Clause
29
Exceptions
David
T.C. Davies:
I beg to move amendment No. 9, in
clause 29, page 15, line 4, leave
out ‘18’ and insert
‘16’.
The
Chairman:
With this it will be convenient to discuss the
following amendments: No. 115, in
clause 29, page 15, line 4, leave
out ‘conviction’ and insert
‘offence’.
No.
54, in clause 29, page 15, leave out lines
5 to 7.
David
T.C. Davies:
The point of my amendment
is that, in my view and that of the law, 16-year-olds know the
difference between right and wrong. For a 16-year-old to get a prison
sentence of 12 months—a situation that would have to pertain for
them to face deportation—they would have to commit a pretty
serious offence, or a large number of moderately serious offences. So,
the point of this amendment is fairly simple. Where do the Government
think that their priorities lie? Do they think that they lie in looking
after the wishes and convenience of a 16 or 17-year-old serious
offender who has made it clear that they have no respect for the rules
or ways of life of this country? Or do they see it as their priority to
protect members of the public who, in many major cities, are facing an
onslaught of criminality?
My view is quite simple. A 16
or 17-year-old who knows right from wrong, and who has decided to show
no respect whatever for the laws of this country, should not be given
the right to remain here. The British public have the right to be
protected from them, and would be better off without
them.
Mr.
Clappison:
I speak in support of the amendment in my name,
amendment. No 54, but I also support that of my hon. Friend the Member
for Monmouth. My amendment’s purpose is to probe a little more
into one exception to what is termed automatic deportation, which is
exception 3, where
“the
removal of the foreign criminal from the United Kingdom in pursuance of
a deportation order would breach rights of the foreign criminal under
the Community treaties”.
My hon.
Friend the Member for Ashford has just made some interesting comments
about the concept of automatic deportation. The Bill is being presented
to us, rhetorically at least, as one that would allow for the automatic
deportation of foreign criminals who have committed offences resulting
in a sentence of imprisonment of more than 12 months. Setting aside our
previous debate on the Government’s interesting interpretation
of 12 months imprisonment, there is the question of how big a hole is
left by the subtraction of the exceptions contained in clause 29,
because it seems that quite a substantial number of foreign criminals
who are sentenced to 12 months imprisonment will fall within the
exceptions stated there. The two most important, for these purposes,
are exceptions 1 and 3. As I have said, my amendment relates to
exception 3, but we also have exception 1, where somebody cannot be
deported where it would result in a breach of their rights under the
European convention on human rights. Given that one of those is the
right to family life under article 8 of the convention, one suspects
that that particular right under the convention would apply to quite a
number of people who were convicted in the circumstances that I just
described.
On top of
that, all the obligations under the refugee convention would apply to
somebody who has claimed asylum, or who is minded to do so following
their arrest. Then, on top of those two exceptions, there is the one
where deportation would place the United Kingdom in breach of European
Community treaties. In this case, it would apply to all foreign
criminals whose foreign country is a member country of the European
economic area. Reading the Library briefing on this point, we are told
that
“in practice EEA
nationals and their family members will not be affected by most of the
automatic deportation provisions because of the limited circumstances
in which European law allows them to be deported”.
Rather than ask how big a hole
is created by that exception, I am tempted to ask whether there are any
circumstances in which EEA nationals will be deported. Do we simply
subtract from the automatic deportation provisions all EEA nationals,
together with all the people who can claim rights under the refugee
convention or the European convention on human rights, including the
right to family life? If one takes all those foreign criminals out of
the picture, I submit to the Committee and the world that the term
“automatic” is rather a misnomer, as my hon. Friend the
Member for Ashford rightly
said.
11.30
am
Kerry
McCarthy (Bristol, East) (Lab): I rise to speak to my
amendment No. 115, which relates to exception 2 under the clause, which
provides that deportation will not happen
“where the Secretary of State
thinks that the foreign criminal was under the age of 18 on the date of
conviction.”
I am
concerned by the issue of the date of conviction. I shall leave aside
the question of age disputes, which we have addressed previously in the
Committee. There is a general rule of the criminal justice system that
the age of the offender on the date that the offence was committed is
used as a guideline for how they should be sentenced.
