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Lord Mackay of Ardbrecknish: Neither of us is a lawyer. However, I should point out to the noble Earl that the case to which he referred was a third country removal case. I do not believe that it is relevant here. However, that may be a matter about which lawyers will come to argue. I should have thought if Parliament makes it clear what the position is, that ought to be sufficient for the courts. Indeed, on page 26 of the judgment of the Court of Appeal there is the interesting sentence:

that is my right honourable friend Mr. Lilley--

    "is answerable to Parliament rather than the courts".
I am standing, if you like, in his place here being answerable to your Lordships' House, this high court of Parliament. I suggest that if we decide that the provision ought to be in primary legislation we have fulfilled the legal points that the Court of Appeal made. It stated,"This ought to be in primary legislation. You ought not to have it in secondary legislation". If this House and the other place decide that it should be in primary legislation, we have fulfilled the legal criticism of the Court of Appeal.

That leads me to the question asked by the noble Lord, Lord Lester--although, to be honest, it was more clearly directed at Amendment No. 5, which his noble friend did not move. But in the interests of good debate I shall try to answer his question. As I have said, the court's ruling was on the narrow legal question of whether our policy on benefits for asylum seekers could be achieved by secondary legislation. The Government's amendment is designed to address that specific issue. It means that regulations specifying the circumstances when asylum seekers should and should not qualify for benefits are protected from challenge on the grounds that they conflict with other enactments. That covers asylum and immigration Acts and could also apply to other legislation and to general rules of law.

The noble Lord, Lord Lester, suggested that the power given by the clause was very wide. However, noble Lords should remember that its purpose is a very specific group of regulations made for a very specific purpose. We do not intend going beyond that and certainly have always made perfectly clear our intentions of applying social security legislation on a fair and non-discriminatory basis.

In addition, the provision does not seek to restrict the jurisdiction of the court in entertaining judicial review challenges. Lord Justice Simon Brown

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indicated that the restrictions contained in the regulations should be in primary legislation. As I have said, that is what the amendment sets out--

Lord Mishcon: The Minister quoted from the judgment and talked about the need for primary legislation. He was absolutely accurate, but would he, in justice, read out the sentence in full? It appears on page 35 of the judgment and states:

    "Primary legislation alone could in my judgment achieve that sorry state of affairs".

Lord Mackay of Ardbrecknish: The first part of the sentence is rightly a view which the Court of Appeal can have. The second part of the sentence is rightly a view which we can dispute across this Chamber. I bow, as do the Government, to the decision of the Court of Appeal on legal grounds. I am afraid that we must argue out the benefit politics of it on political grounds. That is what this Chamber is for and not what the courts are for.

Lord Lester of Herne Hill: I am extremely grateful to the Minister for clarifying what I call the ouster clause. I believe that I heard him say that it was not intended to oust judicial review. Does that mean that the Government do not intend that future regulations will be in any way immune from challenge on the basis of illegality, irrationality or lack of fairness?

Lord Mackay of Ardbrecknish: I believe that I made it perfectly clear that the provision does not seek to restrict the jurisdiction of the courts in entertaining judicial review challenges. I do not believe that I can qualify that or add to it in any way.

I suppose that I should at least be grateful that the two amendments providing for three days and seven days appear to show that the two parties opposite are beginning to accept my argument about the number of people coming to this country and claiming benefit. Therefore, one presumes that the provision of three days and seven days is the way in which the parties opposite would deal with the issue--

Baroness Williams of Crosby: Given what the Minister has said, perhaps I may confirm that my party is strongly in favour of repeal. The reason we are moving the amendment is that we believe that it would be best to have a qualified approach rather than the one that the Government are proposing. We do it with little enthusiasm.

Lord Mackay of Ardbrecknish: I am perfectly clear about that. Having listened to the noble Baroness's friend Lord Russell on a number of occasions, I had thought that the Liberal Democrat policy would be that they would repeal the legislation. They are quite content to have this increasing number of people coming to this country and claiming asylum.

Baroness Williams of Crosby: That does not follow. The Minister will be aware that on several occasions I have raised the issue of the Home Office procedures and the possibility of speeding them up. I believe, with

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great respect, since he is a fair-minded man, that his final conclusion in his latest remark was not in the least justified.

