should not have to deal with them and there would not be delays. That is a pretty story. We get it in relation to JSA, child support, child benefit issues, and now in relation to asylum seekers. It is their fault for seeking benefit; that is the reason for delays at the Home Office and why we cannot get money for them. They cannot have benefits because they are being foolish enough to ask for them. The very act of asking for benefits disqualifies them.

It is a classic Tory government argument. We have heard it time and again in relation to social security. If people are unemployed, it is their fault for not finding a job; if people are destitute, it is their fault for not being self-supporting; if people are not receiving support from a partner, it is their fault for not naming him, even though they may be frightened of doing so. It represents a constant fingering of the victim. That is all we have heard from the Minister today.

If the Government were right, if they were so overwhelmed by delays that have grown in the past 18 months, as they have tried to suggest with all the images of poor little rowing boats against enormous tides that we are getting yet again—you would think the speechwriters could find new metaphors, having used boats and tides for the last three sessions running; there are other metaphors in the repertoire, I assure the Minister—if the Minister were right in his argument that these problems have occurred only recently and there are huge increases in the figures, why then are 10,000 people still waiting from 1991? Why then are similar numbers still waiting from 1992? Why are similar numbers still waiting from 1993, if the tide of immigrants that is swamping us has come so recently and so rapidly that only now we cannot cope?

I have the figures in front of me. Applications in 1990 were 26,000; in 1991, 44,000; in 1992, 24,000; in 1993, 22,000; in 1994, 32,000; and the figure as of February for the number of applications still outstanding was 15 per cent. for the first three years and 25 per cent. for the past two. I give way to the Minister.

Lord Mackay of Ardbrecknish

My Lords, I never said that it was only in 1995 that the increase occurred. Perhaps the noble Baroness will look at Table 2.5 in what I suspect is the book she is looking at. She will see that the 4,000, 5,000 and 6,000 I cited in the mid-1980s and the second part of the 1980s began to increase quite sharply in 1989 and 1990, reaching 73,000 in 1991. That is the problem. It is not just that the numbers of applications increased in a jump to 1995; the increase started in 1989 and took off in a very big way in 1991. Thankfully, the numbers fell back a little, but they have begun to increase again. I commend Table 2.5 relating to applications.

Baroness Hollis of Heigham

My Lords, in that case the Government have had five years to deal with this rising tide and have failed to do so. In other words, instead of what we were told yesterday about extra case workers and so on, as though this were a recent phenomenon, and since other countries tightened up we have been swamped, the Minister now concedes that it is a situation to which we have been trying to respond for the past five years. The problem continues to worsen and the Government have failed, not over one or two years, but over five years to deal with a problem in which the number of applications outpaces the resources that the Government are willing to apply to resolve it. Therefore, the Government are simply seeking to deny people benefit in order to deny them the ability to sustain their claim. That is the consequence.

We cannot have it both ways. Either this is a recent tide, in which case why were the earlier applications taking so long to resolve; or it has been a longstanding tide, in which case why have the Government been so inefficient in responding to it? Which of those two situations do the Government prefer as an accurate description? Either way, the asylum seeker is the victim, either of the Government's dilatoriness or incompetence or of their refusal to take the need seriously.

The Minister made a point about the Opposition Benches voting against the short procedure. As I understand it, although I was not personally involved in that debate, we voted against the short procedure because it was unjust. We did not, I understand, vote against the whole clause. Therefore the Minister is wrong to attribute to these Benches opposition or hostility to speeding up procedures. Speeding up those procedures cannot and must not be at the expense of the fair assessment of claims.

At the end of the day we see the Government doing what they always do—blaming the asylum seeker for seeking benefit and seeing that as the source of the problem. There are other amendments that we shall wish to explore at even greater length. Were that not the case, I should seek the opinion of the House. However, at this stage I shall not do so.

Earl Russell

Perhaps I might assist the noble Baroness. I have obtained some figures on applications for asylum per million of population in 1995. The source is the noble Baroness, Lady Blatch, in a Written Answer: the United Kingdom, 1,000; France, 400; the Netherlands, 1,900; and Germany, 2,100. Does the noble Baroness agree that those figures call for the Minister to think again?

Baroness Hollis of Heigham

My Lords, I am very grateful for that contribution. I encourage the Minister to comment on those figures.

So not only are we tardy, dilatory and ineffient, but we are far more so on all three counts than are our European neighbours, for which the noble Earl, Lord Russell, contributed the figures. I hope that the Minister is not as complacent about such dilatoriness when it costs people their basic means of subsistence as he is in other areas of social security where fraud, error, over-payment and under-payment continue to mount. However, as I said, there are other issues that we shall wish to explore. Therefore, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord McIntosh of Haringey moved Amendment No. 9: Page 8, line 28, at end insert— ("( ) This section does not apply to a person who has made a claim for asylum where the evidence adduced in support of the claim establishes a reasonable likelihood that the appellant has been tortured in the country or territory to which he would be sent.").

The noble Lord said: My Lords, I am grateful for the last few minutes of debate on the previous amendment. It showed, as we have attempted to show all through our consideration of the Bill, that the fundamental objection to the short procedure, the certification provided for in Clause 1 of the Bill, is not that it is wrong to speed up applications or appeals—of course it is desirable to speed up applications and appeals; it is desirable to have enough people to do that—but that it is unjust. The United Nations High Commissioner for Refugees said: the more accelerated a procedure, the higher the risk that an erroneous decision will be made". The research project that was commissioned by the Refugee Council on these procedures confirmed that, Many genuine refugees will not be identifiable as a result". These are the dangers of injustice to which we have pointed at all stages of the Bill.

Amendment No. 9 uses the wording that the Government themselves, under pressure, inserted in Clause 1 to seek to extend the protection provided by subsection (5) of Clause 1 to victims of torture to those who would now be denied benefits under Clause 11, the new clause introduced yesterday.

Those noble Lords who voted by such a large majority to protect the victims of torture from the risks of an accelerated procedure under Clause I should, I suggest, be even more keen to ensure that those victims of torture are not put in a position of destitution as a result of the provisions of Clause 11 of the Bill, ruled so recently by the Court of Appeal to be illegal.

The Government cannot object to the wording of the amendment because it is their wording; it is the wording they persuaded the right reverend Prelate the Bishop of Liverpool and his colleagues was an appropriate alternative to the wording which had been carried by a large majority in Committee on the Bill. We are not entirely happy with the wording. We still think that the risk of torture in a country or territory to which a person would be sent misses the point we were seeking to achieve which is torture in the country he came from, which may not always be the same. But we have, I think the House will agree, played safe and made sure that we are free of criticism by using the wording which the Government themselves have devised.

The principle, however, is very clear. The principle must surely be that if we are concerned with victims of torture, since we have agreed, as the Government have now agreed, that they should be protected from the risks of an accelerated procedure under Clause 1, how much more so do we need to be satisfied that they are not punished under Clause 11 of the Bill by the denial of benefits and by the threat of destitution? I beg to move.

Lord Mackay of Ardbrecknish

My Lords, all sides of the House agree that torture is utterly repugnant. My noble friend Lady Blatch acknowledged that the will of the House expressed in Committee was that there should be a safeguard on the face of the Bill to exempt genuine victims of torture from the special appeals procedure. My noble friend brought forward amendments at Report stage to give effect to the will of the House but to reduce the scope for exploitation of the asylum system by people who would seek to circumvent our procedures by claiming to be victims of torture.

I accept that the amendment now before the House in the name of the noble Lord, Lord McIntosh of Haringey, uses a similar form of words to the torture exemption in Clause 1. But it does not follow that what is appropriate in the context of Clause 1 is appropriate in the context of benefit entitlement. The amendment cannot and does not purport to apply to torture victims until a decision is made on their asylum application. It is not possible to establish whether there is a reasonable likelihood that someone has suffered torture until their claim has been assessed. The amendment is therefore only concerned with torture victims who have been refused asylum and are appealing against that decision.

If the Home Office, in assessing an asylum claim, finds there is a reasonable likelihood that the applicant has been tortured, then in the great majority of cases it will, of course, grant asylum or exceptional leave to remain. It may be that an applicant has been tortured on account of his race, religion, nationality, membership of a particular social group, or political opinion. In that case he would almost certainly be recognised as a refugee. A person who has been tortured but does not have a well-founded fear of persecution for a reason specified in the 1951 convention would normally be granted exceptional leave to remain.

If the applicant is granted asylum or exceptional leave, he will from that point on be entitled to benefits on the same basis as a British national. So if an applicant can demonstrate at the initial decision stage that there is a reasonable likelihood that he has been tortured, then in the great majority of cases he will receive benefit. The amendment, of course, does nothing to help this particular group.

If the applicant cannot adduce evidence which establishes a reasonable likelihood that he has been tortured, the amendment does not assist him. It would not confer benefit entitlement on an appellant unless he had succeeded in demonstrating there was a reasonable likelihood that he had been tortured. So the amendment would genuinely assist only the small group of people who can demonstrate at the initial decision stage that there is a reasonable likelihood that they have been tortured but who are nevertheless refused asylum and exceptional leave.

4.15 p.m.

Baroness Williams of Crosby

My Lords, I am grateful to the noble Lord for giving way. I shall only detain him for a moment. Last night one of the issues we discussed at some length with his noble friend Lady Blatch was how one established that one had been tortured and whether there would be time, for example, to obtain adequate medical evidence to show one way or the other. Part of the purpose of the amendment, which I strongly support, is to try to ensure that such an applicant, in what might be a period extending to a couple of weeks—beyond the original three days—would be sustained while he was obtaining the evidence to show his case one way or the other. The noble Lord will appreciate that obtaining evidence in three days is almost impossible.

Lord Mackay of Ardbrecknish

My Lords, I am not entirely sure what that intervention means. If someone applies at the port of entry for asylum and the grounds are that they have been tortured, then, as noble Baroness, Lady Hollis, told us in the last amendment, it will be some months before their case comes to be decided. I would have thought that there is more than enough time for them to obtain any necessary medical evidence in order to substantiate the claim they made on arrival. Without prejudging what I shall do about it, even if someone applies for asylum within the three days that your Lordships imposed on my amendment yesterday, then that person will be eligible for benefit up until the point at which the Home Office makes a decision. So I do not understand the noble Baroness's problem. I do not understand it in the context of what I would like the law to be, namely, on arrival, and I do not even understand it in the context of the change made by the Opposition that it is on arrival or plus three days. I do not agree with the noble Baroness that such a person will only have three days to find the medical evidence. Once they apply for asylum they will have that amount of time between that day and the time that their case is examined to put together the medical evidence.

There may be some people, as I was saying, who are refused asylum or exceptional leave, but there will always be good reason for that. It may be, for example, that there are changed circumstances in their country of origin and that, indeed, the party they support has come to power. Now, if you have come to this country and said, "I am being persecuted because 'x' party is in power and they don't like my party" and subsequently 'x' party loses power and your party wins, it does not seem to me that you can actually continue to pursue your asylum application.

I have to let the House into what I was going to say is a small secret but it is not actually a secret. Perhaps I can tell your Lordships there are some applicants from Pakistan who find themselves in exactly that position. I find it interesting to know how you can continue to say that you may be persecuted for your political beliefs if your party has actually gained power over the opposition, and that in a free election too in the country I have just given as an example—not that I think there would be any examples of torture from Pakistan. However, I instance it as a case where people continue their asylum application after their own party has gained power.

There could be an increased incentive to make allegations of torture in an attempt to gain access to the benefit system. That is another build-in of delay that people can make. The noble and learned Lord, Lord Donaldson, said yesterday, when describing asylum applications from in-country applicants, that it was the trump card in their back pocket that they played after they had been here for quite a time, had used up their money, and said, "I would quite like to stay here". This proposal would give them a second trump card. They could play the trump card for asylum; they could then play another trump card and say, "Ah, but I was tortured".

I do not think that we need to put this test into the benefit system. The principal test that should be applied to asylum seekers is the test applied by the Home Office. The Home Office makes a decision. The Home Office has to consider whether the application for asylum is justified. If it is justified, then in seven out of 100 cases it grants that asylum. If there are other circumstances—there are many and they do not just include torture—and we decide to give exceptional leave to remain, we give that. I do not believe that to put a kind of second tier arrangement on the benefit system is right or sensible. It is right and proper that we leave these issues to be determined by the principal question to be answered: does this person justify being granted asylum in this country or indeed exceptional leave to remain? If the answer to those two questions is yes, for whatever reason, they can obtain access to all the benefit systems in exactly the same way as British citizens. I do not believe that it is sensible to apply another, further test to the benefit system.

Earl Russell

My Lords, before the Minister sits down, perhaps he will allow me, on behalf of my noble friend and myself, to offer the warmest thanks to the noble Baroness, Lady Blatch. I discovered this morning that Mr. Igbinidu has been allowed to stay. When my noble friend rose just now, she had not yet received that information. Now that she has, she wishes to be associated with those thanks.

Lord McIntosh of Haringey

My Lords, the Minister's speech will teach me to seek the agreement of the Government Front Bench by using their own words. In effect, by saying that this amendment will not work because it will bite too late, the Minister is saying that his own words, which the Government persuaded the right reverend Prelate the Bishop of Liverpool to accept at Report stage, will also bite too late for the accelerated procedure under Clause 1. If it applies to one, it applies to the other. He cannot have the argument both ways.

With this amendment, we seek, in the Government's own words, to ensure that at whatever stage an applicant produces evidence which establishes reasonable likelihood that he has been tortured, that stage will trigger the restoration of benefits. It is not necessarily the case that the person established such a claim at the very beginning of his application, and it may well be that he has been denied benefits. But at the stage when he substantiates such a claim, it is not by any means clear to me that the Government will immediately grant asylum or exceptional leave to remain.

Lord Mackay of Ardbrecknish

My Lords, I wonder whether I may be helpful to the noble Lord. Perhaps I should say with regard to the evidence that the effect of the amendment differs from the torture exemption in Clause 1. Under Clause 1 it is open to the adjudicator to disagree with the Home Office and decide that there is a reasonable likelihood that the appellant has been tortured. That reinstates the right of appeal to the tribunal and provides the appellant with a further opportunity to put his case.

I am not sure if we are at cross purposes. Certainly, I should not like the noble Lord to think that my noble friend Lady Blatch had not acted totally honourably in respect of the amendment of the right reverend Prelate the Bishop of Liverpool to which she agreed.

Lord McIntosh of Haringey

My Lords, I did not use the word "honour" and I do not use such words. I do not think I need respond to that part of the Minister's reply.

If there are consequential amendments which would follow to parallel the role of the adjudicator and the possibility of further consideration which exists under Clause 1, then it would be possible for the Government to introduce them as an amendment to a Lords amendment at the Commons reconsideration. We are necessarily at a very late stage of the consideration of the Bill—not because I chose to bring forward this matter late but because the Government chose to bring forward this clause late and at the very last possible minute.

I shall not apologise, given the time that we have had and at this late stage of consideration of the Bill, for overlooking the possibility that there might need to be consequential amendments. The fact of the matter is that applicants for asylum, asylum seekers, make claims of having been tortured at several possibly different stages in the course of their application. Some of those people, the more self-confident, perhaps those who have been less damaged by torture, can perfectly well make their claim of torture at a very early stage. I hope the Minister will agree that in such cases it would be grossly unjust to deny them benefit as soon as that claim had been reasonably established in the terms which the Government inserted into Clause 1(5).

But it is also not uncommon for an applicant to produce evidence of torture at later stages. Torture victims need time to talk; they need time to disclose and time to learn to live with their experience. They may not be able to think about it, let alone talk about it, before then. We know of a case dealt with by a London solicitor in which a lady did not disclose the fact that she had been raped in prison until the hearing in the Court of Appeal. Despite the allegation having been made at such a late stage, she won her appeal. So at whatever stage a well substantiated and well founded claim of torture is made, surely at that stage—it ought, of course, to be as early as possible—benefits should be restored.

Can the Minister give some indication of the protection which might exist for those who have established a claim of torture without having yet established a claim for asylum or exceptional leave to remain? Or is the Minister saying that there are no such cases?

Lord Mackay of Ardbrecknish

My Lords, perhaps I may respond to that question, with the leave of your Lordships' House.

Lord Hailsham of Saint Marylebone

My Lords, I wonder whether the two Members of the Front Benches do not realise that the House is sitting and we are not in Committee.

Lord Boyd-Carpenter

Hear, hear!

Lord Mackay of Ardbrecknish

My Lords, with the leave of the House, perhaps I may respond very quickly. I tried to make it perfectly clear that a claim of torture is rightly and properly to be considered at the time of the asylum application claim. That is the right and proper place. As I indicated in my intervention—I tried to keep my speech as short as I could—the concession that we have made ought to allow people who have a claim a route to reconsideration if the adjudicator thinks that that is right and disagrees with the Home Office on the basis of the evidence that he has in front of him on the claim of torture.

But I do not believe that a claim of torture—just a claim—should be sufficient to reinstate entitlement to benefit. Where applicants adduce evidence of a reasonable likelihood that torture has taken place, then the pressure point, if I may so call it, is the pressure point of changing the decision and ensuring that he obtains status as a refugee or exceptional leave. Then he obtains both. He gets refugee status or exceptional leave and the benefit. I do not think I can go much further than that.

Lord McIntosh of Haringey

My Lords, I certainly will not apologise to the noble and learned Lord, Lord Hailsham. We are dealing with this matter at this stage of the Bill, not through any wish of our own but because we are forced to do so.

