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Lord Clinton-Davis: My Lords, is my noble friend proposing to become an examiner in private international law? The questions that he poses are redolent of my student days.

Lord Berkeley: My Lords, my noble friend is absolutely right, but perhaps on this occasion I should describe him as "my noble and learned friend". However, in this difficult matter I am merely posing questions; I am not giving the answers.

Moving quickly to consultation, the Road Haulage Association has been consulted. It recently received a copy of a code of practice on how the provisions will be implemented. The association states:

The Government are seeking to make transport operators their immigration officers. That will cause confrontation and aggravation. I believe that this is a matter for governments and neighbouring member states to negotiate. Screening equipment is available in the US which--I must repeat to the House this lovely quotation--

    "can detect biomass through even container sides". It works on the Tex-Mex border of the US. If the Government are to insist on these provisions, perhaps they should consider installing such equipment at Calais and other places through which these immigrants are alleged to travel. It is for the Government to negotiate this. I believe that the industry would prefer to work with government and not to see every driver made a potential criminal. Is it really worth all this for the 9,000-plus clandestine entrants? I believe that implementation is the Government's responsibility and that industry would co-operate on something feasible, if given some encouragement. It is important to remember that the Government's policy is to encourage rail freight; these provisions will do the opposite.

I believe that the consultation so far has been inadequate and started much too late. I should like all these provisions to be withdrawn from the Bill and

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replaced by an agreement with the road and rail freight industries so that government and industry can work together positively and proactively to ensure that the very few criminals--there are criminals in every business and I am sure that the road and rail freight industries are no exceptions--are apprehended and that the others in the industry can go about their daily business unhindered, and perhaps even help in this matter. The Government should not turn the entire road and rail freight industries into potential criminals. With that, I look forward to an early meeting with my noble friend the Minister.

7.4 p.m.

Earl Russell: My Lords, in this Chamber I have listened many times to the Minister making speeches on civil liberties or race relations. I have been proud to be able to hear those speeches. Nothing that I may say in the course of the passage of this Bill will in any way suggest that I have forgotten that; I shall not have done so. However, I know that the Minister is also a great advocate. It must be the skill of a great advocate to make the best of a very weak brief. If sparks should fly in the later course of the passage of the Bill, the Minister will, I am sure, understand that it is the brief and not the advocate with which I am irritated.

I shall speak mainly on Part VI, but as I am replying to the debate from these Benches, perhaps I may touch first on some of the points that have been made. I agree entirely with what the noble Lord, Lord Berkeley, has just said about the limits of carriers' liability, and in particular with his point about a driver's limited control over his lorry. The driver is the ideal scapegoat.

I listened with great pleasure to the speeches of the noble Lords, Lord Clinton-Davis and Lord Sheppard of Liverpool. I take the point about false documents. This is a regular Home Office problem. The Home Office thinks about immigration law and asylum law in the same box. False documents indicate that someone is a false immigrant, whereas someone would be much more likely to be a false asylum seeker if he had genuine documents. I shall not say that no asylum seeker can have genuine documents. I know that that happens. It happened even when people left Germany in the 1930s. However, it is of the nature of asylum-seeking that documents are likely not to be genuine, as is illustrated by what has been happening to documents in Kosovo. We should never forget that. So, I think that the presumption being made is wholly impertinent and immaterial to the matter we are discussing. I also agree rather strongly with what the noble Lord, Lord Clinton-Davis, said about the powers of immigration officers.

I am particularly grateful to the right reverend Prelate the Bishop of Southwark for introducing the problem of placing in schools the children of asylum seekers. I am even more grateful to him for giving my noble friend Lord Tope notice of what he had to say. The individual case is being investigated. However, the problem is much more general. The right reverend Prelate will find that it was discussed in the evidence to the Standing Committee in another place on 18th March last. The

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point was made there about the dislocation that is caused to a school when there are sudden floods in and out of children with special needs.

Another point was made, which again stretches far beyond the Bill, relating to the problems caused by the present system of school admissions, in which schools or local authorities are very far from having complete control over their admissions procedures. I shall not take that point any further now, but the right reverend Prelate may find it interesting to read the debate of a Motion tabled by the noble Baroness, Lady Blatch, last winter about the working of the code of guidance on school admissions. He may also be interested in consulting Shelter about its joint research with the University of London into the equivalent problem with regard to the homeless. I am glad that that point was raised. It is the sort of interdepartmental problem that tends to get neglected.

I agree strongly with what my noble friend Lord Avebury and the noble Earl, Lord Sandwich, said about the review of detention. Incidentally, that is a subject on which we owe the Minister thanks for the fact that anything is there at all. However, I wonder about the form in which it occurs. According to Article 5(4) of the European Convention on Human Rights, anyone,

    "shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court". The Minister has signed the certificate of compatibility. He must have considered how far, and on what grounds, bail hearings really meet that provision. I should be grateful for his answer on that. I am sure that I would learn from it.

