Nationality, Immigration and Asylum Bill

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Ms Winterton: On amendment No. 410, we understand the importance of legal advice, which is why we make funding available through the Legal Services Commission and grant aid under clause 87. However, it is up to appellants to decide whether they want to take advice, not for the Secretary of State to force them. The hon. Member for Woking referred earlier to people not going before adjudicators, and in the same way we cannot force people to appeal if they do not want to. Given that the Secretary of State cannot force people to take legal advice, it would be wrong to curtail his powers, as the amendment would.

I should emphasise that we will be clear on the one-stop notice about how legal advice could be obtained, and amendment No. 410 would create an incentive for people not to seek legal advice or to hide the fact that they were being represented. At best, it would create confusion and at worst it could leave people prey to unscrupulous advisers and mean that people who needed proper representation deliberately set out to avoid it.

We are building on a system that exists already. It is not a great sea change to what is happening at the moment. It is up to people to appear, and I should emphasise again that certification applies once there has been an appeal or the opportunity to appeal. If people do not take their opportunity, we cannot force them. The appeal is against an earlier decision and does not apply to the first decision. It is reasonable to expect people to detail the grounds on which they are making an appeal and not to change it, and there is a safeguard in that changed circumstances can be taken into account.

I hope that that will reassure hon. Members and that they will feel able to support the clause.

Mr. Malins: I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question put, That the clause, as amended, stand part of the Bill:—

The Committee divided: Ayes 9, Noes 2.

Division No. 8]

Buck, Ms Karen
Dhanda, Mr. Parmjit
Eagle, Angela
Gapes, Mike
Lazarowicz, Mr. Mark
McGuire, Mrs. Anne
Prosser, Mr. Gwyn
Rooney, Mr. Terry
Winterton, Ms Rosie

Allan, Mr. Richard
Hughes, Simon

Question accordingly agreed to.

Clause 74, as amended, ordered to stand part of the Bill.

Column Number: 445

Clause 75

National security, &c.

Mr. Malins: I beg to move amendment No. 411, in page 39, leave out lines 16 to 18.

The Chairman: With this it will be convenient to consider amendment No. 412, in page 39, line 20, at end add—

    '( ) In paragraph 2(1) of Schedule 2 of the Access to Justice Act 1999 (Community Legal Service: exceptions to excluded services) after sub-paragraph (j) the following is inserted—

    ''(k) before the Special Immigration Appeals Commission''.'.

Mr. Malins: As I doubt whether I will get another chance to do so, I thank you, Mr. Illsley, and your co-Chairman, for your kindness during the course of the Committee, and for the diligent, helpful and pleasant way in which you have chaired it. I wish to thank your Clerks, too, who have also been helpful, as have the staff of Hansard. I say a special thank you to the Ministers for being straightforward with me, and for being so pleasant. It has been a good Committee, and I thank all hon. Members who have contributed.

I must, however, apologise to the hon. Member for Southwark, North and Bermondsey for not joining him in the last Division. He and I have shared many opinions and arguments, and I have appreciated that. This is the first Committee on which I have sat on the Front Bench, and I have aged more than six months in the past six days. However, it has been a pleasant experience.

The clause has problems. It deals with national security, under which umbrella all kinds of mysterious—and sometimes unhappy—things can happen. It raises serious concerns with regard to public policy, civil liberties, relationships with other countries and the unchallenged political opinion of the Secretary of State in person. There is also a threat to freedom of expression, which must be considered.

The terms of the clause are very broad. Its effect is to open up immigration control as a convenient tool for political control by the Executive. That argument has been advanced by the Immigration Advisory Service and other respected NGOs.

I wish the Minister to tell us what us what is meant by

    ''in the interests of the relationship between the United Kingdom and another country''.

Would investigative journalism into the arms trade be included in that, or the pursuit of individuals on uncorroborated evidence from another country, thereby flouting due criminal legal process and extradition arrangements, or the UK supporting a tyrannical regime in another country? The list of such examples is endless.

I wish the Minister to explain the meaning of

    ''another reason of a political kind.''

That is an horrific little phrase, which needs some form of definition. Has that phrase previously been used in legislation? If it is interpreted broadly, it could apply to an individual who criticises the Government or the Secretary of State personally, or whose questioning of the Government's motives proves to be embarrassing

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or awkward. To many people, the clause appears to be a fundamental attack on the freedom of speech in a democratic country.

The purpose of amendment No. 412 is to ensure that public funding is available for representation before the Special Immigration Appeals Commission. The Law Society, among others, is concerned that public funding is available only on a discretionary basis and that that may have a negative impact on the ability of detainees to secure early and specialist legal advice. Legal representation in such circumstances is essential.

The Law Society is aware of one case that was brought before SIAC that had to be conducted on a pro bono basis. In another case, the legal team was offered public funding on an exceptional basis but the amount was equivalent to only a fraction of its actual costs. The lack of funding raises an inequality of arms issue. We must never forget that the Home Office is represented by Treasury counsel with access to much greater resources than the representatives for the appellant.

Simon Hughes: This is an important amendment, and my hon. Friend the Member for Sheffield, Hallam wants to speak to it if time permits.