Lord Hailsham of Saint Marylebone

My Lords, I was not asking for an apology. I was only asking the noble Lord to obey the rules of the House.

Lord McIntosh of Haringey

My Lords, in my closing speech on an amendment it is perfectly legitimate for me at any stage of the Bill to seek clarification from the Minister. It is for the benefit of this House and the consideration of any individual amendment to have the facts clearly before us if they have not been established before. This is the first time that the amendment has been debated. It was not possible to debate it in Committee because of the time available yesterday. I do not in any way acknowledge that there is anything improper about the way in which I, or indeed the Minister, have conducted the debate on this amendment. The Minister has not told me, as I asked him to do, that there are no cases where somebody who, to use the words in the amendment, has established a reasonable likelihood that he has been tortured will continue without benefit until the final decision as to his refugee status or exceptional leave to remain has been resolved. There are therefore people who, having made a reasonable claim of torture, not merely on the balance of probabilities of the case but which has been established, are still going to be deprived of benefit.

I do not see how, in a civilised country, we can force people who have been tortured into destitution in the way that is proposed by the Government's amendment. I do not believe that they intended it that way but that is the effect of their new clause, and I shall seek the opinion of the House on the amendment.

4.30 p.m.

On Question, Whether the said amendment (No. 9) shall be agreed to?

Their Lordships divided: Contents, 91; Not-Contents, 145.

Division No. 2
CONTENTS
Addington, L.	Harris of Greenwich, L.
Archer of Sandwell, L.	Haskel, L.
Ashley of Stoke, L.	Hollis of Heighain, B.
Avebury, L. [Teller.]	Ilchester, E.
Barnett, L.	Jay of Paddington, B.
Beaumont of Whitley, L.	Jeger, B.
Berkeley, L.	Jenkins of Putney, L.
Blackstone, B.	Judd,L.
Brooks of Tremorfa, L.	Kennet, L.
Bruce of Donington, L.	Kilbracken, L.
Callaghan of Cardiff, L.	Kinloss, Ly.
Carlisle, E.	Lockwood, B.
Carmichael of Kelvingrove, L.	Longford, E.
Carter, L.	Lovell-Davis, L.
Clancarty, E.	McCarthy, L.
Cledwyn of Penrhos, L.	McIntosh of Haringey, L.
Clinton-Davis, L.	Mackie of Benshie, L.
Cocks of Hartcliffe, L.	McNair, L.
Dahrendorf, L.	McNally, L.
Dean of Beswick,L.	Mason of Bamsley, L.
Donaldson of Kingsbridge, L.	Mayhew, L.
Donoughue, L.	Merlyn-Rees, L.
Dormand of Easington, L.	Methuen, L.
Dubs, L.	Milner of Leeds, L.
Ezra,L.	Monkswell, L.
Gallacher, L.	Morris of Castle Morris, L.
Geraint, L.	Nicol, B.
Gladwin of Clee.L.	Plant of Highfield,L.
Glenamara, L.	Prys-Davies, L.
Graham of Edmonton, L. [Teller.]	Redesdale, L.
Grenfell,L.	Richard, L.
Grey, E.	Robson of Kiddington, B.
Halsbury, E.	Rodgers of Quarry Bank. L

Russell, E.	Stoddart of Swindon, L.
Sainsbury, L.	Strabolgi, L.
Saltoun of Abemethy, Ly.	Straffonl, E.
Sandwich, E.	Taverne, L.
Seear.B.	Taylor of Blackburn, L.
Sefton of Garston, L.	Taylor of Gryfe, L.
	Tordoff, L.
Serota,B.	Turner of Camden, B.
Sawel, L.	Wallace of Saltaire, L.
Shannon, E.	White, B.
Shepherd, L.	Williams of Crosby, B.
Southward, Bp.	Williams of Elvel,L.
Stallard.L.	Winchilsea and Nottingham, E.
NOT-CONTENTS
Addison, V.	Harris of Peckham, L.
Ailsa,M.	Henley, L.
Alexander of Tunis, E.	Hertford, M.
Allenby of Megiddo, V.	Holderness, L.
Ashbourne, L.	HolmPatrick, L.
Astor of Hever, L.	Hothfield, L.
Balfour, E.	Howe, E.
Belhaven and Stenton, L.	Hylton-Foster, B.
Birdwood, L.	Inglewood, L.
Blaker, L.	Ironside, L.
Blatch, B.	Johnston of Rockport, L.
Boardman, L.	Kenilworth, L.
Boyd-Carpenter, L.	Kimball, L.
Bradford, E.	Kintore, E.
Braine of Wheatley, L.	Knollys, V.
Brentford, V.	Lane of Horsell, L.
Bridgeman, V.	Lauderdale, E.
Brigstocke, B.	Leigh, L.
Bruntisfield, L.	Lindsay, E.
Butterworth, L.	Lindsey and Abingdon, E.
Cadman, L.	Lucas, L.
Caldecote, V.	McConnell, L.
Campbell of Alloway, L.	Mackay of Ardbrecknish, L.
Campbell of Croy, L.	Mackay of Drumadoon, L.
Carnegy of Lour, B.	Macleod of Borve, B.
Chalker of Wallasey, B.	Manton, L.
Chelmsford, V.	Marlesford, L.
Chesham, L. [Teller.]	Merrivale, L.
Chorley, L.	Mersey, V.
Clanwilliam, E.	Middleton, L.
Clark of Kempston, L.	Miller of Hendon,B.
Coleraine, L.	Milverton, L.
Constantine of Stanmore, L.	Monckton of Brenchley, V.
Courtown, E.	Montgomery of Alamein, V.
Cranborne, V. [Lord Privy Seal.]	Mottistone, L.
Cuckney, L.	Mountevans, L.
Cumberlege, B.	Mowbray and Stourton, L.
Davidson, V.	Moyne, L.
Dean of Harptree, L.	Munster, E.
Denham, L.	Napier and Ettrick, L.
Denton of Wakefield, B.	Newall, L.
Dixon-Smith, L.	Norrie, L.
Downshire, M.	Northesk, E.
Eccles of Moulton, B.	O'Cathain, B.
Ellenborough, L.	Onslow, E.
Elliott of Morpeth,L.	Park of Monmouth, B.
Elton, L.	Pender, L.
Ferrers, E.	Peyton of Yeovil, L.
Finsberg, L.	Pilkington of Oxenford, L.
Forbes, L.	Plummer of St. Marylebone, L.
Gardner of Parkes, B.	Rankeillour, L.
Geddes,L.	Rawlings, B.
Gibson-Watt, L.	Reay, L.
Glentoran, L.	Rees, L.
Goschen, V.	Renfrew of Kaimsthom, L.
Gray of Contin, L.	Renton, L.
Grimston of Westbury, L.	Renwick, L.
Hailsham of Saint Marylebone, L.	Rodney, L.
Harding of Petherton, L.	St. John of Fawsley, L.
Harmar-Nicholls, L.	Saint Oswald, L.

Seccombe, B.	Swinton, E.
Sharpies, B.	Tebbit, L.
Shaw of Northstead, L.	Teviot, L.
Skelmersdale, L.	Thomas of Gwydir, L
Slim,V.	Trumpington, B.
Stewartby, L.	Ullswater, V.
Stodart of Leaston, L.	Vivian, L.
Strange, B.	Wade of Chorlton,L.
Strathcarron, L.	Wedgwood, L.
Strathclyde, L. [Teller.]	Wilcox, B.
Sudeley, L.	Wynford, L.
Swinfen, L.	Young, B.

[*See col. 1364.]

Resolved in the negative, and amendment disagreed to accordingly.

4.39 p.m.

Baroness Hollis of Heigham moved Amendment No. 10: Page 8, line 31, at end insert ("or is given exceptional leave to remain in the United Kingdom").

The noble Baroness said: My Lords, this is probably a probing amendment, but it may not be—

Lord Hailsham of Saint Marylebone

You cannot probe on Third Reading.

Baroness Hollis of Heigham

My Lords, I hear a comment from a sedentary position about Third Reading. We would not be in this position if the Government had not produced the clause that we are now debating fractionally over 24 hours ago. I think that this side is occasionally entitled to ask for the indulgence of the House when we are coping with what should have been a gap of four weeks between the Committee and Third Reading stages in just 24 hours. If that means that we have to ask for the indulgence of the House, I hope and expect that it will be extended to us.

I am seeking to discover the intent behind the clause and whether we are reading it correctly. As I understand it, under subsection (1) any asylum seeker of a prescribed description may be excluded from benefits. Subsection (2) then allows those asylum seekers whose claims succeed and who are then recorded as being refugees to have their benefits backdated for the period during which their claims were being determined. What is the position of those who are not awarded refugee status but who are nonetheless granted exceptional leave to remain? I take it that the Government intend that they also should receive backdated benefit. If not, will the Government explain to the House why not?

I should like to make a couple of points. First, the Minister has admitted—he has done so again today—that there is very little in practice to distinguish between the two groups: those called refugees and those who are granted exceptional leave to remain. The Minister's own description earlier was that those granted ELR had bullets flying around them whereas those granted refugee status had a bullet with their name on it. However, the Minister admitted that life was equally dangerous for both groups; that their lives were equally at risk; that they were equally entitled to asylum, and that it would be equally inhumane to return them to their country of origin.

As the Minister said just five or 10 minutes ago on the previous amendment, those granted ELR may very well have been victims of torture, but not of "torture" as defined under the convention, which would technically classify them as a refugee. The Minister made much of the point that he well accepted that victims of torture could be granted exceptional leave to remain—in other words, the distinction that is made between those granted refugee status and those granted ELR does not hold up to argument. The Minister accepted that many people might fall into one category rather than another according to whether they came from, say, Bosnia, or Somalia.

Secondly—this is a different point, I hope—at the moment anyone who is granted exceptional leave to remain is treated under the benefits system in exactly the same way as if they had been granted refugee status. Both are entitled to full benefits. I am not sure whether the Minister is listening to the argument so I repeat that at the moment anyone who is granted ELR is treated under the benefits system in exactly the same way as someone granted refugee status. Both get full benefit entitlement. Once a claim is determined and the claimant is granted either ELR or refugee status, both go on to be treated for benefit in the same way. As far as I am aware it is only in this clause, which we saw for the first time 24 hours ago, that for the first time the Government are seeking to treat those with ELR differently under the benefits system from those granted refugee status. They will grant backdated benefit to those with refugee status, but not to those with ELR, although in all other respects the two groups of applicants are treated identically. Why? It seems utterly mean and unnecessary.

We are not talking about very large sums. After all, if somebody seeking exceptional leave to remain applies at the port of entry, he will get benefit. Once a person is awarded ELR, he will get benefit. All that we are talking about is the backdating of benefit for the period during which the claim was being determined. Why draw a distinction between ELR and refugee status only in relation to backdating and nowhere else in the entire benefits system, especially when the Minister has conceded, as he did a few moments ago, that there may be very little to distinguish between the two groups of people on issues such as torture?

Thirdly, when the Government made the concession about the backdating of benefit in the light of the Court of Appeal judgment, the Minister made much of the fact that churches and charities which supported asylum seekers in the meanwhile would get their financial costs reimbursed when the benefit was backdated. The Minister said that that would encourage churches and charities to be discriminating as to whom to support. It was an invitation more or less for them to back strong cases.

The Government have subsequently accepted that ELR is a strong case. Why then are the Government willing to backdate and to refund when a bid for refugee status has succeeded, but not for ELR? If that omission is not accidental and I suspect that it is not—presumably because three times as many people come in under ELR as come with refugee status—what we have is a grudging, mean, arbitrary and unreasonable distinction on one slender point in the entire benefits system, the backdating of benefit. The Government have made a grudging concession in the light of the Court of Appeal judgment, but in this clause they are rowing back even from that concession. I beg to move.

4.45 p.m.

Lord Avebury

My Lords, I strongly support the noble Baroness in this amendment, which corresponds to one that I tabled as a manuscript amendment yesterday but did not move because I felt that it was not fair to the House in the circumstances. I had attempted to table the amendment at 10.48 p.m. on Sunday evening by faxing it to the House. Although it had been taken off the fax machine, it did not reach the Public Bill Office until I came in at 2.30 p.m. on Monday and asked where it was. The amendment was still sitting in an in-tray in the Minute Room. It was then taken to the Public Bill Office and distributed, but it did not become available to your Lordships as Amendment No. 10A until halfway through our proceedings.

That is an illustration of the dangers of foreshortening proceedings as the Government have chosen to do. It was not simply a case of the documents relating to the government amendments not being in the Library or the Printed Paper Office when the Leader of the House said that they were, as was mentioned yesterday. The point is that the period of time within which one could study the documents and then formulate amendments was impossibly short, particularly for Back-Benchers who did not have the advantage of receiving the documents prior to their being laid in the Library and the Printed Paper Office, as did the two Front Benches.

The amendment deals with an important point. I share the opinion which has been expressed by the noble Baroness that, in practice, there is hardly anything to choose between refugee status and exceptional leave to remain. I think I am right in saying—the Minister has all the figures so perhaps he can remind us of the facts—that in the past 10 years, a period during which the Minister says that there has not been any change in the countries of origin—a matter on which we had a dispute at an earlier stage—there has been a marked shift from the awarding of refugee status towards the granting of exceptional leave to remain when there can be no possible reason in the countries of origin for that division of the asylum-seeking community into the sheep and the goats, with that large increase in the goats compared to the sheep over the 10 years that we are considering.

I am interested in certain countries, one of which is Turkey. The number of people from Turkey being successful in applications for asylum has plummeted over the past 10 years, a period when by any objective test conditions in the south-east (where most of the refugees come from) have materially worsened. However, hardly anybody from Turkey is awarded refugee status. Those who succeed in their applications are normally granted exceptional leave to remain. I believe that the same is true of Bosnia and Somalia, which were mentioned by the noble Baroness. The conditions in both countries are appalling.

The noble Baroness rightly points out that under the convention a person has to demonstrate an individual fear of persecution, whereas in many of those countries the fear is endemic among large sections of the population. However, it must apply to particular groups within the community for them to be eligible either for refugee status or exceptional leave to remain. That distinction is an artificial one and there is no real difference between those in one category and those in another. It is impossible therefore to understand why the Government should deprive one group of eligibility to asylum and yet backdate benefits in full to the date of the passing of the Act for those in the other group. The division of asylum seekers into two groups is incomprehensible, illogical and immoral. I hope that your Lordships will not accept it.

Lord Mackay of Ardbrecknish

My Lords, I am not entirely sure where the argument of the noble Lord, Lord Avebury, leads us. I believe that it would widen the criteria for refugee status. He contends that we ought to allow more people to have refugee status than the seven out of 100 that we do. I do not know how he comes to that conclusion. We apply the UN Convention test of whether or not the person before us ought to be declared a refugee. That is the test we have signed up to in the international agreement.

However, we have decided that it is too harsh simply to divide people into those who pass the test and become refugees and those who fail it. Therefore, although we are under no international obligation to do so, we have introduced exceptional leave to remain. By and large, ELR operates in respect of those countries where there is serious trouble. I believe that the noble Lord, Lord Avebury, accepts that. If one has regard to the figures relating to Somalia—where I am sure all noble Lords will accept there is serious trouble—in 1995 a very large number of people were given exceptional leave to remain. They may not pass the test under the UN Convention, which is an individual fear of persecution, but there is no doubt that there is such bedlam going on in such countries that it is humane and decent for us to give them exceptional leave to remain. Somalia is one such country; former Yugoslavia has been another. However, people are beginning to return to Bosnia. They have been given exceptional leave to remain in this country. We hope that the situation has changed sufficiently for them to be able to return, if not to their own villages, certainly to their homeland. The other country in that category last year was Afghanistan. Those three countries accounted for the great majority of the exceptional leave to remain category. That category is quite different from refugees.

We do not believe that we are under an obligation to treat both categories in the same way. Refugees are accorded specific rights under the UN Convention and we ensure, as we should, that those rights can be exercised. For that reason, refugees automatically receive benefits. Having read the judgment of the Court of Appeal, we concluded that we should backdate refugees' benefits to the point when they first claimed, if they were in-country applicants and did not initially receive benefits.

The granting of exceptional leave to remain is quite different from the grant of refugee status. It is a discretionary concession made by the United Kingdom Government over and above our obligations under the UN Convention. It is intended to address circumstances not covered by the convention in respect of which some discretion ought to be exercised. The right to remain, which exceptional leave gives, is not identical to that given to refugees. ELR is granted for one year in the first instance. It may then be renewed for a further two periods of three years. That provides a total of seven years on three renewals before settlement is considered.

An individual must pass three reviews at one year, four years and seven years before he or she can be considered for settlement. Refugee status is awarded for four years. At the end of that period settlement can be applied for. I do not believe that the two can be equated. The award of exceptional leave is made at the point when the person is refused asylum. When the individual has been refused asylum we then look at the case. It is established, first, that the individual does not meet the criteria set out in the UN Convention and therefore is not, as claimed, a refugee. Consideration is then given to whether or not the individual should return to his or her own country.

