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Lord Avebury: The UNHCR handbook relating to Article 33(2) refers to crimes against the principles of the United Nations or crimes against humanity. It was never intended that the provisions of Article 33(2) should apply to relatively minor crimes such as might attract a sentence of two years. I am attracted by the idea advanced by the noble Lord, Lord Kingsland, that, instead of considering the sentence or the period of imprisonment, we should list qualifying offences in a schedule, as has been done in other cases. If we did that, we could cover domestic crimes and crimes committed in a foreign jurisdiction at the same time.
I have one other point to make about crimes committed in a foreign jurisdiction. How do the Government intend to treat offences of a political character or offences for which someone is tried in absentia? We all know of people who have been convicted and given serious sentences in foreign jurisdictions, without their being present in the court.
There is no provision in the clause that would allow the Government to exclude such offences from consideration. The clause needs further examination. It would be useful if the Government would undertake to consider the suggestion made by the noble Lord, Lord Kingsland, so that they can satisfy both sides of the Committee.
Lord Judd: As I listened to the noble Lord, Lord Kingsland, I wondered how Nelson Mandela would reflect on the clause.
Lord Avebury: It would be a good idea to consult Nelson Mandela. Perhaps, we should also consult the Movement for Democratic Change, in view of what my noble friend said about the offence of sodomy in Zimbabwe, where it attracts a sentence of more than two years. Under Clause 61, the Government could expel people accused of those offences in Zimbabwe. We could find many similar examples. In the political field, there is endless scope for finding examples of people whom we would not want to see covered by the Bill.
Lord Filkin: It has been an interesting and important debate. I cannot give a full response to the noble Lord, Lord Brooke of Sutton Mandeville, about proceedings in another place, but I shall make the oblique point that the happenstance that we will have a pause of two and a half months between Committee and Report gives the Government a good opportunity to reflect on the richness and variety of our debate on this and other points. We will do so without commitment, but it will not be a frivolous process. That may not be a full answer, but it may be a crumb of comfort.
Clause 61 defines the phrase "particularly serious crime", as used in Article 33(2) of the refugee convention, as meaning any offence for which a sentence of at least two years' imprisonment has been imposed. A person whose offence falls within that definition is presumed to constitute a danger to the community. However, the presumption is rebuttable. I shall return to that matter.
We decided on a tough yardstick in order to make it clear that high standards of conduct were expected from refugees who have the privilege and advantages of residence here. The small minority of refugees who commit serious offences—I have no exact figures, but it is about 100 a year—will be expected to argue their case for remaining here by seeking to rebut the presumption that they are a danger to the community. At present, with no formal definition of particularly serious crime in Article 33(2), it is too easy for refugees to rely on the protection of the refugee convention in order to secure their stay.
Amendments Nos. 181 to 184 suggest alternative definitions of particularly serious crime and would reduce significantly the scope for applying Article 33(2) to refugees who are convicted of criminal offences. Amendments Nos. 181 and 184 would do that by relating the phrase "particularly serious" to any offence for which the maximum period of
imprisonment was 14 years or more. Amendments Nos. 182 and 183 would do so by relating the phrase to any offence for which the maximum period of imprisonment was 10 years or more. The Government do not agree that particularly serious offences are limited to those for which the maximum term is either 14 or 10 years. The adoption of 14 years as the definition would mean the exclusion of all offences with a 10-year maximum period. Those include sexual offences and indecent assault, offences against children, making threats to kill and damage or destruction of property.The adoption of a 14-year or 10-year criterion would exclude offences carrying a maximum sentence of seven years or less. Examples include theft, child abduction and placing or dispatching of articles to cause a bomb hoax. At the five-year maximum sentence level are offences such as assault causing actual bodily harm—the example given by the noble Lord, Lord Kingsland—violent disorder, the production, supply or importation of class C drugs and aggravated vehicle taking where a death occurs. All the offences that I quoted are ones in respect of which a court, following a conviction, might choose to make a recommendation for deportation. That, in itself, is an important indicator of seriousness. Previous cases in which Article 33(2) has been applied have often involved a court recommendation for deportation.