I am troubled by the fact that we have so little time. If we get no further than clause 75 because of the time constraints, 18 clauses, three schedules, 13 new clauses and 53 amendments from today's selection list will remain undebated, irrespective of later provisions that cannot be debated. It is a pity that we cannot have the chance properly to explore such important matters. I hope that my hon. Friend will be permitted to make the substantive points and I thank you, Mr. Illsley, and your co-Chairman, the Clerks and all those who have looked after us. It is not your fault or theirs that we have not had the time we wanted to discuss the Bill.

Mr. Allan: The clause is entitled ''National security, &c.'' and it is the ''&c.'' with which we have a problem. The national security concept is well understood. In the context of the clause, an individual who has applied at any time for leave to remain or entry clearance to the United Kingdom can be denied the right to appeal through the normal process if that decision was taken on national security grounds. That is clear. The hon. Member for Woking asked whether it appears elsewhere. It appears in clause 4 under the deprivation of citizenship conditions, where it caused equal concern.

What is new is the phrase in subsection (2)(b),

    ''in the interests of the relationship between the United Kingdom and another country''

and the one in paragraph (c),

    ''desirable for another reason of a political kind.''

They smack of the ''Have you ever been a communist?'' test. The wording suggests that if entry clearance is denied on political grounds, the right of appeal can also be denied.

We want the Government to clarify what conditions would be political or in the interests of the United Kingdom in relation to another country that do not come under grounds of national security and warrant removal of the right of appeal. If there are grounds for

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refusal, they could be explored in the appeal. Special procedures apply when there is a need for secrecy, as when national security is involved. We fail to see what individuals would be covered by subsection (2)(b) and (c) who would not also be covered by paragraph (a). For example, if requirements relating to friendship with our allies are based on confidential information, surely that is a national security interest to the UK also. We fail to see why that needs to be defined separately from the UK's national security. If there are political interests that are so serious that they merit the deprivation of an individual's right to appeal, surely they are also national security grounds. We are trying to tease out what is covered by paragraphs (b) and (c) that is not covered by paragraph (a). Our amendment is designed to discover the distinction between the different grounds.

Angela Eagle: I was going to make a pretty little speech about how wonderful the Chairmen have been, because they have been wonderful, but we shall not get round to that because we are dealing with these important issues. I shall see them in the bar later, which is probably the only way of dealing with the matter.

I want to reassure hon. Members. Clause 75 removes the right of appeal under clause 60(1) if the Secretary of State has decided to exclude or remove a person from the United Kingdom

    ''in the interest of national security . . . in the interests of the relationship between the United Kingdom and another country, or''

where it is

    ''desirable for another reason of a political kind.''

The hon. Member for Woking waxed lyrical about how appalling that phrasing was. He asked whether such phrases were already in other Acts of Parliament. I can tell him that the Conservative Government put all those phrases into law when they introduced the Immigration Act 1971. They have been there for many years, they are well understood and they work well.

9.45 pm

The provision does not remove the rights of appeal, but moves them elsewhere. The Special Immigration Appeals Act 1997 moves them to the commission, where sensitive intelligence material can be brought and used as evidence without having to be revealed publicly.

I shall explain a couple of the phrases that have existed since the 1971 Act—first, ''relations with another Government''. If someone has committed crimes, or attempted to overthrow the Government of another country or damage its interests, severe damage could be done to relations with that country were the United Kingdom to allow that person entry. Often the information on which a decision not to allow a particular person entry is made will be highly sensitive. The other country might have provided intelligence material to us, or the UK intelligence services might have relevant information that could, if revealed, compromise sources. To remove paragraph (b) from the list of cases that will be heard by SIAC, rather than

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by the adjudicator, would mean that all information on which a decision is based would have to be put before the adjudicator in a public forum. If that were not possible, the Home Secretary would have to withdraw his decision and permit the person to enter the United Kingdom despite the damage that that may cause to our relations with other countries. It is a well-rehearsed and accepted argument that certain cases have related information that cannot be revealed in public; paragraph (b) addresses that, and its removal would do damage.

The phrase,

    ''another reason of a political kind''

could cover questions of public order, public morality, and a future threat to UK citizens or interests. Previous Home Secretaries have, for example, excluded holocaust deniers, officers of the Ku Klux Klan and a number of religious cultists. Although many such cases will be dealt with on the basis of evidence that is in the public domain, some decisions, particularly those of possible future risk, could be based on sensitive intelligence material, which it would be necessary to hear in SIAC. If paragraph (c) were removed from where it has reasonably sat since the 1971 Act, no appropriate forum would exist for the Home Secretary to expose that sensitive material. He could not oppose an appeal so would have to allow it with all its concomitant damage to UK interests.

Amendment No. 412 would bring advocacy before SIAC within the scope of Community Legal Service. The CLS was established by the Access to Justice Act 1999, but SIAC and advocacy proceedings fall outside schedule 2 of the Act. Although the tribunal is outside the scope of the CLS, that is not the end of the matter in terms of an individual receiving public funding for representation. As hon. Members have mentioned, we have exceptional funding circumstances. We are considering what to do about that, and have not yet decided whether we should bring the tribunal within the purview of the Legal Services Commission or continue an exceptional funding regime. I ask the hon. Gentleman to bear it in mind that we have not made a final decision, and that we understand his points. Even now, the exceptional funding regulations allow public funding to be used in order for somebody to be properly represented when they go before SIAC. I therefore hope that amendment No. 411 will be defeated.

I also hope that amendment No. 412 will not be pressed, given the assurance that the Lord Chancellor is currently looking at the matter, and given that I have put before the Committee the fact that we know that the matter is important.

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