Motion to Agree

Asylum: EUC Report – in the House of Lords at 7:45 pm on 12 January 2010.

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Moved By Lord Roper

To move that this House agrees the recommendations of the European Union Committee that Her Majesty's Government should exercise their right, in accordance with the Protocol on the position of the United Kingdom and Ireland in respect of the Area of Freedom, Security and Justice, to take part in the adoption and application of the proposed Directives on Asylum Qualifications and Asylum Procedures (documents 14863/09 and 14959/09) (First Report, HL Paper 6).

Photo of Lord Roper Lord Roper Chair, European Union Committee, Deputy Speaker (Lords), Chair, European Union Committee 8:04, 12 January 2010

My Lords, when your Lordships' House considers reports of the European Union Committee, it is almost invariably on a Motion in the name of the chairman of the sub-committee which compiled the report, and the terms of the Motion are that the House should take note of the report. The noble Lord, Lord Jopling, will shortly be elaborating on the reasons why the sub-committee which he chairs took the view-a view endorsed by the Select Committee-that the Government should opt in to the two directives in question. First, however, let me explain why this Motion is in my name, and why it invites your Lordships not to take note, but to agree.

Provisions on visas, asylum, immigration and other policies related to the free movement of workers were introduced into the Treaty establishing the European Community by the treaty of Amsterdam, which was signed on 2 October 1997 and came into force on 1 May 1999. The Government did not necessarily wish to be bound by EC measures on visas, asylum and immigration, and negotiated a protocol to give the United Kingdom the necessary flexibility. The effect of this protocol was that the United Kingdom does not take part in the negotiation and adoption of such measures, and is not bound by them unless, within three months of a proposal for legislation being presented to the Council of Ministers, the United Kingdom notifies the President of the Council that,

"it wishes to take part in the adoption and application", of the proposed measure. This is the United Kingdom opt-in. What is sometimes referred to as an opt-out is simply a decision by the Government not to opt in, and requires no action by the United Kingdom.

While the terms of the proposed legislation are important in every case, the Government's decision on whether or not to opt in is of at least equal importance, since without an opt-in, the legislation, whatever its terms, will not apply in this country. Yet until recently there has been no procedure for Parliament to consider and give its view on what that decision should be-let alone a procedure for doing this speedily, so that the Government can be aware of Parliament's view before the three months have elapsed.

The matter came to a head with the signature of the treaty of Lisbon. Provisions on police and judicial co-operation in criminal matters were previously in Title VI of the Treaty on European Union-the so-called third pillar-and thus required unanimity. There was therefore no way in which the United Kingdom could be bound by such legislation against its will, and no need for an opt-in on such legislation. But under the Lisbon treaty the first and third pillars are merged, and the protocol giving the United Kingdom an opt-in has therefore been extended to cover this category of legislation as well.

When the European Union (Amendment) Bill was before the House, both the European Union Committee and the Committee on the Constitution-whose chairman, the noble Lord, Lord Goodlad, I see is in his place-sought to obtain from the then Leader of the House, the noble Baroness, Lady Ashton of Upholland, a procedure for allowing the House to give its view on whether the Government should opt in to any particular proposal for legislation before the time for doing so had expired. In April 2008, my predecessor, the noble Lord, Lord Grenfell, set up a small sub-committee of the European Union Select Committee to consider such a procedure. The Select Committee took evidence from the noble Baroness, Lady Ashton, in May 2008. The upshot of these discussions was that, on 9 June 2008, just before the Report stage of the Bill, the noble Baroness agreed to a series of undertakings, which are set out in Appendix 2 to the report that we are considering.

Two of these undertakings are of particular importance. First, the Government undertook to take into account any opinions of the committee on whether the United Kingdom should opt in. This is qualified by the words,

"Provided that any such views are forthcoming within 8 weeks of publication", even though there are still five weeks of the three-month period to run. But, thus far, the Government have not suggested that they would ignore any views made known after eight weeks. It would be helpful if the Minister could confirm that the Government will take account of the committee's views whenever they are forthcoming, although I concede that this may not be possible if they are received very close to the end of the three-month period.

The second undertaking given by the noble Baroness was that where the committee concluded that the question of whether or not to opt in to a measure should be debated, this should be on a Motion that is amendable and the Government would make time for the debate.

The two undertakings amount to a substantial extension of Parliament's powers to hold the Government to account on European matters. They took effect when the treaty of Lisbon came into force on 1 December 2009, and your Lordships' Select Committee on the European Union lost no time in putting them to work. The two proposals for directives on asylum issues which are the subject of this report were published by the Council on 23 October. The report, with the committee's views, was published six weeks later, on 4 December, having been agreed by the committee on 2 December, the day after the treaty came into force. The three-month period for opting in will expire on 23 January, and I am grateful to the House authorities for having made time for this debate today. I should be grateful if the Minister would confirm that the views expressed by all noble Lords in this debate will, like the committee's views in its report, be considered by the Government before they reach a decision to opt in to these proposals.

All the committee's substantive reports make recommendations for the Government to take particular courses of action. This however is the first of a category of report where the Government will have to decide within a matter of days whether to accept the recommendations and where the application of important legislation in the United Kingdom will depend on their decision. Without going into the substance of the report-which the noble Lord, Lord Jopling, will be dealing with in a moment or two-its recommendation are, in paragraph 17, that the Government should opt in to the proposed second-phase qualification directive; in paragraph 22, that the Government should opt in to the proposal for a revised Asylum Procedures Directive; and in paragraph 24, that the report should be debated, which is what we are about to do.

The Procedure Committee will shortly be considering whether any particular rules should apply to the debates on such Motions but, for the present, I hope that this Motion will allow a full debate on all the points raised in the report. I beg to move.

Photo of Lord Jopling Lord Jopling Conservative 8:12, 12 January 2010

My Lords, like the noble Lord, Lord Roper, I thank the Government for finding time for this debate. Of course, we would have liked to have the debate somewhat earlier, but I understand that the Leader of the House was not able to find time so, if I can put it this way, we have to be thankful for what we regard as second best. That second best is very much more than nothing at all.

As the noble Lord, Lord Roper, said, this is a report of Sub-Committee F of the European Union Committee, of which I have the honour to be the chairman. The noble Lord has dealt with the general issue of scrutiny by your Lordships' House of decisions by the Government on whether to opt in to the ever wider categories of legislation to which the opt-in applies. It now falls to me to explain why, in the case of these two proposals, the Committee took the view that the Government should opt in to both.

The new common European asylum system was one of the main planks of the first justice and home affairs programme under the treaty of Amsterdam, as the noble Lord, Lord Roper, said. Between 2000 and 2005, proposals were brought forward and adopted for six measures making the first phase of the system. Three of these measures were directives addressed to the member states. In logical order, though not the order in which they were adopted, they dealt with, first, the minimum standards for qualification as a refugee under the qualification directive; secondly, minimum standards on procedures for granting and withdrawing refugee status under the asylum procedures directive; and, thirdly, minimum standards for the reception conditions for asylum seekers under the reception conditions directive. All three proposals were the subject of reports from the European Union Committee which were debated previously in the House, and the Government opted in to all three, which have been implemented and apply currently in the United Kingdom.

