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Lord Goodhart: In reply to my point on Clause 84(2) the Minister said that, effectively, if there were a new point it could be brought. There is nothing here that repeats the reference in Section 73 of the 1999 Act to reasonable grounds for not raising a matter earlier. Does he suggest that it is implicit, for example, in Clause 84(2)(b)? If not, how does he reach the conclusion that, if there were reasonable grounds for not raising a matter on the first occasion, it could be raised at the later date under Clause 84(2)?
Lord Falconer of Thoroton: Clause 84(2) refers to,
Those who make a late claim will not all be certifiedonly those who seek to delay a removal when there is no legitimate purpose to the claim. Those whoill-advised, well-advised or not advised at allcould not have raised a legitimate claim earlier when required will not be so certified. Those who can convince us that their representative was negligent or did wrong by them may well have a legitimate purpose in making the subsequent claim. So if there is a perfectly reasonable ground why they did not raise it before, that will be highly significant in determining whether or not the Secretary of State could certify.
I have gone at some length into the justification for Clause 84. As noble Lords have seen, it is an important and significant clause. It is founded on the 1999 Act
and seeks to strike a reasonable and sensible balance between allowing asylum seekers the opportunity to put their point of view fully and fairly and ensuring that the system is not exploited to create delay. I hope that noble Lords will bear those remarks in mind in considering what to do about their amendments.
Baroness Anelay of St Johns: I thank the noble and learned Lord for that response. I thank Members of the Committee who, with the exception of the Minister, have supported my Amendments Nos. 200 to 205. I appreciate that the noble Lord, Lord Goodhart, and I have a different approach to the principle behind the clause. I certainly respect his stance, but he will appreciate that I cannot support him on that. We support the Government's principle underlying it. Our difficulty is with the practicein the way that the clause is to be implemented.
I am grateful to the noble and learned Lord for taking the time and care that he has today. Perhaps I may start with the last amendment. He has completely satisfied me on Amendment No. 205.
He has substantially satisfied me on Amendments Nos. 202 to 204. Throughout we have said that we were worried about the principle of ensuring that someone avoids ever having a judicial hearing on these matters. The Minister has addressed himself to the practical issues that would ensue from the amendment that we seek to make. I listened carefully to what he said. I shall read it very carefully over the Summer Recess. I shall not pursue matters now. It may well be that he has satisfied me, but I need to look carefully at the principle so clearly enunciated by the noble Lord, Lord Clinton-Davis; that is, that executive officers are not a substitute for judicial decisions. Since I start from that as a matter of principle, I must consider carefully whether I need to pursue the matter on Report. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 201 to 203 not moved.]
Lord Filkin moved Amendments Nos. 203A and 203B:
On Question, amendments agreed to.
[Amendment No. 204 not moved.]
Lord Filkin moved Amendment No. 204A:
On Question, amendment agreed to.
[Amendment No. 205 not moved.]
Clause 84, as amended, agreed to.
Clause 85 [National security, &c.]:
Lord Avebury moved Amendment No. 205A:
The noble Lord said: The wording of subsection (2) of Clause 85, taken together with Clause 86, is a variation on Section 62(4) of the 1999 Act. Section 61 of the Immigration and Asylum Act 1999 states that a person may appeal against a decision to vary, or to refuse to vary, any leave to enter or remain in the United Kingdom when, as a result of that decision, he may be required to leave the UK. But that right could be annulled if the Secretary of State certified that the person's departure from the UK would be
Section 64(1) of the 1999 Act prevents appeals against a decision to make a deportation order if the ground of the deportation order is that deportation is conducive to the public good as being in the interests of those matters that I have already mentioned.
The main difference between this clause and the section in the 1999 Act is that the range of immigration decisions listed in Clause 70(1) of the Bill is far wider, including, in particular, the revocation of indefinite leave to remain. The requirement that the person's departure or deportation from the United Kingdom must be "conducive to the public good" has been moved into its own separate clauseClause 86. With the enhanced powers that the Secretary of State is given under the clause he could theoretically get rid of someone when there is no public good involved in so doing. That means that we will be subject to pressures from dictators in places such as Saudi Arabia, Turkey, Iran or even democracies such as India, to kick out their dissidents. We would have less of an argument not to comply with their wishes if the public good condition is removed to the later clauseClause 86.
Perhaps I may give an example. A few years ago a friend of mine, Sheikh Ali Salman, fled to this country from Bahrain. A senior Minister came from Bahrain in order to bring pressure to bear on the Foreign Office to try to get us to refuse him admission to this country, to grant him asylum or indefinite leave to remain. Probably there are many other cases that exist, of which we have no knowledge because, in the nature of things, they do not come into the public domain. The clause issues an open invitation to autocracies to expel their troublemakers, even if they have already been given indefinite leave to remain.
Looking ahead to the provisions of Clause 86, the Secretary of State has an additional and separate power in relation to appeals against a decision under Clause 70(2)(a) or (b) to refuse leave to enter or to refuse an entry certificate where the refusal is wholly or partly on the ground that the person's removal or exclusion is conducive to the public good. Whether or not a certificate is issued under Clauses 85 or 86, if the person has an appeal pending, it automatically lapses. This is alsoand I should like an explanation from the Minister on ita tightening of the screw beyond the 1999 Act. The power of the Secretary of State to issue a certificate under Sections 62 and 64 of the Act stopped a person from appealing in the future, but it did not halt appeals that were in progress as the provisions in the Bill seek.
Can the Minister tell the Committee how many certificates have been issued since 2nd October 2000 under Clauses 62 and 64? In each case how many have rested on,
I am not saying that the present government would try to use those powers in ways that we on these Benches would disapprove, but I would suggest to your Lordships that it is extraordinarily dangerous to give these sweeping powers to any government without a better idea of how they are to be used and with no limit on the catch-all phrases that are used in the Bill. I suggest that it would be an abrogation of Parliament's responsibility to leave these matters entirely to SIAC, knowing that whether they keep Ministers on a strict rein or give them a wide margin of appreciationas the European Court of Human Rights would do in matters of securityParliament and the public will never know. I hope that the Government will take these paragraphs away, think about them over the Summer Recess, and come back with a more tightly drafted form of words. I beg to move.
Earl Russell: The amendment bears an uncanny resemblance to an issue that came before the House in May 1628. The House was debating the question of imprisonment without cause shown. The King asked the House to write into law a provision that he could imprison without cause shown where it was for the common good.
The House understood that there were certain occasions when national security required imprisonment before due process had been gone through. Guy Fawkes may serve for a classic example. What it was not prepared to do was to write into law that the King could have those powers in law. Everyone knows that decisions taken for reasons of a political kind are like sin: they will always be with us. A prohibition of sin will never be finally effective. But a legal permission of sin is an altogether different matter.
The amendment reminds me of King Henry VIII's attempt to reword the 10th commandment to read, "Thou shall not covet another man's wife without due recompense". Archbishop Cranmer told him that he could not do that.
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