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Lord Phillips of Sudbury: My Lords, I merely want to add two points to the persuasive argument made my noble friend Lord Goodhart. In a letter to my noble friend Lady Williams of Crosby on 24th September, the Home Secretary summarised what might be described as the political case to justify Clause 9. He wrote:

He later referred to those who doubt the wisdom of Clause 9 as representing some,

    “challenge to the good faith of other EU member states".

It is not a challenge to the good faith of another EU member state, any more than it indicates any lack of trust in another member state, for us to allow our courts to deal with asylum seekers here under the

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circumstances prescribed by this legislation. If democracy under the law means anything, surely it means democracy under the supervision of the courts. This law relates to asylum seekers in this country who will be seeking rights under the provisions of this Bill.

Perhaps I may refer to another section of the Home Secretary's letter in which he stated:

    “As to who should have the final say in matters like this, we live in an elected Parliamentary democracy, with Parliament the ultimate law maker".

Absolutely. But we also live in a democracy where the courts prescribe what Parliament does in terms of its own legislation, and where the rights bestowed on the courts by Parliament, far from representing a lack of trust or good faith in those institutions, is the highest flowering of our democratic way. Clause 9 engages deep principles which the House would be well advised to consider very seriously. I hope that the Government will reconsider the wisdom of Clause 9.

4.45 p.m.

Baroness Williams of Crosby: My Lords, perhaps I may intervene briefly. In my letter to the Home Secretary on 5th August, I specifically mentioned the problems that might arise under Clause 9--not least because of the discussions that were due to take place with the rest of the European Union. I simply want to underline the point made by my noble friend Lord Goodhart. We have had the rather sudden introduction of the Tampere Summit. I fully appreciate that, in August, no one could have known what decisions might or might not be reached at the summit. However, it looks as though it will have a profound effect on Clause 9. Therefore, we felt it appropriate to ask for a further delay before pressing the matter, as we are likely to know more about the decisions reached between heads of state at the summit within the next few days. Those decisions are likely to have an intimate and powerful effect on the whole standing of asylum seekers in this country in line with other EU countries. At present, we can only speculate as to the basis on which the summit decisions have been made. For those reasons, we wish to give a clear indication that, while we shall not seek the view of the House now, we intend to return to the matter at Third Reading--not in order to cause difficulty for the Government, but simply because we do not presently have adequate information to be able to raise some of the issues that we wish to raise about the decisions reached at the summit.

Lord Ackner: My Lords, following the excellent exposition by the noble Lord, Lord Goodhart, I feel some frustration that we shall not be dividing the House. The principle that citizens of this country should be entitled to take advantage of the decisions of the Court of Appeal and not have those decisions blocked or obliterated by policy decisions of a political nature is immensely important. I am delighted that we shall return to the charge next time round.

Lord Cope of Berkeley: My Lords, I do not want to add to what has already been said. I merely want to ask

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a question. Are France and Germany to be regarded under the clause as member states? Clause 9(1)(b) states that a member state is,

    “a place from which a person will not be sent to another country otherwise than in accordance with the Refugee Convention".

As I understand it, the interpretation of the refugee convention by the British Court of Appeal being different from that in France, Germany and some other countries, it could not be argued that someone being sent to France, for example, was being sent to a country from where he or she might not be sent somewhere else under the refugee convention. Under our interpretation of the refugee convention, such people could be sent to another country. It therefore seems to me that, if the UK definition of the refugee convention, as settled by our courts, is to govern this legislation--I take that to be the case as it will be British law--France and Germany cannot be regarded for this purpose as member states.

Lord Falconer of Thoroton: My Lords, the Government have repeatedly and emphatically made clear their determination that they should meet their obligations to those who are genuinely in need of protection from prosecution and torture. We have to face up to the undeniable fact that the system of international protection for such people is under threat--not from anything that this Government or fellow members of the European Union are doing, but from cynical, opportunistic abuse of the asylum system by people who have no motive other than racketeering and money-making, and whose other activities involve organised crime of all kinds. If we do not respond effectively to the systematic abuse of the asylum system, however well intentioned our motives are, the genuine asylum seekers will become lost in a system that will be completely overloaded.

The purpose of the Bill and of the Government's whole wider strategy is to deal firmly with abuse without in any way taking away protection from those who really need it. We must tackle the abuse robustly, if protection is not to be undermined. Perhaps up to half of all asylum seekers in the United Kingdom have at some point been in another European Union member state. I give an example. Of the 4,445 who claimed asylum at Dover and the 2,843 who claimed asylum at Waterloo in the first eight months of this year alone, every single one must have come from another member state. The problem is, therefore, one which we share with our European Union partners. It is vital that we share the solution with them too.

At the special European Council at Tampere just two days ago, all member states agreed to work more closely together on asylum and immigration in support of protection against the abuse that undermines the whole system. The Dublin convention is a crucial part of a European-wide response to the problems. An asylum applicant in the European Union should have his or her case considered by one member state--and one member state only. Unless we can ensure that that happens, unfounded applications throughout the European Union will continue to spiral, as would-be migrants see the opportunity to move from one

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country to another, decide where they have the best chance and, in many cases, make successive claims, exploiting just the kind of differences in interpretation of the law to which the noble Lord, Lord Goodhart, referred.

Because of its geographical location, the United Kingdom is frequently the end of the line for such applicants. But let us be clear: this is not a question of the United Kingdom seeking selfishly to reduce its own numbers of asylum seekers at the expense of other member states. The point is that an effective Dublin convention will benefit all member states, because its deterrent effect will reduce the numbers of unfounded applicants circulating throughout the European Union.

Clause 9 is essential if the United Kingdom is to play its full part in the arrangements and gain full advantage from them. In the past 12 months nearly one-third of cases in the United Kingdom certified for removal to other member states have become entangled in disputes and litigation, often protracted and on the basis of differences between member states' approach to the 1951 convention. That is a perfect background for racketeers to operate in, resulting in typical abuse of the legal system.

Other member states do not report similar obstacles to making the agreement work. Let us consider, for example, the question of non-state persecution, to which the noble Lord, Lord Goodhart, referred. Denmark and Belgium, like the United Kingdom, take a different view from France or Germany in relation to the interpretation of the refugee convention; yet neither Denmark nor Belgium has any difficulty, as a result of the difference, in transferring applicants under the Dublin convention, and both regularly do so.

Clause 9, as drafted, therefore proposes that other member states should be regarded as safe third countries of asylum. That has been challenged by the noble Lord, Lord Goodhart, in a persuasive but incomplete speech, on the basis that in a recent case the Court of Appeal held France and Germany's interpretations of one point in the 1951 convention to be different from that of the United Kingdom.

Before I turn to that, perhaps I may deal with the point made by the noble and learned Lord, Lord Ackner. He said that the Court of Appeal's decision should not be overturned on policy grounds. It is broadly accepted that, wonderful though the Court of Appeal is, it is subject to the sovereignty of Parliament in a number of respects. Although noble and learned lawyers might think that they should be the final determiners of such things, it is widely accepted that Parliament should be the determiner of those matters.

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