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Lord Campbell of Alloway: My Lords, as my name has been mentioned by the right reverend Prelate, perhaps I may shortly say, with respect to the right reverend Prelate, that it is essentially a legal problem because the problem is that the judges strayed into morality on judicial review.

The Lord Bishop of Ripon: My Lords, in response to that perhaps I may simply say that if the law does not have some element of morality within it, I fail to see why we are so concerned about it in any case.

Baroness Williams of Crosby: My Lords, I too thank the Minister for fully explaining the Government's intentions to the House. I should like to make one or two brief points, in addition to those which have already been made so eloquently, about why there would be grave problems in continuing at this stage with the Report stage of the Bill.

The noble Lord, Lord Campbell of Alloway, argued that this is not a matter for the judiciary; that it is one where the judiciary has strayed into the area of the sovereignty of Parliament. It is perhaps worth quoting just once more something said by Lord Justice Simon Brown:

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    "Parliament cannot have intended a significant number of genuine asylum seekers to be impaled on the horns of so intolerable a dilemma: the need either to abandon their claims to refugee status or alternatively to maintain them as best they can but in a state of utter destitution".

The point which is made again and again in that judgment is that Parliament has expressed its intentions already on a number of occasions: in the 1993 Act and in its decisions to accept the United Nations Conventions on the Status of Refugees and on the Rights of the Child. Therefore, what is at stake here is not some trespass by the judiciary but the judiciary's attempt to explore in detail what were the intentions of Parliament. It is impossible to see how we can explore those intentions in adequate depth with only six days before the Bill's Third Reading. We will not even know in sufficient time the Government's detailed intentions in terms of amendments.

The reference made by Lord Justice Simon Brown to the failure of Parliament's intentions, which cannot have been that asylum seekers should be left in a state of utter destitution, is borne out by a report made available today by the Refugee Council which states clearly that a number of asylum seekers are already in a state of destitution. I understand that very recently the right reverend Prelate the Bishop of Oxford visited a church--no doubt he will speak to this--which had been, and is being used, to house refugees living on food parcels and sleeping on pews who were desperately wondering whether they could maintain themselves until such time as their cases are fully heard.

My noble friend Lord Russell referred to the common law. He quoted a case in 1803. I quote one sentence from the judgment of Chief Justice Ellenborough dealing with the responsibilities of a civilised state:

    "As to there being no obligation for maintaining poor foreigners before the statutes ascertaining the different methods of acquiring settlements, the law of humanity, which is anterior to all positive laws, obliges us to afford them relief to save them from starving".
What was true in 1803 is true in 1996. Before anyone has had an opportunity to set out his or her case, or for that case to be considered, a civilised state cannot allow such a person to starve. I support the proposal of the noble Lord, Lord McIntosh, that further consideration of this Bill be deferred until we know a great deal more about the Government's intentions in the light of the decision of the court.

Lastly, I refer to a newspaper which is not normally considered to be a strong supporter of the Opposition Benches in this House. I refer to The Times.

Noble Lords: Oh!

Baroness Williams of Crosby: My Lords, if anybody considers The Times to be a strong supporter of the Opposition Benches I do not know in what world he lives. I did not say that The Times was a supporter of the Government. I chose my words very carefully. I said that that newspaper was not known to be a supporter of the Opposition Benches. Surely, any fair-minded person regards that statement as true. The Times concluded its remarks by saying that if the

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Government sought to persist in this mistaken policy it would compound the injustice identified by your Lordships in the Appeal Court.

3.30 p.m.

Lord Mackay of Ardbrecknish: My Lords, the one sure thing about this issue is that it has been debated on a great number of occasions in your Lordships' House and in the other place. Nobody can claim that the proposals which I announced would be brought forward at Third Reading of this Bill come as anything of a surprise. They will underline and bring into primary legislation that which I have defended at this Dispatch Box on secondary legislation, at Question Time and on other occasions during the course of this Bill and the Housing Bill. I do not believe there is any force in the argument that somehow a great deal of time will be needed either to look at the details of the Government's policy intentions or to debate them, because they have been made very clear. Over the past decade in this country there has been a huge rise in the number of people claiming asylum. Most of them are found not to be genuine asylum seekers at the end of the procedures. Last year, out of every 100 people who applied, seven were found to be genuine asylum seekers and were granted asylum.