It has been a long time since I
practised criminal law—nearly 20 years—but my
understanding then was that if somebody committed an offence as a
juvenile but was convicted as an adult, they could not receive a
suspended sentence, because in those days suspended sentences were not
given to juveniles. They could receive only the penalties that were
available according to their age at the date of the offence. We now
have offences, such as possession of a handgun, that incur a minimum
sentence of five years’ imprisonment if the offender was over 18
at the time of the offence. If the offender was between the ages of 16
and 18, they could receive only a three-year term of detention.
Clearly, the principle is that the age at the date of
theoffence governs the sentence that somebody should
receive.
Under
articles 37 and 40 of the UN convention on the rights of the child,
which deal specifically with the rights of children who commit crimes,
every person under the age of 18 at the time of the alleged commission
of an offence must be treated under the rules of juvenile justice. It
may be that the provisions in the Bill are not seen as part of
sentencing procedure and that deportation is seen as a separate issue,
but I have concerns in that
respect.
On a
practical level, my main concern relates to what happens as somebody
goes through the criminal justice system. There could be a real risk of
miscarriage of justice. If, for example, somebody commits an offence
when they are a few months under the age of 18, there will be
considerable pressure on them to plead guilty, because if they are
convicted before their 18th birthday, they cannot be deported. If they
choose to fight the case—they might be innocent and want the
chance to prove their innocence in court—and are convicted after
a trial after reaching the age of 18, they will be deported.
The other side of the coin is
that if the police and prosecution service are considering bringing
charges against somebody who is a few months short of their 18th
birthday, they might think that if they charge them immediately and
bring them before the court, they will plead guilty, but if they wait
until after their birthday, they can be deported. An incentive to delay
could therefore be built into the system.
David
T.C. Davies:
Is the hon. Lady seriously suggesting that
the Crown Prosecution Service would deliberately delay prosecutions to
get stricter sentences? If so, that cheers me up no end, but I wonder
what contact she has had with the CPS
recently.
Kerry
McCarthy:
I have not had much contact with the CPS
recently, although I did when it was first established, when I was
working at a magistrates court. I am not saying that there would be a
deliberate intention to slow things down. However, it puts the offender
at risk of the vagaries in the system, in that some cases are obviously
brought quicker than others. It seems unfair that if somebody is
arrested for an offence in an area where the Crown Prosecution Service
is quicker at bringing cases to court than in others, they would be
treated differently. I know that the Minister has concerns about the
difficulty in pinpointing dates of offences, and I understand that that
might be why they have chosen to go along the route of using the date
of conviction. I know that, particularly in cases such as child abuse,
it can be difficult to get the victim of a crime to specify when the
offence happened. I understand why it has been suggested that date of
conviction should be used instead, but I would be keen to know what
safeguards would be built in, so that we do not have an anomaly where
people, particularly close to their 18th birthday, might be treated
differently.
Mr.
Crispin Blunt (Reigate) (Con): I rise to support the
amendment tabled by my hon. Friend the Member for Monmouth. The
Committee and the Minister will probably recall the appalling crime
that was carried out when a mother was holding her baby at a
christening party, and three individuals broke in, and she was shot
dead. Those three gentlemen were convicted and were all, as I
understand it, in the United Kingdom illegally. Two of them refused to
make clear their age to the court, and the judge was not able to
ascertain the age of the two defendants who were convicted, one of whom
was a father at least once. They also then refused, as apparently they
were entitled to do, to take any medical examination to establish their
age. The judge then had to deal with them as though they were under 18,
having taken some days to consider the matter to ensure that the
judgment at which he arrived was going to be proof against any
appeal.
My hon.
Friend’s amendment would assist future judges finding themselves
in that situation. He is absolutely right that defendants over the age
of 16 plainly know the difference between right and wrong. It is pretty
plain that if people convicted of serious offences, whether they are
16, 17 or 18 or older, are not entitled to be in the United Kingdom, we
would not
wish them to continue to be here. I strongly urge the Committee to
ensure that we can take at least a small step to ensuring that
situations such as the one that arose in those circumstances, which are
an absolute affront to any sense of justice and an outrage to the
relatives and friends of the victim of that disgraceful crime, do not
recur, by supporting my hon. Friend’s
amendment.
