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Lord Lester of Herne Hill: My Lords, the only matter which is still unclear to me is that there is a derogation from Article 5. Therefore, I do not understand how SIAC or any other court will be able to read it in the context of Article 5. I do not expect the Minister to have an answer to that, but I should be grateful if he could have one at some stage.
Lord Rooker: My Lords, I do not have an answer to that question off the top of my head. However, I shall get one— I shall indeed get one—but I do not know whether it will be during today's proceedings. If so, I can interject and give the noble Lord the answer.
The derogation is from Article 5.1, not Article 5.4, so it is not a complete derogation from Article 5. I am pleased that I have had the opportunity to put that on the record because a derogation from the European Convention on Human Rights is extremely narrow and targeted. We did not want to take that action but it was the only course open to us. We are happy to be Xfettered" by the rest of the European Convention.
Lord Campbell of Alloway: My Lords, I am grateful to the Minister for giving way. He got it absolutely right when he said that these matters will be considered outside SIAC. I believe that he was right because the noble and learned Lord, Lord Donaldson, said that SIAC did not have the full powers of judicial review and that there was a residual jurisdiction.
I intervene only because when the noble Lord, Lord Rooker, said what he said I was taken straight back to what the noble and learned Lord, Lord Donaldson, said. I think that the noble Lord has got it right.
Lord Rooker: My Lords, yes, I am extremely fettered myself in responding to that comment. Some noble Lords will understand but will not necessarily sympathise with me. However, I believe that the noble Lord, Lord Campbell of Alloway, is right in what he says about the noble and learned Lord, Lord Donaldson.
Lord Goodhart: My Lords, I thank the Minister for his answers to Amendment No. 1, which is satisfactory. It is clear and on the record that the Bill
is intended to give SIAC power to look at the facts as they exist at the time of the appeal or review and not simply as they existed when the certificate was granted.We are less satisfied with the answers to Amendments Nos. 2 and 3. Amendment No. 2 does not deal with what I believed may be a problem. It is that some detainees may not appeal, so the first time SIAC will come across a case will be at its first review at the end of the initial six months. Even if at that stage SIAC identifies a procedural irregularity, which would have meant that the certificate ought not to have been issued, it will be unable to deal with it.
As regards Amendment No. 3, it seems to me that we have not entirely met the problems raised by the Joint Committee on Clause 27(9). That shows one of the problems of dealing with the Bill too rapidly. Had we been given more time, it would more than likely have been possible to agree a satisfactory form of wording. As it was, it was not possible.
We do not intend to press the amendments further and I beg leave to withdraw Amendment No. 1.
Amendment, by leave, withdrawn.
Clause 27 [Appeal and review: supplementary]:
Clause 33 [Certificate that Convention does not apply]:
Lord Dholakia moved Amendment No. 4:
- Page 18, line 4, leave out Xissues" and insert Xhas issued both a certificate under section 21 in respect of the appellant and"
The noble Lord said: My Lords, Amendment No. 4 is grouped with Amendment No. 5 and it deals with Clauses 33 and 34, which were Clauses 34 and 35 at the Report stage.
The aim of our amendment is to restrict the number appearing before SIAC. In reality, no one other than those against whom a certificate has been issued—and I suspect that the number will be low—will fall into the category. To an extent, our amendment will restrict the free-standing nature of the clauses. That is precisely what the Minister tried to do and failed at the Report stage.
Our main concern is two-fold. First, genuine asylum seekers may be victimised as a result of public prejudice and unduly restrictive legislative or administrative measures; and, secondly, the carefully built refugee protection standard may be eroded. Current anxieties about international terrorism risk fuelling a growing trend towards the criminalisation of asylum seekers and refugees. Asylum seekers increasingly have a difficult time in a number of states, either accessing procedure or overcoming presumptions about the validity of their claims, which stems from their ethnicity or mode of arrival. The fact that asylum seekers have arrived illegally does not vitiate the basis of their claim. The fact that certain ethnic or religious backgrounds may be shared by those who have committed grave crimes does not mean that they themselves are also to be excluded.