I have explained why we decided that refugees who appeal should be treated in the same way as our own citizens and benefit should be backdated for those who succeed. But when individuals who have been given exceptional leave to remain appeal—as some do because they want refugee status—or those who have been denied both ELR and refugee status appeal, they do so against the decision not to grant refugee status, not against the decision to refuse ELR. The critical matter is the refugee test. If at the end of the appeal system they are not found to be refugees, as happens in 97 cases out of 100, we do not see any case for retrospective payment of benefit. If the case is then sent back to the Home Office because the adjudicator believes that perhaps the department ought to look at the matter again, the Home Office may decide to exercise its powers and grant ELR. Grant of exceptional leave to remain ensures that a person can stay in the UK. We give them access to benefit at the same rate that applies to UK citizens, but it does not make them refugees.

I believe that this amendment pushes the concession that I have made a bit too far. The amendment would equate refugee status with exceptional leave to remain. I do not believe that the two can be equated. The consideration by the Home Office and the appeal process are based on the test of refugee status or not. In that regard, we fulfil both our humanitarian and United Nations obligations. When someone is found not to have refugee status we are prepared—as it were, off our own bats—to consider whether the individual ought to be given exceptional leave to remain.

Earl Russell

My Lords, the noble Lord has dealt with the distinction between refugee status and exceptional leave to remain. Has the Minister taken any legal advice?

Lord Mackay of Ardbrecknish

My Lords, in this field there is plenty of legal advice. It may be that one takes the legal advice which suits one. That is the same in every field. We are certain—this has stood the test of time—that there is a distinction between refugee status and exceptional leave to remain. I am not sure whether the noble Earl suggests that there is no distinction. There is a very big distinction, and I have tried to explain it clearly. It certainly exists in view of the way that the whole procedure has been run and is set out. Refugee status is the critical test to be applied and that fulfils our international obligations.

We have decided as a country—in my view quite rightly and, I am sure, in the view of all noble Lords—that there are some people who, while they cannot prove that they are refugees according to the international criteria, have a call on our humanity. In that regard we give them exceptional leave to remain and allow them access to the benefit system immediately. I do not believe that we should go one step further and give them the same rights as refugees and backdate the benefits. I hope that with that explanation the noble Baroness will feel able to withdraw her amendment.

5 p.m.

Baroness Hollis of Heigham

My Lords, I do not know, but I do not think that the Minister was persuaded by his own case as he was making it.

Lord Mackay of Ardbrecknish

Always!

Baroness Hollis of Heigham

My Lords, the Minister was almost persuaded by it.

Lord Mackay of Ardbrecknish

Always.

Baroness Hollis of Heigham

My Lords, by the time it reached here, I can assure the Minister that it was "almost". I have to say that I thought the case pretty weak. The Minister for Social Security was trying to argue as though he were a Minister in the Home Office. He went to considerable trouble to explain that there was a difference in why an individual may end up being labelled—if I may use that phrase—a refugee, or being labelled as someone granted exceptional leave to remain. He showed us that there was a difference between the different periods of settlement: four years as opposed to seven years. That has nothing to do with it. It is irrelevant. It is a Home Office consideration as to how someone is designated. It is not concerned with social security legislation as to whether, first, that person is necessitous, and, secondly, whether the person has disqualified himself, even though necessitous, by some inappropriate behaviour. That is a social security test. That is what we are talking about in the amendment. We are not talking about the Home Office test, or what is the label. We are talking about social security tests, are they necessitous? Answer, yes. Have they disqualified themselves?

The Minister of State, Home Office (Baroness Blatch)

Give them everything!

Baroness Hollis of Heigham

My Lords, the Minister says, "Give them everything". It makes me realise, despite the courtesies, and so on, of the House, which we all respect and usually enjoy, how wide is the gulf between the two Benches. Despite the conciliatory language we seek normally to employ to persuade, the remark made by the Minister from the Home Office, "Give them everything", as though this was some sort of game show with the arrow going around, as on some cheap television commercial, suggests a lack of seriousness and concern and empathic imagination of what people who are fleeing from torture experience when they enter this country.

Earl Russell

My Lords, will the noble Baroness add that the Minister made that intervention from a sedentary position, but may the record show it?

Baroness Hollis of Heigham

My Lords, I accept what the noble Earl says. I return to the substantive point. The Minister was making the case, which I do not doubt is a valid Home Office case, as to the distinction between someone here as a refugee who has an individual fear of persecution and someone here for exceptional leave to remain because he or she is part of a generalised group of people who may therefore be at risk.

In both cases the social security issue is that both cases are necessitous and have not disqualified themselves. We have established that they are necessitous. That is the whole point about the means test for income support and income-related benefits. They have not disqualified themselves. Indeed, the Government have accepted, by giving them exceptional leave to remain, that they come within the same need for humanitarian treatment. So what is the difference?

All the considerations that the Minister has offered us are irrelevant. He has accepted that if both apply at the port of entry they will receive benefit; if they are both granted their status, they will receive benefit. All the Minister has done at the very last moment, having made a concession to those who are granted refugee status to have back-dated benefits, is to row back. For the first time in the benefit system he is putting a wedge between two categories of claimant. With the leave of the House, I invite the Minister—I realise that this is Third Reading—to tell me where at any previous point in the benefit system a distinction has been drawn between those who are claiming and obtain refugee status and those who obtain exceptional leave to remain.

I invite the Minister to tell me where previously any difference has been drawn. I accept the Home Office case, but this is a social security case. We have had the reply from him today speaking as Minister for Social Security. Will he tell us? He is silent. In other words, the Minister cannot tell us that at any time until now any distinction has been drawn in the social security system between those granted refugee status and those granted exceptional leave to remain. That is, until yesterday, for the first time. Why?

It is not the sums of money, because they will not be that large. It will be only for a short back-dated period for those who are subsequently granted exceptional leave to remain. It is not numbers. We are not talking about great numbers. We are not talking about a high cost. What are we talking about? Is it that the Government cannot bear the thought, having been overruled by the Court of Appeal and having therefore had to make concessions, of a loss of grace. I can think of nothing else but a desire to be grudging and mean. There is no other reason in the social security system. There is none at all, except to be grudging for its own sake. It is unbelievably petty-minded, mean and indecent of the Government. The fact that the Minister has not challenged my remarks at any point to contest anything I have alleged against the Government makes my argument for me. However, I shall not push the amendment to the vote. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Williams of Crosby moved Amendment No. 11: Page 8, line 42, at end insert— ("( ) Nothing in regulations shall authorise the exclusion from benefit under subsection (1) above of any person—

1. (a) who has made a claim for asylum within the period specified in that subsection, or
2. (b) who has appealed against a refusal of asylum and either—
1. (i) the appeal has not been certified as being without foundation, or
2. (ii) a special adjudicator has disagreed with such certification.").

The noble Baroness said: My Lords, I could understand if the noble Lord, Lord Mackay, were to use the phrase déjà vu about the amendment. I am well aware that the House is by now weary of the Bill. The number of empty seats in the Chamber, the clear loss of interest since yesterday, indicate that the House has had enough of the Bill. Therefore, those of us on the Front Benches, the Bishops' Benches and elsewhere who continue to press amendment after amendment are obliged to explain why we are doing so, and why we feel so strongly that we are pushing Members, especially on the Government Benches, to the limit of their patience.

In that category, perhaps I may say that I respect the noble Baroness, Lady Blatch, and the noble Lord, Lord Mackay of Ardbrecknish, for the patience and resilience they have shown, although the gulf between us is extremely deep. It would be less than generous not to recognise that they have both handled a whole set of repeated demands made upon them, not just from these Benches but from elsewhere in the House, with considerable grace, patience and determination.

Having said that, it stands to reason that we on the Opposition Benches in these last few amendments on Third Reading are obliged to explain why we regard the matter as being of such great significance that we have been prepared to bore Members of the House—some of them out of the Chamber.

The noble Lord, Lord Mackay of Ardbrecknish, has advanced the argument—I believe that noble Lords in all parts of the House will recognise this—over, over and over again that the proportion of those determined to be genuine asylum seekers—he has given figures of 4 per cent. and 7 per cent., including all forms of extended leave, to reach about 25 per cent. of the total, and a little less in 1995—shows that the great majority of those attempting to enter this country are, to use his words, "bogus asylum seekers".

We on this side of the House are ready to admit that there are bogus asylum seekers. We have said, and we should like to repeat, that we believe such people have no right to stay in the UK, or indeed to make life much harder for those who are genuine asylum seekers. However, the problem is that taking the argument that those who are successful appellants or successful first claimants tells us exactly how many genuine asylum seekers there are is not a convincing argument.

The noble Lord, Lord Mackay of Ardbrecknish, referred in his very last answer to the amendment moved by the noble Baroness, Lady Hollis of Heigham. He said, "We apply the UN test. Successful applicants satisfy the UN convention". But the UNHCR in a recent memorandum about exactly that said: A country's recognition rate of refugees may more often reflect the narrowness or liberalness of that state's application of the refugee definition rather than the legitimacy or otherwise of individual claims. The lower figures are then tendentiously used as evidence that bogus claims are increasing, thereby justifying further restrictive measures". They are its words, not mine. We have heard that tendentious argument repeated over and over and over again in the proceedings on the Bill.

I repeat, those are not my words but they are the words of the very organisation which the Minister called in his support. I refer to the UNHCR speaking about the United Nations Convention. The change in the climate of belief and disbelief has had a great deal to do with the sharp drop in the number of asylum seekers found to be genuine.

I wish to make only one further remark about that. We should be very careful about using the word "bogus" with the words "asylum seekers", as though they were married together and were one concept. There are bogus asylum seekers and there are many genuine asylum seekers. When we see, as on Monday the Independent so tragically indicated, a young man beaten up to the point of losing an eye because a group of thugs in the street regarded him as a bogus asylum seeker we can see the extreme dangers that this House will run if it stereotypes asylum seekers as though all or almost all were bogus.

We have pressed these matters because once in a while a Bill comes before the two Houses of Parliament on which there is such anxiety and concern that it flows well beyond the confines of this House or another place. This Bill falls into that category. I have spent 10 years of my life in government—four as a junior Minister and nearly six as a Cabinet Minister—and I have seen such Bills. They do not arise often but perhaps once in three or four years a Bill which in a sense is about the conscience of a nation comes before Parliament for consideration and decision. I believe that this is such a Bill. It is such a Bill because far beyond ourselves those groups in what is sometimes called civic society—the many democratic organisations beyond Parliament—have almost all given voice to their grave anxieties and concerns about the Bill.

I do not wish to detain the House more than briefly but perhaps I may remind your Lordships of what those organisations—they are not constituents but organised voices of concern—have said about the Bill. The National Association of Citizens Advice Bureaux said, about the decision to remove all benefits from asylum seekers, which is what we have been debating: The CAB Service believes that the fundamental principles of justice are undermined by the introduction of the regulations designed to remove … benefits from asylum seekers". The CAB is not a political organisation. The courts share that concern. There have been many quotations of Lord Justice Simon Brown and I shall not repeat them. However, at page 21 of his judgment he makes the point that those seeking to appeal against the refusal of asylum will now have no access to funds or benefits of any kind once they have gone through their original claim; that they will have no accommodation and, being ineligible for housing benefit, no prospect of ever securing any; that they are forbidden to be employed and cannot find alternative means of keeping themselves alive; that they are unlikely to have many families or friends to fall back on; and that their claims take up to four years to proceed.

They are in a uniquely terrible position. Of those five situations laid down by the Appeal Court, four apply only to asylum seekers and do not apply to our own people. However, I fully accept the parallel with regard to the first of those conditions; that is, the withdrawal of benefit. The other four conditions—no prospect of obtaining accommodation, no right to be employed, no likelihood of being supported by family and friends and the length of their appeal—are not on all fours with the two cases.

Even the Government's own Social Security Advisory Council, which is appointed by the Secretary of State for Social Services, stated: The reality of the proposals is that thousands of men, women and children will be left with no means of providing themselves with food or shelter". They are its words, not mine. It went on to state, Health professionals have warned that, given their vulnerability, they may be in such precarious physical or mental health that some may die".

Those issues go well beyond what is normally at stake in legislation. They are issues in respect of which the country is passing a milestone towards, I believe, a less generous, a less conscience-led, a less liberal—and I mean that in the broad sense of the word—and in many ways a less moral position. That is why we have gone on and on and on about this Bill.

I do not want to sit down without making one further comment. The noble Lord, Lord Mackay of Ardbrecknish, said in his marvellous forensic style—he would have had a great career in another profession had he not had a great career in his own—that it was time that the many critics of the Bill gave positive indications of what might be done. Perhaps I may mention three. Will the noble Lord consider making available through all diplomatic posts clear information about the terms upon which anyone seeking asylum may receive it in this country? Will he consider making sure that those landing on our shores and going through a port will have access to telephones and to the numbers of advisory council bodies to enable them to discover the grounds on which they can make their claims for asylum? Will he consider providing leaflets in many languages which will tell them as they arrive that they need to make an immediate claim if they are not to lose their chance of making out a case for asylum? Will he agree that those leaflets should make a specific case for those who claim that they have suffered torture? Such actions will make many of us feel a great deal better because they will enable the genuine cases to pass through what is now a very narrow and indeed narrowing door.

I do not wish to detain the House longer except to say that this morning, by some irony, being a Member of sub-committee A of your Lordships' Select Committee on the European Communities, I looked at a document on how the British Government could define and determine those countries within the Lomé Convention, mostly African and Caribbean countries, which in the committee's view had such a terrible record of human rights that their membership of the Lomé Convention should be suspended. I repeat that Her Majesty's Government were scrutinising the steps they would take to bring about the suspension of a country on the grounds of human rights.

If we can do that within the terms of the European Union, cannot we do that within the terms of this Bill? Cannot we say that countries of that kind are exactly those to which people should not be sent back? That is what Peers on many sides of the House have argued at many points in the Bill. Yet in relation to another matter we are told by the Government that it is perfectly possible to do so.

I believe that we are passing a milestone. I wish that it was a milestone on a road of ascent but I fear that it is a milestone on a road of descent. I say to all Members of the House that we extend our apologies for keeping the House sitting for so long, but it is the only legitimate constitutional and parliamentary answer that we have in trying to draw the attention of this House to what we regard as an immoral and very bad Bill. I beg to move.

5.15 p.m.

Lord Ackner

My Lords, it is a feature of every system of administration of justice that there should be rights of appeal. In our system, unlike many continental systems, we have both absolute rights of appeal and discretionary rights of appeal. The discretionary right of appeal usually makes provision for some filter system in order to ensure that the right of appeal is not abused. Leave is required from the trial judge or, if he fails to give it, leave is then required from the Court of Appeal. A point of law must be raised, a point of law of public importance when it reaches the Appellate Committee of your Lordships' House. That is a normal feature of any administration of justice. You condition the right of appeal, you filter it, by reference to the merits of the right of appeal, by reference to the merits of the case to be the subject matter of the appeal.

That is not what is happening in regard to the right of appeal in asylum cases. An entirely arbitrary approach is adopted in order to limit the appeal. If you have access to funds which enable you to survive, you can continue with your appeal. But if you cannot raise money, first because you are not allowed to work and secondly, because there are no charitable sources to support you, then in practice you will lose your right of appeal.

As a lawyer and a former member of the Bench, I find it very distasteful that the state should give with one hand a right of appeal and then remove it on the basis that you will be starved of your opportunity to exercise that right of appeal because you are not allowed to work if you seek to exercise your right of appeal and you are not allowed any social security support.

I return to where I started. If the right of appeal is to be restricted—and I fully understand that there are many circumstances in which it should be restricted—it should be restricted by reference to the potential merits or demerits of the appeal. It should not be restricted by something quite ulterior; that is, the ability to survive for long enough to enter and argue your appeal. Accordingly, I strongly support the amendment.

Earl Russell

My Lords, my noble friend has spoken for me entirely, as has indeed the noble and learned Lord, whose intervention I very much appreciated. I wish to add two pieces of evidence on the narrow point and one on the wider point. The first concerns a survey of 722 appeal cases between July and December 1995, cases heard by special adjudicators. Even of those cases dismissed, only 16 per cent. were seen as totally incredible. Only a small number of the unsuccessful cases are manifestly unfounded.

The second quotation should be familiar to the Minister because he spoke the words himself as recently as 19th June on the Housing Bill. I asked him whether he was able to predict whose appeals would succeed. The Minister said: I was beginning to wonder whether the lateness of the hour was affecting the noble Earl when he asked how I could tell who was going to be successful and who was not. I then realised that he asked the question in order to answer it himself; the answer being, of course, that I could not tell. That is true. If we could tell, we should have been able to make a much finer judgment on the whole question of asylum seekers and their continuing right after they had been turned down by the Home Office for the first time"— [Official Report, 19/6/96; cols. 426–427.] I could not have expressed the matter better myself.

The Minister is admitting that when somebody appeals we do not know whether he will succeed. Therefore, in denying benefit to all those who appeal, we are denying benefit to some genuine refugees as well as to some who are not. The Minster is using a very blunt instrument.

We have dealt with the general effect of the Bill. I warned the noble Baroness privately as long ago as last December, when the Bill was still in another place, after I had spoken at a protest meeting in Central Hall, that I was alarmed by the damage that the Bill was doing to race relations. I do not seem to have convinced people.