I am also glad that the noble Countess, Lady Mar, said what she did about persecution and gender. I draw her attention to a judgment of the Appellate Committee of this House only about three months ago which ruled that gender could be a particular social group within the meaning of the UN convention. I am sure that the Minister has the detail available. I regret that I did not bring that particular cutting with me among so much else. It needs to be remembered not only that all women tend to find rape extremely hard to report but that some cultures, of which the Kosovar Albanians are one, find it particularly difficult to report because it tends to destroy marriage prospects.

I am glad that the noble Lord, Lord Alton of Liverpool, said what he did about the interests of the child being paramount. I hope that we shall return to that. I also hope that we shall return to the very narrow definition of a dependent child. There are many children--Kosovo reminds us of the problem--who come out with both parents dead. Is it possible that the Government can stretch a point enough to regard these children as the dependents of their uncles, grandparents or other next relatives who are willing to take responsibility for them? To concede that may save public money and it is also a matter of common humanity.

I turn now to the central fallacy of the whole Bill. Since it underlies Part VI as much as any other I must spend a little time on it. Paragraph 8.5 of the White Paper states:

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    "The real issue is how to run an asylum system which serves the British people's wish to support genuine refugees whilst deterring abusive claimants". The aim is not ignoble, but it is absolutely pie in the sky until the claim has been heard and it has been determined whether or not the applicant is a genuine refugee. I recall that once before when I put this matter to the Minister at Question Time he replied that a seasoned advocate was capable of recognising, on the face of it, which claims were likely to be true. I accept what the Minister says, but he is too good a lawyer to suppose that it is the same point. It is not given to us to be able to sort the sheep from the goats at one glance. That is not a human power.

I agree with the Minister that there are people who use asylum claims to evade the immigration system. The question is whether it is possible to know who those people are before there is a hearing. If there is any way in which that can be done I have yet to hear it. I agree with the Minister about the ten-fold increase in applications, but I believe that the reasons for that stretch outside the responsibilities of the Home Office. His noble friend Lady Symons of Vernham Dean may be able to comment on the matter rather more appropriately than the Minister.

Last night I happened to read a speech by my right honourable friend Mr Ashdown at Chatham House in 1996 in which he pointed out that of the 82 armed conflicts in progress at the time he spoke no fewer than 79 were not wars between states. What we see is the breakdown of the state's monopoly of armed force. That has a great deal to do with the increase in the number of refugees. It does not result from an increase in original sin because I have never been convinced that sin is more original in one period than in another.

I also have very considerable doubts about the legality of the attempt to deter applicants. Under the UN convention of 1951 we are bound to give a hearing to those who claim asylum from us. That has been incorporated--or semi-incorporated--through Section 2 of the Asylum and Immigration Appeals Act 1993. If we try to deter them from coming we are impeding their claim to a hearing, which is a legal right. I am also very much bothered about the practicality of the idea that people can be deterred. It assumes a knowledge of British legislation that is quite rare in this country, let alone in the back streets of Jaffna.

The Refugee Council points out that since the 1996 Act the ratio of in-country applicants who do not get benefits to port applicants who do has remained constant; and in Scotland where in-country applicants can still get benefits there has been no proportionate increase in the number of applications. That seems to suggest that they do not follow these matters quite as carefully as the Home Office computer supposes. The same mistake was made by F. E. Smith who said that the Welsh Church Disestablishment Bill had shocked the conscience of every Christian community in Europe.

    "Do they trembling, groaning, bleeding, wait the news from this our City;

    Groaning, 'That's the Second Reading'; hissing, 'There is still Committee'.

    If the voice of Cecil falters, if McKenna's point has pith,

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    Do they tremble for their altars? Do they, Smith?". I am afraid that they do not, which is why the whole policy of deterrence rests on yet another fallacy.

The other fallacy on which it rests is the belief that an asylum seeker, who gets out by the first means available and is bound by the safe third country rule, has very much choice as to where he goes in the first place. Even supposing that he does, is it really a good idea for the world's powers to have a Dutch auction about who can be less generous to refugees than everybody else? Will that not give us a world of flying Dutchmen? Will not the airlines have a fit--and quite right too?

Incidentally, we always discuss this question on the assumption that British benefits are more generous than anyone else's. They are not, as Eurostat tells us. If the assumption were correct we should already be getting a much smaller proportion of applications than we were getting 20 years ago. Once again, they do not know what is going on in British legislation.

