§ 8.35 p.m.
§ House again in Committee.
§ [Amendment No. 26A not moved.]
§ Clause 9 [Removal of asylum claimants under standing arrangements with member states]:
§ Lord Williams of Mostyn moved Amendment No. 27:
§
Page 6, line 22, leave out from beginning to end of line 27 and insert—
("() Unless a certificate has been issued under section 62(2)(a) in relation to a person, he is not to be removed from the United Kingdom—
§ The noble Lord said: The amendments in this group repair an omission. The combined effect of Clauses 9, 10, 61 and 62 is that a person who is to be removed to a safe third country, and whose case has been certified by the Secretary of State, has no right of appeal on asylum grounds while in the United Kingdom. Clause 9 deals with removals to EU member states. Clause 10 deals with removals to other states designated by order and to EU states other than under standing arrangements.
§ In all these cases, there remains a right of appeal on human rights grounds under Clause 55. Such grounds may be quite unconnected with the asylum claim. However, some applicants may choose to lodge a human rights appeal for tactical purposes. In such cases and in other appropriate circumstances, the Secretary of State may certify under Clause 62(2)(a) that the human rights claim is manifestly unfounded. There would then be no in-country right of appeal to an adjudicator.
§ As the Bill stands, an applicant whose human rights claim had been certified could not be removed until the time for appealing had expired. This is an unintended anomaly. I ought to add that nothing in these clauses nor in the amendments would prevent an applicant from seeking judicial review of the Secretary of State's certificate in relation to a human rights claim and no one would be removed while such a judicial application was pending. I therefore invite the Committee to agree to these amendments.
§ On Question, amendment agreed to.
97§ Lord Cope of Berkeley moved Amendment No. 28:
§
Page 6, line 30, at end insert—
("() Special arrangements shall be made to facilitate and expedite the removal of any person from Northern Ireland who, after taking independent legal advice, requests his removal to a member state within the Common Travel Area as defined by section 1(3) of the 1971 Act.").
§ The noble Lord said: As will be apparent from the support for the amendment and its phrasing, the amendment refers particularly to the position in Northern Ireland.
§ The Northern Ireland Human Rights Commission drew my attention to the fact that sometimes there are difficulties with people who stray over the border. Members of the Committee who know Northern Ireland will know that the land border with the Republic is not always well marked on the ground. It can be difficult to know precisely where the border goes. People wander across it from time to time. When I was a Minister, even members of our own security forces crossed the border without realising, and ordinary civilians frequently did so.
§ The Northern Ireland Human Rights Commission points out that people who have claimed asylum in the Republic of Ireland can enter Northern Ireland without knowing that they have entered a separate jurisdiction and without realising the consequences of doing so. They often wish to return immediately to the Republic, but having crossed the border they are usually detained—I am not criticising the authorities for that—while procedures for their return are pursued under the Dublin Convention.
§ The aim of the amendment is to provide a quick way to facilitate the return of such people to the Republic, but there is a safeguard that they should have legal advice for doing so to ensure that they do not go back without having considered the consequences. I agree with the commission that if arrangements such as those described in the amendment were put in place, removal would be made easier and the length of detention would be reduced. Special administrative arrangements would be necessary, but they would not be impossible to devise.
§ Detention in such circumstances means spending time in one of Northern Ireland's prisons. We can deal with the matter in more detail on a later amendment. Suffice it to say that there are no detention centres in Northern Ireland and Northern Ireland's prisons are very high security establishments—for entirely different reasons—so detention is not a matter to be taken lightly. That adds weight to the argument for an arrangement to allow those who stray across the United Kingdom's only land border to be returned to the previous jurisdiction without the need for the current elaborate bureaucratic procedures. I beg to move.
§ Lord Williams of MostynI am grateful to the noble Lord, Lord Cope of Berkeley, because when I first saw the amendment it was not clear to me at what mischief it was aimed. It relates to the position of someone who is liable to be removed from Northern Ireland and who, after taking independent advice, expresses a desire to be removed to another member state within the common 98 travel area. We spent a little time dealing with the common travel area earlier this afternoon. In effect, as the noble Lord, Lord Cope, says, it can only be the Republic of Ireland.
Transfers between states that have subscribed to the Dublin Convention may take place in various circumstances. I am happy to reassure the Committee that if the subject of the intended transfer consents, which is the underlying presupposition of the amendment, only the agreement of the receiving state is required for transfer to go ahead. We have not found it necessary to draw up formal arrangements between the United Kingdom and the Republic of Ireland to ensure that such transfers take place expeditiously. I take the noble Lord's point that one needs to be prompt. I am grateful to him for raising the issue. I shall reinvestigate whether there have been any problems. I understand that there have not been any and I am happy to give that reassurance.
§ 8.45 p.m.
§ Lord Cope of BerkeleyI am grateful for that reassurance from the Minister. I shall suggest to the Northern Ireland Human Rights Commission that it should contact him on the matter. For the moment, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ On Question, Whether Clause 9, as amended, shall stand part of the Bill?
§ Lord DholakiaThere are occasions when it is difficult to propose an amendment where there is a clear breach of certain articles—in this case Article 33 of the refugee convention and Article 3 of the European Convention on Human Rights. That is why we oppose Clause 9 standing part of the Bill.
Before long—possibly in the latter part of this year—the heads of government will meet in Helsinki, where one of the items for discussion will be immigration and asylum. There is no common policy among EU states on how to deal with such matters.
Clause 9 was added to the Bill after the lengthy consultation process that preceded its drafting and after it had received detailed consideration, including the taking of written and oral evidence in the Special Standing Committee of the House of Commons. I do not understand the purpose of the rush, but it is a matter of grave concern that the clause would restrict the jurisdiction of the courts and the appellate authorities on matters of fundamental human rights.
The clause deals with those whose claims are certified by the Secretary of State on the grounds that they can be properly and safely dealt with in other member states of the European Union. There is no in-country right of appeal against such certification decisions, but in appropriate cases the certificates can be reviewed on the grounds that the Secretary of State has erred in law. Clause 9 would remove that residual supervisory jurisdiction of the courts over the lawfulness of certain ministerial decisions, thereby removing any independent oversight.
99 All European Union countries are signatories to the refugee convention, but their interpretation of the provisions varies significantly. One of the critical issues on which there is no uniformity is whether the convention applies to prosecutions not carried out by the state that the state is unable or unwilling to prevent. That situation can arise in civil law when the state cannot stop prosecutions by powerful bodies and reaches its logical conclusion where effective government has collapsed.
Some Court of Appeal cases raise issues of concern, particularly the case of Gashi, in which a ministerial certificate stating that Germany was safe for Kosovar Albanians was quashed because fewer than 3 per cent were granted refugee status there whereas there was a 100 per cent recognition rate in the UK. The same problem arises with regard to Somalis and Algerians in France. A Court of Appeal ruling on that is expected shortly. Germany and France are EU states with well developed refugee and constitutional protection systems. In principle, a state signatory to an international convention should not cede its obligation to another state unless there are binding guarantees of safe practices that can be enforced at supranational level. Those guarantees and procedures do not exist in the European Union.
Clause 9 is a clear breach of the UK's international obligation under the refugee convention. We need agreed and enforceable criteria in all member states and a guarantee that those seeking protection under the refugee convention or the ECHR are able to obtain secure status.
§ Lord HyltonFirst, I have a drafting quibble in relation to the clause which simply begins by mentioning "a member state". That expression is not explained in the marginal notes. We know from the Notes on Clauses that it means the European Union but on the face of it, there is nothing to prevent it meaning a member state of the United Nations, the Council of Europe, the OSCE or even the Commonwealth. Perhaps the Minister will ask somebody to think about that point.
However, there is a much more important point on the substance of the clause. In resisting that the clause shall stand part, the noble Lord, Lord Dholakia, mentioned the question of Algerians being transferred to France as a presumed safe country. It is a matter of common knowledge that collusion between French and Algerian state security services has been alleged, if not proved, over quite a long period of years. Therefore, it seems to me to be somewhat unsafe automatically to assume that all the European Union countries will be, ipso facto, safe for all kinds of asylum applicants. I shall be interested to hear what the Minister has to say about that.
§ Baroness Williams of CrosbyI am extremely concerned about and should welcome some enlightenment on Clause 9. However, I should declare an interest as a member of the Comité des Sages which looked at the European Union's civic and social rights over a period of two years. We went quite deeply into issues arising from this kind of legislation.
100 Disturbingly, we seem to be building a law on shifting sands. There is a famous couple of lines from the American poet, Edna St Vincent Millay which says:
Safe upon solid rock, the ugly houses standCome and see my shining palace built upon the sand". Clauses 9 and 10 are both built upon sand and I shall explain briefly why that is so.
The European Union is in the process of expansion which is likely in the first instance, over the next two or three years, to include a first list. Within that first list are countries which we all want to see as part of Europe but which, on matters of asylum and immigration, in some cases cause a certain amount of anxiety.
For example, I mention the well-known fact that the Czech Republic's treatment of the Roma has been criticised by the Council of Europe and that the treatment of the Romanian-Hungarian minority has also been the cause of considerable concern.
