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Earl Russell: My Lords, in an amendment in which we are asking for the consent of the Attorney-General, it gives me great pleasure that the noble and learned Lord the Attorney-General is in his place to give his consent to the conduct of this debate. I am delighted to see him here.
I am delighted also that Amendment No. 30 is on the Marshalled List. It does indicate a desire to comply with the judgment, although it would be rather more impressive if all the cases which were before Lord Justice Simon Brown had been resolved. But, to my knowledge, at least one of these applications--that of Mr Sorani--was still undetermined two weeks' ago. That argues a certain lack of precipitate haste to comply with the implications of a judgment, which incidentally was forced to deal in considerable detail with the merits of Mr Sorani's application.
I shall not deal at length with the argument about the implications of the words coming directly" because my noble friend Lord Avebury has covered that ground fairly clearly. But I shall add one point. If the object is, as it appears to be, to prevent an undue proportion of refugees from coming to one country, the rigorous application on an international basis of the words coming directly" would tend to increase the proportion of refugees coming to a country with major airport links with the rest of the world. That is something which, applied as a general and not purely as a national principle, would tend to increase the proportion of refugees coming to this country. Although that might not cause me great concern, it does not appear to be precisely the object of the Home Secretary. So I wonder whether he is achieving his objectives.
Lord Cope of Berkeley: My Lords, I have, not often but sometimes, found it a disadvantage during a career in both Houses of Parliament not to be a lawyer. It is a disadvantage in this debate. I have a great deal of sympathy with what has been said in support of Amendment No. 29. However, the nub of the argument seems to lie in whether it is better to provide a defence in terms of Amendment No. 30, or a restriction on prosecution in terms of Amendment No. 29.
Neither amendment stops entirely the possibility of a prosecution. In Amendment No. 29, the right reverend Prelate and his colleagues have provided for the possibility of a prosecution with the permission of the Attorney-General in the circumstances set out in the amendment. If there is an obvious defence which will succeed as set out in Amendment No. 30, not many prosecutions will be mounted. So the difference becomes a rather close balance in regard to which a non-lawyer has difficulty making a decision. Is it better that a defence should be provided which will rule out most prosecutions before they begin, or that no prosecution should be instituted without the permission of the Attorney-General?
Lord Hylton: My Lords, I am glad to know that the Government have concluded that something needs to be done to mitigate the starkness of the provision in Clause 23 dealing with deception as the clause was originally drafted. Even before the Adimi case, it was clear that a large number of countries would never let their persecuted political dissidents go without their having false documents. One has only to think of Iran, Iraq, China and Burma, to name but a few.
When it comes to a choice between Amendment No. 29 and Amendment No. 30, as a non-lawyer, like the noble Lord, Lord Cope of Berkeley, my preference is for Amendment No. 29. It seems to be more positive, and to avoid the likelihood of defences having to be mounted unnecessarily.
Lord Sheppard of Liverpool: My Lords, Amendments Nos. 29 and 30 are grouped together. It would help me and, I believe, other noble Lords to hear Amendment No. 30 expounded and defended, so that we may consider that as we attempt to assess Amendment No. 29.
I want to refer briefly to the issue of deception, which is central to these provisions. I hope not to repeat what other noble Lords have said. In July 1991, UNHCR said that the protection owed to refugees under the 1951 UN convention on refugees may be rendered meaningless if persons in search of protection and assistance are unable to reach the territories of states that are party to this involvement.
I am trying as best I can to compare Amendments Nos. 29 and 30. As the two previous speakers said, it seems to me to be a better strategy to go for restricting prosecution until the asylum question has been settled. That is not saying that no prosecution can happen, but what I propose seems a more logical way to proceed.
Lord Williams of Mostyn: My Lords, perhaps, for the convenience of your Lordships, the pro-Amendment No. 29 argument has been put fairly fully. My noble friend Lord Sheppard asks why we have differed slightly in our approach. I do not believe we have differed in our fundamental purpose, but we have come to alternative conclusions.
My noble friend has asked one or two direct questions which I am more than happy to answer. They are helpful questions and deserve answers. The reason we framed our Amendment No. 30 in the way we did comes significantly from two sources: first, Article 31(1) and secondly, the question of administrative arrangements with which I shall deal fully in a moment.
A number of questions were asked and I shall answer them all, if I can. The noble Lord, Lord Avebury, asked about the new clause and its application to those cases who have been granted exceptional leave. Article 31(1) applies specifically to refugees. Exceptional leave is granted for a variety of reasons but it is not granted to refugees.
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