Lords Sitting of 20 June 1996

Preamble
The House met at three of the clock (Prayers having been read earlier at the Judicial Sitting by the Lord Bishop of Southwell.): The LORD CHANCELLOR on the Woolsack.

Zaire: Home Office Country Assessment
Earl Russell Earl Russell asked Her Majesty's Government:
What is the Home Office country assessment for Zaire.
The Minister of State, Home Office (Baroness Blatch): My Lords, each asylum application is considered on its merits and in the light of its particular circumstances. We have no current plans to publish a country brief on Zaire: the Asylum Directorate takes account of all available relevant information from whatever source.
Earl Russell: My Lords, is the noble Baroness aware that her reply may cause some surprise in this House? Is she further aware that Home Office refusal letters for applicants from Zaire frequently say, for example, that the Secretary of State does not accept that membership of the Opposition UDPS would be likely to result in arrest or harassment? If that opinion is not the result of a country assessment, is it the private opinion of the official concerned?
Baroness Blatch: My Lords, no, it is not a private opinion. It is an opinion based on taking advice and information from a wide range of sources. It includes the Foreign and Commonwealth Office, the United Nations High Commission for Refugees, Amnesty International, Human Rights Watch and, in the case of Zaire, Zairian human rights organisations. A great deal of information is gathered and used as background for those applications, short of having a formal assessment that is in the public domain.
Many Zairians seek asylum primarily for economic reasons and although political opponents of Mobutu, human rights activists and Opposition journalists may be harassed, there is no systematic persecution of Opposition parties and their members. Almost all of the Zairian applicants are without documents and the accounts that they give lack credibility.
Lord Campbell of Alloway: My Lords, of course in many cases it is difficult to make an assessment. However, will my noble friend the Minister confirm that as at present advised, on all the evidence available, it really would not be right to say that there is systematic persecution of the Opposition, or any members of the Opposition?
Baroness Blatch: My Lords, every case is considered on its merits, as indeed it should be. The Asylum Directorate takes account of all available information.
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I have already given some sources. Not only is the evidence considered substantively; there is an appeal system and, currently, even appeal to tribunal before cases are finally determined. I believe that everything that can be is taken into account in these cases.
Lord Jenkins of Hillhead: My Lords, the noble Baroness's original reply implied clearly twice that there was a country assessment but not in the public domain. I believe that a list of six countries is published by the Home Office. In order to allow us to appraise this matter objectively, can the Minister tell us why she is not allowed to put this country assessment in the public domain? The original Answer makes clear that such an assessment exists.
Baroness Blatch: My Lords, no. I made clear that it does not exist in quite the form the noble Lord suggests. I said that in the course of determining applications, information is gathered in from many sources. It has not been put together in the form of a formal assessment, but would act as information relevant to a particular application.
Formal assessments are prepared. Indeed, we have already given notice that assessments for Cyprus, Bulgaria, India, Pakistan, Ghana, Romania and Poland will be assessed. They will be formal and will be placed in the Library of both Houses, as indeed are two assessments already.
I cannot rule out for all time that there will not be a formal assessment placed in the Library of both Houses, but Zaire is not a priority for that purpose at present.
Lord Hylton: My Lords, I am delighted to hear that every asylum case is considered on its merits. However, as regards Zaire is it not the case that the writ of the central government does not run in all parts of the country; that the army has a great deal of power and is constantly at loggerheads with various political parties?
Baroness Blatch: My Lords, the noble Lord makes an interesting point. It is a point taken into account. Since 1990, with the ending of the one-party system, there has been instability. The noble Lord will be aware of that. But in April 1994 a transitional constitution was agreed which provided for a broad-based government. Elections were planned for 1995. It may be to the knowledge of the noble Lord that Kengo wa Dondo sought to reduce inflation and corruption. There are still problems with the military—the point that the noble Lord made. Elections have been postponed until 1997. However, so far as concerns the Opposition, under Etienne Tshisekedi, the leader of the Opposition, there is a surprising level of toleration of political opposition. Although the broadcasting media are under state control, there is a highly partisan opposition press in Kinshasa.
Lord McIntosh of Haringey: My Lords, the Minister said fairly confidently that there was no systematic harassment of the Opposition in Zaire. I have no inside knowledge to enable me to contradict that. But is the Minister not aware that it is a characteristic of regimes of that kind that they control the media and information sources? Should not the noble Baroness be

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wary of making confident assertions as, on many occasions, rulers like President Mobuto have died, or have been overthrown, and significant abuses of human rights have been found subsequently?
Baroness Blatch: My Lords, I was giving matters of fact and some chronology. The conditions and situations in those countries are taken into account. I have given some of the sources of that information. Where information is material to a particular applicant, it will weigh heavily either with the first hearing, as part of the appeal process, or with my right honourable friend the Home Secretary.
However, Zaire has been a major source of fraudulent multiple applications, often with a view to benefit fraud. Although that situation has reduced, there is still a higher than average incidence of non-compliance refusals for Zairian applications.
Lord Gisborough: My Lords, in view of the fact that Zaire is already grossly over-populated, with twice the population of China per square mile, is it not right that applications should be directed towards countries that are not grossly over-populated, such as America, and others?
Baroness Blatch: My Lords, perhaps I may repeat what I said. We have a firm but very fair system for considering asylum applications. We in this country have a proud record of being fair to genuine asylum seekers. I shall spend much of today talking about something like 80 per cent. to 90 per cent. of asylum seekers who for one reason or another do not have a genuine case for asylum in this country. It is absolutely right that we should seek to have a firm but fair policy.
Viscount Waverley: My Lords, when will the so-called "white list" be extended to include other countries?
Baroness Blatch: My Lords, I do not talk of white or black lists. If the noble Viscount is talking about the third countries that we deem to be safe countries which are at this moment members of the European Union, I hope he will resist an amendment later today to take away the power from my right honourable friend to extend that list. We are thinking of Canada, America, Norway and Switzerland. As for the designated list, in the course of answering this Question, I have already named seven countries that we intend to designate. At this time we have no plans to extend it, but we shall have the power to extend it.
Earl Russell: My Lords, I thank the noble Baroness for her assurance that all cases are considered on their merits. However, does she agree that the assessment of the merits in the case of someone who alleges persecution because of membership of an opposition political party may be influenced by the country assessment? Does she understand that under these circumstances the House may legitimately wish to scrutinise the country assessment?
Baroness Blatch: My Lords, there is an appeal system to scrutinise the country assessment. The appeal system
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will take all of that into account. If an applicant believes he has been treated unfairly, and that the conditions in the country which he claims to be material to his case have not been considered, there is an appeal system. The formal assessments will be placed in the Library of the House. As I said, we have no current plans to place an assessment for Zaire in the Library of the House.

School Playing Fields: Sales
3.11 p.m.
Lord Dormand of Easington Lord Dormand of Easington asked Her Majesty's Government:
How many playing fields have been sold since the issue of the Education (School Premises) Regulations (S.I. 1981/909) by the Department of Education and Science; how many sales are currently under consideration and whether they have any plans to change the policy.
The Minister of State, Department for Education and Employment (Lord Henley): My Lords, it is the Government's policy that playing fields that schools need should be retained. We have no plans to change this policy. My department does not collect information about asset disposals at LEA-maintained schools. Grant-maintained schools may dispose of surplus land with the consent of my right honourable friend the Secretary of State. Since the advent of grant-maintained schools, consent has been given in 14 cases and nine applications are under consideration.
Lord Dormand of Easington: My Lords, is not this the Government who constantly say how important sport and recreation are to the nation as a whole? I hope the Minister will correct my figures if they are wrong, but I understand that since that circular was issued some 5,000 playing fields have been sold, and perhaps half as many again are being considered for that purpose. Does not the fact that the Government have now instituted a register of recreational land demonstrate that they are now concerned about what is happening? Does this not call for a fundamental change of policy to stop the haemorrhage of this most valuable asset?
Lord Henley: My Lords, I cannot confirm the noble Lord's figures. However, I think it is important that both LEAs and grant-maintained schools should have the freedom to dispose of assets if they are surplus to requirements. Obviously we think it is important that they should retain sufficient land to meet their sporting requirements and that is why we have regulations laid down that deal with that very subject. I think it would be wrong to have an absolute blanket ban on all sales, particularly as sales can often lead to better provision in some other field, or even better provision in the sporting field.
Lord McNally: My Lords, does the Minister not realise that the kind of damning statistics the noble Lord has put forward justify a warning given over 10 years' ago about what would happen to sporting facilities? Does he not think it obscene that at a time when hundreds of

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millions of pounds of television fees are being spent at the professional end of sport there seems to be no government strategy to encourage sport at the grass roots level? That policy allows grass roots sport to wither.
Lord Henley: My Lords, I am afraid I have to reject what the noble Lord had to say. I do not believe there has been no encouragement from the Government in terms of encouraging sport at the grass roots. One only has to look at the White Paper published last year by the Department of National Heritage entitled Raising the Game and at the support we give to sport in schools in the national curriculum. That is why we lay down minimum standards governing the amount of space schools should keep. But, as I said, I think it is right that LEAs and schools should have the freedom to dispose of surplus assets. We have adequate controls to make sure they do not get rid of more than is necessary. We shall continue that policy.
Lord Ironside: My Lords, have any of the fields which have been sold also been covered by lease-back arrangements so that the fields have continued to be used in the way they should?
Lord Henley: My Lords, I am not aware of any cases of that sort but I shall be more than happy to make inquiries if my noble friend wishes.
Baroness David: My Lords, the Minister said when these fields were sold that the money obtained from those sales might be spent on other, more useful things. Do the Government follow up what the money is spent on? Can the Minister tell us what useful things have been bought as a result of the sale of these playing fields?
Lord Henley: My Lords, I cannot give any figures to the noble Baroness. However, the point I was trying to make—I think it is a very important one—is that there should be that freedom, and it can be a freedom that can allow much better provision to be created in due course.
Lord Elton: My Lords, is my noble friend aware that he is absolutely right to say that this money can be better used? I know of a school which sold its local playing field and was able to build an entire new block of schoolrooms and a new sporting facility at a slightly greater distance with a pavilion out of the proceeds. That must be common sense.
Lord Henley: My Lords, I am grateful to my noble friend for those comments. It points to the fact that it would be wrong, foolish and unwise to have the sort of blanket ban that noble Lords opposite collectively seem to be requiring.
Baroness Nicol: My Lords, is the Minister able to tell us what has happened to some of the recreational grounds in the former coalfield communities? Is he aware that the DTI and British Coal have given a public commitment that these sites will be retained in perpetuity? Does the Minister know what has happened? Has any progress been made in discussion?
Lord Henley: My Lords, we are slightly wide of the Question but the noble Baroness was kind enough to
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write to me giving me warning of this question. I took advice from colleagues in another department. We have made clear that our objective is that British Coal's land currently in active recreational use should be retained for that purpose. That remains the case. Discussions continue with the coal industry social welfare organisation which has expressed interest in acquiring all the sites. All I can say further is that an announcement is expected shortly.
Lord Pearson of Rannoch: My Lords, does my noble friend share my pleasure that the Benches opposite appear to be supporting playing fields and therefore perhaps competition? Would he dare to share my hope that their support for such competition might eventually extend to the classroom?
Lord Henley: My Lords, I am grateful to my noble friend for his remarks. I agree with them in total.
Lord Peston: My Lords, as the noble Lord knows I never discuss politics in your Lordships' House, and therefore I shall not follow his noble friend's line. The noble Lord said—if I understood him correctly—that he agreed with what his noble friend Lord Elton said. However, what his noble friend Lord Elton said was anecdotal. The central question which we must put to the Minister is the one that he himself presents to us. His department collects no figures and therefore the Government do not have the faintest idea what the consequences of their policy are, and have no way of discovering whether the state of affairs is satisfactory. Is not that the nature of the problem—if one does not obtain any data, one cannot express a view?
Lord Henley: My Lords, I do not believe there is a problem. As I made clear, in the case of grant-maintained schools we shall review every application. In the case of all other schools, there are minimum space regulations which the schools are bound to follow. They cannot dispose of land unless it is surplus to those requirements.
Lord Dormand of Easington: My Lords, the freedom to which the Minister has referred is the same as the freedom to dine at the Ritz. What he is forgetting is that local authorities have been squeezed so much by the financial directives of this Government that many of them have had no choice but to sell playing fields.
Lord Henley: My Lords, I totally reject that. We have increased the amount of money available to schools by £878 million this year, and over the past three years we have made an extra £2 billion available for capital projects.

Beef Export Ban
3.19 p.m.
Lord Taverne asked Her Majesty's Government:
What progress they have made in obtaining a timetable for the lifting of the beef ban in Europe.
Lord Lucas: My Lords, we have already succeeded in removing any restrictions on the export of semen and agreeing conditions for the export of gelatin and tallow. This is an important first step. Our policy on the next steps is to agree a framework which sets out clear and agreed conditions which have to be met to lift the export ban progressively. Negotiations with our Community partners on this are proceeding and we will keep the House informed of progress.
Lord Taverne: My Lords, may I express my sympathy to the Government for sounding the bugles of advance to cover their retreat. Is it not becoming increasingly evident that the policy of boycott, far from securing the desired timetable, is in fact having the effect of making our partners in Europe determined to try to find a way round British obstructionism, as they see it, contrary to our interest? Is it not a fact that the fiasco of the past month—probably the biggest diplomatic disaster since Suez—can only give satisfaction to those who wish to see us leave the European Union altogether?
Lord Lucas: My Lords, with respect, what a load of rubbish! The policy we have pursued over the past month shows every sign of producing results in the very near future—not only of producing results, but producing exactly those results that we had hoped for.
Lord Pearson of Rannoch: My Lords, can my noble friend tell the House under which powers Her Majesty's Government propose to enforce the killing of healthy cattle, as opposed to cattle which may be infected?
Lord Lucas: My Lords, I am sure my noble friend will be prepared to wait for us to bring before this House the necessary orders. He may recall that during the foot and mouth epidemic we killed whole herds, not because every animal was proven to be infected but because infection was in the herd. I do not think he need worry about our not having the necessary powers.
Lord Stoddart of Swindon: My Lords, is the Minister aware that we already know that the Prime Minister is a master of appeasement and climbdown, and has already shown that to be so in the case of the further mass slaughter of cattle? Will he give the House an assurance that, at the Florence Summit, the Prime Minister will not agree to any other matters being discussed until the proposals put forward by the Commission have been agreed by all heads of government? And will the Prime Minister reprimand the president of the Commission for his gross interference in our internal political matters, and for the threats and bullying of the past week or two?
Lord Lucas: My Lords, I really cannot reconcile the words "appeasement" and "climbdown" with getting what we want, which looks like happening. However, I can reassure the House that the action we have taken will not cease until we have the agreement that we seek from our partners.
Lord Marsh: My Lords, can the Minister give the House any other examples of where a sovereign elected government are given orders by unelected bureaucrats?
Lord Lucas: My Lords, I am not at all sure to what the noble Lord refers.
Lord Harris of Greenwich: My Lords, is the Minister aware that the Deputy Prime Minister—
A Noble Lord: My Lords—
The Lord Privy Seal (Viscount Cranborne): My Lords, I believe that we have time. Perhaps the noble Lord, Lord Harris, might take precedence, and my noble friend could follow.
Lord Harris of Greenwich: My Lords, is the Minister aware that on television this morning the Deputy Prime Minister referred to the ban on the importation of beef imposed by the United States and by Hong Kong? Will he share my puzzlement at his own Written Answer to my Question which appears in Tuesday's edition of Hansard (col. WA 17) in which I asked specifically which countries had imposed such a ban? The names of Hong Kong and the United States did not appear. Given the fact that it took four weeks for his department to answer the Question, would they at least try to get it right first time?
Lord Lucas: My Lords, indeed we have got it right. The name of Hong Kong was absent because the noble Lord asked which countries had imposed a ban before the European Commission imposed its ban. Hong Kong imposed its ban afterwards. The United States was absent because the United States has not imposed a ban on the import of British beef.
Lord Harris of Greenwich: My Lords, the Deputy Prime Minister was wrong, was he, this morning when he said that the United States had imposed a ban?
Lord Lucas: My Lords, I was working, not listening to the radio.
Baroness Carnegy of Lour: My Lords, the politics in all this are giving everybody a field day. What farmers want to know is what they will have to do, and when, in order to get their market back. Does the Minister have grounds for foreseeing the possibility, once the framework is agreed, of telling farmers exactly what the timetable will be and what they will have to do?
Lord Lucas: My Lords, what we rightly have is a framework, a procedure that will be followed in order to enable the ban to be lifted. There will be things that we must do to achieve that, because we are seeking to convince our European partners that they will be right to resume importing British beef. We shall be setting ourselves a rigorous timetable to achieve that aim.
Lord Carter: My Lords, in an earlier answer the Minister referred to foot and mouth disease. He really should know the difference between a disease that can be passed from animal to animal such as foot and mouth and a disease like BSE, which cannot.

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Is the Minister aware that every farmer in the country will have been staggered by the remark of the Deputy Prime Minister, Mr. Heseltine, on the "Today" programme this morning when he casually referred to the "handful" of cattle now to be added to the 80,000 already in the selective slaughter scheme? Is that "handful" 20,000 or 67,000? In his evidence to the Select Committee on Agriculture in the other place yesterday, the Minister of Agriculture, Mr. Hogg, quoted the figure of 67,000 as the additional number and said that 20,000 is too low. What is the reduction in actual numbers—not vague percentages—of BSE cases now expected to result from the selective slaughter scheme, and how many cattle are to be slaughtered?
Lord Lucas: My Lords, doubtless we shall have an opportunity to go into the details of this matter when they are presented to Parliament. However, I will help the noble Lord to the extent that I am able to. We are not looking for a disease that is passed from cow to cow; I am glad for the noble Lord's confirmation of that. We are looking at culling a group of cattle that are likely to be already infected even though not showing signs of infection. So far as the number of cases that we might expect to eliminate is concerned, of the basic cull—the original 42,000—we reckon that one in 14 would show the disease. There may be a number which would not show the disease; it is not something that can be diagnosed before symptoms appear. In the other sections of the cull, that percentage will be rather reduced. I do not have the figure with me. It is very much a question of seeing what we can do to reduce the incidence of BSE without going to unreasonable lengths. It is a matter on which Parliament will have a chance to have its say.
Lord Carter: My Lords, is it not extraordinary that the Minister—
Noble Lords: Next Question! Order!
Viscount Cranborne: My Lords, I hope the noble Lord will forgive me. I very much enjoy listening to my noble friend Lord Lucas answering the Opposition. Equally, I know that the House is looking forward to hearing my noble friend Lady Chalker.

UN Convention on the Law of the Sea
3.27 p.m.
Lord Kennet Lord Kennet asked Her Majesty's Government:
Whether they intend to accede to the United Nations Law of the Sea Convention in time to nominate candidates and to vote for members of the Law of the Sea Tribunal, and if not why not?
The Minister of State, Foreign and Commonwealth Office (Baroness Chalker of Wallasey): My Lords, the Government consider that the long-term interests of the UK will be best served by accession to the United Nations Convention on the Law of the Sea. The timing of accession remains under review. Parliament will be informed as soon as the
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Government have taken a decision. It will not be possible to take a decision on accession in the timeframe necessary to secure voting rights for the UK in the Law of the Sea Tribunal election.
Lord Kennet: My Lords, will the Minister confirm that it took some eight years to negotiate this worldwide convention, it was open to signature for about another six years, and has been in effect for two years? Will she further confirm that, by 30th June this year, all countries that wish to appoint members to the tribunal under the terms of the convention must have given in the names? Is it the case that, in not having done that, we exclude ourselves from the tribunal on the law of the sea and from various ancillary bodies thereunder? Why are we excluding ourselves from an arrangement that is manifestly in our national interest, as it is in the interests of all other countries given that, until the week before last, the Government were saying quite simply that we should accede, without any qualifications?
Baroness Chalker of Wallasey: My Lords, I underline that the Government are committed in principle and we are working at this matter. However, it has turned out to be more complicated than we anticipated. That is why it is taking longer than we wished. About half the countries have signed up; the other half have not.
The noble Lord is quite right: the UK candidate for the Law of the Sea Tribunal will not be able to succeed, because one has to have acceded to the convention for over a month before the election takes place. I hope that that will not affect the question of the Commission on the Limits of the Continental Shelf, since the elections for that commission do not take place until March 1997. By that time I sincerely hope that we shall have been able to resolve these matters.
Lord Archer of Sandwell: My Lords, as the noble Baroness confirmed that as a maritime nation we have a stronger incentive than most to establish an effective legal regime in international waters, how does it come about that even when we are on the side of the angels and for all the right reasons, we somehow contrive to make it appear to the world that we wish we were somewhere else?
Baroness Chalker of Wallasey: My Lords, I have no idea about being on the side of the angels. These matters need to be worked at quite a lot. A number of states are party to UNCLOS and that is growing. But many industrialised countries are only now acceding or have not yet done so. We must continue our work on this, which is what we are doing.
Lord Mayhew: My Lords, can the noble Baroness say why half the signatories were in time but not us?
Baroness Chalker of Wallasey: My Lords, as a nation surrounded by water, we have a great deal more interest in this matter than some of those who are landlocked and who signed up quickly.
Lord Kennet: My Lords, can the noble Baroness confirm, as has been reported, that a recently discovered obstacle is a belief by one member of the Government

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that the fisheries around Rockall will be affected if we sign up to the convention? If that is the case, has that been confirmed by the Government's legal advisers and, if so, which?
Baroness Chalker of Wallasey: My Lords, I am not sure that I can give the noble Lord, Lord Kennet, all the legal details. The Rockall fisheries zone is a matter of concern to this country. That is why we are continuing to study the legal and practical implications to make sure that we get things right.
Lord Campbell of Croy: My Lords, because Rockall is important for the United Kingdom and there are claims on it from at least three other countries, it is surprising that that has not already been dealt with, if Rockall is the problem. I have a special interest because I was the Secretary of State who put the Bill through Parliament which became the Rockall Act nearly 25 years ago, confirming and declaring that Rockall is part of Scotland.
Baroness Chalker of Wallasey: My Lords, I know that my noble friend worked extremely hard on that. However, while there is so much uncertainty around this is not the time to amend unilaterally the British fisheries limits, which would obviously be required if we were to bring them into line with UNCLOS. My noble friend will be well aware that that is the reason.

London Local Authorities Bill [H.L.]
3.33 p.m.
Read a third time, and passed, and sent to the Commons.

University College London Bill
Read a third time.
The Chairman of Committees (Lord Boston of Faversham): My Lords, I beg to move that the Bill do now pass.
Moved, That the Bill do now pass.—(The Chairman of Committees.)
Lord Annan: My Lords, perhaps I can just say how glad I am that the Royal Free Hospital Medical School is now to be part of the University College. It was recommended 30 or more years ago by Lord Todd, endorsed by my noble friend Lord Flowers 15 years ago and at last it has come to pass. If universities were able to reform a little more quickly, they might receive more sympathy today when they are in a very bad way.
Baroness Gardner of Parkes: My Lords, having listened to the last comment I should like to make clear that I consider this to be an equal merger of the two medical schools. In no way is the Royal Free Hospital to be submerged.
The Chairman of Committees: My Lords, I am sure that the noble Lord, Lord Annan, and my noble friend
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Lady Gardner of Parkes will forgive me if I do not respond to their helpful contributions. I know that some noble Lords are less familiar than others with the practice and procedure of your Lordships' House where Private Bills are concerned. Perhaps in defence of your Lordships I should explain that, if points are to be raised, notice is given and a sponsor appointed from the Back Benches to respond to any helpful contributions that may be made.
I am sure that if that line had been pursued and the sponsor appointed, he or she would have responded in a most welcoming way to both the contributions which have been made. I commend the Bill to the House.
On Question, Bill passed.

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

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

Asylum and Immigration Bill
3.38 p.m.
Report received.
Lord Dubs Lord Dubs moved Amendment No. 1:
Before Clause 1, insert the following new clause—
POWERS OF DETENTION
(". In sub-paragraph (1) of paragraph 16 of Schedule 2 of the 1971 Act (detention of persons liable to examination or removal) for the words "under the authority of an immigration officer' there shall be substituted the words—

"(a) for a period of up to seven days, under the authority of an immigration officer; or

(b) for any other period, under the authority of an adjudicator upon application by an immigration officer,"").

The noble Lord said: My Lords, in any democratic country that believes in and practises the rule of law it is an extreme step to deny anyone their liberty. That is why Parliament has always been concerned to ensure that there are adequate safeguards before anyone is kept in a prison or detention centre, thus losing their freedom. Yet there is one group of people—asylum seekers—who are detained without any judicial process and lose their liberty simply on the decision of a Home Office official. Those are people against whom there are no criminal charges and who are therefore completely innocent.
Locking up such people as an administrative act without a judicial safeguard cannot be right. At any point in time there are between 600 and 700 people detained under the Immigration Act powers, the majority being asylum seekers. However, the total number detained may reach several thousand. It is not pleasant being detained. Judge Tumim, when he inspected Campsfield House Detention Centre in February 1995, was quite shocked and said in his report,
"Detention without a time limit, no matter how reasonable the physical conditions, is extremely stressful. When combined with an uncertain future, language difficulties, a perceived or real lack of information and the fact that some detainees appeared to be terrified at the prospect of being deported, the stress increases".
I remind your Lordships of how we treat other people in Britain who are detained in prisons or other places, such as police stations. Under the Police and Criminal Evidence Act, which is the main legislation in this area, the longest period that anyone can be detained without charge is 96 hours. Even then the police must obtain the approval of the court for the detention to continue beyond 36 hours and again beyond 72 hours.
I turn to the Prevention of Terrorism Act. Here the maximum time that anyone can be detained without charge is seven days. In contrast, asylum seekers can be detained indefinitely with no prospect of a charge at all. In practice, their detention may vary from a few weeks to a year or longer. What options do those people have at the moment? They can return to their country of origin, which is a potentially dangerous process if they are liable to face persecution. Small wonder that several have committed suicide rather than face the risk of returning. An alternative is that they can apply for bail. At first sight that would seem to be the answer, but in practice very few bail applications succeed when taken up by asylum seekers. The reason is, I understand, that the sums demanded average about £2,000 and that is quite beyond the reach of asylum seekers and their friends. That means that in practice there is no effective bail system for asylum seekers. But even if there were, I suggest that that would be no substitute for having a proper judicial process to determine that detention is appropriate.
I turn briefly to what happens in other countries. Thanks to the efforts of the Refugee Council which did some research on the practice in nine European countries, I can say that there is a judicial process determining the detention in each one of those countries. Perhaps I may take a moment to give a few examples. In the Netherlands an appeal against a decision to detain may be taken to the district court. In Italy an asylum seeker can appeal to the relevant tribunal. In Denmark
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any foreign detainee is brought before a judge within three days of detention and the court will decide the length of time that the asylum seeker will be detained. In Belgium a judicial appeal can be brought against a decision to detain. In Finland any decision to detain must be reviewed by a court within five days. In Sweden there must be a review of the decision to detain after two weeks. In Portugal any decision to detain must be confirmed by a judge within 48 hours and similarly in France, Germany and Spain.
Each one of those countries has a judicial safeguard as regards detaining innocent people against whom there are no charges and who happen to be asylum seekers. But I argue that what we do in this country should not depend on what is done by others. After all, we have a longer tradition of democracy, natural justice and the rule of law than any of the countries I have mentioned.
My amendment is extremely simple and modest. If it is accepted, it will mean that an asylum seeker is to be detained for no more than seven days, other than when that further detention is authorised by an immigration adjudicator. In other words, the Home Office will have to go to an adjudicator and put its case if it wishes to detain an asylum seeker beyond seven days. An adjudicator, well-experienced in matters of asylum anyway, will then have to decide whether the Home Office has justified the detention.
Therefore, the amendment does not challenge the principle that asylum seekers may be detained; it simply says that there should be judicial safeguards. When this matter was raised at Committee stage, the Minister suggested that such a safeguard would impose more burdens on the Home Office and be excessively bureaucratic. The answer to that is this. I am aware that the Home Office already carries out detailed reviews of persons detained and that authority for detention beyond a certain period has to be decided at quite a senior official level. Therefore, my amendment would not significantly increase the burden on the Home Office. It simply means that the judgment about an individual case as regards continued detention, which is now made by Home Office officials, will have to be considered and approved by an immigration adjudicator. But even if my amendment, if accepted, were to increase the burden on the Home Office, I argue that there is a price to be paid for justice and the rule of law. It is surely wrong that asylum seekers have fewer rights than criminals and fewer than suspected terrorists. That cannot be the way in which we wish to treat these people. I ask the House to support this amendment. I beg to move.
3.45 p.m.
Earl Russell: We are dealing here with detention without cause shown. The main reason why detention without cause shown is egregious is that it is detention which cannot be judicially controlled by any legal process. If no cause is shown, one cannot decide whether the cause is sufficient. If it is done to British subjects it is illegal by a long tradition of measures stretching back to the Habeas Corpus Act of 1679 and The Petition of Right of 1628. The question is whether it is also in any sense illegal if it is inflicted on people within our shores who are not British subjects.

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There are two legal authorities which might possibly bear on this point. The first is Article 5 of the European Convention on Human Rights:
"Everyone has the right to liberty and security of person. No one shall be deprived of his liberty…save in accordance with a procedure prescribed by law".
I am aware that the present Home Secretary does not have a great affection for the European Convention on Human Rights. That is a debate which we need not enter now. For the time being it is a legal obligation accepted by this country. It seems to me that there is good sense in the view that, so long as we agree to be bound by a legal obligation, we should keep it. As recently as the beginning of this Parliament that was an observation which Ministers used to make frequently. So I ask the noble Baroness: has the Home Office taken any legal advice on the question of whether its policy of detention infringes Article 5 of the European Convention?
The second authority to which I wish to refer is Article 16(1) of the UN Convention on the Status of Refugees. I remind the House that that is not merely an international obligation. It is incorporated in British law by Section 2 of the Asylum Act 1993, which your Lordships may remember we passed not that long ago. So it is binding on us by our own authority. We agreed with it.
Article 16(1) provides,
"a refugee shall have free access to the courts of law on the territory of all contracting states".
I am aware that a case can be argued on both sides as to whether that clause condemns what the Home Office does at present. I am aware that in certain circumstances access to the courts exists and is valued. But the question is whether the effect of this procedure of detention without cause shown is to exclude such access in relation to the causes of the detention and whether, therefore, it is contrary to Article 16(1) of the UN Convention on the Status of Refugees.
I am not a lawyer. I would not wish to give any ex cathedra opinion on this point. But I would like to know whether the Home Office has taken legal advice on this point and, if it has, whether we can discover what the advice says.
Lord Renton: My Lords, no doubt my noble friend Lady Blatch will be answering that particular question and others. Meanwhile, perhaps I may venture to point out that although these amendments are moved with good intentions, there are various fallacies underlying them. I come first to the point made by the noble Earl, Lord Russell, about Article 5 of the European Convention on Human Rights. I confess that I am one of those who has wanted it to become part of our law and administered by our courts. I shall just repeat what the noble Earl said and hope I have got it right; namely, that nobody should be detained except by a procedure
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prescribed by law. This Bill, and others which went before it, do just that. They prescribe a procedure by law, which is not necessarily a judicial procedure.
Earl Russell: My Lords, I am most grateful to the noble Lord for giving way. Can he help me on this point: does it prescribe a procedure or only a power?
Lord Renton: My Lords, clearly, this is a procedure for the exercise of a power. I hope that that answers the noble Earl. It cannot be otherwise.
I return to the point I was making. We have a procedure here which Parliament has prescribed. It is prescription by law. That brings me to the opening remarks of the noble Lord, Lord Dubs, who said that asylum seekers can be detained merely by immigration officers instead of by judicial process. I wonder whether he is aware, because he made a tremendous amount of party protest over this matter, that it is a procedure which has been followed by Labour governments for years as well as by Conservative governments.
When people come here as immigrants, the immigration officers do not have an easy task. There is a great variety of people to be examined. Some have passports; others do not. Some want to stay here for a long time, perhaps to obtain employment; others do not, and want to come merely to visit. Their passports may have to be marked for a particular period when they remain. But if someone comes here seeking asylum and happens to have no justification for it, or the reasons are very doubtful, under the present law—as I say, it has been the case for a long time—the immigration officer has to detain the person.
Eventually, under the 1995 Act and previous legislation, a judicial process can be invoked. The Bill is largely concerned with strengthening and improving that judicial process. But, fundamentally, it is not something that ought to be changed. Indeed, it is rather significant that the amendment says that there may be detention,
"for a period of up to seven days, under the authority of an immigration officer".
So there it is. It is just a question of the time anyway. At present, the time is unlimited until the judicial process can be invoked. That is not a very long time because the judicial process can now be invoked at a reasonably early date. In any event, the noble Lord, Lord Dubs, has said in the amendment that it shall be up to seven days.
The suggestion that this matter should be handed over to adjudicators—it is assumed that they will have a quasi-judicial function to perform—brings one to the question of whether there would be enough adjudicators to deal with the very large numbers of people who now come here trying to claim asylum. I confess that I do not know how many adjudicators there are, but I know that they are not numerous. In the nature of things, we would not expect them to be numerous. But their numbers would have to be increased if there were an appeal after seven days to an adjudicator. That would perhaps hold up the whole process of getting the matter

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considered fully by a judicial process, which is contrary to what noble Lords who wish to have the amendment are proposing.
With great respect, I do not think this matter has been sufficiently thought through, but I shall be very interested to hear what my noble friend has to say.
The Lord Bishop of Ripon: My Lords, this amendment does not challenge the principle that asylum seekers should be detained but there are many people, in the Churches particularly, who are concerned about lengthy periods of detention without trial and without time limit. There is nothing more hopeless than someone being detained with an uncertain future. My own experience as bishop to prisons teaches me that despair is both psychologically damaging to the individual and extraordinarily stressful. So the Churches would want to support the amendment. Of course it will cost more, as the noble Lord, Lord Dubs, said, but justice is at stake here and we believe passionately that it should be observed.
Lord Hylton: My Lords, at the Committee stage I moved and withdrew two small amendments bearing on this point. It seems to me that Amendment No. 1 is a far, far superior one, and I very much welcome and support it.
Lord Milverton: My Lords, I rise to say how I feel about this amendment since the noble Lord, Lord Dubs, kindly wrote me a letter. Although I would like to, I am afraid that I cannot support it. Therefore I am a churchman who would perhaps be in a minority. I am afraid I do not agree with the right reverend Prelate. On the whole, I believe that Her Majesty's Government are doing their best to put right a situation and therefore my noble friend the Minister would have to answer very badly for me to agree with the amendment. I am sure she will not.
I do not believe that people from abroad, whatever their situation or condition, should feel that they can just come to this country and take up residence ad hoc before a final decision is made on whether they should be able to stay. I do not believe that an immigrant or asylum seeker coming here is in the same position as anyone in this country who has found him or herself in criminal proceedings. Let other countries do how they think, but there are only so many human beings a country can absorb, whether here or elsewhere. There are our own people to consider, whatever their origin—not just us whites, Europeans, but whether they be Asian, African or from other ethnic groups. They must be considered too. I believe that Her Majesty's Government have not been narrow, awkward or difficult in this Bill. I am afraid that I cannot respond in a way that the noble Lord, Lord Dubs, would like me to respond.
4 p.m.
Baroness Blatch: My Lords, this amendment is very similar in intent to Amendments Nos. 134 and 137A tabled during the Committee stage of the Bill. I shall be
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resisting the amendment but I intend to rely on many of the arguments I used during the Committee stage because they still apply and still have force.
Under the current powers in the 1971 Act a passenger who is required to submit for examination by immigration officers may be detained on the authority of the immigration officer pending the examination or a decision on whether to grant him leave to enter. Once seven days have elapsed from the date of his arrival in the United Kingdom it is open to the detained passenger to apply to an adjudicator for release on bail—so there is the right of challenge. With the exception of my noble friends who have spoken in this debate, most people have spoken as though there is no right to challenge and no right to apply for bail. But there is, and in the same timescale as suggested by the amendment. The adjudicator will review the case in accordance with tried and tested procedures and will decide whether release on bail is appropriate in all the circumstances of the case.
I am aware that a number of noble Lords are concerned that asylum seekers in particular will be deprived of their liberty for an indefinite period without judicial process. That is simply not the case. I make no apology for repeating that since the coming into force of the 1971 Act—my noble friend Lord Renton made the point that it has been on the statute book for a long time and has been administered by many governments, including the government of noble Lords opposite—a passenger detained pending further examination has been able to apply for bail after he has been detained for seven days. That will remain the case and provisions which the Government have included in the Bill will radically expand the opportunities to apply for bail.
The amendment seeks to remove that established procedure and replace it with a completely new arrangement. Instead of the detained applicant seeking bail from an adjudicator, the immigration officer would have to seek an adjudicator's authority to maintain detention.
I mentioned earlier that this amendment is similar in intent to amendments tabled in Committee. However, it differs in the way that it is expressed, and the wording of the amendment would cause me some difficulty even if I was sympathetic to the intentions behind it. It provides the immigration officer with a power to authorise detention of a period of seven days, but it does not make clear whether this is the initial period of seven days following arrival in the United Kingdom, as is currently the case in the 1971 Act, or any period of seven days. That is not made clear in the amendment. That ambiguity is mirrored in the authority which is granted to the adjudicator to confirm detention "for any other period".
I have already asked for the indulgence of the House in repeating comments I made during Committee, and I will now do so again because this is an important point. Decisions to detain are not taken lightly and are subject to regular review by the Immigration Service. Requiring an immigration officer to seek the authority of an adjudicator to maintain detention would undermine the integrity of the on-entry control and

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would create an inefficient, and for the reasons I have just given, ambiguous system. Such a system would place considerable extra burdens on the Immigration Service—I take issue with the noble Lord, Lord Dubs, on that point—and the already hard-pressed appellate authority without producing any obvious benefits.
We have recognised that there are difficulties with the current arrangements for detaining people under powers in the 1971 Act. The principal difficulty is that certain groups of people detained under those powers are denied the right to seek bail. It is for that reason that we have taken measures in this Bill to ensure that the right to apply for bail is available to all. The noble Lord, Lord Dubs, made reference to guidelines on the detention of asylum seekers issued by the United Nations High Commissioner for Refugees when we debated the question of detention in Committee. The noble Lord focused on the second of those guidelines and I hope he will bear with me while I quote it. It refers to,
"the right to challenge the lawfulness of the deprivation of liberty promptly before a competent, independent and impartial authority, where the individual may present his arguments either personally or through a representative."
I believe that that describes the bail system which will be in place if the additional rights to apply for bail which are contained in this Bill are accepted in full.
I turn now to the point made by the noble Lord, Lord Dubs, about the Police and Criminal Evidence Act. The period of up to seven days may be necessary to allow inquiries to be made of embassies and other sources of information, but that is a maximum. It may not be necessary to use all of those seven days. Very few asylum seekers are detained—in fact, just 1 per cent. are detained and they can apply for bail at any time after the seven days.
I refer now to the European Convention on Human Rights. I know that my noble friend has a view on such things, but the convention is not part of domestic law. However, the Government are satisfied that the Immigration Act 1971 conforms to the provisions of the convention. We are satisfied that the detention of asylum seekers under that Act is compatible both with the European Convention on Human Rights and the United Nations Convention on the Status of Refugees. Perhaps I may advise the noble Earl that it is not the normal practice of government to disclose the content of legal advice that they have received or sought. The right to challenge after seven days is provided for in the Bill. I therefore regard the amendment as unnecessary.
Viscount Caldecote: My Lords, my noble friend has made a strong case for rejecting the amendment—
Noble Lords: Order! Report!
Lord Dubs: My Lords, I thank noble Lords who have participated in this debate. I have listened carefully to what they have said and I should like briefly to deal with the main points that have been raised. It is true that the legislation which gave the power to detain individuals has been on the statute book since 1971. It was certainly there throughout the period of office of
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the 1974–79 Labour Government. I did not make a single party political point in my speech, but what has happened more recently is that the Government have felt it necessary to detain far more asylum seekers than was the case in the 1970s when, on Home Office figures, very few asylum seekers came to this country, with the result—
Lord Renton: My Lords, the noble Lord must face up to the fact that there has been a vast increase year by year in the number of people seeking asylum, and the consequences are inevitable.
Lord Dubs: My Lords, I accept that there has been a significant increase in the number of individuals seeking asylum in this country and in other West European countries. In fact, the increase has been greater in some other countries. I was going to say that this Government then increased significantly the facilities for detention. They opened Campsfield House. Haslar Prison in Gosport was converted for the purpose. There are also wings available at Rochester, and a number of other prisons and detention centres were opened specifically for this purpose. The Government's policy was to increase the number of people who would be detained. Although very few people were detained in the earlier period of the implementation of the 1971 Act, the numbers are now significant, which gives more point to the amendment. However, I accept the noble Lord's point that the principle applied under previous governments also and, in so far as it did, I am being critical by implication of what happened in earlier days as well as of what is happening today.
What my amendment suggests would not in any way weaken the power of the Government to detain individuals where that is appropriate. There may well be instances where detention is appropriate. I do not believe that it will be appropriate to detain the number of people who are being detained today, but I can see that there may be some occasions when it would be appropriate. The Minister herself said that only a small percentage of all asylum seekers are detained. Inevitably, however, a Home Office official or an Immigration Service officer has to decide whether detention is appropriate for any individual asylum seeker. The Home Office has to make such decisions whenever anybody arrives here for asylum or for other reasons, so the process already exists. I understand from meetings that I had years ago with Home Office Ministers that the Home Office is careful to scrutinise the continued detention of every individual to make sure that there are good reasons for the detention.
My amendment seeks simply to demand that the Home Office makes that information available to an adjudicator who can then determine whether the continued detention is appropriate. Adjudicators are appointed by the Lord Chancellor. They are judicial figures who have experience in dealing with immigration appeals. They are therefore recognised experts in the business and are obviously the appropriate persons for the task.