The problem with the first-phase instruments is that they were negotiated under unanimity of the Council of Ministers, which meant that agreement could be found only at what I describe as the lowest common denominator. Obligations were vaguely formulated and the wide discretion allowed to member states in the way these were to be met has to some extent worked against the desired harmonising effect. It was envisaged that in the longer term, when the Council procedures turned towards qualified majority voting, these instruments should be replaced by fuller measures making for a truly common asylum policy and a unified status for refugees.

Accordingly, between December 2008 and October 2009, the Commission brought forward proposals for recast versions of these three directives. The first in time was the reception conditions directive, to which I referred earlier. In February last year we were told in evidence that the Government intended to maintain the minimum standards laid down by the existing directive, but they felt that the amendment dealing with arrangements on detention, wider access by asylum seekers to the labour market and some elements of financial support would be too onerous, and in March the Government told us that they had decided not to opt in to the recast directive.

The qualification and asylum procedures directives were brought forward on 23 October, and they are the subject of the current report. In appendices 4 and 5 we have printed the Government's explanatory memoranda setting out the major changes, and their views on them. In the case of the qualification directive they find many of the changes unobjectionable, but they have three main concerns. The first is the extension of the definition of family members to include minor married children and minor unmarried children even if they are not dependent. The second is that the draft appears to extend the international protection to persons who might have protection provided in their home countries, but not by agents able to enforce the rule of law. The third is a provision which appears to require protection to be continued to persons who may not still need it if they can provide compelling reasons arising from the previous persecution for not returning to their home country.

In the case of the asylum procedures directive, the Government seem to have one major fear. This is that their ability to make what they refer to as "fast and fair" decisions through the detained fast track scheme will be constrained by the proposals. They are also concerned about the more restrictive definition of what constitutes "manifestly unfounded applications" and the effect this may have on the United Kingdom's continued use of non-suspensive appeals.

I am far from saying that these are trivial concerns but the Government have two choices. The first is that they should not opt in to either directive. In that case they will to all intents and purposes have abandoned all the common European asylum system other than the Dublin system of jurisdiction. Their second choice is to opt in to both proposals. They will then be able to play a full part in the negotiations. Other member states are likely to have identical fears. We have evidence to that effect. Surely it is likely that the Minister and his ministerial colleagues together with their officials will be able to persuade other delegations to meet their concerns.

A Justice and Home Affairs Council was held on 30 November and 1 December 2009. In advance of the council, the Parliamentary Under-Secretary of State at the Home Office, Meg Hillier, said:

"The UK believes these directives are not necessary at this time as they undermine the migration pact".

After the council, the Home Secretary in a Written Statement, stated that the United Kingdom did not support the draft directives. He feared that changes in who qualified would result in member states granting asylum to those not in need of European Union protection, and that restrictions on accelerated procedures would prevent fast and fair procedures on asylum applications and increased costs. He added significantly-this is important; I referred to it earlier-that:

"These concerns were supported by other member states".-[Hansard, Commons, 8/12/09; col. 17WS.]

This is precisely why the committee believes that the Government should opt in and then if necessary take up these points and try to settle them in the negotiations.

There is another most important reason why the committee believes the Government should opt in to both directives. Last year, in the context of the Government's failure to opt into the reception conditions directive, we explained the legal and technical problems this would cause. They are set out in full in our earlier report, which I am sure is familiar to noble Lords, and more briefly in our current report. I will sum them up in one sentence, which is very important indeed. While in nearly all other member states the recast directives will apply in place of the first-phase directives, a failure to opt in will result in the first-phase directives continuing to apply in the United Kingdom.

I know this is not the view of the Home Office's legal advisers. They believe the Government will be free to apply whatever law they like in this field. However, they have ranged against them, apart from Sub-Committee F and the European Union Committee, a formidable body of legal opinion. Sub-Committee F was assisted by the noble and learned Lord, Lord Mance, whose legal expertise is well known to your Lordships. The European Commission, whose views are printed in appendix 3 of the report, unequivocally agrees with our analysis of the law. In a memorandum of 8 December 2009 the Immigration Law Practitioners' Association, a body of distinguished lawyers who are specialists in the field, expressly concurs with us.

For all these reasons, I hope that the Minister will give us tonight the Government's reaction to these matters. Clearly the directives are not satisfactory as they stand but my committee feels that, to get them right, it would be better to be inside the negotiations than outside. This debate, as the noble Lord, Lord Roper, has said, is a new departure. The Committee badly wanted to debate these issues before decisions have to be taken. Of course, the debate is in a way putting the cart before the horse-but it is welcome for all that-because the Procedure Committee, of which I happen to be a member, has yet to make formal proposals to the House for dealing with the opt-in procedures. Until the House has those formal procedures, we must be content to have this debate on an interim basis with regard to the rules of the House.

Photo of Lord Dykes Lord Dykes Spokesperson for Foreign and Commonwealth Affairs, Spokesperson for Environment, Food and Rural Affairs 8:24, 12 January 2010

My Lords, I thank the noble Lord, Lord Roper, for coming to the House and presenting his remarks on this matter, and for representing the EU Select Committee as its chairman. I thank him for the excellent work that has been done in that regard. On Sub-Committee F, I also warmly thank the noble Lord, Lord Jopling, for his detailed explanation. I have no hesitation in, and derive great pleasure from, saying that I agree entirely with the remarks of the noble Lord, Lord Roper, as well as with those of the noble Lord, Lord Jopling, to whose warnings it is very important for the Government to pay attention-I except only his final remarks about the involvement of the Procedure Committee, but that is a matter that will have to be considered by the whole House tonight. I do not dismiss the importance of his point, but there may be a slightly different approach that I hope will also meet with some agreement at least from Members of this House, depending on how the debate now transpires.

I shall be brief, because there is not a great amount of time left for everybody to contribute and I do not want to repeat the points that have been made, except to echo the noble Lord, Lord Jopling, in his rightly saying that the Commission agreed with the committee in its recommendations. That is not to do down the British Government, but to give a practical illustration of the way in which the whole Union can co-operate, armed as we are at long last-happily, in my opinion; I hope other noble Lords agree-with the treaty of Lisbon. After all its travails, and as it unfolds gradually over the years, I hope that it will make interinstitutional and intercountry co-operation in the new, enlarged Union much easier and more practical. Therefore, to support the institutions when they plan common policies which have been agreed by the sovereign member Governments, both at European Council and Council of Ministers level, is reassuring and should not be a matter of anxiety for the Government.

This being the first of the opt-in debates makes it very important for the House tonight to try to reach the correct solution on this matter. I strongly agree with the recommendation that the Government should complete their opt-in intention, as we understood it to be originally, in respect of both directives, allowing for the obvious reality that, now that directives are put forward under codecision by the European Parliament and the Council of Ministers, there is much authority behind them on each and every occasion. Even if they are quite rightly constructed as directives, allowing each member state substantial operational and practical administrative discretion in the way in which they operate policies if they are eventually approved and taken through as international law within the European Union is also very reassuring under the new procedures. That takes away some anxiety. Equally reassuring is the reality that once a directive is approved by the member states and by the Union as a whole, officials get down to detailed negotiations on the practical steps of implementing directives where common policies are concerned, while national officials do their own thing through the discretionary powers allowed even on fairly tightly drafted directives.

