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Earl Russell: My Lords, the noble Lord has dealt with the distinction between refugee status and exceptional leave to remain. Has the Minister taken any legal advice?

Lord Mackay of Ardbrecknish: My Lords, in this field there is plenty of legal advice. It may be that one takes the legal advice which suits one. That is the same in every field. We are certain--this has stood the test of time--that there is a distinction between refugee status and exceptional leave to remain. I am not sure whether the noble Earl suggests that there is no distinction. There is a very big distinction, and I have tried to explain it clearly. It certainly exists in view of the way that the whole procedure has been run and is set out. Refugee status is the critical test to be applied and that fulfils our international obligations. We have decided as a country--in my view quite rightly and, I am sure, in the view of all noble Lords--that there are some people who, while they cannot prove that they are refugees according to the international criteria, have a call on our humanity. In that regard we give them exceptional leave to remain and allow them access to the benefit system immediately. I do not believe that we should go one step further and give them the same rights as refugees and backdate the benefits. I hope that with that explanation the noble Baroness will feel able to withdraw her amendment.

5 p.m.

Baroness Hollis of Heigham: My Lords, I do not know, but I do not think that the Minister was persuaded by his own case as he was making it.

Lord Mackay of Ardbrecknish: Always!

Baroness Hollis of Heigham: My Lords, the Minister was almost persuaded by it.

Lord Mackay of Ardbrecknish: Always.

Baroness Hollis of Heigham: My Lords, by the time it reached here, I can assure the Minister that it was "almost". I have to say that I thought the case pretty weak. The Minister for Social Security was trying to argue as though he were a Minister in the Home Office. He went to considerable trouble to explain that there was a difference in why an individual may end up being labelled--if I may use that phrase--a refugee, or being labelled as someone granted exceptional leave to remain. He showed us that there was a difference between the different periods of settlement: four years as opposed to seven years. That has nothing to do with it. It is irrelevant. It is a Home Office consideration as to how someone is designated. It is not concerned with social security legislation as to whether, first, that person is necessitous, and, secondly, whether the person has disqualified himself, even though necessitous, by some inappropriate behaviour. That is a social security test.

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That is what we are talking about in the amendment. We are not talking about the Home Office test, or what is the label. We are talking about social security tests, are they necessitous? Answer, yes. Have they disqualified themselves?

The Minister of State, Home Office (Baroness Blatch): Give them everything!

Baroness Hollis of Heigham: My Lords, the Minister says, "Give them everything". It makes me realise, despite the courtesies, and so on, of the House, which we all respect and usually enjoy, how wide is the gulf between the two Benches. Despite the conciliatory language we seek normally to employ to persuade, the remark made by the Minister from the Home Office, "Give them everything", as though this was some sort of game show with the arrow going around, as on some cheap television commercial, suggests a lack of seriousness and concern and empathic imagination of what people who are fleeing from torture experience when they enter this country.

Earl Russell: My Lords, will the noble Baroness add that the Minister made that intervention from a sedentary position, but may the record show it?

Baroness Hollis of Heigham: My Lords, I accept what the noble Earl says. I return to the substantive point. The Minister was making the case, which I do not doubt is a valid Home Office case, as to the distinction between someone here as a refugee who has an individual fear of persecution and someone here for exceptional leave to remain because he or she is part of a generalised group of people who may therefore be at risk. In both cases the social security issue is that both cases are necessitous and have not disqualified themselves. We have established that they are necessitous. That is the whole point about the means test for income support and income-related benefits. They have not disqualified themselves. Indeed, the Government have accepted, by giving them exceptional leave to remain, that they come within the same need for humanitarian treatment. So what is the difference? All the considerations that the Minister has offered us are irrelevant. He has accepted that if both apply at the port of entry they will receive benefit; if they are both granted their status, they will receive benefit. All the Minister has done at the very last moment, having made a concession to those who are granted refugee status to have back-dated benefits, is to row back. For the first time in the benefit system he is putting a wedge between two categories of claimant. With the leave of the House, I invite the Minister--I realise that this is Third Reading--to tell me where at any previous point in the benefit system a distinction has been drawn between those who are claiming and obtain refugee status and those who obtain exceptional leave to remain. I invite the Minister to tell me where previously any difference has been drawn. I accept the Home Office case, but this is a social security case. We have had the reply from him today speaking as Minister for