I agree and admit that this clause is a relatively recent introduction into the Bill, which was not discussed by the Special Committee of another place. Nor indeed was it discussed at any length on Report because that stage was necessarily truncated for lack of time. Therefore, this matter has not been given the careful consideration which it deserves. The Explanatory Notes make no mention whatever of the expansion of the European Union, nor to the very real concerns which have been expressed about civil liberties in some of the countries listed for expansion.
When I say that the legislation is based upon "shifting sands", that is because over the next few years the EU15 will become the EU21 and possibly then the EU28. That will be a rather different proposition. It will not be possible to be certain that it is possible to define every country within the EU as safe.
The clause plays a rather complex trick, if I may be forgiven for using the expression, because, as the noble Lord, Lord Hylton, implied, it defines countries which respect the conventions in terms of defining them and they are then seen to be members of the European Union. But I am not sure that one can escape what seems to me to be implicit in both the refugee convention and the European Court of Human Rights cases; namely, that each case deserves separate consideration. It is based on substantive consideration of individual cases.
By trying to define the problem away, I am not sure that the Government are convincing in what they are attempting to achieve. As my noble friend said, having then precluded the right of appeal, in effect they are saying that their definition is infallible, that it cannot be questioned and, therefore, in a sense, the definition is self-justifying. On constitutional grounds, that troubles me very deeply indeed.
However, even more worrying is that it is linked with Clause 62(2)(a) which allows the Secretary of State to declare that a claim is manifestly unfounded. As I understand it, it also carries no appeal.
My noble friend referred to the fact that on some matters of interpretation in the courts, there has been a difference between the courts of certain member states 101 of the European Union; for example, on the matter of whether persecution is necessarily an instrument of the state or whether it can be an instrument of bodies which the state is unable to control, as in the case of countries undergoing civil war or general breakdown. Therefore, it would not be possible to argue against the Secretary of State's decision, if it is based on the self-justifying definition, that the manifestly unfounded judgment was properly based.
There is a second consideration which is another reason why I believe this clause is based on shifting sands. In the Treaty of Amsterdam it was made plain that the member states of the European Union were engaged in a process of trying to develop a common asylum policy. As Ministers will know well, so far, because Britain has not been a member of the Schengen agreement, it is still questionable as to the extent to which we shall be part of that common approach to asylum. But already the member states of the EU are trying to devise both a common position on the treatment of asylum seekers and also a common set of criteria as to who is accepted for asylum and who is not. As my noble friend implied, that process is still very much in a transitional phase. It has not been resolved one way or the other.
Perhaps even more disturbing, because it has not been resolved, so far the position of the European Court of Justice, in being able to take into account human rights considerations written into the Treaty of Amsterdam, is not yet settled because the European Court of Justice does not yet have jurisdiction over asylum matters, although that is implicit in the Treaty of Amsterdam.
I apologise for detaining the Committee on a side issue but it is crucial to this clause. I ask whether it is sensible for Her Majesty's Government to tie themselves down to legislation which, by the passage of events, is likely quite soon to seem both inappropriate and irrelevant? Is it essential to opt for that extraordinary circular self-vindicating exercise which leaves out of account the grave concerns that I have mentioned with regard to the political and legal systems of all the countries to which the European Union may expand in the next few years, in advance of what is not yet a completed negotiation on the subject of asylum policy in Europe and our connection to that asylum policy? As my noble friend implied, that is a matter for the European Council to discuss at its next meeting in Finland.
§ The Lord Bishop of RiponI am glad to support the Motion that Clause 9 should not stand part of the Bill. I appended my name to that Motion and I wish to speak briefly to it.
Before I do that, I wish to refer to our debate on whether Clause 8 should stand part. The noble Lord, Lord Renton, and I met in the corridor after that debate and we did our best to make peace with one another. was once his archdeacon and he was once my Member of Parliament. Therefore, we share a common history. It is not the first time that we have debated matters and we have always tried to do so upon an amicable basis.
102 Nevertheless, I stand by the points I made in that discussion. However, I believe that those points are entirely compatible with the statement made by the noble Lord, Lord Williams of Mostyn., at the conclusion of that debate. To summarise, I believe that what he said was that we needed an asylum determination that was fair; that in that determination the matter of class was irrelevant. That is entirely true. We were trying to rebut the argument that those granted refugee status are a drain on the economy. I believe that it is a bonus that they are not, but it is not a criterion to be taken into account in determining their status.
As the noble Lord, Lord Williams, mentioned, there are those who abuse the system. Some do, but not all. The whole point of the system is to determine those whose claim is not founded. I believe that that can only be done by the process itself, not in advance of the process. Therefore, we have to have a speedy determination process. Because we do not have that at the moment, we have large numbers of people who are granted exceptional leave to remain. We all know the situation; I clarify it for my own sake.
Therefore, I applaud the Government's intention to reduce the period of initial determination of appeal to six months. The only question I have is whether under the present proposals it can be achieved. We shall return to that matter later.
I turn to the question of whether Clause 9 should stand part of the Bill. As I understand it, the intention of Clause 9 is to remove the possibility of judicial review of the decision to remove to a country in the European Union. I believe that the best thing I can do, because I am not sure that it has been done in this way yet in the debate, is simply to refer to the briefs I have received on this matter from four very different organisations. The first is the Medical Foundation caring for victims of torture. That organisation makes the point that the intention of inserting Clause 9 which, as I understand it, is a fairly recent insertion, was, as has been expressed by one of the Ministers in another place, to make transfers under the Dublin Convention less vulnerable to judicial review challenges.
This clause tries to ensure that administrative decisions about the removal to a country in the European Union should be protected from the scrutiny of the courts, and opportunities for legal challenge, however legitimate, should be removed. The Medical Foundation has given various pieces of evidence about the difficulties raised by this intention. I do not intend to go into detail in that regard, but simply to make the general point.
A very different body, the Immigration Law Practitioners' Association, also opposes Clause 9 on the grounds, once again, that it prevents access to judicial review to challenge removal and therefore takes away a right which is surely an essential right. This body challenges the abolition of many of the appeal rights under this new legislation. It opposes the abolition of an effective means of challenging the exercise of discretion which otherwise goes unchecked.
Another legal body, Justice, opposes Clause 9 on the grounds that it is, as I have stated, a late and unprecedented attempt to remove the supervision of the 103 courts over the lawfulness of decisions to return asylum seekers to other EU countries, and in doing so seeks to pre-empt a decision of the Court of Appeal, which is due to give judgment on this point, and the development of common criteria supervised by the European Court of Justice. We have already had reference to that issue. Therefore, it undermines the United Kingdom's responsibilities under the Refugee Convention.
Finally, the Immigration Advisory Service, again a very different body, also opposes this clause on the grounds, once again, that it was introduced with only a few days' notice; that the Bill was timetabled in order to restrict debate on this particular matter, and it enshrines Section 2 of the 1996 Act to the effect that the Government will enshrine in statute law the proposition that EU member states are to be regarded as safe third countries for the purpose of returning asylum applicants to these countries.
Perhaps the best example of the failure to be a safe country is in relation to the Kosovo refugees, some of whom were returned to Germany which did not accept their refugee status and simply returned them to the country from where they had come. That example is sufficient to draw reference to the dangers inherent in the inclusion of Clause 9 in the Bill.
§ 9 p.m.
§ Earl RussellI am delighted to hear of the making of peace between the right reverend Prelate and the noble Lord, Lord Renton. The noble Lord, Lord Renton, and I are old friends. We have agreed as often as we have disagreed. I hope that we are both too good parliamentarians for any peace to need making. If it needs making, I shall look forward to making it.
Clause 9 is defective in its drafting. Paragraphs (a) and (b) are perfectly acceptable. However, for the clause to stand up it would need a paragraph (c) to state that the Secretary of State is satisfied that the receiving member state will admit the applicant to the asylum process.
In all the Bills in which I have taken part on this issue, this is the point where we have always been held up on third country cases. People have been sent back to a third country which in the abstract may appear to be safe but it has not admitted the asylum seeker to its process, usually because it is held that he has been illegally present in the territory.
I remember a case from Belgium precisely on this point. It arose in the middle of our debates on this issue in the 1996 Bill. I regret that at this time of night I have been unable to check the name of the case, but I am sure the Minister will recollect it.
Because it does not deal with this point, the clause does not come up to its billing in the Explanatory Notes. They state:
The Secretary of State is no longer required to certify that the conditions set out in section 2(2)(b) and 2(2)(c) of the Asylum and Immigration Act 1996 … These conditions are that the receiving state should be one where the person's life or liberty is not threatened … the person shall not be sent to another country 104 otherwise than in accordance with the 1951 Refugee Convention. Instead clause 9 provides specifically that these factors shall be regarded as … satisfied".They cannot be satisfied unless there is a requirement in the clause that people shall not be sent to an allegedly safe third country unless they are admitted to its asylum-seeking process. That is where the rub comes. It is not only the points about non-state persecution, although those are of substance.My noble friend Lord Dholakia mentioned the case of Algeria. It is perhaps even more important in the case of Somalia, where state persecution is a contradiction in terms. When my son was doing a degree in strategic studies at the University of Wales, they used the case of Somalia to illustrate the proposition that Hobbes' state of nature was not actually a fiction. Any persecution in Somalia must be non-state persecution, which is why Somali refugees do very much better in this country than they do in France. It gives me great pleasure to mention something in asylum law in which we do better.
