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Lord Cope of Berkeley: My Lords, this is Third Reading, and we have been over this ground. I am intrigued that on this occasion noble Lords on the Liberal Democrat Benches are emphasising the differences between the United Kingdom and other EU states and are arguing in their amendment for a type of opt-out. It indicates the importance of our remaining in control of our own immigration policy. It also indicates the desirability of achieving agreement, as far as possible, between ourselves and other countries on the interpretation of treaties and immigration control generally. The debate has also shown that there will be plenty of opportunities for lawyers arising out of this legislation, although one of the Bill's purposes was supposed to be to speed up procedures and provide fewer opportunities for what the noble and learned Lord the Attorney-General referred to earlier as "lawyers wriggling". On this occasion it provides opportunity for exactly that.

Lord Williams of Mostyn: My Lords, I do not believe that the amendment achieves the effect that the noble Lord desires. The amendment seeks to exclude from the provisions of Clause 10 any member state which "limits in any way" the definition of a refugee in Article 1A. Therefore, although some of the questions and examples are of deep interest, they do not go to the point of the amendment.

As I read the amendment, it would bite only where the member state deliberately acts in breach of the convention by not accepting any aspect of the definition in Article 1A. Would a member state with a "limited" view of Article 1A be excluded from Clause 10 even in those cases to which that "limited" view was not relevant? Therefore, simply on those drafting points, I am not able to accept the amendment.

However, we have a more fundamental disagreement. A number of references have been made to the recent decision of the Court of Appeal. I shall be sparing in my observations and simply respond to the points made. As we understand the judgment, it is clear that the Court of Appeal did not necessarily find that individual applicants would fail to receive in France

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and Germany protection as required by the refugee convention. The court did not consider whether particular applicants might have had access to necessary protection. It was not a live issue, as my right honourable friend had agreed to consider the cases substantively. However, the court did accept that other forms of protection could satisfy the requirement in Article 33 of the convention.

My noble and learned friend Lord Falconer made comments regarding France and Germany, and I shall not repeat them. I merely point out that France, besides the 1951 convention, has territorial asylum, constitutional asylum and a specific prohibition on removal where that would be contrary to Article 3 of the European Convention on Human Rights. Germany has protective powers under both Section 53 and Section 54 of its Aliens Law. It seems to us that the amendment would allow any claimant to say that in his or her individual circumstances there was an argument on Article 1A. That takes matters back to the possibility of continuing and considerable delay and we believe that the provision would simply not be workable.

Three particular questions were raised. First, the noble Earl, Lord Russell, raised the interrelationship between international treaty obligations, the courts and Parliament. The noble Earl will find a useful review and exposition of that in the case of Factortame, which was decided judicially by this House last week. It was held that claims might be sustainable against the United Kingdom Government, as a result of the introduction--I have to say, by the previous government--of various statutory regimes relating to what has been referred to in the popular prints as quota-hopping by Spanish fishermen. So there is an interesting exposition there. It is far more learned and lengthy than your Lordships are entitled to receive from me this evening.

The noble Earl also raised the question of Somalia. My understanding is that no European Union state returns anyone routinely to Somalia. It is my understanding that France and Germany do not do so at all.

The noble Baroness asked about the Czech Republic. She knows better than I that the conditions for joining the European Union are extremely stringent. They require various, quite heavy obligations on candidate members to demonstrate that the candidate state is equipped to apply the various relevant instruments appropriately.

I take the point made by the noble Lord, Lord Cope, that we discussed this matter at some length earlier. I shall therefore turn to the government amendments. On Report, I indicated during our discussion on Clause 13 that there would be some relatively minor consequential amendments. These are those amendments.

Clauses 10 and 11 refer to Section 6 of the Asylum and Immigration Appeals Act 1993. By the time the clauses are brought into force, Section 6 will have been replaced by Clause 13 of this Bill. Clause 13 will come into force on Royal Assent. Clauses 10 and 11 will be brought into force later. Amendments Nos. 9, 10 and 11

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will therefore replace the references to Section 6 with appropriate references. Clause 13 applies with retrospective effect. It will be as if Clause 13 had always applied and Section 6 had never existed. The final amendment in the group is designed to tidy up those drafting amendments. When in due course we come to the amendments, I shall seek to move them.

5.15 p.m.

Lord Goodhart: My Lords, I am grateful for the noble and learned Lord's reply. However, to reply in one sentence, I do not believe that it is proper to require, by statute, a court to assume as a fact something that may or may not be true. That is a wholly improper form of legislation. It appears to have been done, so far as we can see, merely as a device in order to obviate the possibility of a certificate from the Home Secretary being the subject of judicial review. That said, we do not believe it appropriate to press the matter to a Division. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Williams of Mostyn moved Amendment No. 9:

Page 6, line 32, leave out from ("section") to ("prevents") in line 33 and insert (" 13").

On Question, amendment agreed to.

