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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
noble Earl, Russell, it will be very difficult, if not impossible, to find the rebuttal evidence which is required.
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 abroad—that is unlikely to be the case in Iraq since the person has a fear of persecution there—and 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 Britain—not 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 Africa—perhaps in a clandestine way—still 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 Joffe—whom we are delighted to welcome to the United Kingdom, brick throwing or not—he 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 applies—as will the courts. It has been a good afternoon for complexities of that sort.
On the reverse burden of proof, other countries—such as the United States and Germany—have 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.
We are not rewriting the convention. It is open to states to decide within reasonable limits what amounts to particularly serious crime—as has been done.
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 reflection—that 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 discretion—and 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 reply—and 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.
On Question, Whether the said amendment (No. 51) shall be agreed to?
Their Lordships divided: Contents, 77; Not-Contents, 71.
Addington, L.
Alderdice, L.
Alton of Liverpool, L.
Anelay of St Johns, B.
Attlee, E.
Avebury, L.
Barker, B.
Blatch, B.
Bridgeman, V.
Brooke of Sutton Mandeville, L.
Brougham and Vaux, L.
Buscombe, B.
Carlisle of Bucklow, L.
Carnegy of Lour, B.
Cope of Berkeley, L. [Teller]
Darcy de Knayth, B.
Dholakia, L.
Elton, L.
Falkland, V.
Ferrers, E.
Fookes, B.
Freeman, L.
Freyberg, L.
Geddes, L.
Goodhart, L.
Gray of Contin, L.
Greaves, L.
Hamwee, B.
Howe of Aberavon, L.
Howe of Idlicote, B.
Hylton, L.
Jacobs, L.
Joffe, L.
Kingsland, L.
Lawson of Blaby, L.
Lester of Herne Hill, L.
Luke, L.
Lyell, L.
Mackie of Benshie, L.
Maclennan of Rogart, L.
McNally, L.
Maddock, B.
Mancroft, L.
Mar and Kellie, E.
Mayhew of Twysden, L.
Newby, L.
Nicholson of Winterbourne, B.
Northesk, E.
Northover, B.
O'Neill of Bengarve, B.
Oakeshott of Seagrove Bay, L.
Park of Monmouth, B.
Phillips of Sudbury, L.
Razzall, L.
Redesdale, L.
Renfrew of Kaimsthorn, L.
Renton, L.
Rodgers of Quarry Bank, L.
Rogan, L.
Roper, L.
Russell, E. [Teller]
St. John of Bletso, L.
St John of Fawsley, L.
Scott of Needham Market, B.
Seccombe, B.
Shutt of Greetland, L.
Skelmersdale, L.
Smith of Clifton, L.
Taverne, L.
Tebbit, L.
Thomas of Gwydir, L.
Thomson of Monifieth, L.
Trumpington, B.
Waddington, L.
Wallace of Saltaire, L.
Watson of Richmond, L.
Williams of Crosby, B.
Acton, L.
Amos, B.
Andrews, B.
Archer of Sandwell, L.
Bassam of Brighton, L.
Berkeley, L.
Bernstein of Craigweil, L.
Blackstone, B.
Borrie, L.
Brookman, L.
Burlison, L.
Carter, L.
Clarke of Hampstead, L.
Clinton-Davis, L.
Cohen of Pimlico, B.
Corbett of Castle Vale, L.
Crawley, B.
Davies of Coity, L.
Davies of Oldham, L.
Dormand of Easington, L.
Dubs, L.
Elder, L.
Evans of Parkside, L.
Evans of Temple Guiting, L.
Falconer of Thoroton, L.
Farrington of Ribbleton, B.
Faulkner of Worcester, L.
Filkin, L.
Gale, B.
Gibson of Market Rasen, B.
Gould of Potternewton, B.
Graham of Edmonton, L.
Grenfell, L.
Grocott, L. [Teller]
Harris of Haringey, L.
Harrison, L.
Haskel, L.
Hayman, B.
Hilton of Eggardon, B.
Hollis of Heigham, B.
Howells of St. Davids, B.
Hoyle, L.
Hughes of Woodside, L.
Hunt of Kings Heath, L.
Janner of Braunstone, L.
Judd, L.
Kilclooney, L.
Kirkhill, L.
Lea of Crondall, L.
McIntosh of Haringey, L. [Teller]
MacKenzie of Culkein, L.
Massey of Darwen, B.
Milner of Leeds, L.
Morgan, L.
Morris of Aberavon, L.
Morris of Manchester, L.
Pendry, L.
Prys-Davies, L.
Ramsay of Cartvale, B.
Rendell of Babergh, B.
Rooker, L.
Sawyer, L.
Scotland of Asthal, B.
Simon, V.
Stone of Blackheath, L.
Thornton, B.
Tomlinson, L.
Walker of Doncaster, L.
Whitty, L.
Williams of Mostyn, L. (Lord Privy Seal)
Woolmer of Leeds, L.
Resolved in the affirmative, and amendment agreed to accordingly.
7.56 p.m.
Lord Kingsland moved Amendment No. 52:
- Page 36, line 36, leave out paragraphs (b) and (c) and insert—
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