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Lord Davies of Oldham: My Lords, I beg to move that the House do now adjourn during pleasure until 8.36 p.m.
Moved accordingly, and, on Question, Motion agreed to.
[The Sitting was suspended from 8.31 to 8.36 p.m.]
Nationality, Immigration and Asylum Bill
House again in Committee on Clause 124.
[Amendments Nos. 238ZGB and 238ZGC not moved.]
Lord Thomas of Gresford moved Amendment No. 238ZGD:
- Page 65, line 24, leave out "a member State" and insert "the United Kingdom"
The noble Lord said: In moving Amendment No. 238ZGD, I shall also speak to Amendments Nos. 238ZGE to 238ZGH.
It is possible to be tried in this country for a limited number of serious offences that have been committed abroad—murder, piracy, genocide and other offences of that type of seriousness come to mind. However, those are criminal offences against the law of this country and are so defined and determined; extra-territorial jurisdiction is given by the law of this country. I do not know of any law that makes it a criminal offence in this country to contravene the law of another country. I may be wrong about that; there may be some regulatory offence that I have never heard of. However, so far as I know, this is the first time that there has been an attempt to make into a criminal offence the contravention of a law elsewhere.
I am also familiar with extradition proceedings when a foreign government request the return of an alleged offender. In such proceedings it is common that certificates of the law of the foreign country are provided, usually by an acknowledged expert in that law. However, extradition proceedings are in respect of trials and offences that are ultimately dealt with by the requesting country, and they are always subject to the principle of "specialty", which means that the conduct complained of must also be a criminal offence in this country.
In subsection (3) of proposed new Section 25 in Amendment No. 124, we meet for the first time in my experience—I await enlightenment—the certification procedure whereby a European Union government—not a court but a government—can certify what the law is in their country, and the proposal that that should be a conclusive determination without any possibility of the party concerned in the proceedings being heard or making any representations or whatever.
This new offence also introduces elements that are not a breach of immigration law in this country. Transit across the state, for example, may be—I do not
know, but it may be—an offence in other European Union countries; it certainly is not an offence in this country.Under these new provisions a person may be sentenced to up to 14 years—that is a hefty sentencing power—if, for example, he commits an act which is not a breach of the law of the United Kingdom. Under subsection (4) he may even commit that act outside the United Kingdom in circumstances where, objectively, he might have reasonable cause to believe that it amounted to a breach of the immigration law of a European Union state. Even if he believed that he might be committing a breach of immigration law of a foreign country, he still commits the offence even though his belief was wrong and he was mistaken.
As I have already said, the breach may be established conclusively by the certificate of that state and by a procedure which is unchallengeable both in the courts of that country or in the courts of the United Kingdom. The Government propose to take a huge step to introduce a criminal offence of breaking the law of another country. We on these Benches do not think that that is justified for a moment. It is for that reason that in the amendments to which I speak—Amendments Nos. 238GD to 238GH—we propose that instead of referring to a member state, the Bill should refer to the United Kingdom. I beg to move.
Baroness Anelay of St Johns: I wish to speak to Amendment No. 238ZGJ which is included in the group of amendments we are discussing. I can be brief due to the excellent introduction to the group of amendments given by the noble Lord, Lord Thomas of Gresford.
I should like to take one of his points further with regard to the issuing of certificates by foreign governments. Will they contain the foreign governments' opinion of the effect of their law or that of their countries' courts? What statement will they make? As the Committee will be aware, sometimes in this country the two do not always coincide. I cannot believe that the situation is different in every other member state of the European Union. What guarantees will be offered by foreign governments that their interpretation of their domestic law is correct and has been upheld by their own courts?
I turn to the other amendments in the group. I repeat the concerns expressed by my honourable friend Mr Malins in another place at column 342 of the report of the Standing Committee. Can the Minister tell the Committee whether there are any existing criminal offences under the law of the United Kingdom which make it an offence under our law to breach the law of another state in that state?
Lord Hylton: I believe that the onus is entirely on the Government to justify this clause and the way in which it enlarges and vastly widens the existing British law by including assisting unlawful immigration in other EU member states.
I am not a lawyer and am never likely to be qualified as one. However, the Immigration Law Practitioners Association is extremely concerned about the clause.
