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4.15 pm

That leaves me with one final, very important matter: the burden of proof. In her opening remarks, the Minister suggested that amendment No. 99 was a probing amendment. I have to disappoint her. It is not a probing amendment, but one that I and my right hon. and hon. Friends mean very sincerely, because the effective reduction of the burden of proof is a real problem. It is not even a move from the prosecution's having to prove beyond reasonable doubt—which would normally be the case with a criminal offence—to the use of the balance of probabilities. It reverses that, because the defence will have to prove on the balance of probabilities that the reasonable excuse that it has put forward as a defence is proper. The prosecution does not have to do a thing about that, because if that proof is not shown, there is no defence.

That is profoundly unsatisfactory as a matter of law. For the House's benefit, I draw attention to the fact that the words in amendment No. 99 are not new to statute, but are already in the Terrorism Act 2000. With this Bill, we have the extraordinary situation that the openings for the defence of someone prosecuted under the Terrorism Act are better than those of an individual who, under this legislation, happens not to have their passport with them at the time of their substantive interview at the point of charge.

Mr. Garnier: In my experience, where the burden of proof lies is not always terribly important during the run of a trial. However, what the hon. Gentleman is arguing for is not outside the ordinary. Not only under the

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Terrorism Act 2000, but in straightforward matters such as self-defence it is for the defendant to raise an issue and for the prosecution to knock it down. I am concerned that the Government seem to have forgotten that, and are placing an unusual burden on the defendant. I hope that the hon. Gentleman will argue his case with vigour.

Mr. Heath: The hon. and learned Gentleman's support on this issue in Committee was notable, and he clearly intends to maintain his support today. I am grateful for that. The Government are playing fast and loose with the rules of evidence and burden of proof in this instance, which is very significant. I quoted the 2000 Act simply because it contains an almost directly analogous situation in terms of a statutory defence available to the defendant that is then required to be disproved beyond reasonable doubt by the prosecution. I do not think it unreasonable to expect the prosecution to do its work, nor do I think it unreasonable to seek to uphold a legal principle about reasonable doubt requirements in such matters that has persisted in this country since, I think, the early 1930s, and on which there is clear guidance. I do not understand what special circumstances make the Government—not for the first time, because they have suggested changing the burden of proof in other fields when it is administratively convenient—feel that is appropriate to abandon an important tenet.

I think that the provision in my amendment, or something similar, will be passed in another place because there are enough people there who will feel strongly on the matter, and who have the expertise—well beyond my powers of persuasion—to ensure that a vote is passed. However, I should like to persuade this House that it has a role in defending the traditional tenets of our justice system, and that we should make a stand on such issues in this place.

Because I feel very strongly about this, Mr. Speaker, I hope that I shall be able to catch your eye later in order to press amendment No. 99 to a Division. A very important principle is at stake here, in terms of the conduct of our criminal trials, and it should not be allowed to go simply because of inadvertence on the part of the House or complacency on the part of Ministers or others who have advised them that this is an appropriate way to go.

Mr. Garnier : Looking at the clock, I see that we have until about 4.50 pm to discuss not only this group of amendments but four others, which demonstrates the absurd nature of the proceedings with which we must now contend, on an issue of such important public interest.

I want briefly to discuss clause 2 and the amendment tabled by my hon. Friend the Member for Woking (Mr. Malins). I broadly agree with the thrust of what he said, but the Government's problem is that they have allowed themselves to be confused by the magic of terms such as "passport" and "travel document". Surely clause 2 is about discovering the identity of the person presenting himself to an official at the sea port or airport, or at a later interview. There are plenty of ways of proving one's identity other than by a passport or travel document. We had a brief discussion on this in Committee, although it was necessarily truncated because of the guillotine procedure.

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The wider public who might come to read or perhaps listen to these proceedings might not know that the Government are wedded to the idea of people proving their identity at the point of presentation or interview by means of a passport or travel document only. As I have said, there are plenty of other ways of proving one's identity. Indeed, if we are to be strict about this, a passport is not necessarily a proof of identity. I see my right hon. Friend the Member for Wokingham (Mr. Redwood)—a fellow of All Souls—sitting two Benches below me; I do not think that I need to go into a huge and interesting philosophical discussion about the nature of identity. For practical purposes, an immigration or asylum officer will need to ask, "Who is this person presenting himself to me? Is he who he says he is?" That procedure does not necessarily have to involve a passport. I therefore ask the Government to think carefully about the need to tie themselves down to a requirement for someone to prove their identity by means of a passport or immigration document.

