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.