We on these Benches therefore underline the importance of this occasion, which is the first of the opt-in procedure debates. The Government indicated at Second Reading, in Committee and at the later stages of the debates on the Lisbon treaty in 2008 that they wished to be very positive about these matters. We were armed by the important reassurance of the noble Baroness, Lady Ashton, on 8 June 2008, which has been quoted already by both noble Lords, Lord Roper and Lord Jopling. That, too, is reassuring for those who are anxious about this new territory and this new kind of European legislation.

Perhaps I may make a European point without scaring any noble Lords: this is all in the context of our working together and solidarity with fellow member states, which is all the more important now that the Union is much larger and substantial differences still exist at the margins between member states in their internal policy functions on various directives and legislation proposed by the European Union. There is a manifest and enormously strong wish among the other member states and among committed Europeans here that the Lisbon treaty should work effectively. JHA, as was the old title, will be a crucial area, with a lot of legislation now flowing through to reassure the public of each member state that they will have very strict immigration, asylum and refugee policies. However, they will be policies-supported by the useful and helpful brief that we had from the UNHCR-which are fair, too, to genuine refugees and asylum seekers. That is a European point as well as a national, British one. This country is rightly proud of having been an asylum haven for refugees and asylum seekers over the centuries, not just in recent times where there has been some increase in these cases because of various conflicts in the world.

Once again I thank the noble Lord, Lord Roper, and his colleagues and the noble Lord, Lord Jopling, for the excellent report. It strongly recommends that Her Majesty's Government opt in to the second-phase qualification directive and the revised text of the APD. That meets with the practical support outside. For example, without misquoting, I have been told on good authority that many senior police officers in this country and elsewhere are increasingly impressed with Europol and Eurojust and their operations, one of them at least headed by Britain at the moment. They also feel that the practical access that is now applied to those institutions and to this need for opt-in, creating a common field of endeavour and policy framework for all, will make each country's task easier in dealing with not only their own countries when they are discussing these matters together but also the common policy throughout the European Union.

We have noted, too, that the usual channels on this occasion have adhered to a brisk timetable, although someone said that it could have been done a little earlier-I agree. This has been the first example and we had the Christmas break to intervene as well. This ensures that the House has full control and participation in this complex procedure. To conclude, once again these Benches strongly support in all respects the Government opting in to these two directives tonight. I hope when the Minister speaks he will confirm that that is their intention.

Photo of Lord Hannay of Chiswick Lord Hannay of Chiswick Crossbench 8:31, 12 January 2010

My Lords, our debate tonight, as the noble Lord, Lord Roper, the Chairman of the EU Select Committee, has already said with great lucidity and force, marks an important step in the development and strengthening of this Parliament and this House's procedures for the scrutiny of draft EU legislation. This new system for handling opt-ins and opt-outs in the field of justice and home affairs is today being given its baptism of fire.

The new system was put in place as one of the concessions made by the Government during the process of clearing the way for the ratification of the Lisbon treaty. It thus represents common ground between those who supported ratification of the treaty, as I did, and those who opposed it. The challenge now is to make it work effectively.

For that to happen, a considerable acceleration of our procedures will be required at every level: the relevant EU sub-committee to which the piece of legislation is referred; the EU Select Committee; the scheduling of business of the House; and the Government's response to draft legislation so that we know what the Government's overall attitude is and what specific problems they foresee. I hope I am not being too complacent to claim that the sub-committee-on which I serve and which is led by the noble Lord, Lord Jopling, who so clearly introduced its views-and the EU Select Committee have produced their report to the House on these two proposals in a rapid and timely fashion.

As to the scheduling of this debate, I, too, feel, like the noble Lord, Lord Jopling, that it would have been better to have had it before the recess, giving the Government more time to consider the House's view before the deadline for reaching a decision on whether to opt in or out. In future, the responses of those who schedule debates will need to become more prompt if we are not to squander an opportunity to strengthen our scrutiny of EU legislation. Today's debate is better late than never. I am making a point for the future, not looking a gift horse in the mouth. The Government's response to the Commission's proposals has been pretty dilatory. Their Explanatory Memorandum only provided the vaguest idea of the problems they might have with the proposals. If the new system is to work, they will have to do better in future.

Lastly on the House itself, if the new procedures, including the quite separate one to handle passerelle proposals which is not involved tonight, are to work well then a much wider selection of noble Lords will need to get involved, and not simply leave matters to a rather lonely dialogue between the members of the EU committees and the Front Benches.

The choice that the UK faces on the draft directives for asylum qualifications and asylum procedures is not between whether to accept the drafts as they stand or to opt out. It is whether to join the other member states in negotiating the final terms of the directives, seeking to improve them where we see problems arising or flaws existing, or to stand aside from the whole process of negotiation and leave the directives to be adopted without our having any influence on the final outcome as the price for them not applying directly to us.

It is important to underline this point. In proposing that the Government opt in, the committee and its sub-committee are not for one moment-the noble Lord, Lord Jopling, made this point extremely clear-suggesting that they should accept the draft proposals as they stand, nor are we dismissing or overlooking the concerns that the Government have expressed about their current state, vague and imprecise as they so far seem to be. We are merely saying that we believe that it is in the UK's interest to address these concerns at the negotiating table, rather than walking away from it and relying on the pretty illusory comfort blanket of an opt-out over our heads.

Asylum in an EU where movement between member states is more and more difficult to control is an area of policy that matters to us, whether the specific provisions apply to us or not. We need to be there at the table helping to shape EU policies. If the Government were to decide to opt out, there is a further legal complication, to which the noble Lord, Lord Jopling, referred, and to which we drew attention in the context of an earlier directive on reception conditions. It is that when we opt out from a new directive that covers matters dealt with in an earlier existing directive to which we have opted in, an anomalous and disputed outcome arises. Both your Lordships' committee and the Commission, when they responded to our report on the earlier directive, take the view that in those circumstances the earlier directive to which we had opted in will continue to apply in this country, while the Government's view is that it will not. This disagreement is only too likely to cause confusion and perhaps ultimately to give rise to litigation before the European Court of Justice. It is not the basic reason for our recommendation that the Government should opt in to these two directives, but it increases the potential disadvantages if we were not to do so.

While this is the first occasion on which the House has been required to operate a new post-Lisbon procedure, it will not be the last. It is therefore the beginning of a process, and it will set precedents for the future. Above all, it will begin to demonstrate whether we can put to good use the increased role that the Lisbon treaty provides for national parliaments to have their say on draft EU legislation. We therefore need to get off on the right foot, so I very much hope that the House will approve the Motion as tabled by the noble Lord, Lord Roper, and, in so doing, will make clear its view on these proposals for the Government's further consideration. That is the position I shall support in the Division Lobby, if that becomes necessary.

Photo of Lord Avebury Lord Avebury Spokesperson for Foreign and Commonwealth Affairs, Spokesperson for the Home Office 8:38, 12 January 2010

My Lords, as every noble Lord who has spoken so far has said, this report is important not only because it deals with the UK's response to proposals for a common asylum procedure and uniform status of subsidiary protection adopted under the treaty of Lisbon, but because we are embarking on the first occasion of a completely new procedure in this House, which the Government undertook to introduce to enhance the scrutiny of justice and home affairs opt-ins.

