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Baroness Williams of Crosby: Will the Minister give way?

Lord Williams of Mostyn: If I might just finish my sentence, I will certainly give way, as I always do.

It is a notorious commonplace that the longer an asylum seeker is in the United Kingdom the harder it is to effect their removal.

Baroness Williams of Crosby: I thank the Minister for giving way. He is always extremely courteous; I apologise if I rose before he had finished his argument on that point.

Before he concludes this part of his speech, perhaps I may ask him about the issue he specifically raised about the commitment that expansion brings to the countries that are candidate members with regard to the acquis communautaire? The Minister is correct that they are supposed to conform with the acquis. However, he will be aware that in practice it is a slow procedure and takes time to achieve, especially at the level of bureaucratic decision-making and the training of judges in the courts of the respective countries.

The Czech Republic was accepted as a candidate country in the first wave despite the fact that there were continuing arguments about the treatment of Roma which have been brought up in the Council of Europe and elsewhere. In the case of Slovakia the issues were considered so serious that Slovakia was barred. Will the Minister therefore consider whether there is some distinction between what is undoubtedly the stated legal position, as he made clear to the House, and the actual practice--of which, as a director of an NGO constantly engaged in the creation of democratic institutions in central and eastern Europe I am literally every week only too well aware?

Lord Williams of Mostyn: I am, as always, grateful for the intervention from the noble Baroness. But she makes my point. She said that there has been a deliberate discrete review of two applicants. One has arrived at what might be called a first stage; the other has been rejected. It seems to me that that recent historic experience underlines what I am saying; namely, that prospective EU members are to be required to have such systems as are acceptable to us and fellow colleague

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members of the European Union. By distinguishing those two examples, the noble Baroness entirely underlines my point.

Applicant candidate members have to ensure that their systems are compatible to the extent that present member states regard that as appropriate. It is important not to overlook the fact that all member states of the EU are signatories of the ECHR. They all respect the right of individual petition under convention. Every applicant therefore has the opportunity, before being removed from the member state to the country of origin, of raising issues of compliance with the ECHR in the courts of the state concerned. Nothing could be more different from the propositions that were put forward that this is some sort of collection of devices to avoid judicial scrutiny in this country or, just as important in my experience, judicial scrutiny in other EU member countries.

A question was raised about the universality of the 1951 convention and whether there was a precedent for finding, as it were, the automatic safety of other member states. It is a part of German domestic law that it regards other members to be safe as a matter of law. Again, with great respect, I am bound to say that in my travels and experience in Germany I have not found its courts to be lacking in determination in terms of European convention or constitutional matters.

Lord Alton of Liverpool: I, too, am indebted to the noble Lord for his courtesy in answering these questions. Perhaps I may pursue a point made by the noble Baroness, Lady Williams of Crosby, which is germane to the argument that he has just put forward. If there is an act of recidivism and a country falls back into its bad ways, what protection will then be available for any asylum seeker who is likely to be returned to that country? What action can be taken by the European Community to ensure compliance with the rigorous standards that the Minister says will be required before that country is admitted to this family of nations? What is the present scale of judicial review? How many cases went before the courts last year which occasioned Clause 9 to be placed before the House? In how many cases were applicants successful?

Lord Williams of Mostyn: I cannot give those figures. I do not know what number of applications were made for leave which were turned down. To return to my earlier observation and, I believe, the common experience of my noble and learned friend Lord Falconer and myself, I do not believe that it is an enormously high hurdle.

The point is: what kind of system ought we to have that is a proper balance between competing claims? The noble Lord, Lord Alton of Liverpool, asked me courteously what could be done. I return to my earlier point. The certificate of the Secretary of State pursuant to Clause 62 is, and remains, judicially reviewable in this country. We are talking about a system that we are trying to set up domestically.

The noble Lord, Lord Cope of Berkeley, raised a point of detail about EEA as opposed to EU. The noble Lord is right. EEA nationals include nationals of Norway and Liechtenstein. The Dublin Convention is

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limited to the European Union states. Clause 70 provides a right of appeal for EEA nationals against decisions taken under the Bill. The Dublin Convention and Clause 9 are intended to enable the removal of asylum seekers to other member states which are responsible for considering the asylum claim.

The noble Earl asked the central question (which one paraphrases): how can one be sure that receiving states are responsible for enabling that the returned, discharged or removed become part of the asylum process? I believe that I have answered that question.

9.45 p.m.

Earl Russell: I thank the Minister for a very long and careful answer. He has walked like Agag--warily. I take the noble Lord's point about the wording of the Dublin convention. The question remains: what happens in practice? I understand that at the beginning of April 1998 there was a Home Office directive that Kosovars should not be returned to Germany, in spite of which Mr Gashi was so returned about a couple of weeks later. If it were so absolutely clear, as the Minister suggested, that the process was working properly would the Home Office have needed to issue that policy instruction?

My noble friend Lady Williams referred to the Czech Republic. I agree that here we have the careful drawing of a distinction, but it was also part of my noble friend's point that the Czech Republic has cleared the first hurdle even while in a state when it is very far from clear that it is safe to return Roma to that country. One may get over the first hurdle without necessarily providing safe asylum for the returning person, and that indicates the possibility of a continuing problem. I hope that the Minister can walk even more warily.

Lord Williams of Mostyn: However persuasive may be the noble Earl, he does not take me away from my fundamental rejoinder that the discrete examples given by the noble Baroness make my case. The wider point is that, walking however comfortably or uncomfortably, I cannot guarantee the internal standards of behaviour judicially, administratively and bureaucratically of every member of the European Union. But the EU states have signed up to the convention (to put it brutally) which is written into the Treaty of Amsterdam. In the next few years binding legal minimum standards are to be introduced for asylum procedures across the EU. If candidate states cannot conform to those, they will not be accepted as members.

Lord Dholakia: I thank the Minister for his explanation. He referred to the Treaty of Amsterdam which provides for joint criteria for the determination of asylum claims and common standards. But the point remains that they are not there and, therefore, they are a matter for discussion. As both I and my noble friend Lady Williams pointed out, this is a matter that the heads of state will discuss when they meet in Finland before long.

We shall never determine who is right or wrong in terms of the interpretation of the refugee convention and the ECHR. I have no doubt that what we have said bears that out in terms of the large number of briefs that have

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been produced on this particular subject. Home Secretaries can be wrong, as has happened on a number of occasions in the past. We shall read very carefully what the Minister has said, but we shall certainly return to this matter on Report. It is possible that at that time we shall seek the opinion of the House.

Clause 9, as amended, agreed to.

Clause 10 [Removal of asylum claimants in other circumstances]:

Lord Williams of Mostyn moved Amendment No. 29:

Page 6, line 44, leave out from beginning to end of line 2 on page 7 and insert--
("( ) Unless a certificate has been issued under section 62(2)(a) in relation to a person, he is not to be removed from the United Kingdom--
(a) if he has an appeal under section 55 against the decision to remove him in accordance with subsection (2) pending; or
(b) before the time for giving notice of such an appeal has expired.").

On Question, amendment agreed to.

Lord Williams of Mostyn moved Amendment No. 30:

Page 7, line 17, leave out ("subsections (2)(c) and") and insert ("subsection").

On Question, amendment agreed to.

On Question, Whether Clause 10, as amended, shall stand part of the Bill?

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