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Lord Lester of Herne Hill: My Lords, your Lordships have listened with great attention to two very full and detailed speeches and the House will be grateful for both of them. I hope noble Lords will forgive me if I speak rather more briefly and focus on principles. Also, I shall try to speak, so far as I can, not as a lawyer. I may fail, but I shall do my best.
The Bill is the latest in the long line of legislative measures on immigration and asylum. Some of those measures, which were strongly contested at the time, are now accepted as necessary. Some are unsightly measures which are or should be unacceptable in a democratic society concerned with promoting what my noble friend Lord Jenkins of Hillhead memorably defined 30 years ago as a national goal:
The Government apparently share those enlightened ideals, as the noble Baroness the Minister indicated at the outset of her speech. The Government recently informed the rather obscure body, the UN Committee on the Elimination of Racial Discrimination, that they aim:
That statement is most welcome. I only wish that it could have been made by the Home Secretary, not only in a little read report to a specialised UN human rights body, or for that matter in a welcome passage of a speech in this Chamber, but also in a major speech in the glare of mass publicity to the annual conference of his party.
The Government see no contradiction between their vision of a multi-ethnic plural society and the present Bill. I accept that, as a matter of pure logic, there is no inherent contradiction. It is entirely possible to pursue the twin goals of racial equality and of firm but fair control over immigration and asylum. But that is only possible if there is an equal commitment to both goals and a willingness to resist the political temptation to exploit racial anxiety and prejudice in the pursuit of the popular vote, especially at election time. No political party has a monopoly of virtue or vice. The temptation is always there in the pursuit of political power, whether by those who already have power or those who seek it.
Perhaps my noble friends on the other Benches will forgive me for saying that it was a Labour Government which introduced the Commonwealth Immigrants Act 1968, which took away from British Asian passport-holders from East Africa their right of entry to and residence in this country, which was their only country of citizenship. Their numbers were relatively small but public hostility was whipped up against them and Parliament was persuaded to pass what amounted to emergency legislation to take away what had been promised to them by a Conservative Government; namely, a right of refuge in this country. The European Commission on Human Rights, in a test case in which I was advocate, found that the racial discrimination to which those British Asians had been publicly subjected constituted an interference with their human dignity, amounting to degrading treatment in breach of the convention. That was an example of an unsightly measure for which a Labour Government was responsible. By contrast, in 1972, when the noble Lord, Lord Carr of Hadley, was Home Secretary, Sir Edward Heath's Administration swiftly and honourably accepted 25,000 Ugandan Asian refugees expelled by Idi Amin.
As for my own party, although it has an honourable tradition of promoting racial justice and equality, there have been some--happily a small minority--who have not resisted the temptation to play the race card, in thinly coded language. Two years ago, together with my noble friend Lord Tope and other colleagues, I had the unhappy task of inquiring into allegations of racism made against local Liberal Democrats in Tower Hamlets in the wake of a by-election victory by the BNP. Sadly, we found some of those allegations to be well-founded.
I say that because it shows that immigration, race relations and politics do not mix well. I therefore approach the present Bill with a degree of scepticism about the political imperative for its introduction; I approach it with anxiety about the way in which the Bill and its passage will increase insecurity and alienation, whatever the noble Baroness the Minister may say, in minority communities; and I approach it with concern about the way in which the Bill's critics, including myself--though that does not matter--will be falsely and outrageously portrayed at the hustings as supporting an open-door policy on asylum and immigration which is wholly untrue.
I accept that the Government's stated aims in introducing the Bill are entirely legitimate; namely, strengthening our asylum procedures to deal more quickly with bogus claims and appeals, combating immigration racketeering and reducing the economic incentives which attract people to come to this country in breach of our immigration laws. But the means chosen to achieve those aims are manifestly unfair and excessive, lacking, in my view, any proper sense of proportion or fair play. The Bill is a tightly-meshed net designed to filter out illegal immigrants, but its cumulative measures will also catch genuine refugees.
It is less than three years since the Asylum and Immigration Appeals Act became law. Why, I ask myself, do we need these further measures so soon? Why do we need them without any further evidence of any sufficient mischief to justify such harsh measures? The Government claim that we are overwhelmed by bogus applications. But, according to a Home Office memorandum placed in the Library as a result of a Question I asked, applications by asylum seekers peaked in 1991. The Home Office claims that because only 4 per cent. of applicants are deemed to be genuine refugees and only 4 per cent. of appeals to special adjudicators are upheld, the majority of applicants must be fraudulent and so the law should be further tightened. That takes no account whatever of the obvious difficulties which genuine asylum seekers face in proving their claims. It also takes no account of the fact that an additional 19 per cent. of applicants are, as the Minister indicated, given exceptional leave to remain on humanitarian grounds.