The position is that legislation on these issues, including any that covers border checks, asylum and immigration, is subject to the UK opt-in and, in the case of these directives, which deal with the criteria for being treated as a refugee or a beneficiary of subsidiary protection, and with procedural standards for granting and withdrawing international protection, we have, as the noble Lord, Lord Hannay, has pointed out, very little time left before we have to make a decision. In practice, if the views of the House are to be taken into account by the Government, they need to be made aware of them, as the committee has pointed out, five weeks before the deadline. One hopes that they have been working on the assumption that the committee's recommendations would be approved, as the Motion before us proposes.

If we decide to part company with the rest of Europe on asylum, the complications are formidable. For example, as a refugee acquires the right of free movement, he might be able to claim asylum in France and then move to the UK even if he could not have qualified under the UK rules. The UNHCR's view is that the EU's effort to codify a legal framework applicable to all member states has great value and it also believes that the recast procedures directive would help to reduce the extraordinary variations in recognition rates between one country and another, exemplified by one nationality where the rates went from less than 1 per cent in country A to 50 per cent in country B.

The noble Lord, Lord Hannay, drew attention to the problems arising from the Government's decision not to opt in to the receptions directive, which deals with standards applying to conditions under which asylum seekers are received in member states. I would add to what he said because of its cross-references to the Dublin regulations identifying the state which has jurisdiction to examine and decide on asylum applications. More generally, the committee pointed out the legal conundrums that can arise when the UK has opted in to a measure and then does not opt in to a measure that repeals or replaces it, as with the receptions directive. The Commission agreed with the committee that where a measure was repealed and replaced, as the receptions directive was, and the UK did not opt in to the new version, the original version would continue to operate here. The committee asked for the Government's response to that view and the answer from the Minister, Meg Hillier, arrived after the report had gone to press. However, the Government disagree with both your Lordships' committee and the Commission, as well as the many other experts cited by the noble Lord, Lord Jopling.

There is now a similar problem with the qualifications directive. The committee says that the objections that the UK has to, for example, a wider definition of family members can be dealt with, as the noble Lord, Lord Jopling, explained, in the negotiations on the final version of the directive. I would add that ILPA and the AIRE Centre say that the definition in the directive reflects our existing practice, which is based on Article 8 of the ECHR and the UN Convention on the Rights of the Child. Our policy, which is to be found in paragraph 349 of the Immigration Rules, taken with the asylum policy instructions on dependants, actually defines family members more broadly than in the directive. In any case, as the noble Lord, Lord Hannay, said, if we opt in, we can play a full and influential part in the further negotiations and we will have a vote in the final decision. Not opting in would reduce us to mere observers, with less weight and no vote. Again, if the rest of Europe admits family members outside those who are qualified under English law, they and their descendants would be free to move here in the end anyway.

On the procedures directive, the Government object to Article 34, which requires that if an applicant from a "safe third country" submits reasons for considering that, in his particular circumstances, the country is not safe, they have to be considered; whereas in our asylum rules, that application would be rejected as "manifestly unfounded". They also say that the six-month time limit for initial decisions on particular applications is too onerous, although the UKBA had got the average down to seven months, and its aim is to reduce it to two months, with a maximum of six as in the directives. All they need to do in the negotiations then is to insert a proviso that in a few defined awkward cases- for example, where an applicant's true identity or nationality cannot be determined- there could be a procedure for an extension, which would be welcome if it brought these cases under parliamentary scrutiny.

The UKBA's asylum statistics do not analyse applications by the time taken to reach the initial decision, but as the National Audit Office has said, there are big savings to be made in support and accommodation costs if the process is speeded up. Compliance with an EU obligation would be an additional incentive to prompt initial decisions. However, the UKBA has made impressive progress in reducing the average time from 22 months in 1997 to seven months in 2007 and it says that its aim is to get it down to two months with a maximum of six. Again, these are matters that can surely be ironed out in the further negotiations on the directive and not a justification for sabotaging the goal of a single, united asylum system throughout the whole of Europe.

Finally, the committee points out the extra difficulty that the UK faces if it does not opt into the procedures directive. The measures in the common European asylum system are intended to form a coherent whole with cross-references between them, and if we sign up to some and not others, we will get into an appalling legal muddle. The Minister has no doubt read the comments on these matters not only by UNHCR and ILPA, already mentioned, and by Asylum Aid, but many others as well. These NGOs are unanimous in wanting the Government to opt in to both of these directives, and I hope that they will be convinced not only by the arguments of our own committee, but those of every other body that knows anything at all about the subject.

Photo of Lord Hodgson of Astley Abbotts Lord Hodgson of Astley Abbotts Conservative 8:46, 12 January 2010

My Lords, I should like to address a few words to the procedural implications of what we are doing for the first time tonight, and then a few words on the actual issues under consideration in the directives. Membership of your Lordships' House gives one many interests and pleasures, not the least of which is the opportunity to serve under the chairmanship of my noble friend Lord Jopling, whose felicitous introduction to the subject tonight has illuminated the debate very well indeed.

Another important and fascinating opportunity for me has been to be part of the Lord Speaker's outreach programme. It enables one to visit groups and many schools to discuss and explain the role of your Lordships' House. I make three or four visits a year to maybe a couple of schools each day, and I never fail to learn something from those events. They are like a mirror held up in which you can see reflected the House of which we are all a part. I mention this because too often the reflection is formed by the single impression of the House at State Opening-predominantly elderly white males involved in a ceremony that seems, in the graphic words of a young man in Birmingham before Christmas, to belong to King Arthur and the Knights of the Round Table. One is able to put them straight about the diverse make-up of the House-plenty of women and representatives of religious and ethnic minorities-and also to explain the way that the procedures of your Lordships' House have evolved, and continue to evolve, to reflect the changing nature of our society, and to say that in many ways, despite appearances to the contrary, it is arguable that the House has moved more with the times than the other place. But, and it is a very big but, one is always conscious that, to be seen to be relevant by the generation that blogs and twitters, we need constantly to re-examine the efficacy of our procedures. I do not for a moment recommend a rolling programme of change for its own sake, but there is a need for a continued, careful, considered and searching analysis of how the House can carry out its tasks more effectively.

Earlier this year I had the privilege of taking part in the first Bill under another new procedure, that introduced for Law Commission Bills, when we considered the Perpetuities and Accumulations Bill. Our ability to hold evidence sessions during the passage of the Bill with the Minister-on that occasion the noble Lord, Lord Bach-present was, in my judgment, a much better way of getting good legislation on to the statute book. It was a mixture of technical, expert and political views received and acknowledged before the jelly had set. That is why I think the procedure we are using for the first time tonight is so important, because this procedure offers the chance to make views known before the jelly has set, and to do so formally on the Floor of the House, as we are doing this evening.

I have to join the noble Lord, Lord Roper, and my noble friend Lord Jopling in the quibble; because to be of value, debates such as this one need to be held in time to influence the Government's thinking. As the noble Lord, Lord Roper, has told us, the deadline for a decision on whether to opt in must be taken before 23 January, which my diary tells me is Saturday week, and we are at Tuesday evening now. If we are going to implement this new approach effectively in the future, the Government need to find time earlier in the three-month process or else the approach will be stillborn. To change my metaphor swiftly, I hope that when the Minister comes to wind up he will tell us whether this particular horse has bolted.

This takes me to my final comment about the procedure. I said earlier that reforms to your Lordships' House needed to be careful and considered. I understand that the Procedure Committee will consider this reform again at a meeting on 2 February. I very much hope that they will endorse it, but-again it is a big but-it is for that committee to take the final decisions, because it can see the whole picture. It sees the whole canvas, not just the corner of the canvas that we are discussing this evening. Only with its endorsement are we likely to carry the whole House with us on this important step.