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I turn now to the question of bail, which the Minister spent some time arguing was the main reason why my amendment is unnecessary. Even if there is an effective bail system, my key point remains: there should be a judicial process before anybody loses their liberty. That is what the present system for detaining asylum seekers denies.
Baroness Blatch: My Lords, with the leave of the House, may I say that the noble Lord has just said that that process is denied to somebody being detained before they lose their liberty. The noble Lord's amendment refers to seven days after a person is taken into custody. Is the noble Lord suggesting that there has to be a judicial process even before an individual can be put into custody, which, in the case of such detainees, is only ever done for very good reasons? There is no difference between the timescale in the noble Lord's amendment and mine. The difference between our two points of view is that the noble Lord is insisting that in every single case the immigration officer must apply for a judicial review after seven days whereas we are giving the person who is detained the right to challenge being kept in custody after seven days.
Lord Dubs: My Lords, there is a difference between bail and the procedure that I am talking about. I am referring to the same process that any criminal in this country is entitled to under the Police and Criminal Evidence Act. Any person held under the Prevention of Terrorism Act has a right which is denied to asylum seekers. That right is concerned with how long people are detained before they are charged. These people are not charged, and there is no judicial process at all. The Minister has said that bail provides a way out. It may be a way out. I ask the Minister how many asylum seekers have managed to get bail in these circumstances. The Minister will agree that the sums demanded are normally in the region of £2,000. If the sum demanded for release is too large for bail to be effective that is not a bail system but merely a token system that does not work.
I apologise for repeating myself but I do so lest there be any misunderstanding. I suggest that, as under the Police and Criminal Evidence Act or the Prevention of Terrorism Act, if someone is to be detained under immigration Act powers beyond seven days—it can be within seven days—the Home Office should go to the adjudicator and state the reasons why in its view detention is appropriate in those circumstances. The adjudicator may agree that it is appropriate for the person to continue in detention, or he may disagree and say that an insufficient case has been made out. It is called justice; it is the system practised by the courts on most occasions. I believe that that is a system which adjudicators are well qualified to follow to provide some basic rights.
The bail system is still there but it is very much at the end of the line. It does not work. If the bail system worked I would not be bothering the House with this amendment. However, the bail system does not work. The simple procedure in this amendment would work. It would not undermine immigration
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control or the system operated by immigration officers, but they would have to go to the adjudicator instead of merely senior officials to say why detention should continue.
This is such a simple device that I expected the Minister to be more sympathetic to it. I cannot understand why she refuses to accept the amendment. It provides a modicum of justice. In many ways, we live in an unhappy world. In this country we have certain standards. Surely, it is right that those standards should apply to all individuals whether they are humble asylum seekers or others. It is extraordinary that we give fewer rights to asylum seekers, who are innocent of any criminal matter, than to criminals under the Police and Criminal Evidence Act or the Prevention of Terrorism Act. We are not prepared to give the same rights to asylum seekers. The Government's system of immigration control would not be dented by this amendment but would remain intact. It would introduce a little bit of justice into the process of detaining asylum seekers. I should like to seek the opinion of the House.
4.13 p.m.
On Question, Whether the said amendment (No. 1) shall be agreed to?
Their Lordships divided: Contents, 102; Not-Contents, 125.

Division No. 1

CONTENTS

Addington, L.

Harris of Greenwich, L.

Archer of Sandwell, L.

Hayman, B.

Ashley of Stoke, L.

Henderson of Brompton, L.

Attlee, E.

Hilton of Eggardon, B.

Avebury, L.

Hollis of Heigham, B.

Bath, M.

Hooson, L.

Beaumont of Whitley, L.

Howie of Troon, L.

Birk, B.

Hylton, L.

Blease, L.

Inchyra, L.

Borrie, L.

Irvine of Lairg, L.

Bruce of Donington, L.

Jay of Paddington, B.

Carmichael of Kelvingrove, L.

Jeger, B.

Carter, L.

Jenkins of Hillhead, L.

Clancarty, E.

Jenkins of Putney, L.

Cledwyn of Penrhos, L.

Judd, L.

Cocks of Hartcliffe, L.

Kilbracken, L.

Dahrendorf, L.

Kirkhill, L.

David, B.

Lincoln, Bp.

Dean of Beswick, L.

Listowel, E.

Desai, L.

Lockwood, B.

Diamond, L.

Lovell-Davis, L.

Donaldson of Kingsbridge, L.

McIntosh of Haringey, L.

Donoughue, L.

McNair, L.

Dormand of Easington, L.

McNally, L.

Dubs, L.

Mallalieu, B.

Eatwell, L.

Mar and Kellie, E.

Ezra, L.

Masham of Ilton, B.

Falkender, B.

Mason of Barnsley, L.

Falkland, V.

Mayhew, L.

Gainsborough, E.

Merlyn-Rees, L.

Gallacher, L.

Methuen, L.

Gladwin of Clee, L.

Milner of Leeds, L.

Gould of Potternewton, B.

Monkswell, L.

Graham of Edmonton, L. [Teller.]

Nicol, B.

Greene of Harrow Weald, L.

Ogmore, L.

Hamwee, B.

Peston, L.

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Prys-Davies, L.

Simon of Glaisdale, L.

Rea, L.

Southwell, Bp.

Redesdale, L.

Stallard, L.

Richard, L.

Strabolgi, L.

Robson of Kiddington, B.

Strafford, E.

Rochester, L.

Thomas of Walliswood, B.

Rodgers of Quarry Bank, L.

Thomson of Monifieth, L.

Russell, E [Teller]

Thurlow, L.

Sainsbury, L.

Tonypandy, V.

Sandwich, E.

Turner of Camden, B.

Scanlon, L.

Whaddon, L.

Seear, B.

White, B.

Serota, B.

Williams or Crosby, B.

Sewel, L.

Williams of Elvel, L.

Simon, V.

Williams of Mostyn, L.

NOT-CONTENTS

Aberdare, L.

Howe, E.

Abinger, L.

Hylton-Foster, B.

Ailsa, M

Inglewood, L.

Alexander of Tunis, E.

Kenyon, L.

Astor of Hever, L.

Kinnoull, E.

Balfour, E.

Kitchener, E.

Belhaven and Stenton, L.

Knollys, V.

Beloff, L.

Laing of Dunphail, L.

Blatch, B.

Lane of Horsell, L.

Bledisloe, V.

Lauderdale, E.

Boardman, L.

Lindsey and Abingdon, E.

Boyd-Carpenter, L.

Liverpool, E.

Brigstocke, B.

Long, V.

Brougham and Vaux, L.

Lucas, L.

Butterworth, L.

Lucas of Chilworth, L.

Caldecote, V.

Lyell, L.

Campbell of Alloway, L.

McColl of Dulwich, L.

Campbell of Croy, L.

Mackay of Clashfem, L.

Carnock, L.

[Lord Chancellor]

Chalker of Wallasey, B.

Mackay of Drumadoon, L.

Chesham, L [Teller]

Macleod of Borve, B.

Clanwilliam, E.

Marlesford, L.

Clark of Kempston, L.

Merrivale, L.

Courtown, E.

Mersey, V.

Craigavon, V.

Miller of Hendon, B.

Cranborne, V [Lord Privy Seal.]

Milverton, L.

Crathorne, L.

Mottistone, L.

Cuckney, L.

Mountevans, L.

Cullen of Ashbourne, L.

Mowbray and Stourton, L.

Cumberlege, B.

Munster, E.

Dacre of Glanton, L.

Murton of Lindisfarne, L.

Davidson, V.

Nelson, E.

De Freyne, L.

Newall, L.

Dean of Harptree, L.

Norfolk, D

Denham, L.

Northesk, E.

Denton of Wakefield, B.

O'Cathain, B.

Dixon-Smith, L.

Onslow, E.

Downshire, M

Oppenheim-Barnes, B.

Eden of Winton, L.

Orkney, E.

Ellenborough, L.

Oxfuird, V.

Elles, B.

Park of Monmouth, B.

Elliott of Morpeth, L.

Pearson of Rannoch, L.

Elton, L.

Peel, E.

Feldman, L.

Pym, L.

Ferrers, E.

Rankeillour, L.

Finsberg, L.

Rawlings, B.

Fraser of Carmyllie, L.

Renton, L.

Fraser of Kilmorack, L.

St Davids, V.

Gardner of Parkes, B.

Saltoun of Abernethy, Ly.

Goschen, V.

Seccombe, B.

Hailsham of Saint Marylebone, L.

Shaw of Northstead, L.

Harding of Petherton, L.

Soulsby of Swaffham Prior, L.

Harlech, L.

Strange, B.

Harrowby, E.

Strathcarron, L.

Hayhoe, L.

Strathclyde, L [Teller]

Henley, L.

Strathmore and Kinghorne, E.

Hesketh, L.

Swinfen, L.

HolmPatrick, L.

Swinton, E.

470

Terrington, L.

Tugendhat, L.

Thomas of Gwydir, L.

Weatherill, L.

Thomas of Swynnerton, L.

Wise, L.

Trefgarne, L.

Wynford, L.

Trumpington, B.

Young, B.

Resolved in the negative, and amendment disagreed to accordingly.
4.21 p.m.
Clause 1 [Extension of special appeals procedures]:
Lord Ashbourne Lord Ashbourne moved Amendment No. 1A:
Page 1, line 9, at beginning insert ("Subject to subsection (1A) below").
The noble Lord said: My Lords, with the leave of the House I shall speak also to Amendment No. 4B. The intention of these amendments is to give persons who have been forced to undergo involuntary abortion or sterilisation, or have been persecuted for failure or refusal to undergo such a procedure, the right to asylum in this country. They would also give persons in danger of compulsory abortion or sterilisation the right of appeal.
China is the only country where it is illegal to have a brother or a sister. By that I mean couples are permitted one child only. The amendment is not controversial. Almost all Britons, whatever their views on the moral and political questions surrounding abortion, regard forced abortion and forced sterilisation as particularly inhuman violations of their fundamental rights. Indeed in recent parliamentary replies to Questions tabled by my noble friend Lord Braine, Her Majesty's Government condemned such practices.
The Government of the People's Republic of China routinely compel women to abort their "unauthorised children". The usual method is intense coercion, using all the economic, social and psychological tools a totalitarian state has at its disposal. When those methods fail, women are taken physically to abortion mills, often in handcuffs, and forced to have abortions. That sometimes happens very late in the pregnancy, even up to the time of birth. The baby's skull is crushed with forceps or lethal chemical shots are administered into the soft part of the skull.
Forced abortion was rightly construed to be a crime against humanity at the Nuremberg war crimes tribunals, and yet today it is being used pervasively throughout the People's Republic of China.
Perhaps I may remind noble Lords that we are talking about a country where children are declared illegal just because they do not fit into a certain quota that has been established and promoted by the government. A report entitled Human Rights Violations Resulting from Enforced Birth Control issued last June by Amnesty International states:
"Couples who have a child above the quota are subject to sanctions, including heavy fines".
It talks also about psychological and physical pressure; it talks about degrading treatment; it talks about the use of handcuffs; it talks about the use of detention. That report from Amnesty International, an organisation

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which takes no position on the defence of the unborn, strongly condemns China's horrendous practice of forced abortion and forced sterilisation. The report continues:
"In December 1993 a district court in Guangzhou reportedly sentenced a man to 10 years' imprisonment and three years' deprivation of political rights for his part in a 'save the babies and save the women campaign' which had assisted 20 women to give birth in excess of the plan. The court reportedly claimed that by his actions he had entered into rivalry with the party and state, and had therefore committed counter-revolutionary crimes as well as jeopardising social order".
That man got 10 years in prison because he tried to defend some women and babies in China against that evil practice.
But why am I talking so much about China? noble Lords may be asking. Noble Lords must be thinking that we surely have enough problems of our own. But those flagrant abuses of human rights, wherever they occur, must be resisted by the international community. Is this not an excellent opportunity for this country to take a lead in the fight against that tyranny and injustice?
Noble Lords may be saying to themselves, "Will that not allow a flood of Chinese to come into this country?" I know that noble Lords are concerned about a flood of people coming in, and rightly so, because the Government have to strike a balance, and that is not easy. As my noble friend the Minister has already said, every case is looked at individually. I welcome that, but I would seek to set noble Lords' minds at rest, because we have a precedent in the United States where both during the Reagan regime and the Bush regime legislation was passed similar to that I am seeking to introduce with these amendments.
During that period the number of people allowed into the United States varied between 100 and 200 per annum. That is not a big figure. It is for noble Lords to judge, but 100 to 200 per annum does not strike me as a flood of people coming into this country. Even if the experience of the United States were not repeated in this country, and I am misleading the House, which I am not seeking to do, it would be a simple matter to put a quota on the numbers allowed in. All the Government would have to do would be to say, "We limit the quota to, say, 500". The first 500 get in and then the choppers come down.
Lord McIntosh of Haringey: My Lords, before the noble Lord sits down surely it would not be a simple matter to impose a quota. If the amendments were incorporated into the Bill, they would, I believe and hope, be an obligation on government and a quota would go against such an obligation.
Lord Ashbourne: My Lords, I am grateful to the noble Lord for that intervention. If I have misled the House I must apologise. I shall take back that side of the argument. The House will judge for itself of course, but if the number was between 100 and 200 in the United States, it does not seem likely there would be a flood of applicants. In any event, every applicant is looked at individually. They have to meet the criteria in order to get in.
Last year, the Subcommittee on International Operations and Human Rights, chaired by US Congressman Chris Smith, held hearings on "Coercive
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Population Control in China". The subcommittee heard testimony from Dr. John Aird, the former research specialist on China at the US Census Bureau. He testified that the policy:
"continues to rely on coercive measures to reach its objective, and therefore victims of these measures will probably continue to seek asylum in other countries".
I take this opportunity to pay tribute to Congressman Smith and Miss Maggie Wynne, director of the Pro-Life Caucus in Congress, for their sterling work in drawing attention to these human rights abuses.
Dr. Aird concluded that the one thing that other nations can do is to:
"lower the barriers to asylum for Chinese fleeing the family planning program, which would cost relatively little".
That is what the amendment seeks to achieve and I commend it to the House. I beg to move.
4.30 p.m.
Lord Braine of Wheatley: My Lords, I warmly congratulate my noble friend Lord Ashbourne on bringing forward this amendment. I hope that it will come as no surprise to any of your Lordships to learn that I fully intend to give him my full, unqualified support. I join my noble friend in paying a warm tribute to United States Congressman, Chris Smith, and to Maggie Wynne, director of the Pro-Life Caucus in Congress. With great skill and dedication they have highlighted the tragedy and the scandal of enforced abortion in China. Civilised people everywhere should be grateful to them for that.
Surely, enforced abortion is the cruellest and most barbaric abuse of human rights imaginable. I understand that last year one distinguished authority on China informed the United States Congress that there had been frequent and credible reports of direct physical coercion of that kind in China including, although not limited to, the arrest of pregnant women and forcing them to attend abortion clinics. There has also been incarceration of pregnant women until they submit to abortions and forcible attendance at so-called study sessions away from their families until they agree to submit themselves to sterilisation or abortion.
As regards the methods used, I am advised that they involve crushing the skulls of infants with forceps during delivery or the injection of iodine, alcohol or formaldehyde into their soft spots so that they are born dead. Secondly, they involve imprisoning husbands where necessary in order to force their wives to accept these appalling treatments; cutting off food, water, electricity and wages for couples who refuse to comply; confiscating their furniture and livestock; and even demolishing their homes.
The amendment, so ably moved by my noble friend Lord Ashbourne, provides asylum for those unfortunates who have been forced to undergo involuntary abortion or sterilisation—procedures involving the utmost cruelty. I hope that when my noble friend the Minister replies she will indicate her willingness to accept our amendment. Otherwise, I feel bound to say, in the face of the evidence it is inconceivable to me that anyone in this House—indeed, in Parliament as a whole—will support such

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appalling cruelty. Therefore, in this debate I hope that we shall speak and act as one on this grave and distressing matter.
Earl Russell: My Lords, I have put my name to the amendment. Some noble Lords may be a little surprised that I have done so. I do not believe that it will surprise any noble Lord to learn that my views and those of the noble Lord, Lord Braine, on abortion are not identical. However, our views on forced and involuntary abortion are identical. That is the hub of the common ground between us.
I believe in a world in which people are allowed to follow their own consciences, provided that they do no harm to others. Whatever may be said, often truly, at conferences on population control, I believe that people's own reproductive systems and their use of them are matters which are very much for themselves. Applying coercion is, to say the very least, intrusive. In many of the cases involved it is worse than intrusive. It is an assault and an infliction of a grave physical injury. I believe that those who face such dangers may well be said to have a well-founded fear of persecution. For that reason I am happy to put my name to the amendment.
The Duke of Norfolk: My Lords, I too put my name to the amendment. I did so because I recognise that there is the problem of enormous population explosions in places such as China, which I toured for three weeks. As was said most ably by those who have spoken so far, I believe in man's freedom of action and conscience. If a government are going to force population control, they must obtain the willingness of the people.
China brought in population control in 1979. Apparently it reached its peak in 1983 when there were 21 million sterilisations and 14 million abortions. I believe that that is the most disgraceful and inhumane way of allowing a nation to live. I thoroughly support the amendment.
Baroness Williams of Crosby: My Lords, I believe that we should not select our forms of human injustice. The noble Lords, Lord Ashbourne and Lord Braine, and the noble Duke the Duke of Norfolk are right in seeing the issue as part of a spectrum of unacceptable behaviour against the individual. Let us admit that in respect of this matter all of us are to some extent hypocrites. The scale of the population challenge which threatens the world makes us hypocrites. However, as the noble Duke said, there is a sharp distinction between the education of people in controlling the size of their families and the use of violent methods to compel them not to bear to full term the children which they fully intend and wish to have.
I might not have intervened in the debate had I not attended the fourth World Women's Conference of the United Nations at Beijing last autumn. I cannot and will not give your Lordships chapter and verse because I am not prepared to put certain people in that country at very grave risk. I can say that I am absolutely certain that what has been described by the noble Lords, Lord Ashbourne and Lord Braine, is consonant with what is happening in that country.
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I understand and sympathise with the great difficulties that the Government might have in accepting the amendment. But I wonder whether they can give us the assurance that if people flee to this country on the grounds that they have been, effectively, tortured—that is the proper word—by having their full-term child ripped from them and killed, sometimes before their very eyes, they will consider that as coming within the definition of torture. I believe that any woman, certainly any mother, will understand that to see her baby killed before her eyes is a form of torture as profound in its psychological and other effects as the kinds of torture that we shall be discussing in the next group of amendments.
Baroness Seccombe: My Lords, as a mother I am appalled by the atrocities that have taken place and I am grateful to noble Lords for bringing them before the House today. However, my understanding is that there are procedures in place which would pick out such cases. I would be grateful if my noble friend the Minister would confirm that. Does she believe that isolating such cases on the face of the Bill will make for more difficulties?
Baroness Gardner of Parkes: My Lords, I believe that the Bill must already cover this situation. I believe that we all feel sympathy for the cases which have been outlined and I certainly agree that it would be a form of torture and should be so considered.
The other side of the coin is that if anyone were able to have an abortion voluntarily in an entirely different country, she may then come here and complain that she was forced to have that abortion. That would be a different situation because the Government would have to be satisfied that the abortion genuinely took place against that person's will. But if it has been done forcibly, it must qualify as a form of torture and must be already covered by the Bill. While I have every sympathy for the case that is being put forward, I think that the amendment is unnecessary and I hope that the Minister will confirm that that is so.
Lord Avebury: My Lords, I believe that the definition of torture extends to cruel, inhuman and unusual treatment or punishment. If that is the case, surely compulsory sterilisation and abortion are included within that definition. A person who has been subjected to that inhuman treatment would thus qualify as an asylum seeker and be given refuge in this country.
I hope that that is the case because I believe that the evil to which noble Lords have drawn attention is very real. While I share with my noble friend Lady Williams anxieties about the population explosion, I am equally at one with noble Lords opposite who say that any form of compulsion in this matter is a gross violation of human rights. I am sorry to say that it is one of the matters of which the People's Republic of China has been guilty over the years and which has been overlooked by the West and by those who are so keen to cast aspersions on the human rights performance of many other countries.
I know that the noble Lord, Lord Braine, will agree with me about the case of Tibet where there has been, over the years, an attempt to commit the gross crime of ethnicide; that is, to remove the cultural, religious, ethnic and other distinctions between the Tibetans and their Chinese

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colonial masters. One way in which that has been done has been by the use of compulsory sterilisation and abortion to a greater extent in Tibet than has been the case in the rest of the People's Republic of China.
I know that evidence has been presented on that matter to the Select Committee of another place. It was difficult for it to investigate the matter because the Chinese do not want anybody to know what is happening there. But in the long run, the danger is that by policies of migration and enforcement of special birth control procedures within the autonomous region of Tibet, the existence of the Tibetans as a separate people will ultimately be extinguished, in the same way as the Mongolians have already been and the East Turkestanis are on the way to being extinguished.
Therefore, noble Lords have raised an extraordinarily important feature of human rights violations in China. I hope that the Minister will give us the assurance which is sought in relation to anybody who appears on our doorstep claiming to have suffered either from compulsory abortion or sterilisation, whether it be in the People's Republic of China or elsewhere.
We must not forget that a few years ago, a vast programme of compulsory birth control was instituted in India. People were forcibly sterilised in that country and that ultimately led to the fall of the government. Therefore, it is not the People's Republic alone which should be put in the dock, although it is by far the greatest culprit regarding that crime in the world today. Therefore, I hope that the Minister will be able to give us the assurance for which she has been asked.
Lord Carr of Hadley: My Lords, I support the noble Baroness, Lady Williams of Crosby, when she says that to categorise the evils referred to in this amendment as torture would be both effective and the best way in which to deal with the matter in this Bill.
Baroness Rawlings: My Lords, of course no one could question the horror of forced abortion and sterilisation. We have heard of those horrors from my noble friends Lord Braine and Lord Ashbourne. However, it may be that we should not use this Bill in order to condemn the law of China. Should the UK and other countries feel that the Chinese human rights record in that area is unacceptable, that should be dealt with by international bodies which could have a real effect on the Chinese Government to change their policy.
Do we really want those horrors dealt with? I genuinely believe that we do; and I know that I do. Therefore, I urge the Minister to have this matter raised in an international forum so that something can be done. But I repeat that I do not think that this Bill is the most effective method by which to do that.
Viscount Caldecote: My Lords, if the Minister can give an assurance that this appalling situation is already covered in the Bill, then I could not support the amendment. On the other hand, if it is not covered, I would strongly support the amendment and I believe that it should be inserted into the Bill.
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The problem of numbers could be covered by inserting an amendment at a later stage to give the Secretary of State power to have a quota or to include in the Bill an amendment with the numbers involved.
Lord Mottistone: My Lords, I support the principle of this amendment. I agree with the noble Lord, Lord Carr, that the amendment should be included in the definition of torture at Clause 12(2).
4.45 p.m.
Baroness Blatch: My Lords, I am most grateful to my noble friend Lord Ashbourne who kindly wrote to me after he tabled the amendment, providing some background information on the reasons behind the amendment. Of course, I have written to him to explain our approach to those issues.
The subject of this debate—people who against their will undergo abortion and/or sterilisation or who have been persecuted for their failure or refusal to undergo such dreadful procedures—is one which touches everyone in this Chamber.
I begin by setting out our general approach to asylum claims based on these grounds. The first point to make is that forcible abortion or sterilisation would in most circumstances constitute cruel and inhuman treatment. Obviously each case has to be considered on its merits. But subject to that, I can confirm that we would not remove a pregnant woman in circumstances where there was a likelihood that she would be subject to forcible abortion, until after the birth of the child.
Nor would we remove an asylum seeker if it was likely that he or she would be subject to forcible sterilisation. In such cases, we would be likely to grant either asylum or, if it was not entirely consistent with the United Nations convention, exceptional leave, depending on whether the fear was based on one of the reasons specified in the 1951 Convention, and thus amount to persecution; that is, for reason of race, religion, nationality, membership of a particular social group or political opinion. I am sure that all noble Lords would agree with me that a particular social group is probably the criterion under which these offences would fall.
Secondly, treatment inflicted on an asylum seeker in the past would obviously be an important clue to what might happen to them in the future. So if there was convincing evidence that a woman who was now pregnant had previously been subjected to forcible abortion, that might well tend to lend credence to her claim that this would happen to her again if she returned to her country.
Thirdly, forcible abortion or sterilisation might well be regarded as amounting to torture. So if it was likely that an asylum seeker had been treated in this way they would be very likely to qualify for the exemption from the accelerated appeal procedure, under the terms of the safeguard on torture which the House will be debating today.
Fourthly, the 1993 Act makes clear that a well-founded fear of persecution on grounds of political opinion qualifies an applicant for asylum. Opposition or resistance to a population control policy may qualify as a

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political opinion depending on the circumstances, although this may not be so in a case of purely personal non-compliance.
We must of course consider each case on its individual merits. Nevertheless, I would hope that my noble friends and noble Lords who have spoken in the debate have found those remarks reassuring.
Having said all that, however, I must make clear that cases of the kind I have just discussed are at present not often encountered. What is more common is for people to claim asylum on the grounds that their country has a strict population control policy; that they wish to have another child; and that they would face difficulties in doing so if they returned home.
However, perhaps I might also say that all of us in this House have views about abortion. My views are much closer to those of my noble friends Lord Braine and Lord Ashbourne, but there will be noble Lords in this House who would take another view. However, this is not the appropriate Bill; nor do I believe it is the time to use the Bill for changing our policy on abortion. What we are talking about here are people who undergo the most horrendous ordeal of being subjected to having to lose a baby in these awful circumstances against their will and it is claimed that that is an activity which is widespread within that country and possibly condoned by the authorities.
Lord McIntosh of Haringey: My Lords, I wonder whether the Minister would allow me to intervene? In her remarks so far she has referred only to those parts of Amendment No. 4B which refer to involuntary abortion or sterilisation. The amendment goes on to talk about,
"other resistance to a coercive population control programme".
Do her remarks equally cover that? It seems to me to be rather different from the thrust of the debate we have had so far.
Baroness Blatch: My Lords, I did in fact touch on that issue; resistance to population control can take many forms. I believe that China has huge population problems, which indeed were the subject of much debate at the world conference which was held recently and which my noble friend Lady Chalker attended. If people resist the policy simply because they argue against it, I would regard that as possibly not grounds for asylum in this country. On the other hand, if their resistance took the form of somebody who was pregnant saying, "I don't want an abortion", it is a very different matter if that abortion is then forced upon them.
It is also my understanding that there are financial incentives for a family producing only one child and of course there may be financial disincentives for having more than one child: one can object to that. However, if having become pregnant and taken the consequences of having a fiscal policy work against them in the case of a second or subsequent child, then I do not believe they should lose their human rights simply because they have suffered the consequences of whatever the fiscal policy might be.
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However, claims of this nature—and by that I mean the kinds of cases I had been talking about before the diversion—are nearly always made by men and by a number of applicants who are not married. In such cases we look at the claim in the light of the totality of evidence. We would not, of course, grant asylum if the fear of prosecution is not a credible one, and when we do decide to refuse a claim of this nature our decisions are upheld on appeal in the great majority of cases. However, claims of this nature are considered carefully on their individual merits, and where there is a real threat that the person or spouse would be at significant risk of forcible abortion, asylum or exceptional leave would be granted.
Nevertheless we must distinguish between such meritorious claims and others. Much will depend on the pressures or sanctions that might be faced in each individual circumstance. For example, we would be unlikely to accept a claim as valid merely because of the applicant's claimed wish to have another baby and the fear of facing difficulties in doing so, such as those I have mentioned already: fiscal penalties or disincentives. In the light of that account of our policy, let me explain why I oppose the amendment. It seems to me to be both unnecessary and undesirable. That was a point made by my noble friend Lady Gardner of Parkes. It is unnecessary because cases of the kind referred to in the amendment would be unlikely to be certified. The first part of the amendment refers to forcible abortion or sterilisation. As I have indicated, if that genuinely had been forcibly inflicted it could well be regarded as torture and could therefore attract the exemption from the accelerated procedure which the House has already adopted.
The second part of the amendment refers to the point raised by the noble Lord, Lord McIntosh, namely, the case of someone who has been persecuted for refusing to undergo such treatment and resisting a coercive population programme. However, in cases where it is established that persecution has taken place, as defined by the 1951 convention, asylum is unlikely to be withheld. Moreover, if asylum or exceptional leave is not granted such a case would be unlikely to be certified. The certification procedures are designed specifically for cases which are straightforward and manifestly unfounded. Moreover, I do not think it is helpful to single out the particular issue of coercive population measures and to make specific provision for it on the face of the Bill.
The noble Baroness, Lady Williams, raised the point about singling out one form of torture, or being selective about one form of torture. Those who have a well-founded fear of persecution owing to their country's population control practices should be considered in exactly the same way as those claiming fear of persecution on any other grounds. If we make specific provision for each of the circumstances which may lead to persecution, we may end up with unwieldy and, I believe, unmanageable legislation. That is why the 1993 Act is based firmly on the general principles set out in the 1951 convention. It is the convention

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which defines this country's international obligations towards refugees and which the legislation is designed to implement.
China has been mentioned, and it is important for me to refer to it. In 1995 the United Kingdom received 790 applications for asylum from Chinese nationals. In the same period 690 decisions were taken on Chinese applications. Of those, 10 were granted asylum and a further 15 were granted exceptional leave to remain. Almost all appeals by Chinese nationals were dismissed last year. The Chinese population control programme, commonly known as the "one child per couple" policy, features regularly in asylum applications from that country. It has been in force in China since 1981. The policy is based on a programme of public education, encouraging minimum marriage and child-bearing ages, together with the promotion of birth control, abortion and sterilisation. To enforce that policy there is in China, we understand, a system of penalties and bonuses to encourage people to accept the programme's guidelines. Penalties, although including the withholding of social services and demotion, typically involve fines for unauthorised births. The United States State Department report of March 1996 stated that the Chinese Government do not authorise the use of physical compulsion to submit to abortion. However, Chinese officials of course admit that instances of forcible abortion or sterilisation do occur and that is why we continue to look at each case carefully on its individual merits because, whether or not the government officially condone it, we consider it important to do so.
At present almost all such claims are made by men who have left China on their own and who wish to avoid the financial penalties imposed by the Chinese authorities for breaching the programme's guidelines. Those fines are frequently far smaller than the sums of money applicants claim to have paid to travel to the United Kingdom. Moreover, when the claims are considered against the totality of the evidence available, they are often found to lack credibility. Despite the assurances I have given to the House today about our approach to genuine claims of this type, we find that most such claims are at present refused and that our decisions are upheld at appeal in the very great majority of cases.
The purpose of our asylum procedures is to identify genuine victims of torture and other forms of persecution under the guidelines. I want to say unequivocally that certainly some of the examples we have heard about in our debate today would fall squarely in that category. I am therefore grateful to my noble friend for giving us the opportunity to set out our general approach to asylum claims of this kind. I hope that my noble friends Lord Ashbourne and Lord Braine and others who have spoken have been able to derive some reassurance from my remarks and that they will feel able to withdraw their amendment. Failing that, if the amendment is pressed, I hope that the House will
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agree with me that singling out one form of torture among all others on the face of the Bill would not be desirable.
Lord Ashbourne: My Lords, I am most grateful to everyone who has spoken on this amendment and of course to the Minister for her reassurances. I am still not completely reassured. I have some doubts about the sort of case when a woman who is having a baby is allowed to come here and have her baby in this country and then, afterwards, is returned to China and suffers the most appalling persecution after she goes back. I would have felt more comfortable if my noble friend the Minister had reassured me on that point. However, in the circumstances, I shall read carefully what has been said. I am most grateful to my noble friend for her response. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
5 p.m.
Baroness Blatch Baroness Blatch moved Amendment No. 2:
Page 1, line 14, after ("which") insert ("(a)").
The noble Baroness said: In moving the above amendment I shall speak also to Amendments Nos. 3, 5, 14, 18 and 19. During Committee the House adopted an amendment to Clause 1 which was designed to provide a safeguard for victims of torture. The provision has now been incorporated in the current print of the Bill as sub-paragraph (2). The sub-paragraph exempts asylum applicants from having their appeal accelerated if they can show a reasonable claim that they have been the victim of torture in the country in which they claim to fear persecution, or if that country has a recently documented record of torture.
During a subsequent debate, on 30th April, I made clear that, although we believe our procedures provide good protection for genuine refugees and that the Bill will preserve that position, the Government have accepted—and I was very ready to accept—the wish of the House that there should be a safeguard for victims of torture on the face of the Bill. The amendments I have tabled for today honour that undertaking.
On the same occasion, however, I indicated that we intended to seek some necessary adjustments of the provision on torture, in order to reduce the scope that we believe it would currently offer for evasion of our procedures by applicants who are not victims of torture and are not at risk of it.
Our amendments reflect the outcome of discussions which I have had with the right reverend Prelate the Bishop of Liverpool, who your Lordships will recall moved the amendment in Committee which led to the adoption of sub-paragraph (2). I am very glad that the right reverend Prelate has felt able to put his name to the amendments, as indeed have two of the other signatories of the original amendment, the noble Duke, the Duke of Norfolk, and the noble Lord, Lord Runcie. I should point out to your Lordships that both the right reverend Prelate the Bishop of Liverpool and the noble Lord, Lord Runcie, are unavoidably absent from the House this afternoon.
Our amendments have the following effects. First, as I have indicated, they retain the principle that applicants who have been tortured in the country from which they are seeking asylum should be exempt from the accelerated appeal procedure for which Clause 1 makes provision.
Secondly, the amendments clarify the test of probability to be applied in assessing whether the applicant has indeed been a victim of torture. At present, Paragraph (5A) applies to an applicant who,
"can show a reasonable claim",
that he has been tortured. The Government agree with the intention behind that phrase, but in order to bring out the meaning more clearly we propose that the exemption should apply,
"where the evidence establishes that there is a reasonable likelihood",
that the applicant has been tortured in the country concerned.
Next, our amendments provide—and this is an additional safeguard which sub-paragraph 2A does not at present provide—that in order to certify an appeal by an applicant who claims to have been tortured, the Secretary of State will have to state in terms in the certificate that he does not accept that the applicant qualifies for exemption. The Secretary of State will thus be compelled to address the issue of torture directly and say whether or not he accepts that aspect of the asylum claim.
In addition, it will be open to the applicant to challenge the certificate at appeal. If the adjudicator concludes that it is reasonably likely that torture has occurred, his ruling to that effect will result in the certificate being overturned, thereby restoring the applicant's avenue to the immigration tribunal. Moreover, where an adjudicator judges that it is necessary in the interests of justice for the appellant to have more time in which to prepare his appeal, it is already open to the adjudicator to grant an adjournment for that purpose.
Finally, the amendments remove the separate exemption for applicants whose country of origin has a recently documented record of torture. The Government consider that such an exemption is unjustified and damaging, because it would enable large numbers of asylum seekers to evade having their appeal accelerated by simply pointing to incidents of misconduct by the police or security forces in their country, no matter how isolated or irrelevant to their own circumstances. Information about conditions in the country or origin are, as a matter of course, taken into account by the Asylum Directorate in assessing asylum claims, and such issues can of course be raised by the appellant before the adjudicator during the appeal. In many cases, that information will be entirely material to the individual case, but in some cases it will not be material to the case.
In Committee I spoke of the importance that the Government attach to ensuring that those genuinely at risk of torture are identified and protected. I have placed in the Library a memorandum which sets out the
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procedures followed by the Asylum Directorate in considering such applications. The memorandum also reports on the outcome of discussions which we asked officials to conduct earlier this year with the Medical Foundation for the Care of Victims of Torture.
The Government believe that the amendments that I have tabled will enable us to ensure that the position of genuine victims of torture is indeed safeguarded, while preserving the effectiveness of the provisions in Clause I which are designed to enable unfounded claims to be dealt with quickly and effectively. I commend them to your Lordships.
There are other amendments grouped with Amendment No. 2, but I reserve my position to respond to them until they have been spoken to by the individual proposers. I beg to move.
Baroness Williams of Crosby: My Lords, it may be for the convenience of the House if, when contributing to the debate, I also refer in advance to Amendment No. 4A which is directly related to government amendments mentioned by the Minister. I should like to begin by saying that the debate just held regarding the possibility of some people involved in coercive attempts to try to abort children being brought within the category of being tortured is absolutely crucial in terms of the outcome of this debate.
If the definition of what constitutes torture and the extent and scope of it is so narrowly defined that few can get within it, the assurance received by the noble Lords, Lord Braine and Lord Ashbourne, will not be worth a great deal. On the other hand—and I put this in terms of pleading for some further illumination and elucidation from the Minister—if torture is defined in ways that really do include people who have been tortured or who are at grave risk of being tortured, then the noble Lords, Lord Braine and Lord Ashbourne, have received a valuable reassurance. In other words, it is crucial that the basic principle can sustain the cases that we are now discussing and those discussed in the previous debate.
The debate becomes very much more acute when we consider that the People's Republic of China will be taking over Hong Kong next year and will have control over many citizens who have no experience whatever of being compelled to have only one child. Indeed, many of them have been British citizens until very recently and have looked to this country for the protection of their rights. Therefore, this debate is of the greatest moment for all Members of the House.
I should like, first, to thank the Minister and the Government for going some way to meet the decision made by this Chamber in Committee with regard to the issue of torture. As the noble Baroness explained, the first part of the amendment which was carried in Committee has been met at least to some extent by the Government. However, I have one question with regard to sub-paragraph (a). It is a question that I believe a number of other noble Lords will be raising. The phraseology used in the Government's new amendment refers to the country to which a person is to be sent. It refers to someone who has been tortured, and then says

