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Lord Avebury: My Lords, I support the amendment moved by my noble friend. I draw attention to those parts of the clause that the amendment seeks to delete that reinforce the remarks made by the right reverend Prelate. The commission has only two options. Once the Secretary of State has issued a certificate, the commission has to decide only whether it agrees with the statements made by the Secretary of State in support of the certificate and, if not, it quashes the decision or action against which the asylum appeal is brought. If the commission agrees with the statements, it must dismiss the asylum application. As the right reverend Prelate said, that means that the applicant is never entitled to a substantive hearing on his application for asylum.
It seems to me that Clause 34(6) gives the Secretary of State an unlimited power to make a new decision, following an adverse decision by SIAC. If the Secretary of State does not succeed in convincing SIAC that the statements that he has made in support of the certificate are true, he can refuse the individual's application on any other ground that comes into his head. That is how I read subsection (6).
Furthermore, the original application that was put on ice while SIAC considered the certificate, is then treated as undecided for an indefinite period following a ruling by SIAC against the Secretary of State, while the Secretary of State determines whether to make a new decision. There is no question of autre fois acquit in such matters. First, the Secretary of State fails in his certificate before SIAC and then he can take an indefinite time to produce a new refusal on totally different grounds. It seems to me that that is entirely contrary to natural justice.
In considering what is being attempted here, the articles cover a far wider range of circumstances than terrorism. I shall confine my attention to Article 1(F)
because Article 33 applies rather different criteria than deciding whether a person having been granted asylum should be protected from refoulement. Therefore, I would consider that it is inappropriate in the context of a decision on whether to grant asylum in the first place. That stage has not yet been reached. Article 1(F), as has been said, provides that the convention shall not apply to any person who has been convicted of a serious non-political crime in a country other than the United Kingdom.The UNHCR handbook, to which my noble friend Lord Dholakia has already made an indirect reference, on the interpretation of the convention makes it clear that,
- Xin applying the exclusion clause [1(F)] it is . . . necessary to strike a balance between the nature of the offence presumed to be committed by the applicant and the degree of persecution feared".
So the Secretary of State comes along and says, XThis person has been convicted of such and such an offence in another country". If that is true it makes no difference what the quality is of the legal system in that country and whether or not the offence committed should have been counterbalanced by the degree of fear which that person experienced.
My noble friend gave a hypothetical and very good example which he obtained from UNHCR. I shall quote a real life example. I draw your Lordships' attention to a very disturbing case taking place at the moment in Russia. It is the retrial of Grigory Pasko, a journalist. He is charged before the Court of the Russian Pacific Fleet in Vladivostok on charges of spying. The ingredient of the offence was that in September 1997 Mr Pasko attended a meeting of the Military Council of the Pacific Fleet in order to cover it for his newspaper, Boyevaya Vaktha. He took some notes for possible later use in an article.
According to the indictment, Mr Pasko kept the notes at home. They were confiscated by the police on 20th November 1997. The prosecution claimed, without presenting any evidence, that the notes contained state secrets and that Mr Pasko had transferred the notes to Japan.
Suppose that he was convicted of this very serious offence of spying. By some means he then escaped from Russia. He presented himself at Dover and asked for asylum. He would have a conviction, assuming that that is the way that it goes, and I hope that it does not. The Secretary of State would be perfectly entitled to
sign a certificate and say to SIAC that this person had been excluded from consideration from asylum in this country by one of the subparagraphs of Article 1(F).Many other examples might spring to mind. We were earlier talking about Zimbabwe. Everyone knows that the judicial system in Zimbabwe has been seriously undermined by President Mugabe, and that it would be quite difficult in certain circumstances to get justice before the courts in that country. Someone comes here from Zimbabwe, having been a member of the opposition and convicted in the courts of an offence in connection with an election rally and asks for asylum. The Secretary of State certifies that he was convicted in Harare of causing disorder at an election meeting. He is automatically barred from any further consideration. The substantive case for his application for asylum cannot be considered.
