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Lord Alton of Liverpool: I do not believe that I can share the noble Earl's enthusiasm for any of the so-called "virtues" of Henry VIII, but I agree entirely with him that Clause 10(1)(b) is--

Earl Russell: I did not say he had very many.

Lord Alton of Liverpool: I am not sure that he had any at all, but we can resume that discussion elsewhere.

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I agree with the noble Earl that the wide-ranging powers given to the Secretary of State are wholly undesirable and way beyond what should be offered in the scope of the Bill. I agree with the point made by the noble Lord, Lord Avebury, that we should revert to the pre-1996 position. That is precisely what the then Opposition argued in Committee when we considered the 1996 legislation. The noble Lord and the noble Earl, Lord Russell, expressed their sense of ennui concerning that legislation. Although I was not here then, I recall the debates in Standing Committee in another place where the very arguments put forward tonight by the noble Baroness, Lady Williams, about Nigeria were advanced by Members of the Labour Opposition and by myself. Indeed, we raised other examples such as Romania and that raised tonight by the noble Earl, Lord Russell, about the problems of sexual orientation and religious discrimination there. Those problems continue today.

The noble Lord, Lord Avebury, raised the issue of Pakistan and the use of the blasphemy laws there. It has been well documented world-wide by organisations such as the Jubilee Campaign and Christian Solidarity. It would by no means be a safe country to return people of that religious minority to that country. We should therefore be most careful about putting such power into this legislation.

If Clause 9 raised concerns in the context of the EU and states which might wish to join, how much more pernicious it is to give the Secretary of State the power to designate other countries as safe third countries outside the EU or North America? The arguments which were deployed earlier can be deployed here, but to an even greater extent. To enshrine in statute the presumption of a country's safety can take no account of rapid changes in the political and social climate in those countries. Before justifying such changes in Clauses 9 or 10, the Minister owes it to the Committee to describe how formidable are the problems by enumerating the number of attempts to challenge the Secretary of State at law during the past 12 months, since the 1996 legislation, where it was considered that there have been injustices. If that has not been a massive problem hitherto, I can see no justification for extending the powers and diminishing the right to go to law for those who feel that such clauses may adversely affect them.

Lord Cope of Berkeley: I shall not enter into the general questions raised by the debate, although they are pertinent. They have been covered thoroughly. I want to draw attention to the fact that the power, whether Henry VIII or otherwise, is very wide. The power in Clause 10(1)(b) appears to be circumscribed only by the negative procedure in Parliament. It will not be used all that often and therefore it would not be too great a burden on either House if the power were subject to affirmative resolutions. In view of the potential importance of the power, that would seem to be appropriate.

Lord Williams of Mostyn: I hate to mention this, but Clause 10(1)(b) simply replicates the existing power in Section 2(3)(g) of the 1996 Act. So when phrases

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such as "taking this new power" are used, I repeat that it is simply a replication of the existing power in the existing Act--

Lord Avebury: That does not make it any better.

Lord Williams of Mostyn: It does not make it any better, but it does not describe itself sensibly, accurately or appropriately as "this new power". That is the phrase with which I am dealing. It is important to remember that although one does not want to go around stirring up apathy, one does not want to stir up things which are factually incorrect. Of course that does not make it any better. I am simply saying that it is not, not, not a new power.

Clause 10(1)(b) says that even once an order is made designating a country as safe, the Secretary of State still has to certify in each case that removal is safe. Removal will also still be subject to the current judicial review challenges. There are at least two ducks that should now be dead.

Only four states outside the European Union have ever been designated as safe under the 1996 Act. They do not include Pakistan or any of the other countries that have been mentioned tonight. They include countries that, curiously, were not mentioned tonight, except in the context of one homophobic murder to which the noble Earl, Lord Russell, referred. The safe countries designated are Canada, Norway, Switzerland and the United States. That is a good illustration of the proposition that I have been putting.

Earl Russell: All that my noble friends have said is that at the time of the 1996 Act it was proposed to designate certain countries. That is what the then Minister told us.