I have a very recent report from the Commission for Racial Equality. Mr. Herman Ouseley in his introduction said: Throughout 1995, stories were trailed in the tabloid newspapers about 'asylum seekers', 'illegal immigrants' and 'benefit fraudsters'. The notion of 'bogus' arrivals at British airports has taken root in our folklore and every message reinforces the damaging and false stereotype of immigrants as people who only know a few words of English: 'benefits', 'asylum' and 'lottery handouts'. Combine this with the fact that virtually all the images projected of illegal immigrants and asylum seekers—and these terms now seem to be used interchangeably—are of people with origins in Africa, the Caribbean and Asia and it is little wonder that race relations are sometimes on a knife edge". The noble Baroness shakes her head. I really do not think that she knows.

5.30 p.m.

Lord Mackay of Ardbrecknish

My Lords, perhaps I should first say to the noble Baroness, Lady Williams, that I am grateful to her for her remarks to my noble friend and myself about our patience. I hope that by showing that I am demonstrating that I appreciate the seriousness of the issues which we are discussing and, indeed, the seriousness with which the noble Baroness, Lady Williams, the noble Baroness, Lady Hollis, and other noble Lords opposite address this issue. Therefore, I accept that plaudit with courtesy and I return it. I understand how deeply she feels about this issue.

In fact, the noble Baroness, Lady Williams, told me yesterday in the clearest possible terms that her party would repeal the whole of this Bill and therefore would be quite happy to accept the expenditure of £200 million for this year and next year, perhaps rising to £300 million in the following year. I accept that there is a difference between us. As a Minister for social security and as a Treasury spokesman, I must try to contain the amount of money which my department spends and therefore which must be taken from the British taxpayer.

Lord McIntosh of Haringey

My Lords, would it not be quicker to say New Liberal, new dangers?

Lord Mackay of Ardbrecknish

My Lords, I think it sounds more like old Labour.

Baroness Seear

My Lords, that has been continuing Liberal policy. It is neither new nor old. We are not given to changing our practice.

Lord Mackay of Ardbrecknish

My Lords, I do not think that I should become involved in a discussion about that. But certainly the noble Baroness, Lady Williams, has made her position quite clear and I am quite clear as to where she stands. I must say that the position is not quite as clear in relation to the party directly opposite me in this regard because I have not heard any indication that they would repeal this legislation and face the expenditure that I have mentioned, rising to perhaps £300 million in the next three years. That would be extra expenditure and if I understand all the discussions which have been taking place during the past few weeks about what is described as "on the road to the manifesto", it seems to me that if you suggest any increases in spending you must also suggest some savings elsewhere in your budget. I wonder which benefits for British citizens will have to be reduced or removed to cover the £300 million more that the party opposite wishes to spend on those people whose right to asylum turns out to be unfounded. Perhaps I shall hear an answer later on.

The noble Baroness, Lady Williams, admitted that there are bogus asylum seekers. She could not do otherwise. If that were not so, it would be suggested that all 55,000 people who came in this year should be granted asylum. I suppose that it would save the Home Office quite a lot of money in administrative costs if that were so but I fear that it would cost my department and the taxpayer a great deal of money into the future. Therefore, I am happy to hear that.

There was a suggestion that we apply the convention more narrowly than other countries. Perhaps I may just tell the noble Baroness that it is the courts and the adjudicators who ultimately determine whether we have properly applied the UN convention in each case; in other words, either the court or the adjudicator decides. There have been many challenges to our decisions on appeal and by way of judicial review, but, while we lose the occasional case, we succeed and win the vast majority of those challenges. That leads me to draw the conclusion that we are obeying and applying the terms of the convention in the way intended. It is not just a judgment of us; it is a judgment of the courts and of the adjudicators. I give way to the noble Lord.

Lord Avebury

My Lords, will the Minister agree that, as in the case he mentioned earlier where the adjudicator referred the matter back to the Secretary of State who then granted exceptional leave to remain, it is the Secretary of State and not the courts who determines the application?

Lord Mackay of Ardbrecknish

My Lords, the point is that the adjudicator will have decided that the applicant does not fulfil the criteria for refugee status. If the noble Lord wishes to close the door at that point, so be it. However, I do not believe that he does, and neither do I. In those circumstances the adjudicator can suggest that the Secretary of State ought further to consider the case before a final conclusion is reached. At that point the Secretary of State may decide, in a very few cases after the appeals circuit has been gone through, that exceptional leave to remain should be granted. The majority of cases for ELR are decided by the Home Office in the initial decision-making process when it is decided that a person does not qualify as a refugee. Then, as I said during the last debate, the second question is asked; namely, "Can this person go back to his own country?". In the case of somewhere like Somalia, Afghanistan or even the former Yugoslavia, it might be unreasonable to expect him to do so and, therefore, the person would be granted exceptional leave to remain. That is the way the system works.

I turn now to the amendment before us. It has two effects. The first would allow benefit to be paid to those people who claim refugee status at the port of entry or within three days of arrival. I suspect that that part of the amendment is redundant; indeed, the noble Baroness did not mention it. In fact, the noble Baroness spoke to the second part of the amendment which would restore benefit entitlement to all those asylum seekers who appeal against an initial adverse decision, except for those whose claims have been certified as being without foundation.

I must reject the amendment for the following reasons. All those asylum seekers who would gain access to benefit during the appeals process would already have received a full substantive decision on their asylum claims. That is to say, their cases will have been assessed against the criteria set out in the UN convention. I see no grounds for requiring UK taxpayers to support people who have been found not to be refugees.

When I listened to the noble and learned Lord, Lord Ackner, I was not sure whether he was suggesting some serious filter, just as we have in the civil courts and especially in the criminal courts where guilt or innocence is established and where people have the right to appeal. However, not every case can actually go to appeal; indeed, as I understand it, each case has to be filtered before that procedure can be followed. Of course we do not do that. In an asylum case, anyone who wishes to do so can start off the appeal process. Then, in the first instance, it is up to the adjudicator to look at the case and decide whether a correct decision was made at the lower level. I see that the noble and learned Lord wishes to respond. I give way.

Lord Ackner

My Lords, I apologise to the House if I did not make my point clear. My suggestion was that, if the appeal is to be controlled in some special way, it should be done by reference to the potential merits or absence of merits of the appeal. One does not do it by an indirect reference to the ability to survive, having removed from that person the right to work and the right to any social security benefits.

Lord Mackay of Ardbrecknish

My Lords, I understand what the noble and learned Lord is saying. However, I must point out to him that, as almost everyone appeals, I believe it would be quite difficult and time consuming for us to set up a system which would introduce a first sift of all the appeals submitted in order to sort out the very small number that may be justified. It must be remembered that only three in 100 applications turn out to be based on fact and, therefore, entitled to refugee status. I am not entirely sure what percentage we might have to sift out—perhaps, 90 per cent. to leave 10 per cent. in which the 3 per cent. would still be a comfortable minority—but it would involve a pretty big sift.

If my noble friend Lady Blatch came to the House with a proposal to introduce such a sift system and it was pretty rough and ready, I suspect, having listened to arguments on the issue, that the people who take the opposite view to the Government on the matter would oppose us. However, perhaps I am not seeking a very easy way out of that dilemma; indeed, I do not believe that there is one. Most people on the Opposition Benches would demand that anyone who wished to appeal on being denied refugee status should have his or her case properly considered. I believe that that conflicts with some kind of initial sift to decide whether or not an appeal was justified.

The benefits system is there for a variety of reasons. The problem is—I have tried to prove it but, obviously, I have not convinced some noble Lords opposite—that the present system acts as an attraction to people to keep their claim going as long as they possibly can because, in that way, they can continue to receive benefit. I am not complaining about that. It seems to me to be a sound behavioural reaction from the individuals concerned. However, I do not believe that the Government, who are responsible to taxpayers for the spending of public money, can allow such a situation to continue. We must do something to try to inhibit what has been happening and what has grown into a very expensive commitment on behalf of British taxpayers.

I have already suggested that in the benefits system British citizens do not generally receive benefit while appealing against a refusal decision. If they did, they would all have an incentive to appeal against a decision not to award benefit. Every time a British citizen was refused benefit, he or she would have every reason to appeal because the benefit that they had been refused would continue to be paid. I do not believe that anyone has suggested that we incorporate such a provision in the benefits system; yet we incorporate it in the appeals system so far as concerns asylum. Interestingly enough, nearly half of those who appeal in the British benefits system—to be honest, there are not too many in number compared with the number of decisions which are made by the Benefits Agency—win their appeals. Last year only three out of 100 asylum seekers won their appeals.

As I have said many times, it is wrong to treat asylum seekers more generously than British citizens. Moreover, it is certainly wrong for British taxpayers to be asked to pay benefit to those people for months when 97 out of 100 of those involved in such cases will actually turn out to be, as I described yesterday, not the right people to receive the benefit. I do not believe that the British public would consider that to be a reasonable and sensible way to proceed. In fact, if members of the public knew in detail what was happening, I believe that they would be outraged. When I say, "what was happening", I mean the number of people who apply for asylum while receiving benefit for months and whose applications then turn out to be unjustified.

The more incentive that there is to appeal, the more appeals will be forthcoming and the longer it will take to process them. The longer benefits remain in payment to the vast majority of appellants whose claims for asylum are unfounded, the higher will be the cost to British taypayers. The longer the very few genuine refugees or asylum seekers have to wait for a decision, the longer they will be left in a state of insecurity, worry and concern. I do not believe that the current situation can be justified.

Apart from the noble Baroness and the Liberal Democrats, who have made it quite clear that they would just live with the situation as a consequence of their general policy towards asylum seekers, I have not heard any real suggestion as to how we can manage to stop this very considerable expenditure of public money. With that explanation, I hope that the noble Baroness will feel able to withdraw the amendment. However, if she does not do so, I hope that my noble friends will join me in the Division Lobby yet again.

Baroness Williams of Crosby

My Lords, I wish to respond to three points that the noble Lord made. I do not often say this to him, but as regards my first point I do not think he can have listened at all to what I said. I drew, in considerable detail, on the parallel that he often makes between those denied benefit who are United Kingdom citizens and those denied the right to appeal who are asylum seekers. The position does not stand on all fours, as the noble Lord knows well. It is possible for someone in this country who has been refused benefit and is appealing against it to continue to be on a housing list. It is possible for that person to do casual work and it is possible for him to fall back on a network of family and friends. In all three respects there is no parallel with an asylum seeker who often knows no one here. If I may say so, the argument the noble Lord made does not do him credit. We tried to address exactly that argument in some detail, leaning—if I may say so—on the words of the Court of Appeal judgment which directly addressed this subject. The noble Lord will be aware that page 21 of the judgment lays out in detail the difference between a UK citizen and an asylum seeker in this regard.

Secondly, it is interesting that the noble and learned Lord, Lord Ackner, attempted to respond to something that the noble Lord asked for earlier; namely, to make constructive suggestions. I am no lawyer but I understand that the granting of legal aid depends to some extent on the likelihood of the success of a case which is being put forward for legal aid. As I understand it, the noble and learned Lord, Lord Ackner, was suggesting something rather similar; namely, that one would consider the basis on which an appeal would be brought. We on this side of the House would certainly consider that, just as we would consider closely the expenditure on officials, as distinct from the cost of keeping people on benefit for months and months on end.

It must be possible to deal with procedures more rapidly. That does not mean a period of three days, but it certainly need not mean four years. The noble Lord talks as if four years and three days respectively constitute the same length of time. It must be possible to deal seriously with an appeal in a period far shorter than four years. Perhaps the Home Office may take four years to deal with these cases. That seems to me an extraordinary length of time.

Thirdly, I feel that the Minister is straining at a relatively small element of expenditure while being prepared to swallow a large one. As the Minister knows, the sum of £300 million is a large sum of money. We believe that that sum could be substantially reduced in the ways that I have hinted at. But the Government have never yet denied the estimate publicly made that the poll tax cost taxpayers £10 billion. They never seem to be willing to consider the ways in which huge sums of money are wasted in this country by noble Lords and Members of the Government opposite. They always point to some small expenditure and hope that none of us will notice the great gaps that have opened up as a result of the irresponsible use of taxpayers' money. We are not prepared to be blamed for that as if it happens only as regards one side of the House. That is not the case. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

5.45 p.m.

Baroness Hollis of Heigham moved Amendment No. 12: Page 9, line 8, at end insert— ("( ) Regulations may provide that this section shall not apply to a person who is considered by the Secretary of State to be a vulnerable person.").

The noble Baroness said: My Lords, in moving Amendment No. 12 which stands in my name and those of my noble friends Lord McIntosh and Lord Dubs, I wish to speak—I have given notice of this—to Amendments Nos. 13 and 16, and to group Amendment No. 16 with Amendments Nos. 12 and 13.

The provision I am discussing picks up a point we have been making throughout these debates on social security. As regards all our housing and social security legislation, however grievous the behaviour of the individual may seem in that he appears to have made himself deliberately homeless, or he has refused to be available for, or to be actively seeking work, or the individual has failed to co-operate with the CSA to divulge the name of an absent parent—whatever the sin, if I may use that phrase, and however threatening the penalties—we have always made a distinction between those who are not vulnerable and those who are. However badly the Government may feel someone has behaved, and however severe may be the sanctions imposed on that person; some proportion of benefit has always been restored within two weeks or so to those who are vulnerable. In other words the issue of basic subsistence for those who are vulnerable overrules a judgment of what is wrong or inappropriate in their behaviour. It is a basic principle of our welfare state that those who are vulnerable and who cannot reasonably be expected to look after themselves should not be denied by society the basic means on which to live.

However, in this Bill—as we know to our cost—the Government are proposing to scrap benefit for all asylum seekers who apply in country—however strong their case turns out to be—and to take 19 months to determine a case, however severe the need. Yet these asylum seekers—unlike some people within the British social security system—who are subject to sanctions have committed no sin or been guilty of bad behaviour. They simply made a mistake of applying in country rather than at the port of entry. They made a bureaucratic mistake, whether through ignorance, illiteracy, intimidation, fear or whatever. For that they lose 19 months or more of benefit. What is even worse is that within that group of asylum seekers who have made a bureaucratic mistake and have lost benefit are some of the most traumatised and vulnerable people any of us are likely to encounter.

What would this amendment do? It would not give basic means of support to the single, fit and healthy and those who have some capacity to support themselves—particularly after six months—and who perhaps will find work. Even though I believe those people should continue to receive benefit, that is not what this amendment achieves. The amendment refers to those who are defined as vulnerable. That is a well-established term in social security legislation and it is at the heart of the Housing Bill which is currently going through your Lordships' House. Therefore we know whom we mean by vulnerable people; that is, those who have dependent children, those who may be poorly fed, in poor health and traumatised (there are 3,000 or 4,000 of them a year coming through) together with the sick and disabled, the frail elderly and the terminally ill. Those people should be regarded as vulnerable and eligible for basic benefit.

Whom are we talking about? I give an example which I have received today from the Joint Council for the Welfare of Immigrants. The source of this information is a nurse practitioner based in Southwark who is part of a three-boroughs' primary healthcare team. She describes several cases that she has dealt with this morning. One of them concerns a man in his fifties with TB. He has nil income. He will spend two weeks in hospital—that is the infectious period only—and upon discharge, if the nurse cannot get him into Mother Teresa's Sisters of Charity hostel, which has limited places but which is rent free and provides care, he will be back on the streets. The nurse states that that will inevitably re-activate his TB and require him to be re-hospitalised. In the interim he will infect others. The nurse states that TB is a disease of poverty and is on the increase, especially among ethnic minorities, who more often than not contract it after arrival in the UK because a UK strain of TB is usually diagnosed.

This morning that same nurse dealt with another refugee asylum seeker—a 72 year-old who currently receives no benefits and was hospitalised following an assault while sleeping on a park bench. After a couple of days in hospital he may be back on the park bench. The nurse points out that the homeless are sitting targets for such assaults. The nurse is dealing with those who are vulnerable through disability, ill-health, frailty, old age or terminal illness. They have nowhere to keep their medication if they live on the streets. Where do they keep their insulin if they do not have a fridge? What happens if their crutches are nicked? That has happened to one person the nurse has dealt with. How do they replace the crutches? Incontinence is common among traumatised people. How do they maintain personal hygiene when they have no money to buy food or to find accommodation? What happens when their immune systems are compromised through poor nutrition, exposure and poor diet? Are we really willing to see such people live, sleep and perhaps die on the pavements? Are we really willing to see some of our streets become like the streets of Calcutta when the refuges, shelters and church halls are full?

Apart possibly from Greece, no other country in Europe of which I am aware offers no means of support whatsoever to in country applicants for asylum. We are the meanest and worst in Europe apart possibly from Greece. According to the information that I have from reputable organisations, all other countries offer at least hostel accommodation and food. Perhaps noble lords will forgive a literary allusion. Thomas Carlyle said that a widow showed her sense of sisterhood by infecting people with cholera because those who were well off did not clean up the water supply. That man with TB will reinfect others with TB in terms of a new notion of brotherhood.

Austria, Belgium, Denmark, France, Germany, Ireland, Italy, the Netherlands, Portugal, Spain and Sweden make some basic provision for the needy and vulnerable. It may be a reception centre. They may offer modest subsistence support. Germany has three times the asylum seekers that we have but it offers accommodation, food and modest benefits. Greece has some element of discretion. We alone in Europe offer nothing to those who apply after they enter this country even though they are the most vulnerable, are terminally ill, have dependent children, or are pregnant, disabled, frail and elderly. They will live on our streets, and they may die on our streets. I exaggerate not at all.

