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Lord Goodhart moved Amendment No. 10B:

Page 31, line 1, leave out from "is" to "after" in line 2 and insert "satisfied that there was undue delay in making the claim"

The noble Lord said: My Lords, it is most unfortunate that major amendments to the Bill, which raise important issues of human rights, were published too late for the Joint Committee on Human Rights to consider and report on them before the Bill's Committee stage, which was held a week ago today. Since then, the JCHR has published a report, which contains a number of very serious criticisms of the Government's plans. I hope that they will act on and answer those criticisms, but I very much fear that they will not.

In moving Amendment No. 10B, I shall speak also to Amendments Nos. 11 and 12 and manuscript Amendment No. 12A. They all raise significant issues of human rights, which were touched on in the report of the JCHR. Amendments Nos. 10B and 12A seek to reverse the burden of proof about whether the claimant is excluded from the possibility of support under Clause 54 on the ground that,

"the Secretary of State is not satisfied that the claim was made as soon as reasonably practicable after the person's arrival in the United Kingdom".

That is a decision in practice: it is taken not by the Home Secretary personally but by a civil servant in the Home Office. The effect of that provision is that the burden of proof rests on the claimant. The purpose of the amendments is to reverse that burden of proof and make it rest with the Secretary of State.

The penalty that will be imposed on an asylum seeker who has been held not to have made the claim as soon as is reasonably practicable is very severe; it could be said to be out of proportion with the offence. There is no support even for the destitute. We have been told that that is the purpose of the Bill. That is relieved only by Clause 54(5), which requires compliance with convention rights. That means that one cannot allow an asylum seeker to starve to death.

Surely it is a matter of common humanity that, even if such a penalty is legitimate—I shall touch on that shortly—the burden of proof must rest on the Home Secretary. The benefit of doubt must be given to the claimant. I would assume, and I ask the Minister to confirm, that in this case the standard of proof will be the civil standard of proof; in other words, if the claimant can persuade the Home Office that, on the balance of probabilities, the claim was made in due time, then the Home Secretary will be satisfied. But it means that, even if it is as likely as not that the claim was made in due time but the evidence each way is equally balanced, then the Home Secretary, under the clause as it now stands, will not be satisfied. We believe that, if the penalty is imposed, it must be imposed only if the evidence shows positively that the application was made late. Indeed, we would say that, in view of the severity of the penalty, the test required should be proof beyond reasonable doubt.

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Under paragraph 17 of its report, after referring to speeches explaining why there might be good reasons why applications were not made as soon as reasonably practicable after arrival, the Joint Committee went on to say:

"In our view, there is a need for the express terms of the legislation to reflect the understanding approach which Lord Filkin said would be taken to those who claim to have been the victims of persecution. Rather than place the burden on them to satisfy the Secretary of State that they claimed asylum as soon as reasonably practicable, it would be preferable to require the Secretary of State to establish that there had been undue delay in making a claim, having regard to the circumstances facing the applicants. We consider that clause 54 should be amended by providing that support would be withheld only if the Secretary of State could establish that there had been unreasonable and undue delay in the making of the claim for asylum in the circumstances of the claimant's case".

The report then goes on to say at paragraph 19 that,

"clause 54(1)(b) would place on every claimant the burden of satisfying the Secretary of State that the claim for asylum was made as soon as possible after the claimant had arrived in the United Kingdom. In effect, this creates a rebuttable presumption that people claiming asylum have not made their claim as soon as reasonably practicable, and that accordingly claimants are not entitled to be supported. There is no empirical basis for presuming this, particularly when it may result in a destitute asylum-seeker losing any entitlement to support. As this could lead to a violation of human rights in the circumstances outlined above, it would be more appropriate to place the burden on the Secretary of State to establish that conditions for withholding support, compatible with human rights standards, had been met".

I turn now to the question of whether the refusal of support is justifiable at all. The Joint Committee on Human Rights says that leaving the claimant destitute would probably be a breach of Article 3 of the European convention on the grounds that it amounted to inhuman and degrading treatment. Even if that were not so, a breach of the obligation would be a breach of the obligation under Article 11.1 of the International Covenant on Economic, Social and Cultural Rights, which recognises the right of everyone to adequate food, clothing and housing.

I recognise that the International Covenant on Economic, Social and Cultural Rights is not incorporated in United Kingdom law, but surely the Government should not deliberately contravene it. To say that one can and must leave an asylum seeker destitute so long as the treatment is not technically inhuman is, I believe, unworthy.

For procedural reasons, we cannot now vote to remove Clause 54 in toto from the Bill. However, we can, and I believe should, restrict it, and that is the purpose of Amendments Nos. 11 and 12. Those amendments would remove the prohibition on support for the destitute by restricting the operation of Clause 54 to the provision of accommodation under the 1999 Act or under Clause 16 of the present Bill. Support for the destitute under Sections 95 and 98 of the Immigration and Asylum Act 1999 would be preserved. Access to temporary support under Clause 23 of the Bill would also be preserved. I believe that the effect of Clause 54 is unacceptable and inhumane and

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that the Government should take note of, and act upon, the criticisms in the report of the Joint Committee. I beg to move.