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that he would not normally be returned to that same country. However, the original terminology used referred to,
"the country in which he is claiming to fear prosecution."
I shall briefly explain to your Lordships why that matters. If someone who been tortured can no longer be returned to the country in which he was tortured but could be returned to a neighbouring country or one in close association with that country and might then be sent on, we will not have achieved a very satisfactory safeguard.
I shall give a clear example. There is some reason to believe that at least some of those who have escaped from the ruthless regime in Zaire have been returned to that country by Belgium when they have passed through that country as a third country. It has not proved to be a safe country.
As regards sub-paragraph (a) of new paragraph 5(2), will the Minister assure the House that someone would not be returned to a country in which they are likely to be tortured, as compared with the country in which they were tortured? On the face of it, the wording seems to suggest that it is possible.
I turn to sub-paragraph (b). In the original amendment, noble Lords will recall that sub-paragraph (b) referred directly to a person who claims to fear persecution in a country which has a recently documented record of torture. The House will be aware that there are, alas, real examples of that. I need only refer to Myanmar, which used to be called Burma. The name was changed. Perhaps that is as well because great damage has been done to the rich history of that country. The other example is our fellow Commonwealth country, Nigeria, which still has under house arrest its most distinguished former son and president, Dr. Obasanjo.
The Minister says that the original wording in the amendment passed by this House in sub-paragraph (b) is too loosely worded. Will she consider accepting the wording in Amendment No. 4A which deliberately attempts to tighten up the provision by referring directly to a systematic pattern of torture of the kind that has been clearly recognised and indicated by the United Nations Committee against Torture and the United Nations Special Rapporteur? The amendment refers to an extensive practice of torture, not a single instance. It refers to,
"a consistent pattern of gross, flagrant or mass violations of human rights",
not a single instance. It is not just one policeman getting out of hand, but a pattern which is adopted, sustained and consistently pressed by the Government of that country.
It is relatively easy to state which countries they are. It is relatively easy to look up the statements made by the United Nations Special Rapporteur on Torture. We plead—we press very hard because we are clear that it was the intention of noble Lords when they passed the amendment in the first place—that no one who is a victim of torture, with clear evidence of torture, should
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be returned to a country which consistently practises torture. If we do not have that safeguard, we have very little.
I wish to raise one other issue. I am concerned by the phrase that the noble Baroness used about evidence being credible or not credible. I fully accept that in some cases the evidence does not bear out the case of the person seeking asylum. But the Minister will be aware of the case of Mr. Igbinidu who has now been detained for a year at Campsfield Detention Centre in Oxford. No fewer than four of the most eminent medical experts in this entire country have signed a letter to The Times. They state:
"It was subsequently possible to secure documentary surgical and psychiatric evidence of torture and its psychological and traumatic sequelae".
I shall not detain the House for more than a moment but I read one sentence from the view of the Reader in Trauma and Orthopaedics who examined Mr. Igbinidu, who is still being detained at Campsfield. It is a test of credibility. It states:
"There are marks compatible with him having had needles stuck into his [sexual organ]. The big toe injury is compatible with his toe having been stamped on. The scars on the knees are compatible with him having to walk on his knees. The scar on his eyebrow is compatible with him having been hit with the butt of a gun. The bruise on the back of his occiput is compatible with his head having been driven against a wall…In my opinion…this man has been tortured and his story is compatible with the injuries in all verifiable areas".
That is signed by Doctor C.J.K. Bulstrode, Reader in Trauma and Orthopaedics at the University of Oxford Radcliffe Centre.
That seems to me to be a very strongly argued case for the medical evidence of torture in the case of that one person. I quote it because that case is still not found credible by the Home Office. We need assurance from Ministers at the Home Office in line with what they told the House—we fully appreciate it and are grateful for that—that such evidence would be accepted. If that kind of evidence is not accepted, I do not know what would be.
Lord McIntosh of Haringey: My Lords, I speak to Amendments Nos. 4A and 15. The Minister has been notified that we wish these to be debated together with the amendments which stand in her name and those of other noble Lords. I preface my remarks by expressing my appreciation to the Minister for the efforts she has taken to reach agreement on the definition of torture: first, for recognising that the view of the House in Committee had to be given expression in legislation; and, secondly, for the negotiations into which she entered with those who had put their names to the original amendments. I am grateful to the noble Baroness for writing to me yesterday to explain the amendments that she has put down.
It is, therefore, with some regret that, together with the noble Baroness, Lady Williams, we have had to dissent from two aspects of the amendments which the Minister so ably moved and spoke to. To that extent, although we shall not oppose them because they form an alternative to the amendments which were carried in

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Committee, nevertheless we shall seek to persuade the House that the provisions would be improved with the addition of Amendments Nos. 4A and 15.
As regards the way in which the amendments have to be formulated, this is an enormously complicated matter. One of our amendments would have been pre-empted by one of the Government amendments, and had to be drafted in a different way. It is, formally, in conflict with what will be agreed, I am sure, in the Government's amendments. The other amendment has had to be put down as an amendment to one of the Government amendments. However, let me assure the Minister and the House that we are not trying to play games with the amendments. We seek to ensure that the best possible solution to the acknowledged problem of torture is found in the legislation.
There are two problems with the Government amendments. First, the amendments leave out sub-paragraph (b) which refers to,
"a person who is claiming to fear persecution in a country which has a recently documented record of torture".
We take the point that that is too wide and too vague. A recently documented record of torture could apply to a large number of countries where there has been torture but it has not been on a systematic scale. Therefore, sub-paragraph (b) of Amendment No. 4A refers more specifically to,
"a consistent pattern of gross, flagrant or mass violations of human rights, or where the findings of the United Nations Committee Against Torture or the United Nations Special Rapporteur on Torture suggest the existence of an extensive practice of torture".
I believe that that provides the protection which the Minister seeks against claims on the basis of torture where torture is not of the essence in the claim, and where the Government might wish to apply the accelerated procedure.
The amendments will have to be voted on as we come to them in the Marshalled List. They cannot be moved now. However, Amendment No. 15 is an amendment to Amendment No. 14 to which the Minister has already spoken. Officials have assured me that it is the intention of Amendment No. 14 that torture in the country from which the claimant is seeking asylum will count in this amendment. The Minister did not make any point of that when she introduced the amendments. However, we are puzzled by the phrase in Amendment No. 14 concerning the,
"likelihood that the appellant has been tortured in the country or territory to which he is to be sent".
It seemed to us that the thrust of the amendments which were put forward and were voted on in Committee was, as the wording then was,
"claiming to fear persecution in a country".
In other words, that refers to the past and not the future.
Therefore we have proposed an amendment which, without removing any of the words of Amendment No. 14, states that the likelihood should be,
"that the appellant has been tortured in the country or territory from which he has come or to which he"
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has been sent. The noble Baroness, Lady Williams, has given an example of Zaire and Belgium, and of the possibility that someone might be sent to a country where there is no torture but might still have been a valid applicant for asylum because he had already been tortured in Zaire. Indeed, there is the further possibility as regards Zaire and Belgium; namely, it is known that Belgian authorities have simply taken someone off a plane from London and put him straight onto a plane to Kinshasa. That is the extreme case.
We want to have it recognised—as I am sure the Chamber intended at Committee stage—that the validity of the application for asylum is that someone has been tortured in the country from which they came. That is the significant issue and that is why we have proposed the additional words to Amendment No. 14 in our Amendment No. 15.
Let me recapitulate. We are grateful for what has been done. We are sure that it has been done in good faith and we well understand why the noble Duke, the Duke of Norfolk, and the right reverend Prelate the Bishop of Liverpool have put their names to the government amendments. We sympathise with that. We shall not vote against those amendments but we shall seek to have them sharpened and tightened up in the form of Amendments Nos. 4A and 15.
The Duke of Norfolk: My Lords, when the Minister replies I hope that she will cover the case to which the noble Baroness, Lady Williams, referred. The noble Baroness referred to the case of the Nigerian, Abiodun Igbinidu, who has been detained in Oxfordshire for over a year. His medical examination has been carried out by Oxford and Cambridge dons who agree that he shows terrible signs of having been tortured. Why can he not be given asylum here? Why is he still detained? I hope that the Minister will cover that case.
Lord Avebury: My Lords, I wish to raise a couple of points. Is there any reason why Amendment No. 14 is confined to cases where there is
"a reasonable likelihood that the appellant has been tortured"?
Why does the amendment not take into account the possibility that the appellant may be tortured if he is sent back? I can think of individual cases where this might well occur, for example where someone escapes from a country where he has witnessed atrocities committed by the security forces. He reaches another country and applies for asylum. If he is sent back, there is a good chance that he will be treated in the same way as those in the incident that he witnessed.
The situation in south east Turkey is an illustration of that. There are many people who have knowledge of the atrocities that have been committed in villages of Kurdistan, where 3 million people have been displaced from their homes, many tens of thousands have been killed, and thousands more have been taken into custody and tortured. There are people there who have knowledge of those incidents. Those people sometimes manage to escape to the outside world. Is it not fairly clear that if those people were sent back they would be

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detained on account of the knowledge they possess and it is likely that they would be tortured, even if they had not already suffered torture in the past?
I refer to my noble friend's Amendment No. 4A where she advocates that a person should not be fast-tracked if he claims,
"to fear persecution in a country in which there is a consistent pattern of gross, flagrant or mass violations of human rights".
That is a more restrictive criterion than that in the original amendment. Nevertheless, I fear that the noble Baroness may still reject it on the grounds that an individual claimant coming from such a country may have no grounds for thinking that he would be persecuted in that way. The fact that there is a pattern of,
"gross, flagrant or mass violations of human rights"
in Nigeria—which my noble friend mentioned—or in Burma, or in other parts of the world that one can think of, does not necessarily mean that one person arriving at Heathrow is legitimately in fear of that kind of persecution.
I have been thinking about a matter as my noble friend spoke. I hope I may suggest that we might ensure that immigration officers and other people who have to deal with these matters possess a much more thorough knowledge of the situations in the countries of origin than they have at present. I know that frequently those who come from the countries which yield refugees claim that the Home Office briefings are inadequate. Just the other day I received a letter from someone in Somalia who said that the situation in his country had been distorted. However, I must add that he did not explain his criticisms in detail. I hope that we shall have an opportunity to deal with this issue at a later stage when those matters have been properly explained.
The other day I asked the Foreign Office for a copy of the latest report of the UN rapporteur on torture, and to my great surprise—I already had a copy but I wanted an additional copy to lay on the table at a reception that the Parliamentary Human Rights Group was giving for the UN rapporteur—after some weeks' delay I was sent a copy of the 1995 report which he issued in January of that year. Every single year when we ask for the reports of the UN rapporteur we have great difficulty in getting them from Geneva. There seems to be some hang-up in the transmission of those documents from the UN human rights centre in Geneva to the Foreign Office and then to the Home Office in London. If we have great difficulty in obtaining the documents, those who have to use them must experience an even greater problem. I suggest that copies of the annual report of the UN rapporteur on torture be made available to those who have to consider those applicants who claim to suffer from torture to enable them to refer to what the rapporteur has said about a particular country, whether it be Turkey, Burma or Nigeria. I am afraid that most of them are extremely ignorant of the circumstances in the country of origin, and that might be a step towards what my noble friend is trying to achieve.
5.30 p.m.
Viscount Bledisloe: My Lords, I, too, am puzzled by the fact that Amendment No. 14 appears to refer only
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to past torture. If a person was tortured in the past, but has no lively fear of torture in the present, the provision would apply. It would not, however, apply if by the skin of one's teeth one managed to get on an aeroplane and leave the country without being tortured while one's colleagues were less lucky and were presently rotting in some cell and being tortured. That seems very curious.
It seems particularly curious in the light of the debate on the previous amendment. If—as they obviously are—the appalling abortions that have been mentioned are torture, the lady who has been aborted or sterilised in the past comes within the terms of the provision, even though she now has no baby to be aborted and cannot be sterilised if she returns. The lady who is currently pregnant but never had an abortion forced upon her in the past is not someone who was tortured in the past and therefore has to be returned to have the new abortion. It is very curious that we are concerned only with past torture, not with the present, certain, lively risk of torture if a person is returned.
Lord Carr of Hadley: My Lords, for the past 10 years I have had some connections with the Medical Foundation for the Care of Victims of Torture. Those connections led me, first, to be moved with great admiration for the amazing work done by members of the profession in seeking to heal the bodies and minds of victims of torture. But, more relevant to our discussions today, it made me realise as I never had before the full dimensions of what it means to have suffered torture and the effects on both the mind and the body. I suspect that people who have not been near to torture do not appreciate, as I previously did not, that one of the effects is an inability on the part of the person to talk about the experience or to act quickly in relation to it. If there is one class of people who should never be subjected to any sort of fast-track procedure, it is the victims of torture.
Therefore I most warmly welcome these amendments, and I praise my noble friend Lady Blatch for bringing them forward. It is absolutely right that torture should be on the face of the Bill in the way it now is, although it was not included in the Bill as first drafted. I am deeply grateful, as I am sure is the whole House.
I want to say to my noble friend that I believe there are matters of substance in the amendments raised by the noble Lord on the Front Bench opposite and by the noble Baroness, Lady Williams. It is not clear whether the exact form of the amendments is appropriate. I find it very difficult to see how they all fit together.
One aspect of my noble friend's Amendment No. 14 worried me the moment I saw it; namely, the reference is to torture in the past. The words used are: "has been tortured". It means that the person concerned could not be returned to any territory in which he or she had been tortured in the past, but on the face of it gives no safeguard that someone will not be sent back to a territory where there would be a real danger of their being tortured even though they had not previously been tortured in that territory. That point needs to be dealt with, either in the terms proposed or in other terms that my noble friend may consider more effective.

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My concern was increased on reading the letter in The Times from Sir Richard Doll and others, to which reference has been made. It underlines that, whatever may be the intentions of officials in this area, the pressures upon them are very great. It is over 20 years since I was Home Secretary. I remember then being extremely worried at the sheer pressure of the huge number of cases that we struggled to deal with. It still happens in the office in Croydon. It seemed to me that, even given the conscientious attempts of the most dedicated officials in the world, under such an enormous volume of work mistakes could easily occur. Therefore we have to examine the issue very carefully and provide what safeguards we can.
While I most warmly welcome the amendments in the Minister's name, I hope that she will give serious attention to the further doubts that have been raised. I suspect that her intention is to cover the worries that we have; however, I am not altogether satisfied that they are fully covered in her amendments as they stand at the moment.
The Lord Bishop of Southwell: My Lords, I agree with the remarks of the noble Lord, Lord Carr. It seemed from my reading of the debate in Committee that the right reverend Prelate the Bishop of Liverpool spoke very strongly on the question of a person being returned to a country where he fears persecution. That was the very nub of his remarks. That reference does not occur in Amendment No. 14.
Many of us greatly appreciate the intervention of the noble Baroness, Lady Blatch, in bringing this amendment before the House. However, there is concern that it should be interpreted along the lines of the earlier debate. I hope that the Minister will be able to give the House that assurance so that we are able to support the amendment that stands in her name, alongside that of the right reverend Prelate the Bishop of Liverpool.
It is also important to bear in mind all that has been said about the tragic case of Mr. Igbinidu, who has now been in detention for over a year. Most of us are concerned about a person who is proven to have been tortured. That is now without doubt. In spite of overwhelming and expert evidence as to the truth of his story, the long-standing and accepted practice in our nation of receiving and supporting those who legitimately seek asylum on account of torture and repression may well be in jeopardy. In the light of that concern it is appropriate that an objective test of a record of torture, independently authenticated by the United Nations, as is included in Amendment No. 4A, is very much to be welcomed. I hope the Minister will be able to give us an assurance that all that was discussed and agreed at Committee stage in this House will be covered by Amendment No. 14.
Lord Boyd-Carpenter: My Lords, as one who has not taken part in the debate, I intervene for only a moment to express my admiration and gratitude to my noble friend Lady Blatch for the way in which she has handled what was clearly a very sensitive, delicate and important matter. There was strong feeling in the House.
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That was understandable in view of the appalling aspects of certain issues that arise. The way in which my noble friend appears to understand that, and yet at the same time to understand the necessity of keeping the provisions in proper legislative form was very remarkable. I express my gratitude to her and my admiration for her over that.
Baroness Blatch: My Lords, I thank my noble friend for his comments. Thanks also need to be shared by those who have engaged in this process of iteration and I am grateful in particular to the right reverend Prelate the Bishop of Liverpool.
Amendment No. 4A seeks to retain an exemption based on human rights violations in the country of origin. That is both unjustified and potentially very damaging to the Bill. The noble Baroness, Lady Williams, has proposed that, in addition to an exemption for victims of torture, asylum applicants should be excluded from the accelerated appeal procedure if their country of origin has a consistent pattern of human rights abuses or an extensive record of torture. I note that she states that her proposal would tighten up the wording of subparagraph (2)(b) so as to meet the concern that it would enable a very high proportion of applicants to avoid the accelerated appeal procedure. But it is clear that Amendment No. 4A would severely undermine the impact of the proposals in Clause 1.
First, the conditions in the country of origin will of course have to be taken into account in any case in assessing an asylum claim based on torture. We have only recently discussed China where we all know and have an understanding that terrible acts of torture take place. I made it absolutely clear that if asylum applicants meeting those conditions applied, they would be seriously considered for asylum purposes. But at the same time, people are returned to China who are not in danger and whose cases were not credible on application.
If, despite our having taken them into account, the applicant is unable to establish a reasonable likelihood that he has been tortured, I see absolutely no logic or justification in nevertheless providing him with an exemption from the accelerated appeal procedure. In other words, the proposal would provide an additional exemption for applicants who, by definition, were unable to establish a claim of torture, notwithstanding their country's poor record. I cannot discern a convincing argument for the proposition that an asylum seeker who has not himself been tortured, and whose claim on individual consideration is found to be manifestly unfounded or to qualify for certification under one of the other headings in Clause 1, should be exempted from having his appeal accelerated.
Secondly, the argument that asylum seekers who have experienced torture in the past may be especially vulnerable, and in particular may be suffering from traumatic effects which make it desirable to allow more time for them to prepare their appeal, cannot be advanced in support of the proposal that the Bill should exempt asylum seekers from having their appeal accelerated if they have not been tortured.

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We already take full account of our extensive information about conditions in countries. The fact that we are granting asylum or exceptional leave to remain at a much higher rate than average to nationals of countries such as Afghanistan, Iran, Iraq, Somalia and former Yugoslavia shows that that is so. Last year the refusal rate for those countries ranged from 50 per cent. down to as low as 5 per cent. compared with a refusal rate for all nationalities of nearly 80 per cent.
But the evidence shows that some countries with very poor human rights records nevertheless generate large numbers of unfounded asylum claims. Many of those countries are also subject to powerful economic migratory pressures. It simply does not follow from the existence of abuses in a country that the individuals who seek asylum here are always or often genuine refugees or would genuinely be at individual risk if returned. Last year, for example, between 92 per cent. and 99 per cent. of claims from Algeria, Nigeria, Turkey and Zaire were refused.
The high refusal rates for those countries cannot be attributed to a climate of disbelief in the Home Office, as some of the Bill's opponents would have us believe. If the Home Office were refusing large numbers of genuine refugees,
it would be losing large numbers of cases at appeal. But the fact is that last year only 1 per cent. of appeals by Algerian nationals against refusal of asylum were allowed. For Nigeria the figure was 2 per cent., for Turkey 8 per cent. and for Zaire 8 per cent.
5.45 p.m.
Earl Russell: My Lords, the noble Baroness invoked the refusal rate for Zaire. Is she aware that many people believe that that refusal rate is the result of a mistaken country assessment?
Baroness Blatch: My Lords, if I had the brief before me that I had for my Question this afternoon, I would be able to give the noble Earl a quote from a reputable organisation based in Zaire which follows up returns from this country whose asylum appeals have failed. It has not found those cases wanting. If it had, it would not be reticent in letting us know about them. However, I owe the noble Earl a reply to his specific point and I shall certainly give him that.
The noble Baroness's amendment would mean that, for certain nationalities, asylum appeals could not be accelerated even if it were apparent after proper individual consideration that they were manifestly unfounded. The amendment would significantly and unjustifiably restrict the availability of the accelerated appeal procedure. It would greatly reduce the impact of Clause 1, both as a deterrent against abusive appeals and as a means of enabling such appeals to be processed more quickly. I do not believe that that would be in the wider interests of those genuine refugees who seek asylum in this country.
Amendment No. 4A has a further important drawback. It introduces enormous scope for uncertainty. Who is to decide whether a country fits the proposed criteria of a consistent practice of human rights abuse or an extensive practice of torture? There are, as I have already said, many countries with poor human rights.
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Every asylum appellant would claim that his country failed the test. There would be a continuing state of uncertainty about which nationalities were exempt from certification and which not. That would severely damage the purpose of Clause 1.
I remind the House that it would be quite mistaken to think of the accelerated appeal procedure as removing the applicant's right to a fair hearing of his case. Nothing could be further from the truth.
Earl Russell: My Lords, I apologise to the noble Baroness for intervening again. I should like to know why certification under this clause would be more difficult than the certification the noble Baroness's department already proposes under Clause 1.
Baroness Blatch: My Lords, I am talking about certification under Clause 1. That is the whole purpose of the amendment. We are talking about Clause 1. We are extending the categories to whom it applies, hut the certification procedure in Clause 1 is exactly the same.
In practice, even if one assumes minimum administrative delay, certification will mean that the appeal should be disposed of in around four weeks from the initial decision. That is a more than adequate period in which to expect an asylum applicant to exercise his appeal. In all cases, of course, the initial consideration by the Home Office will already have involved the applicant having an opportunity to explain his fear of persecution at an interview and to make additional representations afterwards. Certified claims will still attract a right of appeal to an independent adjudicator before the applicant can be returned to his country of origin.
The Government accept that we should provide a statutory safeguard where there is a reasonable likelihood that an asylum applicant has been a victim of torture. We believe it is possible to combine that with maintaining the effectiveness of our proposals in Clause 1 for dealing more quickly and effectively with unfounded asylum claims. But the amendment proposed by the noble Baroness, Lady Williams, would provide an exemption for asylum applicants regardless of whether they are or even claim to be victims of torture. Notwithstanding the assurances about the scope of this proposal, it would significantly and unjustifiably restrict the availability of the accelerated appeal procedure in a way which would reduce its impact both as a deterrent against abusive appeals and as a means of enabling such appeals to be processed more quickly. Amendment No. 4A would damage the Bill and invalidate the purpose of Clause 1.
Torture, whether physical or psychological, is by its nature likely to be sufficiently serious to constitute persecution. Our aim is to ensure that genuine victims of torture are identified and protected. Information about country of origin, including consistent patterns of serious violations of human rights, is always taken into account.
Lord Avebury: My Lords, does the noble Baroness accept my suggestion that the text of the report on torture of the UN rapporteur on a particular country

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should always be available to an immigration officer who is considering an application for asylum on the grounds of torture from that country?
Baroness Blatch: My Lords, again, let me repeat myself from the question I had earlier. All those sources of information are available to those who are charged with having to make judgments about individual applications.
Medical evidence supporting a claim of torture is always given very careful consideration. I shall return in due course to the specific case referred to a moment ago. Staff receive detailed and comprehensive training in how to interview asylum seekers and on how to assess claims. The training raises awareness of the barriers that genuine refugees may face in describing their experiences to officials. We all know that this is a particularly sensitive area. The United Nations High Commissioner for Refugees and other independent bodies contribute to the Asylum Directorate's training. Caseworkers work closely to the United Nations High Commission for Refugees' handbook.
We are anxious that our procedure should attract confidence. That is why we asked officials earlier this year to hold discussions with the Medical Foundation for the Care of Victims of Torture, which was prayed in aid by my noble friend Lord Carr. As a result of that, if the medical foundation asks for an extension of time to enable a medical report to be prepared, we have undertaken to consider that carefully. Such a request will not be refused except at senior executive level and for very good reason.
If the Home Office has concerns about any aspect of a medical foundation report on a case, we will normally discuss the concerns with the foundation before reaching a final decision. The foundation has also been supplied with a contact number in the Immigration Service for detained cases. Caseworkers already have access to the foundation's guidelines for examining victims of torture.
Amendment No. 15 proposes a drafting change to subsection (5)(a) which the government amendment would insert into Clause 1. We have proposed that the exemption should apply if the applicant has been tortured in the country or territory to which he is to be sent. The noble Baroness proposes that we should also include applicants who have been tortured in the country from which they have come. Indeed, I believe it is not an addition but a substitution for those words.
Lord McIntosh of Haringey: My Lords, Amendment No. 15 is an addition to Amendment No. 14. There is no substitution.
Baroness Blatch: I hope I will be able to explain to the noble Baroness why we have difficulties with the amendment. First, the proposed additional words are not very precise. Do they mean the country from which the applicant travelled immediately prior to arriving in the United Kingdom, or are they intended to refer to the applicant's country of origin? If we accepted the proposal in principle, we would want a more precise form of words. Perhaps I may again use Zaire as an
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example. Almost all Zairian applicants come to us through a third safe country. They come to us from Belgium because there is no direct route into the United Kingdom. That is an important point and would need to be clarified.
Secondly, I do not see the logic of exempting a victim of torture if the country where he was tortured is different from the country to which he is to be sent. Let us take, for example, an Indian national who has been working in Iraq and who seeks asylum here on the grounds that he was tortured in that country. He would have a very weak case. We would be likely to refuse his claim on the grounds that we intended to remove him to India where he did not claim to fear persecution. We would wish to certify his claim on the grounds that he was a national of a designated country and that would be a clear case of a manifestly unfounded asylum claim. Again, I can see no reason why we should be prevented from certification because of what happened to that applicant in Iraq.
Perhaps I may respond to one or two of the points that were raised. All noble Lords would agree that the Asylum Directorate has a difficult and painstaking job to do. I believe that the directorate and the adjudicators who hear appeals do it very well. However, the noble Baroness, Lady Williams, suggested that the benefit of the doubt should be given even if the evidence does not bear out the claim. If we are to experience proper control, firm and fair, of the system, a policy of not securing evidence to support a claim would prove very difficult indeed.
I was asked specifically about Mr. Igbinidu. The gentleman has failed so far to satisfy the Secretary of State and the special adjudicator that he had a well-founded fear of persecution in Nigeria. He also failed to obtain leave to appeal to the Immigration Appeals Tribunal. Further evidence, including medical reports—I hope that noble Lords and indeed the right reverend Prelate will accept this point—was only received on 12th June. This is new evidence and it has only come to light since 12th June. It has been submitted to my right honourable friend the Secretary of State. He is examining the totality of the evidence in Mr. Igbinidu's case and a decision will be made, we hope as soon as possible.
It is true to say that there has been a great deal of conflicting evidence and I have read most of the literature on the case. It would not be proper for me to discuss the detail of the further evidence today but I can assure the House that if Mr. Igbinidu does not meet the test of qualification under the 1951 convention we will of course, given the weight of the evidence that is now before us, also consider whether there are grounds for exercising discretion to allow him to remain exceptionally. I shall keep the House informed on that point.
I was asked by the noble Baroness, Lady Williams, and others to clarify the scope of torture. I have made clear that the term "torture" can indeed apply to any severe form of physical and indeed psychological abuse deliberately inflicted to cause suffering. I have also made clear that forcible abortion or sterilisation could

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indeed constitute torture and therefore fall within the scope of the exemption proposed in the amendments I have tabled.
The noble Lord, Lord Avebury, and the noble Viscount, Lord Bledisloe, said that the government amendment did not protect people who had not yet been tortured but would be tortured if they returned to their country of origin or the country where they believed they had been persecuted. If we were satisfied that a person would be tortured if returned to the country of origin and that the torture would constitute persecution for a convention reason, we would grant asylum. If an applicant faced torture but not for a convention reason he would of course be granted exceptional leave to remain.
I hope that the amendments standing in my name will be accepted by the House and that the other amendments will be resisted.
On Question, amendment agreed to.
Baroness Blatch Baroness Blatch moved Amendment No. 3:
Page 1, line 15, at end insert ("; and
(b) sub-paragraph (5A) below does not apply").
On Question, amendment agreed to.
[Amendment No. 4 had been withdrawn from the Marshalled List.]
Baroness Williams of Crosby Baroness Williams of Crosby moved Amendment No. 4A:
Page 1, line 15, at end insert—
("( ) Nothing in this paragraph shall be construed as applying to—

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

(b) a person who is claiming to fear persecution in a country in which there is a consistent pattern of gross, flagrant or mass violations of human rights, or where the findings of the United Nations Committee against Torture or the United Nations Special Rapporteur on torture suggest the existence of an extensive practice of torture.").

The noble Baroness said: My Lords, I shall not detain the House for more than a moment or two. I wish to make a couple of comments which may explain why I feel obliged to take the opinion of the House on this amendment.
I wish to make it plain first of all that the amendment does not give anyone the right to stay in this country. It merely lets them take the longer track which enables them to have time to adduce evidence. Nothing in my amendment—an amendment supported also by others—would give the right to anyone to stay in Britain unless they were able to show the immigration authorities, and if necessary the adjudicator, that they had made out their case.
The point made by the noble Lord, Lord Carr, and the noble Duke, the Duke of Norfolk, that victims of torture are rarely able to get their case together in a matter of days is at the very heart of this amendment. To mention an additional, very moving case, the author of Some Other Rainbow, our own John McCarthy, was detained for many months in Iraq, as noble Lords will recall. He specifically said to Members of this House only
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yesterday that he, as a victim of detention, fear and torture, would have been unable to put his case together in a matter of days. Therefore, the first point I wish to make as strongly as I can is that nothing in Amendment No. 4A would force or oblige the authorities to accept someone who could not make out his case. It merely gives him the right to make that case, and a victim of torture cannot make a case in a matter of days.
The second point I wish to make is that the case of Mr. Igbinidu bears that out precisely. There was earlier evidence about his torture and that was waved aside by Home Office officials, no doubt because they thought it did not carry sufficient credibility. It was only when Mr. Igbinidu's lawyers went to the highest levels of medical practice in this country that evidence was adduced that the Minister has now said she will consider again. It would have taken Mr. Igbinidu weeks to get that additional evidence, which he now has. Under the fast-track procedure there is not the remotest chance that he could have made out a case that he had been tortured, as medical experts of the level of Professor Doll and others now strongly believe to be the case.
The third point I wish to make is that I am sure, in the light of the very helpful response of the Minister to the earlier amendment that was passed by the House, that we are entitled to ask for a similar response to this amendment, for it reflects the will of the House. Therefore, it is not unreasonable for me to press the matter in the hope that the noble Baroness will decide at Third Reading to respond to this amendment, which is concerned with the possibility of future torture, in the same very helpful way as she responded to the amendment addressing the past history of torture. I see no incompatibility between the two. I beg to move.
6.2 p.m.
On Question, Whether the said amendment (No. 4A) shall be agreed to?
Their Lordships divided: Contents, 93; Not-Contents, 117.

Division No. 2

CONTENTS

Addington, L.

Donoughue, L.

Archer of Sandwell, L.

Dormand of Easington, L.

Ashley of Stoke, L.

Dubs, L.

Avebury, L.

Falkender, B.

Bath, M.

Falkland, V.

Beaumont of Whitley, L.

Gainsborough, E.

Berkeley, L.

Gallacher, L.

Birk, B.

Gladwin of Clee, L.

Blackstone, B.

Graham of Edmonton, L.

Broadbridge, L.

Greene of Harrow Weald, L

Carr of Hadley, L.

Gregson, L.

Carter, L.

Hamwee, B.

Clancarty, E.

Harris of Greenwich, L.

Cledwyn of Penrhos, L.

Haskel, L.

Clinton-Davis, L.

Hayman, B.

Cocks of Hartcliffe, L.

Hilton of Eggardon, B.

Dahrendorf, L.

Hollis of Heigham, B.

David, B.

Hooson, L.

Dean of Thornton-le-Fylde, B.

Howie of Troon, L.

Desai, L.

Hylton, L.

Diamond, L.

Hylton-Foster, B.

Donaldson of Kingsbridge, L.

Inchyra, L.

497

Irvine of Lairg, L.

Norfolk, D. [Teller.]

Jay of Paddington, B.

Ogmore, L.

Jeger, B.

Peston, L.

Jenkins of Hillhead, L.

Prys-Davies, L.

Jenkins of Putney, L.

Rea, L.

Judd, L.

Redesdale, L.

Kilbracken, L.

Richard, L.

Lincoln, Bp.

Rochester, L.

Lockwood, B.

Rodgers of Quarry Bank, L.

Lovell-Davis, L.

Russell, E.

McGregor of Durris, L.

Sandwich, E.

McIntosh of Haringey, L.

Seear, B.

Serota, B.

McNair, L.

Sewel, L.

McNally, L.

Southwell, Bp.

Mallalieu, B.

Stoddart of Swindon, L.

Mar and Kellie, E.

Strabolgi, L.

Mayhew, L.

Stafford, E.

Merlyn-Rees, L.

Thomas of Swynnerton, L.

Meston, L.

Thomas of Walliswood, B.

Methuen, L.

Turner of Camden, B.

Milner of Leeds, L.

White, B.

Mishcon, L.

Williams of Crosby, B. [Teller.]

Monkswell, L.

Williams of Elvel, L.

Nicol, B.

Winston, L.

NOT-CONTENTS

Aberdare, L.

Hayhoe, L.

Abinger, L.

Henley, L.

Alexander of Tunis, E.

Holderness, L.

Archer of Weston-Super-Mare, L.

HolmPatrick, L.

Astor of Hever, L.

Howe, E.

Balfour, E.

Inglewood, L.

Belhaven and Stenton, L.

Jeffreys, L.

Birdwood, L.

Kenilworth, L.

Blatch, B.

Kenyon, L.

Bowness, L.

Keyes, L.

Boyd-Carpenter, L.

Kingsland, L.

Brougham and Vaux, L.

Kinnoull, E.

Butterworth, L.

Laing of Dunphail, L.

Cadman, L.

Lane of Horsell, L.

Campbell of Croy, L.

Lauderdale, E.

Carnock, L.

Leigh, L.

Chalker of Wallasey, B.

Lindsey and Abingdon, E.

Chelmsford, V.

Liverpool, E.

Chesham, L. [Teller.]

Long, V.

Clanwilliam, E.

Lucas, L.

Clark of Kempston, L.

Lucas of Chilworth, L.

Coleraine, L.

Lyell, L.

Colwyn, L.

McColl of Dulwich, L.

Courtown, E.

Mackay of Clashfern, L.

Craigavon, V.

[Lord Chancellor.]

Cranborne, V. [Lord Privy Seal.]

Macleod of Borve, B.

Crathorne, L.

Marlesford, L.

Crickhowell, L.

Merrivale, L.

Cumberlege, B.

Mersey, V.

Dacre of Glanton, L.

Miller of Hendon, B.

Denham, L.

Milverton, L.

Denton of Wakefield, B.

Montgomery of Alamein, V.

Dilhorne, V.

Mottistone, L.

Dixon-Smith, L.

Mountevans, L.

Downshire, M.

Mowbray and Stourton, L.

Dudley, E.

Munster, E.

Eden of Winton, L.

Murton of Lindisfarne, L.

Elliott of Morpeth, L.

Nelson, E.

Elton, L.

Newall, L.

Finsberg, L.

Northesk, E.

Flather, B.

O'Cathain, B.

Fraser of Carmyllie, L.

Onslow, E.

Gisborough, L.

Oppenheim-Barnes, B.

Glenarthur, L.

Oxfuird, V.

Goschen, V.

Park of Monmouth, B.

Hanson, L.

Peel, E.

Harris of Peckham, L.

Rankeillour, L.

Harrowby, E.

Rawlings, B.

498

Rennell, L.

Strathmore and Kinghorne, E.

Renton, L.

Sudeley, L.

Saint Albans, D.

Teviot, L.

St Davids, V.

Thomas of Gwydir, L.

Seccombe, B.

Trumpington, B.

Shaw of Northstead, L.

Tugendhat, L.

Stewartby, L.

Vinson, L.

Strange, B.

Wedgwood, L.

Strathcarron, L.

Wilcox, B.

Strathclyde, L. [Teller.]

Wynford, L.

Strathcona and Mount Royal, L.

Young, B.