In practice, local authorities cannot walk away from responsibility for children under the Children Act 1989. The Government will face significant costs for reimbursing those local authorities for bed and breakfast accommodation or for taking the children into care. Equally, those who are vulnerable are likely to come within the community care and National Health Service provisions. However, hospitals are now beginning to refuse to discharge patients such as that man with TB and will keep them in hospital at £250 a day because we will not offer them £50 a week in income support.

Will the Government think again even at this late hour? We are talking about people who are vulnerable, destitute and innocent. They are here. We should surely be doing something other than turning our back and walking away. No other country would be as flinty as we are in the face of such destitution. I beg to move.

Baroness Williams of Crosby

My Lords, it may be for the convenience of the House if I speak to Amendment No. 16, a relevant amendment, so that we keep the issue to a single debate. I hope that that is acceptable.

Amendment No. 16 takes up the point made so eloquently by the noble Baroness, but with a difference. It states that Clause 11 and the schedule should not come into force until such time as the Minister is able to ascertain and assure the House that there is provision for this basic subsistence—the means of keeping alive. At the most basic level that means food vouchers, and some kind of shelter—the level that simply keeps body and soul together. It is the bottom level that any civilised country can possibly accept.

Amendment No. 16 proposes that the provisions of the Bill should not be finally introduced until the Government can say to Parliament and the people that that minimal provision has been made. We heard some eloquent and moving testimony from the right reverend Prelates in this House about the terrible pressure being brought to bear within church halls, voluntary halls and churches in a desperate effort to shelter people who have nowhere else to go. There is a limit to how much the churches, and men and women of good will, can carry. The Minister should not allow these draconian provisions to go ahead until he or she can be sure that there is provision so that people do not die on the streets.

I do not wish to detain the House. The amendment is the bottom line; there is nowhere to go. Below the level proposed in the amendment one is beginning to deal with people who are starving or dying of the cold, and those who cannot protect themselves from the rain and the snow. Even in the 1805 Eastbourne judgment this country was not prepared to leave such people simply to fight on their own for survival on the streets.

I conclude my brief remarks by reading a letter sent to me by one of the most distinguished Members of your Lordships' House who happens also to have been a refugee in his time—a man who has brought great lustre to our country. The noble Lord sent me the letter and asked me to read it out on his behalf; I did not ask him for the letter. He says: Anybody on British soil cannot be left helpless in terms of dignified survival, family ties, health, housing, clothing and an opportunity to become acquainted with the culture of this land". He concludes by saying that he is unable to attend because he is on tour in Germany, and signs the letter, "Yehudi Menuhin". I leave his words to say more eloquently than I can why the amendment should be approved by this House.

Lord Avebury

My Lords, I heard yesterday from an asylum seeker who contracted muscular dystrophy after arriving in this country. Will a person with a serious disease which everyone knows is not susceptible to cure be left to fend for himself? Will that person nevertheless be left with a nil income? Will a person who is seriously ill be ineligible for free prescriptions? What happens when that person needs medication and goes to the chemist? Are such people to be denied all kinds of medication because they failed to apply for asylum at the port of entry? If we are going to treat people who are seriously ill in such an inhuman way, we have come to a pretty pass. However, I understand that that is the meaning of the new clause tabled by the Government which, if we are not careful, your Lordships will allow to go through.

Lord Mackay of Ardbrecknish

My Lords, in these three amendments, and certainly in the speeches that we have just heard, we are going right back to the basic principle. The divide between this side and the other side of the Chamber is perfectly clear. Members on the other side are quite content with the current situation and do not feel that we owe it to the British taxpayer, or indeed to the genuine refugees themselves, to try to contain the problems that we have in dealing with the very considerable number of people who come here and apply for asylum.

We are invited to consider streets full of people who are destitute and traumatised. I hear those two words from the noble Baroness week after week across this Dispatch Box about every single group in the country. I find it odd to square that with the fact that I am responsible for payment of something like £90 billion worth of benefits in one shape or form. Speaking on behalf of the British taxpayer, which is the pressure group I like to think I represent, it does not seem to me that we are mean minded or mean spirited when spending that kind of money on the social security system.

However, be that as it may, we have once again heard this picture painted about asylum seekers. There is one simple way that asylum seekers can obtain benefit when they arrive in this country: it is to be honest when they arrive here, and to say, "I have come seeking asylum". That is the way that they will gain entry into the benefit system until the first decision is made.

6 p.m.

Earl Russell

My Lords, has the Minister read the judgment in the Kihara case? Is he aware that Mr. Kihara attempted to claim asylum at the port and was dissuaded from doing so by the customs authorities?

Lord Mackay of Ardbrecknish

My Lords, I shall not trade special cases because I do not know the details of any. However, I have enough experience at the Dispatch Box to know that noble Lords—not deliberately—will perhaps report what they read in newspapers. However, cases are not always totally exposed by the people who wish to make a point and therefore I shall not deal with specific cases. If someone applies to a customs officer instead of the immigration officer, it could be proved and an adjudicator would be likely to accept that it was an application on arrival. I am clear that that would be the case relating to arrival.

People who come here seeking asylum can have access to the benefit system. However, noble Lords opposite wish to give access to the benefit system to people who come here illegally. That is one group. The other group are those who come here and say at the point of entry: "I have come here on business, as a visitor; I shall be no burden on the British taxpayer". On that basis, we let them in for a limited period of six months.

If people are so traumatised and if they have selected this country to come to; if they have decided that it is a safe country in which they will not be persecuted, I fail to understand, despite all the special pleading I have heard over many hours, why it is unreasonable to expect them to say at the moment of entry: "I am being persecuted in my country of origin and seek asylum". That seems to me a logical position. To depict it otherwise, as we have just heard, is false, as is the picture of the streets of Britain being full of refugees, traumatised and sleeping rough. All the work under the rough sleepers initiative in London shows that there has been a considerable decline, thanks to the Government's initiatives and a considerable amount of money spent on people sleeping rough in London. There is little, if any, evidence that those who are still sleeping rough are refugees. I am not persuaded by the arguments that have just been put.

It has also been suggested that we run a mean system here, meaner than a list of countries about which your Lordships heard. In that case, I ask: why do some asylum seekers come here from those countries seeking asylum? The applicant in the cause célèbre of the Court of Appeal's judgment of 21st June came from Belgium. I ask and hope for an answer—

Baroness Williams of Crosby

My Lords, I ask the Minister to consider this fact. So far, the Bill has not passed. We are talking about the situation when the Bill has passed.

Lord Mackay of Ardbrecknish

My Lords, since February we have had in place the same proposals and principles that I am defending at the Dispatch Box. I have explained the result: there has been a decline. I notice that the noble Baroness did not answer my question: why should someone come from Belgium? I consider it to be as safe as this country. Why should they come from Belgium to seek asylum here? There must be some reason. If Belgium or France are so generous in benefits—and some asylum seekers came from France—why do not people ask for asylum there? I am puzzled. Perhaps the noble Lord, Lord Avebury, will explain.

Lord Avebury

My Lords, I did explain, if the Minister had listened to the case I gave. It related to someone who came here from France. The French had sent an Iraqi asylum seeker back to his country of origin where he was tortured. Therefore, when he escaped again from Iraq he did not wish to remain in France and came here.

Lord Mackay of Ardbrecknish

My Lords, presumably he came directly here. I am looking at cases of people who went to France, Charles de Gaulle Airport. They were not being persecuted in France. I am interested to know that the noble Lord thinks that France is not a safe country. I would not take that view of the French, I consider France to be a civilised and humane country. Anyone coming from abroad would be as likely to gain refugee status and be as safe there or in Belgium as in this country.

Lord Mishcon

My Lords, would it be so dreadful if we were known in the world, as we have been in the past, as a most liberal country for refugees and if our reputation were greater than Belgium's?

Lord Mackay of Ardbrecknish

My Lords, nothing we do will diminish our reputation for accepting refugees when they have proved their refugee status or for granting people exceptional leave to remain when they have not justified their refugee status. They may have come from countries in a fair degree of turmoil, such as I mentioned. Somalia, Afghanistan, Iraq and the former Yugoslavia are four of the key countries from where at the moment the majority come of those who are given exceptional leave to remain.

My point is that we give such people access to the benefit system as long as they apply on arrival. Many do—one out of three applies already on arrival. Last month that had increased to one in two. The idea that everyone who comes is traumatised to the extent that they cannot apply on arrival does not hold up. Last year's statistics show that the vast majority of the people who came from Afghanistan—one place in awful turmoil—who were quite traumatised applied at the port of entry on arrival. I do not believe that the Opposition can put that argument; logic is not on their side.

The amendments wish to draw a distinction between the vulnerable and the non-vulnerable. It is not an easy line to draw, as the noble Baroness knows. We wish to make regulations under which we seek to restore benefit. That is done on the basis of a clear distinction between those who claim on arrival and those who do not. As concerns vulnerable people—children or the elderly—the noble Baroness asks your Lordships to believe a false picture. They would be catered for under the Children Act and the care in the community legislation. Those duties remain. The picture which she painted in order to advance her case for the first amendment is totally false.

No one spoke to Amendment No. 13 but it is in the group and was included in some of the noble Baroness's remarks. The amendment takes us into the territory of some of the other benefits in the system. The Court of Appeal ruled on income support, housing benefit and council tax benefit. It left those regulations which exclude asylum seekers from other non-contributory benefits unaffected. DLA and SDA are two of them. Those benefits have residence and presence conditions in any case which are designed to limit entitlement to those people whom the taxpayers would wish to support. Until February, if they were able to satisfy the residence and presence tests, there was no further restriction on them claiming non-contributory benefits. We do not believe that taxpayers should be asked to support everyone who chooses to come to this country, regardless of where they come from, how long they have been here and the basis on which they have come here. The February regulations did not change the residence and presence conditions; they introduced a barrier to those who quite wilfully manouevre themselves round the benefit system in this country. The amendment therefore has no justification at all.

The third amendment, Amendment No. 16, to which the noble Baroness, Lady Williams, spoke, is clearly intended to undermine the restoration of the February regulations. It will leave in place the benefits incentive for those economic migrants who come here and abuse the asylum process. The Court of Appeal spoke in dramatic terms about total destitution and so on. However, I have already explained that there is a simple way for people who wish to come here and claim asylum to obtain benefit. It is to apply at the port of entry.

I hate to keep saying that as it harks back to my days as a schoolmaster. But occasionally you have to keep saying things because the class does not quite seem to be paying sufficient attention no matter how many times you say them. People who apply at the port of entry can receive benefits. That message is loud and clear. The British taxpayer will help in that regard. So I really do not see any justification for us to go any further, as this amendment would have us do. It would require the Secretary of State to ensure that any arrangements he makes under the terms of the amendment will either not give rise to any extra cost for local authorities, or make provision by special grant if they do incur extra cost.

As the House knows, we made arrangements for a special grant to help local authorities with unavoidable extra costs arising as a result of benefit changes. If new arrangements of any sort are made, we will consider what sort of provision may be needed. As I indicated yesterday, their responsibilities under the Children Act, unaffected by this legislation, would be considered. However, it is not appropriate to specify a particular form of help for this one area and suggest expenditure on asylum seekers via the local authorities. I am sure the local authorities are very grateful to noble Lords and the noble Baroness for their concern about their expenditure. I am not entirely sure that the ordinary taxpayer would be so grateful. It is the ordinary taxpayer who would pick up the tab for any help that we were to give were we to replace the fundamental point, that people who come here illegally or under false pretences and say at the port of entry that they are coming for a limited period to visit or for business will not have any recourse to public funds. I do not believe that those people should be able to gain access to the benefits system a week, a month, six months, or more than a year in many cases, after they have entered the country on that principle. If they are genuine asylum seekers and are genuinely traumatised, the message from the parties opposite, along with mine, ought to be that they should apply at the port of entry, when they will be properly considered for benefit and properly helped.

Baroness Hollis of Heigham

My Lords, we return to the basic point. The Minister has only one argument, and he repeated it endlessly. It is that the way through the problems for those who are vulnerable, traumatised, illiterate or unable to speak English is to apply at the port of entry. That is his only response, and he took quite a lot of time to repeat it.

Amendment No. 12, which deals with the vulnerable, refers to frail, elderly, disabled, sick and terminally ill people. They are the people the Minister expects to have the confidence, fitness and health to apply literally at the port of entry.

If the Minister cannot understand that if people are vulnerable, by definition that starts to incapacitate them from meeting our bureaucratic requirements, he shows a lack of imaginative understanding of the feelings of an asylum seeker when he confronts an immigration officer. It is a time of acute stress for him.

The Minister made the point that, if they do not do that, they are coming here illegally. They are coming "illegally" only in the sense that the law is what the Government, and therefore Parliament, have defined it to be. It is a distinction that no other country in Europe draws. No other country in Europe says that if you apply at the port of entry the application is legal, but if you apply in-country it is illegal. It is an act of government to make such an application illegal. It does not make it immoral or wrong. It simply says: if you do that, we shall not give you benefit. That is the whole point of it. That is the only reason for it. There is no moral or ethical basis for it. It happens to be an administratively convenient way for the Government, as they believe, to deter benefit applicants.

The UNHCR says that many genuine asylum seekers will need to lie and that, far from subverting their case, it is evidence of their case, because of the degree of their trauma. That is not my statement. The UNHCR have more experience in this area than, I suspect, do most noble Lords in this Chamber.

The Minister went on to say that we have belaboured him for being mean. He asked, if our benefits were so mean, why were people coming to this country? He said that showed that the benefits must be generous and therefore we must check them. On the contrary, the Minister makes my point for me. If our benefits are mean and people continue to come here, it shows that they come because they have a well-founded fear of persecution, not that they come to exploit a benefits system which even the Minister admits is less generous than that of most of our European neighbours.

The figures support that. Before last February I believe 67 per cent. of asylum seekers claimed asylum in-country. If the Minister is right and they sought to receive benefit, that was their reason for coming here and they were manipulating the system because they knew how to do it, as the Minister seems to suggest, since February we should have seen a sharp change in behaviour. We should have seen only 20 per cent. or 30 per cent. applying in-country because they knew that they would not get benefit and instead they would have applied at the port of entry. That is what would have happened if these manipulative, clever, cunning asylum seekers were operating in the way that the Minister suggests.

On the contrary, 67 per cent. of those seeking asylum applied in-country before February; and after February—when they should have changed their behaviour if the model of rationality that the Minister offered was valid—what was the figure, 50 per cent., 40 per cent., 30 per cent.? No, it was 64 per cent. In other words, even though they know that they will receive no money by so doing, they still seek asylum in-country in almost the same proportion as before, when they could receive money. Their motivation was very clearly not money as such because this country was more generous than elsewhere, but because they feared persecution and for well-founded reasons did not wish to return to their country of origin.

I repeat: this amendment is not an open door. It is about people who are vulnerable. The notion of vulnerability, contrary to what the Minister said, is well understood in social security law. It is the basis on which those who are sanctioned and lose JSA payment will receive the payment back after two weeks if they are vulnerable. The Minister and his department have to apply that test day in, day out through every benefit office in the country. It is also at the core of the Housing Bill, as the Minister will know, because he has also been handling that Bill. Far from "vulnerable" being a nebulous term and opening floodgates, on the contrary, it is a well-established, well-defined, well judged and well tested criterion by which we accept that those who are necessitous are entitled under the basic laws of humanity to bare subsistence.

The Minister knows that. We know that. I shall not press Amendment No. 12, nor move Amendment No. 13. However, if the House agrees, I hope that we shall immediately go on to discuss Amendment No. 16. I encourage the noble Baroness to press her amendment at that stage. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 13 not moved.]

6.15 p.m.

Clause 13 [Short title, interpretation, commencement and extent]:

[Amendments Nos. 14 and 15 not moved.]

Baroness Williams of Crosby moved Amendment No. 16: Page 9, line 45, at end insert— ("(3A) No day shall be named for section 11 and Schedule 1 to come into force until the Secretary of State has reported to both Houses of Parliament that he has put in place arrangements to secure that no person to whom that section and Schedule apply, nor any dependant of such a person, is left without the basic means of subsistence while pursuing his claim for asylum or while appealing against a refusal of asylum. (3B) In putting into place arrangements under subsection (3A) above the Secretary of State must satisfy himself that either—

1. (a) no substantial extra costs will he incurred by any local authority in England, Scotland or Wales as a result of the arrangements; or
2. (b) if any extra costs will be incurred by any local authority in England, Scotland or Wales, they will be met by means of a special grant.").

The noble Baroness said: I shall seek the view of the House on this amendment, which I shall address very briefly.

Baroness Blatch

My Lords, I understand that Amendment No. 16 has been spoken to.

Baroness Williams of Crosby

My Lords, I believe I have the right to respond, as the noble Baroness, Lady Hollis, responded. I raised the issue at the beginning regarding the leave of the House to bring the matter forward. It is not a grouped amendment. I understand that it is quite clear that I am entitled to speak to it again if I wish to do so. I am simply responding to a debate in the House.

Baroness Blatch

My Lords, I am grateful to the noble Baroness for giving way. My understanding was that the noble Baroness stood up and said that she would like to group her amendment with the amendments spoken to a moment ago. They were spoken to and wound up on. My understanding now is that Amendment No. 16 has been debated by the House and that the noble Baroness, if she wishes, should put it to the House.

Earl Russell

My Lords, it is my understanding that when somebody wants to divide on one of the later amendments in a group, they retain the right of reply to the debate. I have exercised that myself in the past.

