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Lord Archer of Sandwell: My Lords, I can be perhaps uncharacteristically brief in this intervention for two reasons: first, because the objections to subsection (2) have already been explained by the noble Lord, Lord Goodhart, with his usual clarity and, secondly, because these issues were discussed at some length in Committee. I am grateful to all noble Lords who participated in that debate.

If the Bill is unamended, a whole category of decisions relating to the safety, and even the lives, of human beings will be taken by a member of the executive without the possibility of an appeal to the judiciary. That deprivation of justice will be triggered by a certificate that the application is "clearly unfounded". That certificate will lie wholly in the judgment of the executive against whom the appeal is being pursued. One party to the appeal will certify that the other party should not be permitted to present his case.

The Bill appears, on the face of it at least, to say that the decision of the executive should be taken by the Home Secretary, as it would be, if, for example, this were an application by the security services to intercept communications. However, during the debate in Committee it emerged that the decision is to be taken by a Home Office official whose name will not even appear on the certificate. Ministerial infallibility is a doctrine which forms no part of our constitution. In fact, some clear confirmation that that is factually accurate was given during the debate. Official infallibility is at an even further remove from what we understood to be the effect of our constitution. We were assured that the official would be given some training, as though we should be pleasantly surprised to learn that the person who decided the matter would not be someone who had been called in to repair the plumbing.

When my noble and learned friend Lord Falconer of Thoroton replied to the debate, his argument was clear and simple; namely, that that infringement would be perpetrated only where the application was clearly unfounded. If the application was clearly unfounded, no injustice was done by precluding an appeal. When it was pointed out that the purpose of the whole proceeding was to resolve the question whether an application was unfounded, my noble and learned friend replied that the courts decided such questions all the time. Of course, they do—courts are instruments of the judiciary; that is what they do. Part of their function is to monitor the executive. That is not the

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function of the executive itself. It is fundamental to natural justice that one party to a dispute should not adjudicate on whether the other party has an arguable case.

It is self-evident that what is manifestly unfounded is the Government's argument. However, we are not analysing the logic of an argument, we are discussing human lives. We are talking of torture, persecution and murder. I am sure that our grandchildren will be astonished that we could ever have had this debate and that the matter could ever have been in doubt.

As the noble Lord, Lord Goodhart, said, the Government have now introduced a further reflection relating to the white list. He referred to the unusually severe strictures of the Joint Committee on Human Rights. Perhaps when my noble and learned friend replies, he will say whether the Government propose flatly to reject that advice of the Joint Committee on Human Rights or what they will do about it.

My purpose in intervening was to speak to my Amendment No. 35, which is an attempt to produce what I hope will be considered a compromise. However, I am in a difficulty. I have been out of the country. I returned from Australia only this morning. I am most grateful to my noble friend Lord Filkin for having attempted to contact me in Africa by telephone. He succeeded in extracting me from a dinner at the High Commission. But we did not have what either of us would regard as the profound discussion which the situation requires. Although we have had a discussion since with my noble and learned friend, clearly, if we are to achieve any meeting of minds, it will take a little longer than that.

As I shall have no right to explain my reactions by making another intervention, I say now only that if there were any proposal from my noble and learned friend which required reflection and consultation both with my noble friends and other noble Lords who have supported me in these proceedings, and with the non-governmental organisations which have given so generously of their time to advise us, I should probably not press my amendment to a Division today. In that event, if Amendment No. 34 were pressed, I personally would abstain. However, I do not presume to advise any of my noble friends as to the course that they should take.

Lord Clinton-Davis: My Lords, I support in the main the remarks of my noble and learned friend Lord Archer of Sandwell. In so doing, I sympathise with him in coming back from Australia today and having to participate so suddenly in this debate, but there we are, that is the lot of Members of this place.

I hope that my noble and learned friend will take the opportunity to reply to the representations made by the Black Women's Rape Action Project and by Women Against Rape. Their representations must be addressed. This may not be the only place where that could be done. The main point being advanced is that some people are so traumatised by what they have gone through that they are unable to speak about their experiences. When he responds, I hope that my noble

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and learned friend will deal with that point. It is quite impossible for us to expect people to recount such experiences.

I turn to the third point that I wish to pursue. This is a matter that I have raised with my noble and learned friend. He is aware of my intention to make the following suggestion. I am something of a realist, but I am certainly not prepared to play politics at the expense of asylum seekers. In all probability, the Government will succeed in getting through the main points of their Bill. I propose a workable compromise.

There can be no doubting the fact that the Government are faced with an intolerably difficult problem. We must never lose sight of the fact that some asylum seekers, whether or not they have genuine cases, seek refuge in this country because they realise that they can be provided with a better form of life. Some people will prove their case before the appropriate tribunal, but I propose that the Government, whom I mostly support, should pursue their own experiment in a rather limited way.

First, the Government should establish that their experiment is working well to the satisfaction of both Houses of Parliament. Secondly, they should make this effective by way of the affirmative resolution procedure. Thirdly, if Parliament reaches a conclusion that the scheme is not working appropriately, the current scheme, which I call the "existing system", should remain effective.

I hope that my noble and learned friend can reply to my remarks. I have not provided a form of words to which I want to speak in this regard, but I have given an outline of my proposal; in other words, it is highly appropriate that the Government should reconsider the scheme. What they are proposing now is only an experiment. As parliamentarians, we are entitled to assess the value of that experiment at an appropriate time. When he concludes the debate, I hope that my noble and learned friend will reply in the affirmative. I trust that what I have said will commend itself both to him and to the Government.

7.30 p.m.

Lord Mayhew of Twysden: My Lords, there is a problem with the suggestion just made so eloquently by the noble Lord, Lord Clinton-Davis. He described what the Government currently propose in the Bill as an "experiment". However, I see nothing in the legislation to suggest that such measures are intended to be only an experiment; indeed, they will stay on the statute book once they have been passed, as tough and illiberal measures tend to do—

Lord Clinton-Davis: My Lords, there is another possibility here. We still have Third Reading, and one can table amendments in this place at that stage of a Bill. I am rather inclined to hope that my noble and learned friend will bring forward appropriate amendments along the lines that I suggest at that time.

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Lord Mayhew of Twysden: My Lords, now, if a may say so without being offensive, the noble Lord is talking. We very much hope that the Government will bring forward amendments, perhaps substantial amendments, on Third Reading. However, I have one further comment to make about the noble Lord's suggestion regarding how we might view the progress of this experiment; that is, if it is one. How does one assess the progress of an experiment when it consists of denying someone the right to appeal within country, and saying to him, "You can appeal against a perceived injustice from the country to which you have been returned"—or, alternatively, to some other country assessed by the Government as being safe?

We have received copious and very helpful briefings from interested bodies, for which I, too, express my gratitude. It comes down to the fact that the Government are denying people the right to assemble and receive advice upon their appeal within this country in circumstances that everyone who knows about these matters must realise will impose upon them a great disadvantage. There will be no means of assessing whether or not this is proving to be a satisfactory experiment to anyone except the Government. So that proposal falls at the first fence.

I both endorse and adopt the argument of the Select Committee, which is surely very compelling. I propose to support Amendment No. 34 if it is taken to a Division. However, in saying that, I do not wish in the slightest degree to discourage the Government from reflecting hard upon what has been said by the noble and learned Lord, Lord Archer of Sandwell, and upon the suggestion just put by the noble Lord, Lord Clinton-Davis. They must return to the matter on Third Reading. Perhaps it will encourage them to do so if this amendment is pressed and the vote goes against them, though no doubt they will be able to steamroller it.

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