Resolved in the negative, and amendment disagreed to accordingly.
6.10 p.m.
[Amendment No. 4B not moved.]
Baroness Blatch Baroness Blatch moved Amendment No. 5:
Page 1, line 16, leave out sub-paragraph (2).
On Question, amendment agreed to.
[Amendments Nos. 6 and 7 had been withdrawn from the Marshalled List.]
Earl Russell Earl Russell moved Amendment No. 7A:
Page 1, line 21, at end insert—
("( ) Nothing in this paragraph shall apply to a person who has a claim in support of which the evidence adduced establishes that there is a reasonable likelihood that the appellant has been raped or seriously sexually assaulted, or there is evidence of the systematic use of rape as a means of waging war or exercising control in the country or territory to which she or he is to be sent.").
The noble Earl said: My Lords, this amendment, like that on which the House has just voted, is not designed to give anyone a right to stay here permanently. It is designed simply to provide an exemption from the procedure of fast-tracking. It is designed to give time for evidence to come forward, to give time to allow people to tell their stories, and to give time to assess rather more fully than might otherwise be the case the credibility of stories which have been told.
Before I go any further, I should like to thank the noble Lord, Lord Mishcon, for drawing my attention to a defect in the wording. In the event of the Minister wishing to accept the amendment, I hope that we shall be able to agree to tidy it up. The word "or" in the fourth line of the amendment should read "and". That conjunction is crucial to the amendment because it establishes the link between its two halves.
The first part of the amendment is plain enough. The use of rape as a weapon of war and of ethnic cleansing and persecution has been amply documented in the press in recent times. It is an atrocity. I use that word advisedly and technically and I do not think that any noble Lord will disagree with it. It is also something about which, notoriously, the victims find it extremely difficult to tell their stories. I have known cases in which that has been so and the difficulty was patent, serious and acute. If overcome, it was overcome only very slowly and with great effort. That may be inconvenient, but it is a fact—and because it is a fact we must live with it.
The link between the two sections of the amendment and the reason why it is crucial that it should read "and" not "or" is the issue of credibility. As the noble Baroness has been saying all afternoon, it is crucial to assess the credibility of an individual's story and, as I have been replying all afternoon, in assessing the credibility of an individual's story, we need to have an accurate picture of the country and the context from which that story comes. Stories are much more easily credible coming from some contexts than from others. That is why it is important to the credibility of one alleging that rape has been used against her—I suppose that I should add "against him" because that happens also—that in that country,
"there is evidence of the systematic use of rape as a means of waging war or exercising control in the country or territory to which she or he is to be sent".
The Minister may reply, as she did on the previous amendment, that there is some ambiguity about which country is being referred to. If I go too deeply into that, I shall anticipate a great deal of the argument that we shall need to have on the Question of Clause 2 stand part, but since some of it was raised in Committee, I shall touch on it briefly now. The Minister said just now that most of the asylum seekers coming from Zaire have come through Belgium. The noble Baroness will be familiar with the case of ex parte Bostam (which was discussed in Committee) from which it emerged that many of the people returned to Belgium under the safe third country procedure were in fact sent straight back to Zaire. Unless the noble Baroness can establish that the third country to which the person is returned is one wherein they shall be able to remain, that will be a purely technical distinction and probably of no effect. When we send people back, the likelihood is that it will end up as a matter of refoulment, going right back to the original country of origin. Therefore, I do not think that there is any mileage to be made out of trying to argue that distinction.
This is a serious amendment. It deals with an abuse which is serious and which is, across the world as a whole, probably more widespread than the abuse dealt with in the amendment in the name of the noble Lord, Lord Ashbourne—that is, forced abortion, sterilisation and population control.
I agree with what the Minister said about not making too many categories of legislative drafting. As one of my academic colleagues said about criminal statutes in the 18th century, "People who had their turnips stolen demanded the death penalty for stealing turnips, not remembering that the catastrophe which happened this year to their turnips might happen next year to their potatoes". If we are to adopt the approach which the noble Baroness suggests, we would have needed Amendment No. 4A which the House has just decided not to adopt. Since the House has decided not to adopt that amendment, that route of dealing with the problem is blocked off. Therefore, I think that we need this amendment as a second best. I beg to move.
6.15 p.m.
Lord Renton: My Lords, the noble Earl has put forward his case with great clarity. I am not surprised
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that he had to mention the deletion of the word "or" and its substitution by the word "and". There is, alas, rape and sexual assault in every country in the world—including, I am sorry to say, our own—and without that substitution a woman would only have to come here and show that she had lost her virginity, and because the amendment specifies only that there must be "a reasonable likelihood" that she had been raped or sexually assaulted, that would not be difficult for her to prove.
However, in addition to proving that, the woman would now have to show that in the country to which she is to be sent,
"there is evidence of the systematic use of rape as a means of waging war or exercising control".
I am surprised by the inclusion of the word "he" in the amendment because, as I understand it, men are not raped.
I have travelled in every continent except the Arctic and the Antarctic and have visited over 40 countries, but until this evening, when I read this amendment and heard the speech of the noble Earl I had never heard of,
"the systematic use of rape as a means of waging war or exercising control in the country or territory".
That may be my ignorance, but I had never heard of it. I do not know whether other noble Lords have heard of that, but it would be interesting to be told in which countries it is known and established that that occurs. Quite frankly, I have serious doubts about it.
Lord Avebury: My Lords, has the noble Lord not heard of the systematic mass rapes perpetrated by the Serbs in Bosnia?
Lord Renton: My Lords, I did not regard that as part of waging war but as an abuse of the circumstances which the war had created. It was not a method of waging war; indeed, it was counterproductive. The energies of those who waged war would have been much better spent in fighting the war in the ordinary way.
There are serious doubts about the amendment. Rape and sexual assault take place frequently in the world. Assume that the systematic use of rape as a means of waging war or exercising control applies to a large part of the world. Theoretically, enormous numbers of women can come here and remain for those reasons. I find that totally unrealistic. I very much hope that the Government will resist the amendment.
Lord Dubs: My Lords, I make two brief comments. I support the point made by the noble Lord, Lord Avebury. The evidence which emerged from the tragic war in the former Yugoslavia is that many Bosnian Moslem women were raped by Serb soldiers or Serb military personnel as a way of terrifying the Moslem population so that it would leave the area and ethnic cleansing could be achieved. When I worked at the Refugee Council that body helped to provide accommodation under a Home Office scheme for Bosnians who had fled from that territory and had been accepted by this country. I had the opportunity to speak to a number of Bosnian women who in a dramatic,

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tragic and painful way described how they had been brutalised. I fear that rape is used as an instrument of war to achieve military ends, in that case the removal of the civilian population from those parts of Bosnia that the Serbs wanted to occupy.
There is evidence that rape can be committed against men as well as women. Indeed, the concluding words of the amendment are
"to which she or he is to be sent",
thereby acknowledging that rape can be perpetrated against men as well as women, although it happens more frequently to the latter. I believe that this amendment is worthy of support, particularly if "or" is replaced by "and".
Lord Hylton: My Lords, Bosnia has been mentioned in this context. I believe I am right in saying that there were some cases from adjoining areas of Croatia as well. Much of the documentation of the facts was carried out by a distinguished Englishwoman, whose name I do not have with me and who was, I believe, the head of an Oxford college. Much of the rehabilitation of such victims has been carried out in this country. Training has been provided to citizens of the former Yugoslavia so that they may carry out rehabilitation on the spot in that country. I welcome the amendment and support it.
Baroness Blatch: My Lords, Amendment No. 7A would insert an exemption for victims of rape and serious sexual assault, or where there is evidence of systematic use of rape in the country of origin.
It may be helpful if I begin by setting out the Government's general approach to claims based on rape. There is no doubt that assaults of this kind are by their nature so serious that, like torture, they are likely to amount to persecution if inflicted for a convention reason. As with torture, whether the applicant meets the criteria of the 1951 Convention in order to qualify for asylum, will depend on the circumstances. Rape or serious sexual assault imposed by agents of the state, or in circumstances where the state is unwilling or unable to afford protection, is likely to constitute grounds for asylum provided it has been inflicted because of the applicant's race, religion, nationality, political opinion or membership of a social group.
In other cases rape may be inflicted as a random act of violence in a country undergoing civil war. In cases of this kind, which are not systematic, the applicant may not qualify for asylum. But it is our policy to grant exceptional leave to applicants where there are strong compassionate circumstances, and these typically include cases where the state of conflict in a country is such that it would not be safe or humane to return people to it for the time being. For example, there is strong evidence that rape has been inflicted systematically during the war in Bosnia as a means of suppressing and driving out opposing ethnic communities. It has been the case for some time now that we invariably grant asylum or exceptional leave to applicants from Bosnia.
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The first part would provide an exemption for victims of rape and serious sexual assault, similar to the exemption which the Bill will provide for victims of torture. I do not favour this proposal. In some cases, torture may indeed take the form of rape or sexual assault. To that extent, rape victims will qualify for the exemption we are already providing. But I do not believe that it is sensible to attempt to itemise in primary legislation all the many different forms of man's inhumanity to man. What about people who have had their families shot in front of them? What about asylum applicants who arrive here after incarceration for years on end in horrendous conditions? I regret that many other examples of torture and persecution can be cited. To single out any one on the face of the Bill would, I believe, be undesirable.
We are all concerned to ensure that our procedures safeguard genuine refugees and victims of inhumanity. The way to achieve that is through ensuring the quality and fairness of our procedures and our staff. To itemise special cases in primary legislation is not the answer. The second part of the amendment would provide an exemption based on conditions in the country of origin. We have already discussed this concept fully in the context of the provision on torture. The arguments against this approach which I have set out in that context apply in the same way to Amendment No. 7A. I assume that the noble Earl is not linking this amendment to Amendment No. 20, as I was originally informed might be the case. I hope that for the reasons I have given this amendment will not be accepted.
Finally, the noble Earl referred to the position of Zairians in Belgium. We do not consider that the judgment of the High Court in the case of Bostam and others establishes that Belgium is unsafe as a third country. In that case the judge was concerned with the way that the adjudicators in those cases had considered evidence of the Belgian eight-day rule. The Belgian interior ministry has explained to us how the eight-day rule operates in practice, and I do not believe that it poses a barrier to asylum seekers who wish to claim asylum when they return to Belgium. I emphasise that the eight-day rule will no longer be an issue for most Belgian cases once appeals in third country cases cease to have a suspensive effect. The majority of applicants who transit Belgium do so in less than three days. We anticipate that most applicants will be returned within eight days of originally entering Belgium.
With regard to the allegations of malpractice in respect of Belgium's removals to Zaire, we are not aware of any substantial evidence to the effect that Belgium is failing to comply with its obligations under the convention in respect of asylum seekers from Zaire, or indeed of any other nationality. I hope that the amendment will not be pressed.
Earl Russell: My Lords, before I say anything else, I reassure the noble Baroness that I do not intend to press this amendment, if for no other reason because of the defect in the wording to which I have already drawn attention.

503
I should like to dispose of one point which is a little extraneous to the main thrust of the amendment. I refer to the debate about Belgium as a third country. It is my contention—I have explained it to the House before and will not waste words on it—that there is no such thing as a country that is safe for everybody. The safety of a country can be judged only in relation to a particular applicant.
The noble Lord, Lord Renton, was dissatisfied with the words "reasonable likelihood". But the standard of proof, in accordance with the ruling of the Appellate Committee of your Lordships' House in Sivakumaran, is not beyond reasonable doubt; it is a matter of probability. The wording of the amendment was aimed at achieving the same standard of proof as laid down in Sivakumaran. If the noble Lord suggests that we have failed to do this perhaps we ought to go away and try harder. If we are in line with the standard of proof that the law at present accepts, that, I should have thought, is all right.
Male rape does happen. I regret to say—I think it was about 18 months ago—there was a case reported on the London Underground, of all improbable places. I am grateful to the noble Baroness for confirming that. I am not aware of any case where it has yet been used as a systematic weapon of war, but I always hesitate to say that abuses of power cannot possibly happen. If male rape exists, its use as a weapon of war might exist. It would be foolish not to cover it in the amendment.
As for the use of rape as a systematic weapon of war on Bosnia, the noble Lord, Lord Dubs, said almost everything that needs to be said. I shall just add the name for which the noble Lord, Lord Hylton, was reaching. It is Dame Anne Warburton who has since become a distinguished member of the Nolan Committee and head of a Cambridge College.
The noble Lord, Lord Renton, said also that the effect of the amendment would be that people would remain here. I thought that I had explained that that was not the effect of the amendment. It is only that they should follow the ordinary, rather slower procedure for hearings instead of going on to the fast track. The argument here is not about remaining—that is a matter of justice and to be established in individual cases; it is a matter of how the cases are heard.
The Minister said, and I agree with her, that a random act of violence does not enable you to claim asylum because you are a rape victim. The reason for that is good and obvious. If you have been a victim of a random act, it does not make you less safe in your country than you would be anywhere else.
The key issue here, which is why the state of the country is vital, is the issue of the credibility of the person who alleges that rape has been used against her or, as it might be, him. That is where the question of the country assessment is vital. I beg the Minister's pardon for saying it, but the main other country where there is suspicion, and at present I would not put it any higher, that rape is being used by the armed forces as a systematic weapon of terrorising opposition is Zaire. I have about a dozen cases in my files. That is not
504
enough to entitle me to say more than "suspicion", but that suspicion does exist, and it would be as well that it should be verified.
The amendment links the attempt to procure a proper assessment of the country with the issue of the credibility of the individual applicant. That I think is right. Again, I agree with what the Minister said about the dangers of itemising everything in primary legislation. I have listened to the noble Lord, Lord Renton, and I have read his report. I have seen the point made in other academic contexts. I accept it fully. I should have greatly preferred the amendment in the name of my noble friend Lady Williams. If that had been carried, I would not have moved this one. Since it has not been carried, I am left with very little option, but I do not intend to push it to a vote. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
6.30 p.m.
Lord Dubs Lord Dubs moved Amendment No. 8:
Page 2, line 7, at end insert ("without giving a reasonable explanation of his failure to do so").
The noble Lord said: My Lords, I should like to say a few words also about Amendment No. 16. These amendments seek to provide some safeguards as regards the removal of asylum claimants to safe third countries.
Amendment No. 8 is concerned with when an individual arrives possibly with a forged passport. The purpose of the amendment is to prevent the authorities coming down harshly on that individual, because the amendment would give the asylum seeker an opportunity to give a reasonable explanation of his failure to have made the authorities immediately aware of his documentation.
Amendment No. 16 is concerned with late claims. Article 31 of the UNHCR convention, to which reference was made in Committee on this issue, states:
"The contracting states shall not impose penalties on account of their illegal entry or presence on refugees who come directly from a territory where their life or freedom was threatened in the sense of Article 1, enter or are present in their territory without authorisation, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence".
There may be instances when individuals have a good explanation for why their documents are not in order, and why they failed immediately to inform the officer of that fact. It may well be that individuals are just not aware of the significance of that, or want some time in which they can make their claim, and prefer to do so when they can obtain advice from members of their own communities, or legal or other help. There are good reasons why people might wish to delay.
An asylum seeker might arrive in the UK on a false passport and the forgery be undetected. The asylum seeker passes through immigration control, and the following day may apply for asylum at Lunar House and admit that the passport is false. In that case, despite the fact that the asylum seeker had volunteered information that the passport was false, if refused, the case will fall into the accelerated procedure, since the person

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produced an invalid passport to the immigration officer, and failed to inform the officer of that fact on first arrival.
If there is a good reason for that position, it seems unreasonable that the asylum seeker should be treated in the way that he would be if the amendment were not accepted. The words, "without giving a reasonable explanation", are moderate and sensible.
There may be other instances—Amendment No. 16 may deal with them—when asylum seekers may be arrested and charged with having false documents and convicted, often with a recommendation for deportation. That may happen to people whose false documents have been detected, possibly while they are in transit; that is to say, individuals who had no intention of claiming asylum in the UK, but whose documents were detected in transit. As the UN convention protects only persons coming directly from a third country, an asylum seeker who is travelling from one country to another may have no option, to prevent deportation, but to claim asylum in the UK.
Those are complicated situations. They may not affect many people, but they affect enough. I am looking for the House to accept an amendment which enables the person to show good cause why the claim was not made earlier. Those are safeguards against the way in which Clause 1 will deal with those individuals. I know that we discussed them at some length in Committee, but Amendment No. 16 is somewhat different from the one we had before us then. I beg to move.
Baroness Williams of Crosby: My Lords, before the Minister responds, perhaps I may add a word or two to the remarks of the noble Lord, Lord Dubs. There are one or two subsequent amendments which deal with the same issue. To sum up, the issue is that some people—they are often people from the most threatened countries—travel with false documents. There are some cases which will be familiar to the Minister and the House where people have endured the most extreme conditions. They are unable to leave their country with valid documentation. They would not be able to obtain it because they are seen as opponents or critics by the country concerned.
I fully appreciate the point that such people should make it clear as early as possible that they have come under a false document; and that they should be honest with the immigration authorities. There is a later amendment that I have tabled which refers to someone who, on all other grounds, would be accepted as an asylum seeker, save only that his or her documents are not valid. I wonder whether the Minister would refer to that issue. I am sure that she, being experienced in these matters, will appreciate that people who travel with false documents often come from the very countries which are the most serious in terms of the way that they treat their dissidents, their critics and the people who are trying to organise democratic opposition. I hope that on
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those grounds alone people would not be refused asylum if, on all other grounds, they could satisfy the authorities of the validity of their claims.
Baroness Seccombe: My Lords, I appreciate the fact that many people may travel with false documents and I believe that the immigration authorities would understand that. However, it seems to me strange that if people are coming to this country as a place of refuge they do not see it as a safe place and somewhere where they can declare immediately that their documents are false. It leads to a difficulty of not taking action as provided in the Bill.
Baroness Blatch: My Lords, new sub-paragraph (4)(b) would allow us to certify a refused claim if the applicant produced a false passport on arrival without informing the immigration officer that it was not valid. When a false document is produced it takes courage to lie one's way through that. One must pretend and convince people that the document is not false. That is another form of courage which is summed up by people who produce false documents.
The amendment proposes that a certificate should not be applied if an applicant gives a reasonable explanation for failing to inform the immigration officer that his passport is false. We debated fully an identical amendment tabled by the noble Lords, Lord McIntosh and Lord Dubs, during Committee. I explained in detail then why I was unable to accept the terms of the amendment. Nothing that I have heard in debate today has led me to conclude otherwise.
We have consistently made clear that we expect asylum seekers to be completely honest and frank with our immigration authorities on arrival in this country. As my noble friend Lady Seccombe said, this is the place on entry which they have come a long way to find. Having arrived here it is in their own interest that they should be honest about their documentation. We entirely accept the point made by the noble Baroness, Lady Williams, that often there will be a need to travel with false documentation in order to leave a country quickly and safely.
Dishonesty and concealment damage credibility. We accept that in principle there might be circumstances where a genuine refugee would need to use false papers in order to flee a country in which he had a genuine fear of persecution. Under the Bill, no adverse consequences arise for the asylum seeker merely because he presents an invalid, forged or stolen passport on arrival here, provided that the applicant declares the forgery to the immigration officer. But what is unacceptable, and casts doubt on credibility, is an attempt to pass off a fake identity or forged passport as genuine. It is the dishonesty inherent in such an attempt which triggers the accelerated appeal procedure. That is why we are unable to accept this amendment.
I do not believe it would be right to indicate on the face of the Bill that there may be a reasonable explanation for a blatant attempt to deceive an immigration officer. Those presenting false papers to our immigration officers are after all not doing so out of necessity. By definition, they have already fled the

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country in which they claim to fear persecution and have arrived at their chosen place of safety. Such deception cannot be condoned.
Like the rest of Clause 1, sub-paragraph (4) will not prejudice the consideration of the asylum claim on its merits. If the claim is valid, asylum or exceptional leave will be granted regardless of document deception used on arrival. And the Bill will not penalise the genuine asylum seeker who has to travel on false papers, provided that he is honest and declares the false papers on arrival.
The noble Lord, Lord Dubs, prayed in aid Article 31 and our reference to it in a previous debate. I reject the argument that sub-paragraph (4)(b) as currently drafted is contrary to the terms of Article 31 of the 1951 UN Convention. Article 31 states that refugees shall not be penalised on account of their illegal entry provided they present themselves without delay to the authorities and show good cause for their illegal entry and presence.
First, the issue of a certificate comes into play only after the claim has been considered fully and on merit and has been found to be invalid. By definition, therefore, the Secretary of State has concluded that the applicant is not a refugee under the terms of the convention.
But, secondly, applying a certificate to a refused asylum claim, thereby triggering an accelerated appeal procedure, cannot be construed as imposing a penalty in terms of Article 31. As I have said on many occasions, all claims will still be considered on merit in the usual way. And all applicants will still have an appeal to an independent adjudicator if the claim is refused. This is a perfectly adequate procedure in such cases and cannot be termed a penalty. Moreover, those who enter or attempt to gain entry using false papers would have had ample opportunity to present themselves to the UK authorities to apply for asylum when examined by an immigration officer on arrival. It is the dishonesty inherent in deceiving the immigration officer that triggers the certificate if the claim is refused.
I turn to Amendment No. 16, which would prevent the certification of claims under sub-paragraph (5)(c)(i) and (ii) if the applicant can show good cause why the claim was not made earlier. We debated this issue at length in Committee and the Committee divided on and rejected an amendment with almost identical consequences for all four sub-paragraphs of sub-paragraph (5)(c). I am surprised that the noble Lords have sought to reopen a proposal which the Committee voted down when it rejected Amendment No. 19. I am still unable to accede to the terms of the amendment and I will explain why.
However, I must begin by pointing out that the amendment is defective. First, it does not signal properly that it is intended to apply to sub-paragraph (5). Secondly, even if that is disregarded, it would disapply sub-paragraph (5) in all cases where the claim was lodged after refusal of leave to enter or after a court had recommended deportation and where the applicant had shown good cause for not having claimed earlier. This means that we would not be able to certify an asylum claim by such an applicant even if it met other
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certification criteria, such as being manifestly fraudulent. That would not be sensible and cannot have been the intention of the noble Lord in presenting the amendment.
Turning now to substance, the underlying intention behind the amendment is unnecessary and undesirable. First, under the Bill as drafted, a certificate will be available only where the claim has been fully considered and rejected. If it is found to be a valid claim, asylum or exceptional leave will be granted despite the circumstances in which the claim was submitted. But, if the claim is not well-founded, the fact that it was submitted only after refusal of leave to enter or after a court has recommended deportation will almost invariably justify a certificate. As I have already said, we expect that a genuine refugee would apply for asylum at the earliest opportunity. We need to send a clear signal that abuse of the asylum procedures in order to frustrate enforcement of our immigration laws will be met robustly.
Sub-paragraph (5)(c)(i) affects only people who have attempted unsuccessfully to enter the country, have been found not to meet the requirements of our immigration rules and make an asylum claim to fend off the enforcement of those rules. I do not believe that we should insert into the Bill an open invitation to late applicants to provide excuses for their failure to claim earlier. Many would seek to do so. This would unnecessarily complicate the handling of cases. And most importantly, it would blunt the deterrent message we are trying to send; namely the message that blatantly abusive claims will be dealt with robustly.
Sub-paragraphs (4) and (5) address growing forms of abuse of our asylum procedures. That is an area of abuse and must be recognised as such. These amendments are undesirable for the reasons I have given. They will not address those incidents of abuse and therefore not only is Amendment No. 16 defective but it is not acceptable to me on behalf of the Government.
Lord Dubs: My Lords, I thank the Minister for her detailed explanation although I am bound to say that it does not give a great deal of comfort.
It is not right to say that a late claim is an abusive claim. The majority of late claims, however undesirable the Minister may find them, are most likely to be made through ignorance, through not knowing the situation in this country or through being rather naive in the approach to officialdom here. I do not believe that late claims are abusive. Nor do I believe that many people who come with forged documents do so with an intention to deceive. The claims may be perfectly proper claims in terms of individuals having a well-founded fear of persecution even if they are made late through ignorance, uncertainty, insecurity or for the many reasons which cause people not to deal with British officialdom as expeditiously as the Government would wish them to.
Having said that, I know that the Minister is not to be persuaded. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 9 to 12 not moved.]
Lord McIntosh of Haringey Lord McIntosh of Haringey moved Amendment No. 13:
Page 2, line 24, leave out from ("fraudulent") to ("; or") in line 25.
The noble Lord said: My Lords, this amendment was moved in Committee but the Minister's reply was so unsatisfactory that we felt that it was necessary to return to this issue.
The point about the words which we seek to delete is that they are so extreme. The whole of subsection (5) provides opportunities for certification for the accelerated procedure and paragraph (5)(d) states that it applies if the claim is manifestly fraudulent or any of the evidence adduced in its support is manifestly false. It is the words "any of the evidence" which really stick in our throat.
Clearly, if the bulk of the evidence, the thrust of the evidence, adduced in support was manifestly false, then the application would be fraudulent. But there are many cases—and some were raised in Committee—when some of the evidence, and not necessarily an important part of it, could be false. But that does not mean that the application itself is fraudulent. It may simply mean that a mistake, and often an unimportant mistake, has been made. For example, a newspaper report submitted in good faith could have errors; it could be unreliable or exaggerated. A foreign government might misinform people about the fate of relatives in detention or witnesses may prove to be unreliable. All those fall within the words which Amendment No. 13 seeks to delete but they do not affect the genuineness of the application.
If the application is manifestly fraudulent perhaps it is legitimate to use the accelerated procedure, but not if any part of the evidence is manifestly false. Indeed, the UNHCR handbook deals with this issue at paragraph 199 which states:
"Untrue statements by themselves are not a reason for refusal of refugee status and it is the examiner's responsibility",
not the claimant's responsibility,
"to evaluate such statements in the light of all the circumstances of the case".
It is not just the UNHCR which thinks in that way. The Government's background paper to the Bill is very clear and helpful. It would be useful if the Minister could confirm what is said in that background paper, which refers to,
"unequivocal evidence that the information which he had given to support the claim was false: for example, where it is established that the alleged events forming the basis of the claim have not taken place, or where documents submitted to support the claim (for example, arrest warrants or newspaper articles) are found to be forged or counterfeit".
The briefing suggests that information submitted verbally would not be included and that if an applicant submitted a genuine newspaper article that contained an error that would also not lead to a fast-track appeal. Therefore, the Government's own briefing and their own interpretation of this clause in the legislation show that
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the language of the clause is too extreme. The way to deal with that extremism and the language of the Bill is to take out those few words. I beg to move.
Baroness Williams of Crosby: My Lords, perhaps I may add one further argument to the argument made so ably by the noble Lord, Lord McIntosh. Many people in this House have experience of intelligence services and such bodies, some of which operate for very dubious governments. The assurance which I seek concerns the possibility of someone who finds that so-called evidence is added to his case against his wishes and without his knowledge by some agent of his government.
For example, if it were the case that somebody wished to put forward evidence "in support of the case" with the real intention of undermining the case, because the evidence was false and was adduced from some part of that government's embassy which might be very out of sorts with the person seeking asylum or refugee status, and the person concerned did not wish to adduce that evidence in his support, would that fall within the present terminology of the Bill?
Perhaps I may refer, as an example, to Boss, the organisation of the old South African government. Evidence was provided by that organisation, not at the wish of the person concerned and not with his understanding or knowledge, but in order to damage him. It is crucial that such evidence should not be taken into account as a basis for refusing the application. I should be grateful if the noble Baroness will give that assurance.
Lord Monson: My Lords, the noble Lord, Lord McIntosh, may be right to claim that the paragraph as it stands goes too far, but is it not possible that his amendment goes too far in the opposite direction? Would not a reasonable compromise be to replace the word "any" with the word "most"?
7 p.m.
Earl Russell: My Lords, I do not think that that is the answer because we want to know whether a person has a well-founded fear of persecution. Under international law, if a person has a well-founded fear of persecution he is entitled to refugee status since no other evidence is material. That is all that we want to find out. Admissibility of evidence must be directed to that end to which the whole investigation is directed.
This amendment covers a case to which we have referred many times before, where people enter the country by means involving some element of deception and then claim asylum in this country. I know that the noble Baroness regards that as an improper procedure. We have had a good many exchanges about that. I thank the noble Baroness for the letter which she wrote to me on this subject between the stages of the Bill, but since she said in that letter that she is unable to understand my position I hope that I shall be forgiven for explaining it further.
My understanding is that under international law it is perfectly in order for people to enter a country, even if the means by which they do so includes deception, and

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then to claim asylum in country. I rely on Article 31 of the UN convention. Last time I mentioned it in Committee the noble Baroness challenged me to produce it. She said she could not understand how it came to have that meaning. With the leave of the House, I should like to read the relevant words and then the comments of the UNHCR upon them. The relevant words are:
"The contracting states shall not impose penalties on account of their illegal entry or presence on refugees who come in directly from a territory where their life or freedom was threatened in the sense of Article 1, enter or are present in that territory without authorisation, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence".
As I understand those words, if people entered the country and then claimed asylum and could show that claim to be good under international law ratified in this country by the 1993 Act, and incorporated, that would wipe out any element of deception. It seems to me that the clause in the Bill which this amendment would delete goes contrary to that. Since the Committee stage, I have discovered that my interpretation of Article 31 is the same as that used by the UNHCR and therefore, correct or not, it is one which deserves a hearing. The UNHCR says that,
"Article 31 exempts refugees coming directly from a country of persecution from being punished on account of their illegal entry or presence, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence".
It also says—and this is in answer to another point made by the noble Baroness in Committee—that the word "refugee" in that context must be understood not only in terms of those whose claims have been accepted but of those who are making claims, because
"once their claims have been examined they may prove to be refugees entitled to benefit from Article 31".
The UNHCR also says—and this relates to another argument that we have had, but I may as well deal with this matter now and avoid coming back to it later—
"the term 'coming directly' covers the situation of a person who enters the country in which asylum is sought directly from the country of origin, or from another country where his protection could not be assured. It is clear from the travaux préparatoires"—
I should add that under international law the travaux préparatoires can be used under principles rather like those of Pepper v. Hart to elucidate the meaning of the legislation—
"that the term also covers a person who transits an intermediate country for a short time without having applied for or received asylum there".
I deal now with the draft of the convention, and stress that these are still the words of the UNHCR. It introduced the term, "coming directly"
"not to exclude those who had transited another country, but rather to exclude those who 'had settled temporarily' in"
another country, which is a very different case.
Those are good reasons, I think, for saying that the words in the Bill to which we object are contrary to international legal obligations confirmed by an Act of Parliament passed in the lifetime of this Parliament. I know it is normally a legal principle that in a conflict between two Acts of Parliament the later will take precedence. But it will be a difficult principle to apply in this case because the noble Baroness has reaffirmed
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many times that it is not the intention of this Bill to undo our obligations under the UN convention, which the noble Baroness says that we accept. I may say that I am very pleased to hear her say that.
So any court construing this Act would be bound to construe it in the light of the UN Convention on Refugees, as laid down in this country by the 1993 Act. Therefore it is something that may come within the jurisdiction of the British courts as well as the International Court of Justice. In these circumstances it might be a considerable saving on the Home Office's legal Bills to accept this amendment here and now.
Baroness Blatch: My Lords, sub-paragraph (5)(d) enables the certification of a claim in which manifestly false evidence has been submitted. I listened carefully to the concerns expressed about this provision but I have not found them convincing. Indeed, much of what the noble Earl has been talking about has been travelling and entry, and not about fraudulent evidence adduced in support of a case. The amendment does not affect the first leg of sub-paragraph (5)(d), which would enable us to certify a claim where, for example, it was established that the alleged events forming the basis of the claim have not taken place. The amendment would remove the ability to certify refused applications where part of the evidence is found to be false. It is not unusual for applicants to submit forged evidence, such as a forged arrest warrant purporting to show that the applicant was detained by the authorities in his own country.
A deliberate attempt to deceive the Home Office by the submission of false evidence cannot be condoned. The Immigration Rules already provide that the submission of false evidence may damage credibility. We will not necessarily certify where part of the evidence is found to be false. The key test will be that the false evidence relates to the main basis of the claim. Even where this is the case, the claim will still have to be considered in the usual way, of course. If the claim qualifies for asylum despite the forging of part of the evidence, asylum will be granted. Where such claims are found not to meet the criteria for refugee status, it is entirely right that the false evidence submitted purely to bolster the unfounded claim should result in a refusal and also attract a certificate.
If the adjudicator considers that the evidence is not manifestly false he can set the certificate aside at the appeal hearing, even if he goes on to uphold the refusal of asylum, and in such circumstances the appellant's avenue of appeal to the tribunal would be reinstated. The fact that an applicant has travelled to this country using false papers could not in itself trigger certification under sub-paragraph (5)(d). The Bill clearly refers to evidence adduced in support of a claim and therefore if the applicant claims asylum in his true identity, sub-paragraph (5)(d) could not possibly come into play. However, it could apply if the applicant maintained the false identity or nationality shown on the false travel document for the purposes of pursuing his asylum claim. In that case, if asylum was refused we would want to certify the case; and rightly so.

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To answer a particular point raised by the noble Baroness, Lady Williams, when she raised the case of a third party and prayed in aid MI5, this particular measure would only apply to evidence adduced by the applicant and not by a third party.
Perhaps I might repeat to the noble Earl, Lord Russell, that this amendment is concerned with false evidence and not with illegal entry. A claim itself may not be fraudulent but the evidence adduced to support it could be fraudulent, and that is why one has to take one with the other. Both parts of sub-paragraph (5)(d) should be retained. The second part will send a clear message that any attempt to deceive the United Kingdom authorities by concocting false evidence will be met robustly. I urge your Lordships to reject the amendment.
Lord McIntosh of Haringey: My Lords, the Minister, at greater length, made not much more than the point which was made by the noble Lord, Lord Monson. The noble Lord said that if I objected to the word "any" it might be replaced by the word "most". If it were so replaced—and I considered that option—the effect would be that most of the evidence adduced in support of the claim is manifestly false. To me, that means that it is a manifestly fraudulent application. I thought I was doing the same thing, but in fewer words than the legislation, that the noble Lord, Lord Monson, was recommending me to do. However, I find the Minister's reply to be of the kind which I would describe as "stonewall". She is relying on assertion and her own interpretation of the English language, rather than on what the Bill actually says. She said in response to the noble Baroness, Lady Williams, that the intention is to apply this to evidence adduced by the applicant rather than by any third party. I have to say that the Bill does not say that. If that is what it means then it should say so, and evidence by a third party should be excluded from the terms of sub-paragraph (d).
The Minister made no serious attempt to deal with the charge which was the basis of my moving the amendment in the first place. The sub-paragraph refers to "any of the evidence". That means any evidence adduced, however little; in other words, a single error in a newspaper article could bring the application within the terms of sub-paragraph (d) and, therefore, cause the claim to be what the Government call "certified" and what we call "fast tracked". The Minister has given a thoroughly unsatisfactory answer to the question. If it were not for the time of the evening, I would certainly seek the opinion of the House. However, in the circumstances, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Blatch Baroness Blatch moved Amendment No. 14:
Page 2, line 26, at end insert—
("(5A) This sub-paragraph applies to a claim if the evidence adduced in its support establishes a reasonable likelihood that the appellant has been tortured in the country or territory to which he is to be sent.").
The noble Baroness said: I spoke to this amendment when moving Amendment No. 2. I beg to move.
[Amendment No. 15, as an amendment to Amendment No. 14, not moved.]
On Question, Amendment No. 14 agreed to.
[Amendment No. 16 not moved.]
[Amendment No. 17 had been withdrawn from the Marshalled List.]
Baroness Blatch Baroness Blatch moved Amendments Nos. 18 and 19:
Page 2, line 30, after ("which" insert ("(a)").
Page 2, line 31, after ("applies") insert ("; and
(b) sub-paragraph (5A) above does not apply,").
[Amendment No. 20, as an amendment to Amendment No. 19, not moved.]
On Question, amendments agreed to.
The Earl of Courtown: My Lords, I beg to move that further consideration on Report be now adjourned. In moving the Motion, perhaps I may suggest that the Report stage begin again not before 10 minutes past eight.
Moved accordingly, and, on Question, Motion agreed to.

Railway Heritage Bill
7.12 p.m.
Lord Finsberg: My Lords, I beg to move that this Bill be now read a second time.
The Bill was introduced in the other place by my honourable friend Mr. Mark Robinson. It had a speedy passage with all-party support. It falls to me to shepherd the Bill through your Lordships' House. I am delighted to do so. All my life I have been a steam train buff. I am a shareholder in the non-profit making North Norfolk Railway and a former director and now vice-president of the Bluebell Railway, which was the first steam railway in this country to be preserved.
Steam trains are part of our national heritage. It would be a sad thing if many of the items connected with them were to disappear. The sole intention of the Bill is to fill a vacuum and to ensure that the same restrictions apply to privatised railways, so far as concerns records and artefacts, as apply to the British Railways Board and its subsidiaries. It replaces Section 125 of the Railways Act 1993, which applies only to public bodies.
The Bill will help preserve our heritage for posterity. Posterity may wonder when going through a quiet country village and seeing a public house called "The Railway Arms"; or, indeed, when going through a small town and parking—legally, I hope—in Station Street with no railway within 20 miles. The heritage links those things back to the present. It is necessary, I believe, for people to be able to carry out that kind of trace. The disappearance of documents and other artefacts would be very sad.
The existing Railway Heritage Committee has been tireless in its work. One of its great achievements has been the designation of thousands upon thousands of

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Brunel's drawings—many of them signed. In passing, I have to say that I only wish that Brunel's Great Western Railway broad gauge had become universal instead of the standard gauge; our journeys would have been infinitely more comfortable.
The Railway Heritage Trust has also carried out valuable work in preserving railway buildings and historic structures. The work already done will be enhanced by the Bill, the main features of which are sixfold. First, it defines the bodies to which the Bill refers; secondly, it strengthens the Railway Heritage Committee and enables it to have sub-committees; thirdly, it sets out the objectives and gives power to designate artefacts; fourthly, it provides for disposal methods; fifthly, it gives the Railway Heritage Committee power to withhold consent; and, finally, it contains very valuable powers for the Secretary of State to give guidance to the committee and to provide a means of arbitration should it become necessary.
I hope that my brief introduction has set out the purposes of the Bill and that your Lordships will now allow all the signals to go green.
Moved, That the Bill be now read a second time.—(Lord Finsberg.)
7.15 p.m.
Lord Mountevans: My Lords, it is a pleasure to support the Second Reading of this Bill so ably, albeit briefly, introduced by my noble friend Lord Finsberg and to congratulate our colleague, the honourable Member for Somerton and Frome on his initiative in bringing the Bill forward.
I feel that it is absolutely right that, Britain having invented the railway and then having given it to the world, we should take all possible steps to preserve all the documents and artefacts which make up a substantial element of our railway heritage.
Having invented the railway, it was logical that subsequently we more or less invented the railway preservation movement. Apart from our excellent National Railway Museum, we have more operating preserved railways than any other country; and, indeed, more rail-related museums than any other country. All those ventures are dedicated to preserving parts of our railway heritage.
Further, most of those ventures are largely the result of volunteer effort—that is, volunteer fund raising and volunteer expertise. It seems to me that the Bill will send a clear signal and will very much encourage that very substantial voluntary effort. By doing so the Bill will, if enacted, also contribute to our tourism industry, to education and to public enjoyment and awareness of our wonderful railway heritage.
While in no way reducing my support for the Bill, I have two concerns which I hope either my noble friend Lord Finsberg or my noble friend the Minister can allay. The first is the expression in Clause 1(d) at line 11 which refers to,
"any publicly owned railway company".
The word "public" can mean, for example, in the public sector—such as a railway formerly run by HMG or a local authority—or alternatively, it can mean, among
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other definitions, a quoted company. Several of our preserved railways have had share issues and, of course, they own artefacts. But I presume that those artefacts, be they locomotives, coaches or the equipment required to print ticket stocks, would not fall within the remit of the Railway Heritage Committee. I would appreciate comments on that issue.
My second concern relates to finance. Modest artefacts require modest funding, and the success to date of the voluntary sector makes me confident that funding the acquisition of such modest artefacts will not pose a problem. However, sooner or later someone may want to preserve, say, a high speed train—20-plus years after introduction it remains the world's fastest diesel train. But here costs become a serious issue. Can my noble friend the Minister confirm that there is a possibility that National Lottery funds may be made available for a preservation project of this magnitude were the volunteer sector to take it on? Those are two queries, but, none the less, it is a marvellous Bill. I am happy to volunteer my endorsement.
7.19 p.m.
Baroness Thomas of Walliswood: My Lords, from these Benches I too welcome the Bill so briefly introduced by the noble Lord, Lord Finsberg—indeed, an example that I hope to follow. There is no point in talking to death a Bill which I believe everyone favours. The Railway Heritage Trust was one of the first organisations to lobby me on this very subject when I came to your Lordships' House.
As an historian, I have always taken a great interest in the preservation not just of beautiful country houses but also of our industrial heritage. I entirely agree with the points made by the noble Lord, Lord Mountevans. I share his concern about the cost of items which may require preservation at a later date. I hope that the noble Viscount the Minister will be able to tell us that his ministerial colleagues will look on this kind of heritage preservation with the same sympathetic eye with which they look upon heritage preservations. A time may come when funding greater than that which can be put together by volunteers will be necessary. I welcome the Bill and hope that we can grant it a Second Reading without further ado.
7.20 p.m.
Lord Berkeley: My Lords, I, too, congratulate the noble Lord, Lord Finsberg, on introducing the Bill. I am not sure that we shall talk it to death—I rather hope that we shall talk it into greater life. It is an important Bill. I declare my interest in such activities; I have a project to create a museum of the Channel Tunnel. I do not believe that the Channel Tunnel is included in the scope of the Bill, but I refer to boring machines and other items. The museum is an example of things that can go right or wrong.
Our railway heritage is one of the most important parts of our industrial history. Sir Neil Cossons, director of the Science Museum, has said that the railways were the most important development that Britain gave to the world during the past 150 years. That is quite a claim.