Damian
Green:
I, too, rise to support my hon.
Friend’s amendment. The fact that we are discussing exceptions
to automatic deportation puts into context what I thought was the
Minister’s elegant formulation that there is a degree of
automaticity about the deportation under the section of the Bill. I
gently point out to him that I think that automaticity is like
virginity; either one has it or not. There are no degrees involved. We
have not got automatic deportation. The exceptions in clause 29 would
be markedly improved by my hon. Friend’s amendment, reducing the
age limit of the commission of the offence. It is important, as has
been said, that we assume a large degree of personal responsibility in
people who are over the age of 16, certainly if they commit the sort of
crime that would render them eligible for deportation. Clearly, that
would not be some kind of youthful prank of the type that we have
discussed on previous clauses of the Bill. I think that in the modern
world people would find it unacceptable that the cut-off point should
be 18, rather than 16. Of course society as a whole still has a duty of
care towards many people under 18, but for many, particularly those
with drug problems that may cause mental illness, that duty of care
will continue well beyond the age of 18. To that extent it is a
question of seeking a cut-off point.
My hon. Friend’s point
about those who falsely claim to be under 18 is a powerful one. It
would be significantly minimised if the cut-off point were 16. It would
be interesting to see whether the use of dental X-rays leads to any
improvement. My understanding is that these are still not accurate to
within two years. If that is the case, I suspect there will not be much
practical improvement with that innovation. A judgment will still have
to be exercised by immigration officers, police officers and judges
about the age limit. Altogether, I think that the massive argument in
favour of a cut-off point at 16 rather than 18 is pretty overwhelming.
I hope that the Minister will take this amendment on board in the
constructive spirit in which it is
intended.
Mr.
Byrne:
I shall deal with the amendments in turn. They
would effectively apply the process of automatic deportation, so
obviating consideration for those individuals who are deemed to be 16
or 17, and shift our proposal that the relevant date is not the date of
conviction but the date of the offence. The hon. Member for Hertsmere
raised some important questions about EEA nationals.
There are two
or three issues that need teasing out here. First, as a matter of
Government policy our decision has been to continue with the principles
set out in 1993 by a Conservative Minister, Charles Wardle, who told
the House that it would be the Government’s policy not to remove
people until the age of 18. We have
said repeatedly that where there are questions about their age we would
not remove an unaccompanied child back to a country until we were
satisfied that there were adequate reception arrangements in place. The
cut-off date between childhood and adulthood is well discussed in
legislation, most recently and powerfully in the Children Act 1989
where the initial starting point is 18. When one has to deal personally
with cases such as that raised by the hon. Member for Reigate and one
has to drill into the detail and make decisions about what actions the
British Government should take, one’s sympathy for the kind of
amendment that the hon. Member for Monmouth proposes grows
considerably. My concern would be that, because of the conflict with
our policy not to remove children without the guarantee of adequate
reception arrangements back in their country of origin, it would entail
a consideration of each case individually. Our proposal in this Bill is
not to remove the sanction of deportation for individuals in these
circumstances, it is simply to retain the flexibility to consider cases
on a case-by-case basis so that individual details can be examined
rather than to trigger the sanction of automatic issue of deportation
orders.
Mr.
Blunt:
The Minister said that it would be an exception. To
be absolutely clear, there would be an effort to deport 16 and
17-year-olds if there were adequate reception arrangements and this is
simply an exception from
automaticity.
11.45
am
Mr.
Byrne:
That is absolutely
right.