I turn briefly to the specifics under review. It must surely be critical that the Government find a way to align the legal views of the Home Office and the Commission on the interrelationships between these two sets of directives, and indeed future sets. The most urgent policy objective must be to reach agreement on whether the second directive does or does not repeal the first. Without this cornerstone agreement, it is hard to see how further useful discussion can take place on the other issues raised by the directives themselves. I certainly accept some of the concerns that the Government have expressed, particularly those in respect of the Asylum Procedures Directive. How to give the most effective voice to these concerns on a European stage is an important issue. I look forward to hearing from the Minister whether he believes that these concerns can best be addressed by withdrawal, as my noble friend Lord Jopling said, which failure to opt in would represent, or by negotiation from within. His summary of that decision will be very interesting, and I am sure the whole House awaits it with eager anticipation.

The approach we are using for the first time tonight is an important one, and I hope the Procedure Committee and then the whole House will endorse its use. Inter alia, it will provide a useful way for the Government to get out of the knots into which they have tied themselves on this important issue.

Photo of Lord Wallace of Saltaire Lord Wallace of Saltaire Deputy Leader in the House of Lords, Spokesperson for Foreign and Commonwealth Affairs 8:52, 12 January 2010

My Lords, this morning I got down from my shelves the seventh report of Sub-Committee F of 1998-99 in which for the first time we addressed Schengen and the United Kingdom's border controls. It states:

"Weaker United Kingdom influence over the development of European policies will mean that such policies will reflect the preferences of others, and fail to take into account particular United Kingdom concerns".

Well, we have come a long way from that. We are facing the possibility of the United Kingdom marginalising itself yet further in a developing European common asylum policy, and also tying ourselves up in an area in which there is a deliberate lack of clarity.

I have followed this issue and was a member of that sub-committee for several years. I compare the United Kingdom with Denmark in its whole attitude to this: we are fully prepared to co-operate as far as possible provided that we do not have to admit it to our public or our media. What we want to do is to have a large formal opt-out and an awful lot of informal opt-ins which we hope the Daily Mail will not notice. That is what we have done and what we continue to do, and I suspect that the Minister will tell us-not quite so bluntly, though he is wonderfully blunt on occasion-that that is what the Government wish to do on this occasion. It results in increasing confusion and great difficulties for anyone trying to in understand, in a paradise for lawyers, and a purgatory for officials. That is the direction in which I fear we are now drifting.

After all, Her Majesty's Government do have options. They can say that they have confidence in the negotiating skills of our Ministers and officials as we move from Commission proposals to agreed directive. We have potential allies-like-minded partners-with whom we can find coalitions to support our preferences, and we have to have a certain willingness to seek mutually acceptable compromises. That is the way in which many of us think we have to work through European and international co-operation.

On the other side there is the Daily Mail and Daily Telegraph image that foreigners in Brussels cook up appalling new rules and impose them on the innocent and powerless English. We hear this occasionally from the noble Lord, Lord Pearson, and others in this House. We recognise that at the moment there is a panic over migration in Britain and that the Government suffer almost as much as the Conservatives from pre-election fears of stirring-up fantasies of EU-enforced liberalisation in the press. Thus-I am sure that this does not apply to the Minister-there are many among the Labour Party's spin doctors who are frightened of the noble Lord, Lord Pearson, and Viscount Rothermere, and even more frightened of Sir Andrew Green.

UK interests are strongly at stake in this. Indeed, I recall Tony Blair, as Prime Minister, saying some years ago that Britain's frontiers are now on the Mediterranean. We know that the trickle of irregular immigrants and asylum seekers comes through Asia Minor and North Africa. When I was in Greece last spring I discovered that it has a camp of illegal immigrants in Patras. People arrive, flooding into Greek islands, but want to get through there to the northern and western members of the EU, including, of course, the United Kingdom.

We therefore have strong interests in working with others for common laws. Not only that, but we do actually work with others very closely. We have liaison officers in every other European member state and in others, and we have Border Agency staff working in France and in other countries. In practice on the ground, we know that that is in our interests. I have not yet met a senior British police officer who does not believe that the entire corpus of European co-operation, from Europol down, is actively in Britain's interest. Indeed, I was surprised some months ago to sit in on a meeting of serving and former intelligence staff of various countries and to hear British participants saying how much European assessment co-operation is actively in Britain's interest.

Of course one hears none of that from the Government let alone from the Conservatives. The gap between the realities of co-operation and the sense that we are outside this continental co-operation-with its threats to English common law, English policing and British border controls-is at the root of our problems. I fear that in the run up to the general election the Government will accept the frightened option of deciding not to opt in, but I hope that the Government, with Ministers of the intelligence and judgment of the noble Lord, Lord West of Spithead, will accept that it is in our interests to opt in and then to negotiate carefully and positively.

Photo of Baroness Hamwee Baroness Hamwee Spokesperson for Communities and Local Government 8:58, 12 January 2010

My Lords, I am glad that we have had longer to debate the report than we initially thought. I had wondered whether, had we been confined to the dinner hour, I could transfer my time to my noble friends, particularly my noble friend Lord Avebury, who could keep us going on the substantive issues-not only the procedure-for the whole of the dinner hour and longer.

It is a pity that our proceedings do not enable us to hear from the Minister early in the debate so that we could be clear about the Government's current thinking. I am not clear about it from the Explanatory Memorandum and I wonder, picking up on the point of the noble Lord, Lord Hodgson, whether school students would not find the way we go about these matters slightly back to front. However, I prefer to think of this as the Government still wishing to listen rather than giving a fixed position. I hope the Minister can tell us where the Government have got to.

I have been perplexed by some of the contents of the report-not the way it is framed but by some of the issues that have been raised. If, to use the vernacular, there is an opt-out, it seems a little odd that we are faced with disputes about interpretation and impact. There is something wrong with the procedures-but not in this building-if it is not clear whether the first phase measure will continue to apply. It would be abundantly clear to your Lordships that these Benches support the committee's recommendations. One might say that what the committee has said is even stronger than a recommendation in its normal meaning. Twice it urges-that is the term it uses-the Government to opt in; I doubt that the committee could have been more forceful.

As has been said, consistency across the EU is of fundamental importance in these issues. The Minister, Meg Hillier, referred to the migration pact. Her statement included in paragraph 21 of the report, which seems to me to be internally inconsistent, reads:

"The UK believes these directives are not necessary"-

I emphasise those words-

"at this time as they undermine the migration pact".

I could see that it might be one or the other. I find it difficult to understand that something might be not necessary because it undermines. The argument that the noble Lord, Lord Jopling, so clearly put forward about opting-in allowing for subsequent negotiation, answers Meg Hillier's point very clearly. The point made by the noble Lord, Lord Hodgson, is important as well. It involves not just negotiation on these particular directives but our future position on the original work.

I intend not to go through every detail but to pick a handful of instances. In response to many of the points in the Explanatory Memoranda arguing against the directives, one must say, "Yes, but what harm does it do?". References have been made to the points about unaccompanied minors. We are told that the changes would reflect the UK's existing practice. I read-today of all days, with news on the court's decision on Section 44-a certain sensitivity about our position in Europe; one can understand that sensitivity.