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The railways have retained and in some cases actively collected a unique range of artefacts, documents and memorabilia. The start was not particularly good. Many of us who have an interest in railway history are saddened that there is no broad gauge rolling stock. I believe that it was scrapped in 1906. But since the requirements in the Transport Act 1968, to preserve artefacts, the National Railway Museum and the London Transport Museum were born, and I believe that they are probably the best railway museums in the world. Perhaps it is true to say that we led the world in railway technology developments; and we lead the world now in museums to demonstrate the development of history.
Perhaps we should not be too hard on our ancestors for not preserving broad gauge and other equipment, since the immediate past is often thought of as not being of particular concern or interest—we have just experienced it, and do not see the need to have it formally recorded. In taking a view for or against such preservation, we must not forget that our children and grandchildren have not had that experience. Therefore it is important to preserve even those items that we may not believe are particularly interesting.
While the railways were in public ownership, BR had the obligation under the Transport Act 1968 to preserve equipment and artefacts. But with privatisation and fragmentation that situation has changed. I am pleased that the Government have supported the Bill to widen the obligations on companies in the railway industry to preserve their heritage. The Bill, therefore, has the support of the Labour Party. We wish to see it receive Royal Assent at the earliest opportunity, not so much because there is any suspicion that any of the new privatised operators are seeking to junk any unique artefacts, but rather that with the present uncertainty over legislation which does not complete its passage before the Summer Recess, there is a danger that it could be lost. Once an artefact is lost, it is gone forever.
Although we have some concerns about parts of the Bill, they are positive concerns. I hope that the Minister will be able to respond to some of my comments with words of comfort—or even motherhood, if that is the right expression.
I have three concerns. The first was alluded to by the noble Lord, Lord Mountevans. I refer to Clause 1. To which bodies does the Bill apply? There is a comprehensive list but I am unsure about whether all the operations and organisations which have succeeded the various parts of BR will be included, and whether all the artefacts that they own now and will own in the future will be included.
For example, is the promoter of the Channel Tunnel Rail Link included, and, if so, under which subsection? London and Continental Railways Limited has been handed the assets of European Passenger Services and Union Railways which were formerly publicly owned companies. But are the artefacts and assets now owned by LCR included, whether inherited from the Government or created subsequently by themselves?
The same comments apply to English, Welsh and Scottish Railways which took over the former British Rail freight companies. As a new company, are
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its artefacts included? The answer is presumably, yes, to the old limping locomotives which it has stated that it will replace, but what about the new US locomotives which it has just ordered?
Is it possible that a franchise could be let to a foreign registered company; and, if so, would this legislation have any jurisdiction over that company? Is Eurotunnel included? I do not believe that it is. It has never been a publicly owned company. Is Ulster Railways included; and, if not, why not?
I appreciate the constraints on the drafting of the Bill. But I hope that the interpretation of it could be more along the lines of,
"any company or organisation which has or does operate with, on or in connection with the national railways network and system".
In short, a little motherhood from the Government, along the lines of a presumption that the procedures and responsibilities of the Bill should be applied albeit on a voluntary basis to those not covered, would be most welcome from those who have the railway heritage at heart.
Secondly, Clause 3 defines an artefact. Broadly, it is an item that can be moved. I view the intent underlying this clause as being broadly similar to the listing of buildings, except that in certain cases it will probably be a voluntary scheme. However, limiting though the Bill may be of necessity as regards the scope of Clause 1, it is important that those who own what might be considered an artefact are aware of their moral and sometimes legal obligation to offer it to the committee for designation.
Opinions will always differ among historians, enthusiasts and owners as to the historic interest of a specific item. Much of that opinion is by its very nature subjective. But the knowledge that some item might be an asset worthy of preservation may come as a shock to some people. Therefore, it is important that the work of the committee, its legal and moral rights and obligations, are as well publicised as possible throughout the industry.
Lastly, and inevitably, there is the problem of finance, to which the noble Lord, Lord Mountevans, alluded, for the purchase and/or preservation of artefacts. When all was owned by British Rail or London Underground Limited, that was done as a matter of course. The two excellent museums and the enormous collections that support them are a tribute to those who have been responsible for this work through several generations. Those organisations were content to pay for this work out of a sense of public duty.
Clause 4 refers to the notice of disposal and the terms of payment. With the ownership of an artefact in private hands, it must be reasonable that the owner should have the right to receive some reimbursement for a disposal. As I have found with Channel Tunnel artefacts, the value of an artefact can vary very dramatically, sometimes by a factor of 1,000, depending on the perceived worth—whether it is for scrap or commercial use. But even the purchase of an artefact for scrap can make a dent in the budgets of our museums. The PRISM fund is administered by the Science Museum and has been set up for the purchase of such historical artefacts.

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However, I understand that there is a budget of about £50,000 to £100,000 per year which does not go very far to buy locomotives or rolling stock which have come to the end of their working lives.
I understand that the Science Museum allocates from its grant aid a budget for purchasing artefacts between its three museums. Last year that was £250,000 but because of reductions in grant the figure has reduced to £100,000.
We have been assured by the Government on numerous occasions that lottery money would be additional to rather than a replacement for heritage grants. However, many of us are not entirely convinced that there is not some connection between the two. The funding requirements may not be as exciting as for a new or subsidised opera house, but I hope that the Minister will impress on his noble friend Lord Inglewood and his colleagues in the Department of National Heritage the importance of ensuring that the work of preserving our railway heritage can continue. Because of the new structure of the railways that requires not just the same funding but more on a continuing basis.
I conclude by commending the excellent and dedicated work done by the Railway Heritage Committee and the museums involved. I hope that this Bill will assist them in ensuring that the occasional "difficult" owner of an artefact understands his obligations, but equally I hope that most of its work will be undertaken with the enthusiastic encouragement and partnership of the many organisations involved. We support the Bill wholeheartedly and wish it a speedy passage through its remaining stages in this House.
7.31 p.m.
The Parliamentary Under-Secretary of State, Department of Transport (Viscount Goschen): My Lords, I thank my noble friend Lord Finsberg for introducing this short but important Bill. I recognise the hard work of my honourable friend the Member for Somerton and Frome in another place in taking the Bill through that House.
We have heard from my noble friend Lord Finsberg a description of the Bill, what it does and why it has come about. I believe there has been a broad consensus of support from around the Chamber. I was pleased to hear the contribution of the noble Lord, Lord Berkeley. I welcome his debut appearance at the Dispatch Box from the Opposition Benches. I have a feeling we shall hear a great deal more from him at the Dispatch Box. The speech that he has made today shows the vigour with which he intends to pursue railway issues. However, this is a much happier dialogue than that which we normally have on the subject of railways.
I certainly concur wholeheartedly with the view of my noble friend Lord Finsberg that Britain's railway heritage must be preserved for the benefit of posterity. I am well aware of the excellent work done by many railway preservation societies such as the Bluebell Railway, with which my noble friend is so closely involved. I certainly wish that every success. Of course our railway heritage is not of value only for its own
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sake: it also plays an important role in the future running of a working railway. That can be seen from the fact that drawings from the Brunel era—those were alluded to earlier—are still in use as working records.
The Railway Heritage Committee, an independent committee of experts representing both railway heritage and working railway interests, was set up under Section 125 of the Railways Act 1993. The committee is responsible for ensuring that historically significant railway artefacts and records are sent to the appropriate museum or other collecting institution at the end of their useful lives, so that they can be made available to a wider public. I wish to endorse the sentiments expressed in the House this evening in applauding the excellent work done by that committee.
The committee's powers cover the British Railways Board, its wholly owned subsidiaries and the public sector bodies brought into being during the restructuring process. I believe that my noble friend Lord Mountevans asked about the detail surrounding that. I do not think he need have any cause for concern. The description within the legislation is tightly defined. When the Railways Bill was before this House, the Government proposed to introduce a voluntary scheme to cover the private sector, but on further consideration that route proved inappropriate. The Bill now before this House would reinforce the committee's powers by extending the classes of owner to be covered. It would also enable the committee to carry out its work more effectively by empowering it to require relevant information from owners, and by permitting delegation to sub-committees.
Many of the owners of railway artefacts and records including Railtrack have already been privatised so are no longer covered by Section 125. But we certainly have every reason to expect that they will co-operate fully with the committee in the interim period before new legislation is enacted. Mr. Bob Horton, the chairman of Railtrack, has given his personal assurance that Railtrack will continue to work positively with the committee.
A number of questions were asked which I know that my noble friend Lord Finsberg will be eager to answer fully. In fact he will be champing at the bit. However, I should make a couple of points before he does that. The noble Lord, Lord Berkeley, has a great interest in the subject and great expertise as regards all matters to do with the Channel Tunnel. European Passenger Services is responsible for running passenger services through the Channel Tunnel. Union Railways is responsible for the design of the Channel Tunnel Rail Link. They are former publicly owned railway companies and so are covered by the Bill. London and Continental Railways is not covered. As the noble Lord suggested, Eurotunnel is not included, nor, I understand, is Ulster Railways.
The noble Lord, Lord Berkeley, was concerned that the Bill allowed various bodies to slip through the net. The noble Lord need not be too concerned about that. There has been much effort to ensure that the drafting is as accurate and as all-encompassing as it can be. There will be some instances where bodies will not

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necessarily be covered by the provisions, but I think it is likely that the private sector bodies which fall outside the scope of the Bill will be keen to co-operate with the Railway Heritage Committee. Certainly I do not think it would do their public image much good if they decided to go against the committee.
The matter of lottery funding was raised. That is referred to on almost any occasion where anyone has a sniff of potential sources of money. I think my noble friend Lord Mountevans, who raised the issue, is aware that the National Railway Museum and the other major institutions which collect railway artefacts and records in the public sector are eligible for lottery money to pay for acquisitions, but other bodies may not be eligible. There is clearly a great deal of interest in the collecting of these artefacts. I end by saying that we all recognise the importance of the railway heritage, be it from the steam era or slightly more contemporary pieces of machinery, records or artefacts. These are of clear value to our national heritage. I wish the Bill every success.
7.37 p.m.
Lord Finsberg: My Lords, I thank those noble Lords who have taken part in the debate. I am most grateful for the support given to the Bill. I would say to the noble Baroness, Lady Thomas, that over the years I have come to believe that the longer the speech, the less the speaker knows about the subject and the more he is trying to conceal. That is why I try to speak as briefly as I can.
I wish the noble Lord, Lord Berkeley, every success in his endeavours on the Channel Tunnel. I hope that some items from the earlier 19th century channel tunnel will also find their way into preservation. I think he perhaps misunderstood me as regards broad gauge. What I meant to say was that I wish the whole of our system had been broad gauge and then we might even have thought about preserving the odd bit of standard gauge. But, alas, that was not the case.
As my noble friend the Minister said, Northern Ireland is exempt from this measure. I hope that your Lordships will on the odd occasion table an Unstarred Question on this subject so that we can let the public know what is being done. We can also say from time to time how valuable is the continuing work of the heritage committee and the other bodies.
On Question, Bill read a second time, and committed to a Committee of the Whole House.
Baroness Trumpington: My Lords, I beg to move that the House do now adjourn during pleasure until ten minutes past eight o'clock.
Moved accordingly, and, on Question, Motion agreed to.
[The Sitting was suspended from 7.39 p.m. to 8.10 p.m.]

Asylum and Immigration Bill
Consideration of amendments on Report resumed on Clause 1.
Lord McIntosh of Haringey Lord McIntosh of Haringey moved Amendment No. 21:
Page 2, line 32, after ("appellant") insert ("or the Secretary of State").
The noble Lord said: My Lords, this amendment was tabled at Committee stage, but we feel that it is so important and that the answers given by the Government were so unsatisfactory that we have to return to the matter again.
The amendment would ensure a level playing-field to the extent that the prohibition on the applicant under Clause 1 going to the tribunal and the special adjudicator should apply equally to the Secretary of State. It seems to us utterly unjust that the applicant should be denied access to the special adjudicator, whereas the Secretary of State still has that access. Not only is it unjust; it goes to defeat the objects of the Government in seeking to speed up the consideration of asylum applications. An application to the special adjudicator by the Secretary of State delays matters just as greatly as an application by the appellant.
This is not the ideal amendment. Ideally, we would wish access to the tribunal to be available to both the appellant and the Secretary of State. Failing access by the appellant, we do not see why the Home Office should retain appeal rights that it is removing from appellants.
In Committee, the Government said on a number of occasions that the object of the exercise was to reduce delay. They said on 30th April that denial of access to the tribunal was,
"an important part of the benefit which the appeal system derives from the accelerated procedure. It reduces the number of applications for leave to appeal which the tribunal is required to consider".—[Official Report, 30/4/96; col. 1506.]
At column 1507, the Minister said:
"I do not accept the argument that access to the tribunal should always be a possibility as a long-stop safeguard";
and in the same column:
"There seems little point in having an accelerated appeal procedure if we are not even prepared to reduce the normal three-tier system of consideration by the Secretary of State, the adjudicator and the tribunal to a two-tier one".—[Official Report, 30/4/96; col. 1507.]
We agree entirely. That is what this amendment would do. It provides that neither the appellant nor the Secretary of State should have access to the tribunal. We seriously ask the Government: what is gained by allowing the Secretary of State to apply for leave to the tribunal when the decision goes against him?
The argument for this amendment seems so apparent and is supported so strongly by the arguments put by the Government in Committee that I need not detain the House longer. I beg to move.
Earl Russell: My Lords, if this amendment is not accepted, appealing against an asylum decision will be

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getting a little like playing chess with Catherine the Great. The only player who ever beat her was a robot, or so we are told. That was very wise of him, I think.
8.15 p.m.
Baroness Blatch: My Lords, the issue raised by this amendment is the operation of our two-tier appeal system. The first tier is the appellant's appeal against the Secretary of State to the adjudicator. Normally, whichever side loses can seek leave to appeal to the second tier, which is the Immigration Tribunal. Since the Home Office does not lose many asylum cases before the adjudicator, it is mostly applicants who seek leave to appeal to the tribunal. The tribunal refuses about 85 per cent. of applications for leave to appeal to it in asylum cases.
However, under the accelerated appeal procedure which was introduced with Parliament's approval by the 1993 Act and which Clause 1 now seeks to make more widely available, the Secretary of State can certify an asylum claim which he refuses if it meets the statutory criteria. The criteria proposed by Clause 1 are that: the claim is not just unfounded but manifestly unfounded, or fraudulent, or out of date, or frivolous or vexatious; or that it was submitted only after the refusal of leave to enter or the commencement of removal action; or that the applicant tried to gain entry on a false passport, or failed to present a passport at all and did not give a reasonable explanation of this; or that he is seeking asylum from a country which has been designated with Parliament's approval as one where there is in general no serious risk of persecution.
The purpose of the accelerated appeal procedure, which as I say is not new, is to enable categories of claims which are likely to prove unfounded to be processed quickly, in order to deter such claims from being made and so reduce the burden on the appeal system. Where the adjudicator upholds not only the refusal of asylum but also the Secretary of State's certificate, the appellant is denied the avenue to the tribunal. This is so that, apart from the option of judicial review which will always be available as a long-stop safeguard, the failed appellant will be removable at an earlier point than would otherwise be the case.
It has been argued that this is unfair, and in particular that it is unfair that the Secretary of State will, as now, still be able to seek leave to appeal to the tribunal if he loses, but the appellant will be denied this right if the adjudicator upholds the certificate.
I do not agree that there is any unfairness. The first point to make is that the Bill does not invent or change the accelerated appeal procedure. It merely extends its scope. This situation has prevailed for some time. As I have pointed out, it was introduced with Parliament's approval in the 1993 Act.
Secondly, the adjudicator can restore the appellant's avenue to the tribunal if he considers that the certificate has been wrongly made. For example, he may agree with the Secretary of State's decision to refuse asylum but may nevertheless overturn the certificate because, for example, he does not agree with the Secretary of State's view that the applicant is a national of a
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designated country, or that the claim is fraudulent, or that the applicant's explanation for failing to produce a passport on arrival was not a reasonable one.
Given that safeguard, I see nothing unfair in removing the appellant's avenue to the tribunal, provided that both the Secretary of State and the adjudicator have agreed that the claim is not only unfounded but also fits one of the criteria for certification.
And it does not at all seem to me to follow that there should be circumstances where the Secretary of State also is denied an avenue to the tribunal. That is to draw an entirely false equivalence. The purpose of curtailing the appeal process is to enable the refused applicant to be removed quickly where two authorities have agreed that the claim is unfounded. But, where the adjudicator and Secretary of State disagree about the validity of the asylum claim, a different situation exists. I see no comparable argument in that case for cutting off the avenue to the tribunal.
The amendment would in fact have perverse effects. It would actually advantage applicants who had made their claims in suspect or abusive circumstances. Let us take two contrasting cases. One applicant comes here specifically to seek asylum and does so honestly as soon as he arrives. The other makes no claim for asylum for months or years until, having been found working illegally and been served with removal or deportation papers, he fends off removal by claiming asylum. Let us suppose that both claims are refused. Under the Bill, the Home Office would rightly be able to certify the second application under sub-paragraph (5)(c) in order to enable the appeal to be accelerated. Now, what do we find if we apply the noble Lord's amendment to these two examples? It would remove the Secretary of State's avenue to the tribunal in the second case just because the applicant had waited until he was about to be removed before making his asylum claim. That seems to me to be a very odd outcome.
In other words, asylum applicants would actually stand to benefit in this respect by withholding their asylum claim rather than declaring it honestly at the outset. Similarly, the amendment would mean that, where applicants had their claim certified because they had concealed their travel documents from the immigration officer or had sought to pass off a false passport as genuine, the Secretary of State would be denied access to the tribunal precisely because of the abusive circumstances in which the applicant had sought entry. Again, that strikes me as perverse.
I would remind your Lordships that many or most refused applications will not attract a certificate. I have also made clear that certification will not be automatic. We will not, for example, certify a claim if, despite meeting the certification criteria, it raises particularly novel and complex legal arguments on which there is no clear case law. I should also stress that the Home Office currently operates a sensible policy in terms of when to appeal to the tribunal. For example, we do not normally appeal to the tribunal purely on the grounds that the adjudicator found the appellant credible whereas the Home Office did not, providing the adjudicator had considered all the evidence fully and carefully. Indeed,

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in 1995, the statistics record the Home Office as having made only 40 applications for leave to appeal to the tribunal. I hope the House will resist the amendment.
Lord McIntosh of Haringey: My Lords, my deepest suspicions are aroused whenever I hear a Minister say that they will apply the provisions of the Act sensibly, as the Minister just did, or when they say that they will not automatically apply the provisions—in this case of sub-paragraph (5) in Clause 1 of the Bill. That means that they have drafted the Bill more severely than they mean to apply it, and that must be bad law. It must be bad for our legislative system if Ministers say, "We provide for the worst cases but we are not actually going to apply them". It means that we have executive discretion over the provisions which Parliament provides. We want Parliament to make reasonable and sensible provision—to use the Minister's words—and the executive should then apply the law that Parliament determined. It is a fundamental principle and one which was breached by the speech the Minister gave.
The noble Earl, Lord Russell, gave us the case of a robot playing chess against Catherine the Great. I give the Minister the credit of being the robot rather than Catherine the Great. She is repeating words that are written for her rather than words in which she believes. I do not accuse her of any of the other characteristics of Catherine the Great.
It was another stonewall answer to what was a perfectly serious amendment which deserved proper consideration. The Minister did not answer the case that was put; that is that, if the denial of appeal to the tribunal applies to the appellant, then it should also apply to the Secretary of State. The Minister gave a number of examples of what she called perverse effects, but those effects only arise because of the way in which the clause is drafted and because it is now possible, through a whole series of complementary sub-paragraph (5) in Clause 1, for the accelerated procedure to be triggered and, whatever the Government may say, for applicants to be denied rights to the full consideration of their application.
As I said at the beginning, I find that approach to this issue deeply unsatisfactory. In this case the Government are condemned out of the Minister's mouth, out of her brief. However, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Avebury Lord Avebury moved Amendment No. 22:
Page 2, line 32, at end insert ("unless, in claims certified under sub-paragraphs 4(b) or 5(c), in the opinion of the adjudicator the appellant has a reasonable explanation for the circumstances which led to certification.").
The noble Lord said: My Lords, Amendment No. 22 arises out of a discussion that we had in Committee on 30th April, to be found in cols. 1499 and 1500, where the Minister said that, if a certificate was issued by the Secretary of State and a case did go through the accelerated procedure, the adjudicator who heard the appeal could set the certificate aside. Then, presumably—though the Minister did not add this corollary—the case would be adjourned so that the
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asylum seeker had the same amount of time to prepare his case as if the certificate had never been issued and the right of appeal to the tribunal would then be restored.
I asked the Minister whether, since this power of the adjudicator was not made explicit on the face of the Bill, the Government would agree to an amendment on Report stage to give effect to her words. I was encouraged when she raised no objection to that proposal. As the Bill stands at present, sub-paragraph (7) of Clause 1 says without qualification that, if any of the conditions mentioned in sub-paragraphs (3), (4) and (5) apply, Section 21 of the 1971 Act shall not confer on the appellant any right of appeal to the Immigration Appeal Tribunal.
Apparently the adjudicator does not have any power to set aside the procedure. My amendment says that, if the adjudicator is of the opinion that the claimant has a reasonable explanation for producing a passport,
"which was not in fact valid and failed to inform the officer of the fact"—
sub-paragraph (4)(b)—or if he makes an application after the events referred to—sub-paragraph (5)(c)—then he or she will not forfeit the right of appeal. That seems to me to be what the Minister agreed in Committee.
My noble friend Lord Russell quoted from a briefing from UNCHR in which an interpretation was given of Article 31 of the Convention on Refugees. There seems to be a difference of opinion between my noble friend and the Minister on the interpretation of that article and particularly on the question of what is meant by a "penalty". My noble friend took the view that a penalty meant any disadvantage which the claimant for asylum might suffer, whereas the noble Baroness appeared to be interpreting it far more narrowly as some sort of punishment before a court, even though in a previous debate—col. 1120 on the first day of the Committee proceedings—she admitted that a person would suffer a penalty if he or she was put through the fast-track procedure.
When the adjudicator comes to consider a fast-track applicant who has a reasonable explanation for his or her failure to comply with the provisions mentioned, then one of the matters the latter can lay before the adjudicator—for example, if he made the application for asylum one day after he landed at Heathrow—is that he had reasonable grounds for not making the application immediately and was entirely within the terms of Article 31 of the Convention. That seems plainly to imply that a person may lodge an application shortly after and not at the instant of arrival in the country. The appellant would then be able to plead that he was within the terms of Article 31 and it would be a matter for the adjudicator to decide in considering whether to set the certificate aside. That may go part of the way towards meeting the dispute between my noble friend and the Minister because, if in the event the adjudicator did not see the force of an argument concerning Article 31, then the matter could subsequently be contested before the European Commission on Human Rights.
We should lay this provision down as a marker for adjudicators; that is, that they must be careful not to declare that a person should be liable to the penalties of

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certification if, by doing so, they will fall foul of the Convention and thus make the Home Office liable to yet a further defeat before the European Commission and Court. I beg to move.
8.30 p.m.
Baroness Blatch: My Lords, I shall be a little repetitive because I have addressed almost all the points that have been raised by the noble Lord in the course of moving the amendment, and in particular the Article 31 points which he mentioned. We have consistently made it clear that we expect asylum seekers to be candid with our immigration authorities on arrival. We accept in principle that there might be circumstances where a genuine refugee would need to use false papers in order to flee a country in which he had had a genuine fear of persecution.
Under the Bill, no adverse consequences arise for the asylum seeker merely because he presents an invalid passport provided that he informs the immigration officer of that fact. But what is unacceptable and casts doubt on his credibility is an attempt to pass off a false passport as genuine. It is the dishonesty inherent in that attempt which triggers the accelerated appeal procedure if, after proper consideration, the claim is refused. I do not accept that the Bill should anticipate there being "a reasonable explanation" for such conduct. After all, those presenting false papers to immigration officers are not doing so out of necessity, but, by definition, they have already fled the country in which they claim to fear persecution and have arrived at their chosen place of safety.
The same point applies to overstayers and illegal entrants who claim asylum to fend off removal. In our view it is wholly unacceptable to insert an open invitation to late applicants to provide an excuse for their failure to claim earlier. Of course the Bill does not compel the Secretary of State to certify the claim and we would not do so if, exceptionally, we were satisfied that the lateness of the claim resulted from a genuine change of circumstances, such as news from the country of origin that the applicant was wanted by the authorities. But it would have to be a pretty extraordinary and convenient coincidence if such news happened to arrive just when the illegal entrant was about to be removed after he had been here for perhaps several years. And if we were satisfied that such news had indeed arrived coincidentally, we would be likely to grant asylum or exceptional leave to stay. I recommend strongly against legislating for such coincidences. Almost every late applicant would inevitably seek to exploit "a reasonable explanation" proviso and that could frustrate the objective of accelerating such appeals.
I have given full and detailed reasons, both today and during earlier stages of the Bill, why we are unable to accept an amendment in these terms. Nothing that has been said by the noble Lord has changed my mind on that.
Lord Avebury: My Lords, if the noble Baroness will allow me to say so, she has not addressed the substance of the amendment at all. I do not think her mind was on
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what I was saying. I was not talking about the exercise of powers by the Secretary of State. I was talking about the right of the adjudicator to set the certificate aside. Perhaps I may remind the noble Baroness of the words she used on 30th April:
"If in the case put to the adjudicator there is good reason why he should not have received a certificate in the first place, the adjudicator could set the certificate aside".—[Official Report, 30/4/96; col. 1499]
Nothing could be plainer than that.
Baroness Blatch: My Lords, I have made it clear endless times in the course of our debates, both today and on other occasions, that adjudicators can set the certificate aside and can take a different view from the Secretary of State on issuing certificates. But I have addressed quite directly, in the course of speaking to this amendment and a similar amendment earlier, that we do not wish to put on the face of the Bill the fact that a reasonable excuse is a key reason for setting the certificate aside. The adjudicator will make up his or her own mind as to what reason he or she produces for setting a certificate aside.
Lord Avebury: My Lords, how on earth can he make up his mind to set aside a certificate when he is not given power to do so in the Bill? That is precisely the point of the amendment. I am only asking for the noble Baroness to agree that effect should be given to the words she herself used and which I have just quoted. If she really wants me to produce an example of the kind of case where I think she would be bound to agree that the adjudicator would like to exercise such powers, I can do so.
If the certificate is issued and then circumstances change in the country of origin between the issue of the certificate and the appearance of the applicant before the adjudicator, such that he would find himself at serious risk when he was sent back to the country of origin, the adjudicator might have very reasonable grounds for setting the certificate aside. But I do not want to spell out such grounds out on the face of the Bill. I am only trying to do what the noble Baroness suggested we had already achieved, which was to give the adjudicator power to set aside a certificate which has been presented to him by the Secretary of State. If the noble Baroness cannot see that point, I must take counsel by withdrawing the amendment and coming back with it at Third Reading after perhaps trying to argue with her privately to make her see the error of her ways. If she has not divined that her own words gave authority for the amendment, I do not quite know what I am going to be able to say to convince her.
Baroness Blatch: My Lords, the noble Lord will continue to argue with me over many things. I spend a good deal of my week every week responding to detailed inquiries from the noble Lord. I do not think much will change on that point. I have said that if the adjudicator believes that the certificate has been wrongly produced by the Secretary of State, the adjudicator can set that certificate aside. I have said repeatedly, not just to this amendment but to similar amendments, that we do not intend to put on the face of

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the Bill an excuse such as having a reasonable explanation. It would invite all the abuses that we have had endlessly from asylum seekers who use that as a mechanism for delay. We are not prepared to go that far.
Lord Avebury: My Lords, if I copy the noble Baroness's words precisely from her speech in col. 1499 of the Official Report of 30th April, where she said,
"good reason why he should not have received a certificate",
will she accept an amendment to that effect on Third Reading?
Baroness Blatch: My Lords, I would invite the House not to accept it.
Lord Avebury: My Lords, those are the noble Baroness's own words. I am absolutely flabbergasted. However, in the circumstances, I suppose I have no alternative but to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Dubs Lord Dubs moved Amendment No. 23:
Page 2, line 44, at end insert—
("'persecution' includes persecution either by the state or its agents or by persons acting independently of the state's authority, if the acts are knowingly tolerated by the authorities or if the authorities refuse or prove unable to offer effective protection."").
The noble Lord said: My Lords, the definition of "persecution" based upon the 1951 Geneva convention seems reasonably clear. Nevertheless, there have been doubts over recent years as to how various governments have interpreted the convention, particularly the definition of the word "persecution". This amendment seeks to make it clear that persecution is either persecution by the state or its agents or by persons acting independently of the state's authority, if the acts are knowingly tolerated by the authorities or if the authorities refuse or prove unable to offer effective protection. Where the state prosecutes individuals, the situation is reasonably clear. The doubts come when people claim to suffer from persecution not from the state itself but from other organisations or paramilitary groups that may be acting independently of the state and over which the state has no control.
The purpose of this amendment is to ensure that persecution by both bodies—by the state or by bodies independent of the state—should all be considered as persecution for the purposes of the Bill. The amendment is important because the European Union had a resolution some time ago which would mean that only those persecuted by the state could be recognised as refugees. That was a quite negative and restrictive resolution and one which would undermine the rights of many asylum seekers who, if they were sent back, would face the same persecution from which they had fled even if the acts of persecution were not themselves committed by the state.
In commonsense terms, it is a very simple proposition and it is easy to understand. The UNHCR understood that very well. Perhaps I may quote from a statement it issued in 1995:
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"To UNHCR, refusing refugee status to people who have been subjected to, or who fear, persecution by agents other than their own government is contrary to the text and to the spirit of the 1951 convention. Persecution which does not involve state complicity is still persecution. The Convention applies when the state is unable, as well as unwilling, to protect such people".
Nothing can be clearer than that.
Perhaps I may give the House one or two examples which will illustrate the situation. When I was with the Refugee Council we were very concerned about asylum seekers being returned to Zaire. I have not got the letter in front of me, but some years ago the then immigration Minister wrote that there was no persecution of asylum seekers who were returned by the Government of Zaire. But the letter went on to admit that there could be dangers from paramilitary organisations not under the control of the government. Although the British Government were sending people back, they were in effect conceding that there were dangers to returned asylum seekers from bodies which were behaving in an illegal manner as far as the state of Zaire was concerned and who were not under the control of the state. They were subjecting the asylum seekers to danger and persecution.
But Zaire is not the only country to which this might apply. The case of Algeria is very clear. Many individuals who do not abide by some Islamic customs and those associated with the West, have become targets for Islamic fundamentalism. Such people have fled to safety and yet that persecution is not from the Government of Algeria or its associated agencies, but from organisations which are hostile to its government. The Government of Algeria is simply unable to protect such individuals. Somalia and Liberia are two other examples where the collapse of state authority has meant that paramilitary groupings, not to do with the state directly or indirectly, have made life miserable for individuals and can cause persecution.
So the proposition is simple. Persecution can happen when the state causes it, or it may happen when organisations within a country that cannot be controlled by the state, persecute individuals. Both forms of persecution are very real and threatening. The purpose of this amendment is to make it clear that both such forms of persecution should be recognised, as has been recommended by the United Nations High Commissioner for Refugees. I beg to move.
Baroness Williams of Crosby: My Lords, I appreciate that the Minister may be unable to accept this amendment directly without further thought, but perhaps I may put before her a couple of matters for consideration which the Government may want to look at before we reach the end of the passage of this legislation.
It is clear that a number of governments are trying to escape some of the growing stringencies laid down by international conventions, by effectively using agents which they claim to have nothing to do with, to carry out operations that those conventions would make unacceptable and which would be outlawed by international law. Perhaps I may give an example which comes close to the hearts of everyone in this Chamber. That is the way in which General Galtieri's regime used death squads to destroy some of those who protested

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against the dictatorship of Argentina during and after the Falklands War. The Minister may remember some of the stories that were told at that time about the "Disparados". I know something about it because Dr. Raul Alfonsin who was the elected democratic successor to General Galtieri, pursued some of the cases against members of the military and others for killing some of the opposition and other voices of dissent in Argentina at that time.
They were able to argue that that had nothing to do with the government and that they were not responsible for the actions that were taken by a section of the military and some sections of the police. Clearly, the government were fully aware of what was going on and probably inspired it. Effectively, this group of people was in a sense able to pretend that it was not directly an agent of the government.
I appreciate that this is a complex issue. I am sure that at the moment the Government will not feel able to accept the amendment just like that. Persecution may well be a growing problem. It is characteristic of some of the central American regimes as well as of the previous regime in Argentina. It is important to try to find formulae and words that will bring some of these governments within the scope of international conventions which almost entirely address themselves to the official state apparatus. I suspect that this will prove to be a growing problem. I commend for the thoughts of the Minister and the Home Office the issue of persecution by those who are not nominally agents of the state, but in practice very often are their agents. It is going to be a growing international legal problem.
8.45 p.m.
Lord Renton: My Lords, I have been very interested by what we have heard from the noble Lord, Lord Dubs, and from the noble Baroness. But I must point out to them that the burden of proof as regards persecution lies on the person seeking asylum. The more we tie them down to detail the more difficult it will be for them to discharge that burden of proof. I suggest that from their point of view it is much better to leave the broad expression "persecution" there. It will make it simpler for them to prove their case. If we tie them down to this kind of restrictive detail the asylum seekers may find it hard to do so. Although I am one of those people who wish to see our asylum rules strengthened, on this occasion I have to point out that, bearing in mind where the burden of proof lies, this amendment would not be helpful.
The Earl of Balfour: My Lords, perhaps I may add one further word here. In the case of a civil war, surely there is already provision for persons who are persecuted under those conditions to be permitted to come to this country. I wonder whether this amendment is either necessary or desirable.
Baroness Blatch: My Lords, there is no universally agreed definition of an agent of persecution. But I hope that those supporting this amendment will be content when they understand our policy on this subject, which follows closely that set out in paragraph 65 of the
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UNHCR handbook on procedures and criteria for determining refugee status. Persecution is normally related to action by the authorities of a country. However, we also accept that, in some circumstances, agents of persecution may be groups or elements within the applicant's country of nationality, other than the authorities. The noble Baroness has eloquently explained how that can sometimes be covert rather than overt activity. As set out in the UNHCR handbook, an applicant may qualify for asylum if the persecution by those other elements is knowingly tolerated by the authorities or if the authorities refuse, or prove unable, to offer effective protection, and the other inclusion criteria of the convention are met. In other words, we agree precisely with the way in which the noble Lord, Lord Dubs, set it out.
I do not consider that a statutory provision is desirable or necessary. It is the convention itself which engages our international obligations and which should be reflected in statute. The interpretation of the term "persecution", and more widely of the 1951 Convention as a whole, rests ultimately with the higher courts and is best left to case law.
The point that my noble friend Lord Renton made is very apposite. We believe that a rigid statutory interpretation is undesirable. Moreover, the amendment is flawed. Because of the way it is drafted, the interpretation that it seeks to impose would not apply to all asylum claims, but only to those falling within the scope of the special appeal procedure.
The European Union resolution of December 1995 on guidelines for the application of criteria for recognition and admission as a refugee sets out a joint position agreed by all member states of the European Union. But the resolution is not binding on member states. I recognise that the guidelines acknowledge persecution by third parties only if it is encouraged or permitted by the authorities. I can assure the House that we have no plans to depart from our long held broader interpretation, which I have already described and which follows closely that set down in the UNHCR handbook. I hope that the amendment will not be pressed.
Lord Dubs: My Lords, I thank the Minister. I should like to say a word or two about the comments made by the noble Lord, Lord Renton. He said that it would be simpler to have the system without all these qualifications. I wonder whether that is true. I can see that in some situations that may be advantageous, but I fear that where there is doubt about whether a non-governmental act of persecution falls within the 1951 convention, particularly stemming from the European Union resolution, that doubt can be removed by making it clear in statute that the persecution may take one of two forms. Although I question whether that would simplify the process in these circumstances, the noble Lord may well be right on the general proposition.
I turn now to what the Minister said. If I were completely satisfied that the Government had throughout acted according to that policy, I would be delighted and there would have been no need for the amendment. However, there have unfortunately been a number of instances where, as far as I can tell, the