Last year the Government announced that £37 million would be spent on extra asylum case-workers and adjudicators over the next three years. Devoting increasing resources to processing claims expeditiously is most welcome. But I wonder why, then, the Government are introducing legislation before the results of that very welcome initiative in clearing the
The Bill extends the fast-track appeals procedure for what are called claims "without foundation", so as to include claims by applicants from a so-called "safe" country of origin and by those who arrive in the UK without a valid passport. That, I suggest, is unfair and unjust. Claims by applicants from so-called "safe" countries are not necessarily unfounded. The last thing on a refugee's mind as he flees from a country in fear of his life may be whether his papers are in order.
The Bill requires a higher standard of proof of asylum seekers escaping from so-called white list countries when seeking to prove the merits of their claims. Because of the pressures of time and resources upon hard-pressed immigration officers, it will be a short step, in my judgment, from presumption to prejudgment on the basis of a general designation of the country of origin. That will certainly breach Article 3 of the Refugee Convention which forbids discrimination based on country of origin. The Government argue that there will be no blanket prejudgment. I am bound to say that I doubt whether it will be avoided in practice.
In view of the effect of listing a country as "safe" on the rights and freedoms of the individual, I, like the noble Lord, Lord McIntosh, applaud the advice given to the House by the Delegated Powers Scrutiny Committee that affirmative procedure should be required for the initial designation of countries on the list. I agree with the noble Lord, Lord McIntosh, also that, when other countries are added in future, the same procedure should surely apply. I hope that the Minister will, in due course, introduce an appropriate amendment on that basis.
Inevitably the extension of the fast-track procedure will lead to more appeals to adjudicators in cases where the merits have not been properly examined. That will increase the heavy burdens already placed on the shoulders of our hard-pressed adjudicators. Most unfortunately, applicants in those cases will have no right of appeal to the Immigration Appeals Tribunal. One of the most unfortunate aspects of that is that it will undoubtedly increase the number of applications for judicial review when a sensible policy would be to diminish the use of judicial review by expanding the role of the specialist appeal tribunal. Without taking time on this matter, in Australia they have realised the wisdom of a specialist administrative appeals system as a way of diminishing the much more costly and inefficient processes of judicial review.
The Government seek to remove the suspensive effect of appeals against removal where asylum seekers are removed to a member state of the European Union or to other countries deemed to be "safe". The right of appeal will continue to be available in theory, but Clause 3 is likely to render it inaccessible and ineffective in practice, even elsewhere in the European Union, because of the formidable difficulties in preparing
An applicant in the process of trying to bring an appeal in the UK may end up being shuttlecocked from country to country, possibly even ending up in the country of the regime from which he originally fled, in violation of the internationally guaranteed obligation of "non refoulement". The fact that, in some cases, his ultimate destination will be a country on the Home Secretary's white list is unlikely to be of much comfort to him.
Those applicants who do not find themselves sent to a third country may well come to wish that they had been, as a result of Clauses 9 and 10 of the Bill and the withdrawal of social security benefits from many asylum seekers and their families. Instead of taking effective administrative measures to clear the enormous backlog of applications by asylum seekers, the Government have introduced legislative measures which are likely to force refugees and illegal immigrants alike into conditions of poverty.
The restrictions on employment imposed by Clause 8 are as unwelcome to employers as they are to immigrant employees. Employers are not trained to act as immigration or police officers. It would be understandable, if unlawful, if many employers chose to exclude non-white staff or those with foreign-sounding names to minimise the risk of committing a criminal offence. I know that the noble Baroness the Minister thinks that unlikely, but the Government speak quite often and rightly of the burdens on small firms. Frankly, looking at the risks to which this Bill gives rise and the obligations imposed on employers, it is not fanciful to think that at any rate bad employers may decide to take the easy way out and to discriminate on the basis of race, colour or origin.
The proposal will have only a small compliance cost for the Government, but the burdens on employers, especially small businesses, will be great. It may or may not be effective in reducing the number of illegal immigrants in employment in the United Kingdom, yet for this uncertain outcome, the Bill risks disproportionately damaging race relations in this country and creating a culture of suspicion between employer and employed, including those who are black British-born, British citizens, and those who are lawfully settled in this country--the inadvertent innocent victims of such an outcome.
A system of control over asylum seekers and immigrants should be firm and effective, but it should also be fair and humane. It should ensure that those in genuine need of protection receive it, and that those who, after a full and fair hearing and appeal, have had their claims refused are swiftly removed from the United Kingdom. The Bill approaches the problem of economic migration in a piecemeal way which may make it at least as difficult for genuine refugees to enter the process as illegal immigrants. It will encourage refugees to work illegally if they are to survive. It will jeopardise good race relations. It will flout traditional principles of fair
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