That raises a further consideration. Non-state persecution is an admissible ground under the European Convention on Human Rights, although not under the 1951 UN Convention. Since it will be excluded by the effects of the clause, can the Minister tell us precisely what reasoning led him to sign the certificate of compatibility in relation to this clause, because it seems to me that we will run into some problems?
The other question that interests me is what the effect will be of an attempt to exclude judicial review. The principles of judicial review do not rest on statute; they rest on the principles of natural justice. Those principles do not owe their origin to any Act of Parliament, and in fact antedate the first Parliament that ever sat in this country. Therefore, they cannot be derived from any Act of Parliament. They are principles of common law, as set out in some of the initial cases, 17th century cases but cited in the 20th century by the noble and learned Lord, Lord Ackner in the precedents submitted in the case of Ridge v. Baldwin. These argue that it is part of the power of the common law to review the exercise of any power whatsoever. There is no exclusion in that.
There is no legal ruling on whether statute or common law, the principles of natural justice, are superior. I have no wish to see any such rule. There are some questions which, in my opinion, are better not answered. However, since the Bill is attempting to exclude judicial review and since certain potential litigants will be aggrieved by that attempted exclusion, the Bill does invite a trial of strength in an area where it would be much wiser for all of us if no trial of strength were to take place.
I have given the Minister notice that I intended to mention the judgment of the Master of the Rolls, the noble and learned Lord, Lord Woolf, in the case of R. v. Home Secretary (ex parte Fayed). That is a case with which the Home Office must be familiar since it was the losing party. It was a judicial review of the Fayed application for citizenship. Under the clause in the 1981 Act the Home Secretary was not required to give any reasons for refusal of citizenship. The noble and learned Lord accepted the supremacy of statute very 105 clearly but said that statute must be construed in the light of the principles of natural justice, just as we are now required to construe it in the light of the European Convention on Human Rights.
Starting from that principle, he laid down the principle that if Parliament wishes to confer a power to act unfairly, it must say so in express words. That is a pretty steep requirement for any politician. Were that requirement to be applied to this clause, I tremble to think of the answer.
§ Lord Clinton-DavisThis is a very interesting debate. Serious charges are made by a number of noble Lords about the purpose of the clause and the Government's purpose. They have been charged with attempting to remove the supervision of the courts over the legality of decisions to return asylum seekers to other EU countries. Is there any justification in that charge? Is that the purpose that is underwritten in Clause 9? How will the situation affect the Court of Appeal, which is about to reach a decision on this issue? It is also alleged that it inhibits or pre-empts the development of common criteria supervised by the European Court of justice for determining asylum claims at EU level.
Those are serious matters which go to the heart of our respect for the law. I am sure that my noble friend would wish to deny that, presumably with convincing arguments in support of that denial. How does it affect our responsibilities under the United Nations Convention on Refugees? I do not know. On the basis of the arguments so far adduced in this debate, I have not made up my mind as to whether or not those grave charges have been made out. But if there is anything to them, I shall listen with great interest to the response of my noble friend to those claims.
This is an issue which has not previously been seriously addressed, unless I have missed something; but those assertions have been made in the Committee tonight. As somebody who has taken a keen interest in civil liberties throughout my parliamentary career, I hope that my noble friend is able show that either the charges are ill-founded or, if there is any scintilla of doubt about that, how the Government propose to react to them.
§ 9.15 p.m.
§ Lord Alton of LiverpoolDuring the debates that preceded the passage of the 1996 Act, the Standing Committee considered in great detail two charges which the then Opposition—now the Government—levelled at the then administration. One of those charges was that they, were constantly trying to wriggle out of obligations under the law and to minimise opportunities for judicial review. So, like the noble Lord, Lord Clinton-Davis, and earlier the right reverend Prelate the Bishop of Ripon, I was concerned to see that during the Third Reading debate Mr Mike O'Brien, for whom I have considerable personal regard, was on record as saying that the purpose of new Clauses 9 and 10 was to make transfers under the Dublin Convention less vulnerable to judicial review.
106 That was an unfortunate sentiment—to put it at its most charitable—for the Minister in another place to express. It gives the impression that we are simply trying to wriggle out of opportunities for people to have their rights under law and to challenge decisions which they feel are unjust. To give the impression that we are trying to remove protection and to minimise scrutiny would in itself be extremely unfortunate for this Government, above all governments. I hope therefore that the Minister will reconsider that phrase and see whether he can give us a better interpretation than that which has thus far been placed upon it.
The other charge made in the proceedings before 1996 by the then Opposition was that the Government were trying to evade their international responsibilities. That has echoes again not least in the remarks of the noble Baroness, Lady Williams of Crosby. She and her noble friend, the noble Earl, Lord Russell, rightly reminded us of the 1951 UN Convention on the Status of-Refugees and the 1967 protocol that followed from that. It is worth recalling the circumstances in which the 1951 convention was made. The countries that we are now saying are safe countries to which to send refugees were the countries with which the convention was drawn up to deal because of the offences they had committed in the whole area of abuse of human rights in the period that led to the Second World War.
Circumstances change, and the noble Baroness was right to remind us of the shifting sands. I should like directly to ask the Minister whether there have been valid applications by refugees who haw resisted attempts to return them to the Czech Republic and to Poland because they have been Romany gypsies, and certainly whether there would be many valid applications by Kurds, Syrianese, Chaldeans and others who would resist any attempt to return them to Turkey. Turkey is not currently being considered for membership of the European Union, but has expressed its wish in due course to be so considered, and certainly the Czech Republic and Poland are being considered. In those circumstances, can we honestly say that those are countries which it would be legitimate to draw into this net in this way?
So, Clause 9 and in due course Clause 10 raise certain issues which this Committee should consider. It is proper that Members should put a flag in the sand at this stage. I hope that the Minister will be able to address the two principal questions which were well rehearsed in the period prior to the 1996 Act, which this legislation is not doing anything to address and which probably makes a bad situation worse.
§ Lord Phillips of SudburyNothing does greater honour to the courts and legal system of this country than the manner in which it has traditionally dealt with asylum seekers. In the extremely difficult balance that has always to be struck between administrative and bureaucratic needs, and convenience and the requirements of justice, I find it hard to believe that Clause 9 gets it right. I cannot imagine the Parliament of 1628, the Long Parliament, the Parliament in 1688 or any other great libertarian Parliament since 107 contemplating a measure that assumes a state of fact vis-à-vis a number of friendly states that may not in fact prevail.
Clause 9(1)(a) contains not a rebuttable presumption, but a series of unrebuttable assumptions that a person's life and liberty are,
not threatened by reason of his race, religion, nationality, membership of a particular social group or political opinion".At the end of the 20th century, the world is in turmoil and dreadful things are being done on our continent. Our society is blessed with a degree of affluence and sophistication of legal process to which few others can aspire. I find it extraordinary that the Government should contemplate a measure such as this, for all the difficulties that they face.Perhaps it is easy for those of us who are not Ministers grappling with the realities of such matters to underestimate how complex, trying and expensive they are. But however complex, trying and expensive, I do not believe that Clauses 9 or 10 are in the best tradition of this House or country.
I beg the Government to reconsider the plight in which some asylum seekers find themselves. The reply given by Mr Michael O'Brien to non-governmental organisations that are passionately opposed to Clauses 9 and 10, in his letter of 9th June, is not sustainable:
Asylum seekers' representatives do not find it difficult to persuade a judge to grant leave for a judicial review hearing by pointing to what they say are differences or deficiencies in the procedures of other member states".I do not know what the noble Lord the Minister thinks of that but, as a practising lawyer, I do not think much of it. It makes a series of assumptions about the whole process of judicial review that are unwarranted. Courts are not easily persuaded. Judges are not soft touches. The courts do give member states a margin of appreciation in refugee convention cases. The threshold for grant of leave to bring in a judicial review is—as the Minister knows because he has done it—relatively high. If the Government's case is succinctly summarised by Mr O'Brien's letter, they are severely mistaken—quite apart from the points so eloquently made by other noble Lords tonight.The Crown is always in the position of going back to the court where leave to appeal has been granted to get that decision set aside if—as in the cases of Gashi and Aitsegeur, involving the French and Algerian Governments—the Crown, through diplomatic channels, discovers information that ought to have been put. On every possible ground and however difficult the problems with which the Government are grappling, I and others here tonight ask the Government to think again.
§ The Earl of SandwichI want briefly to associate myself with the remarks of the noble Lord, Lord Alton, in support of the noble Baroness, Lady Williams. We would all like to live in the European Union, where we could ensure safety among our close friends and allies. The fact is that we have not reached that point. Any of us who have studied even briefly the Schengen 108 proposals and seen how the Government have to decide cannot understand how Clause 9 can pass almost without question.
I have one question to put to the Minister. If the 1951 convention is universal, can he name any precedents for an assumption of safety for a group of countries within those signatories? As I understand it, being universal—and I am not a lawyer—means that all cases are treated individually.
