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Lord Clinton-Davis: The noble Baroness has raised a number of extremely pertinent issues which touch the very rights of vulnerable people and about which I believe greater clarity is required. The views expressed by the noble Baroness have also been put cogently by Justice in a document which is supported by a well-known silk and others, including UNHCR. Therefore, this matter will demand the most careful consideration and analysis by my noble friend.

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That the Government are concerned about these issues has been demonstrated by some concessions that have already been discussed in another place. I believe that we can derive encouragement from that. Furthermore, I am confident that my noble friend will respond to these concerns in his usual constructive way.

I should just like to say by way of preface--but that does not mean that I shall speak at any great length: but all speeches demand a preface and, preferably, a swift conclusion, and this speech shall be one of those--that a large number of matters will be dealt with by way of secondary legislation, and presumably by way of negative resolution. I do not know whether it will be possible to segregate issues of significant importance or whether they will all need to be dealt with by affirmative resolution. No doubt that is a matter on which we shall hear from my noble friend in a few minutes. However, wherever there is a doubt, I hope that the benefit of that doubt will be resolved in favour of the affirmative resolution procedure. The procedure is not much more cumbersome, but I believe that it provides a greater security that matters will be that much more carefully considered than if we proceed by way of negative resolution.

As I said at the beginning of my speech, in the main these are issues which touch upon the civil liberties of so many people. When Justice made its submission, it stated in paragraph 2.4 of its document dealing with the human rights compliance statement:

    "We consider that the limits of order-making powers should be more precisely defined in statute, to alert those making or amending orders or regulations to human rights compliance issues".

Overwhelmingly, that is right. Justice continued:

    "We also consider that secondary legislation with a human rights impact should be certified and should require affirmative resolution of Parliament".

The first part is likely to be dealt with, but at present it is the second part that concerns me. For that reason, I believe that the noble Baroness has done the Committee a service by raising the matter.

The Lord Bishop of Ripon: From this Bench we must admit that, being working Bishops rather than working Peers, no single Bishop will necessarily be able to be present throughout the passage of the Bill in your Lordships' House. There is a sense of a baton being handed on from one to another. The Second Reading speech was given by the right reverend Prelate the Bishop of Southwark, and it may well be that later in the proceedings on the Bill other right reverend Prelates will also play a part. However, I believe that we shall speak with one voice, though embodied in different people.

As one who was present for both the 1993 and the 1996 Bills, there is a curious sense of returning to a familiar scene. The faces that I see on the Liberal Democrat Benches are those that I remember from three years ago. The Government's policies are apparently unchanged and are based upon the idea that all asylum seekers, or at least the majority of them, must be kept at bay rather than given proper access to the justice which they deserve in this country. All that has happened is that the administration has changed.

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In 1996 I debated the matter with the noble Lord, Lord Mackay of Ardbrecknish, who is a Scottish mathematician. For the Bill before us, I and others will be debating with the noble Lord, Lord Williams of Mostyn, who is a Welsh lawyer for whom I and many in your Lordships' House have the highest regard. Although I may take issue with him on various matters, I know that my respect for him will only be increased by his handling of the Bill.

I await with interest to see what will be the attitude of noble Lords on the Opposition Front Bench. I am confident that they will feel compelled by moral obligation rather than bow to political expediency.

Lord Clinton-Davis: I am obliged to the right reverend Prelate for giving way. He will know that I took an active part in the proceedings on the Bill introduced by what is now the Opposition. I believe I am right to say that the response made by the Government in another place has been altogether different in character and principle from that of the then government dealing with that Bill. The Government have made a number of concessions.

While, as I have already indicated, I am still actively critical of some of the provisions of the Bill, is it not a little unfair to castigate the Government in quite the same way as the other administration which deserved castigation?

The Lord Bishop of Ripon: I accept the rebuke of the noble Lord, Lord Clinton-Davis. However, I would make the point that, in broad terms, the Bill before us is seen as one which creates difficulties in very much the same way as previous Bills. We shall wait to see whether at the end of the day the Government produce a Bill which genuinely allows asylum seekers proper access to justice.

The point being made in this amendment, so ably moved by the noble Baroness, Lady Williams of Crosby, is one that deserves our attention. Clearly, the Government's intention is to reduce the backlog of determinations. That intent is shared with the previous administration. Some of us are not yet convinced that what we have seen will enable that to happen. Nevertheless, the ideal is a short period of determination. Of course there are those who abuse the system. The way to sort out abusers is to put them through the determination process, which will sort out those applications that are genuine and those that are not.

If we are to have a much shorter backlog, it is enormously important that the determination process is operated, and is seen to be operated, with absolute fairness. For that reason, it is right that this new clause should be accepted. It provides a degree of protection and it will mean that both Houses of Parliament will have the opportunity not only to scrutinise primary legislation, but also to scrutinise with great care the way it is carried into operation through secondary legislation. I would just affirm again the point made by the noble Baroness, Lady Williams of Crosby, that the successful

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operation of the Bill will lie in the detail and in the way in which it is operated. For that reason, I believe that the amendment requires very careful consideration.