Baroness Williams of Crosby

My Lords, may I add as a point of order that my understanding is that I did use the terminology that it might be for the convenience of the House if I spoke to my amendment. I did not move it. I am now moving it. It was entirely to save the time of the House. I apologise if I was in any sense out of order, but I understood that far from being out of order I was actually being helpful to the House. That was my intention. In any case, my remarks will be extremely brief.

Let me first draw the attention of the House to the extraordinarily minimal nature of the amendment that I am moving. It is an amendment—and I repeat the wording of it—about the basic means of subsistence. It is not an amendment about benefit. It is well below the level of benefit and it is that which the noble Baroness, Lady Hollis, addressed when she gave example after example after example of how other countries were providing this kind of basic subsistence benefit—the lowest level possible to maintain life.

Secondly, we have heard in this House the eloquent testimony of the right reverend Prelate the Bishop of Oxford repeating his own first-hand experience of visiting church hostels and giving us case after case after case of people that he had met who were in exactly the condition that the noble Baroness, Lady Hollis, has described. He gave us examples. He spoke to them at first-hand. He had met them. He had visited the church. Therefore, it cannot be argued that what we are suggesting here is simply a fantasy. There is a great deal of evidence.

Thirdly, I find the point that the Minister made about the local authorities a strange one because my understanding is that, at least so far, the local authorities have received no money at all to enable them to sustain those people who have been dependent on them since February. I must ask the Minister to tell us, at least in correspondence after this debate, what steps are being taken to ensure that the local authorities are reimbursed. That is one reason for the wording of my amendment.

Finally, I simply want to say that again and again the noble Lord has referred to the British taxpayer. I have, I must say, a much more generous view of the British taxpayer than he has. I believe the British taxpayer does care about other people and has compassion that can be reached. I do not believe the British taxpayer thinks about nothing at all except the last halfpenny that he has to expend to help people much less well off than himself. Anybody who has worked on this Bill as we have done can attest to thousands upon thousands of ordinary British people—most of them, I assume, taxpayers—who have pleaded with us to fight this Bill with every power we have, and they are entitled to have their voice heard in this House also. I beg to move.

6.22 p.m.

On Question, Whether the said amendment (No. 16) shall be agreed to?

Their Lordships divided: Contents, 77; Not-Contents, 128.

Division No. 3
CONTENTS
Addington, L.	Jenkins of Putney, L.
Archer of Sandwell, L.	Judd, L.
Avebury, L.	Kilbracken, L.
Barnett,L.	Kinloss, Ly.
Berkeley, L.	Lockwood, B.
Blackstone, B.	Longford, E.
Blease, L.	Lovell-Davis, L.
Bridges, L.	McIntosh of Haringey, L.
Brooks of Tremorfa, L.	McNair, L.
Carlisle, E.	McNally, L.
Carmichael of Kelvingrove, L.	Mayhew, L.
Carter, L.	Meston, L.
Castle of Blackburn, B.	Methuen, L.
Clancarty, E.	Mishcon, L.
Clinton-Davis, L.	Monkswell, L.
Cocks of Hartcliffe, L.	Morris of Castle Morris, L.
Dahrendorf, L.	Nicol, B.
Dean of Beswick, L.	Ogmore, L.
Desai, L.	Ponsonby of Shulbrede, L.
Donaldson of Kingsbridge, L.	Rea, L.
Donoughue, L.	Redesdale, L.
Dormand of Easington, L.	Richard, L.
Dubs, L.	Robson of Kiddington, B.
Eatwell, L.	Rodgers of Quarry Bank, L.
Ewing of Kirkford, L.	Russell, E. [Teller.]
Falkland, V.	Saltoun of Abernethy, Ly.
Fitt, L.	Seear, B.
Gallacher, L.	Sewel, L.
Geraint, L	Shepherd, L.
	Smith of Gilmorehill, B.
Gladwin of Clee, L.	Southwark, Bp.
Glenamara, L.	Stoddart of Swindon, L.
Graham of Edmonton, L. [Teller.]	Taylor of Blackburn, L.
Grey, E.	Taylor of Gryfe, L.
Harris of Greenwich, L.	Turner of Camden, B.
Hollis of Heigham, B.	Wigoder, L.
Holme of Cheltenham, L.	Williams of Crosby, B.
Jay of Paddington, B.	Williams of Elvel.L.
Jeger, B.	Winchilsea and Nottingham, E.
NOT-CONTENTS
Addison, V.	Blaker, L.
Ailsa, M.	Blatch, B.
Alexander of Tunis, E.	Brabazon of Tara, L.
Allenby of Megiddo, V.	Brentford, V.
Arran, E.	Bridgeman, V.
Ashboume, L.	Brougham and Vaux, L.
Balfour, E.	Bruntisfield, L.
Biddulph, L.	Bumham, L.

Cadman, L.	McColl of Dulwich, L.
Campbell of Alloway, L.	McConnell, L.
Campbell of Cray, L.	Mackay of Ardbrecknish, L.
Carnegy of Lour, B. Chesham, L. [Teller.]	Mackay of Clashrern, L. [Lord Chancellor.]
Clark of Kempston, L.	Mackay of Drumadoon, L.
Colwyn, L.	Macleod of Borve, B.
Constantine of Stanmore, L.	Manton, L.
Courtown, E.	Marlesford, L.
Cranborne, V. [Lord Privy Seal.]	Massereene and Ferrard, V.
Crathorne, L.	Merrivale, L.
Cross, V.	Miller of Hendon, B.
Cuckney, L.	Milverton, L.
Cumberlege, B.	Monckton of Brenchley, V.
Dean of Harptree. L.	Mountevans, L.
Denham, L.	Mowbray and Stourton, L.
Denton of Wakefield, B.	Munster, E.
Dilhorne, V.	Northesk, E.
Dixon-Smith, L.	Norton, L.
Downshire, M.	O'Cathain, B.
Dudley, E.	Orkney, E.
Dundonald, E.	Park of Monmouth, B.
Eccles of Moulton, B.	Pender, L.
Elliott of Morpeth, L.	Peyton of Yeovil, L.
Elton, L.	Pilkington of Oxenford, L.
Erroll, E.	Plummer of St Marylebone, L
Feldman, L.	Prior, L.
Ferrers, E.	Pym, L.
Finsberg, L.	Rankeillour, L.
Rather, B.	Rawlings, B.
Gardner of Parkes, B.	Reay, L.
Geddes, L.	Renton, L.
Gisborough, L.	Renwick, L.
Glentoran, L.	Rodney, L.
Goschen, V.	Saint Oswald, L.
Grimston of Westbury, L.	Seccombe, B.
Harmar-Nicholls, L.	Sharpies, B.
Harmsworth, L.	Skelmersdale, L.
Harris of Peckham, L.	Stewartby, L.
	Strange, B.
Harrowby, E.	Strathcarron, L.
Henley, L.	Strathclyde, L. [Teller.]
Holderness, L.	Sudeley, L.
HolmPatrick, L.	Swansea, L.
Howe, E.	Swinfen, L.
Hylton-Foster, B.	Swinton, E.
Inglewood, L.	Thomas of Gwydir, L.
Kimball. L.	Trumpington, B.
Kingsland, L.	Ullswater, V.
Kinnoull, E.	Vivian, L.
Lane of Horsell, L.	Wade of Chorlton, L.
Lauderdale, E.	Wakeham, L.
Leigh, L.	Wedgwood, L.
Lindsay, E.	Westbury, L.
Lindsey and Abingdon, E.	Wilcox, B.
Liverpool, E.	Wise, L.
Lucas, L.	Wynford, L.

Resolved in the negative, and amendment disagreed to accordingly.

6.30 p.m.

Schedule 1 [Modifications of social security regulations]:

[Amendment No. 17 not moved.]

Baroness Blatch

My Lords, I beg to move that the Bill do now pass. The Bill streamlines asylum procedures, strengthens immigration enforcement and restricts the social security and housing entitlement of those who have not established a long-term right to live in this country.

Clauses 1 to 3 extend the existing accelerated appeal procedure to a wider range of cases, enable the Home Secretary to designate countries where there is in general no serious risk of persecution, and make the right of asylum seekers to appeal against removal to a European Union member state exercisable only after removal. These are sensible, balanced and fair measures which many of our neighbours have already introduced with beneficial results. They involve no departure from accepted asylum principles. Nor do they conflict with our international obligations. We shall not return asylum seekers to the country where they claim to fear persecution without giving them an opportunity to explain their fears fully and, if asylum is refused, to appeal to an independent adjudicator.

I find it extraordinary that so many of the Bill's opponents continue to reject the evidence of widespread abuse of the asylum procedures. If the Home Office were refusing large numbers of genuine refugees, we would be losing large numbers of appeals. But only 3 per cent. of appeals were repealed last year. I remind the House that adjudicators are qualified and experienced members of the legal profession and are appointed by my noble and learned friend the Lord Chancellor. Over three-quarters of applicants are refused both asylum and exceptional leave after full consideration by both the Home Office and the adjudicator. And yet our opponents continue to refer to asylum seekers and refugees as if they were equivalent terms.

Noble Lords opposite have suggested we should improve the performance of the asylum system rather than introduce stricter procedures. The truth is that we need to do both, and that is what we are doing.

I remind the House that we are investing £37 million over three years in additional caseworkers and adjudicators. We have increased asylum staff eightfold since 1988 from 100 to 800. We have increased productivity by 240 per cent. since the period immediately following the 1993 Asylum and Immigration Appeals Act. Last year we introduced a short decision procedure which enables straightforward cases to be decided in weeks rather than months, despite strong opposition from some of those who complain most loudly about 'processing delays. We are embarking on a major computerisation programme which will further improve efficiency.

The number of decisions and appeals has increased dramatically. Appeal determinations have risen from 2,400 in 1994 to 7,000 last year to a projected 19,000 this year. Initial decisions by the Home Office have risen from 21,000 in 1994 to 27,000 last year and we expect to take over 37,000 this year. But by last year the number of claims had already reached 44,000. That figure represents no less than a tenfold increase on the level of claims in 1988 and a doubling since as recently as 1993. That massive increase has come at a time when the level of claims across western Europe has actually halved. It is nonsense to suggest that application levels here reflect growing persecution around the world. What they do reflect is this country's relative generosity and therefore greater vulnerability to abusive asylum claims.

As my noble friend Lord Mackay of Ardbrecknish said yesterday, we cannot go on swimming against the tide. Resources are not enough. We need to reduce the incentives which make it attractive to exploit the asylum system. That is why your Lordships were right to give approval to new Clause 11 which restores the power to impose strict benefit restrictions on asylum seekers. The previous benefit regulations, now reinstated by the Court of Appeal, are an open invitation to people from abroad to exploit the asylum system as a way of gaining access to benefit. The restoration of the restrictions will help to bring down backlogs and delays in the asylum system. That will be good news for genuine refugees. The House has inserted a three-day period of grace for those who fail to apply on arrival. We do not believe any leeway should be given to those who gain entry by deceiving the immigration authorities about their intentions. We shall therefore consider how to respond to the amendment when the Bill returns.

I should just like to put a thought in the minds of noble Lords about the three-day period of grace. Many of those entering this country do so by deception, some secreted away in vehicles. How is one to resolve disputes over from what time the three days' grace count, especially for those who continue the deception by claiming, following apprehension, to have entered the country within the previous three days? Where does the burden of proof lie? What does one say to someone who may have been here one month, two months, six months or a year, but on being apprehended claims to have arrived only in the past two or three days? That, I suggest, provides a considerable loophole for abuse. But it is not and never has been a concern of noble Lords opposite or those who supported the amendment.

Clauses 9 and 10 will enable entitlement to council housing, temporary accommodation and child benefit to be brought into line with equivalent social security entitlements. The case for alignment is very strong. It cannot be right that local authorities should continue to have a duty to accommodate people from abroad who are ineligible for income support and ineligible for housing benefit. The Bill is therefore good news also for housing authorities and council tax payers.

Clauses 4 to 7 introduce new offences, higher fines and additional powers of search and entry to combat the growing problem of immigration racketeering. Again, noble Lords opposite, who purport to support the Government's objective of clamping down on this evil, have tabled amendments to render our proposals ineffective or remove them altogether. On no occasion have they offered a proposal to deal with such racketeering.

The noble Lord, Lord Williams, has not been present in the Chamber throughout this Bill. In fact he has hardly been present throughout the dealings in this Chamber. Noble Lords have tabled amendments to eliminate the clause altogether. They have opposed the two offences that we created for racketeering in the Bill. They have not proposed any amendment for dealing with racketeering.

On Clauses 4 and 5, for example, there have been attempts to remove the essential new offences of illegal entry by deception, facilitating the entry of an asylum claimant and obtaining leave to remain by deception. I am very glad that your Lordships resisted those amendments. But, again, I must put the question to noble Lords opposite: whose side are they on in these matters? Maybe we shall see the repeal of this Act in The Road to the Manifesto, I do not know—maybe not.

Illegal working takes away jobs which would otherwise be available to people with a right to work here, whatever community they come from. Most of our European neighbours already have measures in place. This country will remain vulnerable if we do not take comparable steps. But, again, noble Lords opposite throughout the Bill have not supported the Government. Indeed, they fought against the Government in seeking to address the growing problem of illegal working in this country. Over 10,000 people last year were found to be working illegally in this country—10,000 jobs which could have gone to those with a legal right both to live and work here. To continue to tolerate illegal working is, in our view, likely to damage good race relations. Our proposals in Clause 8 will be easy for employers to comply with. The Commission for Racial Equality has undertaken to help in preparing the guidance for employers; we are very grateful for that.

Whatever the difference of view between the Government and the Bill's critics, no one can deny that the Bill has received very close scrutiny during its passage though this House. I am most grateful to all your Lordships who have contributed to that process. It has been a productive process. We have listened to arguments and we have responded to concerns. Some significant changes have been made. We have made drafting changes to Clause 1 for greater clarity. We have accepted the recommendations of the Delegated Powers Scrutiny Committee that the initial lists and designated countries of origin and designated safe third countries should require the affirmative approval of Parliament. We have agreed to retain an in-country right of appeal for asylum seekers whom we remove to a third country outside the European Union unless it has been designated by affirmative order. The Government have accepted your Lordships' wish to introduce a special safeguard for victims of torture, and I am especially grateful to the right reverend Prelate the Bishop of Liverpool and his colleagues, and others, for helping me to express that intention in a workable form in the Bill.

We have strengthened the safeguards in Clause 5 against prosecution of those providing bona fide legal advice on immigration matters, and we have changed the terminology in Clauses 8 to 12 to make it absolutely clear that they are not aimed at those who, although still subject to immigration control, have been settled in this country for many years. I should also like to thank noble Lords opposite, including my long-standing sparring partner, the noble Lord, Lord McIntosh; my noble friend Lord Mackay of Ardbrecknish and his long-standing sparring partner, the noble Baroness, Lady Hollis; the noble Earl, Lord Russell; and the noble Baroness, Lady Williams of Crosby, for their courtesy. I recognise fully the assiduous and painstaking way in which they have pursued their case. I recognise also how strongly they hold to their views.

I particularly want to thank again my noble friend Lord Mackay of Ardbrecknish, who has done sterling work on this Bill, covering a very sensitive area. I believe he has handled it sensitively but with that realism that only people in government have to face and not those who are armchair critics from a distance.—

Baroness Hollis of Heigham

Wait!

Baroness Blatch

It is looking a bit dicey for you at the moment. I thank also my noble friend Lord Courtown, a marvellous Whip who has given great assistance and without whom I think my sanity might well have departed at times. I thank too my noble friends Lord Campbell of Alloway and Lord Renton. My noble friend not only speaks with great knowledge of these matters but of course he is somewhat of a mentor for me; indeed, he stood in my shoes some years ago. I think he may well have experienced some sense of déjà vu about many of the matters we have discussed. I would also mention my noble friends Lady Rawlings, Lady Seccombe and Lady Gardner of Parkes. They, like me, saw the merits of the Bill and accepted the genuine attempt by the Government to address very real problems, some of which certainly impact very greatly on the taxpayer.

The noble Baroness, Lady Williams, cited the Bill as one that impacts way beyond the confines of this House. I hope I never claim that any one Bill does that. I joined this House in 1987. I have not known a single Bill that does not resonate beyond the confines of this House. I sometimes think that we become rather too cosy in this place, without realising the impact of what we do here. I mention recent Bills. We had the Criminal Appeals Bill, which affects very important people outside this House. We have had education Bills, health Bills, the Family Law Bill, the Defamation Bill. There is not a single piece of legislation which is destined to impact only upon people within these hallowed walls.

The only other point I wish to mention in detail at this moment is addressed to the noble Earl, Lord Russell, who described race relations in this country as being on a knife edge. I believe that statement does a disservice to the many people in our communities—

Earl Russell

My Lords—

Baroness Blatch

My Lords, the noble Earl will have a proper opportunity to reply to what I am saying later. I am proposing that this Bill do now pass. I have no doubt that the noble Earl will have the opportunity to speak in due course. I think such statements do a disservice to the many people in the community who have worked assiduously for good race relations, underpinned, I might say, by an extremely effective piece of legislation, the 1976 Race Relations Act. Perhaps I may also say—because the noble Earl was rather selective in his comments about the CRE—that the Commission for Racial Equality made clear in its report that it thought race relations in this country compared favourably set against the levels of xenophobia in many neighbouring European countries.