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Government have not acted fully according to the policy described by the Minister. I have already given an example relating to Zaire. I believe that that occurred a year and a half ago—it may have been a little longer—but it certainly did not happen so long ago as to come outside the Government's policy. The individual concerned was sent back to Zaire when the Home Office Minister—I believe that it was Mr. Charles Wardle at the time—admitted in a letter that other organisations, not under the control of the state, were liable to harass or threaten people who might return, but said that he was satisfied that the Government of Zaire were not indulging in such persecution. If the policy described by the Minister had been operating, I suggest that that individual would not have been sent back to Zaire.
However, the Minister has given assurances and we shall take her at her word. The Government's policy is now what the Minister has said that it is, and people who are being persecuted by individuals or organisations acting independently of the state's authority and which the state cannot control in any way fall within the definition of "persecution". That is fine. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 2 [Removal etc. of asylum claimants to safe third countries]:
Baroness Blatch Baroness Blatch moved Amendment No. 24:
Page 3, line I, leave out ("any of the provisions mentioned in subsection (2) below") and insert ("section 6 of the 1993 Act (protection of claimants from deportation etc.)").
The noble Baroness said: My Lords, in moving Amendment No. 24, I should like to speak also to Amendments Nos. 25 and 31. These technical government amendments remedy a minor technical defect in Clauses 2 and 3. They also make the third country provisions in the Bill easier to read.
At present, the Bill provides that, while an applicant can appeal against a third country certificate under Clause 3 of the Bill, he cannot bring an asylum appeal under Section 8 of the 1993 Act unless or until the third country certificate has been set aside by a special adjudicator. These government amendments adjust the Bill slightly so that an applicant cannot bring either an asylum appeal under Section 8 of the 1993 Act or a non-asylum appeal under the 1971 Act unless or until the third country certificate has been set aside by a special adjudicator.
The right of appeal under the 1971 Act on non-asylum grounds which would otherwise be available in third country cases would not generally be exercisable until after removal. But there would be a few cases where the asylum applicant could appeal on non-asylum grounds before removal, and this would represent an obstacle to quick removals. In practice, this would normally arise only where the applicant had an entry clearance for the United Kingdom. If the applicant had obtained that entry clearance while he was in his country of origin, it is most unlikely that we would seek to remove him on third country grounds. But if the
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applicant had obtained an entry clearance for the United Kingdom while he was in a third country then we would seek to make a third country removal.
It may assist the House if I give an example of the type of case we have in mind. Let us suppose that a Ghanaian national had been in France for a while and had a French residence permit which was valid for another year; while in France, he obtained an entry clearance to come to the United Kingdom as a visitor; when he arrived in the United Kingdom he was refused leave to enter; and he immediately claimed asylum. We believe that France should be responsible for considering the applicant's asylum claim. Indeed, under the Dublin Convention, France would be the state responsible for considering the asylum claim. It is undesirable that in a case of this sort a quick removal should be delayed by an appeal on non-asylum grounds.
The amendments also dispense with the need for the various cross-references to the 1971 Act and the 1993 Act contained in Clause 2(2). The Bill as currently drafted disapplies a number of provisions in the 1971 Act as applied by the 1993 Act, which would otherwise give appeals suspensive effect. This is no longer necessary, and deleting the cross-references makes the Bill significantly easier to read. I hope your Lordships will welcome that. I beg to move.
On Question, amendment agreed to.
Baroness Blatch Baroness Blatch moved Amendment No. 25:
Page 3, line 11, leave out subsection (2).
On Question, amendment agreed to.
Lord Dubs Lord Dubs moved Amendment No. 26:
Page 3, line 25, after ("territory") insert ("has given an undertaking that it will substantively consider the application and").
The noble Lord said: My Lords, we are now dealing with the situation of an individual being returned to what the Government consider to be a safe third country. Many safe third countries are on the continent of Europe. Typically and frequently they include Belgium and France. They are countries through which an asylum seeker has passed, possibly fleetingly, possibly in transit at an airport; nevertheless the individual has spent a little time there. Under Clause 2, the Government may fairly easily remove an asylum seeker to a safe third country. The difficult question that arises is: what is to happen when asylum seekers reach that safe third country? Under what circumstances is it appropriate to return them? Are there sufficient safeguards? My belief is that there are not sufficient safeguards. That is why I have tabled the amendment.
As the Bill stands, the Secretary of State must simply be of the opinion that everything will be all right if the individual is returned to that safe third country. The purpose of the amendment is to tighten those provisions. The Secretary of State's opinion alone will not do. That country must be asked to give an undertaking substantively to consider the asylum application. That is a minimal request. It means that if we return an individual to Belgium or France, that country will have given an undertaking to consider the asylum claim. If it does not give such an undertaking and if it is not prepared to consider the asylum claim, there is a danger

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that having been removed from Britain to that second country, the asylum seeker will then be removed from the second country to another country and so on down the line until he or she is forced to return to the original country where the persecution occurred.
It seems reasonable that before returning an asylum seeker the Secretary of State should have some assurance that that country will consider the application. I am asking for no more and no less than that. That is the purpose of the amendment. Without such an assurance, we run the dangers which I have already described.
I understand that appeals by asylum seekers against a third country removal have a high success rate of about 40 per cent. Clearly, therefore, within the existing statutory framework the adjudicators are concerned about what will happen to people when we remove them. It is wrong in principle and in breach of the 1951 Convention that individuals who have fled to safety cannot find a government which will consider their application. In removing people to safe third countries we run the risk of exposing asylum seekers to the danger that they will not be able to make a claim anywhere and will be forced to return to the country in which they were originally persecuted. It is a reasonable proposition and is entirely within the spirit of Clause 2, except that the clause is too weak. It is better that the Government get an undertaking from the third country than that the Secretary of State should simply believe that everything will be all right. I beg to move.
9 p.m.
Baroness Williams of Crosby: My Lords, I speak to this amendment and the associated amendment, Amendment No. 28. The noble Lord, Lord Dubs, has referred to the need for a clear undertaking. Amendment No. 28 makes that stricter by requiring that it be a written undertaking. This is squarely and absolutely within the terms of the Dublin Convention which was signed by Her Majesty's Government in 1990. That convention is binding upon us and other members of the European Community.
I should like to refer to two articles of that convention. I refer first to Article 11. With the leave of the House, I should like to read a short phrase which appears in that article. If in line with Clause 2 of the Bill a country asks another country, in this case a safe third country, to consider an application which has originally been lodged with itself, the convention provides,
"If the request that charge be taken is not made within the six-month time limit, responsibility for examining the application for asylum shall rest with the State in which the application was lodged".
I take it that means that if the application is lodged with the United Kingdom and the United Kingdom believes that the application should properly rest with a safe third country, in this case another member of the European Union, and that country refuses to take responsibility, under the terms of the Dublin Convention the responsibility rests with the United Kingdom, or in whatever other country the original application was made. That is what we have signed.
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The purpose of this amendment is simply to underline that commitment made by all those who signed the Dublin Convention. It does so by saying on the face of this Bill, in line with the Dublin Convention, that there must be an undertaking from that other state. The only difference between this amendment and the Dublin Convention is that the latter is tougher. The Dublin Convention lays down a six-month time limit within which that other state must accept responsibility. The noble Lord, Lord Dubs, has not gone so far and has not insisted on a six-month time limit, but we are by law committed to that time limit and undertaking.
In Article 5 of the Dublin Convention reference is made to written agreements between states, not written agreements with specific relationship to this particular instance but to the general proposition of written agreements to determine where responsibility lies. It cannot be said that that is either impractical or impossible, since our Government have acceded to it. In my view, this amendment cannot be rejected by the Government without rejecting what is laid down on the face of the Dublin Convention. I very much hope that the noble Baroness will feel that, in line with that convention, she can accept the amendment. I support the amendment.
Earl Russell: My Lords, when we considered this amendment in Committee the noble Baroness said that she could not accept it without making the whole procedure unworkable. I hope that she is wrong about that. If she is right it means that we cannot legally operate the procedure at all. I draw the attention of the noble Baroness to a passage from the preamble to the UN Convention on the Status of Refugees, not all of which passage she will find uncongenial. It states:
"The high contracting parties, considering that the grant of asylum may place unduly heavy burdens on certain countries, and that a satisfactory solution of a problem of which the United Nations has recognised the international scope and nature, cannot therefore be achieved without international co-operation".
It cannot be achieved without international co-operation because it does not work to have a game of pass the parcel, or pass the refugee around the world from one country to another. As many of us know, that process tends to happen at the expense of the airlines, and I can see no justice in that.
But that is not the only reason why it does not work. The major international obligation to which we are subject under the UN Convention is that contained in Article 33. I refer to the obligation relating to refoulement. The words of the article read:
"No Contracting State shall expel or return"—
that is "refouler" in French—
"a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality",
etcetera.
There is judicial authority in this country for the proposition that the words "in any manner whatsoever" include a billiard ball return via a series of third countries. It is those billiard ball returns which the amendment of the noble Lord seeks to prevent. If there is not an agreement in advance, for example if the

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country to which the asylum seeker is returned states that the individual is an illegal entrant and they will not consider his claim, the individual ends up being sent back from where he came. That is refoulement, and it is the greatest breach of the convention that there can be. The noble Baroness should either accept this amendment or withdraw Clause 2. I hope that she can accept the amendment.
Lord Renton: My Lords, I am sure that the noble Earl realises that Amendment No. 26 in his name is in conflict with Amendment No. 28 in the name of the noble Baroness. The amendment in the name of the noble Baroness requires a written agreement covering all cases, or the general situation. Amendment No. 26 requires an undertaking to be given with regard to the particular application. While I am not committed to either, in those circumstances I prefer the general to the particular.
We are dealing with deportations. I know from experience years ago when I was involved in these matters in the Home Office that deportation is always a delicate, difficult matter. We have to get it right before we ever do it. The conditions laid down in subsection (3), which the Secretary of State and those advising him would have to observe, are stringent enough. He has to take great care. It is suggested—I shall deal with the more sensible, if I may say so, amendment of the noble Baroness—that he should not deport unless there is:
"a written agreement between the government"—
of the country to which the person is to be deported—
"that that person will not be removed to another country"—
that means a third country—
"until any appeal process has been exhausted or abandoned … in accordance with the terms of the Dublin Convention".
I have to confess that I do not remember the terms of the Dublin Convention, but that may not be material to my argument. The conditions which the Secretary of State has to fulfil and certify, as set out in subsection (3), are stringent enough to ensure that no injustice is likely to be done. That is why I doubt whether either of the amendments is necessary. If one of them is thought to be necessary, as I say, I prefer that of the noble Baroness.
Baroness Blatch: My Lords, in Committee, I set out the Government's general position on agreements and undertakings in third country cases. It may assist the House if I restate our position. We are certainly not opposed to bilateral or multilateral agreements where they can be negotiated. The Dublin Convention will provide a mechanism for determining which member state is responsible for determining an asylum application lodged within the European Union.
Perhaps I may refer to the quotation used by the noble Baroness regarding the Dublin Convention. It does not mean what she deduced from it. It means that the UK must within six months approach the third country which it believes is responsible for considering the claim. The Dublin Convention provides a mechanism for considering disputes between member states about
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which state is responsible for considering a claim. The text of the amendment cannot be derived from the Dublin Convention.
The United Kingdom ratified that convention five years ago. We look forward to it coming into force as soon as possible. In Committee, in response to a question from the noble Baroness, Lady Williams, I explained that the Dublin Convention would not come into force until two months after it had been ratified by Ireland and the Netherlands. The indications now are that Ireland and the Netherlands appear to be on course to ratify the Dublin Convention during the forthcoming Irish presidency of the European Union. We all hope that that will be the case. In the meantime, removals to France are covered on a case-by-case basis by a bilateral agreement which we have negotiated separately.
The Government do not, however, accept that third country removals should not proceed in the absence of an agreement with the third country. If we were obliged to obtain undertakings from third countries on a case-by-case basis, we would be unable to operate an effective third country policy. We could expect third countries to refuse to take applicants back. Applicants would know that they could travel from country to country, before finally claiming asylum in the United Kingdom, safe in the knowledge that we would not return them to the safe country from which they had come.
Amendment No. 26 would prevent the removal of an asylum seeker to a safe third country unless that country had given an undertaking that it would consider his asylum claim.
We do not see that as a necessary condition in third country cases. If the third country refuses to consider the claim substantively, it does not follow that there has been a breach of the 1951 convention or that the asylum seeker has been placed at risk. There are circumstances where the third country to which we had removed an asylum seeker might refuse to consider that person's asylum claim substantively, but the asylum seeker would not be at risk.
Let me give three examples. First, suppose we removed an applicant to France, and France immediately granted the asylum seeker leave to remain, but did not consider his asylum application. The applicant might, for instance, secure leave on the basis of marriage to a French national. In those circumstances, the applicant would be perfectly safe in France. There is no reason why we should obtain an undertaking from a third country that it will consider the asylum claim rather than grant leave on a different basis.
Secondly, suppose we removed an asylum seeker to France, and France had evidence that the applicant had originally travelled to France via Germany. It would be perfectly proper for the French authorities to conclude that it was Germany's responsibility to consider the application, and send the asylum seeker back to Germany. That is a second clear example of a case where the third country would have refused to consider the applicant's asylum claim, without in any way putting the applicant at risk.

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The third example would be a case where the third country refused to admit the applicant and returned him to us. We hope that such cases would not occur too often. But the asylum seeker would not have to be exposed to danger and no breach of the convention would have occurred. These examples illustrate that there are a number of situations where the third country would not consider the asylum claim substantively but there would be no risk to the applicant. In the absence of binding multilateral agreements, the constraints imposed by the amendment would bring third country removals to a halt. Therefore, we cannot accept Amendment No. 26.
9.15 p.m.
Baroness Williams of Crosby: My Lords, before the Minister sits down perhaps I may make one point of clarification. She was absolutely right in what she said and I was wrong. I referred to the fact that application had to be made by the third country within six months. I did not wish to detain the House by going on to further parts of the articles, but I should have made the point that where it is clear that if the other country does not accept that application within three months, not six months, it rests with the state which originally made the request.
My point was that an agreement between two countries with a time limit would already apply in the case of the Dublin Convention. I was trying to get on the face of the Bill the fact that there would be a written agreement between two countries with regard to this matter before an asylum seeker would be able to be sent to a third country. In other words, his right of appeal would be upheld even if he were sent to a third country within the terms of the convention. I am sorry if I did not continue to the further subsection of Article 11.
Baroness Blatch: My Lords, the Dublin Convention is intended to provide a clearer system of determining who was responsible for considering the claim in the first place. Then it provides a mechanism to resolve disputes in those cases, which is important. However, even the argument put by the noble Baroness is not an argument for saying that in every case where there is to be a third country removal there must be at the outset, even before, one can remove somebody to a third country, a written undertaking that it will consider the claim.
Amendment No. 28 would introduce a requirement for the Home Secretary to certify that there was a written agreement between the United Kingdom and the third country in question that it would not remove the applicant until his United Kingdom appeal had been completed. The Government have repeatedly made clear that they believe that that would be an unnecessary and unrealistic requirement to impose. It is unrealistic because no third country would be prepared to accept such an obligation. We would not be prepared to do so if other countries asked us. The amendment would therefore also bring third country removals to a halt.
The requirement which the amendment would impose is in any case unnecessary. I remind the House that we are talking about removals to a country within the
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European Union or a non-European Union country with highly developed asylum procedures, not to the country in which the asylum seeker claims to fear persecution. There are circumstances in which it would be quite reasonable and proper for the third country to remove the applicant under its asylum procedures. If the safe third country had evidence that a fourth country—
Earl Russell: My Lords, I am grateful to the noble Baroness for giving way. Does she understand that the point at issue is not whether the country is generally safe but whether it will admit the particular asylum seeker to its processes?
Baroness Blatch: My Lords, no. As I understand it, the amendments concern accepting undertakings about what another country will do in the case of that person being returned. We are saying, first, that we do not believe that that is desirable or necessary and we believe that trying to get such assurances in advance would bring to a halt that part of the asylum procedure whereby we want to remove someone to a third country. The noble Baroness continues to cite the Dublin Convention. My understanding is that failure to respond within three months makes the third country responsible, not the United Kingdom.
There are circumstances where it would be quite reasonable and proper for the third country to remove the applicant under its asylum procedures. As I said, it also has obligations under international law. If a safe third country had evidence that a fourth country was in fact responsible for considering the asylum claim, it would be entirely proper for it to remove the applicant to that fourth country. Alternatively, if it considered an asylum application substantively under its own accelerated procedures, established that the applicant was not a refugee and refused asylum, it would be perfectly proper for it to initiate removal action. The third country would have established that the applicant was not in fact a genuine refugee, so there could be no breach of the non-requirement obligations under Article 33 of the convention. In both those examples the third country would have acted lawfully and responsibly.
The noble Lord, Lord Dubs, referred to the refugee legal centre, which claims that 40 per cent, of third country appeals are successful. Perhaps I may say, first, that 96 per cent, of third country refusals concern people who have entered the United Kingdom from a member state of the European Union. It is absurd that applicants should be able to delay removal by arguing at appeal the inherent safety of other European Union countries as safe havens for asylum seekers. The great majority of findings by adjudicators have supported the Home Office view that countries like France and Germany are safe.
The analysis of third country appeals by the Refugee Legal Centre last year does not support the claim that 30 per cent, to 40 per cent, of such claims are successful. On the contrary, the Report shows that 61 per cent, of third country appeals are dismissed and 22 per cent, are referred back for reasons other than inherent doubts about the safety of the third country.

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It confirms also our assessment that doubts about admissibility owing to the passage of time are a major factor in referrals. Indeed, our assessment is that that has now become the most common reason for referral. Only 16 per cent. of the Refugee Legal Centre's samples were referred back because of doubts about the safety of the third country.
While the Government believe that multilateral agreements can be useful and look forward to the ratification of the Dublin Convention, they are firmly of the view that in order to operate an effective third country policy it is vital that we can remove applicants without prior consultation provided that we are satisfied that the third safe country criteria in Clause 2(3) are met. I ask the House to reject the amendment.
Lord Dubs: My Lords, listening to what the Minister said, the plight of asylum seekers seems to be akin to chess pieces being pushed around a chess board. These are human beings like ourselves who have been, in many instances, caught in very unfortunate and dangerous circumstances in their own countries and who are seeking safety somewhere else in the world. The thought that they can be moved around like pieces on a chess board because that is the way in which the system works better seems to me to be at the very least insensitive to what some of these asylum claimants have gone through before they arrive in this country or somewhere else in Western Europe.
Therefore, I do not believe that it is absurd that there should be arguments and claims, because people are fearful, not of being sent from Britain to France, but of what is to happen to them ultimately. That is what the two amendments are about. It is the ultimate fate of those individuals which concerns them and which concerns us, not the fact that they may be sent to another country which is safe. The problem is that they may end up in a country that is not safe. That is the purpose of these amendments.
I shall now deal with some of the specific points. I agree that the majority of safe third country removals will, in the first instance, be to another member of the European Union. But according to the Minister's own figures, 4 per cent.—I hope I have that right—will be returned to a country outside the European Union. That is not many people but it is still a significant number. It means that there are 4 per cent. of asylum seekers who have come from a country outside the European Union who will be returned to a country which is not within the scheme of the Dublin Convention, and possibly with fewer assurances as to their safety than they would have if they were returned to a country like Belgium or France. That is one area of concern.
Secondly, reference has been made to the Dublin Convention. We do not yet have that convention. It has been awaiting ratification by the European Union for five years. The Minister said that she hopes that it will be ratified during the course of the Irish presidency. That is fine. For all its faults, I believe that the Dublin Convention will clarify matters as regards movement within European Union countries.
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But it is not appropriate for us to say that this amendment is not needed because the Dublin Convention will soon be in place. We cannot sit back and leave it to the Dublin Convention because that may not happen during the Irish presidency. It has been delayed on a number of occasions before and it is not reasonable to wait.
After all, the Government have similar provisions with regard to the housing of asylum seekers in two pieces of legislation before Parliament at present—the Asylum and Immigration Bill and the Housing Bill. That has been done because the Government wish to make sure that the housing aspect in relation to asylum seekers will be dealt with by the first piece of legislation to reach the statute book. The Government are backing both Bills to achieve certain ends, which I regret, and the space between the two Bills will be only a matter of weeks. Therefore, it is not right to say that we can sit back and wait for the Dublin Convention.
The Minister gave three examples, which I think were all hypothetical—and her excellent civil servants in the Home Office must have been working overtime to provide her with some of this material, I must say. She mentioned the situation of somebody being returned to France and the French Government would allow that individual to stay in France and not consider the asylum claim. I understand that and I suppose to that extent there is a technical defect in the amendment, but the spirit of the amendment would have been met if the wording had been along the lines of,
"has given an undertaking either that it will allow the person to stay or will substantively consider the application".
If that had been the only objection on the part of the Minister, it would have been easy for the amendment to be withdrawn and brought back at Third Reading with the necessary change made to it. Of course that is probably not the Minister's argument.
Her second example was that the individual might be sent from France to Germany because the individual had spent some time in Germany prior to going to France and then from France to here. I think that is the essence of our concerns, because it would be from France to Germany and then from Germany to where? The danger is, as I said earlier, that the asylum seeker may find that no safe country will consider his claim so that in the end he will be shuttled back to the country from which he first came. That is the problem. Otherwise, provided that the asylum seeker is safe, we are not going to become over-concerned, although there are some anxieties which subsequent amendments will deal with. However, we shall not be over-concerned provided the person is safe. The concern is entirely that the person may not be safe. What happens when he is sent from France to Germany and then from Germany elsewhere? The last solution was that he might be shuttlecocked back to us, and then we have the miserable situation of them being moved backwards and forwards with no government being willing to take them.
I am not happy about what the Minister has said. I am sorry she could not give us any comfort at all, because from what she said earlier the Government accept the basic principle that asylum seekers should have rights under the Geneva Convention. However, the

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Government have not taken the necessary and logical further step of saying that they will apply that principle to the situation of third country removals to provide the same sort of safeguard as is contained in Amendments Nos. 26 and 28. I am sorry about that but I think at the moment I have no option but to beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Dubs Lord Dubs moved Amendment No. 27:
Page 3, line 27, at end insert ("and
(d) that the person who has made a claim for asylum does not have close ties or connections with the United Kingdom.").
The noble Lord said: My Lords, I beg leave to move Amendment No. 27, which indeed is the amendment to which I have just referred. It really says that, if there is to be a third country removal, one of the reasons for not doing that would be if the asylum seeker claiming asylum here has close ties with this country. In other words, if the individual has a particularly close connection with this country—and I shall specify what they might be—then it would be appropriate for that individual's asylum claim to be considered here, notwithstanding the more general argument about third country removals, which concerns the previous amendment.
It seems to me it would be wrong, for instance, if the individual has a spouse living in this country, if the individual is an unmarried minor and has a parent in this country or if the applicant has an unmarried minor child in this country. There may be other connections; for example, if the applicant has had an education in this country, speaks the language or has other connections with Britain. It seems to me all these are some reasons why it would be appropriate and humane in exceptional instances to allow the asylum seeker to stay here notwithstanding the third country provisions. It is after all to the advantage of this country that asylum seekers who are allowed to stay here include people who have connections with this country so that they will perform well in terms of getting jobs, in terms of language, and so on. All this makes for the easier settlement of asylum seekers.
That should not be the only condition of course, because there might be asylum seekers who do not have such connections and who arrive perfectly legitimately in this country. But, where there are individuals who have close ties with this country, it seems to me almost absurd to remove them to France on what would to them, and to many Members of the House, seem a technicality. I beg to move.
9.30 p.m.
Lord Renton: My Lords, we are now dealing with a situation where a person's claim for asylum has failed, but we must remember that in making that claim the person may well have made an alternative claim from the outset to be allowed to stay in this country because of close ties or connections. I give way to the noble Lord.
Lord Dubs: My Lords, I thank the noble Lord for giving way. Perhaps I may clarify the matter. The point
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at issue is not that the asylum claim has been made and failed; the point at issue is that the asylum claim has not been allowed to be made and the individual is being removed without being allowed to make the asylum claim. That is the reason for saying that there should be exceptions as set out in the amendment.
Lord Renton: My Lords, I shall be interested to hear what my noble friend the Minister has to say on the matter. However, under this clause, I should have thought that the circumstances were different from those assumed by the noble Lord. In all such cases of persons having a close connection in this country, I should have hoped and believed that when they claimed for asylum mention would have been made of the fact that they had such a close claim connection which, very often, quite apart from asylum claims, is a good reason for being granted leave to remain here. Therefore, the proposed provision to introduce arrangements to allow for a last minute appeal seems to me to be inappropriate. However, I wait with interest to hear the response of my noble friend the Minister.
Earl Russell: My Lords, I believe that the noble Lord, Lord Renton, has misinterpreted the point at issue. We are dealing with Clause 2 and with safe third country cases. They are cases where someone comes to the United Kingdom, perhaps via France, Belgium or wherever, and attempts to claim asylum here but is not allowed to do so because he has passed in transit through a safe third country. It may only be Schipol Airport but it still counts.
The effect of the amendment would be to allow a person, regardless of the fact that he transited through a safe third country to make a claim for asylum in this country rather than there because he has close family members in this country. Keeping families together is not an objective to which I am indifferent. I do not believe that it can be done by coercion or force, but where people want to do it I believe that the state is extremely misguided to discourage them. In effect, I believe it to be an interference with family life and possibly even contrary to Article 8 of the European convention. The amendment would allow people to claim asylum in the country where their family lives and not in a country where it does not.
I have known cases where asylum has not been granted which have led to an immense amount of correspondence, in respect of which I must say that the noble Baroness and her department have been extremely helpful—indeed, I would like to thank them—as regards making arrangements for access to children where one parent lives in one EU country and the other parent lives in another. It is in everyone's interest to avoid that sort of complication. I am sure that the noble Baroness would not mind if I had to write her rather fewer letters.
Baroness Williams of Crosby: My Lords, before the Minister replies perhaps I may add one further consideration to the debate. As my noble friend said, there is a conflict here between the concept of maintaining the value and integrity of the family and the wish to find a safe third country to which people might go. I absolutely concur with my noble friend that there

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can be no better argument for the choice of a country to which an asylum seeker makes his or her case than there being close family ties which—dare I say it?—in the Dublin Convention are defined as a spouse, a child under 18 or a parent of someone who is under 18; in other words, a very tight family unit.
One might have thought that it would be inconceivable for one even to have to make such an argument as regards a spouse, a child or an immediate parent. Although the case is different because it concerns an illegal immigrant rather than an asylum seeker, the case of Mr. Tong who is to be considered for deportation after 27 years in this country, despite having a wife and child both of whom are English citizens, makes one fear that the Home Office does not take family ties very seriously.
I believe that Mr. Tong is currently living in a church in Cornwall. Simple common sense makes it almost impossible to believe that our country would deport a father of a minor child, tearing him away from his wife who is a legitimate citizen of this country, albeit I do not deny for one moment that he was technically in breach of the Immigration Rules. He has committed no crime beyond that.
I urge the noble Baroness to consider the point that we all make about the belief we have in the integrity of family ties. One of the most cruel things that one can do is to rip a family apart, sending one member to one country and another to another country. That is all the more so when people have little to tie them to life other than their family ties. I hope that the noble Baroness will reconsider her response to the amendment.
Baroness Blatch: My Lords, I am puzzled by the amendment. In Committee I gave a full account of our discretionary policy on family ties. Indeed, the noble Lord, Lord Dubs, described my statement as clear and helpful. He thanked me for my clear explanation of the way in which close family ties and other connections are respected by the Home Office. Therefore, I find it a little surprising that we are discussing the amendment again at this stage of the proceedings.
Under the concession that we operate, asylum seekers are not normally removed to a safe third country but are instead admitted into our own asylum procedures if they have close ties here. My account of the concession can be found in Hansard of 30th April at cols. 1587 to 1589. The details of what are regarded as close ties have also been published in Butterworths Immigration Law Service. We have made clear that we have no plans to alter that concession.
Other cases where removal to a third country may be waived, depending on the merits of the case, are where the applicant is an elderly or otherwise dependent parent, and where the family link is not one which would normally be considered but where there is clear evidence that the applicant is wholly or mainly dependent on a relative in the United Kingdom and there is an absence of any similar support elsewhere. In such cases, linguistic or cultural links with the United Kingdom and the third country could be taken into account.
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We believe that these are sensible and reasonable considerations to apply in individual cases.
The Secretary of State must, however, retain the flexibility to decide whether the circumstances of a particular case justify the exercise of discretion in the applicant's favour. In exceptional cases, there may be circumstances where it would be entirely appropriate to remove an applicant to a safe third country, even though they may have close ties or connections with the United Kingdom.
An example would be a non-European Union national who commits a criminal offence in another European Union country and who attempts to gain entry to the United Kingdom on asylum grounds to avoid prosecution. Even if the applicant could demonstrate close ties with the United Kingdom, it might well be appropriate to return him to the EU country rather than consider the asylum claim here.
I have explained to the House that our discretionary policy ensures that family ties are taken into account, while preserving the flexibility for the Secretary of State to exercise his discretion in cases where it would be desirable to make a third country removal, notwithstanding the applicant's close ties with the United Kingdom. Amendment No. 27 provides no scope for discretion in such matters. I ask the House not to accept the amendment.
Baroness Williams of Crosby: My Lords, before the noble Baroness sits down, can she say anything about the case of Mr. Tong? I appreciate that it does not fall fully within the terms of this provision, but it falls within the consideration of close family ties.
Baroness Blatch: My Lords, as the noble Baroness appears to know something about Mr. Tong, she will know that he has abused the system in this country. I hope that the noble Baroness is not condoning the harbouring of people who abuse the system. They should ensure that they press their case in the proper way. That person has not done that. I cannot read my note. I shall write to the noble Baroness.
Baroness Williams of Crosby: My Lords, I apologise to the noble Baroness. I know that I am pressing the good will of the noble Baroness. She said that she hoped I was not pressing the case of people who abuse our hospitality. That is a perfectly fair point and I wish to put that on the record. However, the man in question has married and has a child born in this country. We are talking about a period of 27 years. His child is young and common sense might suggest an act of mercy in this case which I would not normally ask for. Two British citizens will be left fatherless and husbandless respectively. I stress that I am talking about a period of many years.
Baroness Blatch: My Lords, the noble Baroness hinted at how long this case has been continuing. However, the figure she mentioned is not quite right. I understand this matter has gone on for 17 years. Mr. Tong married recently, and after deportation orders had been made. As the noble Baroness pointed out, the child is young. However, the concept of sanctuary no

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longer exists in law. Mr. Tong cannot expect to benefit from his continued defiance of the law by remaining in the Methodist Church in Cornwall.
Lord Dubs: My Lords, I see no purpose in trying to press the Minister further. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 28 and 29 not moved.]
Earl Russell Earl Russell moved Amendment No. 30:
Leave out Clause 2.
The noble Earl said: My Lords, this amendment seeks to remove Clause 2 from the Bill. At the same time I ask the House to consider Amendment No. 34—that Clause 3 should also be deleted—which is strictly consequential upon it. The noble Baroness said in response to Amendment No. 26 that it would bring third country removals to a halt. If that is so, third country removals must be brought to a halt for either they are done as part of a co-operative agreement, with undertakings that people will receive those we send to them, or they are manifestly unsafe under international law.
I have been trying for a long time to put across the point that what concerns us here is not whether the country is generally safe, but whether people will be admitted to the process. I have to say to the noble Baroness what the right reverend Prelate the Bishop of Guildford once said to her during a lengthy education Bill: it is not that we cannot get her to meet our concern; it is that we cannot get her to accept that this is our concern. It often happens with third country removals to EU countries that the person concerned is not admitted to the process and so their claim is never even considered.
Tonight the noble Baroness spoke dismissively about the Belgian practice of removing people to Zaire. However, one of her adjudicators has stated:
"It is of course well known that there are close links between Belgium and Zaire … (there) is sufficient evidence … to show that it is not safe for (this appellant) to be returned there".
She spoke somewhat dismissively about the case of ex parte Bostam. She argued as if that were an isolated case. However, that was not an isolated case. It arose from a general principle of Belgian law; namely, if you are applying for asylum in Belgium, you must do so within eight working days of arrival, which, of course, those who have been in transit to the UK and then been returned to Belgium very often have not. One of the learned judge's reasons for oversetting the adjudicator's recommendation was that he had not taken into account the evidence before him that the Belgian authorities had wrongly determined applications as manifestly unfounded because the applicants had been returned to Belgium on third country grounds. Mr. Justice Hidden found that removal to Belgium was unsafe because that sort of thing had happened before. It is not a single case. It is a systematic one.
It is also a regular problem in France that anyone returned to France under the third country procedure tends to be found to be an illegal entrant. That happened
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in the recent case of Mr. Ali Iqbal. On 3rd March 1996 he was returned to France under the third country procedure. He was immediately arrested at the Gare du Nord as an illegal immigrant. No attempt was made to investigate his claim. He was not allowed to speak to his lawyer. On the same day he was served with an expulsion order to Pakistan and an order of detention pending expulsion. That is a normal procedure when we send third country removals to France. Some of the features of Mr. Iqbal's case were extreme, but the basic principle of holding such people to be illegal entrants is normal. Under those circumstances I cannot see how a third country removal to France can possibly be regarded as safe unless we have an undertaking in advance.
In the case of Greece, there has been enough trouble for there to be a general UNHCR health warning on the return of third country applicants to Greece. A recent case in Italy also led the UNHCR to give a health warning. An applicant from Sri Lanka was returned by Italy, curiously, to Thailand, which is not a convention signatory and he therefore enjoyed no protection there under the terms of the convention. There are plenty of such cases. All those cases carry the risk of refoulement.
There is English judicial authority for the principle that this billiard-ball refoulement constitutes refoulement under the UN convention and is therefore illegal under international law—and, what is more, under an element of international law which, by the 1993 asylum Act, has been incorporated into British law. So unless we can be certain that the third country will consider the application, removal to a third country severely risks being illegal under international law. Noble Lords will see why I say that unless we can get undertakings from a third country, it is manifestly unsafe. The noble Baroness said that we cannot get undertakings; it will not work. Therefore I say that it is unsafe. I beg to move.
9.45 p.m.
Baroness Williams of Crosby: My Lords, I wish to pursue one matter so that it can be considered when the noble Baroness comes to respond. It concerns how Clause 2 is affected by the amendment the Government conceded on the issue of torture earlier today. Will the Minister tell the House what is the position in relation to those found to have a reasonable claim to have been tortured in a country with regard to their return to a third country other than the one in which they were tortured? I am talking about somebody who has satisfied the terms of the noble Baroness's amendment. How will such a person be treated in respect of being returned to a third country, especially in a situation where that third country has not given an undertaking that the processes will be carried through to their conclusion in that third country?
I mention this matter because of the very considerable evidence from, among others, Judge Tumim, as he then was, on his visit to Campsfield Detention Centre last year, giving clear indications that people who have suffered torture are particularly liable to great stress and trauma if they fear that they will be deported to another country, especially one about which they know nothing.