§ Lord Cope of BerkeleyThe question arises as to the definition of "member State". There is no doubt that it means a member state of the EU, but it leads me to ask why there is a difference between Clause 9 and Clause 70 because the latter clause talks in terms of "EEA nationals"; in other words, nationals in a European economic area. It would be interesting to know why these two clauses are different in that respect.
However, that is quite a small point which can, no doubt, be readily responded to, but the big question is whether the proposition which lies behind Clause 9 is correct; namely, that member states of the European Union are "safe" as defined and that that will still be so even as enlargement progresses. We have all read recent newspaper reports about how the new Commission is giving some extra attention to enlargement with a view to making it progress quickly. Obviously that is something of which we are all in favour in this country.
It is interesting to observe that the proposition that member states are safe is being opposed by the noble Baroness, Lady Williams of Crosby, who, generally speaking, has been very supportive of the nature of the other member states of the Community. That renders the point that she has made, and which others have supported, all the more powerful. But the question also is whether or not judicial review is ruled out by this clause, as the Government evidently intend.
I believe that I am correct in saying that the Minister in another place referred not to making these matters invulnerable to judicial review, but "less vulnerable" to it. It is a question of degree. Without any legal backing or personal knowledge, I suspect that that is correct and that judicial review will, so to speak, find a way whatever provision ends up in the Bill. That is a very important point, if one looks at the basic reasons for introducing this clause and other such measures in the Bill.
We all know from the practical point of view that, for very understandable reasons indeed, the Government are seeking to minimise the opportunities for those who would use the system to delay decisions in their cases by every device open to them in the judicial process. They are well advised in these matters and sometimes they have people advising them who are keen to encourage them, for their own reasons, to use every possible judicial process. But, in any case, if you are essentially an economic migrant, you have, by definition, a financial interest in trying to spin it out and win in some part of the legal system which may not be apparent at first sight.
It is highly understandable that the Government and Ministers should wish to minimise the opportunities for delay and misuse of the judicial process because, 109 ultimately, that is what it is. However, whether or not that should overtake the misgivings that have been expressed in this debate depends on the facts of the matter. I hope that the Minister can help us by giving us some more of the facts—by which I mean some more of the numbers—with regard to those whose appeals have been found wanting. Earlier the Minister said that 80 per cent of appeals of a certain class were dismissed. That suggests that many of them did not stand much chance in the first place but were nevertheless pursued for other reasons. This section of the Bill seeks to diminish the misuse of the judicial process. I am not unsympathetic to that effort but it has to be balanced by the considerations that have been mentioned in the debate.
§ 9.30 p.m.
§ Lord Williams of MostynThe purpose of Clause 9 is to address the problem which was clearly identified in the White Paper of lengthy, unjustifiable delays to the operation of the Dublin Convention. A number of points have been raised and I shall do my best to deal with them. The noble Earl, Lord Russell, raised the question of the views of the Master of the Rolls in the case of Fayed. It was open to the Secretary of State at the Home Office to appeal. He chose not to and took upon himself the burden—and therefore the duty—of giving reasons. There was plenty of advice available to suggest a successful visit to the Judicial Committee of this House, but he chose not to do that and, as I say, took upon himself the voluntary burden of giving reasons.
The noble Lord, Lord Phillips of Sudbury, said that the test to get leave in judicial review was a high hurdle. I think he said that I had done that. I am sure that the noble and learned Lord, Lord Falconer of Thoroton, has done that. However, I must say that I never found it an extraordinarily high professional hurdle to get that leave. My advice is that my proposed addition to Clause 9 is not incompatible with the 1951 convention. It is important to look at what we are proposing as opposed to the "bogeys" that have been trotted out. I begin—usefully, I hope—with the question put to me most courteously by the noble Lord, Lord Hylton; namely, what is the definition of a member state? I accept that Clause 9 in itself is rather skeletal because it does not need to be fatter.
The Interpretation Act 1978 provides that certain words in statutes carry the meaning in the European Communities Act 1972. Schedule 1 of the 1972 Act—I entirely accept that this is a perfectly legitimate question when one is looking at Clause 9 on its own—states that "member state" means a member state of the European Community. Therefore the term "member state" in this Bill—in particular Clause 9—means a member state of the European Community. As far as I am aware from my present intelligence, that does not include Poland, the Czech Republic or Turkey. Questions were put about those other jurisdictions but they do not concern the point we are discussing at present. I shall return to the question of enlargement in a moment or two.
110 The noble Earl, Lord Russell, asked me why I had signed a certificate of compatibility. The short answer is because I thought that was an accurate, truthful statement to make. A person who is subject to removal under the Dublin Convention will always be able to rely on the Human Rights Act and he will have a right of appeal on ECHR grounds under Clause 55. It is possible for the Secretary of State to certify that an ECHR claim is manifestly unfounded—I refer to Clause 62—but he will do so only where there is blatantly no basis for an ECHR claim. I return to my next point because the suggestion is constantly made, on no basis that I can discover, that we are seeking to wriggle out of judicial control. Any certificate under Clause 62 is, judicially reviewable in the usual way. I hope that that meets the proper concern which my noble friend Lord Clinton-Davis raised. It is wrong to say that any regime that we have is not going to be subject to judicial review.
Since the 1996 Act, the Dublin Convention has come into force. Under the Dublin Convention returns of asylum seekers to member states take place only when the receiving state has accepted responsibility for examining the asylum claim, a particular question put to me by the noble Earl, Lord Russell. That is the present situation and there is no reason to think it might be altered. The noble Baroness, Lady Williams of Crosby, asked me about standing arrangements. As relations in the EU change, so the term "standing arrangements" will obviously accommodate wider concepts.
In the background of the question asked by the noble Lord, Lord Alton of Liverpool, and the noble Baroness, Lady Williams of Crosby, was the issue of enlargement. I hope that the noble Lord will not think I am teasing him too much in saying, as I did a moment ago, that Turkey, Poland and the Czech Republic are not members. I am happy to give the reassurance that all candidates to join the European Union are going through a process of bringing their legislation and institutions in certain key areas up to acceptable European standards. Asylum procedures are an important aspect of that. The process is monitored by the EU Council and the Commission. Present member states are actively engaged in assisting the states concerned to develop their institutions and procedures. Unless they have made sufficient progress they will not be allowed to join the EU.
It is suggested that there may be collusion between the French and Algerian authorities. All I can say is that asylum claims in France are dealt with by the French office for the protection of refugees and those who are stateless. I have never heard it suggested that that was other than an independent, well-respected body.
I return to what we are about here. We are about the avoidance of illegitimate delay. I entirely accept that the question that would then have been put to me by the noble Earl—had I not put it myself and tried to answer it—is what is legitimate delay. It is a decent balance, I hope, between the efficient conduct of asylum claims and the fact that sometimes the processes are simply distorted.
111 Perhaps I may return to the point raised by my noble friend Lord Clinton-Davis and the trouble that the assertions about trying to evade judicial supervision and oversight had caused in his mind. It is plain on the face of Clause 9 that removal may not proceed if there is an appeal outstanding, the possibility of such an appeal or, indeed, a successful appeal in respect of a person's human rights claim, subject only to certain limitations under Clause 62.
I hope that that demonstrates that some of the assertions made are difficult to reconcile with what we are saying in Clause 9 and what is actually happening in the context of the European Union at the moment.
§ Baroness Williams of CrosbyWill the Minister give way?
§ Lord Williams of MostynIf I might just finish my sentence, I will certainly give way, as I always do.
It is a notorious commonplace that the longer an asylum seeker is in the United Kingdom the harder it is to effect their removal.
§ Baroness Williams of CrosbyI thank the Minister for giving way. He is always extremely courteous; I apologise if I rose before he had finished his argument on that point.
Before he concludes this part of his speech, perhaps I may ask him about the issue he specifically raised about the commitment that expansion brings to the countries that are candidate members with regard to the acquis communautaire? The Minister is correct that they are supposed to conform with the acquis. However, he will be aware that in practice it is a slow procedure and takes time to achieve, especially at the level of bureaucratic decision-making and the training of judges in the courts of the respective countries.
The Czech Republic was accepted as a candidate country in the first wave despite the fact that there were continuing arguments about the treatment of Roma which have been brought up in the Council of Europe and elsewhere. In the case of Slovakia the issues were considered so serious that Slovakia was barred. Will the Minister therefore consider whether there is some distinction between what is undoubtedly the stated legal position, as he made clear to the House, and the actual practice—of which, as a director of an NGO constantly engaged in the creation of democratic institutions in central and eastern Europe I am literally every week only too well aware?
§ Lord Williams of MostynI am, as always, grateful for the intervention from the noble Baroness. But she makes my point. She said that there has been a deliberate discrete review of two applicants. One has arrived at what might be called a first stage; the other has been rejected. It seems to me that that recent historic experience underlines what I am saying; namely, that prospective EU members are to be required to have such systems as are acceptable to us and fellow colleague 112 members of the European Union. By distinguishing those two examples, the noble Baroness entirely underlines my point.
