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The Countess of Mar: Before the noble Lord sits down, I am puzzled about how this is going to work. I remind the Committee of my interest as a member of the Immigration Appeal Tribunal. In many cases that come before the tribunal, there are reports of so-called agents bringing people to this country. Those agents never set foot here but dump people at the lorry that will provide their final transport into this country. At airports, agents never enter immigration control but remain in the transit areas, then leave. How will we catch agents for transiting people across different member states or entering member states? Can the noble Lord explain how that will work?
Lord Filkin: That is more a question about police and detection co-operation, rather than about the legislation. Considerable work is going on between member states and with the Commission to examine improving intelligence co-operation, sharing intelligence about immigration crimes and supporting one another in the detection of such crimes. However, I will read the noble Countess's remarks and if I can provide her with further details, I shall be pleased to do so in writing.
Lord Hylton: Intelligence co-operation can always, at any time, be improved. That does not require legislation to achieve.
Lord Filkin: I am in danger of repeating myself. Article 27, which the House has already supported, sees benefit in co-operation between member states in identifying breaches of laws on illegal migration and bringing those responsible to justice. I would have thought that was blatantly obvious, given that, to the best of our knowledge, three quarters of the people who effect illegal entry do so by paying money to international traffickers. This is a multi-million pound business. EU member states must be able to act effectively rather than think that they can do so in isolation.
Lord Thomas of Gresford: Co-operation, yes. Working together, yes. Article 27 of the Schengen agreement, which the House has approved, yes. That does not mean that it is any business or function of the courts of this country to enforce the laws of European countries. The only illustration that the Minister gave in relation to a precedent was Section 71 of the Criminal Justice Act 1993, which I shall study with care before the next stage. I find it surprising, and totally new to me, that it is a criminal offence in this country not to pay tax in France or Germany. If that is the case, I can only assume that not paying tax in this country or any other is not an extraditable offence. It
has been thought as a matter of policy that extradition ought not to extend to the revenue-collecting powers of any other state. Therefore, requests for people to return to another jurisdiction because they have not paid taxes there have never been made.This is an extremely important principle. The Government appear to be trying not only to introduce an entirely new concept but to marry systems of law that differ in all sorts of ways. The way this country defines a crime is not the way that European citizens define it in their countries.
We on these Benches do not go along with some of the sentiments about European matters that are normally expressed from the corner opposite or from the second row of the Conservative Benches. We are all good Europeans on these Benches. But introducing the offence of committing an offence in another state is something that we oppose and to which we will return. For the moment, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments 238ZGE to 238ZGK not moved.]
Baroness Anelay of St Johns moved Amendment No. 238ZGL:
- Page 66, leave out lines 10 to 12.
The noble Baroness said: With the leave of the Committee, I will speak also to Amendment No. 238ZGM.
In the proposed new Section 25 of the 1971 Act, the Government wish to enlarge the existing offence of facilitating breaches of UK immigration law to the facilitation of breaches of immigration law in any EU member state. I was intrigued to hear the noble Lord, Lord Thomas, express the Liberal Democrats' angst over being good Europeans and finding difficulty with this part of the Bill. I look forward to seeing what votes the Liberal Democrats call. We know that they seem to starve themselves of votes at this stage and have to bring everything back on Report, making that an enormously long stage. It is sometimes quite useful to have a vote in Committee; it means that the House can deal with the Bill more briefly on Report.
In another place, concerns were expressed that the offence as drawn would mean that possibly complex provisions of the law of other European countries would fall to be considered by the magistrates' courts by lay Benches without any training in the interpretation of the relevant provisions, which are potentially highly complex in terms of language, legal tradition and interpretation. I am aware that equally complex matters, such as extradition, can already be dealt with only by specialist stipendary magistrates.
Since the Bill left another place, have the Government spoken to the Magistrates' Association with regard to training? Will training be given to lay magistrates in these matters? As an ex-magistrate myself, I am aware that in recent years the training offered to magistrates is of a very high quality and that training is compulsory—a far cry from when I joined
the Bench in 1985. We were the first group of people who faced compulsory training and it was by no means as comprehensive or expert as it is now.Amendment No. 238ZGL would remove subsection (6)(b) of proposed new Section 25 of the 1971 Act. The effect of that would be to make the new offence of assisting unlawful immigration triable only on indictment in the Crown Court. I heard earlier this evening what the Minister said about the Government's approach to retaining summary trial in relation to such matters.
This is a probing amendment, on which I shall starve myself of a vote this evening. It is intended to explore the implications of the Minister's statement in another place. Ms Winterton appeared to suggest at col. 337 that the majority of trials for this offence would in any event not take place in the magistrates' courts. In that case, one could be forgiven for asking, "Why not make the offence indictable only?". That is especially pressing in view of the fact that the Government have decided—we heard this earlier this evening—to treat the offence as one of such seriousness that a new maximum penalty of 14 years will apply.
Amendment No. 238ZGM provides an alternative approach—I am adopting a pick-and-mix approach to offer the Government every opportunity to agree to one of the amendments—whereby trials for this type of offence would be required to take place only before judges and magistrates who had been trained in the application of the laws of other member states. In another place, the Minister told the Committee at col. 334 that she would look at the way in which judges and magistrates were trained in that regard. The right to try complicated matters such as murder and serious sexual offences are already limited to those judges who have been trained and approved for the purpose.
