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Forsyth of Drumlean, L.
Fowler, L.
Geddes, L.
Glenarthur, L.
Glentoran, L.
Goodlad, L.
Goschen, V.
Hamilton of Epsom, L.
Hanham, B.
Harris of Peckham, L.
Hayhoe, L.
Henley, L.
Higgins, L.
Hodgson of Astley Abbotts, L.
Howard of Rising, L.
Howe, E.
Howell of Guildford, L.
Hunt of Wirral, L.
Inge, L.
James of Blackheath, L.
James of Holland Park, B.
Jenkin of Roding, L.
Jopling, L.
Kilclooney, L.
Kimball, L.
Kingsland, L.
Kirkham, L.
Lane of Horsell, L.
Lang of Monkton, L.
Lawson of Blaby, L.
Leach of Fairford, L.
Liverpool, E.
Lucas, L.
Luke, L.
Lyell, L.
Lyell of Markyate, L.
McAlpine of West Green, L.
McColl of Dulwich, L.
Macfarlane of Bearsden, L.
MacGregor of Pulham Market, L.
Mancroft, L.
Mar, C.
Marland, L.
Marlesford, L.
Mawhinney, L.
Mayhew of Twysden, L.
Miller of Hendon, B.
Monson, L.
Montagu of Beaulieu, L.
Montrose, D.
Morris of Bolton, B.
Naseby, L.
Neill of Bladen, L.
Newton of Braintree, L.
Nickson, L.
Noakes, B.
Northesk, E.
Norton of Louth, L.
O'Cathain, B.
Onslow, E.
Oppenheim-Barnes, B.
Palmer, L.
Park of Monmouth, B.
Parkinson, L.
Patten, L.
Pearson of Rannoch, L.
Pilkington of Oxenford, L.
Platt of Writtle, B.
Quinton, L.
Rawlings, B.
Reay, L.
Roberts of Conwy, L.
Rotherwick, L.
Rowe-Beddoe, L.
Ryder of Wensum, L.
Seccombe, B. [Teller]
Selkirk of Douglas, L.
Selsdon, L.
Sharples, B.
Shaw of Northstead, L.
Sheikh, L.
Shephard of Northwold, B.
Shrewsbury, E.
Skelmersdale, L.
Slim, V.
Soulsby of Swaffham Prior, L.
Stevens of Kirkwhelpington, L.
Stewartby, L.
Stoddart of Swindon, L.
Strathclyde, L.
Swinfen, L.
Taylor of Holbeach, L.
Taylor of Warwick, L.
Tebbit, L.
Thatcher, B.
Trefgarne, L.
Trenchard, V.
Trumpington, B.
Ullswater, V.
Verma, B.
Waddington, L.
Wade of Chorlton, L.
Wakeham, L.
Walker of Worcester, L.
Warsi, B.
Wilcox, B.
Willoughby de Broke, L.
Wolfson, L.


Adams of Craigielea, B.
Addington, L.
Adonis, L.
Ahmed, L.
Anderson of Swansea, L.
Andrews, B.
Archer of Sandwell, L.
Armstrong of Ilminster, L.
Ashton of Upholland, B. [Lord President.]
Avebury, L.
Bach, L.
Barker, B.
Bassam of Brighton, L.
Berkeley, L.
Bernstein of Craigweil, L.
Best, L.