On Articles 11 and 18, the Government do not like being required to continue protection for people who no longer require it. The memorandum overlooks the need to,

"invoke compelling reasons arising out of previous persecution".

Again, it seems to me that the memorandum has not really picked up the issue in the correct way. On the procedures directive, I have already mentioned the comment that it is not necessary and it undermines. There is a clear difference of view. The committee welcomed the proposal in that it meets the concerns in the first phase directive. The UNHCR said the directives would contribute to, rather than undermine, the objective of swift and fair decision-making and would improve standards and the application of basic safeguards. As has been said, there are not just powerful arguments; powerful and very respectable organisations are making these arguments.

The noble Lord, Lord Hannay, said of the Explanatory Memoranda that in future the Government must do better. I am afraid I am going to be even more blunt. I think that these Explanatory Memoranda are poorly argued, they make assertions not arguments and they are really rather mean-minded.

Photo of Baroness Neville-Jones Baroness Neville-Jones Shadow Security Minister, Home Affairs 9:04, 12 January 2010

My Lords, this debate has certainly reflected the complexities of European legislation in this area and the challenges to ensuring proper scrutiny that it throws up. I agree with a number of the previous speakers who have stressed the importance of what we are discussing, and I am grateful for the clarity with which a number of them, particularly the noble Lord, Lord Roper, and my noble friend Lord Jopling have set out the issues that we need to be aware of in taking a view on what is in front of us.

There are two sets of issues: procedural issues, and the question of the practical effect of the European directives on our existing asylum procedures and the asylum situation in this country. I shall spend a moment on the second aspect. The noble Lord, Lord Jopling, explained with extreme clarity what is involved here and set out for us the issues under consideration: the proposed revisions to the qualifications directive and the asylum procedures directive. As he said, his committee takes the view that the Government should exercise their right to take part in the adoption and application of the proposals.

A number of noble Lords have mentioned that while the Government broadly support the objectives of the Hague programme and the intentions to streamline standards and simplify the law, they have not opted in to one previous revision and have a number of reservations about the changes currently proposed through the qualifications directive and the asylum procedures directive. No doubt the Minister will take us into further detail about the Government's reservations and what the proposed revisions could achieve. From our Benches, the worry is that the opposite of simplification and streamlining could be the result.

The Government themselves recognise that many of the proposals would, to quote from the Government's own Memorandum to the committee,

"work against Member States' ability to tackle abuses of the asylum system".

It is fair to say that this anxiety applies in particular to the asylum procedures directive and the proposals in it to place restrictions on the use of accelerated procedures, which would be calculated to prevent the UK from certifying claims as clearly unfounded. We take the view that the powers and procedures to do those two things are deterrents against false claims.

We cannot ignore the situation that we are currently in. There are great pressures on the UK's asylum system. I cannot help feeling that if these further obligations were taken on, it would increase the problems that are already inherent in the way that the Government run the asylum system. The UK receives more asylum applications than any country in Europe other than France. In 2008 this totalled 30,500 applications, including dependents, a 10 per cent increase from the previous year. This is a big administrative burden, which often turns into a judicial one.

The noble Lord, Lord Dykes, referred to this country's proud record of granting asylum. I agree with him and he is right, but we cannot ignore the fact that our asylum procedures and the applications for asylum in this country cause great trouble and that the system is creaking. I shall give an example. One needs only to look at the number of failed asylum seekers in the UK, which is estimated to be between 155,000 and 283,000 people.

The Public Accounts Committee has said that it will take between 10 and 18 years to clear the backlog of asylum cases; other speakers mentioned this and perhaps draw a different conclusion. The Government have said that this backlog can be cleared by 2011. Could the Minister explain the basis for this confidence that the backlog can be cleared so much faster than the Public Accounts Committee thinks it can? Could the Minister say what progress the Home Office Case Resolution Directorate has made in dealing with these legacy cases? Does he accept that, particularly for those who have been in the country for many years, human rights law means that it will be very difficult to remove them? Will there be in effect an amnesty by stealth?

We can also look at the time taken to process asylum applications. The Home Office's aim is to give half of asylum applicants a decision within one month of application and 80 per cent of applicants a decision within two months. These are very laudable aims. The National Audit Office's analysis last year indicated that the department still has a very long way to go to achieve this. Of the 27,702 asylum decisions made from January 2007 to June 2008, case owners had made a decision within 30 days in 16 per cent of cases and decided a further 17 per cent of cases within 30 to 60 days. I do not suggest that these are dilatory officials. These cases pose great complexity for those trying to decide them.

The Public Accounts Committee has said that the process of coming to decisions on whether to grant asylum is still too slow. It must be right about that, though we have to acknowledge the difficulties involved. This has further increased the backlog of cases that will need to be dealt with. In other words, there is not much evidence that the whole thing is being speeded up.

The UK's asylum system is already under significant pressure. So, the question is: what would the effects of adopting and opting in to these procedures be on an already difficult situation? It is very hard to see how it would do anything other than make it even harder to come to a final decision, given the complex problems that the UK now faces in this area. As the Government themselves acknowledge, the revisions to the qualification directive can result in member states granting asylum to those who are not in any need of EU protection, and the measures on unaccompanied minors could undermine efforts to reduce the scourge of human trafficking. That is something that we cannot ignore. Let me be clear. Our view is that the implications of the proposed changes in these procedures, far from helping, would actually make what is an already bad situation even worse.

The Government have not indicated whether they will opt in to the proposed changes, although they have made clear that they have some quite significant reservations, and certainly on these Benches we have some reservations. The Select Committee is of the view that the Government are more concerned about the asylum procedures directive than the qualification directive. Is this actually the case? Also, could the Minister give your Lordships' House an indication of the extent to which the Government think that the proposals can be improved through negotiation? This is obviously a very key point. It is a point that has been made by other speakers who take the view that you opt in and then get your result through negotiation. I wish I shared the confidence of the committee and other speakers that, by opting in, the UK would get the changes that it wanted and needed.

At issue is this question: which is the best way to protect UK interests? We are all here to protect UK interests and so I hope that we will honour that point between us. What is the right way to do it? If the Government decide to opt out, they will nevertheless be bound by the provisions of various directives, as amended, if and where those directives are cross-referenced in other legislation. I put that as a statement. My question, which other speakers in this debate have asked, is: will the Government confirm, or do they deny, that there will be no obligation on them to accept other cross-referenced legislation if they decide to opt out? Their analysis on that point would be very helpful.

Our position on these Benches is very clear. My right honourable friend David Cameron said that if we on these Benches are elected, we will introduce a UK sovereignty Bill to make it clear that ultimate authority stays in this country, and resides with Parliament, and that we will negotiate for a return of powers in the criminal justice area. It is particularly important for decisions about asylum to be taken by the British Government. The key part of the Stockholm programme for 2010 to 2014 is a proposed common EU asylum policy. We are on a path here; this is not the end of the road. This would introduce a central processing system for all EU asylum applications, and the quotas for each country would then be set. One has to ask what criteria would be taken into account, and what about the wishes of the individuals concerned? We on these Benches are pretty clear that the ultimate decision on who should be allowed to enter the UK must be made by the national Government.

