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Lord Hylton: First, I have a drafting quibble in relation to the clause which simply begins by mentioning "a member state". That expression is not explained in the marginal notes. We know from the Notes on Clauses that it means the European Union but on the face of it, there is nothing to prevent it meaning a member state of the United Nations, the Council of Europe, the OSCE or even the Commonwealth. Perhaps the Minister will ask somebody to think about that point.
However, there is a much more important point on the substance of the clause. In resisting that the clause shall stand part, the noble Lord, Lord Dholakia, mentioned the question of Algerians being transferred to France as a presumed safe country. It is a matter of common knowledge that collusion between French and Algerian state security services has been alleged, if not proved, over quite a long period of years. Therefore, it seems to me to be somewhat unsafe automatically to assume that all the European Union countries will be, ipso facto, safe for all kinds of asylum applicants. I shall be interested to hear what the Minister has to say about that.
Baroness Williams of Crosby: I am extremely concerned about and should welcome some enlightenment on Clause 9. However, I should declare an interest as a member of the Comite des Sages which looked at the European Union's civic and social rights over a period of two years. We went quite deeply into issues arising from this kind of legislation.
The European Union is in the process of expansion which is likely in the first instance, over the next two or three years, to include a first list. Within that first list are countries which we all want to see as part of Europe but which, on matters of asylum and immigration, in some cases cause a certain amount of anxiety.
For example, I mention the well-known fact that the Czech Republic's treatment of the Roma has been criticised by the Council of Europe and that the treatment of the Romanian-Hungarian minority has also been the cause of considerable concern.
I agree and admit that this clause is a relatively recent introduction into the Bill, which was not discussed by the Special Committee of another place. Nor indeed was it discussed at any length on Report because that stage was necessarily truncated for lack of time. Therefore, this matter has not been given the careful consideration which it deserves. The Explanatory Notes make no mention whatever of the expansion of the European Union, nor to the very real concerns which have been expressed about civil liberties in some of the countries listed for expansion.
When I say that the legislation is based upon "shifting sands", that is because over the next few years the EU15 will become the EU21 and possibly then the EU28. That will be a rather different proposition. It will not be possible to be certain that it is possible to define every country within the EU as safe.
The clause plays a rather complex trick, if I may be forgiven for using the expression, because, as the noble Lord, Lord Hylton, implied, it defines countries which respect the conventions in terms of defining them and they are then seen to be members of the European Union. But I am not sure that one can escape what seems to me to be implicit in both the refugee convention and the European Court of Human Rights cases; namely, that each case deserves separate consideration. It is based on substantive consideration of individual cases.
By trying to define the problem away, I am not sure that the Government are convincing in what they are attempting to achieve. As my noble friend said, having then precluded the right of appeal, in effect they are saying that their definition is infallible, that it cannot be questioned and, therefore, in a sense, the definition is self-justifying. On constitutional grounds, that troubles me very deeply indeed.
However, even more worrying is that it is linked with Clause 62(2)(a) which allows the Secretary of State to declare that a claim is manifestly unfounded. As I understand it, it also carries no appeal.
There is a second consideration which is another reason why I believe this clause is based on shifting sands. In the Treaty of Amsterdam it was made plain that the member states of the European Union were engaged in a process of trying to develop a common asylum policy. As Ministers will know well, so far, because Britain has not been a member of the Schengen agreement, it is still questionable as to the extent to which we shall be part of that common approach to asylum. But already the member states of the EU are trying to devise both a common position on the treatment of asylum seekers and also a common set of criteria as to who is accepted for asylum and who is not. As my noble friend implied, that process is still very much in a transitional phase. It has not been resolved one way or the other.
Perhaps even more disturbing, because it has not been resolved, so far the position of the European Court of Justice, in being able to take into account human rights considerations written into the Treaty of Amsterdam, is not yet settled because the European Court of Justice does not yet have jurisdiction over asylum matters, although that is implicit in the Treaty of Amsterdam.
I apologise for detaining the Committee on a side issue but it is crucial to this clause. I ask whether it is sensible for Her Majesty's Government to tie themselves down to legislation which, by the passage of events, is likely quite soon to seem both inappropriate and irrelevant? Is it essential to opt for that extraordinary circular self-vindicating exercise which leaves out of account the grave concerns that I have mentioned with regard to the political and legal systems of all the countries to which the European Union may expand in the next few years, in advance of what is not yet a completed negotiation on the subject of asylum policy in Europe and our connection to that asylum policy? As my noble friend implied, that is a matter for the European Council to discuss at its next meeting in Finland.
Before I do that, I wish to refer to our debate on whether Clause 8 should stand part. The noble Lord, Lord Renton, and I met in the corridor after that debate and we did our best to make peace with one another. I was once his archdeacon and he was once my Member of Parliament. Therefore, we share a common history. It is not the first time that we have debated matters and we have always tried to do so upon an amicable basis.
Nevertheless, I stand by the points I made in that discussion. However, I believe that those points are entirely compatible with the statement made by the noble Lord, Lord Williams of Mostyn, at the conclusion of that debate. To summarise, I believe that what he said was that we needed an asylum determination that was fair; that in that determination the matter of class was irrelevant. That is entirely true. We were trying to rebut the argument that those granted refugee status are a drain on the economy. I believe that it is a bonus that they are not, but it is not a criterion to be taken into account in determining their status.
As the noble Lord, Lord Williams, mentioned, there are those who abuse the system. Some do, but not all. The whole point of the system is to determine those whose claim is not founded. I believe that that can only be done by the process itself, not in advance of the process. Therefore, we have to have a speedy determination process. Because we do not have that at the moment, we have large numbers of people who are granted exceptional leave to remain. We all know the situation; I clarify it for my own sake.