4 Jun 2008 : Column 198

Billingham, B.
Bilston, L.
Blackstone, B.
Bonham-Carter of Yarnbury, B.
Borrie, L.
Boston of Faversham, L.
Bradley, L.
Bradshaw, L.
Bragg, L.
Brett, L.
Bridges, L.
Brooke of Alverthorpe, L.
Brookman, L.
Campbell-Savours, L.
Chester, Bp.
Chidgey, L.
Christopher, L.
Clark of Windermere, L.
Clarke of Hampstead, L.
Clement-Jones, L.
Clinton-Davis, L.
Cohen of Pimlico, B.
Corbett of Castle Vale, L.
Cotter, L.
Davidson of Glen Clova, L.
Davies of Oldham, L. [Teller]
Dean of Thornton-le-Fylde, B.
Dholakia, L.
Donoughue, L.
D'Souza, B.
Dubs, L.
Dykes, L.
Eatwell, L.
Elder, L.
Elystan-Morgan, L.
Evans of Parkside, L.
Falconer of Thoroton, L.
Falkender, B.
Falkland, V.
Falkner of Margravine, B.
Farrington of Ribbleton, B.
Faulkner of Worcester, L.
Ford, B.
Foster of Bishop Auckland, L.
Garden of Frognal, B.
Gibson of Market Rasen, B.
Gilbert, L.
Goodhart, L.
Gordon of Strathblane, L.
Goudie, B.
Gould of Potternewton, B.
Graham of Edmonton, L.
Grantchester, L.
Greaves, L.
Grocott, L.
Hamwee, B.
Harris of Haringey, L.
Harris of Richmond, B.
Harrison, L.
Hart of Chilton, L.
Haskel, L.
Haworth, L.
Henig, B.
Hilton of Eggardon, B.
Hollis of Heigham, B.
Hooson, L.
Howarth of Breckland, B.
Howarth of Newport, L.
Howe of Idlicote, B.
Howells of St. Davids, B.
Howie of Troon, L.
Hoyle, L.
Hunt of Chesterton, L.
Hunt of Kings Heath, L.
Janner of Braunstone, L.
Jay of Ewelme, L.
Jay of Paddington, B.
Jones, L.
Jones of Cheltenham, L.
Jones of Whitchurch, B.
Judd, L.
Kerr of Kinlochard, L.
King of West Bromwich, L.
Kinnock, L.
Kirkhill, L.
Kirkwood of Kirkhope, L.
Lea of Crondall, L.
Lee of Trafford, L.
Linklater of Butterstone, B.
Lipsey, L.
Livsey of Talgarth, L.
Ludford, B.
Macaulay of Bragar, L.
McCluskey, L.
McDonagh, B.
McIntosh of Haringey, L.
McIntosh of Hudnall, B.
MacKenzie of Culkein, L.
McKenzie of Luton, L.
Mackie of Benshie, L.
Maclennan of Rogart, L.
McNally, L.
Maddock, B.
Mar and Kellie, E.
Massey of Darwen, B.
Maxton, L.
Meacher, B.
Methuen, L.
Miller of Chilthorne Domer, B.
Mitchell, L.
Montgomery of Alamein, V.
Moonie, L.
Morgan, L.
Morgan of Drefelin, B.
Morris of Aberavon, L.
Morris of Handsworth, L.
Morris of Yardley, B.
Newby, L.
Northover, B.
Oakeshott of Seagrove Bay, L.
O'Neill of Clackmannan, L.
Parekh, L.
Patel of Blackburn, L.
Pendry, L.
Ponsonby of Shulbrede, L.
Portsmouth, Bp.
Prashar, B.
Prosser, B.
Prys-Davies, L.
Quin, B.
Radice, L.
Ramsay of Cartvale, B.
Razzall, L.
Rendell of Babergh, B.
Richard, L.
Roberts of Llandudno, L.
Robertson of Port Ellen, L.
Rodgers of Quarry Bank, L.
Rogan, L.
Roper, L.
Rosser, L.
Rowlands, L.
Royall of Blaisdon, B. [Teller]
Sainsbury of Turville, L.
Sandwich, E.
Sawyer, L.
Scotland of Asthal, B.
Scott of Needham Market, B.
Sewel, L.
Sharp of Guildford, B.
Shutt of Greetland, L.
Simon, V.
Slynn of Hadley, L.

4 Jun 2008 : Column 199

Soley, L.
Taylor of Blackburn, L.
Teverson, L.
Thomas of Gresford, L.
Thomas of Walliswood, B.
Thomas of Winchester, B.
Tomlinson, L.
Tonge, B.
Tope, L.
Tordoff, L.
Triesman, L.
Tunnicliffe, L.
Turner of Camden, B.
Tyler, L.
Vadera, B.
Wall of New Barnet, B.
Wallace of Saltaire, L.
Wallace of Tankerness, L.
Walmsley, B.
Walpole, L.
Warwick of Undercliffe, B.
Watson of Richmond, L.
Whitaker, B.
Whitty, L.
Williams of Crosby, B.

[*The Tellers for the Not-Contents reported 195 votes. The Clerks recorded 194 names.]

Resolved in the negative, and amendment disagreed to accordingly.