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Judge Tumim said in his report on Campsfield:
"The fact is that some detainees appear to be terrified at the prospect of being deported".
In the case of somebody who is about to be deported not to the country from which he came but to a so-called safe third country, that trauma will be very acute. This House has made very plain its special concern for victims of torture. It is our view on this side of the House that in a situation in which refouleinent could occur (my noble friend Lord Russell outlined that possibility) in the particular case of a victim of torture it amounts to a kind of additional torture itself. They are then faced with terrible uncertainties and fears about where their future may lie.
Perhaps the Minister would be kind enough, when she responds to this short debate, to tell us how she sees the impact of the first amendment to Clause 1 on Clause 2 with special reference to the sending on to a third country of a victim of torture.
Baroness Blatch: My Lords, perhaps I can begin with the final point. Clause 2 is not affected by the torture amendments. In third country cases we do not consider the substance of the claim; we rely on that country to do so. However, we will not return a person who is medically unfit to travel, so a judgment will be made about the specific medical state of a person who is seeking asylum.
In the Bostam case, Mr. Justice Hidden did not find that the removal to Belgium would be unsafe; only that there were unsatisfactory aspects of the earlier adjudicator's decisions upholding removal to Belgium.
Earl Russell: My Lords, I am grateful to the noble Baroness for giving way. Mr. Justice Hidden found return to be unsafe for that applicant. I have always said that "unsafeness" can only ever be in relation to the specific applicant. There is no such thing as a safe or unsafe country.
Baroness Blatch: My Lords, going back to what Mr. Justice Hidden found, he did not find that removal to Belgium would be unsafe; only that there were unsatisfactory aspects of the decisions of earlier adjudicators upholding removal to Belgium. His was a judgment based on procedural considerations, not on an assessment of the safety of Belgium.
The noble Earl referred to France in regard to Mr. Iqbal. The allegations relate to a single applicant and a single French port and do not in themselves provide cause for us to doubt the general safety of France. I understand that the person at the centre of the allegations is in Paris and his asylum application is receiving consideration from the authorities. Nonetheless, special adjudicators have shown that they are concerned about the allegations and we are presently investigating the precise circumstances of the case.
Allegations have been made before that France gives inadequate consideration to asylum seekers returned from the United Kingdom. We investigated one such case last year and found that the applicant had not in fact claimed asylum in France. Over the past year or so
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most adjudicators have upheld the Secretary of State's certificate in French cases, and in many of those cases where they did not the issue of concern was not the safety of France but the time which had elapsed since the applicant had arrived in the United Kingdom.
I referred in detail to the removal of asylum applicants to safe third countries at Second Reading, in addressing amendments at Committee stage and in speaking to amendments throughout today. I have defended the importance of Clause 2 to this Bill and it follows that, if Clause 2 is to be part of the Bill, I should defend that Clause 3 should stand part of the Bill because it gives a right of appeal against being sent to a third country. They are important to the Bill. I hope that they will remain part of it and therefore I oppose the amendment.
Earl Russell: My Lords, I hold the judgment in the case of Bostam. I can only say, without detaining the House for a very long time—which I do not wish to do—that I do not agree with the noble Baroness's reading of it.
In the case of Iqbal I will grant the noble Baroness that he is still in France. He, like others before him, has been extremely fortunate in his lawyer. His lawyer in fact tried to obtain a hearing for him. He was denied an application form for a hearing on the ground that Iqbal had no valid address in Paris, which was a prerequisite for obtaining forms. He had to get through a good many more obstructions of that sort before obtaining a hearing for Mr. Iqbal.
There is therefore a real difficulty, and the fact that Mr. Iqbal has been fortunate enough to overcome it and has a lawyer with enough vitality to obtain a hearing for his case in this country, makes him unusual rather than the practice of third country return to France safe.
I really cannot think that the noble Baroness has taken on board the risks inherent in third country procedure. I know it is late at night but one cannot bring back clause stand part on Third Reading. It has always been my view that if it is proper for the House to be in session, then in the last resort it must be proper for the House to divide. It is my last chance to do so and therefore I ask the opinion of the House.
9.55 p.m.
Division called.
The Lord Chancellor (Lord Mackay of Clashfern): My Lords, the Question is that Amendment No. 30 be agreed to. As many as are of that opinion will say "Content"; to the contrary "Not content".
On Question, amendment negatived.
10 p.m.
Clause 3 [Appeals against certificates under section 2]:
Baroness Blatch Baroness Blatch moved Amendment No. 31:
Page 4, line 2, after ("under") insert ("Part II of the 1971 Act (appeals: general) or").
On Question, amendment agreed to.
Lord McIntosh of Haringey Lord McIntosh of Haringey moved Amendment No. 32:
Page 4, line 4, leave out subsection (2) and insert—
("(2) A person who has been sent to a country or territory to which section 2(4) applies shall be entitled to be admitted temporarily into the United Kingdom in order to attend any hearing of an appeal brought by him under subsection (1)(a) of this section.").
The noble Lord said: My Lords, this is a probing amendment. I say that because I am very clear that, although the principle of the amendment is right, further qualifications will be necessary if the amendment is to work in practice. With this amendment we are trying to temper the wind to the shorn lamb to some extent. Under Clause 3, if somebody has been sent out of the country to a safe third country under the provisions of Clause 2, he has to conduct his appeal from that third country. All the evidence from the Council on Tribunals and everyone else is that the success and justice of an appeal is very much diminished if an appellant is unable to be present in person in order to conduct his appeal. The provisions of Amendment No. 32 are that,
"A person who has been sent to a country … to which section 2(4) applies"—
that is the safe third country—
"shall be entitled to be admitted temporarily into the United Kingdom in order to attend any hearing of an appeal".
The effect of that would be to reduce to some extent, but not totally, the possibility of the UK breaching its obligations under the United Nations convention on refugees. It will mean that applicants for asylum in the United Kingdom returned to a so called "safe" third country would have the theoretical ability to avail themselves of the protection of the United Kingdom if that third country in fact failed to admit them to its own asylum procedures. That is a matter that was considered in the last debate. We are attempting to protect the basic standards of due process in Clause 2 appeals.
The reason why I say that this is a probing amendment and not one that I can possibly submit to a vote in the House is that there are further qualifications which are necessary. First, a person granted leave to enter the United Kingdom for the purpose of attending an appeal brought under this subsection should not be entitled in turn to appeal against a refusal to vary that leave. Secondly, a person granted leave to enter the United Kingdom for the purpose should not be entitled to appeal against a subsequent decision of the Secretary of State to make a deportation order against him. Thirdly, a person granted leave to enter the United Kingdom for this purpose should not be entitled to appeal against the decision of the Secretary of State to set directions for his removal subsequent to the determination of that appeal. I am recognising that this amendment is technically defective in that a number of potential subsequent conditions in which further appeal would be necessary would have to be denied if the amendment were to work satisfactorily.
I see that the noble Baroness, Lady O'Cathain, is with us. I do not know whether she has been advised on this issue, but there is a possible risk that the transport sources open to asylum seekers may be loth to risk incurring liability under the Immigration (Carriers'
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Liability) Act 1987. I think that there would have to be a discretionary waiver to deal with the problem, stating that the passenger was arriving in the United Kingdom for the purpose of pursuing an appeal under Clause 3 of the Asylum and Immigration Act. Carriers could be notified of that waiver of liability by a standard information clause in writing, annexed to the notice of appeal carried by the passenger. I do not know whether the noble Baroness has been advised on this matter, but I am looking at the potential objections to my amendment, which I am moving because I want the Government to recognise the fundamental justice of having an appellant present in person at such an appeal.
I say that with some confidence because the Glidewell Report's final recommendations dealt with that. Recommendation X on page 20 states:
"At the least, if this clause is enacted, it should be amended to state that the appellant should have the right to return to the UK to be present at the appeal hearing and give evidence. This would help to ensure that the case was properly considered, although we take on board evidence which suggested that the individual might well have 'disappeared' by the time of the hearing".
The Glidewell Commission considered the matter in considerable detail and concluded that the right which is demanded in this amendment should be granted to appellants who have been sent to a third country under the provisions of Clause 2.
I repeat that we do not expect the amendment in its present form to be incorporated into the Bill, but this is an issue of great concern. It was raised in the Glidewell Report and deserves careful consideration by the Government. I beg to move.
Baroness Blatch: My Lords, Amendment No. 32 would allow an asylum seeker whom we had removed to a third country to return to the United Kingdom to pursue his appeal. The noble Lord may say that it is not his intention to table wrecking amendments—he has said that he will not press the amendment—but that is the effect of the amendment. If we remove an asylum applicant to a third country, but then allow him to return to the United Kingdom, the benefits of making a quick removal will have been lost completely. The question of whether the third country would take the applicant back would arise all over again. If this amendment was accepted, there would be no point in removing the suspensive effect of third country appeals, and the benefits of Clauses 2 and 3 would be lost. That may well be the intention.
Nor is the amendment necessary. The arrangements for legal advice and representation from abroad are perfectly satisfactory. Asylum applicants who are removed on third country grounds will be provided with forms which will give a full explanation, in a language they understand, of the reasons why they have been refused and how they should go about pursuing their appeal.
The Immigration Advisory Service and Refugee Legal Centre are funded to provide representation at immigration and asylum appeals under Section 23 of the Immigration Act 1971. The Immigration Advisory Service is already accustomed to representing people pursuing immigration appeals from abroad. Section 23

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funding will likewise be available for representing asylum seekers appealing from abroad against removal to a third country.
In addition, advice under the green form legal aid scheme will be available, subject to normal financial eligibility requirements. The scheme is available for advice on any matter of English law, regardless of whether the person seeking advice is in the country or outside it. There is no problem about the client having to sign a form in the presence of the solicitor whose advice is sought. Solicitors who have been franchised by the Legal Aid Board have delegated authority to accept postal applications under the green form scheme (including faxed applications). There is also provision for a friend or relative of the client to attend the solicitor in order to apply for legal advice on the client's behalf.
A third country appeal is significantly different from a substantive asylum appeal. The issue in a third country case is not whether the appellant's account of any ill-treatment he has suffered in his country of origin and of his reasons for claiming to fear persecution is credible. The issue is whether the third country is safe, and the certification conditions contained in Clause 2 are satisfied.
The case usually revolves around a discussion about the country's asylum procedures and its legal system. The amendment would underline the objective of Clauses 2 and 3 which is to enable us to make quick removals to third countries while those countries are still prepared to take back the asylum applicant. If the applicant were subsequently allowed to come back to the United Kingdom a second time it is highly unlikely that the third country would take him back again. The amendment is unacceptable. Although it is not being pressed tonight, I will continue to oppose it if it is returned to at the next stage of the Bill.
Lord McIntosh of Haringey: My Lords, the Minister can hardly describe as a wrecking amendment something which has been introduced as a probing amendment. We were seeking information and clarification from the Government. Although we do not like the clarification that we have been given, certainly we have been given clarification. It is now apparent that under Clauses 2 and 3 the appeal is no longer a substantive appeal on the immigration application. The Minister now tells us that it is an appeal on the issue of whether or not the third country is safe. The whole thrust of Clauses 2 and 3, which provide for the removal of asylum claimants to safe third countries, is very different from that which had been quite widely supposed.
Baroness Blatch: My Lords, I am surprised that the noble Lord did not realise that that was what Clause 3 was about. The noble Lord has been reading Clause 3 since the outset of the debates on this Bill. Clause 3 has only ever been concerned with appeals against the measures in Clause 2.
Lord McIntosh of Haringey: My Lords, it is true that Clause 3 is very limited in the scope of the appeal. But Clause 3 must be read together with Clause 2. We
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have to consider the apparent fact that Clause 2 is not intended to be a way of speeding up procedures or providing a more economical way of dealing with asylum applications. It is a way of sweeping asylum applications under the carpet in such a way that they can never be brought out again. I read Clause 3 exactly as the Minister said. But I take this opportunity—and I move this amendment deliberately—to bring into the open the severe limitations on the appeal procedure which is provided for in Clause 3. There is no confusion in our minds or any difference of understanding. We want to ensure that Hansard recognises the position.
The Minister went on to say that there were a number of ways in which an appellant from a third country could be represented and take part vicariously in the appeal procedure. She spoke about friends and relatives in this country and the availability of legal advice. But the experience of all appeal tribunals of this kind, not just in the immigration and asylum field but throughout the scope of tribunal procedure, is that where the appellant is not able to take personal part in the proceedings he is likely to fare worse than if he is able to be present. Even if the appeal under Clause 3 is as limited as it appears to be, it still ought to be a fair appeal and one in which the appellant has a reasonable chance of success. An appeal in absence does not give a reasonable chance of success.
I do not regret moving this amendment, despite the necessary qualifications which would have to be made if it were to be agreed. It is right to point out that Clause 3 provides very much less protection against the activities provided for under that clause than might otherwise be supposed. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
10.15 p.m.
Lord Dubs Lord Dubs moved Amendment No. 33:
Page 4, line 23, at end insert—
("( ) For the avoidance of doubt, directions under section 19(3) of the 1971 Act may include directions—

(a) that an entry clearance be issued notwithstanding that any requirement of the immigration rules has not been met;

(b) that a laissez passer or other travel document be issued;

(c) that the return to the United Kingdom of the appellant and any family members removed as his dependants be arranged and that the Secretary of State bear the cost thereof if there is evidence that the appellant would be unable to pay the cost himself;

(d) that no further certificate under section 2 be issued in respect of the appellant or any dependant of his; and

(e) that the Secretary of State uses his best endeavours to locate an asylum seeker who has won an appeal under this section in order that he be invited to return to the United Kingdom.").

The noble Lord said: My Lords, perhaps I may emphasise that this is a probing amendment. As I recall, it was not debated in Committee. In that sense, we are seeking the Minister's response to issues which were not discussed in this House at earlier stages of the Bill.
I appreciate that because it is an amendment to Clause 3 it may be narrower in its relevance than it would be if it applied to all appeals. To that extent I appreciate that I am after wider comments from the

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Minister than those merely in relation to Clause 3. The point at issue is that when an adjudicator allows an appeal, he can normally give directions to give effect to that decision. That, I believe, stems from the 1971 Act. Those directions can be given only to the Secretary of State or his officials.
What is not clear, and where I am seeking clarification from the Minister, is as to what powers the adjudicator has where an appeal against a decision to remove succeeds after the removal of the individual; that is to say, what powers does an adjudicator have to recommend that help be given to the successful appellant to be able to return to this country, the appellant having been removed before the result of the appeal? It may be a matter of documents or entry clearance, but it may also be a matter of compensating the appellant so that the appellant can make the journey back to this country in circumstances where he would not normally be able to afford to do so.
There is a range of circumstances where the adjudicator might be able to give directions so that action is taken to help the appellant, as indicated in the points in the amendment. I repeat, it is a probing amendment to see what is the Government's response, and whether the thrust of the amendment is clear. I beg to move.
Baroness Williams of Crosby: My Lords, I commend the efforts of the noble Lords, Lord McIntosh and Lord Dubs, to find out just what is the meaning of the right of appeal under Clause 3. With Amendment No. 33 what they are clearly trying to do is to establish whether, if someone has a successful appeal from the third country to which they have been sent, the consequences of that appeal will be recognised by the UK.
We have already discovered that the likelihood of people being able to pursue an appeal from another country will be difficult, because they will not have the kind of help that the Minister described a few moments ago in her response to the noble Lord, Lord McIntosh. We now have what we might call the minimal position of what happens if the appeal is successful and whether it can be made real. It would be helpful to know whether, if an appeal is successful, the necessary material and other steps can be taken to ensure that that appeal becomes not just a legal victory but a real victory in terms of the person concerned being permitted to return to this country, and to live here according to the terms of the adjudicator's decision.
Baroness Blatch: My Lords, Amendment No. 33 purports to clarify the directions an adjudicator could issue in the event of a successful appeal, but it strays into territory which is not properly the subject of an adjudicator's directions. The noble Lord, Lord Dubs, said that he would like to know whether the adjudicator has powers to recommend. I can give him an absolute assurance that he does have powers to recommend, but what he does not have are powers to direct, which of course is the subject of the amendment.
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Section 19 of the Immigration Act 1971 provides that if an adjudicator allows an appeal, he:
"shall give such directions for giving effect to the determination as he thinks requisite, and may also make recommendations with respect to any other action which [he] considers should be taken in the case."
For the purposes of this debate the distinction between directions and recommendations is important. The Secretary of State is required to comply with directions, but he is not bound by an adjudicator's recommendations. Directions should be confined to measures which are necessary to give effect to the decision to allow the appeal. Any steps which the adjudicator thinks are desirable in a particular case, but which are not essential to give effect to his decision, are properly dealt with by means of a recommendation.
Amendment No. 33 seeks to blur this distinction. It would give an adjudicator the power to make directions which go well beyond what is required to give effect to the decision to allow an appeal. The Government cannot therefore accept the amendment. We are, however, partly sympathetic to the thinking behind it. I shall run through each of the matters dealt with by Amendment No. 33 in order.
I appreciate the intention behind limb (a) of the amendment. If the successful appellant was a national of a country for which a visa requirement was in force, a carrier would be liable to a penalty under carriers' liability legislation if it brought the applicant to the United Kingdom without some form of waiver. We have made it absolutely clear that successful appellants will be allowed to return and if necessary a visa waiver would be issued. The adjudicator could require this under Section 19. In practice, it will often be possible for the applicant to return to the United Kingdom without such assistance; for example, if he is a visa national. I am sure that that will come as a relief to my noble friend, who is no longer in his seat.
However, it would not be appropriate to issue an entry clearance to a successful appellant, as the amendment envisages. The holder of an entry clearance would normally be granted leave to enter, but a successful appellant who returned to the United Kingdom would not be granted leave to enter unless he qualified under the immigration rules. We would expect him to lodge a fresh asylum claim at the port of entry when he arrived there. He would normally then be granted temporary admission while his asylum claim was considered.
The second limb of the amendment is concerned with the issue of travel documents to a successful appellant. As I have just indicated, we will issue a travel document where necessary and the adjudicator will have powers to issue a direction to this effect.
Paragraph (c) of the amendment provides for a direction requiring the Secretary of State to arrange the successful appellant's passage back to the United Kingdom and to bear the costs. In the great majority of cases, it should be possible for the individual concerned to make his own way back to the United Kingdom. We accept that there might be wholly exceptional cases where an adjudicator believed that a successful appellant had no funds and no means of

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returning to the United Kingdom. If so, the adjudicator could direct the Secretary of State under Section 19 of the 1971 Act to make the necessary arrangements, including the financial arrangements, which were required to give full effect to his decision to allow the appeal. No further legislative provision is required to clarify the point.
I cannot, however, accept that it would ever be appropriate for an adjudicator to direct that no further certificate under Section 2 should be issued in respect of a particular appellant. The adjudicator would not be able to give such a direction under the Bill as drafted and we do not favour an amendment to enable him to do so. The fact that an adjudicator has found a particular country to be unsafe for the applicant has no bearing on whether there is a different safe third country to which that applicant could be sent.
For example, an adjudicator might find that Italy was not safe for a particular applicant. The appellant would be allowed to return to the United Kingdom. This would give full effect to the adjudicator's determination. It is then for the Secretary of State to decide how to deal with the applicant's asylum claim. And it might then become apparent that the applicant was clearly admissible in the Netherlands, for instance, because he had a valid residence permit. In these circumstances, it might well be appropriate to issue a further certificate under Section 2.
The final limb of the amendment would state that an adjudicator could properly direct the Secretary of State to use his best endeavours to find the successful appellant and invite him to return to the United Kingdom. I cannot accept that such steps would be either necessary or practicable in order to give effect to an allowed appeal. The onus must be on the successful appellant to keep in touch with the authorities in this country. It would be extraordinary and unprecedented to impose such an open-ended and unacceptable obligation on the Secretary of State. It has always been the position in immigration cases that the onus is on the successful applicant to take advantage of the decision or determination in his favour.
I know that the noble Lord is not intending to press this matter and that it was for the purpose of clarification. I hope that my response has been helpful in that respect.
Lord Avebury: My Lords, the Minister said that a person who required an entry certificate would not be granted one but would be expected to apply again at the port of entry and put in a new application for asylum. How does that person get on an aircraft or other means of transport because, by definition, he has a refusal stamp in his passport and when he goes to book a ticket, the airline or other carrier will obviously decline to take him as a passenger fearing that if it does so it will be surcharged on refusal? Will the Minister explain how the successful applicant who is in Italy will be able to get on an Alitalia flight in order to come to London without an entry certificate?
Baroness Blatch: My Lords, I repeat that part of what I said in my response to the noble Lord, who
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clearly missed it. Paragraph (c) of the amendment provides for a direction requiring the Secretary of State to arrange the successful applicant's passage back to the United Kingdom and to bear the costs. In the great majority of cases, it should be possible for the individual concerned to make his own way back to the United Kingdom. But we accept that there may be wholly exceptional circumstances where the adjudicator believed that a successful appellant had no funds and no means by which to return to the United Kingdom. If so, the adjudicator could direct the Secretary of State, under Section 19 of the 1971 Act, to make the necessary arrangements, including the financial arrangements required to give full effect to the decision to allow the appeal. No further legislative provision is required to clarify the point.
But, beyond that, what happens to the person once he is in this country as regards rights of entry is a matter for the Secretary of State and not a matter for the adjudicator.
Lord Avebury: My Lords, I am sorry but the Minister did not understand what I was asking. I am asking about the remarks which she made when she said that an entry clearance could not be a subject of direction but that the successful appellant had to come back to this country and lodge a fresh application for asylum at the port of entry. How would that person be able to book a ticket with any of the carriers when the carriers would know that that person had been refused leave to enter the United Kingdom on a previous occasion and would therefore be in fear of being surcharged if that person was again refused leave to enter on the second arrival at the port of entry?
I take the example which the Minister gave that the person was sent to Italy and the adjudicator found that Italy was not a safe place for that person. Therefore, he seeks to get on a plane in Rome to come back to London. He has the money to pay for the ticket—it is not a question of money—but, when he goes into the Alitalia ticket office and the staff there look at the passport and see the stamp of refusal, he will not be issued with a ticket because of the fear of being surcharged. How does that person get back to Heathrow or wherever he came from in the first place in order to lodge the fresh application for asylum?
Baroness Blatch: My Lords, with the leave of the House, I am sorry if I misunderstood the point made by the noble Lord. In that case, he would need a visa waiver and we would issue one.
Lord Dubs: My Lords, that is extremely helpful not only in the original speech which the Minister made but also the further point of clarification which she made in reply to the noble Lord, Lord Avebury.
I thank the Minster for clarifying an area in which there was doubt and for doing so in such an extremely helpful way. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 34 not moved.]
Lord McIntosh of Haringey Lord McIntosh of Haringey moved Amendment No. 35:
After Clause 3, insert the following new clause—
ADJUDICATOR'S RECOMMENDATION
(".—(1) In Schedule 2 to the 1993 Act, after paragraph 3 there shall be inserted the following paragraphs—
"3A. Where a special adjudicator confirms a refusal, variation, decision or directions against which a person has appealed on the grounds mentioned in subsections (1) to (4) of section 8 of this Act, he shall determine forthwith whether there are other circumstances which, in his opinion, justify allowing the person to enter or not requiring the person to leave the United Kingdom.
3B. If a special adjudicator determines that there are such circumstances, he shall direct that the Secretary of State shall grant leave for the person to enter the United Kingdom if he has not already been granted such leave and to remain in the United Kingdom for as long as those circumstances shall continue to exist."
(2) In paragraph 4(1) of Schedule 2 to the 1993 Act, after the words "section 8 of this Act", there shall be inserted the words "and paragraph 3A of this Schedule".").
The noble Lord said: My Lords, in a sense, Amendment No. 35 could have been taken with Amendment No. 33, because it refers to the same kind of issue, but this amendment must come after Clause 3 rather than as part of it because it refers to the role of the special adjudicator and what happens when he confirms a refusal, variation, decision or directions against which a person has appealed.
The position at the moment is that the adjudicator can allow an appeal only, as I understand it, if he finds that the appellant is a refugee as defined by the 1951 convention. If the adjudicator finds that the appellant qualifies to stay here under any other international treaty, such as the European Convention on Human Rights, he cannot allow an appeal because that is not within the scope of his terms of reference, even if he believes that the appellant would be likely to suffer if removed for anything other than a convention reason or if he believes that the appellant should be allowed to remain here for other compassionate reasons, such as ill health. In other words, the exceptional leave to remain provision, which, after all, accounts for the majority of people who actually stay in this country after going through the asylum claim procedure, is outside the scope of the special adjudicator. We are suggesting that the special adjudicator should be given power to direct that the Secretary of State should grant leave for the person to enter the United Kingdom if he has not already been granted such leave, and to remain here so long as the special circumstances continue to exist.
The Government will no doubt tell us that it is rare for the Home Office to reject the view of the special adjudicator, but I understand that there are a significant number of cases in which the Home Office does reject the view of the special adjudicator. That can and does lead to judicial review. So what we are saying is that it is logical and rational for the special adjudicator to have the full range of options, which includes a direction that leave be granted. We recognise that if the special adjudicator does so the Home Office can appeal against that judgment, but we believe it is necessary, particularly in view of the prospect of an increasing
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number of accelerated cases, that these additional powers for the special adjudicator should be granted. I beg to move.
Baroness Blatch: My Lords, this amendment would represent a fundamental and unacceptable departure from the existing role of the special adjudicator. The adjudicator's role is to oversee the correct application of immigration and asylum law, as set out in primary legislation and the immigration rules. In other words, the adjudicator is there to apply the rules fairly. Applicants appeal to the adjudicator on the grounds that their rights under the legislation have not been complied with. The exercise of discretion in favour of applicants who do not meet the statutory immigration or asylum requirements is the proper preserve of the Secretary of State. This is because discretion has to be exercised in the context of the Secretary of State's responsibility for maintaining the effectiveness and integrity of immigration control. Individual compassionate factors always have to be weighed against that wider responsibility. Adjudicators have no such responsibility, and that is why they have the power to issue binding directions only in cases where an appeal is allowed and only for the purpose of ensuring that a determination based on the rules is given effect.
The amendment is in any case unnecessary. It overlooks the fact that the question of whether exceptional leave should be granted is already built into the initial consideration process. Anyone refused asylum has had the case for exceptional leave fully examined. Moreover, the adjudicator can of course, if he dismisses the appeal, make a recommendation, including the recommendation of exceptional leave. I can assure the House that all such recommendations are carefully considered. Furthermore, it is our current policy that only officials at senior executive officer level or above are normally authorised to decide not to comply with recommendations in asylum cases.
If the adjudicator's recommendation arises from exceptional compassionate circumstances which have not previously been considered and which would genuinely merit the exercise of discretion outside the immigration rules, then we would act upon a recommendation. We believe that that is a perfectly reasonable policy. Therefore, I again urge noble Lords not to press the amendment.
Lord McIntosh of Haringey: My Lords, the last part of the Minister's reply was especially interesting. Of course, it is common ground between us that the adjudicator can make recommendations and it is valuable to have on the record the assurance that, if there is any question of the recommendations not being accepted, it will be a senior immigration officer who will be responsible for such a decision. The Minister is right to say that the integrity of our immigration procedures is the responsibility of the Secretary of State, but our purpose in moving the amendment was to clarify the concerns about the powers of the special adjudicators which, I have to say, have been expressed not only in this amendment but also by adjudicators and special adjudicators in evidence to the Glidewell Panel.

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It have been a valuable to have elicited that answer. I am not claiming that we have elicited anything new, but the Minister has been very clear and helpful in her response. In the circumstances, therefore, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Avebury Lord Avebury moved Amendment No. 36:
Before Clause 4, insert the following new clause—
EVIDENCE OBTAINED USING X-RAYS
(". In any proceedings under the 1971 Act, the Immigration Act 1988, the 1993 Act or this Act, it shall not be admissible for evidence to be introduced as to a person's age which is derived from the use of X-Ray technology.").
The noble Lord said: My Lords, the amendment arises out of the discussion that took place on 30th April concerning the arrival in this country of unaccompanied children, the problem of how the ages of those children should be determined and the remarks that were made then by the right reverend Prelate the Bishop of Ripon concerning the use of x-rays for that purpose. I ventured at that time to point out that we had long ago discontinued the practice of using x-rays for age determination in immigration control. Since then I sent a copy of a report which my office published in 1981 to the right reverend Prelate and also to the Minister.
The Minister was kind enough to reply in detail saying that the Home Office and the Foreign Office had long discontinued the use of these techniques. However, they continue in private practice, as I confirmed by discussing the matter with the noble Lord, Lord Winston, who is a medical practitioner. When we produced that study in 1981 the purpose was to remedy the defects in the Yellowlees Report on the medical examination of immigrants, which had been published by the Home Office in 1980, in so far as that report referred to the risks inherent in the use of radiological examinations of children and the errors arising from varies techniques of age estimation based on x-rays.
Because there was no limit below which exposure to x-rays gives rise to a zero risk, we found that the use of x-rays, especially on children, is avoided wherever possible. According to one authority:
"We … have a large amount of data—much of it human—showing a statistically significant increase in a number of types of malignancies as a consequence of exposure to low doses of ionising radiation".
As a result of much evidence of that kind, the BMA passed a resolution at its annual meeting in 1979:
"That this meeting considers that medical examinations to determine virginity, and radiological examinations, carried out solely for administrative and political purposes, are unethical and instructs Council (a) to convey this view to the General Medical Council and (b) to make the strongest possible representation to the Government to ban these practices".
In addition, the World Health Organisation has condemned the use of x-rays for administrative uses because it exposes people to unnecessary radiation risks. The authors of the most advanced system for assessing skeletal maturity, Tanner and Whitehouse, had not updated their control group since the 1950s, because, in their words,
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"current British regulations forbid the x-raying of hands of healthy children … Our norms therefore remain those of [26] years ago".
The norms of Tanner-Whitehouse were based on a 1950s sample of British children of slightly under-average family income. Therefore, the use of the skeletal age of those children to determine the chronological age of applicants from third world countries was subject to two major sources of error. First, since the 1950s general standards of nutrition and skeletal maturity will have changed drastically. Secondly, there would be enormous difference between the rates of skeletal maturity in Britain and those various third world countries. From many studies it was concluded that the error inherent in the use of those skeletal techniques for age determination was something like plus or minus two years.
Not only were those techniques dangerous to the children, they were also grossly inaccurate and useless for the purposes for which they were intended. For that reason the Home Office and the Foreign Office discontinued the practice.
I was disconcerted to find from the discussion on 30th April that the practice was still continuing in the private sector. I believe that we should take the opportunity that the Bill presents to insert a provision which prevents the use of evidence based on X-rays in any procedures on immigration controls from the 1971 Act onwards. By doing so, we give effect to the BMA's recommendation, made as long ago as 1979. I beg to move.
Earl Russell: My Lords, I congratulate my noble friend on the persistence with which he has pursued this issue. Each time I have heard him, I have found his case more persuasive. He has today presented a very strong case indeed, especially in the light of the opinions of the BMA.
What is unusual, and very welcome, is that we are not hearing any confrontation between the two sides of the House. We are hearing suggestions about what might be done to control unwise actions in private practice. Indeed, I understand that there is no conflict between my noble friend and the Home Office on this point.
This issue is worth thinking about especially in the light of what my noble friend said about the margin of error. The Minister may not consider primary legislation the ideal medium, but if the noble Baroness has any suggestions for constructive action they will be very welcome. It will be very nice indeed if we can reach agreement on something.
Lord Renton: My Lords, I hope that it is relevant to bear in mind that the people who try to deceive by mis-stating their age are not children. They are bound to be adults who are not very old and are trying to claim special treatment because they say they are children. It is difficult for the immigration officers, medical people,

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or anyone to say what those people's ages really are. If the X-ray can decide the matter, we should keep an open mind on the issue.
Baroness Blatch: My Lords, as I said during the earlier stages of the Bill, where there is a dispute about whether an asylum claimant is under 18 years of age, the burden of proof must lie with the applicant.
One option for the applicant is to seek an independent age assessment by medical experts. If such a report is obtained, it will be given full and careful consideration. The Home Office does not normally commission such reports and I can confirm to the House that we do not employ X-rays for age assessment. Entry clearance officers at British diplomatic posts abroad do not employ this technique either. But it is not for the Home Office to say what methods should or should not be employed by an applicant's doctor.
On the methods used, my noble friend is right. It must be a matter for the applicant and his legal representatives to discuss with their chosen medical adviser. Most importantly, it is for the doctor involved to adhere to current best practice and to abide by the latest guidelines and instructions. If X-rays are being used inappropriately, that is a problem which needs to be addressed in a wider context rather than solely in relation to immigration.
I hope my assurance that the Home Office does not employ X-rays for age assessment will reassure the noble Lord, Lord Avebury, and the noble Earl, Lord Russell. However, I do not think it is appropriate to address their concerns in this way in this Bill.
I have listened carefully—not just tonight but also on other occasions—to the views expressed about the use of X-rays. I understand the concerns which have been raised. However, I am not persuaded that this Bill is the appropriate vehicle for dealing with those concerns. However, I would be happy to consult with my honourable friend John Horam, the Parliamentary Under-Secretary of State for Health, as to whether further guidance is required.
10.45 p.m.
Lord Avebury: My Lords, I am much obliged to the Minister for that helpful reply. I look forward to consulting with her about the discussion she will have with Mr. Horam. If there is a degree of risk—that is common ground between all the medical authorities and the World Health Organisation—there is a governmental responsibility to discourage the use of those techniques, particularly where that relates to statutory procedures of this kind. I agree with the noble Baroness that probably this is not the right place for the insertion of provisions which deal with health risks, and that we ought to find another opportunity for dealing with that matter in a Bill which is concerned with health. We may also, in the meanwhile, as a result of these discussions, have the opportunity of further dealings with the ethical committee of the BMA which is seized of the matter and is looking over the records of what was said and done in 1981. That committee may be able to give advice to the profession which will yield the result we
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all want to see. I am extremely grateful to the Minister for her comments. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 4 [Obtaining leave by deception]:
[Amendments Nos. 37 to 41 not moved.]
Clause 5 [Assisting asylum claimants, and persons seeking to obtain leave by deception]:
Lord McIntosh Lord McIntosh of Haringey moved Amendment No. 42:
Page 5, line 5, leave out ("or has reasonable cause for believing").
The noble Lord said: My Lords, in moving Amendment No. 42 I wish to speak also to Amendments Nos. 44 and 45 which are all concerned with the conditions under which it is possible and desirable to control racketeering in immigration advice. I say immediately that we are strongly in support of the objectives of Clause 5 of the Bill. We believe that it is desirable and indeed essential that there should he controls over who gives advice. It is particularly desirable that there should not be a body of people who encourage claimants to seek to obtain leave to remain in this country by deception. In saying that, I am not for a moment admitting that I am satisfied with the definition of deception. However, there are other amendments which cover that point.
In these three amendments we are in particular concerned with the professional status of solicitors because the clause as drafted requires solicitors to second guess their clients and forces them to make judgments as to whether the story the client tells is true. That is the implication of the phrase,
"has reasonable cause for believing",
which appears at three points in Clause 5(1). To have "reasonable cause for believing" implies that the person who has the reasonable cause has obtained that reasonable cause by a course of inquiry.
I am not in any way an expert on the ethical rules which govern solicitors. However, the Law Society advises me that,
"Solicitors are under a duty not to act for a client where deception is involved, but are not required to cross-examine clients about the truth of their story".
The Law Society says that,
"The effect of the clause as drafted will be to oblige solicitors to establish the truth of a client's story, rather than to act as their representative. Solicitors will in effect be doing the job of Immigration Officers in determining the truth of an applicant's claim".
It goes on to say that,
"The burden of proof in the clause, which specifies that advisers must have 'reasonable cause for believing' a client not to have used deception is too heavy. It would be impossible in many cases to disprove that the adviser had reasonable cause for believing an application included deception".
I have taken the unusual step of reading directly from the advice given to me, and I believe to other noble Lords, by the Law Society because this is an area where the professional rules of solicitors are rather arcane. However, this point deserves the serious consideration

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of government. The Law Society, and this House, deserve a considered reply to these amendments. I beg to move.
Earl Russell: My Lords, I was rather surprised to hear the noble Lord say that he was in sympathy with the general objectives of Clause 5. Is the noble Lord telling the House that he believes the objectives of this clause are confined to dealing with racketeers?
Baroness Blatch: My Lords, I shall leave the noble Lord to answer that question for himself.
Section 25(1) of the Immigration Act 1971 contains, and always has contained, an offence of facilitating the entry of an illegal entrant. The offence is committed where a person facilitates the entry of someone,
"whom he knows or has reasonable cause for believing to be an illegal entrant".
The words "knows or has reasonable cause for believing" have not caused any problems since the 1971 Act was passed, and have been incorporated into the two new offences which would be created by Clause 5(1) of this Bill.
These amendments would delete "reasonable cause for believing" from the three offences, the existing illegal entry offence and the two new offences. I understand, from discussions we had earlier in Committee, that this change may have been prompted by a desire to protect those who have a legitimate interest in providing advice and assistance in immigration cases, particularly lawyers. It was felt that it would be difficult for any adviser to disprove that he or she had reasonable cause for believing that an application with which they were involved included deception.
I would make two points. The first seems to be fundamental. It would be necessary to prove that an adviser knew or had reasonable cause for believing that deception was involved in order to secure a conviction. That is rather a different matter to the adviser disproving knowledge or belief of deception. I am afraid the noble Lord got that point wrong. Evidence would have to be assembled to prove the case.
My second point concerns the wording of the offences if the amendments were accepted. The standard of proof required to secure a conviction would be absolute. It would have to be shown that the adviser knew. This provides the easy get-out clause for precisely the people against whom the new measures are aimed. They could plead ignorance and stand a very good chance of being acquitted.
In conclusion, I have not been persuaded that the phrase "or has reasonable cause for believing" should be removed from the offences, because to do so would be to reduce the chances of convicting immigration racketeers, an aim which has received considerable support on all sides of the House.
Lord McIntosh of Haringey: Perhaps I may deal first with the intervention of the noble Earl, Lord Russell. I accept that Clause 5 contains matters other than dealing with racketeers. But those other
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matters are the subject of amendments that we tabled at Committee stage and again on Report since many were not debated in Committee. We are, as always, concerned with the detail of the Bill, and concerned to see that the Bill expresses properly objectives which we can share.
There are occasions when Bills are wholly unacceptable, and when that happens we express blanket disapproval. However, the general objective of cleaning up the immigration advice business, so to speak, is one shared by all parts of the House and, however defective, that is the principal purpose of Clause 5.
I listened carefully to the Minister and accept that the burden of proof is that it has to be shown that the adviser knew about the deception rather than that he has to satisfy himself first. For that reason alone this is not an amendment I propose to press. I was particularly interested in what the Minister said towards the end of her reply; that is, that in determining the case there was a strict definition of "knows". I do not see that in Clause 5. I am not suggesting that the Minister should expand on it at the moment. I want to read carefully what she said and be sure that I understand its import. If that is the case, then it is possible that the anxieties of legitimate immigration practitioners—not only lawyers, but also those who work for charities and local organisations—are met in the wording of Clause 5. I am not satisfied that that is the case at the moment. I want to read what the Minister said and think about it before the next stage. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 43 to 45 not moved.]
Baroness Blatch Baroness Blatch moved Amendment No. 46:
Page 5, leave out lines 14 to 17 and insert ("which is done—

(a) by a person otherwise than for gain, or in the course of his employment by a bona fide organisation whose purpose it is to assist refugees; or

(b) in relation to a person who has been detained under paragraph 16 of Schedule 2 to this Act, or has been granted temporary admission under paragraph 21 of that Schedule;").

The noble Baroness said: My Lords, had we discussed Amendment No. 43 I would have told the House that there is a case for tightening up the protection in Clause 5(2) for advisers. That is what Amendment No. 46 involves.
Amendment No. 46 is in response to the concerns raised at a previous stage and I expected them to be raised again tonight. I should say at the outset that it has always been the intention that this offence should be firmly targeted at the activities of immigration racketeers. It has never been the intention that the introduction of the new offence should have an adverse effect on the provision of lawful and legitimate advice and assistance to those seeking asylum in the United Kingdom.
Lord McIntosh of Haringey: My Lords, before the Minister proceeds perhaps I may say that I am not responsible for Amendment No. 43. The anxieties expressed at Committee stage are expressed in Amendments Nos. 47 to 49, which we have not yet

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moved. The Deputy Speaker has not yet advised the House that they would fall through pre-emption if Amendment No. 46 is agreed to. My understanding was that we would deal with those amendments—which express our concerns—at the same time as Amendment No. 46, if only for the pre-emption reason.
Baroness Williams of Crosby: My Lords, perhaps I may add that I did not move Amendment No. 43 because I understood that Amendment No. 46 had been tabled in part to deal with the issues that we raised at an earlier stage. I wanted to hear what the noble Baroness had to say and also save the time of the House.
Baroness Blatch: My Lords, I am simply saying that I am responding to concerns. Nothing I say on Amendment No. 46—I hope the House will accept that amendment—will preclude anything that noble Lords have to say on Amendments Nos. 47 to 49. I reserve my right to respond to those amendments after they have been spoken to by noble Lords.
The existing defences to the new offence set out in the Bill provide that it will not apply to activities done otherwise than for gain, or in the course of employment by a bona fide organisation whose purpose is to assist refugees. It has been recognised that these defences were incomplete in as much as they do not protect those people such as lawyers who have a legitimate and lawful interest in providing advice, assistance and representation to asylum seekers who have applied for asylum on arrival in the United Kingdom.
The amendment is the consequence of the recognition of the lacuna in the defences available to the new offence following consideration of the points previously raised about the scope of the offence. It provides that where a person has been detained under paragraph 16 of Schedule 2 to the 1971 Act or has been granted temporary admission under paragraph 21 of that schedule, assistance, advice or representation provided to that person will fall outside the scope of the new offence. This will mean that there will be no prospect of a prosecution for the new offence being considered where a lawyer provided his services to an asylum seeker who has been temporarily admitted pending the resolution of his port asylum application.
The acceptance of this amendment targets the new offence even more firmly at immigration racketeers, and clearly exempts those who have a legitimate interest in assisting asylum seekers who have arrived in the United Kingdom. I commend it to the House.
11 p.m.
Lord Dubs: My Lords, I should like to speak to Amendments Nos. 47, 48 and 49. The amendments seek to improve the proposition put forward by the Minister, although technically they are amendments to the Bill unamended. Nevertheless, the points would still apply as amendments to the Bill as amended by the noble Baroness's Amendment No. 46.
I welcome what the Minister said. I think it helps us and Amendment No. 46 takes the process further forward. Amendment No. 47 seeks to replace the word
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"gain" with "remuneration" because "remuneration" is, if anything, wider than "gain" and it would therefore cover organisations where people do not get any financial benefit directly. Amendment No. 48 seeks to leave out the words "employment by" and insert "work for". The adviser may not technically be "employed by" an organisation. He may "work for" an organisation in a voluntary capacity. Therefore, the amendment widens the concept and ensures that the scope of the clause would affect more people than the narrower definition in the Bill. With regard to Amendment No. 49, the Bill as now drafted uses the words "bona fide organisation". Amendment No. 49 would add,
"a partnership, company or other legal entity",
and so on. That would allow for organisations which are not, strictly speaking, within the definition of "bona fide organisations". For the avoidance of doubt, these should be included.
I have some difficulty with a point that is not the direct subject of an amendment. I refer to the use of the word "refugee" in the original wording of Clause 5. Indeed, it is included in the amendment to which I am speaking and it is included in the Government's amendment. I hope that would not limit the help to asylum seekers. Elsewhere in the clause there is reference to "asylum seekers" but in this instance there is reference to
"a bona fide organisation whose purpose it is to assist refugees".
I am not sure whether that is a mistake or whether it is deliberate. If it is deliberate, it means that there would be no help to asylum seekers. If it is a mistake, I hope we can find some way of rectifying it.
Earl Russell: I welcome the government amendment. I hope that the noble Baroness will forgive me if, nevertheless, I probe it a little. It is the duty of this side of the House to look gift horses in the mouth so I shall try to do so.
I am concerned about the meaning of the word "gain". The noble Baroness gave me an assurance at Committee stage which I much welcomed, that those who work for airlines who assist anyone intending to claim asylum would not be found guilty under this clause. Since then I have received advice from the Immigration Law Practitioners Association which, in noting the noble Baroness's assurance, nevertheless say that the courts may think otherwise. That is a guarded but strong pronouncement. It gives me a certain amount of anxiety. I hope I am in order in asking the noble Baroness to check that once again.
I heard and welcome, because I believe that they are crystal clear, especially in the light of the case of Pepper v. Hart, the assurances that she gave about solicitors. But what about the case raised by the Immigration Law Practitioners Association of a lawyer on holiday abroad who meets someone, for the sake of argument, in Sri Lanka who wishes to claim asylum. The solicitor gives him advice and then undertakes to take on his case in this country when he arrives. Is that person in jeopardy under the clause or not? It is a perfectly possible scenario and I am not clear how the clause would apply to it.