Lord Williams of Mostyn: That supports my argument. Proposals can whistle. I am talking about what happened, not what your noble Lordships say is likely to happen, with the collapse of civilisation when the clause becomes law. That has not happened because there has been a good deal of cautious scrutiny. I repeat, however disagreeable the fact may be, that the only four countries involved are Canada, Norway, Switzerland and the United States. It is right to be cautious. Clause 10 reproduces the existing power without substantive change. Caution will continue to be applied.

The noble Baroness, Lady Williams of Crosby, asked about an advisory committee--perhaps even an informal one--or at least some mechanism to provide a basis of coherent thought for any judgment that might be arrived at. I am more than happy to give that idea consideration.

Baroness Williams of Crosby: I should like to ask one question for clarification. My understanding was that Clause 10 removed in-country appeal rights other

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than under the ECHR--I believe that it is Article 3--in a way that is different from the 1986 Act. Is that incorrect?

Lord Williams of Mostyn: That is incorrect. As always, the Secretary of State's judgment will be subject to judicial review. There is no change to the opportunity for judicial review challenge.

I am not sure whether the noble Baroness heard me, but I was responding to her suggestion about an advisory committee or some similar mechanism. I shall give the idea every appropriate thought.

Lord Avebury: In giving the matter appropriate thought, will the Minister also undertake that such an advisory committee would be able to review the assessments that are published by the Home Office of individual countries and their human rights performance? I congratulate the Home Office on producing those assessments, which are a great advance on previous practice because they give references for all their statements whereas we used to get ex cathedra statements about the human rights performance of various countries. Every assertion in the assessments is referenced back to a document from sources such as the US State Department, Human Rights Watch reports or Amnesty International reports. However, there are still errors in the assessments. If the Secretary of State sets up such a committee, it would be useful if it could also review the factual content of the Home Office country assessments, covering not just what they contain, but what they sometimes omit, which is equally important for determining asylum applications.

Lord Williams of Mostyn: I have simply said that I shall consider the ideas that have been put forward. One of the advantages of the late Henry VIII that has not been mentioned is that since his death ex cathedra announcements have not formed a significant part of the administration of the bureaucratic system in this country.

10.15 p.m.

Baroness Williams of Crosby: I thank the Minister for agreeing to consider my suggestion. I hope I am not being too tedious in returning to what I believe is a point of misunderstanding between us, which I shall seek to clarify.

My understanding was, as the Minister said in his previous answer, that there would remain a right of judicial appeal from Clause 10 under certain considerations; in particular, if the person concerned argued on European Convention grounds that he should not be returned to a designated safe third country. My understanding was that no in-country appeal in this country still exists other than judicial review to a higher court with regard to being returned to a third country. That understanding was based on the case of Clause 9, on the similarity of EU structures to those of this country. I was pointing out that in the case of Clause 10, one could not make that argument. Am I

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therefore incorrect in understanding that the appeal within this country other than through judicial review is in fact ceasing to exist?

Lord Williams of Mostyn: I have tried to make it plain. There is no derogation from judicial review--

Lord Avebury: That was not the question.

Lord Williams of Mostyn: It is the answer, because it is quite important to get it right. There is no derogation from judicial review between Clause 10 and Clause 2(3) of the 1996 Act. The human rights appeals are to be found in Clause 55, where it is stated:


    "A person who alleges that an authority has, in taking any decision under the Immigration Acts relating to that person's entitlement to enter or remain in the United Kingdom, acted in breach of his humans rights may appeal to an adjudicator against that decision",

that is, Acts made unlawful by section 6(1) of the Human Rights Act 1998.

Subsection (2) states:


    "For the purposes of this Part, an authority acts in breach of a person's human rights if he acts, or fails to act...in a way which is made unlawful by section 6(1) of the Human Rights Act 1998.


    Subsections (4) and (5) apply if, in proceedings before an adjudicator ... a question arises as to whether an authority has, in taking any decision under the Immigration Acts relating to the appellant's entitlement to enter or remain ... acted in breach of the appellant's human rights.


    The adjudicator, or the Tribunal, has jurisdiction ... "Authority" means ... the Secretary of State ... an immigration officer ... a person responsible for the grant or refusal of entry clearance".

Those are the rights set out in Clause 55. The judicial review challenge to the Home Secretary's "discretion" remains intact.


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