Applicant candidate members have to ensure that their systems are compatible to the extent that present member states regard that as appropriate. It is important not to overlook the fact that all member states of the EU are signatories of the ECHR. They all respect the right of individual petition under convention. Every applicant therefore has the opportunity, before being removed from the member state to the country of origin, of raising issues of compliance with the ECHR in the courts of the state concerned. Nothing could be more different from the propositions that were put forward that this is some sort of collection of devices to avoid judicial scrutiny in this country or, just as important in my experience, judicial scrutiny in other EU member countries.
A question was raised about the universality of the 1951 convention and whether there was a precedent for finding, as it were, the automatic safety of other member states. It is a part of German domestic law that it regards other members to be safe as a matter of law. Again, with great respect, I am bound to say that in my travels and experience in Germany I have not found its courts to be lacking in determination in terms of European convention or constitutional matters.
§ Lord Alton of LiverpoolI, too, am indebted to the noble Lord for his courtesy in answering these questions. Perhaps I may pursue a point made by the noble Baroness, Lady Williams of Crosby, which is germane to the argument that he has just put forward. If there is an act of recidivism and a country falls back into its bad ways, what protection will then be available for any asylum seeker who is likely to be returned to that country? What action can be taken by the European Community to ensure compliance with the rigorous standards that the Minister says will be required before that country is admitted to this family of nations? What is the present scale of judicial review? How many cases went before the courts last year which occasioned Clause 9 to be placed before the House? In how many cases were applicants successful?
§ Lord Williams of MostynI cannot give those figures. I do not know what number of applications were made for leave which were turned down. To return to my earlier observation and, I believe, the common experience of my noble and learned friend Lord Falconer and myself, I do not believe that it is an enormously high hurdle.
The point is: what kind of system ought we to have that is a proper balance between competing claims? The noble Lord, Lord Alton of Liverpool, asked me courteously what could be done. I return to my earlier point. The certificate of the Secretary of State pursuant to Clause 62 is, and remains, judicially reviewable in this country. We are talking about a system that we are trying to set up domestically.
The noble Lord, Lord Cope of Berkeley, raised a point of detail about EEA as opposed to EU. The noble Lord is right. EEA nationals include nationals of Norway and Liechtenstein. The Dublin Convention is 113 limited to the European Union states. Clause 70 provides a right of appeal for EEA nationals against decisions taken under the Bill. The Dublin Convention and Clause 9 are intended to enable the removal of asylum seekers to other member states which are responsible for considering the asylum claim.
The noble Earl asked the central question (which one paraphrases): how can one be sure that receiving states are responsible for enabling that the returned, discharged or removed become part of the asylum process? I believe that I have answered that question.
§ 9.45 p.m.
§ Earl RussellI thank the Minister for a very long and careful answer. He has walked like Agag—warily. I take the noble Lord's point about the wording of the Dublin convention. The question remains: what happens in practice? I understand that at the beginning of April 1998 there was a Home Office directive that Kosovars should not be returned to Germany, in spite of which Mr Gashi was so returned about a couple of weeks later. If it were so absolutely clear, as the Minister suggested, that the process was working properly would the Home Office have needed to issue that policy instruction?
My noble friend Lady Williams referred to the Czech Republic. I agree that here we have the careful drawing of a distinction, but it was also part of my noble friend's point that the Czech Republic has cleared the first hurdle even while in a state when it is very far from clear that it is safe to return Roma to that country. One may get over the first hurdle without necessarily providing safe asylum for the returning person, and that indicates the possibility of a continuing problem. I hope that the Minister can walk even more warily.
§ Lord Williams of MostynHowever persuasive may be the noble Earl, he does not take me away from my fundamental rejoinder that the discrete examples given by the noble Baroness make my case. The wider point is that, walking however comfortably or uncomfortably, I cannot guarantee the internal standards of behaviour judicially, administratively and bureaucratically of every member of the European Union. But the EU states have signed up to the convention (to put it brutally) which is written into the Treaty of Amsterdam. In the next few years binding legal minimum standards are to be introduced for asylum procedures across the EU. If candidate states cannot conform to those, they will not be accepted as members.
§ Lord DholakiaI thank the Minister for his explanation. He referred to the Treaty of Amsterdam which provides for joint criteria for the determination of asylum claims and common standards. But the point remains that they are not there and, therefore, they are a matter for discussion. As both I and my noble friend Lady Williams pointed out, this is a matter that the heads of state will discuss when they meet in Finland before long.
We shall never determine who is right or wrong in terms of the interpretation of the refugee convention and the ECHR. I have no doubt that what we have said bears that out in terms of the large number of briefs that have 114 been produced on this particular subject. Home Secretaries can be wrong, as has happened on a number of occasions in the past. We shall read very carefully what the Minister has said, but we shall certainly return to this matter on Report. It is possible that at that time we shall seek the opinion of the House.
§ Clause 9, as amended, agreed to.
§ Clause 10 [Removal of asylum claimants in other circumstances]:
§ Lord Williams of Mostyn moved Amendment No. 29:
§
Page 6, line 44, leave out from beginning to end of line 2 on page 7 and insert—
("() Unless a certificate has been issued under section 62(2)(a) in relation to a person, he is not to be removed from the United Kingdom—
§ On Question, amendment agreed to.
§ Lord Williams of Mostyn moved Amendment No. 30:
§ Page 7, line 17, leave out ("subsections (2)(c) and") and insert ("subsection").
§ On Question, amendment agreed to.
§ On Question, Whether Clause 10, as amended, shall stand part of the Bill?
§ Baroness Williams of CrosbyOn these Benches we oppose the Question that the clause stand part of the Bill. I shall not detain the Committee for as long as did the debate on Clause 9. Nevertheless, I believe that it would be wrong for Clause 10 to remain unquestioned in this Chamber in view of the provisions made by the clause. The fundamental argument put forward with his usual eloquence by the Minister about Clause 9 is that essentially EU countries share a common legal and political system with the United Kingdom; and they are countries where the rule of law applies for those seeking asylum and refugee status.
At Clause 10 those provisions accepting that the right of appeal can be removed rather strangely disappear. No one argues that those so-called safe third countries necessarily share an acquis communautaire or common legal and political system with the United Kingdom. Therefore questions are raised about what constitutes a safe country. Perhaps the Minister can help us by saying a little more about the criteria which enable the Secretary of State to be sure that when he returns someone to a safe third country it is indeed that.
In the earlier debate on Clause 9, I made the point that matters can change very quickly. The noble Lord, Lord Alton, and others pointed out that even in Europe there can be dramatic changes. In third countries—it covers a wide range of possibilities—that is even more true. I take only one example, to save the time of the Committee—Nigeria. A few years ago Nigeria was argued to be on the so-called white list: a safe country. Then Nigeria was a country to which we felt able to return some distinguished dissidents including Mr Ken 115 Iwo Wiwa. It then turned out that Nigeria was anything but a safe country; it was an extremely dangerous country. As it fell under the control of General Abacha it became a troubling and brutal tyranny; and many people were ordered to be killed at his hands. Today Nigeria, we hope, is once again a relatively safe country although it is perhaps a little early to say. That process has taken place in the passing of only a decade.
So one is entitled to ask how we establish that a country is safe especially given that we have no reason to believe that it shares the same legal and political system to the extent that the European Union does.
My noble friend Lord Dholakia and I spent some time with the immigration appeals tribunal discovering how it made decisions which involved the return of people to third world countries. We were impressed by the considerable degree of data collection and information available to those distinguished men and women. That information was frequently updated. It was presented and updated regularly by people from a wide range of organisations with real knowledge of the many countries in the word.
I do not wish to appear to be destructive in these arguments so I shall endeavour to be constructive. Has any consideration been given to the possibility of establishing an advisory committee which could help to establish whether countries were safe? It would be somewhat inadequate for that to be done by one government department, however wise and good. I believe that the noble Lord, Lord Phillips, said that appeals will find a way. Clause 10 is wide open to the possibility that virtually everyone will seek a judicial review by arguing that Article 3 of the Convention on Human Rights applies to him, and that therefore he cannot be sent back to a safe third country unless there are well established grounds for saying that it is safe.
In that context, I welcome the Minister's assurance on Clause 62(2), the somewhat disturbing clause which gives the Secretary of State the right to say that an appeal is manifestly unfounded. That will destroy the right of any further appeal. That does not apply to European convention cases. I ask the Minister to say a little more about the situation with regard to finding an appeal manifestly unfounded. Can that be done without close knowledge of the country to which it is suggested that the person should be returned?
§ Lord AveburyI remember rather well the proceedings on the Asylum and Immigration Act 1996 because I took each of the four countries that were designated as safe and showed in some detail—perhaps to the considerable ennui of your Lordships—why those countries should not be included on the "white" list, as many people erroneously called it.
In parenthesis, my noble friend Lady Williams may remember that it was suggested initially that Nigeria be included on the list, but there was such an outcry that it was removed. As I remember it, the list finally comprised Bulgaria, Ghana, India, Pakistan, Poland and Romania. I moved four amendments on that occasion in an attempt to eliminate from the list Bulgaria, Ghana, 116 India and Pakistan for reasons that I shall not go into again because they were rehearsed thoroughly at the time.