3.30 p.m.

Lord Renton: I strongly support the amendment moved by the noble Baroness, Lady Williams of Crosby. It is grouped with the amendment tabled by my noble friends Lord Cope and Lord Astor which appears after Clause 154. I suggest that that is a better place for such a provision. Amendment No. 1 relates to statutory instruments and it is incongruous to have the provision at the beginning of the Bill. However, Clause 154 deals with regulations and orders, so surely the provision would be better placed as a subsection of Clause 154.

Amendment No. 210 has the same effect as Amendment No. 1 and I do not think that one could take exception to the drafting of either of them, but I suggest that one or other should be placed as a subsection of Clause 154.

Earl Russell: I, too, want to draw the attention of the Committee to the report of the Delegated Powers and Deregulation Committee which touches precisely on the subject of the amendment. In paragraph 7, the committee states:

    "We do not suggest that the Immigration Rules should be included on the face of the bill. But we do consider that the time has come when the House may wish to consider amending the 1971 Act through an amendment to the present bill to provide that the Immigration Rules, which are of immense importance to asylum seekers, should be made subject to the affirmative resolution procedure".

In paragraph 39, the committee states:

    "Related to this is our concern about the arrangements for parliamentary control over the making of Immigration Rules. This has led us to recommend that the House should consider amending the bill to make immigration rules subject to affirmative procedure".

That is a strong and positive recommendation from a committee which has generally commanded the confidence of this House--and deservedly so. I shall touch on one more reason why that is the case. The immigration rules are the point at which our international obligations, which I am sure all governments wish to take seriously, bite upon the immigration procedure. That is through Section 2 of the 1993 Act, which was passed under the "Home Secretaryship" of Mr Kenneth Clarke, which seems to me to be a case of distance lending enchantment to the view.

That Act provides that the immigration rules may not contain anything contrary to the 1951 UN Convention on Refugees. That is a vitally important provision, the interpretation of which may occasionally give rise to dispute, as I am sure that the right reverend Prelate, to whom I listened with great pleasure, was well aware. It is also a great pleasure to me, too, to have him again opposite me in body only but united in spirit. I hope that the Committee will accept the amendment.

Lord Avebury: The instructions to immigration officers, which are equally important, have a bearing on the decisions made by those officers, notwithstanding

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the fact that they do not form part of the rules. There are two sets of instructions to immigration officers; one which is published and which is available on the Home Office website, and the other which is secret and which perhaps embodies the suspicions of the Home Office which it believes are not fit to be disclosed to an applicant in case avoiding action should be taken. However, the instructions may be vital in determining whether an application is accepted.

I wish to draw particular attention to the cases of family members who do not fall within the degrees of consanguinity permitted by the immigration rules. Those rules have been tightened over the years and are extremely restrictive on all near-relatives except spouses and minor children. The result can be seen in one case which recently came to my attention. It involves an Assyrian Christian who came here accompanied by his wife and two children. Unfortunately, he transited via Oslo and was about to be sent back there by the Home Office because that was his country of first asylum. That was notwithstanding the fact that his wife had two sisters resident in the United Kingdom; that there is an Assyrian church in London; and that there is an Assyrian library and culture infrastructure here which is totally non-existent in Norway. Because the relatives were no more close than the sister, the rule which determines the country of first asylum came into play and the Home Office was going to send the family to Norway, where they had no support.

Fortunately, the family applied for judicial review and during the time it took for the case to come to court the period which is permitted under the Dublin Convention lapsed, and the Norwegians refused to accept the family. So they finished up here anyway. However, the story illustrates the lengths to which one must go to arrive at the commonsense solution that a family with close relatives and many support mechanisms here did not qualify under the rules.

I give another example; that of an Algerian refugee who was undoubtedly well qualified and had no difficulty in obtaining asylum. He was a former professor and had been tortured. He was granted refugee status fairly promptly. That is most unusual, in my experience, because even the best cases may take five or six years. When he left Algeria in a hurry with his wife and five children, the eldest of the family, who was 18, was taking examinations and did not accompany the rest of the family. The Home Office now says that that one child is unable to enter the United Kingdom because he falls to be dealt with under the provisions which demand a separate asylum application for any member of the family who has reached the age of 18.

That illustrates the importance of examining the rules at the same time as examining the Bill. The rules contain many restrictive provisions which violate the principle of family unity and may transgress the European Convention on Human Rights in respect of which the noble Lord, Lord Williams of Mostyn, has signed a certificate.

I warmly support my noble friend's plea that the Bill should provide that all amendments to the immigration rules are dealt with by the affirmative resolution

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procedure. I believe that while we are debating the Bill, the noble Lord, Lord Williams of Mostyn, should lay before the House a copy of the instructions to immigration officers so that we can consider them at the same time.

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