Let us imagine, for example, the case of an army or military group that had been the military arm of a country's Government but had ceased to have the confidence of the new Government, perhaps after a coup or some other form of change in government. The armed forces would therefore cease to be the official army and would be designated as rebels by the new Government. That might require a member of the former armed force—now a rebel—to seek asylum in another country because he had a genuine fear for his life in his home country. He might not have a passport or travel document, because he had had no need for one, having lived all his life in the country that was now in turmoil. He might, however, have his military dog-tag; he would therefore have his military number and possibly his name on the brass plate around his neck.

Under clause 2, however, that would not be a permissible means of identification. The individual who arrived on our shores or at one of our airports presenting his dog-tag would therefore have committed an offence, because he did not have a travel document. It could well be said that the Government's new amendment, providing for a reasonable excuse, will lift liability from that individual under the clause. However, let us look again at the amendment tabled by the Home Secretary and no doubt moved—implicitly, if not expressly—by the Minister, to whom I offer many congratulations on becoming a member of the Privy Council, although I gather from Labour party circles that membership of the Privy Council is a rather fluid arrangement at the moment.

The Home Secretary's amendment again refers to a travel document and to a passport as the means of proving identity. I can well understand the Government's argument; if one arrives on these shores in a tin bath, having capsized several times, one's passport and documents will have been washed away and will not be presentable immediately to immigration officers. One will have a reasonable excuse if it can be demonstrated, on the Government's argument, that that is what happened. There are plenty of examples—I have just given one—where someone's identity can be "proved", in so far as it is possible to prove identity at all, by means other than a travel document or a passport.

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In the light of the shortness of time, and the fact that I have a suspicion that others will wish to speak, I will stop there. I hope that my remarks will prove attractive to the Minister, and not only for their brevity, and that she will respond positively at the end of the debate. As my hon. Friend the Member for Woking correctly stated, we are simply trying to prevent people from destroying documents—from cheating. We do not want people to cheat the immigration and asylum system.

We want to make sure that those who have a genuine claim under our laws and who come within article 51 of the UN convention can come to this country to present their claim as asylum seekers, but are not tied to identifying themselves by a particular class of document. That seems to be silly, unfair, counter-productive and probably not what the Government intend.

Annabelle Ewing (Perth) (SNP): I rise to support amendment No. 99, tabled by the hon. Member for Winchester (Mr. Oaten) and spoken to by the hon. Member for Somerton and Frome (Mr. Heath). I shall be brief as a few others wish to speak.

The amendment covers an important point of principle. As the hon. Member for Woking (Mr. Malins) said, clause 2 still does not exclude those people whom the Minister has been at pains to say are excluded—in effect or as a matter of practice—from the scope of the Bill. Her statements in Committee were welcome, as far as they went. However, I still do not see that express exclusion and, as a lawyer, I think it helpful to have legal certainty in statutes. If it is not the Government's intention to prosecute people who never had any documents, that statement should be in the Bill.

The burden of proof is raised by amendment No. 99, which I am pleased the hon. Member for Somerton and Frome will seek to press to a Division. The amendment raises a key point of constitutional principle. The Government's recent record seems to show that they are intent on denuding this country of its fundamental constitutional principles. It has always been the case that, in criminal prosecutions, the burden is placed on the Crown to prove its case beyond a reasonable doubt. Where a special defence is raised, it is up to the accused in Scotland or the defendant south of the border to make a reasonable argument, but the burden remains with the prosecuting authorities. We have been well served by that constitutional principle for centuries, certainly in Scotland.

It is astonishing that the Government plan, with a stroke of the pen, to get rid of that principle as far as asylum is concerned. That is unacceptable; if we see the erosion of that fundamental principle today on asylum, what will we see tomorrow? Where does the buck stop? Where will the line be drawn in terms of removing that fundamental principle?

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