The second
point raised by my hon. Friend the Member for Bristol, East is
important, too. This is one of those issues where the balance of
justice has to be struck. On the one hand, my hon. Friend posed the
risk of perverse incentives operating on the individual if they are not
far off their 18th birthday. On the other hand, the more important
issue is that we have to be able to pin down a date for an offence. I
think that that is best done at the point of conviction, because it
provides clarity and certainty. She alluded to certain kinds of
offences, whether drug dealing or sexual, and certain kinds of
criminals, who have perpetrated an offence over a considerable period
of time. My fear is that we end up having wrangles about the
appropriate date of the offence to pin down in front of a court, which
would slow down and hinder our ability to automatically deport people
in cases such as that prayed in aid by the hon. Member for Reigate. I
will not go into the case details, but many similarities are relevant
here.
Actually being
able to pin down a single date of conviction I think is the key. There
are issues as to whether perverse incentives are created, but that kind
of risk can be combated with other measures, such as using the
inspectorate, the Crown Prosecution Service or greater transparency in
the system. The greater necessity is for certainty and for people not
to be able to avoid justice by creating confusion or complexity over
when an offence was committed.
Mr.
Blunt:
I apologize for intervening here, but I want to go
back to the original point. The exceptions include breaches
of
“a person’s
Convention rights,...the United Kingdom’s obligations under
the Refugee
Convention”
and, under
subsection (4), rights “under the Community treaties.” In
the circumstances set out by the Minister, subsection (3), unless
amended, would leave the United Kingdom in advance of the rights
position laid out under the convention and other treaties. He can
safely accept the amendment tabled by my hon. Friend the Member for
Monmouth, because the position of people in such circumstances is still
protected by the wider treaty obligations of the United Kingdom. I do
not see why the United Kingdom should have a position in advance of the
convention rights and the other international agreements listed among
the
exceptions.
Mr.
Byrne:
The individual may face risks, to which children
might be especially vulnerable, that are not detected by convention
rights. If we are deporting children, we need to be satisfied that
there are adequate protections in place in order to avoid deporting a
vulnerable person, even though I accept that the individual may have
put themselves beyond the sympathy of an ordinary-thinking person
because of the offences that they have committed in this country.
However, we have obligations to children that merit case-by-case
consideration. That is the important point. We are not taking young
people or children outside the ambit of deportation. We are maintaining
the sanction of deportation; all we are retaining is the ability to
consider that case by case. That does not diminish our ambition or
intention to deport young people who have committed a serious breach of
the law in this
country.
I want to
turn to the points raised by the hon. Member for Hertsmere, because
those too are important. Effectively, we have had to fit the Bill
within the framework of European legislation, within which we find
ourselves today. The result is that, for EEA nationals, we have to
consider cases case by case. As the hon. Member knows—he might
be more familiar with European legislation than I am—that
imposes certain tests. Those who have been resident in this country for
under five years, for example, have to be considered by the Secretary
of State through the lens of whether their deportation can take place
on the grounds of public policy or public security.
I will be open with the
Committee—it is harder to deport EEA nationals than non-EEA
nationals. However, the situation has the upside of our ability to
negotiate, for example, prisoner transfer agreements between European
states. We can, therefore, move European prisoners back to prisons in
their own countries substantially easier than those from Jamaica, parts
of Africa and parts of the less developed world. That is important
because about a third of foreign national prisoners are from an EEA
country; I will be corrected by my officials if I am
wrong.
Our ability to
deport EEA nationals is constrained. There is the upside of prisoner
transfer agreements which allow us to move prisoners back to prisons in
their country of origin. We took the power to remove the need for
prisoner consent for those transfer
agreements in the Police and Justice Act 2006. [ Interruption.]
Sorry, the percentage of EEA nationals in prison is about 5 per cent.
of foreign national prisoners. The framework that we have
sought to posit the Bill in, is that which comes from our membership of
the EU—a deal done some time ago—and that provided by the
transposition of the free movement of persons directive into
immigration regulations in
2006.
Mr.
Clappison:
My point is on the alleged automaticity of the
provisions. Is the Minister saying that the prisoner transfers are
those with a deportation order? If they are without one, what is to
stop the prisoner coming back to this country at the end of their
sentence?
Mr.
Byrne:
There are grounds on which we can exclude
individuals from coming back into the country, but public policy and
public security grounds must be proven. I am happy to write to the hon.
Gentleman with a more detailed explanation of how those blocks occur.