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The same question might apply to a journalist who found himself assisting an asylum seeker. If the journalist were to produce copy out of it, as journalists usually do, he might risk coming within the scope of the clause. I am also concerned about the tightness of the words,
"whose purpose it is to assist refugees".
Many Churches wish to assist refugees. It is not their primary purpose to do so, but many people in them regard it as one of their legitimate purposes. As the Church of Scotland warned the Home Office in May, some of them intend to continue to do so regardless of how this clause is interpreted. That presents the prospect of the sort of Church-state clash which I hope that this country will continue to try to avoid.
The Minister rightly said in the case of Mr. Tong that sanctuary has been repealed. Wearing my other hat, I am happy to confirm that. It is repealed by the Expiring Laws Continuance Act 1624. Nevertheless, the conviction that the Church must give help because it believes that it is its religious duty to do so is quite strong. The noble Lord, Lord McIntosh of Haringey, reminded the House when we were in Committee that although sanctuary has been abolished in common law it has not been abolished in canon law. Are we going to see the Church prosecuted under this clause in cases like that of the Church of Scotland or the Church which has temporarily sheltered Mr. Tong? If so, I believe that the Government are heading for the type of confrontation which both sides would be wise to avoid, if possible.
Baroness Williams of Crosby: Perhaps I may add to my noble friend's questions one or two additional ones. As the noble Baroness will know, the lawyers are very concerned indeed about constraints as to what extent they will be acting legally within the terms of this Bill. I shall pursue two of the issues that were raised in the discussion. The first concerns the kind of advice a lawyer can give in advance of somebody coming to this country. I have referred to it before in this debate because it is important, and that is the situation that will arise next year in Hong Kong. Many thousands of Hong Kong residents know people in this country and have close links with them. They are friends and colleagues and in some cases they have been in the same law firms and shared responsibility for legal matters in the same firms. It is very probable that a Hong Kong resident seeking asylum, for reasons which we have already discussed in this House and for other reasons, will approach his friend or colleague in order to ask for advice about the effects of this Bill, for example. Clearly, advice about how the Bill operates, about the necessity to make plain the minute one arrives that one is seeking asylum, and about the possibility of being returned to a third country, would be very valuable to someone seeking, or succeeding in getting, asylum in this country.
Therefore, I should like to ask the direct question whether such advice, not given for remuneration but nevertheless given in advance of the applicant coming to this country and announcing his intention of seeking asylum here, would or would not be caught by the terms
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of Clause 5. If somebody approaches a lawyer whose firm is concerned with many other issues (of which the pursuit of advice to asylum seekers is only one) would that also fall foul of Clause 5? Those are extremely important points. It is important that lawyers know exactly what is and is not legal in offering advice to clients. It would be helpful if the Minister could say a little more about the points that we have raised so that we can answer those who have approached us on this matter.
Baroness Blatch: My Lords, Amendment No. 47 adds nothing to the understanding of Clause 5(2). "Remuneration" means wages or salary and "gain" not only includes those meanings but could also include payment in kind or property.
I cannot believe that it is intended that immigration racketeers should be able to take advantage of the defences available in Clause 5(2) to the new offence of facilitating the entry of any asylum claimant simply by taking payment in kind or property rather than in money. That, however, would be the likely outcome of adopting this amendment.
It appears that Amendment No. 48 is intended to widen yet further the defence set out in Clause 5(2) of the Bill, which would become Section 25(1A)(b) of the 1971 Act, to include the activities of voluntary workers as well as the employees of bona fide refugee organisations. That is unnecessary because voluntary workers who do not derive any gain from their activities are already covered by the defence which would become Section 25(1A)(a).
I have just outlined Amendment No. 46 which widens the defences to the new offence and which is the Government's response to earlier concerns about the scope of the offence. This now means that where asylum claimants are detained or given temporary admission under powers in Schedule 2 to the 1971 Act, those who provide them with advice, representation or other assistance have a defence from prosecution for the new facilitation offence.
The Government believe that the inclusion of this additional defence firmly targets the new offence at illegal racketeering activity and ensures asylum claimants are not prevented from receiving legitimate advice and assistance because those who would normally provide such assistance are afraid of prosecution. It is the Government's firm belief that, with the addition of the government amendment, anyone acting lawfully in providing advice or assistance to asylum claimants who have arrived in the United Kingdom, will be able to avail themselves of one of the defences set out in Clause 5(2), thus avoiding any prospect of prosecution.
Amendment No. 49 goes much further than would be provided for in Clause 5(2) as it would be amended by Amendment No. 46. It would allow any employee of an organisation which claimed that its purposes included,
"the provision of information, assistance or representation to refugees"
to avail himself of the defence which would become Section 25(1A)(b) if the amendment is accepted. Clearly, it is a relatively simple matter for an

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organisation to make such a claim when in fact it is merely a cover and the organisation is actually engaging in illegal, racketeering activity. It cannot be right that a defence to this new facilitation offence could be so readily available to people engaged in such activities.
The noble Earl referred to airline employees. I am fairly confident about what we said earlier, but I should like to consider further what I said originally and to confirm that that was correct. If I have to modify it, I shall do so.
We do not believe that the lawyer abroad would be in danger because his activities would be too remote from the entry of an asylum seeker here. The noble Earl also made reference to sanctuary in churches. Their actions are protected by this amendment because it applies to asylum seekers who have arrived and presented themselves to the authorities in the first instance. The noble Baroness Lady Williams referred to Hong Kong. The giving of advice to a person who is abroad is too remote from the entry of the asylum seeker to fall foul of the clause. I cannot read the note that I have before me. If the noble Baroness will forgive me, I shall write to her on the Hong Kong point.
11.15 p.m.
Earl Russell: My Lords, I thank the noble Baroness warmly for her answers. I ask one other question that she has not yet answered. Would a church be counted as falling within the words
"a bona fide organisation whose purpose it is to assist refugees"?
It is not the first way I would have thought of describing a church.
Baroness Blatch: My Lords, I am not sure that it is a church. What matters are the people in the church and the relationship between the activities of those people and the asylum seeker. If they are volunteers acting in a wholly lawful way they will not be caught by the measures in Clause 5. We know that some church activity is engaged in harbouring illegal entrants, which is a very different matter.
Lord Dubs: My Lords, I am not sure that I am allowed to speak. I do not believe that I am.
The Deputy Speaker (Lord Lyell): My Lords, I apologise for not informing the House that if Amendment No. 46 is agreed to I cannot call Amendments Nos. 47 to 49 owing to a pre-emption. However, I understand that those three amendments have been grouped together.
On Question, Amendment No. 46 agreed to.
[Amendments Nos. 47 to 50 not moved.]
Earl Russell Earl Russell moved Amendment No.51:
Leave out Clause 5.
The noble Earl said: My Lords, the purport of this amendment is to leave out Clause 5. Even with the welcome assurances that the noble Baroness has just given, I am still under the impression that it is no more true that Clause 5 is directed against racketeers than that the Bill is directed against bogus asylum seekers. In
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neither case is any attempt made to distinguish between the genuine and the bogus. The Bill purchases on both equally. It is a bit like the Tom Lehrer approach to shooting: one sits there looking cute and when anything moves one shoots.
Other issues arise from the clause, one of which is: what is an illegal entrant? To probe that a little further, the judgment of the Appellate Committee of this House in Naillie in 1993 was that a person who entered without a valid passport intending to claim asylum was not an illegal entrant. A Home Office briefing which was provided while this Bill was before another place suggested that one of the purposes of the Bill was to repeal the judgment in Naillie. I hope the noble Baroness can tell me that that is not so. Naillie rested on the distinction between people who land and are in the airport and those who attempt to gain entry. If the noble Baroness, Lady O'Cathain, were in her place she would confirm that that must be a valid distinction; otherwise, all transit passengers would require immigration papers, which would mean a vast amount of extra work.
It seemed to me that there was no good reason to object to the judgment of the House in the Naillie case, so I hope that we can be told that the Bill is not intended in any way to reverse it. The key point in that case was whether there was a third status between illegal entrants, legal entrants, and asylum seekers of the third status—whether they were made legal by the wish to claim asylum. That is a crucial question.
The next point that arises is the question of deception under Clause 5(1)(c). I shall not go through all the long argument I had with the Minister about the status of the in-country applicant—whether that involved deception or not. If she could not go through that in her sleep by now, I would be surprised. But I think she must understand that I believe that assisting someone to claim in-country remains a legal activity. It must concern me that anyone else professionally involved, who believes the same as I do and acts on their conviction, is running the risk of conviction under the Bill. That is something that is liable to breed martyrs, and that is something which tends to lead all governments into trouble. It concerns me rather deeply.
I am also deeply worried about Clause 5(1)(b) which makes it an offence to assist people who intend to claim asylum. Claiming asylum is a perfectly legal activity. There is no reference to deception in Clause 5(1)(b). It surprises me deeply to find attempting to assist people to do something legal made a crime in that way.
I have taken advice, and I find that the only other case where it is a crime to assist someone to do something legal is the suicide pact. I do not believe that the cases are parallel. This clause will do a great deal of mischief. I remain deeply opposed to it. I beg to move.
Lord Dubs: My Lords, I wonder whether I might briefly put two questions to the Minister about Clause 5. The first is one that I raised in relation to the previous amendment. It relates to the use of the word "refugees" in at least one instance in the clause when in other instances the words "asylum claimant" are used. I wonder whether the use of the word "refugees" is

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significant and whether it is meant colloquially to cover asylum seekers or whether technically we might not be running into difficulties by talking about organisations that assist refugees and thereby excluding organisations that assist asylum seekers—those being the main people about whom we are talking, given that we are talking about claims for asylum.
I should have thought that technically it would be better if we did not use the word "refugee" in a loose way, and that therefore we should use the words "asylum seeker" rather than "refugees" here. I do not know whether the Minister has a view on that, but that is how it seems to me.
Perhaps I may put another question for clarification. Given that there are some safeguards contained in Clause 5, am I right in thinking that in so far as there is protection, that protection is only for those advising asylum seekers as port or "on entry" claimants and not those helping in-country claimants? I wonder whether there is a difference there, and that we are giving greater protection to one set of advisers and less to others, or whether I have misunderstood the way in which Clause 5 operates.
Baroness Blatch: My Lords, it is clear from correspondence with me, and his previous contributions to the debates on the Bill, that the noble Earl does not care for the idea that those who facilitate the entry of asylum seekers to the UK should be liable to prosecution. It is not a new idea. Section 25(1) of the 1971 Act has always made it an offence for any person to facilitate the entry of illegal entrants to the UK. The case law is clear. If a person assists another person to pass through the immigration control, using deception, or bypassing the control completely, that person is an illegal entrant, and—
Earl Russell: My Lords, is the Minister saying that an asylum seeker is an illegal entrant? If so, she is contradicting the judgment of this House in the Naillie case.
Baroness Blatch: My Lords, no, I did not say that. The noble Earl is putting quite the wrong interpretation on the matter. I am saying that helping someone to pass through by deception is illegal. I shall repeat what I said. Section 25(1) of the 1971 Act has always made it an offence for a person to facilitate the entry of illegal entrants to the United Kingdom. The case law is clear. If a person assists another person to pass through the immigration control using deception, or bypassing the control completely, that person is an illegal entrant, and the person who facilitates the entry is guilty of an offence under Section 25(1). This is irrespective of whether the facilitator acts for personal gain, or if the illegal entrant so assisted goes on to make a claim for asylum.
That is the current position. We have previously made clear that the new offence of facilitating the entry of an asylum seeker has been introduced to plug a hole in our existing immigration legislation which was exposed by legal judgments, and defences will be available to those who facilitate the entry of an asylum seeker. I will not
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rehearse those defences again as they have already been covered in detail, but suffice it to say that this new offence does not criminalise the act of seeking asylum. Its aim is to combat those who make profit by facilitating the entry of asylum seekers, and in that aim it has been broadly welcomed by all sides during the consideration of the Bill. Doubts have been expressed about the scope of the offence and the defences to it, and the Government have responded to these doubts by bringing forward an amendment which tightens the focus of the offence.
Clearly, the noble Earl does not share the broad welcome which, as I have just said, has been given to the idea that the activities of facilitators should be stopped. Not only would he remove the offence of facilitating the entry of asylum seekers from the Bill, he would also remove the other new offence; facilitating the acquisition of leave to remain by deception as well. I find this difficult to understand. I can see no argument for protecting the activities of those who run bogus educational establishments and marriage rings, who obtain their profits by encouraging others to break and circumvent our immigration laws. No one should be in any doubt that the profits available to those engaging in such activity are considerable, and consequently this problem will not go away simply by ignoring it.
Those who encourage others to circumvent our immigration laws are not motivated by altruism. Their only concern is personal aggrandizement. I believe, and the Government believe, that we must have effective powers to deal with these people. This is what Clause 5 provides, and this is what this amendment would remove. I think it will be clear that I see no merit whatever in this amendment, and I strongly urge the House not to accept it.
The noble Lord, Lord Dubs, referred to refugees. There is no special significance in this. As he said, the colloquial reference is "intended", as most organisations are called refugee organisations. I do not believe that there is anything disparaging there. The noble Earl, Lord Russell, referred to an illegal entrant as defined in Schedule 1. It is our intention to reverse Naillie because that case held that a person could avoid prosecution for facilitation if that person assisted claimed asylum on arrival. As regards the noble Earl's other point, assisting to claim asylum in-country is legal. That is the purpose of my Amendment No. 46.
I hope that the clause will remain part of the Bill. It is important. It has wide support inside this House, in another place and in the country generally. The truth is that we believe that gaining at the expense of vulnerable people who are attempting to gain entry to this country is an important issue. Racketeers do exist and they profit from their evil activities. The offence is needed. The defences against this clause are set out in subsection (2). They provide the necessary safeguards for those acting lawfully. I argue that the clause should remain part of the Bill.
11.30 p.m.
Earl Russell: My Lords, the noble Baroness is now putting words into my mouth. I apologised to her for

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doing so and I hope that she will return the compliment. The noble Baroness is suggesting that I am trying to assist racketeers. I do no such thing. My objection to this clause is that it purchases equally on the innocent and the guilty. I am in favour of imprisoning burglars but I am not in favour of imprisoning the whole population because there happen to be some burglars among it. It is a very vital distinction.
I am in favour of measures against those who do evil if they are aimed at the people who do the evil. It is that test which this clause and this Bill have failed totally. The noble Baroness says that it has always been that way but 1971 is not always. However, I shall let that pass.
I shall not take the noble Baroness through the whole of the argument between us about what constitutes deception. She places some things under that heading which I do not. I do not intend to pursue that argument but I believe that she is doing a great deal of harm here.
I thank the noble Lord, Lord Dubs, for raising the question of the word "refugee". It is interesting because it is a word which may be interpreted in more than one way. I hope that the noble Lord, Lord Dubs, may be in part reassured by the way in which the word has been interpreted by the noble and learned Lord, Lord Nolan, judging in this House in the Khaboka case in 1993. He said that the term "refugee" must be taken as encompassing asylum seekers who subsequently have their refugee status accepted. He said that it is common sense and a natural reading also of the words of Article 31(1). The term refugee means what it says. It will include someone who is only subsequently established as being a refugee. I hope that that is clear to both sides of the House.
This argument will continue in the next Parliament, no matter who is in office. However, in the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Dubs Lord Dubs moved Amendment No. 52:
After Clause 5, insert the following new clause—
REGISTRATION OF IMMIGRATION PRACTITIONERS
(" .—(1) It shall be an offence for a person who is not a qualified person within the meaning of this section to undertake for reward (whether by himself or through his servants or agents, or otherwise) the business of giving advice to, making representations on behalf of or acting as the representative of a person in respect of a matter to which subsection (2) of this section applies unless he is registered as an immigration law practitioner with the Immigration Practitioners Registration Authority ("the Authority") established under this section.
(2) This subsection applies to applications to—

(a) an immigration officer, or

(b) the Secretary of State for the Home Department, or

(c) the Department for Education and Employment,

made by or on behalf of another person who does not have the right of abode in the United Kingdom for—

(i) leave to enter or remain in the United Kingdom,

(ii) asylum in the United Kingdom,

(iii) revocation of a decision to deport that person from the United Kingdom,

(iv) a residence permit or document, or

(v) a work permit.

(3) For the purposes of this section, "qualified person" means a person who is—

(a) a lawyer who is subject to the disciplinary jurisdiction of the Law Society or Bar Council in respect of any services which relate to a matter to which subsection (2) above applies;

(b) an employee of an advisory organisation or registered charity approved by the Authority; or

(c) an employee of a qualified person who is registered under this section.

(4) A person guilty of an offence under subsection (1) above shall be liable on summary conviction to a fine not exceeding level 5 on the standard scale.
(5) Proceedings for an offence under subsection (1) above may be brought only by the Authority.
(6) It shall be the duty of the Lord Chancellor to appoint such person or persons as he considers to be fit and proper to constitute the Authority.
(7) It shall be the duty of the Lord Chancellor to make regulations to give effect to the establishment of the Authority under this section, which may include provision for—

(a) fees payable for applications for registration;

(b) requirements for registration, including requirements as to—

(i) how the Authority is to be satisfied of the competence of a registered person to act as an immigration practitioner,

(ii) the proper management of the business of a registered practitioner,

(iii) the keeping of records,

(iv) the supervision of employees, and

(v) such other professional standards in the carrying on of a business as are considered necessary;

(c) powers to impose conditions on registration and to cancel registration where there has been a failure to comply with any such conditions;

(d) the giving of written notice of lists of approved organisations, decisions to register, refusals to register and revocations of registration; and

(e) such other matters so as to regulate the procedures to be adopted where the Authority is minded to refuse a registration or revoke a registration.

(8) Regulations under this section shall be made by statutory instrument which shall be laid before Parliament in draft and shall be subject to approval by resolution of each House.
(9) Where the Authority has reasonable grounds to suspect that—

(a) the terms of registration have been breached, or

(b) an offence under subsection (1) above has been committed by a person who is neither a qualified nor a registered person,

it may apply by written information to a circuit judge for a warrant to enter premises occupied by or on behalf of such a person, or other premises specified by the Authority where there are reasonable grounds to suspect that documents or other records will be found belonging to or held by such a person which relate to matters to which subsection (2) above applies.
(10) Any written information made under subsection (9) above must state the grounds for suspicion and the class of documents or records that the Authority considers will be relevant to the discharge of its duties under this section.
(11) Where the Authority has entered premises pursuant to a warrant issued under subsection (9) above it may take possession of any such documents or other material found on the premises as are specified in the warrant; and it may hold such material solely and for so long as is necessary to discharge its duties under this section; and it may not disclose such material to any person other than in

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the course of discharging its functions under this Act save to the owner of the documents or to such other persons as the owner may have authorised.
(12) There shall be a right of appeal to the High Court against a refusal of registration or the imposition of any condition on registration or the revocation of registration by the Authority; and no revocation of registration shall have effect while any such appeal is pending.
(13) In this section, "to undertake for reward" means to carry out an activity in return for payment to which the person carrying out the activity is entitled, whether by contract or otherwise.").
The noble Lord said: My Lords, here we are concerned not with racketeers but with people who give advice to those seeking help with our immigration and asylum procedures. The people who give help may be qualified lawyers—usually solicitors—or they may be other types of advisers. One of the difficulties in trying to bring some sense and an element of regulation into this area is that the advisers range from those who are legally and professionally qualified to those who are unqualified but may still provide a very high standard of help and advice.
It is probably right that the regulation, the control, of qualified solicitors should be left to the Law Society. There are individual solicitors, a minority, who do not give good advice. Anyone who has dealt with individuals who have had difficulty with our immigration and asylum procedures will occasionally find, as I have, a solicitor who is not sufficiently experienced in this area to give proper advice to applicants. We all know that this is the case and we know that such people are outweighed numerically by those who are excellent lawyers. But it is not easy for a person seeking help to know who is or is not good when the individual seeking that help is a stranger to this country. But the question of qualified solicitors who are not as good as they might be in that regard is better left to the Law Society rather than setting up another regulatory system.
Amendment No. 52 is therefore concerned with advisers, but those who are exempted from the proposed new system are what are called qualified persons; and qualified persons would be lawyers or barristers, employees of an advisory organisation or registered charity, approved by the new authority to be established, or an employee of a qualified person registered under this section.
The intention of this new clause is that a new authority should be established, entitled the immigration practitioners registration authority, and that would be for individuals not covered by the provisions regarding qualified persons, to which I have already referred. The purpose of this authority would be to oversee the work of individuals and organisations that give advice, to make sure that they conform to certain standards. The authority would have the power to prevent individuals or organisations from practising if they did not meet those standards. They would have power to impose restrictions on registration and also to cancel such registration.
I know this is a very difficult area. Some individuals may not be qualified but I know from personal experience that individuals who work for organisations, and do so voluntarily, provide a high and excellent
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standard of advice. Often they have the additional advantage of being able to speak the language of the claimant they are advising. I do not say for a moment that individuals who do not have a formal qualification in this field cannot give good advice: many of them do. Unfortunately there are others who exploit the situation. All people who take an interest in these matters—I have come across them myself—know that there are people who charge money for referring people in need of help to a Member of Parliament. They say that they alone have access to Members of Parliament, which of course is not true. There are others who charge money for giving poor advice or misleading information, missing appeal dates, and so on. It is these people who exploit innocent, unsuspecting asylum seekers. They take their money but do not provide the help. This new clause would therefore provide an element of regulation so as to ensure that when people go for advice they at least get advice which meets a minimum standard, that they are not exploited and that the system works reasonably properly.
Our immigration and asylum laws are very complicated—they become more complicated with each new piece of legislation—and so it is not surprising that people should need professional help and advice all the way through, and know what their rights are. This new clause would help significantly in this, leaving the regulation of solicitors to the Law Society, as I said before. I beg to move.
Lord Avebury: My Lords, I added my name to this amendment, not because I necessarily subscribe to every detail of the scheme which is proposed, but because I believe that some sort of registration is absolutely necessary. I was the more convinced of that when I read the Law Society's memorandum which set out a number of considerations regarding the activities of unlicensed practitioners. These made one's hair stand on end. They showed clearly how the whole system can be disrupted by the incompetence of some of these people. I entirely accept what the noble Lord, Lord Dubs, said: that many of these people may be unqualified but nevertheless give a very good service to their clients. However, there is a penumbra of them whose service is grossly inadequate and actually very harmful to the clients themselves.
I recently dealt with the case of an individual who had applied for asylum and had consulted one of these so-called advisory organisations, which I think consisted of a single individual. The man kept on asking what had happened to his case and the practitioner wrote back saying that the matter was under control and that he was in detailed consultation with the Home Office. Eventually he found out, when the practitioner went out of business, that he had not written to the Home Office at all and the Home Office, thinking that the person had deliberately refrained from getting in contact, issued a notice of intention to deport. That was entirely the fault of the individual who was pretending to give advice, while taking money for so doing, when in fact he had done nothing whatever.
It is absolutely necessary to have a system of regulation to deal with such people. However, I am not competent to say whether the system proposed by the

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noble Lord, Lord Dubs, is the best that we could have. Nevertheless, I believe it would be useful if the Minister could say that it was the Government's intention at a future stage in the Bill's proceedings to introduce a system of regulation which would control the activities of such unlicensed practitioners who do so much harm.
Baroness Blatch: My Lords, the purpose of the amendment is to create a statutory regulatory body to supervise and oversee the activities of immigration advice practitioners. That would not include solicitors and barristers who would be classified as "qualified persons" under the scheme proposed in the amendment and, consequently, would not be required to register with the regulatory body.
I recognise that this is an area where concerns have been expressed, and I understand the view that the situation requires some response. Several noble Lords will no doubt have been informed about individual cases which may have disturbed them. There is some anecdotal evidence concerning cases of overcharging, poor advice and poor service by immigration advisers. The difficulty is that comprehensive evidence of the scale of any abuse is simply not available.
The Government question whether it would be wise to contemplate a regulatory scheme of the kind proposed here in the absence of such evidence. Let us for a moment think about the implications. The scheme involves setting up a full-blown regulatory authority by the noble and learned Lord the Lord Chancellor. He would be required to address the most detailed issues concerning fees, business management, record-keeping and supervision of employers. He would also have to specify on what basis he could be satisfied about the competence of a registered person to act as a practitioner, and define professional standards, presumably based on prescribed qualifications and examinations. He would, furthermore, have to justify a decision both to include a person on a register and to remove someone from it. Decisions by the authority would need to be proof to legal challenge by means of appeal to the High Court. It follows that it would need to set up investigative machinery of a kind which would add to the regulation in that area.
All that is a sizeable bureaucratic undertaking. Can we be satisfied that it is a proportionate response to a problem whose scale has not yet been identified? Further, this approach raises deeper questions about the extent to which the Government should attempt to regulate areas where, no one denies, there may be occasional abuses. In particular, it would be a significant step for the Government to attempt to regulate the market by fixing the fees. The Government have always taken the view that regulation of that kind is in principle undesirable unless a clear need can be shown for it on the basis of the social harm which would otherwise occur. Of course it is right to be alive to the prospects of exploitation. But, on the evidence available, I question whether the Government should become so directly involved as the amendment suggests. Why regulate that area of legal fee in particular? Many people can cite instances where they think that they have been overcharged for legal services, but we have not thought it proper to step in to regulate the scale of such charges.
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That is not to suggest that the Government are complacent about the remedies available. The first point to make is that the Government have been prepared to deal with the most excessive activity of this kind where the provision of advice is linked to racketeering—I have to say that that is a measure which is not supported by the noble Earl, Lord Russell. The new powers in Clause 5, which we have already discussed, deal with those who facilitate the entry of asylum seekers or where deception is practised. Where such activity is conducted under the guise of giving advice it can be dealt with under the powers in Clause 5. But concerns were expressed that such powers should not bite on legitimate activity. It would be inconsistent, therefore, to opt for regulation for activity which fell short of the scale required to generate a prosecution under Clause 5.
Furthermore, we should not dismiss the legal remedies which are currently available. If it could be shown, for example, that pecuniary advantage had been gained by deception in a particular case—I cite the example given by the noble Lord, Lord Avebury—then a prosecution could be brought.
The statutory, regulatory schemes which have been proposed during the passage of the Asylum and Immigration Bill would almost certainly involve additional public expenditure. The Bill has no money resolution. Fees payable for registration under a statutory, regulatory scheme could offset the cost of operating the scheme, but it is unlikely that such fee-income could ever completely cover the cost.
The Government have recognised the concerns which have been expressed on this subject and have responded by talking to those directly involved. Discussions have taken place with the Law Society, the Immigration Law Practitioners Association, and the appellate authorities. These discussions have identified a number of issues which would benefit from greater attention, to see if any abuses or excesses can be curbed from within the system rather than by intervention by the Government in such a bureaucratic way. The Chief Immigration Adjudicator, Judge Pearl, has kindly agreed to convene at regular intervals a meeting of those concerned in the recent discussions to pursue the points which have been identified. We think it right to await the outcome of this work before considering whether any further steps are necessary.
The Government have given this matter careful thought. Despite the lack of detailed information, we are not convinced that the scale of the problem requires a solution of this kind. We will continue to discuss with those concerned what might be an appropriate response.
11.45 p.m.
Lord Dubs: My Lords, I thank the Minister for her detailed response to the amendment. I fully accept that the scheme in the amendment is complex and may not be the best scheme. However, it is beyond doubt that there are difficulties. The Minister says that she is not aware of the scale of the problem. I understand that, because we do not have hard evidence. However, I suggest that the evidence which exists is a little more than anecdotal. Rather a large number of instances has

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been quoted. If one talks to Members of Parliament with constituent responsibilities in inner cities, most will give information about advisers who have not behaved at the professional level to which asylum seekers and others seeking help are entitled.
The Minister's key argument is that the system is complex; and that perhaps the remedy was out of proportion to the problem. She asked whether regulation was necessary. If nothing is done the difficulties will continue. It is difficult for an aggrieved party to use the legal remedies that exist. If an asylum seeker has been given advice that is not adequately professional, it is extremely difficult to find a way to obtain compensation through the legal system; it probably never happens.
The Government have been a little more sympathetic in the past. I have raised the issue over the years with more than one immigration Minister. The normal response was, "This is rather difficult. It we could find a satisfactory system, we'd think about it".
I am not sure how wide Judge Pearl's terms of reference are in the investigation to which the Minister referred. If they are wide enough, I shall be content. From the way the Minister described the situation, I did not understand whether his terms of reference are wide enough to identify the scale of the problem, and to give us more details about the number of people who get into difficulties because they do not receive good advice.
While occasionally it is a matter of deception which might be covered by Clause 5—it is marginal whether that is so—more often poor quality advice received simply does not help the individual. I draw some comfort from what the Minister said about Judge Pearl's work. If the terms of reference of this work are wide enough, I shall draw even more comfort from that. In the circumstances, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 6 [Increased penalties]:
Baroness Williams of Crosby Baroness Williams of Crosby moved Amendment No. 53:
Leave out Clause 6.
The noble Baroness said: My Lords, at this late hour of the night I want only to speak briefly to Clause 6, and ask the noble Baroness to reply. One of the prime problems with this whole Bill—I think all of us in the House are aware of it—is that it embraces within its terms those whom the noble Baroness rightly describes as unacceptable, and indeed unforgivable, racketeers who live on the backs of people who have great needs and great worries. The racketeers exploit those people in every way and endeavour to make large sums of money out of them. Not a single Member of this House would condone those people.
On the other hand, there are people who are confused, worried and frightened and who find that only by pulling all sorts of strings and using all sorts of devices, including in some cases, bribing the police who are imprisoning them or holding them or torturing them, can they manage to escape from totally unacceptable and intolerable conditions. The difficulty all of us on both sides of the House have in dealing with this Bill is trying
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to act in such a way that we catch the racketeers without damaging seriously the interests and concerns of those whom they exploit.
The penalties in Clause 6 are among the most serious penalties that can be applied in the canon of criminal justice to any crimes that anyone commits. They are absolutely appropriate for the organised racketeers who live on the back of illegal immigration. However, they are wholly and absolutely inappropriate for the confused, troubled and sometimes brave people who try to find their way to this and other countries as asylum seekers, having in many cases put their lives or those of their families at risk. I take it the noble Baroness will say that this is a matter for the courts and that as these are maximum penalties the courts will have to decide what is the appropriate penalty. However, if there is anything the noble Baroness can say about the difference between these two groups, and the extent to which justice for one can be so meted out that it does not involve injustice to the other, I for one would very much appreciate it. I shall not press the amendment to a Division. I beg to move.
Baroness Blatch: My Lords, I must confess that this amendment has come as a bit of a surprise. Clause 6 is probably the clause which has attracted least attention during the consideration of this Bill. It is a minor technical clause which addresses an inconsistency between financial and custodial sentences available for certain offences under the Act. It does no more and no less. Currently, a magistrate can impose a sentence of six months, the longest sentence which can be handed down by a magistrate, for the offences listed in Clause 6, but he can only impose a level 4 fine up to £2,500. Level 5, that is, £5,000, is the maximum fine that can be imposed by a magistrate, and it is normal for a magistrate to be able to impose equivalent custodial and financial penalties. That is all that Clause 6 does. The amendment, if accepted, would maintain the inconsistency that currently exists, and I can see no benefit in that. I would urge the rejection of this amendment, although I understand it will not be pressed. The point that the noble Baroness makes is absolutely valid. It would have to be a matter for the courts to reflect the seriousness of the offence by imposing a fine within the range of nought to £5,000.
Baroness Williams of Crosby: My Lords, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 7 [Power of arrest and search warrants]:
[Amendments Nos. 54 and 55 not moved.]
Lord McIntosh of Haringey Lord McIntosh of Haringey moved Amendment No. 56:
Page 6, line 3, at beginning insert ("When a person has been lawfully arrested for an offence to which this section applies").
The noble Lord said: In moving this amendment, I shall speak also to Amendment No. 57.
In Clause 7(3) we are dealing with a power of entry and search which is not concerned with entry to make an arrest—that is dealt with in earlier parts of Clause 7—but with a search for evidence. Subsection

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(3) provides that the offence to which this clause applies, which is defined in subsection (4) and is, basically, illegal entry, overstaying and the new offence of obtaining leave to enter or remain by deception, should be the basis for the entry for search purposes.
In Committee, we moved a number of much more radical amendments than this one. We were concerned, as the Minister will recall, about the definition of "serious arrestable offence"; with the equation between obtaining leave to enter or remain by deception in particular with a serious arrestable offence; and with some of the provisions relating to warrants and the ability for a constable or immigration officer to make an arrest without warrant. We are being very much more modest, as is appropriate at Report stage, with this amendment. What we are doing is looking back at what the noble and learned Lord, Lord Mackay of Drumadoon, said in Committee about,
"the seizing of evidence which may help to establish one way or another whether a person is guilty of the offence as charged".— [Official Report, 2/5/96; col. 1782.]
We would not go so far as that. We do not think that we should wait for a charge before such a search is undertaken. But we do think that there should be an arrest first, and there should not simply be a fishing trip for evidence before an arrest has been made. After all, when a search is made in relation to a serious arrestable offence of the traditional kind, it is likely that the search will be for some essential piece of evidence, such as a murder weapon, a cache of drugs or something of that sort. We accept, at least for the purposes of this argument, that that sort of power is appropriate; and it is provided for under the Police and Criminal Evidence Act. But surely it should be applied here only where evidence is not likely to be comparable. There is no blood-stained clothing in an immigration case. It should apply only when there has been a lawful arrest—that is the wording of the amendment—and the reference to the offence should be to the offence for which the person has been arrested rather than the offence in general.
So we do not oppose the provision for the search. We are just saying that it should be confined to the cases where an arrest has taken place and should not be a fishing trip. I beg to move.
Baroness Blatch: My Lords, this pair of amendments would fundamentally alter the power provided by Clause 7(3), so much so that they are essentially wrecking amendments.
There was much criticism of this measure when we debated Clause 7 in Committee. The criticism focused on the elevated status being given to the offences set out in Clause 7. It was argued that by adopting the power to issue warrants to search for material in connection with the investigation of serious arrestable offences which is set out in Section 8 of the Police and Criminal Evidence Act 1984 for immigration offences, immigration offences are thereby placed on a par with serious arrestable offences such as murder, manslaughter and rape.
Nothing could be further from the truth. Immigration offences are not raised to the same level of seriousness as murder, manslaughter and rape as a result of the
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measure set out in Clause 7(3). Section 8 of PACE provides a power to issue warrants to search for relevant evidence, and all that Clause 7(3) does is include the offences listed in Clause 7 among the offences to which Section 8 of PACE applies. This construction is a convenient way of providing the power to search for relevant evidence which we believe to be an important part of any concerted and comprehensive package of measures to deal with those who break our immigration laws.
Clause 7(3) provides justices with a power to grant warrants to constables to enter and search premises to search for evidence relevant to the offences listed in Clause 7(4). A justice needs to be satisfied on five separate matters before he can issue a warrant.
It appears that these amendments seek to limit justices' ability to grant warrants for fear that without that limit, warrants will be handed out indiscriminately allowing constables to undertake "fishing expeditions" on the offchance that they might find something. Clearly, that will not happen, because, as I mentioned before, the justice has to be satisfied on five separate matters before granting a warrant.
One of the matters as to which the justice has to be satisfied before granting a warrant is that an offence to which Clause 7 applies has been committed. The power to search for evidence provided by Clause 7(3) is essentially an investigative aid; the justice will have to be persuaded that an offence has been committed in order to issue the warrant, but it may be essential to obtain further evidence, through the execution of the warrant, in order to secure the arrest of the immigration offenders.
These amendments would make the power to obtain warrants a purely reactive measure, providing the means to obtain further evidence only after an arrest has been made. In any cases where relevant evidence had to be obtained in order to make an arrest, and such evidence could only be secured by searching premises, it must follow that the arrest would never be made if these amendments were to be accepted.
That is why I have referred to these amendments as wrecking amendments and why I must resist them.
Midnight
Lord McIntosh of Haringey: My Lords, I very much doubt whether an objective observer looking at the modest extent of these amendments and the degree to which they are less wide-ranging either than the amendments that we put forward at Committee or indeed than the remarks of the noble and learned Lord, Lord Mackay of Drumadoon, at Committee, would concur with the Minister's view that they are wrecking amendments. She said it twice. Even after midnight that is a bit over the top.
We are dealing with a minor modification to a provision of existing legislation where it is the power of a justice to authorise entry and search of premises and the equation is being made between immigration offences and serious arrestable offences. If the Minister says that we are restricting the power of a justice to authorise warrants, so be it. That was our intention. We

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are concerned that those warrants should not be used simply as fishing trips for evidence without any serious reason for suspicion that a person is guilty.
We must always remember that warrants of this kind are intrusions of privacy, not only of people's homes but also of public places. It is undesirable to extend the powers more than is strictly necessary for the pursuit of justice, law and order in this country. I do not accept that they are wrecking amendments. I can see, if the Minister had wanted to argue it, that we should have said that there should be at least a warrant for the arrest of a named individual rather than actual arrest. Perhaps
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that is a further fall-back we will consider at the next stage. On that basis, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 57 not moved.]
The Lord Advocate (Lord Mackay of Drumadoon): My Lords, I beg to move that consideration on Report be now adjourned.
Moved accordingly and, on Question, Motion agreed to.
House adjourned at four minutes past midnight.