My Lords, I find myself in great sympathy with what the noble Lord, Lord Pannick, has just said. If this were a general debate about genocide, I would find myself in total agreement with what has been said by all noble Lords who have contributed; there have been some very remarkable speeches. But it is not. We are actually talking about legislation and we have to ask ourselves the serious question: is what this House is contemplating by way of legislation make legal sense? It is there that I part from those who are advocating this amendment.
I want to concentrate briefly on subsection (1) of the proposed new clause because there are three points that I would like to make about it. First, we are not in the business of talking about groups, although the noble Baroness, Lady Nicholson, did talk about groups. The question is whether an individual belongs to a group, and that involves adjudication, a decision. It is made in the context where there is an enormous amount of scope, and motive too, for misrepresentation. It is sometimes very difficult to tell the difference between a Tajik and an Uzbek or, for that matter, between an Alawite, a Sunni and a Shia. They may all have reason for misrepresenting their status. To put the test in the way that it is expressed in subsection (1) will open up an enormous amount of judicial argument.
The second point is slightly different. In the second line of the subsection is the phrase “in the place”—not in the country, but in the place. The truth is that in a country like Iraq, a Shia may be unsafe in a particular area but can move to another area where he or she is safe. Simply to have the test of whether the conditions exist in the place where a person for a moment in time happens to be resident is, I think, to distort what one really seeks to do.
The last point I want to make is that subsection (1) creates presumptions of entitlement. I believe that presumption should depend on individual adjudication,
not on class presumption. This amendment would create a class presumption with which I am bound to say I am extremely uneasy. Therefore while I have enormous sympathy with the points that have been made, and I do not wish in any way to undermine the fervour with which people have spoken, we are in the business of asking ourselves whether particular pieces of legislation which we are being asked to authorise make sense.