Therefore, I applaud the Government's intention to reduce the period of initial determination of appeal to six months. The only question I have is whether under the present proposals it can be achieved. We shall return to that matter later.
I turn to the question of whether Clause 9 should stand part of the Bill. As I understand it, the intention of Clause 9 is to remove the possibility of judicial review of the decision to remove to a country in the European Union. I believe that the best thing I can do, because I am not sure that it has been done in this way yet in the debate, is simply to refer to the briefs I have received on this matter from four very different organisations. The first is the Medical Foundation caring for victims of torture. That organisation makes the point that the intention of inserting Clause 9 which, as I understand it, is a fairly recent insertion, was, as has been expressed by one of the Ministers in another place, to make transfers under the Dublin Convention less vulnerable to judicial review challenges.
This clause tries to ensure that administrative decisions about the removal to a country in the European Union should be protected from the scrutiny of the courts, and opportunities for legal challenge, however legitimate, should be removed. The Medical Foundation has given various pieces of evidence about the difficulties raised by this intention. I do not intend to go into detail in that regard, but simply to make the general point.
A very different body, the Immigration Law Practitioners' Association, also opposes Clause 9 on the grounds, once again, that it prevents access to judicial review to challenge removal and therefore takes away a right which is surely an essential right. This body challenges the abolition of many of the appeal rights under this new legislation. It opposes the abolition of an effective means of challenging the exercise of discretion which otherwise goes unchecked.
Finally, the Immigration Advisory Service, again a very different body, also opposes this clause on the grounds, once again, that it was introduced with only a few days' notice; that the Bill was timetabled in order to restrict debate on this particular matter, and it enshrines Section 2 of the 1996 Act to the effect that the Government will enshrine in statute law the proposition that EU member states are to be regarded as safe third countries for the purpose of returning asylum applicants to these countries.
Perhaps the best example of the failure to be a safe country is in relation to the Kosovo refugees, some of whom were returned to Germany which did not accept their refugee status and simply returned them to the country from where they had come. That example is sufficient to draw reference to the dangers inherent in the inclusion of Clause 9 in the Bill.
Earl Russell: I am delighted to hear of the making of peace between the right reverend Prelate and the noble Lord, Lord Renton. The noble Lord, Lord Renton, and I are old friends. We have agreed as often as we have disagreed. I hope that we are both too good parliamentarians for any peace to need making. If it needs making, I shall look forward to making it.
Clause 9 is defective in its drafting. Paragraphs (a) and (b) are perfectly acceptable. However, for the clause to stand up it would need a paragraph (c) to state that the Secretary of State is satisfied that the receiving member state will admit the applicant to the asylum process.
In all the Bills in which I have taken part on this issue, this is the point where we have always been held up on third country cases. People have been sent back to a third country which in the abstract may appear to be safe but it has not admitted the asylum seeker to its process, usually because it is held that he has been illegally present in the territory.
I remember a case from Belgium precisely on this point. It arose in the middle of our debates on this issue in the 1996 Bill. I regret that at this time of night I have been unable to check the name of the case, but I am sure the Minister will recollect it.
They cannot be satisfied unless there is a requirement in the clause that people shall not be sent to an allegedly safe third country unless they are admitted to its asylum-seeking process. That is where the rub comes. It is not only the points about non-state persecution, although those are of substance.
My noble friend Lord Dholakia mentioned the case of Algeria. It is perhaps even more important in the case of Somalia, where state persecution is a contradiction in terms. When my son was doing a degree in strategic studies at the University of Wales, they used the case of Somalia to illustrate the proposition that Hobbes' state of nature was not actually a fiction. Any persecution in Somalia must be non-state persecution, which is why Somali refugees do very much better in this country than they do in France. It gives me great pleasure to mention something in asylum law in which we do better.
That raises a further consideration. Non-state persecution is an admissible ground under the European Convention on Human Rights, although not under the 1951 UN Convention. Since it will be excluded by the effects of the clause, can the Minister tell us precisely what reasoning led him to sign the certificate of compatibility in relation to this clause, because it seems to me that we will run into some problems?
The other question that interests me is what the effect will be of an attempt to exclude judicial review. The principles of judicial review do not rest on statute; they rest on the principles of natural justice. Those principles do not owe their origin to any Act of Parliament, and in fact antedate the first Parliament that ever sat in this country. Therefore, they cannot be derived from any Act of Parliament. They are principles of common law, as set out in some of the initial cases, 17th century cases but cited in the 20th century by the noble and learned Lord, Lord Ackner in the precedents submitted in the case of Ridge v. Baldwin. These argue that it is part of the power of the common law to review the exercise of any power whatsoever. There is no exclusion in that.
There is no legal ruling on whether statute or common law, the principles of natural justice, are superior. I have no wish to see any such rule. There are some questions which, in my opinion, are better not answered. However, since the Bill is attempting to exclude judicial review and since certain potential litigants will be aggrieved by that attempted exclusion, the Bill does invite a trial of strength in an area where it would be much wiser for all of us if no trial of strength were to take place.
I have given the Minister notice that I intended to mention the judgment of the Master of the Rolls, the noble and learned Lord, Lord Woolf, in the case of R. v. Home Secretary (ex parte Fayed). That is a case with which the Home Office must be familiar since it was the losing party. It was a judicial review of the Fayed application for citizenship. Under the clause in the 1981 Act the Home Secretary was not required to give any reasons for refusal of citizenship. The noble and learned Lord accepted the supremacy of statute very
Starting from that principle, he laid down the principle that if Parliament wishes to confer a power to act unfairly, it must say so in express words. That is a pretty steep requirement for any politician. Were that requirement to be applied to this clause, I tremble to think of the answer.
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