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Lord Goodhart: My Lords, Amendment No. 53 in the names of my noble friends Lord Dholakia and Lord Avebury has been grouped with the two amendments just spoken to by the noble Lord, Lord Kingsland. However, Amendment No. 53 goes a good deal further in proposing the removal of the whole of Clause 64.

The relevant article of the Geneva Convention on asylum seekers states:

    2. The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country".

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It is plain on the face of that article that the question of whether any particular crime that has been committed is particularly serious and whether the criminal constitutes a danger to the community must, under Article 33(2), be decided on a case by case basis. Article 33 is, of course, binding on the United Kingdom as a matter of treaty law. Indeed, the United Kingdom law goes further than that in providing that an asylum seeker cannot be removed in breach of the United Kingdom's treaty obligations.

Clause 64 applies a new meaning to Article 33(2). In other words, it applies a new and wider right of what is known as refoulement—a right of return. It therefore rewrites the Geneva Convention. That is plainly a breach of the treaty obligations of the United Kingdom. Clause 64 provides that a sentence of two years or more creates an irrebuttable presumption that the crime is a particularly serious crime and a rebuttable presumption that the perpetrator constitutes a danger to the community. The presumption that any crime resulting in a two-year sentence is particularly serious is, in my view, inappropriate whether that presumption is rebuttable or irrebuttable. Many sentences of two years are based not on the particular seriousness of the crime involved but on the previous record of the accused. The crime may in itself be quite a trivial one committed by someone with a long record.

I believe that no presumption is justified, let alone an irrebuttable one. As a matter of common sense, a long sentence of, say, seven years or more may well be evidence that the offence is serious. One does not need a legal presumption to enable one to adduce that. As for the danger posed to the community by the criminal concerned, why do we need a presumption? Some crimes, of course, speak for themselves. Someone who has been convicted of a serious rape, for example, is plainly a danger to the community. That crime speaks for itself and it should be left to do so. Let us take the example of the noble Lord, Lord Archer of Weston-Super-Mare, who has been sentenced to a period of four years. I believe that there should not be even a rebuttable presumption that someone of that kind is a danger to the community. I suggest that the noble Lord clearly is not.

Plainly, the Government are rewriting the Geneva Convention to make it easier to return people to a place where they face prosecution. That is in breach of treaty obligations and international law. The Geneva tests should be applied as they stand. Clause 64 is an unacceptable gloss and I believe that it should be deleted from the Bill.

7.15 p.m.

Earl Russell: My Lords, I am sorry to disappoint the noble Lord, Lord Kingsland, as I shall not comment on the Written Answer of the noble Baroness, Lady Amos, on Commonwealth Prime Ministers because, in the literal truth of those overworked words, "words fail me". A good many of those who subsequently became Commonwealth Prime Ministers were friends of my parents and a good many of them suffered sentences of imprisonment. The test in the UN

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convention is whether these people are a danger to this country. I can say, in some cases from personal memory, that in most of those cases they were not.

My main objection to the use of the test by the number of years is that it is a purely relative test. In our own history, a number of crimes would be regarded as serious in the 17th century, very serious in the 18th century, perhaps not serious in the 19th century, not serious in the early 20th century but becoming serious again in the 1990s. This movable definition of a "serious crime" is rather curious, especially when we apply it to the question of whether refugees are a danger to this country because it is clear under this test that the countries most liable to produce genuine refugees are also the most likely to produce people who fall foul of this test.

I have accepted the recommendation of the noble and learned Lord, Lord Williams of Mostyn, to read the chapter in the dossier on human rights in Iraq. To have received a sentence of two years' imprisonment in Iraq you do not actually need to have committed any crime whatsoever, you merely need Saddam Hussein to think that you might in the future possibly do so—that you are, as they used to put it in the case of Roman Catholics in this country, vehemently suspected. That means that the more dangerous a country is for potential refugees, the more people are liable to be returned there.