The Government have said that they are considering the implications of not opting in to these revised directives for their broader, and bilateral, relationship with the EU and other member states, particularly the effect on their ability to secure co-operation and support from other member states on immigration and on wider areas of justice and home affairs. That is a perfectly legitimate point for the Government to take into account, but I come back to the central issue that we must consider here: the effect on asylum policy. Moreover, the UK's asylum policy is already compatible with many of the duties that the Hague programme would impose on it, so does the Minister accept that the UK can very well meet international standards and procedures without the need to give up its power to make independent decisions about asylum?

I am sure most noble Lords would agree that there is a need for greater scrutiny of European legislation, subject to the UK opting in. The procedural Motion laid down by the noble Lord, Lord Roper, arises, as he has said, from undertakings given by the noble Baroness, Lady Ashton, as Leader of the House during debates on the European Union (Amendment) Act. The Procedure Committee has not yet come to a decision on the procedure to be adopted in the circumstances that we face tonight. I understand that the committee hopes to resolve this at its next meeting on 2 February, and its recommendations will then be put to the whole House for a decision. That is obviously the right procedural order.

It is obviously perfectly appropriate that the House should discuss the directives, so that noble Lords can put on record now their views on the policies concerned and on the recommendations of the Select Committee report before us. That is what I have attempted to do. However, it would not be appropriate for the Motion in the name of the noble Lord, Lord Roper, to be pressed tonight, as that would prejudge the Procedure Committee's recommendations and the House's decision on the correct approach for handling such business.

Photo of Lord Hannay of Chiswick Lord Hannay of Chiswick Crossbench

I am most grateful to the noble Baroness for giving way. I have a very simple question. When this House approved the Lisbon treaty, did it not approve explicitly the concessions made by the Leader of the House that opt-ins would be debated and taken on an amendable Motion? That is not open to variance by the Procedure Committee. Will she confirm that is the case?

Photo of Baroness Neville-Jones Baroness Neville-Jones Shadow Security Minister, Home Affairs

My Lords, I do not think I am in a position to confirm that that is the case. That is a matter for the Procedure Committee and it is obviously a matter for this House.

Noble Lords:


Photo of Baroness Neville-Jones Baroness Neville-Jones Shadow Security Minister, Home Affairs

Well, we shall see. We do not believe that it would be appropriate for the Motion of the noble Lord, Lord Roper, to be pressed tonight, as that would prejudge the Procedure Committee's recommendations and the House's decision on the correct approach to handling such business. Clearly, there is a difference of opinion. Therefore, I ask noble Lords to support the noble Lord, Lord Roper, when he seeks to withdraw his Motion at the end of our debate.

Photo of Lord West of Spithead Lord West of Spithead Parliamentary Under-Secretary (Security and Counter-terrorism), Home Office, Parliamentary Under-Secretary (Home Office) (Security and Counter-terrorism) 9:20, 12 January 2010

My Lords, I am very grateful to the European Union Select Committee for organising this debate and to all noble Lords who have contributed to it. As has already been explained most eloquently by the noble Lord, Lord Roper, another naval person, this debate is the first of its kind and is intended to enhance Parliament's role in scrutinising the application of our opt-in for justice and home affairs business. As the noble Lord, Lord Dykes, stated, this is very important for the House for that reason. With that in mind, I welcome the points made this evening and in the committee's report as a means of informing our deliberations on opt-in in relation to the two proposals for directives on asylum.

The noble Lord, Lord Roper, asked whether there was an opportunity post the eight-week period for any inputs to come in, because it is after eight weeks that the Cabinet committee take the collective government decision. I reassure him that, because this will not happen immediately on the conclusion of that eight-week period, there will probably be two or three weeks when further influence can be exercised in relation to that committee. But that said, there will be occasions in the future where debates are going on in Europe which mean that we shall need to take very quick decisions. In those cases, as the noble Lord, Lord Roper, concluded, it will be preferable to receive views as soon as possible.

The noble Lord, Lord Hannay, and a number of other noble Lords talked about tightening up procedures and how the procedures should go. I agree with that very good point. This needs to be looked at very closely, and it will be. I would have preferred this matter to be taken earlier and I think we all understand the pressures that there were on the usual channels in this House to try to do that. In general terms, we should try to take it as early as possible. This was reinforced by the noble Lord, Lord Hodgson, who mentioned Knights of the Round Table. I should declare an interest as Knight President of the Society of Knights of the Round Table.

The enhanced scrutiny process does, none the less, reserve to the Government the final decision concerning the UK's participation in such measures and I must say that these directives do cause us real concerns. Consequently we would not be able to support a Motion urging us to opt into them. The key question for us will be whether the directives will help us to maintain the grip that we have now got on the UK's asylum system. The noble Baroness, Lady Neville-Jones, touched on this. The past few years have seen substantial improvements. Asylum intake is at less than a third of its 2002 peak. We have transformed the asylum system by introducing end-to-end case management by a single case owner. We now conclude more than 60 per cent of asylum cases within six months. The noble Lord, Lord Avebury, said some kind words about UKBA on that. However, I do not agree with him that a legally binding time limit is the best way of bringing this down even more. I think that probably practical co-operation with other member states is a better way of doing that. The key principle that drives our approach is very simple-those who need protection should get it quickly and those who do not should be sent home.

Our decision-making system was the first in the world to have its quality assurance endorsed by the UNHCR, and where protection is needed, we will provide it proudly. But we need to recognise that the majority of asylum claims are not well founded and are rejected-78 per cent in the last quarter and 72 per cent in the quarter before that, according to the most recently published statistics. Unfounded claims are often abusive claims, and dealing with them diverts resources that would be much better spent on genuine refugees, whom we want and need to support.

The key issue facing us and other member states is therefore to distinguish quickly and fairly between those who have well founded claims and those who do not. Sadly, our initial assessment is that the directives will make it harder, not easier, to achieve that aim. That is the hard-headed view we have taken. It is not fear of the Daily Mail, as the noble Lord, Lord Wallace, said.

The procedures directive is perhaps the more radical of the two. We have real concerns about many of its proposals, particularly restrictions on accelerated procedures and non-suspensive appeals. I know that the European Union Committee has, in the past, expressed concerns about the use by member states of accelerated procedures, as referred to by the noble Lord, Lord Jopling. An accelerated procedure is really nothing more than a way of deciding asylum claims more quickly than normal. Provided those subject to it have access to all the usual guarantees, there is no reason why an accelerated procedure should not be applied to any claim, as the current procedures directive allows. The new directive would allow this only in certain circumstances; for example, where the applicant comes from a listed "safe" country. That would stop us from operating our existing detained fast-track system (DFT), which provides fast and fair decisions on the applicants who go through it. It is an excellent way of managing the sort of asylum claims that are capable of being decided quickly and it also provides a deterrent to false claims as those making them will be refused quickly. The decisions it makes are fair-97 per cent of them are upheld on appeal. We therefore could not accept the restrictions proposed.

Non-suspensive appeals are a key tool that allows us to manage unfounded asylum claims. They are not given lightly. We have to be satisfied that an application is clearly unfounded-that is, so weak as to be bound to fail-before we can make the appeal non-suspensive. The directive would place additional and unnecessary restrictions on these appeals which would place an unnecessary burden on our asylum system and encourage unfounded claims. Other parts of the directive would create further restrictions. For example, more generous rules on translation will cost us probably in excess of £3 million a year. The attempt to specify in European legislation the training curriculum that asylum decision-makers should follow is a classic example of overregulation.