I tried to show that there were good reasons why people might fear persecution in those countries. As my noble friend said, those reasons can change rapidly. I draw your Lordships' attention to recent developments in Pakistan, where the Ahmadis have suffered severe persecution. Two of their religious leaders have been assassinated and many Ahmadis have been arrested on false charges of blasphemy, which carries the death penalty in Pakistan. The name of the city of Rabwa, which the Ahmadis founded, has been altered arbitrarily to a name that is permitted under the law that prevents the Ahmadis from using an Arabic term. The city carried its original name from its foundation and the Ahmadis built it from scratch into a flourishing, prosperous enterprise.
That is an example of the way in which conditions may deteriorate rapidly within a given state. Sectarianism and bigotry is causing a great deal of suffering not just to the Ahmadis, but to many religious groups—including the Christians—in Pakistan. There has been strife between the Sunnis and the Shi'as involving the mutual destruction of mosques, assassinations and so on, which, I am afraid, stems partly from the influence of neighbouring Afghanistan. We could discuss those matters in detail on another occasion. I simply illustrate the fact that, if we add a country to the list and say that nobody from that state has a reason for claiming persecution, we may find that conditions will change rapidly for the worst and people may have very good reasons for making asylum claims.
The Minister may be familiar with the case of a refugee from Pakistan who, after a long struggle over many years, was recently successful in his asylum action. I speak of Mr Khalid Lodhi, a distinguished journalist from Pakistan, who claimed asylum but was refused. He took his case to appeal and lost, but finally, after many struggles, managed to prevail when the court decided that his claim had foundation. Mr Lodhi had written a series of articles about corruption in Pakistan, criticising both the previous regime of Benazir Bhutto and the present regime under Mr Nawaz Sharif. Mr Lodhi feared persecution in Pakistan, and his fears were found to be genuine. He was finally allowed to remain in this country, against the diktat of the Home Office. What would have happened to him if—as is proposed under Clause 10—the Home Office had declared that Pakistan was a safe place? Would Mr Lodhi have been deprived of the opportunity to go to court and challenge the Home Office decision?
I think that it is very unsafe, on principle, to suggest that any country should be designated in the way that Clause 10 proposes. I would prefer to return to the pre-1996 situation, as the present Government advocated during debates at the time. They supported the idea that we should not have specially designated countries that were deemed to be safe. Now they have not only accepted the principle then laid down by the Tories, but they have embroidered upon it in this clause. I think that is a deplorable state of affairs.
§ 10 p.m.
§ Earl RussellMy noble friend Lord Avebury sells himself short. He talks of the ennui of the House, but in the course of those amendments, he provided me with one of my most delightful moments in this Chamber. The House was discussing Ghana. The noble Baroness, Lady Blatch, gave an account at great length of the quarrel between the president and the vice-president. My noble friend stood up and said, "That is not what the vice-president said to me on the telephone last Saturday". I do not expect again to have quite such a pleasurable moment.
Underneath that, this is a very serious issue. Countries change, and government policies towards those countries change, but they never change exactly in sequence. My parents' generation were used to regarding Italy as a particularly civilised country, but it took them quite a while to learn that that was no longer the case, especially once the trains were running on time. Our generation is capable of making exactly the same mistakes. Since the last election, we have had three very welcome changes of policy towards Kosovo, Algeria and Somalia. In 1997, 14 per cent of Algerians were granted asylum. In 1998, it was 88 per cent. That is a welcome change, but I do not believe that Algeria was very much more dangerous in 1998 than it was in 1997. The application of a rule simply because of a time lag does necessarily create a problem.
Furthermore, even where a country is generally extremely safe, as often—especially if you are white—the United States may be, there may be a problem for some particular people. The late Mr Matthew Shepherd, who was the victim of a homophobic murder in Wyoming, had he succeeded in getting out, would, I believe, have had a well-founded fear of persecution. Homosexuals are recognised by the Appellate Committee of this House as a particular group within the meaning of the convention. That could have been a perfectly genuine case from a country which provides very few such cases indeed. An assessment of a country is no substitute for individual scrutiny.
Another matter that worries me is the immense Henry VIII power in Clause 10(1)(b), which states:
a country other than a member State which is designated by order made by the Secretary of State for the purposes of this section".There is no limit on how far that could be used. It could be used under a future government in a quite different political climate, possibly for disapplying the legislation even to every country in the world. I see no immediate prospect of that, but putting powers of that kind on the statute book is not prudent legislation. King Henry VIII had some virtues, but I do not think that clauses of this kind are among them.
§ Lord Alton of LiverpoolI do not believe that I can share the noble Earl's enthusiasm for any of the so-called "virtues" of Henry VIII, but I agree entirely with him that Clause 10(1)(b) is—
§ Earl RussellI did not say he had very many.
§ Lord Alton of LiverpoolI am not sure that he had any at all, but we can resume that discussion elsewhere. 118 I agree with the noble Earl that the wide-ranging powers given to the Secretary of State are wholly undesirable and way beyond what should be offered in the scope of the Bill. I agree with the point made by the noble Lord, Lord Avebury, that we should revert to the pre-1996 position. That is precisely what the then Opposition argued in Committee when we considered the 1996 legislation. The noble Lord and the noble Earl, Lord Russell, expressed their sense of ennui concerning that legislation. Although I was not here then, I recall the debates in Standing Committee in another place where the very arguments put forward tonight by the noble Baroness, Lady Williams, about Nigeria were advanced by Members of the Labour Opposition and by myself. Indeed, we raised other examples such as Romania and that raised tonight by the noble Earl, Lord Russell, about the problems of sexual orientation and religious discrimination there. Those problems continue today.
The noble Lord, Lord Avebury, raised the issue of Pakistan and the use of the blasphemy laws there. It has been well documented world-wide by organisations such as the Jubilee Campaign and Christian Solidarity. It would by no means be a safe country to return people of that religious minority to that country. We should therefore be most careful about putting such power into this legislation.
If Clause 9 raised concerns in the context of the EU and states which might wish to join, how much more pernicious it is to give the Secretary of State the power to designate other countries as safe third countries outside the EU or North America? The arguments which were deployed earlier can be deployed here, but to an even greater extent. To enshrine in statute the presumption of a country's safety can take no account of rapid changes in the political and social climate in those countries. Before justifying such changes in Clauses 9 or 10, the Minister owes it to the Committee to describe how formidable are the problems by enumerating the number of attempts to challenge the Secretary of State at law during the past 12 months, since the 1996 legislation, where it was considered that there have been injustices. If that has not been a massive problem hitherto, I can see no justification for extending the powers and diminishing the right to go to law for those who feel that such clauses may adversely affect them.
§ Lord Cope of BerkeleyI shall not enter into the general questions raised by the debate, although they are pertinent. They have been covered thoroughly. I want to draw attention to the fact that the power, whether Henry VIII or otherwise, is very wide. The power in Clause 10(1)(b) appears to be circumscribed only by the negative procedure in Parliament. It will not be used all that often and therefore it would not be too great a burden on either House if the power were subject to affirmative resolutions. In view of the potential importance of the power, that would seem to be appropriate.
§ Lord Williams of MostynI hate to mention this, but Clause 10(1)(b) simply replicates the existing power in Section 2(3)(g) of the 1996 Act. So when phrases 119 such as "taking this new power" are used, I repeat that it is simply a replication of the existing power in the existing Act—
§ Lord AveburyThat does not make it any better.
§ Lord Williams of MostynIt does not make it any better, but it does not describe itself sensibly, accurately or appropriately as "this new power". That is the phrase with which I am dealing. It is important to remember that although one does not want to go around stirring up apathy, one does not want to stir up things which are factually incorrect. Of course that does not make it any better. I am simply saying that it is not, not, not a new power.
Clause 10(1)(b) says that even once an order is made designating a country as safe, the Secretary of State still has to certify in each case that removal is safe. Removal will also still be subject to the current judicial review challenges. There are at least two ducks that should now be dead.
Only four states outside the European Union have ever been designated as safe under the 1996 Act. They do not include Pakistan or any of the other countries that have been mentioned tonight. They include countries that, curiously, were not mentioned tonight, except in the context of one homophobic murder to which the noble Earl, Lord Russell, referred. The safe countries designated are Canada, Norway, Switzerland and the United States. That is a good illustration of the proposition that I have been putting.
§ Earl RussellAll that my noble friends have said is that at the time of the 1996 Act it was proposed to designate certain countries. That is what the then Minister told us.
§ Lord Williams of MostynThat supports my argument. Proposals can whistle. I am talking about what happened, not what your noble Lordships say is likely to happen, with the collapse of civilisation when the clause becomes law. That has not happened because there has been a good deal of cautious scrutiny. I repeat, however disagreeable the fact may be, that the only four countries involved are Canada, Norway, Switzerland and the United States. It is right to be cautious. Clause 10 reproduces the existing power without substantive change. Caution will continue to be applied.
The noble Baroness, Lady Williams of Crosby, asked about an advisory committee—perhaps even an informal one—or at least some mechanism to provide a basis of coherent thought for any judgment that might be arrived at. I am more than happy to give that idea consideration.
