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Earl Russell: My Lords, on these Benches we, too, are not content with further consideration on Report. While I am grateful to the Minister for clarifying the Government's intention, he has not begun to realise the legal difficulty of what he is attempting to do.
Throughout it has been the Government's intention that their regulations were put forward to deal with bogus asylum seekers. It has been the finding of the Court of Appeal that these regulations render nugatory a legitimate right to seek asylum in a genuine asylum seeker. The Court of Appeal has therefore found a conflict between the regulations and the 1993 Act of Parliament: in fact, they are contrary to primary legislation that the regulations have no vires to alter. But more than that, I do not believe that the Minister understands that the regulations have also been found by the Court of Appeal to be contrary to common law and the basic principle of humanity set out in the judgment of Lord Ellenborough in 1803, from which Lord Justice Simon Brown quoted.
For an entirely different purpose I happened to be reading the Renton report yesterday. It states as a basic principle of parliamentary drafting that it is impossible to alter a well-recognised principle of the common law unless by a statute which says so. But that is not all. The basic right to seek asylum, which the Court of Appeal has found to be taken away by these regulations, does not just rest on an Act of Parliament but on an international treaty. Is the Minister suggesting that it is within the power of an Act of Parliament to change an international treaty? If so, this is legal doctrine which
The Minister will say that Clauses 9 and 10 of the Bill are not on all fours with the regulation struck down by the Court of Appeal because the point of vires in relation to the 1993 Act is not the same. But he may save his breath because that will not get round the fact that the conflict with our international obligations, as set out in the UN Convention on Refugees (1951), is identical in Clauses 9 and 10 to what is in the regulations which have been struck down. The Minister says that that is not his intention. Many people have stood in the dock and said that. As a point of fact, the Court of Appeal did not find that to be correct.
Should the International Court of Justice find on the facts what the Court of Appeal has already found, on the same ground it will strike down Clauses 9 and 10 of the Bill. By inflicting destitution on innocent claimants for asylum it would be depriving them of an attempt to exercise legitimate rights. To whisk through a measure which risks a judgment of that sort at Third Reading in the Second House at the 59th minute of the 11th hour is not the kind of proceedings which brings Parliament into good repute. We on these Benches will not support it.
Lord Campbell of Alloway: My Lords, I shall be brief. Surely the noble Lord, Lord McIntosh, is making a political meal out of a situation which is legalistic. There can be no doubt that Parliament and not the judiciary is supreme. I have not read the transcript, but I gather that there was a minority opinion. I have no doubt that the majority of the court held that if this were to be done, it could be done by primary legislation. That is precisely what the Government are proposing to do.
I want to make one further point. The Court of Appeal, even on a unanimous verdict, in my puny experience has been reversed five-love in the House of Lords on more than one occasion. Because it is the Court of Appeal it is idle to say, "It is the law". I assume that the only reason why the Government--and I am not privy to their thinking on these Benches--are not seeking the opinion of your Lordships' Appellate Committee is that they want to get on with the job of stopping the abuse of which they and most of your Lordships disapprove and to go to the Appellate Committee will only waste time.
Baroness Hollis of Heigham: My Lords, it will not do to pretend that this is a narrow technical matter, as we have heard regularly over the weekend from junior Ministers, or, as the noble Lord, Lord Campbell of Alloway, said, merely legalistic; that the problem is that the Government were seeking to do by regulation what they should have done by primary legislation; and that it is only a matter of paths, not purposes. As my noble friend Lord McIntosh made clear when he quoted from the judgment of Lord Justice Simon Brown, the judges made it absolutely explicit that not only do the regulations subvert the principles of the primary legislation but they also subvert the UK's convention
What is the principle of that welfare state? For over 200 years anyone who cannot work--the Government forbid asylum seekers to work--and anyone who cannot support themselves--the means test is evidence of that--is entitled to, and should be supported from, public funds. That applies to Britons and foreigners alike. No one should be left deliberately destitute when they cannot remedy that wrong by any act of their own.
Ministers have previously talked about JSA and job seekers' sanctions. In any other part of the social security system where there is a refusal, a denial or a cut in benefit, that can be overturned if the claimant changes his or her behaviour, whereupon the benefit is reinstated. Therefore, the claimant can make good the loss of income and avoid destitution. Uniquely, asylum seekers cannot do that. Once they cross our border and apply (perhaps only four hours after arriving in this country), they have removed themselves irrevocably from a right to income support and they cannot regain it by any action of their own. The Minister has said--this is a welcome move--that if they go to appeal and win their appeal, their benefits will be reinstated but, as the judges said, they will have nothing to live on in the meanwhile and they will be starved out of their right to appeal.
In no way can asylum seekers regain their right to benefit. Uniquely in the history of social security over the past 200 years, there is nothing that asylum seekers can do to make good that initial loss of benefit which means that they face destitution. Uniquely, Parliament is constructing destitution deliberately by Act of Parliament.
The sense of moral outrage at this attack on the principles of our welfare system and the attack on our obligations under international law has been confirmed by the remarks made by my noble friend who quoted Lord Justice Simon Brown saying that the regulations,
With such issues at stake, how can this House proceed to debate Clauses 9 and 10 later this afternoon? How can this House expect to consider properly in the space of three or four working days the primary legislation that is required? I put it to your Lordships that we should not be manipulated because it is expedient for the Government to seek to overturn a ringing condemnation of government policy by the Court of Appeal. I support my noble friend.
The Lord Bishop of Ripon: My Lords, I too thank the Minister for his statement, but must express concern at the path that he has outlined will be followed. Does the Minister accept that the basis of the judgment given was not on legal grounds alone but was also on broad moral grounds? Indeed, it seems to me that the moral
Of course, we all accept that those who abuse the asylum system should not benefit from it. I take it that that was the broad agreement to which the noble Lord, Lord Campbell of Alloway, referred a moment ago, but if in trying to bring about a situation in which those abuses are prevented another wrong is perpetrated, surely we are right to express a sense of moral outrage at what is being achieved. And what is being achieved here is that genuine asylum seekers either have to abandon their claims for refugee status or they have to persist in those claims while reduced to a state of utter destitution. I quote again from the words of the judgment in which Lord Justice Waite argued that that rendered the rights of a very large number of asylum seekers, rights recognised by Britain under international law, as being "valueless in practice".
I believe that there will be a very widespread sense of moral concern and, indeed, moral outrage beyond your Lordships' House if the Government go ahead with their proposals as outlined by the Minister--
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