Clause 11 [Removal of asylum claimants in other circumstances]:

Lord Williams of Mostyn moved Amendments Nos. 10 and 11:

Page 7, line 12, leave out from ("section") to ("prevents") in line 13 and insert (" 13").
Page 7, line 28, leave out from ("section") to ("prevents") in line 29 and insert (" 13").

On Question, amendments agreed to.

Lord Bassam of Brighton moved Amendment No. 12:

After Clause 12, insert the following new clause--


(" .--(1) Directions for, or requiring arrangements to be made for, the removal of a person from the United Kingdom may include, or be amended to include, provision for the person who is to be removed to be accompanied by an escort consisting of one or more persons specified in the directions.
(2) The Secretary of State may by regulations make further provision supplementing subsection (1).
(3) The regulations may, in particular, include provision--
(a) requiring the person to whom the directions are given to provide for the return of the escort to the United Kingdom;
(b) requiring him to bear such costs in connection with the escort (including, in particular, remuneration) as may be prescribed;
(c) as to the cases in which the Secretary of State is to bear those costs;
(d) prescribing the kinds of expenditure which are to count in calculating the costs incurred in connection with escorts.").

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The noble Lord said: My Lords, noble Lords who were present during the discussion at Report stage will be aware that when someone is removed from the United Kingdom the costs of removal are borne either by the carrying company or by the Secretary of State depending on the particular circumstances.

Although it does not happen all that frequently, occasionally the necessity arises for removals to be escorted. That may be on medical grounds, where the person being removed has a medical condition which does not in itself prevent that person from travelling but which may require treatment during travel. More often, it will be because the person being removed has behaved in a disruptive manner, or has attempted or threatened violence either to himself or others.

Most carrying companies accept that escorts are part and parcel of the removal of particular individuals. Indeed, they have duties as to the safety of their other passengers and the crew. However, some argue that the power to give directions for someone's removal is limited to the individual concerned and either refuse point blank to provide for, and pay for, escorts or try to avoid having to pay after the event.

I believe that most people would accept that, where an escort is required, it is a necessary part of the cost of removing the person concerned. As I said, many carriers already accept that that is the case. The law is clear that in certain circumstances the removal costs are to be borne by the carrier who brought the person concerned to this country. Amendment No. 12 makes clear that, where an escort is needed in order to remove someone, the removal directions extend to cover that. The amendment puts the matter beyond doubt and will ensure a consistency of approach between carriers.

The amendment also allows the Secretary of State to make regulations relating to the provision of escorts. The regulations will cover such matters as arranging for the return of the escorts to the United Kingdom and the circumstances in which, and the extent to which, the costs of the escort are payable by the carrier. They will be subject to the negative resolution procedure which the Select Committee on Delegated Powers and Deregulation has concluded is appropriate in these circumstances.

In view of some of the concerns expressed when we debated this matter on Report, I should make it clear that the need for escorts is the exception rather than the rule. If a carrier believes that an escort is not necessary in a particular case, we shall be happy to discuss it and to explain our reasons. If the carrier continues to be aggrieved, he can, as my noble and learned friend the Attorney-General said, challenge the decision by way of judicial review. But there are important considerations of safety here: the safety of the person being removed, of other passengers, and possibly even of the aircraft itself. If our honest assessment was that a particular person required an escort, it would be worse than irresponsible, if not foolish, to fail to make provision for it.

This amendment does not alter the present balance between those cases where the cost of removal falls on the carrier and those where the removal is at public

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expense. We propose that a carrier should pay for an escort only where he is required to pay for the removal itself. However, at the risk of stating the obvious, where someone is to be removed, there are only two possible ways in which this can be paid for: either the carrier meets the removal costs or the taxpayer must foot the bill. We provide training to carriers about the documentary requirements, but ultimately there is a risk that a particular individual will be refused entry and the carrier will be required to remove him. That is a commercial risk and I do not accept that the taxpayer should be expected to underwrite it.

Finally, in the debate on Report the noble Lord, Lord Dholakia, asked what would be the legal position of an escort if the person removed were to be summarily executed on his arrival at the airport. The noble Lord, Lord Hylton, asked whether the passenger manifest would allow someone who was being deported to be identified. Again at the risk of stating the obvious, if someone is to be hauled off and shot the moment he arrives in a particular country, we should not remove the individual to that country in the first place, with or without an escort. However, were it to happen, I do not see how the escort, or escorts, could be held in any way responsible.

The marking of passenger manifests is a matter for the carrying companies. I understand that in practice most companies denote enforced removals in some way, but not necessarily the reason for the removal. The carrier will not necessarily be aware of the reason. Although I acknowledge the risk which prompted the noble Lord, Lord Hylton, to raise this matter, the real point is that if someone would be in danger, we should not remove him or her in the first place.

The designation "enforced removal" (or whatever term the company chooses to use) on the passenger manifest may result from a range of reasons and cover all the circumstances in which someone may be removed from this country. It will cover much more than political dissidents and opponents of the regime. If they would be genuinely at risk, such people should not be on the manifest in the first place because they should not be removed. I hope that this clarification is helpful to noble Lords who asked questions earlier. I beg to move.

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