Of course, the cost to the taxpayer is never mentioned by those who oppose the Government's policy. I stand here unashamedly on behalf of the British taxpayer. I quote just one passage from the judgment of Lord Justice Simon Brown. There are a few others, but this is to be a quarry of selective quotes and I will select mine. The learned judge said:

    "I for my part have no difficulty in accepting the Secretary of State's right to discourage economic migrants by restricting their benefits".
If I had heard a single word from the Benches opposite in any of the debates about how they would address this problem I would have had a good deal more sympathy with their argument.

Baroness Hollis of Heigham: My Lords, can the Minister confirm that asylum seekers who get benefit already have restricted benefit; that is, it is only 90 per cent. of the standard rate, and that "restriction" is not the same as "abolition"?

Lord Mackay of Ardbrecknish: My Lords, a restriction can be anything from 90 per cent. to zero. The fact is that 90 per cent. has not made any difference to the flow of asylum seekers and the increased flow to this country, as opposed to almost all, if not all, of our European neighbours. Every time the noble Baroness and I cross swords on this issue the noble Baroness singularly fails to address that point. She is perfectly happy to see it increasing at a faster and faster rate in this country, against the background of decreases in other countries.

Lord McIntosh of Haringey: My Lords, the Minister boasted of his selective quotation. Does he recognise that Lord Justice Simon Brown also said:

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    "Not for one moment would I suggest that prior to that time their rights are remotely the same, only that some basic provision should be made sufficient for genuine claimants to survive and pursue their claims"?
Is it not that which the Government propose to overturn?

Lord Mackay of Ardbrecknish: My Lords, if they apply at the port of entry, which I believe is the logical step, they receive benefit at the 90 per cent. level while their claims are considered by the Home Office. It is worth remembering that the whole issue has been thrashed out before five judges, three of whom have come down on the side of the Government and two against. It just so happens that it was, so to speak, in the wrong order. Three out of five is not bad. Three judges say that we are perfectly entitled to proceed and two say that we are not.

My noble friend Lord Campbell of Alloway has the advantage of almost every other noble Lord who has contributed to this short debate, including myself, in that he is a senior lawyer. He pointed out quite rightly that the Court of Appeal held that this could not be done by secondary legislation but by primary powers. That is exactly what we are doing. The Government will take powers in primary legislation. I suggest to the right reverend Prelate the Bishop of Ripon that that is the correct way. Parliament is supreme. Inevitably, that means that it is up to this House, if it so decides, to legislate in such a way as to put right something which, in Parliament's view, the Court of Appeal has found the wrong way. That is perfectly constitutional and legitimate.

The Lord Bishop of Ripon: My Lords, does the Minister accept that when it appears to some of us in conscience that legislation is against what we profoundly believe to be right, we ought to express that view in your Lordships' House?

Lord Mackay of Ardbrecknish: My Lords, that is absolutely correct. I never try to stifle debate on these matters. I have taken part in a great many debates. I do not deny the right of Lords Justice Brown and Waite to give their views on this piece of government legislation. They have done so in a fairly robust way. I almost believe that they have read some of the speeches of the noble Earl, Lord Russell, but that is perhaps another matter.

That bring me to the business this afternoon. Clauses 9 and 10 of the Bill seek primary powers. Surely, that is what your Lordships want the Government to do. That is what the Court of Appeal has said we should do. We should deal with these matters through primary powers and not by secondary legislation. There is no argument for stopping this afternoon's consideration of Clauses 9 and 10 on those grounds.

I was interested in the point raised by the noble Baroness, Lady Hollis. She appeared to base her whole argument on the fact that only some of those who were found to be genuine asylum seekers would have their benefit backdated at the end of the process. If she reads my speech closely she will discover that she has created a question all of her own making. I did not refer only to those who had to appeal after they had been refused

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and then were granted it; I referred to those who were eventually granted it. That would include any person who made an in-country application which was eventually successful. I believe that the noble Baroness has stepped back and hit her own wicket as far as concerns that argument. What I said this afternoon answered the point that she made, if only she had listened carefully and properly to what I said.

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