The prisoner transfer agreements are those where individuals are
serving a sentence, so we are asking them to serve out their time to
society where they came
from.
Finally, the
transposition of the free movement of persons directive required the
approval of the House and was not prayed against when it was laid in
2006. One draws the assumption that it commands the support of all
sides of the House. Therefore, it is a constraint, but one that
Parliament has
imposed.
David
T.C. Davies:
I have listened carefully to the arguments
put by the Minister, but think that my hon. Friend the Member for
Reigate made the most powerful point today in describing the horror
that an excessive regard for human rights legislation can create. The
upshot is that people are losing their lives quite unnecessarily as a
result.
Mr.
Stewart Jackson (Peterborough) (Con): Is my hon. Friend,
like me, concerned at the complacency of the Minister on that issue,
given the infamous memo written for the Under-Secretary of State for
the Home Department, the hon. Member for Enfield, North about the
undesirability of up to 45,000 possible foreign criminals arriving from
Romania and Bulgaria from 1 January, given the fact that the Government
deliberately exempted themselves from the pilot scheme to share
criminal records data among seven other EU countries, as a preliminary
step?
The
Chairman:
Order. I hope that the hon. Gentleman will not
be tempted to respond to that point, which was interesting, but not
exactly relevant to the
amendment.
David
T.C. Davies:
I am happy to adhere to your advice,
Mr. Amess, although it was indeed a very interesting
point.
I want to
finish by saying that I am in danger of telling too many tales from the
front line as a special
constable. I was recently involved in an incident involving a foreign
national in which various weapons were found. That left me thinking
that, although that person was under the age of 18, there is no reason
why the law of this country should protect people who walk around with
knives and guns and who are prepared to use them. Therefore, it is
important to put the amendment to a vote.
Question put, That the
amendment be
made:—
The
Committee divided: Ayes 5, Noes
8.
Division
No.
14
]
Davies,
David T.C.
(Monmouth)
Question
accordingly negatived.
Damian
Green:
I beg to move amendment No. 137, in
clause 29, page 15, line 35, leave
out paragraph
(b).
The
Chairman:
With this it will be convenient to discuss
amendment
No. 139, in
clause 29, page 15, line 38, at
end add—
‘(8) The
deportation of a foreign criminal is always deemed conducive to the
public good, even following the application of an
exception.’.
Damian
Green:
Amendment No. 137 disguises the simple question,
what is the purpose of subsection (7)(b)? It seeks to delete it, and
amendment No. 139 essays another version of it. Clause 29 (7)(b)
reads:
“The
application of an exception...results in it being assumed neither
that deportation of the person concerned is conducive to the public
good nor that it is not conducive to the public
good”.
It is not, on the
surface, apparent what that seeks to achieve or what practical effect
it would have. That is why amendment No. 139 states that the
deportation of a foreign criminal is always deemed to be conducive to
the public good. I am sure that there is a simple explanation for that,
but I find it puzzling that this House is being asked to enact
legislation that will enable it to do something that may or may not be
conducive to the public good. I hope that the Minister can put me out
of my confusion on that.
Mr.
Byrne:
I will certainly do my best to help the hon.
Gentleman. The subsection aims to make it clear that the legislation
will dovetail with the definitions and terms that are used in the
Immigration Act 1971, in which the power of the Home Secretary is
defined in terms of his ability to exercise certain powers and to
deport people if that is deemed to be conducive to the public good. The
subsection concerns exceptions that are relevant to the cases of
mentally disordered offenders, to whom we might have obligations. For
example, it would not necessarily be to the public good to deport a
mentally disordered offender who had been committed to an institution
and was receiving care. On balance, it might be to the public good for
us to continue to care for him until he was better so that he could be
returned to his country of origin safely rather than as a rampaging
psychopath. We want to reconcile this Bill and the 1971 Act where they
relate to circumstances that trigger an
exception.
Damian
Green:
I am grateful to the Minister. His explanation
clears up some of my confusion and I am happy to beg to ask leave to
withdraw the amendment.
Amendment, by
leave,
withdrawn.
Clause
29 ordered to stand part of the
Bill.
12
noon
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