§ Baroness Williams of CrosbyI should like to ask one question for clarification. My understanding was that Clause 10 removed in-country appeal rights other 120 than under the ECHR—I believe that it is Article 3—in a way that is different from the 1986 Act. Is that incorrect?
§ Lord Williams of MostynThat is incorrect. As always, the Secretary of State's judgment will be subject to judicial review. There is no change to the opportunity for judicial review challenge.
I am not sure whether the noble Baroness heard me, but I was responding to her suggestion about an advisory committee or some similar mechanism. I shall give the idea every appropriate thought.
§ Lord AveburyIn giving the matter appropriate thought, will the Minister also undertake that such an advisory committee would be able to review the assessments that are published by the Home Office of individual countries and their human rights performance? I congratulate the Home Office on producing those assessments, which are a great advance on previous practice because they give references for all their statements whereas we used to get ex cathedra statements about the human rights performance of various countries. Every assertion in the assessments is referenced back to a document from sources such as the US State Department, Human Rights Watch reports or Amnesty International reports. However, there are still errors in the assessments. If the Secretary of State sets up such a committee, it would be useful if it could also review the factual content of the Home Office country assessments, covering not just what they contain, but what they sometimes omit, which is equally important for determining asylum applications.
§ Lord Williams of MostynI have simply said that I shall consider the ideas that have been put forward. One of the advantages of the late Henry VIII that has not been mentioned is that since his death ex cathedra announcements have not formed a significant part of the administration of the bureaucratic system in this country.
§ 10.15 p.m.
§ Baroness Williams of CrosbyI thank the Minister for agreeing to consider my suggestion. I hope I am not being too tedious in returning to what I believe is a point of misunderstanding between us, which I shall seek to clarify.
My understanding was, as the Minister said in his previous answer, that there would remain a right of judicial appeal from Clause 10 under certain considerations; in particular, if the person concerned argued on European Convention grounds that he should not be returned to a designated safe third country. My understanding was that no in-country appeal in this country still exists other than judicial review to a higher court with regard to being returned to a third country. That understanding was based on the case of Clause 9, on the similarity of EU structures to those of this country. I was pointing out that in the case of Clause 10, one could not make that argument. Am I 121 therefore incorrect in understanding that the appeal within this country other than through judicial review is in fact ceasing to exist?
§ Lord Williams of MostynI have tried to make it plain. There is no derogation from judicial review—
§ Lord AveburyThat was not the question.
§ Lord Williams of MostynIt is the answer, because it is quite important to get it right. There is no derogation from judicial review between Clause 10 and Clause 2(3) of the 1996 Act. The human rights appeals are to be found in Clause 55, where it is stated:
A person who alleges that an authority has, in taking any decision under the Immigration Acts relating to that person's entitlement to enter or remain in the United Kingdom, acted in breach of his humans rights may appeal to an adjudicator against that decision",that is, Acts made unlawful by section 6(1) of the Human Rights Act 1998.Subsection (2) states:
For the purposes of this Part, an authority acts in breach of a person's human rights if he acts, or fails to act...in a way which is made unlawful by section 6(1) of the Human Rights Act 1998.Subsections (4) and (5) apply if, in proceedings before an adjudicator … a question arises as to whether an authority has, in taking any decision under the Immigration Acts relating to the appellant's entitlement to enter or remain … acted in breach of the appellant's human rights.The adjudicator, or the Tribunal, has jurisdiction … "Authority" means … the Secretary of State … an immigration officer … a person responsible for the grant or refusal of entry clearance".Those are the rights set out in Clause 55. The judicial review challenge to the Home Secretary's "discretion" remains intact.
§ Earl RussellThere is a distinction to be made. Judicial review goes to the procedure, not to the merits.
§ Lord Williams of MostynJudicial review is not simply limited to procedure. It relates to reasonableness as well.
§ Earl RussellI was well aware of that. But it does not normally relate to the main body of the merits. Let us suppose that someone wished to contest the rule under Clause 10 on the grounds that the Home Secretary had mistaken his nationality. Disputes about nationality are by no means unknown. Is that going to be excluded?
§ Lord Williams of MostynDisputes about nationality under Clause 10 have nothing to do with judicial review, except if, on Wednesbury principles or procedure principles, the judicial review can bite. If the Home Secretary comes to a factual conclusion which is unreasonable, then the courts can act in appropriate 122 cases. That has always been the case in this country and the general development of judicial review indicates that.
§ Earl RussellOf course I understand that. A conclusion may be "reasonable", and yet nevertheless it may actually be incorrect. In such a case I want to find out what is the position under this Bill.
§ Lord Williams of MostynI cannot produce hypothetical answers to every conceivable question that may be put by the noble Earl. If the Secretary of State comes to a conclusion which is procedurally inappropriate, irrational or unreasonable on Wednesbury grounds, he is still liable to judicial challenge.
§ Clause 10, as amended, agreed to.
§ Clause 11 agreed to.
§ Clause 12 [Security on grant of entry clearance]:
§ Lord Cope of Berkeley moved Amendment No. 31:
§ Page 8, line 6, leave out ("In such circumstances as may be specified,").
§ The noble Lord said: We move from the wide spaces and great heights of the previous discussions to small pieces of nitty gritty. Amendment No. 31 stands in my name and that of my noble and learned friend Lord Mackay of Drumadoon.
§ Clauses 12 and 13 seek to confer powers on the Government to enable them to introduce a financial bond scheme for visitors to the United Kingdom. At present, this is proposed under Clause 12 in such circumstances as may be specified. It is an extremely wide provision. The purpose of the amendment is to try to stipulate the circumstances when a financial bond will be required. It is a question of certainty in the law and of people knowing where they stand.
§ Amendment No. 32, in the same grouping, is at least one attempt to set out the type of circumstances which the Secretary of State might like to set down. We are not trying to be prescriptive with this collection of circumstances but to suggest the type of circumstances which might be included in the Bill. I do not, therefore, propose to discuss in detail the different reasons we have proposed in Amendment No. 32, They could be discussed in more detail if the Government were prepared to agree that a little more detail sh3uld he given as to the specific circumstances in which they think this power might be used. I beg to move.
§ Viscount BrentfordWhen I read this clause I thought that this seemed a very odd phrase; namely,
In such circumstances as may be specified".Therefore, I commend the amendment moved by my noble friend to the Committee. I wondered whether the phrase meant "in such circumstances as may be specified in the immigration rules". If that is the case, I wonder whether that could be put on to the face of the Bill. That would help to clarify what is meant by,In such circumstances as may be specified".Clearly, there are advantages in writing the circumstances involved on to the face of the Bill to make them crystal clear. However, the Minister may say 123 that the circumstances may need to change from time to time and it would be an encumbrance if they were written into the Bill. However, I strongly feel that some amendment is needed to this phrase, which I consider to be unsatisfactory.
§ Baroness Williams of CrosbyWe, too, support Amendments Nos. 31 and 32. It seems to us that they improve the Bill and make it clearer. They indicate precisely the circumstances in which a bond might be required. Given the fact that we would hope to wish the scheme well, it seems that Amendments Nos. 31 and 32 assist in making plain to people who are involved in the possible bond scheme, the terms under which they are entering into such a scheme. We support the amendments.
§ Lord DholakiaI support the comments made by my noble friend Lady Williams. One concern I have is how this clause is to be interpreted. Is it possible for the Home Office to issue criteria or guidelines in terms of the bond that would be required? The reason I ask is that those of us who have experience of immigration cases know that those who are rich, can afford to pay. Many people do not have those resources but would like to visit relations and other people in this country, but they could be deterred from coming here completely. There should be some written criteria which can easily be understood by the immigration officers. Applicants coming to this country would then know precisely what the requirements were and there would be less chance of discrimination against young people and poorer people.
§ Lord Falconer of ThorotonI am grateful for the opportunity to say a little about this provision. The Secretary of State would specify by immigration rules the circumstances in which security may be required, how that security should be given, and the circumstances in which it would be forfeit. That the Secretary of State must specify by immigration rules is made explicit in Clause 12(7), which states that "specified" means "specified by immigration rules". Subsections (4) and (6) of Clause 12 set out what the rules must specify. There is no lack of clarity about the way in which the clause is designed to operate.
The amendment seeks to specify two types of case where financial security may be required and specifies them as exhaustive circumstances; namely, where the Secretary of State has reasonable grounds for believing that an applicant would not leave the United Kingdom within his permitted period of leave, and where the applicant has a previous conviction for dishonesty. It would be inappropriate to include those provisions in the Bill because the point is already dealt with by immigration rules and is too limited.
In regard to the circumstances proposed in the amendment, I suggest, with great diffidence, that they are misconceived for two reasons. In relation to the first one—namely, that the Secretary of State has reasonable grounds for believing that an applicant would not leave the United Kingdom—if the Secretary of State did believe that, he could not grant leave to enter in the first 124 place, and the issue of security would not arise. The purpose of the bond scheme is to deal with a borderline case, not with a case where he reasonably believes that that person will not enter.
The second criterion—where an applicant has a conviction for an offence involving dishonesty—is also unhelpful. There will be many cases where some minor act of dishonesty in years past is, frankly, neither here nor there when it comes to assessing a prospective visitor's intention to leave the United Kingdom. It would be impracticable in many cases to check someone's criminal record, at least not without substantially delaying the application. Such information is hardly likely to be volunteered by applicants.
