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I do not think that the Minister answered the following question in Committee, but she should be able to tell us how many people she anticipates being prosecuted each year for the offence. In a year in which more than 100,000 applications were made for asylum, it is known to the authorities, I think, that a huge percentage of those people had no documents whatever. Under the Bill, therefore, a huge percentage would find themselves having committed an offence, leaving the immigration officer in question with virtually no alternative but to ensure the arrest of those people and ensure that they were charged. It is a big problem.
On the other hand, the problem of those who tear up their documents is smaller and more easily controlled. It arises principally at airports and at ports to which people travel on boats, having provided passports in the first place. Amendment No. 1 would therefore insert the requirement for a document rather than a passport, on the basis that the mischief that the whole House is trying to address is those who destroy their documents rather than those who have never had any.
I repeat the point made by my hon. and learned Friend the Member for Harborough (Mr. Garnier) that it is a poor thing that the immigration officer on the case must address his or her mind to Hansard reports to find out that the Minister has no intention of prosecuting anyone, except those who destroy their documents. That is the spirit in which I tabled the amendment. As I said, the Minister has gone some way to meeting concerns expressed in Committee on the defences and the times to produce documents—three days—and that represents some progress. It is possible, however, that she can make yet more progress and make the clause clearer and easier to enforce.
Roger Casale (Wimbledon) (Lab): I am grateful for the opportunity to make a short contribution. Like many Members, I have received powerful representations in my constituency in relation to the Bill, not least from the Religious Society of Friends led by Kurt Strauss and from Alison Williams and the Merton and Wandsworth law centre, with which I do a great deal of work to help many refugees in my constituency. They understand the need to send a strong message to people who wilfully and unnecessarily destroy their documents. It is crucial, however, that we strike the right balance in terms of protecting people's rights, particularly under the conventions—the Minister has referred to article 31 in that connection. I am pleased that she has listened to those representations, and on that basis I feel more able to support these amendments and to give support to the broad spirit of the Bill.
When the Minister responds, will she confirm that when special circumstances arise under the amendment that she is putting forward, each case will be looked at
on its merits? Of course, one would not expect the circumstances in which somebody does not have valid documents to be a valid defence—that would be the exception rather than the rule. Given the exceptional circumstances of many refugees and asylum seekers, however, there may be many cases. I hope that the Minister does not have a particular target in mind, such as 2, 3 or 5 per cent., but that she will look at each case on its merits to see whether such a defence will be possible under the new amendment. It is crucial that we have those safeguards that she is now putting in place to protect those rights, while at the same time having a robust and proper system that deters people from wilfully destroying their documents. Part of the operation of those rights, however, must be that each case is viewed on its merits, and I should be grateful if the Minister would reinforce that point and confirm that that is exactly what she will do.
Mr. David Heath (Somerton and Frome) (LD): I am grateful to the Minister for listening so carefully to what was said in Committee. Before I say more about that, however, let me list our main problems with this part of the Bill.
To avoid misunderstanding, I reiterate that we fully acknowledge the need to deal with the specific problem of those who wilfully destroy their passports and other travel documents to cause difficulties in the asylum and immigration system. None of us doubts the necessity for adequate statutory support allowing the immigration service to deal with those who commit that offence.
Our difficulties arise in four principal areas, some of which were mentioned by the hon. Member for Woking (Mr. Malins). First, there is the nature of the offence that the Government are putting in statute. As he pointed out, the clause relates not to an act of commission—that of destroying documents—but to an act of omission, that of simply not having the documents at the time when they are required to be produced. The Minister has gone a long way towards reassuring us about the circumstances in which the powers would be used, but as things stand the offence is effectively absolute, and prosecutions can proceed on that basis.
The second issue is the point at which the offence is committed. It seemed from the preamble that we were talking about ports of entry—seaports or airports—but the wording of the Bill made it clear that it referred to an interview at any point. In Committee, we told the Minister forcefully that we needed a much clearer definition of what constituted the interview at which the offence would be committed. I think that the Government amendments address that problem.
The third difficulty is that effectively no discretion is given to immigration officers considering whether an offence has been committed. We have had a good deal of debate about the reasonable excuses that could be adduced before a court as a defence, but the fact remains that the immigration officer is faced with a simple decision that does not allow him or her to take the individual's circumstances into account. It is a case of whether people have their documents on them or not when they are interviewed. If they do not have them, they are committing an offence; if they do, they are not. The discretion that has been suggested for immigration
officers is not in the Bill as currently drafted. Again, the Minister has been helpful, but the guidance that she intends to publish will actually ask immigration officers to disregard what the Bill says and insert what the Minister wants. I would prefer legislation that stated what immigration officers were to do, and gave them the necessary discretion.
Mr. Malins: The hon. Gentleman's contributions in Committee were much appreciated. At the beginning of her speech the Minister said that we were dealing with the offence of deliberately destroying documents. Does the hon. Gentleman agree that that is not the case? Surely we are dealing with the offence of not having the documents.
Mr. Heath: The hon. Gentleman is absolutely right. That is the offence that the Bill suggests. The Minister has said that she would expect the power to be used where an officer has a reasonable suspicion that the documents have been wilfully destroyed, but that is not the same as framing the offence in those terms, which is what she has thus far failed to do.
Vera Baird (Redcar) (Lab): On that point—I understand what the hon. Gentleman is saying, but I sympathise with the Minister—would it not be extraordinarily difficult to prove beyond reasonable doubt that somewhere on the high seas or on a plane, an individual had personally destroyed their documents? If that is next to impossible, is not the better model to frame the charge of being here without documents, and leave open the prospect of a reasonable excuse, exculpating the individual from it if a satisfactory explanation can be provided? Is not that perfectly fair?
Mr. Heath: I am grateful to the hon. and learned Lady and I have some sympathy with her and the Minister's position, because I understand how difficult it is to frame the offence in the terms required to deal with the mischief. The answer to her point is that it is even more important to get the burden of proof right on the available statutory defences. That is my next point. If we can do that, I will be much more satisfied that the defendant has an appropriate defence for this apparently absolute offence and that the prosecution will then have to prove its case beyond reasonable doubt. That does not apply at present, which is my fourth and most serious criticism of clause 2. Amendment No. 99, which is in my name, is designed to deal with that problem.
As I have already said, the Government have been helpful to some extent on this particular clause. What the Minister said in Committee provided some reassurance, as did a subsequent letter, what she said today and the amendments that she has introduced. I greatly welcome the Government amendments that deal with defining the interview for the purposes of the offence being committed—a specific suggestion that I made in Committee, which the Minister has obviously considered and returned to. That is doubly helpful. It will ensure that the defendant is not caught out in unfair circumstances, and, more importantly from the Government's point of view, it will help the prosecution in taking away a defence that might otherwise be available. The present clarity—though it could be improved further—is helpful.
Will the Minister deal with a minor point about Government amendment No. 49? I see no problem with it generally, but I am interested in the words "or living", which were not part of the original wording. The amendment includes the words:
- "in respect of any dependent child with whom he claims to be travelling or living".
I welcome Government amendment No. 50, which deals with the delayed production of documents for those in country. It is a perfectly sensible provision, which we urged on the Minister in Committee. She has also been helpful on a point that affects my amendments Nos. 100 and 101, which deal with section 31 of the Immigration and Asylum Act 1999. Confusingly, that deals with article 31 of the refugee convention. The Minister has been most helpful today and I believe that the Government amendments deal with the point that I sought to raise, so I shall not press it any further.
The Minister has also been helpful on the content of amendment No. 102, which deals with the statutory duty to provide guidance. She has put it on the record that we will have guidance, which is good news.
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