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Lord Filkin: My Lords, perhaps I may reflect on that and return it to later. The noble Earl, Lord Russell, talked about different offences being seen differently over time. He is right. I do not believe that any government can do anything about that. Governments and society operate with the values, judgments and priorities that are in force at the present time. I simply mark the point that I made previously; that is, having already proven criminality, one can avoid that by showing that a person is not a danger to the community. Again, that is a further defence of the type that we have just discussed. If a person who had been convicted could demonstrate that he was not a danger to the community, he would be at no risk of deportation in that respect.
Lord Lawson of Blaby: My Lords, a moment ago, the noble Lord kindly said that he would reflect further on the important point made by the noble Lord, Lord Lester. However, when he reflects on it, will he also reflect that it is not simply a matter of the nature of the offence; it is also a matter of the nature of the conviction. In some countries, the rule of law as we know it does not run. A conviction may be totally outrageous and, perhaps for the reasons given by the
Lord Filkin: My Lords, I take the point and I shall respond to it immediately. In the circumstances advanced by the noble Lord, I should have thought that an individual, or his advocate, would have a relatively easy case to make before the adjudicator. It would be that although his behaviour may have incurred a sentence in a foreign court, by no British values or standards of behaviour could the person possibly be seen as a threat to the community, so he would not be at risk.
I will speak further about the foreign issue because it is complicated. It is worth emphasising that Clause 64 will apply to overseas crimes only in rare circumstances. The only way it could happen is where the person is first recognised as a refugee in the United Kingdom, leaves the UK and commits a crime abroadthat is unlikely to be the case in Iraq since the person has a fear of persecution thereand returns to the United Kingdom. The further protections and tests that are advanced would also apply. Clearly, the offence would have to be recognised in Britain and the person would have to be seen as a danger to the community in Britainnot as seen abroad.
Lord Lester of Herne Hill: My Lords, I am grateful to the Minister but let us suppose that the noble Lord, Lord Joffe, had come to this country as a refugee from South Africa during the apartheid years, then returned to South Africaperhaps in a clandestine waystill during apartheid. I hope that noble Lord does not mind my using him as a hypothetical example. Say he threw a brick through Dr. Verwoerd's window to make a political protest and was sentenced to two years' imprisonment for maliciously damaging property with political intent.
On his return to this country, why should the noble Lord have an irrebuttable presumption against him that he was guilty of a serious crime in apartheid South Africa, then have to discharge the burden of showing that he is not a danger to the community as a result of his conduct? Why should the noble Lord have to go through all that? How can that possibly be compatible with our obligations under the refugee convention?
Lord Filkin: My Lords, on the wing, in the hypothetical circumstances of the noble Lord, Lord Joffewhom we are delighted to welcome to the United Kingdom, brick throwing or nothe would not receive a two-year custodial sentence in the United Kingdom for throwing a brick. He might well be fined. Therefore, he would not be at risk.
I should like to reflect further on the point of whether the Secretary of State has a power of discretion in such circumstances, as to whether or not to press the point. I will return to that matter later.
As to the noble Lord's points about the UK's obligations under the ECHR, it is correct that the current wording in subsections (7) and (8) has an impact on ECHR appeals but that is a mistake, caused by an amendment to the appeals provisions. In the next group of amendments, we are correcting the wording of those subsections, so that the actual references are to the refugee convention only, not to the ECHR. The UK will of course continue to take full account of ECHR issues in cases where Clause 64 appliesas will the courts. It has been a good afternoon for complexities of that sort.
On the reverse burden of proof, other countriessuch as the United States and Germanyhave introduced subsequent provisions. Nothing in the convention prohibits the introduction of this provision. Clearly it is crucial that there is an independent appeal to the adjudicator, who can make a judgment as to whether or not it is a rebuttable presumption.
On the points raised by the noble Lord, Lord Hylton, we have not discussed the issue with the UNHCR but would be perfectly happy to do so. On mental health cases, we have to provide in Clause 64 if a refugee convicted of an offence is to be detained under the Mental Health Act. We expect few cases of that kind but such people could be a danger to the community when released. The Home Office would take great care in deciding whether or not to apply Article 33.2 in a mental health case. That clearly implies the answer to my previous reflectionthat there is discretion by the Home Secretary in the application of this as well, which, it is to be hoped, would free the noble Lord, Lord Joffe, from the burden of having to rebut any assumption about his behaviour in South Africa.
I recognise that the issues are complex. I hope that I have, at least in part, put the mind of the House to rest. There are good reasons for this provision. It will be used appropriately. The Home Secretary will exercise a discretionand there are protections through a person's right of appeal to the adjudicator.
Lord Kingsland: My Lords, the Minister has been typically careful and full in his replyand as courteous as he always is. However, his statement that the Government are not seeking to rewrite the convention cannot be sustained in light of all the interventions made in your Lordships' House. It is clear that the presumption in the clause arises in relation to the punishment imposed, not the crime committed. That is a blatant contravention and for that reason, I should like to test the opinion of the House.
Resolved in the affirmative, and amendment agreed to accordingly.
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