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Baroness Williams of Crosby: My Lords, I cannot argue the legal case as has my noble friend Lord Goodhart, and I shall not attempt to do so. However, I should like to bring to the attention of the noble and learned Lord developments that may very much affect the way in which Clause 10 operates. I fully appreciate the point made frequently by the Government Front Bench that other EU fellow states are indeed advanced democracies, as my noble friend has said.
I shall not advance the legal arguments because my noble friend Lord Goodhart has done that most effectively. However, I have one concern in that we are well aware that at Tampere the first steps were taken towards what is likely to be a common asylum and immigration policy. We recognise that the Home Secretary has already indicated that he is prepared to move in that direction, in line with other EU member states. One of the characteristics of such a common policy, as set out in the Tampere summit statement, is that there would be common standards of treatment of refugees and asylum seekers under the refugee convention. That is the point at which my noble friend's distinction between the interpretation of the refugee convention by our own courts and those of other EU courts becomes of significant importance.
I should like to adduce two examples which come very much to mind. First, we have seen a considerable extension of the use of paramilitaries, although responsibility for them is denied by the state under which they appear to operate. A recent example is the denial by the Indonesian Government of any responsibility whatever for what were known as the militias in East Timor. The noble and learned Lord will remember that on many occasions from the Front Bench opposite it was indicated by the Government before there was an intervention in East Timor that they had the difficulty of getting the Indonesian Government to accept any responsibility for the behaviour of the militia and for the fact that they appeared to have access to extremely modern arms.
Paramilitaries have also been used in other states. They have been used in El Salvador, Guatemala and several others. In almost every case the government concerned have denied any responsibility for them. One has here a grey area which would certainly put anyone "refouled", for example, to East Timor a couple of months ago in very considerable danger. It is not plain that under Clause 10 that could not happen if they were returned to a country that does not recognise non-state persecution.
The final issue I want to raise concerns the combination of the move towards a common asylum and immigration policy with the enlargement of the European Union. The enlargement of the European Union has among the first group of countries intending to join in the near future the Czech Republic and, in the second group, Romania. In both cases reports are coming out of the treatment of Roma which amounts to extreme persecution. In some cases it is recognised by the state and in other cases it is denied by the state but is conducted by local authorities.
Indeed, I understand from a discussion I had only two days ago that the position of Roma in certain east European and central European states is becoming completely intolerable. They are being persecuted, driven out of the towns in which they live, told that they cannot have any work, told that they cannot send their children to school, and so on. Therefore, in considering a common asylum policy, it is important that the United Kingdom upholds the general principle that refugees should not be "refouled" to a country in which their lives and the lives of their families might be in danger or in which there would be very serious persecution.
It may be that the noble and learned Lord or his colleague will be able to say a little more about that. It is one of the reasons why we have been quite tedious about this clause. We recognise that it could be a building block for a future European common asylum and immigration policy.
Earl Russell: My Lords, I should like to help to clarify the situation by giving an example of the concept of non-state persecution. It comes from our own territory. I say this without wishing to make the least criticism of the actions of Her Majesty's Government in this context. It concerns those two teenagers who were expelled from the town of Dungannon on the instructions of the IRA. Two masked men visited their parish priest and told him that for the teenagers' own safety they should leave Northern Ireland immediately. One might perhaps think that those words gave them a well founded fear of persecution. They were, by reason of such fear, unwilling to avail themselves of the protection of the British Government, which I am sure would have been extended to them to the limits of the British Government's power in the town of Dungannon--that limit being a real one. Under the circumstances, they chose to leave. In most countries that should have given them a claim to refugee status under the UN convention. But had they made that claim in France or Germany, because France and Germany do not recognise the concept of non-state persecution, they would have been severely at risk of finding themselves shipped back, if not directly to Dungannon then at least to Belfast. In circumstances such as those, lives may very well be at risk.
The point at issue has applied in the past, particularly clearly to Somalia. For a while Somalia has been an area where in effect there is no state. Departments of strategic studies, including the one in which my son was recently a student, used Somalia as a classic illustration
It is not the only point, either, where differences in the interpretation of the UN convention may create very serious risks to people returned to a safe third-country. The point about a safe third country is not whether it is a country with liberty, rule of law and democracy. We on these Benches would not for one moment wish to dispute what the noble and learned Lord, Lord Falconer of Thoroton, said about France and Germany in this context. The point about a safe third country is whether it is safe for that person.
During the proceedings on the Asylum and Immigration Act 1996 we heard of a case of someone who was to be returned to Belgium under the safe third-country rule but had been illegally present in Belgium because, as is common with refugees, he had achieved an illegal entry. Under Belgian practice he would therefore, for reasons directly contrary to the judgment of Lord Justice Simon Brown in the Adimi case, have been returned to Zaire, clearly at some risk to his life. In that case the Court of Appeal overrode the return to the safe third country with no criticism intended of the general safety of the third country.
There is one further question on which I should like to hear the noble and learned Lord's opinion. I refer to the interpretation by the judges of international treaties to which this country is party. Those treaties clearly have a meaning. The judges clearly have to interpret it. The question I want to ask is whether, how far, or in what circumstances Parliament can direct the judges to interpret international agreements to mean things other than they appear to the judges to mean. This is a quite delicate area of relations between Parliament and the judiciary. I am delighted that we have the noble and learned Lord the Attorney-General on the Front Bench to consider it because it is a question which is very proper to his post. I await his answer to this question with considerable curiosity.
Lord Avebury: My Lords, perhaps I may give an example with regard to which I have been in correspondence with the Home Office. It concerns an Algerian who was resident in France but was convicted there of an offence of conspiracy to commit acts of terrorism--in a special court which the French have for dealing with that category of offences, criticism of which has been made by many distinguished British lawyers. This Algerian was convicted and sentenced to four years' imprisonment, at the end of which he was served with a notice of exclusion from France stating that he would commit a criminal offence if he set foot on French soil within the next 10 years. The Algerian got on a Eurostar train and arrived in Waterloo. We immediately put him in Belmarsh. He was there until I interceded on his behalf, pleading that he did not constitute a threat to the security of Great Britain and
The situation is not quite as clear cut as we find in the Bill. It is not always the correct thing to do to send people back to European countries simply because on the whole they have a similar attitude to ours on the process of asylum. There are particular circumstances--the question of Algerians in France is one of them--where such a very different view is taken of those people and of their right to asylum that it would not be correct or consonant with our view of human rights to send people back to those countries.
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