We saw the evidence of that during the time of the Gulf crisis when a substantial number of people were locked up either because they were Iraqi or because they came from the Arab states. The culmination of that was that at the end of the process all of them were found to have no claim against them and were granted asylum in this country.
At the Report stage, the noble Lord, Lord Rooker, spoke at length in order to assure us about the difficulties of unifying Clauses 34 and 35, now Clauses 33 and 34. He has obviously failed, but I suspect that our amendments give him a leeway in which he can address the matters in a proper manner. I do not want to rehearse the arguments which we put forward at the Report stage last Thursday, but perhaps I may take up some of the comments the Minister then made and offer our observations now on what he said then.
The noble Lord, Lord Rooker, suggested (col. 1042) that the thrust of most of the speeches against Clauses 34 and 35 was that Articles 1(F) and 33.2 of the refugee convention should not exist. That is not the case. We want to reaffirm our commitment to the current convention regime where exclusionary factors are considered currently with inclusionary factors. Does the noble Lord, Lord Rooker, mean to suggest that the intention of the legislation is to give effect to Articles 1(F) and 33.2? Those articles already have effect in UK law and therefore there is no need for additional legislation to give effect to Articles 1(F) and 33.2.
It is in any event unrealistic to suggest that inclusionary and exclusionary aspects can be neatly separated in all cases. The noble Lord stated (col. 1043) that we should not just take an ill-considered decision on exclusion without hearing the person's case and that nothing in the clause is intended to produce such an approach. Does the noble Lord, Lord Rooker, mean that the inclusionary aspect will be considered if that is deemed necessary in order to assess the exclusionary aspect of the claim? How might that be judged? Can the Government give an assurance that all the relevant factors will be assessed? How will that be possible if the full asylum hearing is denied?
It is worth noting that the exclusion of a full examination of the asylum aspects of a claim in the first instance could generate further bureaucracy and costs in cases where the Secretary of State later revokes a Clause 34 certificate or where the issue of the certificate is quashed by SIAC under the terms of Clause 33(5). In such a case the applicant would have to go back to the beginning in order to have the inclusionary aspect of the claim examined once more. Considerations of time and expense are always persuasive when establishing practical guidelines.
Moreover, it is possible that in certain cases the Secretary of State will be legally obliged to rule on a refugee claim irrespective of the applicability of the exclusion clause. That possibility would arise in the context of spousal and dependent refugee claims.
My noble friend Lord Avebury has pointed out that it is not stated on the face of the Bill that factors leading to a proper consideration of an individual's
case would be fully considered before a certificate is issued under the terms of Clauses 34 and 35. My noble friend went on to say that the Secretary of State should be required to consider proportionality in each case, to which the noble Lord, Lord Rooker, responded by saying:
- XI take it as axiomatic that those considerations will be in the mind of the Home Secretary before he issues a certificate".—[Official Report, 6/12/01; col. 1044.]
Clauses 33 and 34 concern certification by the Secretary of State for the purposes of expulsion, whereas Clause 21 concerns certification for the purposes of detention. Do the Government agree that, under the terms of Clause 21, there are no equal provisions for removing the asylum seeker's right to have his or her full asylum claim examined? Indeed, we have been given to understand that, under Clause 21, the suspected terrorist will remain entitled to have the inclusionary elements of his or her claim assessed at the same time as the exclusionary elements are addressed. Does the noble Lord acknowledge the absurdity of creating a higher standard for cases to be brought before SIAC, which merely concern issues of national security, than more serious cases of suspected terrorism under Clause 21? I beg to move.
Lord Hylton: My Lords, I rise to support these two amendments. It would be desirable to ensure that the number of cases going before SIAC should be kept to an absolutely irreducible minimum. I say that because those hearings are closed. The public is not admitted and no media are present. The whole procedure is opaque and held in secret.
Perhaps I may add that, in my view, it is extremely desirable that hearings concerning the vast majority of normal asylum claim cases should be conducted in full under the most open procedures. The amendments would provide a means to ensure that that would take place.
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