Lord Mackay of Ardbrecknish: I am trying not to take too long, but if I keep on being interrupted I shall take some time. I was just coming to that point. The only policy that I can see--and the noble Baroness has said that it is the Liberal Democrat policy--from the party opposite is that, somehow or other, we must speed up Home Office decisions. I wonder whether any of your Lordships have ever tried rowing a boat against an increasing tide or wind. No matter how much effort you put into it, the increasing tide keeps driving you back. That is the problem that we have in relation to this particular difficulty.

Since the time of the 1993 Act, the productivity of the Asylum Directorate has improved by 240 per cent. The number of decisions made in 1994 was 21,000, in 1995 it was 27,000, and this year we are on course to reach 37,000 decisions. Decisions have increased by 1,000 per month after the 1993 Act to 3,000 per month now. Appeal determinations have increased from 2,400 to 7,000 and are projected to be 19,000 this year. The new short procedure, which the parties opposite opposed, means that cases can be dealt with in a matter of weeks rather than months. Most third country cases are dealt with in less than 48 hours. We have invested £37 million over three years on more caseworkers and adjudicators. Asylum staff have increased eightfold since 1988 from 100 to 800. We have done all that but still the numbers increase and it is literally like rowing against the tide.

Most of our European neighbours were finding their asylum procedures swamped by vast increases. That is why most of them introduced legislation similar to that contained in Clauses 1 to 3 of the Bill. Here in the United Kingdom we are also looking at new appeals procedure rules in order to reduce the scope for delay and pressure on the appeals system. We are taking this seriously and we have tried very hard. But frankly, until something is done to decrease what is, I am afraid, the attraction of this country for asylum seekers who are not seeking asylum from political pressure or oppression but from economic difficulties and poverty, whatever resources the taxpayer puts into the Home Office, we shall find it more and more difficult to keep abreast of the increasing number of applications.

A number of individual cases were detailed. I am not in a position to go into those in any great detail. Of course, Members of the Committee have an advantage over myself and other members of the Government because asylum seekers who feel that they have a case are not slow to go to noble Lords opposite and make representations. On the other hand, those who have made bogus asylum claims and have drawn them out do not come running to me or any of my noble friends to explain how they have managed to do that. Therefore, in a way, the dice are loaded against me.

But there are some cases which puzzle me. Twice this afternoon we have heard of cases which involve people who have come from Belgium and who use Belgium as

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their first port of entry into Europe from their country of origin. The right reverend Prelate the Bishop of Lincoln mentioned one case, as did the noble and learned Lord, Lord Donaldson--the case in the Court of Appeal judgment.

I have a simple question in relation to that. Why do people not apply when they arrive in Belgium? It seems to me that Belgium is a perfectly safe country. I cannot believe that it is not a safe country, as one of our fellow members of the European Union. Not even my most Europhobic colleagues would consider that Belgium was not a safe country. Therefore, why do asylum seekers come here? Why do they not stay in Belgium? That leads to the problem of arrival by Eurostar, on which the procedures are not as finely tuned as they are at Heathrow.

However, it is interesting to note that whichever way we look at the argument, some Members of the Committee--and I am grateful to those who have said this because it helps the debate and gives us some common ground--have accepted that there are a number of applicants who are not genuine. Indeed, the Court of Appeal said that. I cannot remember what it said, but it more of less said that it was for the Government to work out how to deal with that problem. The right reverend Prelate the Bishop of Ripon also said that it is for politicians to find a way to deal with the problem. We have found a way. We believe that this is the right and proper way in which to deal with this matter and we believe that we have every justification for going down that road.

The right reverend Prelate the Bishop of Ripon asked me to discuss the statistics he mentioned. I find some difficulty with his first statistic. In 1985-86, we were looking at 2.5 per cent. to 2.75 per cent. of the European total coming to this country and by 1995, that had increased to 16.7 per cent.