I appreciate that the noble Lord, Lord Cope, is not saying that this is exhaustive. I also appreciate that this is a probing amendment. I hope that I have explained the situation sufficiently and dealt with the noble Lord's questions. I invite the noble Lord to withdraw the amendment.
§ Lord AveburyWould it not be slightly more elegant to say in subsection (2) "in such circumstances as may be specified by immigration rules" instead of the definition specified in subsection (7)? Then one can do without subsection (7) altogether.
§ Lord Falconer of ThorotonThe reason why it is dealt with in that way is because, as the noble Lord will have spotted, the word "specified" appears in subsections (1), (2) and (6) of Clause 12.
§ Lord Cope of BerkeleyIt is irritating when one thinks of a good way to shorten a Bill and discovers that it does not work. But it happens frequently to me so I have sympathy with the noble Lord, Lord Avebury, in this case. I am grateful for the Minister's response and in the circumstances beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendment No. 32 not moved.]
§ Clause 12 agreed to.
§ Clauses 13 to 15 agreed to.
§ 10.30 p.m.
§ Clause 16 [Supply of information to Secretary of State]:
§ Lord Cope of Berkeley moved Amendment No. 33:
§ Page 11, line 34, leave out paragraph (e).
§ The noble Lord said: Section 16 provides for all sorts of information held by public sector departments to be passed to the Secretary of State to be used for "immigration purposes". Such public sectors are the police, Customs and Excise and "any specified person". That appears to take the clause wider than simply government departments. It does not say "any specified person within government" but one assumes that that is what is meant.
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§
Amendment No. 16 draws attention to the purposes for which the information may be supplied. Subsection (2) states:
The information may be supplied to the Secretary of State for use for immigration purposes".
§
But on closer examination "immigration purposes" turns out to mean, according to subsection (3)(e),
such other purposes as may be specified".
§ It is not therefore confined to immigration purposes; it is any purpose which is specified.
§ I realise that freedom of information is highly fashionable these days, but so is personal privacy. And this clause relates to personal information. One of the strengths of this country is that, though different departments of the government machinery possess information on individuals, those individuals can rely on that information remaining within that department.
§ Government centrally has become rather leaky—I do not intend that to be a reference to the present Government; the previous government were not much better (though I would argue that they were a little better)—but departments like the Inland Revenue, Customs and Excise and the police are extremely reliable in looking after the information on the citizens with whom they come in contact. One cannot say that about other countries.
§
From time to time Parliament has given permission for different departments within government to pass information from one department to another, but it does so very reluctantly. This is therefore an extremely wide power. If it was solely for the purposes of improving immigration control, it may be understandable, but a phrase like,
such other purposes as may be specified",
is extremely wide and takes it potentially way outside the purposes of immigration. I beg to move.
§ Baroness Williams of CrosbyI rise in support of the amendment moved by the noble Lord, Lord Cope of Berkeley. Like him I am a little puzzled by subsection (3)(e) in that it seems to be cast in extremely wide terms and one cannot understand why. Paragraphs (a) to (d) appear to cover the waterfront pretty well in relation to immigration and customs, and then one finds this catch-all in subsection (3)(e) which makes one extremely suspicious. It does not appear to be in the spirit of the Data Protection Acts, which attempt to limit the amount of private data that can be made available, and it is likely to run into grave difficulties on the ground of the devolution of power with regard to police operations to Scotland—to take one example. If the power is so widely expressed, one would need at the very least to be sure that the Scottish Parliament, the Welsh Assembly and whatever devolutionary structure is eventually agreed for Northern Ireland are all satisfied about the use of such information.
The Minister may be able to tell us that the scope of that provision is much narrower than it seems, in which case we will all he reassured. Some of us want to press 126 for better wording than that found in Clause 16 which arouses deep suspicions that are probably unjustified. That is the fault of the draftsman, not the Committee.
§ Viscount BrentfordI also endorse the amendment. The word "specified" is rather getting up my nose. It occurs again in the next clause, and the interpretation is thrown back onto this clause—with a different interpretation than in a previous amendment.
I take subsection (3)(e) to mean such other purposes in connection with immigration as may be specified. If the subsection said that, I would be much happier. The existing wording is a wide and blanket phrase. I appreciate that is something any government like to give themselves, but others would not necessarily agree with it. I look forward to the Minister's explanation, but I would like that provision limited to the subject in mind.
§ Lord Falconer of ThorotonOne of the key aims of the Bill is to create modern and flexible immigration control. It is essential that the Secretary of State should be able in future to receive information for any new immigration purposes that may arise. Removing subsection (3)(e) would preclude that happening. Limiting the desired flexibility would prevent information being received that might be needed to deal with emerging threats to immigration control.
The words,
such other purposes as may be specified".would obviously be construed as being ejusdem generis with subsection (3)(a) to (d). When determining what "such other purposes" could embrace, they must be something to do with immigration control. The words must be construed within the four corners of the enabling statute.It is impossible to predict at this time all the threats to immigration control that may face us in future. They may arise at short notice and require swift action, hence the need for the flexibility provided by Clause 16.
We accept of course that the power must be properly controlled. The order-making power that subsection (3)(e) provides will be subject to the affirmative resolution procedure—something that the Select Committee on Delegated Powers and Deregulation indicated is appropriate. That procedure, together with adherence to the requirements under data protection legislation and the Human Rights Act—both of which would apply—will provide adequate safeguards.
It is sensible that there should be such a power because one cannot accurately predict how people might seek to evade or undermine the sensible immigration controls contained in the statute. I invite the noble Lord to withdraw his amendment.
§ Lord AveburyThe Minister said that the provision will be interpreted as ejusdem generis with subsection (3)(a) to (d) and as being coterminous with the purposes of the Bill. Those purposes are far wider than paragraphs (a) to (d), as one can see from the Long Title, which extends to procedures in connection with marriage on a superintendent 127 registrar's certificate and for connected purposes. Therefore, the "connected purposes" go infinitely wider than paragraphs (a) to (d) in subsection (3).
It would be most helpful if the noble and learned Lord would agree that we should insert wording at a future stage of the Bill which makes it absolutely clear that these other purposes are to be, ejusdem generis, as regards paragraphs (a) to (d) and not coterminous with the purposes of the legislation as a whole.
§ Lord Falconer of ThorotonWith the greatest respect to the noble Lord, I do not think that that would be appropriate for two reasons. First, if we were to satisfy both the wide purpose and the ejusdem generis rule in relation to (a) to (d) that would provide two cumulative hurdles, which the particular purpose chosen would have to overcome. Secondly, as a matter of construction, it would be construed ejusdem generis in any event with paragraph (e) and, therefore, it would be quite unnecessary.
§ Lord Cope of BerkeleyThe Minister may tell us that it is quite unnecessary but I am not sure why we cannot simply add the word "immigration" after the word "other", so as to make the paragraph read,
such other immigration purposes as may be specified".It is not as if paragraphs (a) to (d) are very narrow; indeed, as far as I can see, they cover the whole of immigration control and all immigration Acts both now and in the future. They cover prevention, detection, investigation and prosecution of criminal offences under all those Acts. As it is, they are enormously wide in immigration control terms.However, I was interested to hear the noble and learned Lord say that the Data Protection Act will cover this point. Can he confirm to me that this means that, if any piece of information is being supplied from one of these institutions to the immigration control people, the fact that such information is being supplied will be made known to the person to whom the information relates and that the content of such information will also be available to him? I believe that that would probably be the effect of the Data Protection Act on these matters, assuming that the person concerned thought it might be possible and actually asked if that was so. Of course, I may be remembering the Data Protection Act incorrectly in that respect.
§ Lord Falconer of ThorotonI am sure that the noble Lord will sympathise with me if I do not seek to give too detailed an answer in relation to data protection. However, I shall outline the basic position. The practical operation of the statutory gateways created by the whole of this clause will be subject to the relevant requirements of the ECHR and data protection legislation. This means that when you are providing information from one body to another, even one designated under paragraph (e), you must comply with all the data protection legislation in so far as it is relevant. I shall not be so bold as to indicate what the 128 detail of that would be, but I hope that that explanation gives the noble Lord an indication of what the effect would be of this particular revision.
§ Lord Cope of BerkeleyI wonder whether the noble and learned Lord could expand that explanation by letter when he has had the opportunity to look into the matter.
Judging by subsection (6) of this clause, it seems to me that this is not really a very limiting matter in any case. It says:
This section does not limit the circumstances in which information may be supplied apart from this section".So all sorts of information may be passed about which is not confined by this provision at all. Indeed, in a sense, one begins to wonder what the purpose of the clause is if anything can be passed about in other ways. However, I shall not pursue that point because it falls outside the terms of my amendment. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Clause 16 agreed to.
§ Clause 17 agreed to.
§ Lord Dholakia movedAmendment No. 33A:
Before Clause 18, insert the following new clause—
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cc128-47
- EMPLOYMENT OF ILLEGAL IMMIGRANTS PENALTIES 9,807 words cc147-64
- CHARGES: IMMIGRATION CONTROL 8,796 words