6.26 pm

Baroness Hanham moved Amendment No. 3:

“(i) Article 2, paragraph 65, relating to border checks, asylum and immigration; and(ii) ”

The noble Baroness said: My Lords, the noble Lord, Lord Hunt, said of a previous appearance of mine on another Bill that I was making my cameo appearance. I just want to say that this is my cameo appearance on this Bill. Amendments Nos. 3, 4 and 5 tabled in my name are based on those that were tabled in Committee but were withdrawn because of lack of time. Amendment No. 3 is a probing amendment to discuss the issues of borders, asylum and immigration. There is not a huge amount in the Bill on these matters; indeed, there are only two small clauses, but they cover an extremely important area. Amendments Nos. 4 and 5 focus more specifically on the two areas where we feel that the Government have failed to provide clarity or sufficient reassurances on the future development of European Union policy in these areas.

Regardless of the differing opinions that noble Lords will have on the benefit of the changes, I am sure that no one will disagree with me when I say that the changes that the treaty of Lisbon will make to the implementation of the UK’s asylum and immigration policy are both fundamental and wide-ranging. The UK will no longer have a veto over the new treaty objectives to develop a common European asylum system and a common European immigration policy. Moreover, the European Court of Justice has extended its remit extensively, especially over asylum cases. These changes will have a very real effect not only on the procedures that will govern proposals at the EU level but also on how our national asylum and immigration policy will have to be implemented from day to day. Many of these changes relate to issues that, as with so many of the concerns that noble Lords have raised today and in Committee, the Government themselves raised while the constitution was being drawn up. I do not have much hope of receiving a meaningful response as to why the Government have changed their tune in these areas, but I feel that a few questions should be raised anyway.

4 Jun 2008 : Column 200

One of the concerns was around the status of third-country nationals seeking asylum. The Government sought to resist the new uniform status that will be valid throughout the Union. It was considered by Peter Hain to be a “fundamentally important amendment”, as the provision would go against the United Kingdom’s previous understanding about how the European asylum system would operate. Therefore, it was at government level that the concern was raised.

There were other concerns, too—on asylum burden sharing, on the end of the veto on legal migration and on the possibility of EU interference in asylum seekers’ access to labour markets and social security. On all these, the Government failed to have their own amendments accepted, yet they now refuse to acknowledge that our continuing concerns have any foundation. The Government claim that the red lines will hold by means of the opt-out possibility. However, as my noble friends have made clear, what safeguards remain are not easy or often even desirable to implement. There are already clear indications that in the future the United Kingdom will be forced to make some unpalatable decisions as a result of the loss of our national veto.

For example, the Government wish to remain part of the Dublin II agreement, which brings with it benefits such as the ability to deport 100 asylum claimants a month back to the country from which they first entered the European Union. However, last November, Commissioner Franco Frattini made clear his intention to update the agreement to include burden sharing, which we understand the Government do not wish to participate in. Can the Minister give us any indication of whether the Government will opt out of this agreement entirely, or will they reluctantly submit to the EU deciding the UK’s involvement in interstate transfers of immigrants and financial support? Similarly, will the Government opt out of the reception conditions directive, which sets minimum standards on the treatment of asylum seekers, or will they accept the Commission’s plans to insist that asylum seekers have the right to work?

Finally, I would like to probe the extended remit of the European Court of Justice. Geoffrey Hoon identified that weakening the safeguards around a claimant’s right to appeal, in his words,

What steps do the Government plan to take to prevent this from happening? I beg to move.

6.30 pm

The Deputy Speaker (Lord Boston of Faversham): My Lords, I must point out that, if this amendment is agreed to, I cannot call Amendments Nos. 4 or 5.

Baroness Ludford: My Lords, I oppose the amendments. Two of the main benefits and advantages of the Lisbon treaty are, first, to give a much clearer presentation of the scope of the competence of the EU on borders, immigration and asylum matters, which are explained in a much more straightforward way than in the existing treaties, and, secondly, to move to qualified

4 Jun 2008 : Column 201

majority voting and—I declare an interest as a Member of the European Parliament—to codecision with the European Parliament.

Amendment No. 3, which is a blanket amendment to exclude the area, is completely unwise. Surely it is useful and valuable to have provision to strengthen the common EU borders through integrated border management and a common visa policy. I am in the odd position as a British MEP of negotiating Schengen biometric visa arrangements, which we are not opting in to. That is a peculiarity of the European Parliament.