Its members assumed—it appears wrongly—that British courts would obtain a certificate from foreign courts. However, that is not what it says on the face of the Bill. It refers to a foreign government and not a foreign court.The members of the association that I have just named are concerned about the practical effects in this country which might amount to the equivalent of a trial in absentia. They consider that the provision is unnecessarily widely drawn and could affect British citizens or residents who unknowingly and unwittingly offend against the immigration rules and laws of other countries. I look forward to hearing the Government's reply. The Minister mentioned something or other about Schengen in the debate on a previous group of amendments. This is a serious matter and deserves to be taken seriously.
8.45 p.m.
Lord Avebury: In 1996 the Home Office carried out a review of extraterritorial legislation. It set down a series of principles which it said that it would adhere to in any proposed extension of extraterritorial jurisdiction in the future. One of those principles was that the offence had to be an offence both under the laws of the country overseas where it was claimed to have been committed and also under the laws of the United Kingdom. As my noble friend Lord Thomas of Gresford has just explained, the provision we are discussing breaches that for the first time in our law.
Does that mean that the Government have abandoned the principles set out in the review which were retained by the Labour government after they came into office? That affected the Bill which I introduced to extend our domestic jurisdiction to persons alleged to have committed offences under Article 3 of the Geneva Convention. The noble and learned Lord, Lord Williams of Mostyn, the then Minister at the Home Office—he is now the noble and learned Lord the Leader of the House—gave as one of the reasons that the Government could not accept my Bill that it contravened the principles of the Home Office's review of extraterritorial jurisdiction. Can we be told where we stand now? Have the Government totally abandoned the principles set out in that review or have they just discarded one of them for the purposes of their convenience?
Lord Filkin: The context of these amendments and of this clause is essentially the issue that I believe that the Committee recognises; namely, that illegal entry, or the facilitation of it, is an international crime. Certain individuals and organisations conspire to extract money from people who wish to move to other countries and to cross large distances covertly in order to do so. Those people seek through a variety of means to facilitate the entry of others into countries either to undertake work there illegally or to make a claim for asylum or other benefits when they get there.
European Union countries have considered this issue—which most member states see as a significant problem which can at times impede the proper response to genuine asylum claims—and have
recognised that none of us acting by ourselves can effectively address the problem. We have had many discussions and questions on that issue. We recognise that what Italy or Greece does can easily affect us in this country and, perhaps to a lesser extent, vice versa. Therefore, it is recognised as being in the interests of most member states that there is increased co-operation not simply with regard to potential resettlement programmes but also with regard to how we work together to try to control illegal trafficking and illegal entry. For that reason member states have agreed through Article 27 of the Schengen agreement—which is one of the articles that the United Kingdom signed up to—that we need to work together and, as part of that, to recognise the importance of supporting one another's legislation that attempts to control this serious scope of criminality. The United Kingdom has done so and the House has already approved and paved the way by agreeing to Article 27 of Schengen, which is the relevant power or issue that the clause in part addresses.The extension of the present offence of facilitation to cover facilitation of an offence against the laws of entry and residence of any member state will allow the UK to meet its obligations under Article 27—a measure that the House has approved—to the benefit of United Kingdom citizens.
The noble Lord, Lord Thomas, said that the measure is extremely novel and almost unique. It is certainly unusual but is required to comply with Schengen and is certainly not without precedent. Section 71 of the Criminal Justice Act 1993 makes it an offence to breach the taxation laws of other member states. That is another example of where it is in our interests to have the support of other nations for breaches of our laws and in return, to support those nations' efforts to prosecute or prevent breaches of their laws.
The noble Baroness, Lady Anelay, is right that courts in the United Kingdom cannot be expected to be intimately familiar with the immigration laws of all other member states, which is why new subsection (3) provides for the government of the member state to certify a matter of the law and for the certificate to be conclusive in proceedings before courts in the United Kingdom. In practice, a certificate would be issued stating the law, then the United Kingdom courts would seek to inspect, to try to establish whether there was a significant breach of law on the evidence and that a penalty should be levied.
It is unnecessary to specify that the United Kingdom will not be issuing certificates to be used in UK court proceedings because that is already implicit in the provision. There are two reasons. First, it is inherently a matter for our courts to determine the law in the UK. Although Parliament has the power to restrict their power, it would require clear wording to do so. Secondly, the language would be inappropriate if it were intended to include a certificate issued by the UK Government. If the UK were included in the subsection, the usual wording would have been in
terms of the Crown or the Secretary of State. We do not believe that the power could be misused in the way anticipated by the amendment and it is unnecessary.
It is essentially in the interests of this country and its citizens that there is much better international co-operation to prevent immigration crime, so the amendments are not desirable.
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