The noble Lord, Lord Jakobovits, is not in his place at the moment, but I promised that I would refer to what might be described as his "Bill do now pass" speech made yesterday. I was grateful to the noble Lord for his intervention. He reminded us that many established and valued communities arrived here as refugees and that this country has an honourable tradition of harbouring those at risk of persecution. We attach great importance to preserving that tradition. He reminded us also that this is an exceptionally densely populated country and that many plead persecution when what draws them here is economic advantage. All that I welcome. I agree with the noble Lord even though I naturally regret that he did not feel able to support us on benefit proposals. Nevertheless, I appreciate his contribution to our debate.

The Bill reflects this Government's long-standing view that firm immigration control is a necessary condition for preserving this country's good record on race relations. The Government remain wholly committed to fair asylum procedures and fair immigration procedures. We intend to continue to comply with our international obligations, and in particular with the 1951 convention on refugees. Indeed, we fully intend to preserve this country's long and honourable tradition of providing refuge to those genuinely at risk of persecution. The Bill is not only consistent with all those objectives; it is essential if the United Kingdom is to continue to achieve them. That is why I commend the measure to your Lordships.

Moved, That the Bill do now pass.—(Baroness Blatch.)

The Deputy Speaker (Baroness Nicol)

My Lords, I have to inform the House that in the second Division the total for the Not-Contents should have been 144 and not 145, as was announced earlier.

6.45 p.m.

Lord McIntosh of Haringey

My Lords, the Minister in the speech she has just made, sought to give the impression that this is somehow a coherent and principled response to the problems, which all acknowledge, of how to deal with asylum and asylum claimants and how to deal with immigration. Of course it is no such thing. This Bill is a ragbag of hurried, mostly ill-thought-out attempts to deal with the deficiencies of the legislation which the Government themselves passed in 1993 in the Asylum and Immigrations Appeals Act. Some of these attempts are trivial and will have very little effect. Some of them are more important and more dangerous; but all of them are objectionable in some way or another. This is a bad series of small measures put together to form what is inevitably a bad Bill.

The Minister referred to changes which have taken place in this House. There have indeed been quite a number of them. Changes on Divisions have seen to it that there will be no "fast tracking" of victims of torture from the so-called white list countries. Changes made yesterday will make sure that there is a three-day period of grace for asylum seekers in which to claim asylum after they have entered the country, without losing benefits. A further change made yesterday on a Division provides protection for abused domestic workers.

In addition to that, it is only right to acknowledge that a number of changes have taken place by concessions on the part of the Government rather than in Divisions and also through assurances which have been given in the course of debate. The thoroughly objectionable word "immigrant" has been removed from the face of the Bill, although the intention of what we objected to is still there in the phrase: a person subject to immigration control". There have been minor improvements in relation to advisers, who could run a risk of prosecution for giving advice to asylum seekers. An assurance has been given that persecution other than by the state or agents of the state in other countries will be recognised as persecution within the terms of the legislation, as is already the case in the United Nations Convention on the Status of Refugees. There is now a provision that the adjudicator can direct the Secretary of State to assist the return of a successful appellant who had been removed. There have also been changes with regard to affirmative resolution procedures.

However, there are still many grave defects in the Bill. It is still the case that what are called "fast-track procedures" will mean that some cases—inevitably, a substantial number of genuine cases—will not receive proper consideration and that appellants will not be present for their own appeals. It is widely agreed by those with experience of appeals that that reduces the likelihood of their appeals being properly heard or resulting in a proper conclusion.

As a result of the amendments introduced yesterday—I shall have to return briefly to this issue—many people will be left destitute and homeless, and inevitably, as even the Government admit, they will include genuine asylum seekers. Because of the provisions (not so much on immigration but particularly on employment) it will still be the case that black and Asian British citizens will have to prove their immigration status when they apply for jobs, housing, child benefit or any of the other benefits which are dealt with in Clause 11. I believe that there will inevitably be an increase in discrimination against black and Asian citizens, many of whom have been properly in this country for many years and who may be the descendants of those who came to this country over the centuries.

I am sorry to say that it is still the case that immigration offences will be ranked alongside murder, rape and armed robbery in seriousness and that powers of warrant will still apply to immigration offences as if they were as serious as the offences which I have just mentioned. The Government have failed to address the true level of the seriousness of immigration offences. They have also failed to address the issue of the registration of immigration advisers. I deny the Minister's allegation that we were somehow being lax on racketeering. On the contrary, we believe that the Government's proposals on racketeering are thoroughly inadequate. A number of our amendments were intended to improve the situation.

I have to say something about the new clause, now Clause 11, which was introduced yesterday. It was introduced in a very great hurry at the end of the proceedings in both Houses. It seeks to deal with the dilemma that was recognised by the Court of Appeal on 21st June when it said that legally the Government were in error in introducing changes to primary legislation by means of the regulations which came into force on 5th February. However, the judgment went very much further in its description of the effects of those regulations—now primary legislation. Let us acknowledge that the Government have rectified the legal problem identified by the Court of Appeal, but they have not recognised the true horror of having in this country significant numbers of people who are asylum claimants, who are here in order to be asylum claimants, who are recognised as asylum claimants but who are being left without any means of support and, as the Court of Appeal said, in a state of destitution. That cannot be a civilised way to treat people who are, if not our fellow citizens, at least our fellow inhabitants of the British Isles. This hasty attempt to overturn the decision of the Court of Appeal will redound to the discredit of this Government as a government of a civilised country.

The way in which the Government have dealt with Parliament will also redound to their discredit. The time available to us for consideration of the new government amendments, which were not available until late on Thursday afternoon, was quite inadequate for proper consideration. Indeed, it was in the middle of that debate yesterday afternoon that we learned that further government amendments were being tabled to their own amendment—even as we were debating it. We now know that those government amendments were withdrawn. Were they justified or not? If they were justified, the Government should have persisted in them. If they were not justified, we can presume that the new government amendment is defective in ways that we do not know.

It is difficult to understand what the Minister said about the Government's reaction to the defeat that they suffered yesterday. I took down what the noble Baroness said. She said that the Government would consider how to respond to the amendment "when the Bill returns". What does that mean? Is the amendment to be accepted in the Commons or is it to be changed there? What does "returns" mean? Does it mean when the Bill "returns to this House" or when it "returns to the Commons"—

Baroness Blatch

My Lords, we have to return the Bill to the House of Commons.

Lord Graham of Edmonton

Their views will be given in the Commons.

Lord McIntosh of Haringey

Okay, but common language would assume that when one talks about "returns", one means when the Bill returns here. I suggest that the Minister could have said what she meant rather more clearly than was the case.

I noticed that the noble Lord, Lord Mackay, referred to the need for the Bill to commence as soon as possible and said that the Government would seek the agreement of the Commons to the Bill. Let us hope that the Minister does that. Let us hope that he seeks the agreement of the Commons to that aspect of the Bill as it is sent there from this House.

Before I close, I must thank the many organisations, expert in this area, which have helped to brief us. I thank the Refugee Legal Centre; the Refugee Council; the Commission for Racial Equality; the Joint Council for the Welfare of Immigrants; the Immigration Law Practitioners Association; the Medical Foundation for the Care of Victims of Torture; the Child Poverty Action Group; the National Association of Citizens' Advice Bureaux; Shelter and various Church organisations. I apologise if I have missed any. I thank particularly Clare Cozens, our researcher, who has been indefatigable in bringing together views and in helping us to decide how to approach the Bill in this House. I am also enormously grateful to my colleagues on the Front Bench, my noble friends Lady Hollis and Lord Dubs. I hope that they will agree that we have been a happy and united team and that we have divided the work between us effectively. I acknowledge with thanks the usual courtesy and forbearance, sometimes, of the two Ministers and the Whip on the Government Front Bench. These would have been extremely unpleasant proceedings without that courtesy and forbearance—and we are grateful for it.

I am not happy that this Bill should pass but, of course, we shall not oppose the Motion in the Lobbies. I believe that this will be a Bill of short duration—not because anybody wants to say before an election that they will repeal this or that piece of legislation—politics does not work that way—but because the remedies which are sought to the problems which have often been wrongly identified in the Bill are inadequate, scrappy, hastily thought-out and are often very damaging indeed. It is a bad Bill.

7 p.m.

Earl Russell

My Lords, "at least they are still talking!" There are some contexts—this is one of them—in which that is an encouraging thing to say. I apologise to those concerned with the next business that that is so. We have been attempting to talk across a gulf so wide that parliamentary debate is almost impossible. In those circumstances, I warmly thank the professionalism and courtesy of the two Ministers involved in this Bill, the noble Baroness, Lady Blatch, and the noble Lord, Lord Mackay of Ardbrecknish.

The first lesson I learned when I arrived here was that how much I liked people had nothing whatever to do with what I felt about their opinions. I have relearned that lesson during this Bill.

I should like to thank colleagues on the Opposition Front Bench—the noble Lord, Lord McIntosh of Haringey, the noble Baroness, Lady Hollis of Heigham, and the noble Lord, Lord Dubs—whose experience of this subject is so long. As to my own Bench, I offer the warmest thanks to my noble friend Lady Williams of Crosby. I can think of no one I would rather have beside me in a scrap late at night. I can think of no one who can combine replies in a scrap late at night with the highest statesmanship in the way she can. I have been proud to work with her.

I also offer thanks to Carolyn Rampton in our Whips' Office who, not at an easy time, has coped with this Bill with apparently total calm. I am sure she will tell me that appearances are deceptive, but they deceived me. I also join in the thanks expressed by the noble Lord, Lord McIntosh of Haringey, to all those from the organisations which have advised us. They have done it with the greatest distinction. I have looked up many of their references and followed them up. It is the strongest academic test of advice, which they have passed with flying colours.

I believe that the noble Baroness misunderstood my noble friend Lady Williams of Crosby when she said that the Bill had stirred the conscience of the country. We were not suggesting for a moment that other Bills do not interest the country. But the sense of shock which this Bill has created—I know many hundreds of people personally who share this view—is something that I have not experienced for a very long time. It exceeds that which we felt in relation to the poll tax—and by a very long way.

My father once said that love of England was very nearly the strongest emotion that one could possess. I agree with that. But this Bill has torn away one of the landmarks by which I have identified my Englishness. I grew up during the War in a house full of Germans, many but by no means all of whom were Jewish. There I gained the opinion, which I still hold, that Germans could be very nice people. I grew up in pride at the country's tradition of hospitality to the persecuted from abroad. That is not just a tradition of this century. The noble Lord, Lord Campbell of Alloway, has referred to Huguenot influence in the 16th century. I was reminded of the reply of Queen Elizabeth I when she was faced with protests about their numbers. She said: They are all welcome. I at least will never fail them". Perhaps that was why a proclamation drafted in 1601 to withdraw all parish support from what was described as blackamoors never saw the light of day. That was a more civilised time than this. The sense of shock which is felt is one that must be accepted on the other side of the House, just as we must accept on this side of the House that it is not shared there. It does not make debate easy. It does credit to Parliament as an institution that, however great the difficulty, we have risen to it.

I shall not be tempted into answering in detail all the arguments the Minister has just put forward. She can guess what my answers would be. But it is not often that 158 Members of this Chamber vote in favour of an opposition amendment. That indicated a stirring and movement of opinion going far beyond the ranks of those who normally oppose Government business. That welling up of opinion is something that any politically prudent government may be unwise to ignore.

What the noble Baroness has said about treating "asylum seekers" and "refugees" as if they are equivalent terms is plainly legally wrong. I have checked the point further since the debate yesterday and found that what I then said was correct. She can look it up. I will not take it any further now. The noble Baroness does not assist debate by taking me to task for expressing a view on race relations which quotes verbatim Mr. Herman Ouseley in the introduction to the annual report of the Commission on Racial Equality. Mr. Ouseley may or may not be mistaken, but he knows more about race relations than either the noble Baroness or myself. I quote him without apology. I think that the noble Baroness is most unwise to reproach me for doing so.

I was deeply distressed, since we had had exchanges about Clause 8, that the noble Baroness once again suggested that we on these Benches were doing anything whatever to support racketeers. It is difficult enough to conduct civilised debate on a Bill of this kind without inferences of that type. My noble friend Lady Williams of Crosby has made a number of practical suggestions on the point, which I am sure she will be happy to repeat if the Minister does not remember them. We believe that the clause will do far more harm to race relations than to racketeers. The noble Baroness may not believe that opinion to be correct or even rational, but however misguided we may be in holding it I ask her to withdraw the remarks that she has just made. I will be very happy to give way if she rises to do so. If she does not, I regret that I must take the matter further.

It is also my belief—which I know is not shared by the noble Baroness—that the bulk of this Bill contradicts our international legal obligations. I believe that Clause 1 infringes Article 3 of the UN convention. I believe Clauses 2 and 3 infringe Article 33, and possibly Article 32. I believe that Clauses 4 and 5 infringe Article 31(1). I ask the House to be wary of Government attempts to redefine the word "lawful" to try to argue that those who enter to claim asylum are entering unlawfully. That would have the effect of attempting to disapply the UN convention for the majority of asylum seekers. I believe that such an attempt is prohibited by Article 31(1). I hope that the case will be argued in some judicial forum. I believe that Clause 6 does not infringe any legal obligation whatever, which is not to say that I like it. I believe that Clauses 7 and 8 will lead to many breaches of the Race Relations Act. I believe that Clause 9 infringes Articles 21 and 23 of the UN convention and Article 27(3) of the Convention on the Rights of the Child. I believe that Clause 10 infringes Article 24 of the UN convention and Articles 27(1), 27(3) and 26 of the Convention on the Rights of the Child. I do not expect the noble Baroness to agree with that, but the record of the Home Office in predicting the reaction of the courts should not encourage it to have confidence.

7.10 p.m.

Lord Renton

My Lords, first, I say how much I agree with the noble Earl, Lord Russell, in the tributes which he paid to my noble friends Lady Blatch and Lord Mackay of Ardbrecknish. The noble Lord, Lord McIntosh of Haringey, did so too. I, in turn, should like to give credit to those Members of the Opposition Front Benches who, although with a great deal of opposition, have with sincerity and determination put forward their views on the Bill. My noble friends have defended what I believe to be a necessary Bill. They have done so with clarity, courtesy and determination.

Having sat all through yesterday and today without saying a word, but having taken a small part in some of the earlier stages of the Bill, perhaps I may say that the Bill seems to me to be a piece of history vividly repeating itself. In the late 1950s and early 1960s, this country was invaded by thousands of British overseas subjects who had a right to come here. We were proud of what was then the ancient tradition of allowing British subjects of all kinds, of all races, from all over the world, to come to live in this country if they wanted. They were of course mainly economic migrants. Many of them were sad people.

At that time, I had for three years responsibility for the Immigration Department of the Home Office. Just to give one example, I remember in 1961 that I went to Southampton to see the arrival of a large ship containing over 1,000 immigrants from the Caribbean. It was cold, and they were ill-clad. They were obviously sad people. They were people of both sexes and all ages. I was sorry for them. I wondered what we should be doing about that, but the problem was that in that year 100,000 such people came to this country. The government of the day could not let that go on. So we had to have the Commonwealth Immigrants Act 1962 which I had some part in piloting through another place.

That Act was as passionately opposed as this Bill has been, both by the Socialist Party and by the Liberal Party of the day. The Socialist Party voted against the Bill 42 times and threatened that if it were returned to power it would repeal it. But of course it did not and could not repeal it. Indeed, it strengthened it, because while it was in power there was a large incursion of East African Asians. It felt quite rightly that something had to be done about that.

I say that in order to put the Bill into its proper context. I find this a somewhat nostalgic occasion. Of course we feel sorry for those millions of people in Africa, Asia, the Balkans and elsewhere who are being oppressed and even tortured in their own countries. Of course if vast numbers of them came here, we would have to change our honourable and humane principle of granting asylum to all such people. But the Bill does not do that. What it does is to ensure that the very considerable numbers who do come here and claim asylum are entitled to it—that, in sum, is what the Bill does—and do not use it merely as an excuse to stay here.

Of course we feel sorry in many cases, not just for the genuine asylum seekers but for the many others. The right reverend Prelates and both main opposition parties have a perfect right to pursue what they consider to be a very good cause. But they have no responsibility for the outcome of the various proposals that they make for changing the Bill.

Governments—I use the word particularly in the plural, because it would apply to any government of any party—have such broad and complete responsibilities in fairness to our own people that they just have to be selective about all the good causes which are put before them. Perhaps I may say in passing that for four years I was chairman of one of our biggest pressure groups (MENCAP); first, when there was a Labour Government and then for two years when there was a Conservative Government. I pressed its case as hard as I could, but I realised that the government of the day (first Labour and then Conservative) had the responsibility for taking decisions on the various proposals that we put forward. That is how a democracy must work.

I heard recently on the radio that the right reverend Prelate the Bishop of Liverpool, for whom I have great respect and find so friendly, was making a plea to relieve child poverty, of which, by the way, we have much less than we had some years ago.

Baroness Hollis of Heigham

What!

Lord Renton

My Lords, we have much less than when I was young between the wars, and much less than in the late 1940s and early 1950s. But besides dealing with child poverty, governments have to deal with education problems, the health service, housing problems, drugs, terrorism, and unemployment. They have to find money—the people's money—by direct and indirect taxation for those and many other matters. It is taxpayers at all levels of society from whom the money has to be obtained to deal with those problems.