It is sensible to have a common asylum policy where we avoid both forum shopping by asylum seekers and pass the parcel where people are shipped around because we have provisions about where the asylum application should be made. The noble Baroness referred to this point in relation to the so-called Dublin regulation, through which, if someone makes an asylum application in a country that is not the first EU country that they visited, they can be returned to that first country. A common asylum policy is sensible in order to have rational management of asylum flows.

The UK has opted in to all asylum legislation and measures, as well as those on combating illegal immigration. It has not opted in to anything on legal migration. It would be sensible for the EU to move towards including the UK, but that raises the question of borders, Schengen and so on. I am not prejudging that question, but at least it is sensible for the Schengen zone to have a coherent policy on both legal and illegal migration in the round.

If we are to have an area of free movement within the Schengen zone, of course we have to have common external borders. That is surely even in our interests. There are some measures that the UK has opted in to and will opt in to in the future; for instance, we opt in to part of the Schengen information system. It is entirely in our interests that the countries that are getting on with this as a normal part of their business should do so in an efficient and sensible way. When and if we decide that it is sensible for the UK to opt in, we will hope to opt in to rational arrangements. For example, I am sure that there will have to be some kind of arrangement for an exchange of visa data between the UK and the Schengen zone, which has set up the so-called visa information system. I declare an interest as the rapporteur on that. It will be in both parties’ interest to have some kind of pipeline between UKvisas and the Schengen VIS to exchange information, not least on undesirable people.

When and if we decide that we want to opt in to some of the measures, it makes sense that those measures should be good. Of course, the UK wanted to opt in to FRONTEX, the external borders agency, but we were not allowed to. The UK could not opt in because, under the existing protocols, there is a sort of lockout rule where we can be excluded if we have not taken part in the underlying Schengen-building arrangements. There is a downside; on a similar basis last December the European Court of Justice said that we could not opt in to the regulation on common standards for biometric features in passports. As I have said before in this House, when the Government say that the EU requires us to have biometric features in passports,

4 Jun 2008 : Column 202

that is not true. We are not legally bound because we were not allowed to opt in to the regulations. This has been an autonomous UK decision. I make no value judgment on that; it is the situation.

Under the Lisbon treaty, the UK position has become more flexible as regards our wide freedom to opt in or to stay out of EU proposals on justice and home affairs, including borders, immigration and asylum, although there are of course repercussions. If the UK declines to participate in an amending measure, we could be ejected from the original measure if that becomes inoperable. There are swings and roundabouts in the set-up. I speculate that an example could be an amended Schengen information system. If the Schengen information system is taken to a different technical level, we could find that we cannot operate one system when the rest are operating a more advanced system. Therefore, the system could become inoperable and there would be difficulties. In its impact report, the EU Committee also mentioned an amended European arrest warrant, but that is not borders and immigration.

I might have my personal views about the extent of the opt-out. I am not entirely sure that the wide extent of the opt-out is completely in the UK’s interests; it might lead to our being isolated in some areas. However, it exists; that is a fact. We have complete freedom to opt out. It is also a difficulty that the Lisbon treaty does not make it any easier for the UK to opt in to measures that the UK does want, such as FRONTEX and the biometric passports, if we have not opted in to the measures that have built up to that point. The Council of Ministers—the other member states—can refuse our request to participate, just as now. However, that is where we are.

Therefore, whatever develops in borders, immigration and asylum, we will have a considerable interest in opting in to a lot of it. The Minister can correct me if I am wrong, but I would certainly expect the UK to continue to opt in to the asylum legislation. It does not make sense to have 27 different asylum systems. It does not make sense for the UK to be excluded from this, not least because we benefit from it. As the noble Baroness said, we benefit from the Dublin regulation. It is operating and starting to work. We can politely direct people to the country of first visit, where they should make their asylum claim.

I hope that we do not see a trend develop, of which there have been some signs in the area of civil law, whereby the UK opts in after the negotiations are concluded. Tactically that might be regarded as a clever idea, because it means that the UK is not committed sooner than the point at which it wants to opt in, but I think that it weakens our influence. The Minister and I have seen each other in the corridors of Brussels, although I do not really do civil law.