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Social Security. Will he tell us? He is silent. In other words, the Minister cannot tell us that at any time until now any distinction has been drawn in the social security system between those granted refugee status and those granted exceptional leave to remain. That is, until yesterday, for the first time. Why? It is not the sums of money, because they will not be that large. It will be only for a short back-dated period for those who are subsequently granted exceptional leave to remain. It is not numbers. We are not talking about great numbers. We are not talking about a high cost. What are we talking about? Is it that the Government cannot bear the thought, having been overruled by the Court of Appeal and having therefore had to make concessions, of a loss of grace. I can think of nothing else but a desire to be grudging and mean. There is no other reason in the social security system. There is none at all, except to be grudging for its own sake. It is unbelievably petty-minded, mean and indecent of the Government. The fact that the Minister has not challenged my remarks at any point to contest anything I have alleged against the Government makes my argument for me. However, I shall not push the amendment to the vote. I beg leave to withdraw the amendment. Amendment, by leave, withdrawn.

Baroness Williams of Crosby moved Amendment No. 11:


Page 8, line 42, at end insert--
("( ) Nothing in regulations shall authorise the exclusion from benefit under subsection (1) above of any person--
(a) who has made a claim for asylum within the period specified in that subsection, or
(b) who has appealed against a refusal of asylum and either--
(i) the appeal has not been certified as being without foundation, or
(ii) a special adjudicator has disagreed with such certification.").

The noble Baroness said: My Lords, I could understand if the noble Lord, Lord Mackay, were to use the phrase deja vu about the amendment. I am well aware that the House is by now weary of the Bill. The number of empty seats in the Chamber, the clear loss of interest since yesterday, indicate that the House has had enough of the Bill. Therefore, those of us on the Front Benches, the Bishops' Benches and elsewhere who continue to press amendment after amendment are obliged to explain why we are doing so, and why we feel so strongly that we are pushing Members, especially on the Government Benches, to the limit of their patience. In that category, perhaps I may say that I respect the noble Baroness, Lady Blatch, and the noble Lord, Lord Mackay of Ardbrecknish, for the patience and resilience they have shown, although the gulf between us is extremely deep. It would be less than generous not to recognise that they have both handled a whole set of repeated demands made upon them, not just from these Benches but from elsewhere in the House, with considerable grace, patience and determination.

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Having said that, it stands to reason that we on the Opposition Benches in these last few amendments on Third Reading are obliged to explain why we regard the matter as being of such great significance that we have been prepared to bore Members of the House--some of them out of the Chamber. The noble Lord, Lord Mackay of Ardbrecknish, has advanced the argument--I believe that noble Lords in all parts of the House will recognise this--over, over and over again that the proportion of those determined to be genuine asylum seekers--he has given figures of 4 per cent. and 7 per cent., including all forms of extended leave, to reach about 25 per cent. of the total, and a little less in 1995--shows that the great majority of those attempting to enter this country are, to use his words, "bogus asylum seekers". We on this side of the House are ready to admit that there are bogus asylum seekers. We have said, and we should like to repeat, that we believe such people have no right to stay in the UK, or indeed to make life much harder for those who are genuine asylum seekers. However, the problem is that taking the argument that those who are successful appellants or successful first claimants tells us exactly how many genuine asylum seekers there are is not a convincing argument. The noble Lord, Lord Mackay of Ardbrecknish, referred in his very last answer to the amendment moved by the noble Baroness, Lady Hollis of Heigham. He said, "We apply the UN test. Successful applicants satisfy the UN convention". But the UNHCR in a recent memorandum about exactly that said:


    "A country's recognition rate of refugees may more often reflect the narrowness or liberalness of that state's application of the refugee definition rather than the legitimacy or otherwise of individual claims. The lower figures are then tendentiously used as evidence that bogus claims are increasing, thereby justifying further restrictive measures".
They are its words, not mine. We have heard that tendentious argument repeated over and over and over again in the proceedings on the Bill. I repeat, those are not my words but they are the words of the very organisation which the Minister called in his support. I refer to the UNHCR speaking about the United Nations Convention. The change in the climate of belief and disbelief has had a great deal to do with the sharp drop in the number of asylum seekers found to be genuine. I wish to make only one further remark about that. We should be very careful about using the word "bogus" with the words "asylum seekers", as though they were married together and were one concept. There are bogus asylum seekers and there are many genuine asylum seekers. When we see, as on Monday the Independent so tragically indicated, a young man beaten up to the point of losing an eye because a group of thugs in the street regarded him as a bogus asylum seeker we can see the extreme dangers that this House will run if it stereotypes asylum seekers as though all or almost all were bogus. We have pressed these matters because once in a while a Bill comes before the two Houses of Parliament on which there is such anxiety and concern that it flows well beyond the confines of this House or another place.

