Yes, the Lords Front Bench—this Front Bench. I cannot speak for other colleagues, but I can assure the Committee that no one is attempting to intimidate this House. As I understand it, the Prime Minister is misreported in the Daily Telegraph—it is not the first time the press has misreported a politician—and the Government fully recognise the role that this House has to play in scrutinising the legislation. The Government’s duty, if I may say so, is to listen, reflect on what is said and respond as they think fit, depending on the strength of the points made and the Government’s
general policy. I emphasise that there is no question but that this legislative process should be followed duly and properly throughout.
That said, and in relation to following established due process, as it were, we debated Clauses 5 and 6 in detail in Committee on Monday. With your Lordships’ permission, I will not repeat what I have already said in that respect and refer your Lordships to the record in Hansard. To the extent that some points have been repeated, I refer to what was said in the last debate.
If I may also respectfully say so, on various other points that have been raised—for example, in relation to Clause 2, to trafficking, to unaccompanied children and to agreements with third countries and so on— I will not go over the ground that has already been covered or is to be covered in debates on other clauses. These are matters that we are debating on another occasion—the legal rights and remedies, for example—so for today’s purposes I will concentrate on Clauses 5 and 6.
I should perhaps once again go over the ground of what Clauses 5 and 6 actually say. If I am right and your Lordships accept the analysis, I venture to suggest that at least a considerable part of your Lordships’ concerns may be reduced or laid to rest.
In simple terms, Clause 5 deals with two different groups. The first group are nationals, including persons holding an identity document, of the European countries listed in new Section 80AA of the 2002 Act, which are the EU member states plus Switzerland and Albania. If a national of one of those countries makes an asylum or human rights claim, they may none the less be removed unless there are exceptional circumstances. The exceptional circumstances, which again were referred to today by the noble Baroness, Lady Meacher, are defined in Clause 5(5). This part of the Bill is essentially the same as the structure that has stood for many years, including when we were part of the EU, with the addition of Switzerland and Albania. These are safe countries and, in the Government’s view, no reasonable objection can be made in relation to this group.
Now we have the second group, who are nationals of all other countries: those outside the European countries defined in new Section 80AA. What is the position in relation to those nationals? The first point to make is that if the migrant is a national of another country—with all respect to the Republic of Ghana, the Republic of Uganda or India, let us take Nigeria—and they make an asylum or human rights claim, for example because of a risk of persecution for their sexual orientation, they cannot be sent back to that country. That is clear from Clause 5(8), so a lot of the concerns expressed about persons being sent back to these countries will relate to nationals of those countries who do not want to be sent back to them. Unless others correct me, if they make a protection—that is to say, an asylum or human rights—claim, they cannot be sent back as nationals to those countries where they fear persecution. That is a very considerable safeguard.
Where can they be sent back to? They can be sent back only to another Schedule 1 country, but subject to very important conditions. The most important condition in this context is that set out in Clause 5(3)(d): only if there is reason to believe that they would be
admitted to that country. In other words, it depends on whether we have an agreement with that country to take them back. That is not at present the case, except in relation to Rwanda, but it may in future be the case in relation to other countries.
To take a point raised by the noble Lord, Lord Kerr, or possibly the noble Lord, Lord Carlile, as to whether such future agreements would be—forgive me, it was the noble Lord, Lord Hannay—subject to parliamentary scrutiny, that is a matter for the future. I cannot commit the Government on that here at the Dispatch Box. However, I think your Lordships can be reassured that the availability of all kinds of remedies and the force of public opinion in this country would necessarily require a very full debate to take place before we made an agreement with another country. There is the constitutional safeguard of the constitution of public debate in that regard.
There is no indication that the countries mentioned in this debate—very understandably, Nigeria, Ghana, Uganda and even India—are likely to be, in any foreseeable future, places to which the relevant migrants could be sent. If we were ever to reach an agreement with another country, the Secretary of State has powers in Clause 6, in particular Clause 6(3), to exclude from that agreement persons of particular sexual orientations or with particular protected characteristics set out in that clause. That is a further protection against the fears noble Lords have expressed.
If all of that were to fail, it remains the case that the individual affected could make his suspensive harm application on the basis that he would suffer irreversible serious harm in that context. I think I can legitimately offer noble Lords reassurance that a great deal of the fears understandably expressed in your Lordships’ Committee rest on a particular view of the Bill that is not entirely correct.
I was asked by the noble Lord, Lord Paddick—it was implicit in most of the other comments—what Schedule 1 is for. I think the noble Lord, Lord Kerr, asked what the rationale of Schedule 1 is. The answer is that Schedule 1 is a reproduction, an amalgamation and a restatement of all the existing legislation from 2002 onwards, in which various countries over the years have been added as safe countries. For example, in 2005 the Labour Government added India on the basis that it was, in general, a safe country.
This also enables me to deal with the “in general” point, which has stood as a statutory point for the last 20 years at least. It might not be entirely within the active career of the noble Lords, Lord Hannay and Lord Kerr, but it has been on the statute book for 20 years. It has not so far given rise to any particular difficulties. That is the background to what we are considering.
In the future, it might be appropriate to keep Schedule 1 updated; it might be necessary to make changes from time to time. Let us cross those particular bridges when we get to them. At the moment, there is no practical possibility of Uganda, for example, accepting migrants who arrive in Dover into Uganda. It might be, to take a point raised by the noble Lord, Lord Carlile, that the existence of Schedule 1 or the failure to amend it, might be challenged in judicial review. If I may respectfully say so, it would be a somewhat
adventurous case to compel a Minister to legislate or to amend primary legislation, but let us again cross those bridges when we get to them.
I hope that I have not taken up undue time and have covered most of the questions that I was asked. I am sure that I shall be reminded if I have not done so; I will do my best to answer them, if anyone reminds me.
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