I believe that it is in the UK’s interests that common policies are developed in the EU, specifically in the Schengen zone, on good border management, integrated border management and common asylum and immigration policies. Regardless of whether we opt in to a large number of these policies, we want to live next door to a Schengen zone that is well managed in terms of immigration and combating illegal immigration, with a well managed asylum policy that is fair and

4 Jun 2008 : Column 203

respects the refugee convention. It is not at all in our interests to live next door to a chaotic situation.

I hope that we will be able to opt in to a considerable amount in this area. I hope that we might be able to opt in to FRONTEX in some way in order to contribute to the EU as a whole, ensuring that it has well managed external borders and free movement inside. Although we maintain our border controls, British citizens largely benefit from those arrangements when they travel round the EU or go to live in another EU member state. There are all kinds of ways in which we benefit from common, rational EU/Schengen borders, visas and asylum policies. We have the freedom to decide to opt in or out.

I do not think that these amendments are useful and I do not see why they are necessary, because we have this freedom of the opt-out. With respect, those are my reasons for opposing the amendments.

6.45 pm

Lord Monson: My Lords, perhaps I may ask the noble Baroness a question before she sits down. She explained very well and thoroughly her objections to Amendment No. 3 and I accept what she says; I do not necessarily agree with her but she explained logically her reasons for opposing Amendment No. 3. However, I do not think that she explained why she objects to Amendments Nos. 4 and 5. Amendment No. 4 would simply provide for extra safeguards against a move that might constitute a threat to the security of the United Kingdom and its citizens, while Amendment No. 5 would simply require the Secretary of State to explain why the Government have capitulated over a policy to which they formerly objected quite strongly.

Baroness Ludford: My Lords, Amendment No. 5, as I understand it—I may have misread it—is not about immigration but about asylum and having a common asylum policy. I think that I explained why I thought that it was a good idea to have a common EU asylum policy and the fact that the UK has opted in to all the measures. The Government have taken a hard-headed look at it and seen that it is a good idea. I think that it is Article 63 and not 63a. Article 63 is asylum policy, not immigration. I do not know whether there is a misunderstanding but I think that I have explained my view on a common asylum policy.

On Amendment No. 4, I think that the best thing that the UK Government could do is to take an active role. Even if we do not opt in, there are many ways in which the UK Government can contribute to the development of rational and firm external borders in the EU. It is a bit regrettable that the European Court of Justice ruled against our membership of FRONTEX and I hope that the other member states will acknowledge that the UK has a contribution to make in this area. I do not think that this approach will be terribly helpful, as it is rather passive. I want to see us contribute actively even if we ultimately do not opt in.

We have not opted in to Schengen and for the time being we maintain our own border controls, but the best thing that we can do as a country and a Government is to participate as much as possible—as we are doing

4 Jun 2008 : Column 204

with the Schengen information system, which is to do with the security of the United Kingdom as much as the security of the Schengen zone. I think that this rather static approach is not as good as a dynamic one in which the UK Government take a full, strong role in policy discussions in Brussels, as they largely already do, even if they do not opt in to legal measures. That is a much better approach than the one in Amendment No. 4.

Lord Lea of Crondall: My Lords, in two or three sentences, I would just like to say that the exposition by the noble Baroness, Lady Ludford, is one of the most impressive I have heard in the House for some time. It is extraordinarily difficult to give a clear exposition of policy on Schengen, of trying to negotiate within it while not being part of it and all the rest of it. If people want a clear exposition of that and the British dilemma, they could do no better than to look at Hansard and read the noble Baroness's speech. She has removed the legs on which these amendments are standing. The reasons why the amendments should not be supported are clear.

Baroness Ashton of Upholland: My Lords, praise indeed for the noble Baroness, Lady Ludford, and I welcome her cameo performance. She is looking extremely healthy after a well deserved rest, and I know how hard she works. It is very nice to see her in her place, dealing with issues that she has taken a great deal of care over since taking on this portfolio. I am pleased to be discussing this with her again as we have had the privilege of working together many times. I was rude in making a slight joke to her about opt-ins and civil justice. I do not disagree with what she was saying about the principle of not opting in at the end. As I said in Committee, it is a dangerous strategy not to opt in, but as I was the Minister who did not opt in, I felt I should make myself known. There were particular reasons for that, which I will not bore the House with now, but I completely endorse the principle of opting in on time or deciding not to opt in at all.

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