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Lord Dubs: Before the Minister sits down, may I put one further question to him? Assuming, as he says, that the Government will facilitate such a telephone conversation with a lawyer or a person from IAS or the refugee legal centre, if the case is complicated and the adviser believes that the matter cannot be fully resolved on the telephone, will the Government make it possible for a meeting to take place between the adviser and the asylum seeker before the latter is removed?

Lord Mackay of Drumadoon: The point raised by the noble Lord is a valid one. I shall take instructions on it. However, I am in a position to say--and this will come as no surprise to the Committee--that if it is clear that an application for judicial review is imminent, then to avoid any embarrassment and inhumanity, some delay will be allowed to allow the application for leave for judicial review to be made. If that is granted, then in practical terms that has the effect of staying removal until the case has been heard by the High Court.

As regards guaranteeing that there will be sufficient delay to allow a lawyer of an applicant's choice to attend on the applicant, and although I can understand why the point has been made, at present I am not in a position to give such an assurance, but I shall take instructions on it.

Lord Dubs: The Minister has certainly met the issue part of the way by saying that he will take instructions on it and will consider it further. On that basis I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 39 not moved]

Lord Clinton-Davis moved Amendment No. 40:

Page 3, line 16, leave out from ("State") to end of line 17.

The noble Lord said: This amendment stands in the names of my noble friends Lord McIntosh and Lord Dubs and in that of the noble Earl, Lord Russell. I should declare at once that I am a president and former chairman of the Refugee Council.

We are seeking to ensure that only European member state countries will be considered safe third countries for the purposes of those not entitled to an in-country right of appeal. The mischief, as we see it, in the Bill as it stands in this regard is that it would be open to the Secretary of State to add other countries--whatever countries he saw fit--to the list, allowing removal without an in-country right of appeal. Unsafe countries could thus be added, but Parliament would have absolutely no right to comment before the additions to the list were made, resulting in removals without a prior right of appeal. That is a serious situation. In fact, the Government took a position previously and succumbed to pressure which moved them away from that position in another place. The United Nations High Commissioner for Refugees also criticised the Government. Although they have retreated from their

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original position, there is absolutely no assurance that they would not revert to that stance either in part or in whole once the Bill is enacted.

I want to ask the Minister why there is a need for a list of safe countries at all. The fact is that 95 per cent. of all current cases involve return to EU member states, so we are left with the remaining 5 per cent. Does that really justify a special list?

The Refugee Legal Centre and UNHCR undertook a certain amount of research into that situation and an analysis of the 736 safe third countries determined between September 1994 and December 1995. The few non-EU member states to which the Home Office proposed removal numbered only 10, involving a very small number of cases. In two-thirds of cases, the certificate that the removal to the country was safe was overturned by a special adjudicator. I repeat: why do we need a special list?

The Lord Advocate referred earlier to the fact that he doubted whether Switzerland could possibly be regarded as other than a safe country, but in fact we have cases where the special adjudicators overturned two-thirds of the decisions involving return to Switzerland. I repeat: is there any purpose in having a safe list? I beg to move.

Earl Russell: I rise briefly to clarify the procedure that is involved in the designation. The provisions state "by order". As I understand it, they do not state "by statutory instrument", so it is my understanding that there is no parliamentary control over the operation of this.

This is an argument about delegated powers, which the noble Baroness and I have had so many times that we could do it in our sleep. I assure her that I am not asking her to do that. The noble Baroness will, of course, invoke flexibility. I point out that her flexibility is everybody else's inflexibility. However, I am deeply grateful for her concession on this in the course of moving Amendment No. 1 a week ago. Would it be in the spirit of that concession to make some concession to an expression of parliamentary opinion that the designation of a particular country was not, in fact, desirable? Would the Government pay attention to that if it happened? If they would, it would relieve me greatly.

Baroness Blatch: I find this debate extraordinary from noble Lords who have taken such a close interest in the Bill. First, the noble Lord, Lord Clinton-Davis, is actually wrong. I know that he has not been present throughout all our discussions on the Bill. The Secretary of State cannot, simply on a whim, add a country to the list. There is no way in which he can do that. That is done by Parliament under the negative resolution procedure. The noble Lord can see from the next amendments which stand in my name that,

    "The first order under this section shall not be made unless a draft of the order has been laid before and approved by a resolution of each House of Parliament",

and that,

    "A statutory instrument containing a subsequent order under this section shall be subject to annulment in pursuance of a resolution of either House of Parliament".

That is a fundamental misunderstanding.

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The noble Earl, Lord Russell, referred to a concession that I had made in debating Clause 1. I noted his excitement about what I had said. I was simply reminding the Committee that when an order came before the House under the affirmative resolution procedure it had to take a view upon it. If for some reason it was believed that that order was not fit to be approved, it would be for the House to take that view, whether in whole or part. The noble Earl knows that it is not possible to amend the order on the Floor of the House. It would be a matter of rejecting or accepting the order.

We have taken the power to extend non-suspensive appeals to non-European Union countries. There are some countries outside the European Union which have proven and highly developed asylum procedures. It is not sensible that an asylum seeker should be able to delay removal by disputing the safety of Switzerland, for example, any more than it is sensible for an applicant to be able to delay removal by disputing the safety of a European Union member state. The Government believe that an out-of-country appeal is an adequate safeguard for asylum seekers who are to be returned to countries with highly developed and proven asylum procedures. That will be the key criterion for designation under Clause 2. The United States, Switzerland, Norway and Canada meet that condition. Those four countries are candidates for designation under Clause 2.

We will use the designation power under Clause 2 sparingly. We may wish to extend non-suspensive appeals to a country such as Australia (to which the noble Earl was anxious to send me a few moments ago) if we begin to receive asylum applicants who have travelled via that country. But we would not want to use the power under Clause 2 to extend non-suspensive appeals to countries which did not have proven asylum procedures. We do not envisage that we will make frequent additions to the list of countries to which applicants may be removed without a suspensive right of appeal.

I defend my right honourable friend. He is not up to any mischief. It is for Parliament to decide whether or not to add other countries to the list.

Lord Avebury: Does that mean that the Minister's colleagues have no intention of adding Dominica to the list? Although I have tried to probe this matter on several occasions, the noble Baroness has not given me a direct answer. I do not think anybody can say that Dominica has highly developed and proven asylum procedures; yet, as the noble Baroness will concede, the Government recently attempted to send someone to that country. I think that we should be told more about those countries it is intended to add to the list, apart from those already mentioned. If those are the only four countries that the Secretary of State has in mind, we know exactly where we are, but if we give him an open-ended power to add whatever countries he sees fit to add in future, even though it is to be subject to the affirmative resolution procedure, it will confer far too wide a power on him, bearing in mind the conduct that he has exhibited in other cases in the past.

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I also take this opportunity to ask the noble Baroness why this subsection, if it were to be amended in the manner suggested, would refer to a member state and not a member state of the European Union. Was it the intention of the draftsman that one should be left to guess whether "member state" meant a member of the European Union, the United Nations, the OSCE or any other multi-lateral organisation of which Britain was a member?

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