When deciding to opt for the two-year actual sentence criterion, we also had to take into account the different criminal justice system in Scotland, of which the noble Baroness, Lady Carnegy of Lour, will remind us. In Scotland there is a wider range of common-law offences for which, if trial is on indictment, there is no maximum sentence. Thus, a criterion that stipulated a maximum penalty of x years could be satisfied in Scotland in cases in which it would not be satisfied elsewhere in the UK.
Another difficulty with using a criterion stipulating a maximum penalty of x years is that it would require a reference in legislation to a specific list of offences. In part, that is what the noble Lord, Lord Kingsland, recommended that we consider. It may work in England, where most offences are defined, relatively narrowly, by statute; it would work less well in Scotland, where most serious offences are widely defined common-law offences and where nomen juris does not matter.
I shall turn to some of the specific questions raised. I accept the argument put forward by the noble Lord, Lord Kingsland, that someone could easily be sentenced to two years for causing actual bodily harm. He is right about that. In such circumstances, our presumption would be that the person had a case to answer. There would not be an automatic decision to remove, but the person would certainly have a case to answer. I am not an expert, but I can say that a two-year custodial sentence for ABH is a serious sentence for that offence, and we would expect to find a context in which there was at least some previous criminality.
Arguing against the Government's view, the noble Lord, Lord Kingsland, also gave the example of a sentence of 18 months for child pornography offences. Yes, on first reflection, we would expect that in the light of such behaviour those given the benefit of refugee protection would not be entitled to continuing protection. At the least, we will reflect on that matter, as he suggested.
Moreover, we are satisfied that the wording is consistent with Article 33 in that the sentence imposed is, in general terms, most likely accurately to reflect the severity of the crime and that it has taken into account not only the offence but the context in which it was committed. That is what the judge is doing when he determines the level within the discretion that he has.
Lord Clinton-Davis: I welcome what my noble friend has said, but wonder whether he has in mind a continuing discussion with the judges about the issues that have been raised.
Lord Filkin: If my noble friend meant that were the Bill to be passed in its present form would we envisage a continuing discussion with the judiciary about the matter, the answer, in short, is "no". The legislation would cover that, but I shall turn to some of the relevant protections in a moment.
As regards the schedule, for the reasons that I gave in terms of Scottish law, we have doubts about it. Nevertheless, on both sides of the Dispatch Box we recognise the difficulties. He argues cases of difficulty and definition; we see difficulties with his form of definition. It is good that we reflect on both those positions and see whether the differences can be squared. I repeat the undertaking to examine that.
As regards punishment in Iraq, the person would not automatically be covered by Clause 61. First, the crime for which the person was convicted would need to carry a possible sentence of at least two years. Secondly, the Secretary of State would not be obliged to seek to remove someone where he did not consider that the person should be so removed; for example, because he had no faith in the sentence passed in Iraq. I wanted to emphasise the point that there is the presumption to disprove by the trigger of statute. Then the Secretary of State must make a judgment which, because he is always open to judicial review challenge, must be a judgment in the round as to whether in the light of all the circumstances it appears reasonable so to do. Thirdly, in such cases it is inconceivable that people under the threat of a deportation order would not exercise their right to go to court to challenge that, and legal aid would be available to them.
The noble Earl, Lord Russell, challenged me to nominate the penalty for sodomy in Zimbabwe. I was aware of the repressive approach of the Zimbabwe Government in that respect, but I do not know the level of the sentence. Of course, the clause applies to crimes committed overseas only if those crimes, if committed in the UK, would carry a sentence of more
than two years. Therefore, an automatic protection exists because sodomy does not carry a criminal sentence in this country—nor should it. That provides a safeguard when actions which are considered serious crimes abroad are not considered serious crimes in the United Kingdom. I repeat that the Secretary of State also has the discretion not to seek to remove someone and must exercise that discretion after thought and consideration rather than blindly.
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