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Baroness Blatch: To deal with the final point raised by the noble Lord, my understanding is that it is quite common in legislation to refer to member states. It assumes that they are members of the European Union and not any other group. I refer to the European Communities Act 1972. I am saying that it is normal, and it is assumed that it is EU members and not members of any other grouping.

I have to return to what is being said glibly in the debate: references to the Home Secretary having a wide open power to use as he wishes. He does not. But of course the power in the Bill to add additional countries continues. It will be, if my amendments are accepted, for Parliament to take a view. We have no plans to add Dominica to the list. I have given the number of countries that we consider, but I cannot say that Dominica would not at some future time be a candidate for the list. We have no plans to add Dominica to the list. I have given the number of countries that we envisage. I have said also that we would not wish to add to the list frequently.

10.45 p.m.

Lord Clinton-Davis: With respect, the Minister has not answered the point I made. She has said that the Government have kindly agreed to introduce an amendment, to which we shall be coming in a moment, so that a statutory instrument will have to be approved by both Houses of Parliament. I understand that. But, as we know, the difficulty in dealing with subordinate legislation of this kind is that the Government are unlikely to be at any risk.

I repeat the question I posed earlier. In the light of the evidence that exists, why do we need to have this list of safe third countries? I shall give the Minister chapter and verse now. I thought that she had known about the situation. Let me go over the research that was undertaken to which I referred earlier. The only non-EU member states to which the Home Office proposed removal were: Bulgaria, two cases (0.3 per cent. of the sample); Czech Republic, two cases (0.3 per cent.); Kenya, 20 cases (2.7 per cent.); Romania, one case (0.l per cent.); Tanzania, three cases (0.4 per cent.); Canada, one case ( 0.l per cent.); Hong Kong, one case (0.l per cent.); Norway, one case (0.l per cent.); Switzerland, six cases (0.8 per cent.)--I have referred

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earlier to what happened in some of the Swiss cases--and the USA, eight cases (l.l per cent.). It is almost a case of de minimis, is it not?

Baroness Blatch: I do not know why the noble Lord is running through a list of countries which have not featured in my thinking as candidates for the list.

Lord Clinton-Davis: They are non-EU member states.

Baroness Blatch: I have given the countries that we have it in mind to add. I have also said that it will be for Parliament, through the normal procedures, to determine whether countries are added to the list. The noble Lord asked me why we need a safe third-country principle in the first place. We know that noble Lords opposite did not like Clause l. We now know that they are pretty unhappy with the principle of a safe third country in Clause 2. I am at a loss as to how noble Lords can at any time profess to be broadly in favour of the Bill. It is becoming pretty clear that noble Lords opposite are not in favour of the Bill.

Perhaps I may answer the direct question asked by the noble Lord, Lord Clinton-Davis. It is an internationally accepted principle that asylum seekers should seek the protection of the first safe country that they reach. In general, we do not consider that applicants should be able to pick and choose their preferred country of refuge. Where there is evidence that an applicant travelled through another safe country en route to the UK, that person's asylum application may be refused without the substantive merits of the asylum claim being considered. They may be removed to the third country, in which they can then apply for asylum. That principle has operated for many years.

We have created Clause 2 which gives a non-suspensive appeal right to a person coming from one of those countries which will be designated. The noble Lord is looking awfully bored. I have been here for very much longer than he has. I have to stay the pace, so I hope that he will at least hear me out while I answer his questions.

Lord Clinton-Davis: I have said nothing.

Baroness Blatch: It was the body language to which I was referring.

Lord Clinton-Davis: Body language? I was looking at my noble friend.

Baroness Blatch: The Government have created a non-suspensive appeal right. We have restricted it so far to EU member states. We have given an indication that we intend to consider additional countries. I have named which they are likely to be. I have said that we do not envisage using the measure frequently. I believe that it is a power that should be included in the Bill. I hope that the Committee will accept it.

Lord Clinton-Davis: I suppose that body language is definitively out in this Chamber. If I see any Members of the Committee engaging in body language I shall

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create a scene, I promise! There is to be no body language here. However, there is discontent and the Minister has not answered the point that I raised. We are dealing with a situation which is plainly de minimis in terms of the evidence. I have a high personal regard for the Minister, as she knows, but that does not stop me criticising her on a matter of substance. Body language or not, the Minister has not dealt with the evidence, which is plain, and I have a feeling that she is not going to deal with it tonight. Am I right or wrong?

Baroness Blatch: Read the body language!

Lord Clinton-Davis: She is not going to deal with it. I am not satisfied with the response but I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Blatch moved Amendment No. 41:

Page 3, line 17, at end insert ("by statutory instrument").

The noble Baroness said: In moving Amendment No. 41, I shall speak also to Amendment No. 42. Unless the noble Earl, Lord Russell, has any objection, in order to save time I shall refer to his Amendments Nos. 42A and 42B.

Earl Russell: On this occasion I shall not move my amendments.

Baroness Blatch: In that case, I shall speak to my own amendments. I have already explained to the Committee that we are taking the power to extend non-suspensive appeals to non-European countries because there are some countries outside the European Union which have proven highly developed asylum procedures. We have considered carefully the report of the Select Committee on the scrutiny of delegated powers. We have accepted its recommendation that the initial order designating safe third countries to which applicants may be returned without a suspensive right of appeal should be subject to the affirmative resolution procedure. Government Amendments Nos. 41 and 42 give effect to that recommendation. I beg to move.

On Question, amendment agreed to.

Baroness Blatch moved Amendment No. 42:

Page 3, leave out lines 18 to 20 and insert--
("( ) 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.
( ) 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.").

The noble Baroness said: I beg to move.

On Question, amendment agreed to.

[Amendments Nos. 42A and 42B, as amendments to Amendment No. 42, not moved.]

[Amendments Nos. 43 to 45 not moved.]

Clause 2, as amended, agreed to.

Clause 3 [Appeals against certificates under section 2]:

[Amendment No. 46 not moved.]

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Baroness Blatch moved Amendment No. 47:

Page 4, line 18, at end insert--
("( ) Paragraph 29 of Schedule 2 to the 1971 Act (grant of bail pending appeal) shall have effect as if the references to appeals under sections 13(1), 15(1)(a) and 16 of that Act included references to appeals under this section.").

The noble Baroness said: Amendment No. 47 will provide bail rights to detained applicants awaiting a third country appeal under Clause 3. Under the Government's original proposals for strengthening our third country procedures, all appeals against removal to a third country would have been exercisable only from abroad. But we looked further at that point in the Bill and decided that it would normally be appropriate to retain an in-country right of appeal if the applicant were to be removed to a third country outside the European Union. The Bill was amended in another place to give effect to that decision.

Bail rights are linked to appeal rights. Detained asylum seekers awaiting an appeal on third country grounds under the 1993 Act already have the right to apply for bail. When all third country appeals were going to be exercisable only from abroad, there was no need to extend bail rights to cover appellants exercising the new right of appeal under Clause 3 of this Bill. But now that it is possible that there will be some appellants detained in the United Kingdom pending a Clause 3 appeal, we need to extend bail rights to such people. Amendment No. 47 does that. It is consistent with the Government's general approach of ensuring that asylum seekers detained pending an appeal have the right to apply for bail. I commend it to the Committee.

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