The other really serious point about the clause is that it reverses the burden of proof. Under the convention, it is incumbent on the state that wants to refuse a refugee to prove that he is a danger to the community in which he intends to live. One has to prove not that he has been a danger to what may have been the tyrannical regime under which he once lived but that he is a danger to us.

If that is the presumption, the refugee from a genuinely dangerous country will have a good deal of difficulty finding witnesses, collecting evidence and securing the production of documents. If I were an Iraqi refugee, I should not like to have to write to Baghdad and ask my friends to turn up here to testify that I was not likely to be a danger to the British state. If my friends obliged me in that regard, I should probably be passing a death sentence on them, and it would not be my wish to do that.

The more dangerous it is to live in a particular country, the harder it will be to rebut the presumption. In really tyrannical states, it will be impossible, in middling ones it will be difficult and it will be easy only if one comes from a state that is perfectly safe. That is rather like the test of ducking witches. The guilty witch floated and was safe and the innocent witch sank and was drowned. I do not believe that that is the way in which we should administer justice.

Lord Lester of Herne Hill: My Lords, Clause 64 was inserted into the Bill after the Joint Committee on Human Rights had scrutinised the Bill and therefore it is not part of our 17th report. I shall not repeat anything that other noble Lords have already said, all of which I agree with, but I want to make one or two

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additional criticisms, which I believe would exercise the Joint Committee if it were in this country and able to do the scrutiny now. I should be grateful if the Minister would deal with my points tonight or, if we can postpone consideration of this matter as well, at Third Reading.

Apart from the inflexibility of the irrebuttable part of the presumption and apart from the lack of proportionality built into Clause 64—my noble friend Lord Goodhart referred to that—we should consider what the effect of the provision will be in relation to appeal rights. Clause 64(7) states:

    "Subsection (8) applies where . . . a person appeals under",

various provisions of this legislation or the Special Immigration Appeals Commission Act. It also applies where,

    "the Secretary of State issues a certificate that presumptions under subsection (2) or (3) apply to the person (subject to rebuttal)".

The words, "subject to rebuttal" are inaccurate because the presumption of serious crime is not subject to rebuttal. That part of the clause is wrongly drafted.

Perhaps more importantly, Clause 64(8) states:

    "The adjudicator, Tribunal or Commission hearing the appeal—

    (a) must begin substantive deliberation on the appeal by considering the certificate, and

    (b) if in agreement that presumptions . . . apply (having given . . . an opportunity for rebuttal) must dismiss the appeal in so far as it relies on the ground specified in section 75(1)(g)".

We therefore need to find out what "section 75(1)(g)" means. It involves an appeal on the ground,

    "that the removal of the appellant from the United Kingdom in consequence of the immigration decision would breach the United Kingdom's obligations under the Refugee Convention or would be unlawful under section 6 of the Human Rights Act 1998 as being incompatible with the appellant's Convention rights".

In other words, the serious consequence of accepting Clause 64 as it stands is that it will obliterate rights of appeal in relation either to the refugee convention or the European Convention on Human Rights unless the presumptions can be rebutted. That seems to be a draconian consequence of statutory presumptions based on conviction by a foreign court leading to a sentence of imprisonment of only two years. For that additional reason, if the Joint Committee were available to give advice, we should have drawn those implications to the attention of the House.

Lord Hylton: My Lords, I support all the amendments in this group. I want to raise another reason why Clause 64 is objectionable.

Subsection (9) includes the phrase "a hospital". The London office of the UN High Commissioner for Refugees wrote to me about this matter. I cannot put the point better than he does. He said:

    "The broad nature of this provision would cover those individuals detained under the Mental Health Act 1983 and who have been neither convicted of a particularly serious crime nor even been tried in relation to a charge of such a crime. In addition, and more disturbingly, it would apply to individuals who are placed in such institutions because of the potential harm they might inflict on themselves and who do not pose, nor have ever posed, a risk to society. It is quite possible that survivors of torture who are suffering from trauma could fall into such groups".

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I ask the Government whether they have discussed this aspect of the clause with the UNHCR and, if so, with what result; and if they have not, will they please do so without delay?

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