What discussions has the Home Office had with the Lord Chancellor's Department as to the courses which the Judicial Studies Board should run and whether judges would be specially approved to hear those cases?
I hope that the Government will tell the Committee that they have reflected, as they undertook to do in another place, on the way in which the new offence will be tried in the courts and on the way in which training will be given to those who will sit on the relevant Benches. I look forward to hearing the results of that reflection in the Minister's response. I beg to move.
9 p.m.
Lord Thomas of Gresford: I have been chided by the noble Baroness, Lady Anelay, for not seeking a vote on the previous amendment. But, as they say, "The party is over and it is time to call it a day". It may be that those who were here earlier are no longer with us.
On the noble Baroness's amendments, these provisions involve a considerable complication. The issues that can arise in relation to the offences which I have already outlined (that is, relating to breaching the offence of a foreign country and the examination of certificates which have not been approved by the courts of a particular country but which have been issued by a
government) are not suitable for—I say this with respect—the ordinary run-of-the-mill magistrates' court. Such matters require specialist attention, whether in the Crown Court or in specially trained magistrates' courts. Extradition proceedings are normally in this country confined to the Bow Street magistrates' court. One would expect to deal with cases of this nature along those lines. I support the amendments spoken to by the noble Baroness.
Earl Russell: My noble friend has raised another question by implication which is rather interesting. He talked about certificates being issued by governments which have not been before the courts. Those governments, no doubt—like our Government—have policies. The question arises: are such certificates in danger of creating a government who act as judge and party in their own cause?
Lord Filkin: I again fear that I shall not agree to either amendment. I shall seek to explain why. Subsection (6)(a) of new Section 25 provides a maximum penalty of 14 years or an unlimited fine on conviction or indictment for an offence of assisting unlawful immigration to a member state. Subsection (6)(b) provides that the penalty on summary conviction should be a maximum of six months' imprisonment and/or a fine not exceeding the statutory maximum. Those maxima will also apply where a person has been convicted of an offence of helping an asylum seeker to enter the UK under new Section 25A or of assisting entry in breach of a deportation order under new Section 25B. The first amendment would delete paragraph (b), with the result that offences under those three sections would be triable only on indictment.
The Government made it clear in the White Paper that we would seek to increase the maximum penalty for offences of people smuggling to 14 years, and we still believe that that is the appropriate level for the most serious offences of that nature. However, as I said earlier in anticipation of this discussion, not all offences are equally serious and we would not wish to preclude the possibility of summary proceedings in appropriate cases. We believe that it will be efficient to do so.
Amendment No. 238ZGM would require judges and magistrates trying cases under new Section 25 to be trained in immigration law of all member states. We believe that that is over-elaborate and unnecessary. The Government do not expect judges and magistrates to be familiar with the immigration law of all other member states. New Section 25 does not require that of them. It provides for the government of the member state concerned to certify what the law is in that state and for the certificate to be conclusive as to the matters certified for the purposes of proceedings in the UK. I cannot pretend that that is a common arrangement but there is precedent in Section 71 of the Criminal Justice Act 1993. Section 71(1) makes it an offence to assist in or induce conduct outside the UK which involves the commission of a serious offence against
the taxation laws of another member state, as I said earlier. Section 71(5) provides for certificates issued by the governments of other member states to be admitted and used in proceedings for that offence.A certificate would specifically be sought in every prosecution based on the particular facts of that case. So, for example, if someone in the UK was alleged to be running an organisation that smuggled Algerians into France hidden in the bottom of boats, the French Government would be asked what, if any, breach of their immigration laws would be committed by such a person. The French Government would issue a certificate specifying the provision of their law, which would be used in English proceedings. There would be no question of an English magistrate having to become familiar with the substance of French immigration law.
The function of the judge or magistrate will not be to decide whether or not X constitutes a breach of the immigration law of a member state. What first has to be considered is whether X happened—if someone had been convicted of that breach, that would be a fairly simple matter to decide—and, secondly, whether the person before the UK court had done something which facilitated X, which would be a matter of evidence. Consideration also has to be given to whether the accused knew or had reasonable cause to believe that his action would facilitate a breach of immigration law, and whether he knew or had reasonable cause to believe that the person in question was not a citizen of the UK.
For those reasons, we do not believe that there is a requirement for the judge or magistrate to be an expert on whether or not a particular action constitutes a breach of the law of another member state. They would be provided with the information about the laws of the other state on which to assess and judge the case. For that reason, it does not appear to us to be necessary to provide the training suggested.
As was indicated, more serious offences, whether simpler ones applying only to offences created in the United Kingdom or not, would usually be tried on indictment by a higher court. Therefore, one would not expect magistrates to be tested on some of the more complex cases. I cannot say categorically that all offences of the kind to which we are referring would automatically be tried on indictment, but I expect that many would be.
On the question raised by the noble Baroness, Lady Anelay, about summary trial only, this offence will work in the same way as other triable either-way offences. For serious cases, the Crown Court will be the appropriate forum; for less serious cases, the magistrates' court.
The noble Earl, Lord Russell, asked whether the Government will be judge and jury. We do not believe that that will be so. The Government would certify with the state concerned the terms of the law in that state. It will be for the courts to decide whether or not that offence occurred. Moreover, I should have thought that it would be open to the defence in that
situation, if it was thought appropriate, to challenge the fairness of a foreign government's statement as to its law.
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