When we come to the system of support, it costs more and provides less. My noble friend Lady Ludford's point about best value was well taken. I hope that it will be crystal clear that local authorities who co-operate with any part of this system will be immune from the provisions of best value legislation while they are doing what they are required to do by government legislation. It would be just like government in all centuries to forget to make that clear, and I hope that this Government will not do so.

The whole point of this is to make it all more unpleasant than it would otherwise have been. I agree with the point about the effect of the vouchers and concentration of accommodation in one place. I have not forgotten one evening in Greece when it turned very cold and rainy, as once in a blue moon it does. Everyone congregated in a taverna where on a television they could see a film of the burning of the refugee hostel in Lubeck. I watched the faces of the Germans sitting at the table next to me. They were absolutely horrified to the core. I do not want on a future holiday to be in the position of those people.

The loss of entitlement is also serious. That is achieved by the use of regulation so flexible as to entitle the Minister to take away the right of support from practically anybody he likes. I was pleased to hear the Minister's remarks about the duration of support--until the claim is heard. I shall read that extremely carefully when I am here tomorrow. That could be a concession for which one might be grateful.

The objective of deterrent shows through with painful clarity. Take this: Clause 87(2), the Secretary of State exercising his power to say where refugees shall live. To say that they can only live in one place seems to me to be on the slippery slope that leads towards internment. In the words of the Bill, the Secretary of State,

    "may not have regard to ... any preference that the supported person or his dependants (if any) may have as to the locality in which the accommodation is to be provided".

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    Those words seem to me to approach the sadistic. If by any random chance the Home Secretary were to put people where they actually wanted to go, he might be offending his own legislation. That can surely not be what was intended.

After all, when people come out of the experience of becoming a refugee, they tend to be in a rather traumatised state. In those circumstances you want to congregate round your friends, the people you recognise and the people who speak your own language. The CAB has already reported cases like the Somalian who has been sent to Brighton where no one speaks his language and he cannot communicate with anyone. It is not going to make matters any easier.

I heard what the noble Baroness, Lady Gardner of Parkes, who is no longer in her place, said about drifting back to London. I have supported her many times in the past on the burden on London local authorities, but that was because the burden was put on local authority budgets. When the burden is put on central budgets it is to a very large degree a different matter, and the accessibility of legal advice in London is unrivalled.

One should also look at the other things which are being done here. Clause 107(1), the National Assistance Act 1948, the safety net which came unexpectedly to our rescue last time, is being cut away just in case it does it again. Clause 108(2), the National Health Service Act 1977, disentitled refugees to protection under local authorities' powers for the prevention of illness. I think that the Government have there shot themselves in the foot. Cholera is not dead. Cholera is one of the things which did a great deal to put an end to laissez faire. In fact, it did more damage to laissez faire than socialism ever did. We already have a rapidly growing amount of TB among the destitute. If the local authority cannot intervene at an early stage and try to stop diseases like this among people who malnutrition will make all too prone to them, we are going to end up spending a great deal of public money which could have been spent to much better purpose.

I wonder also: is this deprivation of support legal? It appears to me to contradict section 24 of the UN Convention on refugees 1951. I know the Government put up an argument to claim that people are not refugees until their claim is recognised. I find it very hard to reconcile all that with the actual words of the 1951 Convention. Its definition of a refugee is having a:

    "well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable, or owing to such fear, is unwilling to avail himself of the protection of that country".

That begins from the moment of being outside your country. It is in the grammar of the words. That is the interpretation of the UNHCR handbook. The principal intention of the legislator means that we need to listen to the UNHCR. It is also the judgment of Lord Justice Nolan, as he then was, in the Koboko case. There is a very strong ground for arguing that it is the law. Justice is also doubtful about how far it is compatible with the European Convention on Human Rights. It invokes Articles 3, 8, 14 and, in extreme cases, Article 2. There

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may be extreme cases. Article 2 is the right to life. The Minister will have considered that argument and dismissed it. I should be grateful to know why he did so.

Before concluding I shall turn briefly to the arguments of the noble Lord, Lord Warner. He said that he thought we did a fairly good job of recognising which were genuine and which were not. It leaves us with a problem of the contrast between what we do with a body of applications and what Canada does with a very similar body. We cannot both be right. There are also sudden and sometimes dramatic variations in the treatment of applications from particular countries. I remember when John Major, not the most squeamish of politicians, described the death of Ken Saro-Wiwa as murder by the sword of justice. I looked at the figures for the treatment of refugee applications from Nigeria. The previous year's figures were: refused 1,485, exceptional leave to remain four, refugee status zero. These seemed to me to be an offence against the law of averages. I am not sure that we do quite as well as he thinks.

7.27 p.m.

Lord Warner: My Lords, would the noble Lord concede that in 1998 the number of acceptances of applications from Nigeria was about 7 or 8 per cent, rather higher than he is suggesting?

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