Your Lordships could develop other examples. But we have said enough to show that this is an extraordinarily dangerous course. I hope that, having done that, we shall, unlike on other occasions, convince the Minister that the Government should think again. There has been precious little of that today—or, indeed during the Bill's previous stages. I hope that, on this matter at least, the Minister will do the sensible thing and, if he is not satisfied with the amendment, return with one that removes those dangerous powers from the Bill.
9.45 p.m.
Lord Rooker: My Lords, I shall do my best to answer some of the points raised, but I am clearly not going to convince noble Lords who give every impression that they do not think that Articles 1(F) or 33(2) should exist. That is the thrust of most of the speeches to which I have just listened. The fact is that there are international treaties and obligations that some people—I stress, some people—exploit, which sends out all the wrong messages. Those provisions are there in international treaties; we will not abuse the situation.
I draw noble Lords' attention to United Nations Security Council Resolution 1373, passed on 28th September, which required states to,
- Xtake appropriate measures in conformity with the relevant provisions of national and international law, including international standards of human rights, for the purpose of ensuring that the asylum-seeker has not planned, facilitated or participated in the commission of terrorist acts".
I intend to meet noble Lords on one point, which has been legitimately made. I shall come to that in a moment.
Why do we want the clauses in the Bill? They send out a clear message that we will not tolerate people whose actions clearly exclude them from the protection of the convention. We are not rewriting the refugee convention; the provision is already there. No one wants to talk about that; people will talk only about the positive provisions for refugees with a well-founded belief. No one ever refers to the fact—there is no press comment and no speeches are made on it—that parts of the convention do not apply to certain people because they put themselves outside it.
The noble Lord may shake his head, but the provision would not be there if it were not for the fact that when the convention was drawn up it was envisaged that some people would by their own actions put themselves outside its protection. All that we are doing is drawing attention to the fact that we are not prepared to have people abusing our asylum system when they have put themselves outside the convention's protection. How we operate that system is important.
Some noble Lords have argued that the provisions are detrimental to the standing of the convention. I do not agree. It has been suggested that it is not possible to come to a view about whether Articles 1(F) or 33(2) apply, except in the context of considering the whole asylum claim. We think that concern misplaced. In considering whether Article 1, for example, was relevant, we would consider any relevant information.
For example, if there were grounds for believing that a person was involved in terrorist activities and that person sought to argue that his involvement had been unwitting or had been a marginal involvement which he had undertaken only as a result of coercion, we would consider those points as part of the assessment of the claim and whether to issue a certificate. We would not just take ill-considered decisions on exclusion without hearing the person's case. Nothing in the clause is intended to produce such an approach. I must say that noble Lords are reading more into the clause than is there.
Others may be concerned that by focusing on the exclusion aspects, we will ignore or pay less attention to humanitarian factors. It is true, of course, that we would not consider whether a person had a well-founded fear of persecution under the refugee convention—a point to which I shall return in the debate on Clause 35. But we would give proper consideration to factors put forward by the applicant as to why he should not be removed from the United Kingdom. That would include any European Convention on Human Rights issues raised.
Others would argue that it is pointless treating asylum claims of certain individuals in that way when their removal may not be possible because of considerations such as Article 3 of the ECHR. That has already been argued outside debate on the Bill. It has been argued in this House since I have been a Member that if we cannot remove people we should simply weigh them in, accept them and not bother about anything else. We are not prepared to do that. Just because we know we cannot remove them does not mean to say that we should not go through a full claim so that their status is made clear. Different countries are involved and times change. Removal may not be possible in some decades, but it may be possible in others. People may be able to return home when the situation changes.
We do not therefore agree that that is a reason to take no action as regards the asylum claim. Refugee status is an important one and we want to protect the integrity of the convention by making proper use of its
exclusion provisions. We are talking about the exclusion provisions in the convention, not those in the Bill. They already exist and have done so for decades.
We are sending out that clear message. It is not intended to be abusive. Noble Lords have given two examples in terms of consideration but I cannot comment on them from the Dispatch Box. One is hypothetical and one is real. I accept that. However, the fact is that we are not merely going to say, XYou have been convicted and therefore you are out with". We shall give proper consideration to the case before the certificate is issued. That may lead to the certificate not being issued.
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