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This Bill falls into that category. I have spent 10 years of my life in government--four as a junior Minister and nearly six as a Cabinet Minister--and I have seen such Bills. They do not arise often but perhaps once in three or four years a Bill which in a sense is about the conscience of a nation comes before Parliament for consideration and decision. I believe that this is such a Bill. It is such a Bill because far beyond ourselves those groups in what is sometimes called civic society--the many democratic organisations beyond Parliament--have almost all given voice to their grave anxieties and concerns about the Bill. I do not wish to detain the House more than briefly but perhaps I may remind your Lordships of what those organisations--they are not constituents but organised voices of concern--have said about the Bill. The National Association of Citizens Advice Bureaux said, about the decision to remove all benefits from asylum seekers, which is what we have been debating:


    "The CAB Service believes that the fundamental principles of justice are undermined by the introduction of the regulations designed to remove ... benefits from asylum seekers".
The CAB is not a political organisation. The courts share that concern. There have been many quotations of Lord Justice Simon Brown and I shall not repeat them. However, at page 21 of his judgment he makes the point that those seeking to appeal against the refusal of asylum will now have no access to funds or benefits of any kind once they have gone through their original claim; that they will have no accommodation and, being ineligible for housing benefit, no prospect of ever securing any; that they are forbidden to be employed and cannot find alternative means of keeping themselves alive; that they are unlikely to have many families or friends to fall back on; and that their claims take up to four years to proceed. They are in a uniquely terrible position. Of those five situations laid down by the Appeal Court, four apply only to asylum seekers and do not apply to our own people. However, I fully accept the parallel with regard to the first of those conditions; that is, the withdrawal of benefit. The other four conditions--no prospect of obtaining accommodation, no right to be employed, no likelihood of being supported by family and friends and the length of their appeal--are not on all fours with the two cases. Even the Government's own Social Security Advisory Council, which is appointed by the Secretary of State for Social Services, stated:


    "The reality of the proposals is that thousands of men, women and children will be left with no means of providing themselves with food or shelter".
They are its words, not mine. It went on to state,


    "Health professionals have warned that, given their vulnerability, they may be in such precarious physical or mental health that some may die".
Those issues go well beyond what is normally at stake in legislation. They are issues in respect of which the country is passing a milestone towards, I believe, a less generous, a less conscience-led, a less liberal--and I mean that in the broad sense of the word--and in many ways a less moral position. That is why we have gone on and on and on about this Bill.

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I do not want to sit down without making one further comment. The noble Lord, Lord Mackay of Ardbrecknish, said in his marvellous forensic style--he would have had a great career in another profession had he not had a great career in his own--that it was time that the many critics of the Bill gave positive indications of what might be done. Perhaps I may mention three. Will the noble Lord consider making available through all diplomatic posts clear information about the terms upon which anyone seeking asylum may receive it in this country? Will he consider making sure that those landing on our shores and going through a port will have access to telephones and to the numbers of advisory council bodies to enable them to discover the grounds on which they can make their claims for asylum? Will he consider providing leaflets in many languages which will tell them as they arrive that they need to make an immediate claim if they are not to lose their chance of making out a case for asylum? Will he agree that those leaflets should make a specific case for those who claim that they have suffered torture? Such actions will make many of us feel a great deal better because they will enable the genuine cases to pass through what is now a very narrow and indeed narrowing door. I do not wish to detain the House longer except to say that this morning, by some irony, being a Member of sub-committee A of your Lordships' Select Committee on the European Communities, I looked at a document on how the British Government could define and determine those countries within the Lome Convention, mostly African and Caribbean countries, which in the committee's view had such a terrible record of human rights that their membership of the Lome Convention should be suspended. I repeat that Her Majesty's Government were scrutinising the steps they would take to bring about the suspension of a country on the grounds of human rights. If we can do that within the terms of the European Union, cannot we do that within the terms of this Bill? Cannot we say that countries of that kind are exactly those to which people should not be sent back? That is what Peers on many sides of the House have argued at many points in the Bill. Yet in relation to another matter we are told by the Government that it is perfectly possible to do so. I believe that we are passing a milestone. I wish that it was a milestone on a road of ascent but I fear that it is a milestone on a road of descent. I say to all Members of the House that we extend our apologies for keeping the House sitting for so long, but it is the only legitimate constitutional and parliamentary answer that we have in trying to draw the attention of this House to what we regard as an immoral and very bad Bill. I beg to move.


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