Governments have to have priorities. They cannot pour out money on every good cause, as I have said. I do not know whether any noble Lord on the Opposition Front Bench can correct me, but I read in one of the Sunday newspapers that the Leader of the Opposition in another place is reported as saying that he would not, if there were a Labour Government, increase government expenditure. Let him tell that to those who want to cause the Government to increase the large sums already being spent on asylum seekers and other people trying to get in here, of whom, as has been said, there were 55,000 last year of whom only 5 per cent. were granted asylum on arrival. Of the many more who appealed, only 3 per cent. of the appeals were successful.

There has been a far greater increase in the number of people trying to come in and settle in this country than in any other European country. That is so, despite what the noble Baroness was saying earlier. The millions of pounds which the Government have been spending hearing the cases of those who want to come here and in maintaining them is something we have to bear in mind. The problems must be dealt with. Thank goodness we have a government who had the courage and determination to introduce the Bill and, I hope, get it through both Houses of Parliament in order to deal with these problems.

7.20 p.m.

Lord Avebury

My Lords, the noble Lord said that he wanted to put the Bill in its proper context. He did that by prefacing that section of his speech with a reference to the Commonwealth Immigrants Act 1962. We are concerned not with the people who are being tortured or extrajudicially executed, or who want to escape from such regimes and come to this country; we are talking about a device which the Government are using to limit immigration by the back door. By imposing serious financial penalties on people who may well have a perfectly legitimate claim to asylum, they are seeking to make it impossible for them to pursue a claim by starving them into submission.

The way in which the Bill has been handled is utterly unacceptable. To chop it up and then reconstitute it like a kedgeree, bringing it back in different sections, has been very confusing and created enormous difficulties for noble Lords who have attempted to take part in the proceedings. I am afraid that the Bill will leave this House with serious defects which no one has yet been able to identify; that those will lead to serious confusion and error in the administration of the Bill and defeats for the Government in the courts. I certainly hope that that will be the case because I believe that the Government have brought that on their own heads by rushing through this legislation in a totally unnecessary manner. The House could well have sat for another week in order to have given your Lordships adequate time to consider all the amendments that were tabled at a late stage on Thursday afternoon.

My principal reason for wanting to speak at this stage is that while your Lordships have been proceeding on the assumption that, as my noble friend Lord Russell said, the Bill must be judged in the light of its compatibility with our international obligations, the Foreign Secretary has been talking about material alterations in the convention in, of all places, Jeddah. The Foreign Secretary goes to a country which is renowned for indulging in public executions, endemic torture, detentions without trial and all the other evils which cause people to go into asylum and chooses that place of all places in the world to talk about amendments to the United Nations Convention on Refugees. Admittedly, he was speaking in the context of the world attack on terrorism following the Sharm el Sheikh summit and the G7 meeting at which President Clinton said that a new confrontation with terrorism was necessary. I do not disagree with that. I believe that the world must face up to terrorism which is instigated in certain countries. In that connection I speak particularly of Iran because we all know that that is the hotbed of world terrorism. It is no good concealing that fact from ourselves.

As an international community we need to take every possible measure to confront terrorism. However, if the Foreign Secretary is saying that we have to do that by limiting the rights which people have hitherto enjoyed under the United Nations convention it is an extremely sad day for this country. It is sad that Britain of all countries should be taking the lead in whittling down those rights, although it is of a piece with the remarks which the right honourable gentleman made on other occasions, in particular the interview he gave to the Arabic newspaper Al Hayyat immediately after he took office. He then made a blanket condemnation of Arab and Moslem dissidents coming to this country. If we are in the process of making radical alterations to the United Nations convention it would have been better if the Foreign Secretary had made a Statement in another place rather than doing so in Jeddah where human rights are violated on such an enormous scale—

Viscount Waverley

My Lords, we must be extremely careful about how we address the affairs of a sovereign state, especially a state which has a culture which it upholds.

Lord Avebury

My Lords, that is the opinion of the noble Viscount but I am entitled to express my opinion about the nature of the punishments which are inflicted on people in Saudi Arabia and the incongruity of the Foreign Secretary talking about amending the United Nations Convention on Refugees in such a location. If he had done so in Washington in response to an initiative of President Clinton I should have said that that was a suitable environment in which to discuss the action of the international community against terrorism and the possibility that changes might be effected in the United Nations Convention on Refugees with a particular view to combatting terrorism.

Baroness Gardner of Parkes

My Lords, I do not believe that the noble Lord's speech is in the tradition of this House where, on Third Reading, we speak about the Bill. It seems to me to have ranged rather wide. Those of us who would like to say something about the Bill would be very grateful if he could limit those remarks.

Lord Avebury

My Lords, I believe that what I am saying is appropriate to the Bill because we are talking about a measure which, as my noble friend Lord Russell remarked, may be considered to be in violation of some of the provisions of the United Nations convention. If we are talking about a convention which is likely to be altered by action prompted by the Foreign Secretary we are entitled to know what he has in mind and what effect that may have on the implications of this legislation. For him to go off to Jeddah and talk about these matters just at the moment when the Bill is before your Lordships in the last stages of its proceedings is highly incongruous and unacceptable.

We have come to the end of these proceedings. It would have been better had we been able to complete the Question that the Bill do now pass without the slur which the noble Baroness, Lady Blatch, inflicted on the so-called armchair critics. During its passage through this House we have done our best to try to amend the Bill as we see fit. Perhaps I may say to the noble Baroness that if your Lordships are to work in amity and friendship across the Floor of the House, that kind of remark is best avoided. I believe that if we can maintain civilities between the two Front Benches that will help to smooth the passage of legislation which, as my noble friend remarked, is very difficult indeed.

The noble Baroness challenged us on this side of the House to say what alternatives we have to the proposals in the Bill. The noble and learned Lord, Lord Donaldson of Lymington, made what some of us consider to be a very sensible proposal for limiting the rights of asylum of people who have been here for some length of time. That would have to be defined but he was referring particularly to those who have been commented upon by the noble Baroness; those who first enter as visitors or in some other capacity, remain here for six months, get an extension for six months and then suddenly wake up to the fact that it is possible to apply for asylum. They then remain for a further period while the appeal is being considered.

The noble and learned Lord, Lord Ackner, also said that the right way to proceed was by having a sieve which limited access to the appeals system, although he did not go into the same kind of detail as the noble and learned Lord, Lord Donaldson. I should have thought that with advice from two such distinguished experts in the law, at some point in the proceedings the noble Baroness would have responded to those initiatives.

The fact is that there are plenty of alternatives and they are not limited to the acceleration of the procedures about which my noble friend Lady Williams rightly commented at earlier stages of the Bill. There is plenty that could have been done to limit the amount of money that is being spent on benefits to asylum seekers. I believe that the provisions which we are now allowing to pass will have a very damaging effect on the most vulnerable sections in our community, including many who have a genuine claim for asylum.

7.30 p.m.

Baroness Gardner of Parkes

My Lords, I welcome the Third Reading of this Bill. I believe that the debate has been very intense on all sides because views are very sincerely held on all sides. The House must have a degree of understanding of that.

My noble friend Lord Renton referred to the invasion of people before the 1962 Act. I am one of the invaders. I was very sorry that my family and friends were excluded in the way in which many others have been since. But I understand the need for that in a country of this size. Therefore, I believe that the Government have done their best to try to be fair. That is why I support the Bill.

Baroness O'Cathain

My Lords, I congratulate my noble friend on her measured handling of this most emotive of Bills during several late nights, or should I say early mornings?

The Bill has made me realise just how fortunate we are to live here. Like my noble friend Lady Gardner, I was not born here. But this is a country to which so many people aspire. They wish to come to live here. Perhaps we should remember that when we succumb to the temptation of criticising everything about the United Kingdom. Of course we should like to be the good Samaritans to all but, as my noble friend Lord Renton said, we must be selective in order to hold faith with the taxpayers.

My noble friend dealt with a great many complex issues centred on the asylum part of the Bill, but she still found time to listen to representations on the equally important but less emotionally charged immigration element of the Bill; and I thank her for that. I am very grateful for the sympathetic hearing that I received and for the concession which my noble friend made in accepting that, while ferry companies and airlines must understand their obligations to ensure that they bring to this country the people who have the right to be here, the Government share that responsibility.

The government amendment to restrict responsibility for detention costs to 14 days has been warmly welcomed by the transport industry. I hope that that sense of fair play and partnership will continue and that my noble friend will ensure that penalties are imposed equitably. There are anomalies in the law and I know that my noble friend is well aware of that. Ferry companies and airlines accept that they must do the right thing but believe that it is time that the anomalies should be removed and the law applied equally to all.

My noble friend has indicated a willingness to discuss further ways in which to develop the partnership between government and those in the transport industry who take their responsibilities seriously. I am sure that the industry will be most grateful for that.

Having said that, I agree with previous speakers that the courtesy and forbearance shown has been exemplary. It is that which makes this House so civilised and so markedly a beacon of the highest standards of behaviour.

7.35 p.m.

Baroness Rawlings

My Lords, I join with my noble friend Lord Renton and others in congratulating the Minister on the Bill. Many points have been covered many times during many hours of debate on the Bill and I shall not repeat the arguments.

However, I have been most dismayed by the amendments tabled by the two parties opposite, many of which sought to withdraw entire clauses from the Bill. One can only conclude from that they do not agree with the principle of the Bill and that they would demolish the Bill and render it ineffective. They have produced wrecking and delaying procedures throughout.

We have heard from the Liberal Democrats that they will repeal the Bill, but when I posed the question yesterday to the party opposite, answer came there none. Therefore, I can only assume that it too would include the repeal of the Bill in its manifesto.

Lord McIntosh of Haringey

My Lords, I hope that the noble Baroness was here to hear me say that you do not threaten to repeal Bills. Politics is not like that. You move on.

Baroness Rawlings

My Lords, I wonder whether the party opposite has costed the three extra days provision and has taken into account the more than £200 million of benefit which is needed to pay illegal asylum seekers. Have they cleared that with the Shadow Chancellor in the other place?

Earl Russell

My Lords, I wonder whether the noble Baroness could possibly withdraw the words "illegal", which was otiose to her argument.

Baroness Rawlings

My Lords, the savings planned in this Bill will then not be made and all costs would fall on the taxpayers. I am sure that taxpayers in this country really wish to see genuine asylum seekers attain legitimate refugee status as quickly as possible and do not want thousands of illegal applicants clogging the system. I support the new procedures in Clause 1 and the rest of the Bill.

Lord Hylton

My Lords, I wish to dissociate myself from some of the rather more extreme partisan views which have just been expressed. Instead, I should like to concentrate on some practical measures which could be taken.

We understand that the number of people working within the Home Office and dealing with asylum seekers has increased from about 100 to 800. I am glad to hear that. But so far they have succeeded in making very little impression on the backlog of cases still outstanding, some of which date back to 1991. Therefore, I believe that there is scope both for increasing the numbers of staff and for improving their training and productivity.

While I am on that subject, perhaps I may point to the very great importance of having interpreters in a wide variety of languages to deal with asylum cases. In that regard also there is some scope for improving the understanding and sympathy with which interpreters deal with individual applicants.

Viscount Waverley

My Lords, this Bill has dealt with delicate and complex matters. In some ways, I am sad about how acrimonious some aspects have become but I recognise that there are emotive issues before us.

In my view the Government are to be commended for addressing the current situation. But it is clear that more needs to be done to reach the root cause of the problem. We have heard strong arguments on all sides. Procedures need to be overhauled but how do we devise a system which will stand the test of time and which does not abuse the United Kingdom's good intentions with early identification of genuine claims? I believe that we must find a just system which dispenses with the need—and I repeat the word "need"—for the right of appeal in the vast majority of cases.

I shall briefly flag the following for consideration in a spirit of "where do we go from here?" Thought might be given to introducing a system for countries other than the likes of Iran, Iraq and the Sudan, the claims being considered by a three-member adjudicating panel trained to handle regional specific claims. The panels might include one independent member, perhaps from UNHCR.

If the panel decided unanimously that the individual's case had no merit, there should be no right of appeal and immediate removal. On the other hand, there could be a right of appeal in most cases where there was a dissenting opinion. Similarly, where the panel considered unanimously that the applicant was a refugee, he would be granted status with no right of appeal by the Home Office. Applicants originating from a list of countries such as Iran, Iraq and the Sudan, drawn up by the Home Secretary in consultation with specialist bodies and Parliament, would have their applications handled using the fast-track procedure by one Home Office official only. That would take out of the system individuals most likely to have their claims accepted.

Marry all that with the three-day grace period decided on yesterday and we should have eliminated potentially two tiers of appeals process and the cause of so much uncertainty, cost and bureaucratic delay. Indeed, we might even find solutions in one shot and negate the problems surrounding benefits, leaving a system which is manifestly effective and fair.

7.40 p.m.

Baroness Williams of Crosby

My Lords, it was not my intention to intervene in the debate, but I feel obliged to do so in response to some of the remarks that have been made. I shall be brief. I repeat: I had no intention whatever of taking part in this discussion; indeed, I thought that we had had enough discussion. Nevertheless, I must respond to some of the things that have been said as I regard them as being quite unacceptable.

Perhaps I may, first, congratulate the noble Lords who put forward such constructive suggestions. I have in mind the noble and learned Lord, Lord Ackner, the noble Viscount, Lord Waverley, and the noble Lord, Lord Hylton, together with other Members on the Opposition Benches who, during the earlier stages, tried to put forward serious proposals for dealing with some of the problems. I should like to make reference to just one of those proposals; namely, the proposal for registering those who act as representatives for immigrants and who give them advice.

The noble Lord, Lord McIntosh of Haringey, proposed such a register. However, that was not acceptable to the other side. We were then accused of supporting racketeering. I regard that as an utterly disgraceful remark, and I am still waiting for the Minister to withdraw it because I believe that that is not a remark that anyone can be expected to accept in the light of the amendments that we moved.

I am disgusted by the way in which there has been an attempt to pave the way for what I can only describe as an election-type atmosphere. Quite apart from being accused of supporting racketeering, we have also been accused of wishing to introduce methods of immigration by deception. We have been accused of supporting those who are involved in assisting illegal immigrants knowing them to be illegal; and, in addition, we have been told many times that our proposals would waste taxpayers' money.

We restrain ourselves; indeed, we could go through a long litany from British Rail to building unnecessary ministries. I shall not do so. I understood that the atmosphere of this House was rather different from that. I find it extremely sad and disappointing that, during the last few minutes of the proceedings on this Bill where considerable restraint has been shown, we should see such an extraordinary deterioration to a level of electoral language that I, for one, did not expect to hear.

I say again, I would not have intervened at this stage but I have been driven to do so by outrage. I simply had to make my position absolutely plain.

Lord Dubs

My Lords, I appreciate that, normally, there would not be two speeches from the Labour Front Bench on this Motion. However, I have one particular reason for breaking with that convention. I came to this country as a refugee when a small child. I did not mention that fact during earlier debates because I thought that it would be seen as special pleading. Therefore, I left it alone. Nevertheless, I have some experiences which, clearly, have influenced me because I have memories of my childhood.

I should like to make a few brief comments. Having virtually got their Bill through, it is not clear to me whether the Government want every asylum seeker to claim asylum at the point of entry, thereby making no savings in the social security or any other budget, or whether they expect, for reasons that have been amply debated, that many asylum seekers will not make the claim at the point of entry, in which case there will be some savings but also some consequences.

According to the latest statistics, there are at present some 70,000 asylum cases waiting to be resolved. If, on average, an asylum case costs the public purse roughly £100 a week in income support, and so on, I calculate that that will cost about £350 million a year. I know that the Government have said—and, indeed, the Minister said it only a few minutes ago—that there are certain costs which they are trying to cut, and that they have increased the number of staff to deal with such matters. Nevertheless, we are still left with the cost of £350 million a year.

Bearing in mind the fact that it takes 18 months to two years to make an asylum claim—although, two days ago, I met a Ugandan woman who has been waiting for five years for her claim to be resolved—if we speeded up the process to, say, six months, we would probably save about £250 million to £270 million a year. That is where there could be a real saving—a real saving to the Exchequer, provided that we still operated a decent and fair system. I give way to the Minister.

Baroness Blatch

My Lords, I am grateful to the noble Lord for giving way. It is important for me to repeat the figures that I gave earlier. The number of determinations rose from 2,400 in 1994 to 7,000 last year; but the projected figure for this year is 19,000. That is an enormous improvement. Initial decisions by the Home Office rose from 21,000 in 1994 to 27,000 last year. We expect that figure to rise to 37,000 this year. Therefore, the increases that the noble Lord, Lord is looking for—and, indeed, more—are well on the way to being achieved.

Lord Dubs

My Lords, perhaps I should not have embarked on the question of figures because this is not a stage of the Bill where one should be debating issues that have already been addressed and which are perhaps inappropriate now. I simply wanted to make this point. If there was a will, which the Government have not been showing over the years, I still believe there would be much greater savings. It is in that area that savings could be made which would be consistent with this country's tradition of being fair to people who seek asylum; indeed, a tradition from which I benefited. We could do so without going through some of the procedures that we have before us.

Having said that, I should like to thank my colleagues on the Labour Front Bench. I have not taken part in a debate before in this House that has reached such a stage. I should also like to thank those from the Liberal Democrat Party for the part that they played in the proceedings; and, indeed, I should like to thank the government Ministers for their unfailing courtesy.

On Question, Bill passed, and returned to the Commons with amendments.