The noble Baroness, Lady Williams, referred to the Netherlands. I thought that she had chosen a particularly bad example because in 1994 the Netherlands had 52,600 applicants, which last year was reduced to 29,300. By contrast, in 1994 we had 44,200, which increased last year to 55,000. Therefore, the figure was decreasing in the Netherlands whereas here it was increasing. The noble Lord, Lord Avebury, highlighted one or two places in the world where we agree there are major problems. But the fact remains that if there were major problems all around the world which were increasing, would not all our European friends be seeing the same pattern? It would not merely be this country which would be seeing the kind of increase that we have seen. I have explained to the Committee that that increase has meant that we have gone from receiving 2.5 per cent. of all the applications in Europe in 1985 to 17 per cent. today. That is a very considerable increase indeed.

I do not believe that people need another three days or another seven days in which to make an application. If they have found a way in which to reach this country and have identified it as a safe place to come and apply for asylum, as we believe it is and will remain, nothing will remove that right. If people believe and have

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decided that the United Kingdom is the best place to come to, I can see no justification for providing that they may apply at any time after they have reached these shores. If they apply at the time of entry, they will receive income support at the 90 per cent. level and be eligible for housing benefit, council tax benefit and consideration under the homelessness legislation until the Home Office makes a decision on the case. That seems proper and fair. It is proper and fair to the people coming from abroad who are genuine, and proper and fair to the British taxpayer, who had to spend more than £200 million more last year because of the number of people coming here with no good cause for doing so.

I do not believe that three days or seven days should be accepted. Our proposal in relation to people applying on arrival to this country is generous and fair. We should stick to that. If the amendment is not withdrawn, I trust that my noble friends will join me in the Division Lobby.

5.45 p.m.

Baroness Hollis of Heigham: This has been a long debate. Members of the Committee would not expect and, I am absolutely sure, would not want me to seek to reply to many of the points which have been raised, and so tellingly.

The Minister has threatened us with the floodgates argument--floodgates of numbers and costs--as though this amendment seeks to overturn the entire Bill. That is not true. This amendment has a much more limited aim. There is only one question before us: in relation to the legitimacy of the port of entry test, is it reasonable to give a three-day discretion for those people who should apply at the port of entry but fail to do so? That is the only question.

The Government's case would be valid, if, and only if, the port of entry test genuinely distinguished between those who are entitled to asylum status and those who are not, if it distinguished between those who are genuine and those who are fraudulent. That can be the only justification for such a test. The Minister conceded just 10 minutes ago that he has never sought to say that. He has never said that the port of entry test does what any reasonable person might expect it to do, which is to distinguish between the genuine and the fraudulent and give benefits to the genuine and deny them to the fraudulent. He has not even sought to argue that.

This amendment seeks to modify the port of entry test for one very simple reason. As the Minister grudgingly accepted, the port of entry test does not distinguish between those who are genuine and those who are fraudulent. It merely distinguishes between those who can cling on to their legal rights by their fingertips and those who cannot. That is what it distinguishes between: those who can survive without it and go on to claim for asylum and those who cannot.

Many speakers today, especially on the opposite side--for example, the noble Baronesses, Lady Gardner of Parkes and Lady Rawlings, the noble Lord, Lord Campbell of Alloway, and indeed others--have

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spoken as though what the amendment sought to do was to give benefit to all and sundry; that is to say, tourists, students and businessmen. That is not the case. The amendment would do no such thing, nor are we proposing that it should. We are simply saying that a person should either apply for asylum at the port of entry or within a few days of arriving in this country.

The Minister asked, "Why are they so suspicious of us? Why do they not apply at the port of entry". Again, I ask Members of the Committee to put themselves in the place of an asylum seeker--not a British man in France, but an asylum seeker from Zaire, Nigeria or parts of Ceylon, with perhaps false papers, which indeed can be an indication of a person's desperation; in other words, a person coming from a shadowy world of illegality, lawlessness and intimidation.

If you come from a country where you expect the police to be corrupt, you will hesitate before applying to the police in this country. If you come from a country where the immigration controls are arbitrary and unfair, you will fear that the immigration controls in this country will be the same. If you come from a country where you have had to operate on the dark side of the law, you will maintain your suspicions here until two or three days after your arrival when you may have the confidence, the strength and the ability to recover from your ordeal. I give way to the noble Baroness.

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