Lord Lester of Herne Hill: My Lords, I am most grateful to my noble friend Lord Goodhart for having drafted this and other amendments to enable the recommendations of the Joint Committee on Human Rights to be raised before the House during this debate. I am also grateful to him for having so fully explained what is to be found in our latest report. I want to make one or two points for the benefit of the House.

The Joint Select Committee is composed of six Members of the other place and six noble Lords drawn from all sides of the political spectrum, including the Cross Benches. They have the benefit of an expert legal adviser. Unlike the Government, who are entitled not to reveal their legal advice, the Joint Select Committee does reveal in a transparent way its legal advice on human rights issues. The committee, under its chair, Jean Corston, MP, has a Labour majority, but I believe that we act beyond party and we have been unanimous. Our report draws attention to some extremely serious human rights issues.

I have already accepted that the Government have no obligation to explain in their Explanatory Notes what they think about the human rights implications of amendments that they have tabled. But the Minister has an obligation, accepted by the noble and learned Lord the Lord Chancellor, to inform the House as fully as he can of the Government's response to the human rights issues raised by the Joint Select Committee. Unless that is done, it means that the House is being asked to legislate in the dark. I know that the inadequacy of ministerial responses is a subject to which the noble Lord, Lord Campbell of Alloway, has frequently drawn attention in the past. On the Select Committee we have had to work under enormous pressure and at great speed to produce what I hope noble Lords will consider to be a rational and comprehensive report.

The Home Office legal advisers have no doubt given full advice to Ministers about the human rights implications. I am not asking for that legal advice to be disclosed, but, on behalf of the committee—those of us who are members of the committee and those who are not here—I should like to hear a reasoned response to the particular issues in our report to which my noble friend Lord Goodhart has drawn attention. I very much hope that we shall not be told that the Minister will write to us because, by then, it will be too late. We need to have a fully considered response today to the targeted report.

Lord Campbell of Alloway: My Lords, of course I support the amendment, but I particularly support the argument adduced by the noble Lord, Lord Goodhart. It was clear and, to my mind, wholly persuasive. And, as the noble Lord, Lord Lester of Herne Hill, pointed out, it was based on the rendering of a non-party-political committee—the JCHR. That committee has Professor David Feldman as a legal adviser. I believe

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that the whole House could pay tribute to him for his magnificent work, carried out at short notice, which formed the basis of our unanimous report.

As your Lordships know, I have sat on the committee for some time. But it is seldom that we have had a situation not only where we have had to report with such speed but where we have done so with total unanimity. In the past, the Minister and I have had our own private problems on the subject of human rights. Thanks to his help, they have always been satisfactorily resolved. However, now there is not time in which to resolve the problem, as has been pointed out with considerable clarity by the noble Lord, Lord Lester. This time around we cannot see the advice which has been given to the noble Lord, Lord Filkin. That is privileged and has always been conceded to be so, but at this stage we are entitled to a response which reflects that advice. That is all we ask.

As things stand, the conclusion of the report on page 49 is worth mentioning. It is only the part concerned with Clause 54, which, I agree, is unacceptable and, as it stands, inhumane. However, the committee, which is unanimous, states:

"We draw the following matters to the attention of each House on human rights grounds.

—There is a risk that leaving a person destitute would inevitably threaten a violation of rights under Articles 3 and/or 8 . . .

—There is a risk that the power to support children without related adults might lead to the separation of members of a family, giving rise to a risk of a violation of Article 8 . . .

—There is a danger that Clause 54, inserted in the Bill on re-commitment, would authorise a violation of the right to adequate housing, food and clothing under Article 11(1) of the ICESC",

to which I referred earlier. Finally:

"—There are weaknesses of safeguards for human rights in Clause 54, in view of:

(i) the burden being placed on the claimant to satisfy the Secretary of State that a claimant has claimed asylum as soon as reasonably practicable;

(ii) The lack of objectivity in the requirement that a person must claim asylum as soon as reasonably practicable in order to be entitled to support;

(iii) the lack of any appeal to an adjudicator against a decision denying support; and

(iv) the absence of any power to provide support pending an application for judicial review of the decision to deny support".

I mention that—I was about to say "in open court"—on the Floor of the House as it is on those sort of issues that I most respectfully seek a response from the Minister.

5.30 p.m.

The Lord Bishop of Oxford: My Lords, I rise briefly to support Amendment No. 10B tabled in the name of the noble Lord, Lord Goodhart. I am concerned as to whether the burden of proof should be with the claimant or the Secretary of State. I am not a lawyer, so I hope the House may forgive a simplistic analogy. I have been trying to reflect on this as the debate goes on.

If a person at school applies for permission to have a weekend at home and is late in applying for such permission, I can well understand that the burden of

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proof should be upon them to give a good reason why he or she was late because it is simply a question of an optional privilege. However, if a person is threatened with expulsion because of an alleged serious offence, it seems to me entirely right that the burden of proof should remain with the governing authorities of the school.

In this issue we are speaking of destitution. We are not speaking about bonus or privilege, but about something which is fundamental. Therefore, I support the amendment, which leaves the burden of proof with the Secretary of State.

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