Overall, the directive, as drafted, strikes us as over-complicated and over-ambitious. We have real doubts about whether it would be sensible to opt in in its present form. The new qualification directive makes fewer changes but three in particular cause us concern. The first and most worrying is the amended definition of a family member-in particular, its extension to include the parents of unaccompanied minors. This carries an unacceptable risk of requiring us to admit the parents of unaccompanied minors who are granted status. We fear that this would create an incentive for children to be sent on ahead to member states in the hope that they will be granted status and their parents will be able to join them later. That would introduce a new threat to the welfare of children by incentivising their separation from their family units. We are already extremely concerned about the number of children and young people sent to the United Kingdom and the risks they face in making the journey, in particular those who are trafficked. We believe that the proposals for family reunion would simply lead to more children being put at risk. We also fear this would lead to a big increase in the number of applications we receive from minors-currently about 3,500 a year or 12 per cent of our intake-with very serious financial implications, given that at the moment the Government spend more than £140 million a year oin caring for these people.

We believe that the technical changes to asylum law that appear in Articles 7 and 8 referred to by a number of speakers risk leading to a big rise in the proportion of asylum claims that are granted. Of course, we have no problem with granting protection to those who need it-quite the reverse-but the people who may benefit from this would be those who do not need asylum because they can be protected adequately in their own country, either by a non-state agent or by relocating to another part of that country. We know that asylum intake is very sensitive to policy change in the UK. For example, it dropped sharply after we tightened our policy on permission to work and stopped automatically granting leave to remain to certain nationalities in 2002-03. Intake from Zimbabwe went up dramatically after a court judgment favourable to Zimbabwean asylum seekers in 2008.

Both directives are bound to be amended during the course of negotiations-as referred to by a number of speakers-both by member states in the Council and by the European Parliament. The debate is whether we should be inside the tent or outside the tent. It is not, at this stage, possible to predict the outcome of these negotiations. Even if we were able to convince other member states to agree to remove those parts of the directives that we do not like, the European Parliament's approach to the asylum proposals to date indicates that it would be very likely to want to keep most of the original proposals, or even to go beyond them, and a compromise would need to be reached. This, in our view, means that there is a real risk that the directives eventually agreed will contain measures that we do not feel we can accept. Because of this, although we will reflect on the arguments that have been made tonight, we are minded not to opt in to the directives at this stage. That would not mean that we would be out of them permanently.

Under the treaties, we have the right to apply to take part in an instrument after it has been adopted if we have not opted into it from the start. If we did not opt in to these proposals, we would therefore remain engaged in the negotiations-not as fully as we could be, as has been said, but we are still able to influence them-and make our concerns known.

If the final directive addresses those concerns, we may well apply to take part. I can assure the House-

Photo of Lord Wallace of Saltaire Lord Wallace of Saltaire Deputy Leader in the House of Lords, Spokesperson for Foreign and Commonwealth Affairs

Can the Minister confirm that under that process we would ensure that we had much less influence over the final form of the directive, and would then have to accept what others have negotiated out of a process in which we had taken no part?

Photo of Lord West of Spithead Lord West of Spithead Parliamentary Under-Secretary (Security and Counter-terrorism), Home Office, Parliamentary Under-Secretary (Home Office) (Security and Counter-terrorism)

My Lords, the noble Lord is absolutely right; we would have less influence, but we would still have influence. This has been done in the past in that way.

I can assure the House that we remain committed to our international obligations towards refugees and asylum seekers, and to providing those who seek our protection with fast and fair decisions on their claims.

Whatever happens, we will also remain deeply involved in practical co-operation with other member states. We have already played a leading role in projects such as the European Asylum Curriculum, which helps to improve the training of caseworkers in Europe, and have provided bilateral support to member states experiencing pressures, such as Malta. We will continue to do that and, indeed, will seek to step up co-operation through our involvement in the European Asylum Support Office.

The noble Lord, Lord Jopling, and a number of other speakers mentioned the point about what happens to existing directives. Legally our view is that if we do not opt in to the new directive, the old ones are repealed and will cease to bind the United Kingdom. We know that there is disagreement over this, as a number of speakers mentioned. There is no doubt that the committee and the Commission have a very different view from that of our Government, and it is arguable that it is right that that should be taken up eventually and will have to be determined by the courts.

The noble Lord, Lord Avebury, suggested that an asylum seeker in France could claim a right to move freely to the United Kingdom. This is, of course, not correct. Asylum status in France or any other EU country does not confer the right to free movement. Only European Union citizens and their families have that right.

Photo of Lord Avebury Lord Avebury Spokesperson for Foreign and Commonwealth Affairs, Spokesperson for the Home Office

Perhaps I may clarify that by saying what I meant, which was that once the asylum seeker in France had obtained permanent leave to remain there, and had applied for citizenship, he would be free to move anywhere in the European Union.

Photo of Lord West of Spithead Lord West of Spithead Parliamentary Under-Secretary (Security and Counter-terrorism), Home Office, Parliamentary Under-Secretary (Home Office) (Security and Counter-terrorism)

If my understanding is correct, once someone is a European citizen, he has freedom to move. That is correct-I accept that. I misunderstood the noble Lord.

The Government's approach to these directives is well balanced and in the national interest. However, we have not yet taken a final decision on the opt-in and will reflect very carefully on the points that have been made tonight. We will also, of course, communicate our decision to the European Union Committee-

Photo of Lord Dykes Lord Dykes Spokesperson for Foreign and Commonwealth Affairs, Spokesperson for Environment, Food and Rural Affairs

Would the Minister not agree that that is not the real motivation-it is actually to keep the Conservative Party at bay in the coming weeks and months? There are, after all, only three Tories in the Chamber. Why is he so worried?

A noble Lord:


Photo of Lord West of Spithead Lord West of Spithead Parliamentary Under-Secretary (Security and Counter-terrorism), Home Office, Parliamentary Under-Secretary (Home Office) (Security and Counter-terrorism)

But we really believe these things.

It is only right that I tell the House that we are not minded to take the risk of opting in at this stage. We therefore could not support the Motion were it pressed to a vote.

Photo of Lord Roper Lord Roper Chair, European Union Committee, Deputy Speaker (Lords), Chair, European Union Committee

I thank all noble Lords for their useful contributions to the debate. I believe that the report prepared by the sub-committee under the chairmanship of the noble Lord, Lord Jopling, has provided a good basis for what has been a useful debate, and I thank the Minister for his reply, particularly on procedural matters. I suspect that the committee and the sub-committee would be rather less happy about some of the points he made on substantial matters, but nevertheless we are grateful that he has said that he will be taking our points into account in the Government's further consideration of these issues.

On this occasion I do not think it appropriate to test the opinion of the House in view of the fact that the Procedure Committee has not yet completed its consideration of the House's procedure on these matters. I therefore beg leave to withdraw the Motion.

Some Lords objected to the request for leave to withdraw the Motion, so it was not granted.

Division on Lord Roper's Motion.

Contents 41; Not-Contents 79.

Motion disagreed.

Division number 1 European Union Committee report on a Common European Asylum System — Motion to Agree — rejected

Aye: 39 Members of the House of Lords

No: 74 Members of the House of Lords

Aye: A-Z by last name


No: A-Z by last name


Absent: 618 Members of the House of Lords

Absent: A-Z by last name

House adjourned at 9.45 pm.