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Earl Russell: I welcome the government amendment. I hope that the noble Baroness will forgive me if, nevertheless, I probe it a little. It is the duty of this side of the House to look gift horses in the mouth so I shall try to do so.
I am concerned about the meaning of the word "gain". The noble Baroness gave me an assurance at Committee stage which I much welcomed, that those who work for airlines who assist anyone intending to claim asylum would not be found guilty under this clause. Since then I have received advice from the Immigration Law Practitioners Association which, in noting the noble Baroness's assurance, nevertheless say that the courts may think otherwise. That is a guarded but strong pronouncement. It gives me a certain amount of anxiety. I hope I am in order in asking the noble Baroness to check that once again.
I heard and welcome, because I believe that they are crystal clear, especially in the light of the case of Pepper v. Hart, the assurances that she gave about solicitors. But what about the case raised by the Immigration Law Practitioners Association of a lawyer on holiday abroad who meets someone, for the sake of argument, in Sri Lanka who wishes to claim asylum. The solicitor gives him advice and then undertakes to take on his case in this country when he arrives. Is that person in jeopardy under the clause or not? It is a perfectly possible scenario and I am not clear how the clause would apply to it.
The same question might apply to a journalist who found himself assisting an asylum seeker. If the journalist were to produce copy out of it, as journalists usually do, he might risk coming within the scope of the clause. I am also concerned about the tightness of the words,
The Minister rightly said in the case of Mr. Tong that sanctuary has been repealed. Wearing my other hat, I am happy to confirm that. It is repealed by the Expiring Laws Continuance Act 1624. Nevertheless, the conviction that the Church must give help because it believes that it is its religious duty to do so is quite strong. The noble Lord, Lord McIntosh of Haringey, reminded the House when we were in Committee that although sanctuary has been abolished in common law it has not been abolished in canon law. Are we going to see the Church prosecuted under this clause in cases like that of the Church of Scotland or the Church which has temporarily sheltered Mr. Tong? If so, I believe that the Government are heading for the type of confrontation which both sides would be wise to avoid, if possible.
Baroness Williams of Crosby: Perhaps I may add to my noble friend's questions one or two additional ones. As the noble Baroness will know, the lawyers are very concerned indeed about constraints as to what extent they will be acting legally within the terms of this Bill. I shall pursue two of the issues that were raised in the discussion. The first concerns the kind of advice a lawyer can give in advance of somebody coming to this country. I have referred to it before in this debate because it is important, and that is the situation that will arise next year in Hong Kong. Many thousands of Hong Kong residents know people in this country and have close links with them. They are friends and colleagues and in some cases they have been in the same law firms and shared responsibility for legal matters in the same firms. It is very probable that a Hong Kong resident seeking asylum, for reasons which we have already discussed in this House and for other reasons, will approach his friend or colleague in order to ask for advice about the effects of this Bill, for example. Clearly, advice about how the Bill operates, about the necessity to make plain the minute one arrives that one is seeking asylum, and about the possibility of being returned to a third country, would be very valuable to someone seeking, or succeeding in getting, asylum in this country.
Therefore, I should like to ask the direct question whether such advice, not given for remuneration but nevertheless given in advance of the applicant coming to this country and announcing his intention of seeking asylum here, would or would not be caught by the terms
Baroness Blatch: My Lords, Amendment No. 47 adds nothing to the understanding of Clause 5(2). "Remuneration" means wages or salary and "gain" not only includes those meanings but could also include payment in kind or property.
I cannot believe that it is intended that immigration racketeers should be able to take advantage of the defences available in Clause 5(2) to the new offence of facilitating the entry of any asylum claimant simply by taking payment in kind or property rather than in money. That, however, would be the likely outcome of adopting this amendment.
It appears that Amendment No. 48 is intended to widen yet further the defence set out in Clause 5(2) of the Bill, which would become Section 25(1A)(b) of the 1971 Act, to include the activities of voluntary workers as well as the employees of bona fide refugee organisations. That is unnecessary because voluntary workers who do not derive any gain from their activities are already covered by the defence which would become Section 25(1A)(a).
I have just outlined Amendment No. 46 which widens the defences to the new offence and which is the Government's response to earlier concerns about the scope of the offence. This now means that where asylum claimants are detained or given temporary admission under powers in Schedule 2 to the 1971 Act, those who provide them with advice, representation or other assistance have a defence from prosecution for the new facilitation offence.
The Government believe that the inclusion of this additional defence firmly targets the new offence at illegal racketeering activity and ensures asylum claimants are not prevented from receiving legitimate advice and assistance because those who would normally provide such assistance are afraid of prosecution. It is the Government's firm belief that, with the addition of the government amendment, anyone acting lawfully in providing advice or assistance to asylum claimants who have arrived in the United Kingdom, will be able to avail themselves of one of the defences set out in Clause 5(2), thus avoiding any prospect of prosecution.
Amendment No. 49 goes much further than would be provided for in Clause 5(2) as it would be amended by Amendment No. 46. It would allow any employee of an organisation which claimed that its purposes included,
The noble Earl referred to airline employees. I am fairly confident about what we said earlier, but I should like to consider further what I said originally and to confirm that that was correct. If I have to modify it, I shall do so.
We do not believe that the lawyer abroad would be in danger because his activities would be too remote from the entry of an asylum seeker here. The noble Earl also made reference to sanctuary in churches. Their actions are protected by this amendment because it applies to asylum seekers who have arrived and presented themselves to the authorities in the first instance. The noble Baroness Lady Williams referred to Hong Kong. The giving of advice to a person who is abroad is too remote from the entry of the asylum seeker to fall foul of the clause. I cannot read the note that I have before me. If the noble Baroness will forgive me, I shall write to her on the Hong Kong point.
Baroness Blatch: My Lords, I am not sure that it is a church. What matters are the people in the church and the relationship between the activities of those people and the asylum seeker. If they are volunteers acting in a wholly lawful way they will not be caught by the measures in Clause 5. We know that some church activity is engaged in harbouring illegal entrants, which is a very different matter.
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