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Lord Avebury: My Lords, when the Minister replies, perhaps he could deal with the specific case of people who are detained under the mental health Acts. As I am sure the noble Lord is aware, the UNHCR has made representations on the matter and expressed concern about the wording of subsection (9)(b)(ii) of this clause, which includes a reference to,

I am sure that the representations of the UNHCR must be well known to the Government, but it has said that the broad nature of this provision would cover individuals who are detained under the Mental Health Act 1983, and who have neither been convicted of a particularly serious crime nor even, perhaps, been tried in relation to a charge of such a crime.

In addition, and more disturbingly, the UNHCR says that the provision would apply to individuals who are placed in such institutions because of the potential harm that they may inflict on themselves, and who do not pose—or never have posed—any risk to society. In particular, the UNHCR draws attention to the fact that this may include persons who are survivors of torture and sufferers from trauma arising from that experience and the mental illness that follows from the injuries that they received.

I hope that the Government have taken on board the concerns that have been expressed by the UNHCR, because they do not seem to be met by the wording of the clause as it stands.

7.45 p.m.

Lord Goodhart: My Lords, we on these Benches support the Conservative amendment. We preferred the amendment that we moved on Report to the one moved by the Conservatives, but we thought that their

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amendment was an improvement on what was previously in the Bill. Therefore, we supported them in the Division Lobby when their amendment was won.

We accept the point made by the noble Lord, Lord Kingsland, that there are offences which could be regarded as serious crimes that attract a maximum sentence of less than 10 years. It would have been preferable if the noble Lord's amendment had required the affirmative resolution procedure rather than the negative resolution procedure for specifying offences, because it is important for Parliament to have a proper opportunity to debate the offences before they are added to the list by an order of the Secretary of State. However, it is perhaps our fault for not having tabled an amendment to that effect. In those circumstances, there is nothing that we can do about the situation. With, as will have been obvious, a certain lack of enthusiasm, we shall support this amendment.

Lord Hylton: My Lords, I support what the noble Lord, Lord Avebury, said about mental health and detention in hospitals. I raised the point during the previous stage of the Bill, but I do not believe I received a full reply on that occasion. While I am on my feet, I should like to draw attention to another anomaly in the clause; namely, that subsection (2) refers to "ten years", whereas subsection (9) makes mention of "two years". Perhaps that is something that should also be rectified.

Lord Filkin: My Lords, in seeking to define the term "particularly serious crime" in Article 33(2) of the refugee convention, the Government have always held the view that the definition should cover any offence for which a sentence of at least two years' imprisonment has been imposed. A person whose offence falls within the definition is presumed to constitute a danger to the community. As the House knows, we decided on that yardstick to make clear the high standards of conduct expected from refugees who have the privilege of residence in this country.

As noble Lords know, the House did not agree with the Government on Report and voted to insert the new Clause 70, by way of the opposition amendment. However, our stance on the matter has not changed. We do not believe that defining a "particularly serious crime" in terms of an offence with a potential maximum sentence of 10 years, or more, is preferable.

Amendments Nos. 66 and 67 would retain the 10-year criteria. But we believe that an actual sentence criteria gives a fair and more accurate reflection of the seriousness of the offence, because, among other factors, it will take into account the individual circumstances. The noble Lord, Lord Kingsland, has previously been critical of this approach and has observed that the presumption relates to the punishment imposed and not to the crime committed. The amendment that found favour on Report was

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intended to rectify this apparent deficiency in our approach. I respect the noble Lord's views, but I am afraid that we have still not changed our position.

Lord Kingsland: My Lords, I am grateful to the noble Lord for his reply, which I find both illogical and illegal. In those circumstances, I should like to take the opinion of the House.

Lord Filkin: My Lords, before doing so, perhaps I may complete my response.

Lord Kingsland: My Lords, I beg the Minister's pardon. I assumed that he had already finished. Having told me that he did not accept my amendment, it seemed reasonable to think that that was the end of play.

Lord Filkin: Would it were always so, my Lords; but, unfortunately, that is not the case.

In our view, the best measure of the severity of a crime is not the sentence that could have been imposed but the sentence that was actually imposed. One needs only to think of a range of cases that arise, for example, in manslaughter convictions. A maximum sentence of life is imposable, and, in the more serious cases of manslaughter, is imposed. However, on other occasions the circumstances of a case are such that the sentence imposed will be much less and, sometimes, may not even be custodial.

Where a short sentence has been imposed for a type of crime that could have received a much higher sentence, we would argue that that reflects the fact that the crime was not a particularly serious one in relative terms. Our approach—

Lord Goodhart: My Lords, in those circumstances, would it not follow that it might be relatively easy to rebut the presumption that the person who had been convicted of the offence was not a danger to the public?

Lord Filkin: My Lords, it might or might not, and, therefore, the person would exercise their right of remedy, and it would be heard in the courts. One cannot automatically assume that that would be the case.

Earl Russell: My Lords, does the Minister accept that it is a disadvantage of any approach based on years that the more severe and arbitrary the country concerned, the more people will be excluded from the protection of the convention? I hope that that was not the Government's intention.

Lord Filkin: My Lords, as so often with the noble Earl, one needs time to reflect on exactly what trap one is being invited to jump into. On this occasion, I will again take advantage of such a period of reflection.

I was discussing manslaughter and using it as an illustration of the wide variability that could occur and to show why we believe in a simpler and more practical approach. When deciding to adopt the two-year actual

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sentence criterion, we also had regard to the different criminal justice system in Scotland. There, there is a wider range of common law offences for which, if a trial is on indictment, there is no maximum sentence. Thus, if potential sentence were used as the measure, a maximum penalty of x years criterion could be satisfied in Scotland in cases in which it would not be satisfied elsewhere in the UK. That would not be a desirable outcome. Members will recollect the arguments from Report.

The idea behind Amendment No. 68 is, presumably, to enable the Government to specify certain offences that had maximum sentences lower than 10 years or more but would still be generally regarded as particularly serious. Offences that could be specified might include, for example, theft, child abduction and placing articles to cause a bomb hoax. Those offences have a seven-year maximum sentence. Also suitable for inclusion would be certain offences at the five-year maximum level—for example, assault, causing actual bodily harm, violent disorder and the supply, production or importation of class C drugs.

I am grateful to noble Lords for being willing to take account of the Government's views expressed in earlier debates. That is how we saw the response by the noble Lord, Lord Kingsland. However, even though a list system of the kind proposed could ensure that a wider range of serious offences was brought within the scope of Article 33(2), the major difficulty is the lack of reference to actual sentences. When considering whether Article 33(2) should apply to a particular refugee, the Home Office should use a measure that is relevant to the nature and circumstances of the offence. The individual and particular facts of each case must be examined, which is the approach that we take when considering an asylum application for the first time. As I said, the actual sentence is the best measure of the severity of the crime.

Through Amendment No. 69, the noble Lord wishes to leave out subsection (9)(b). With its reference to two years' imprisonment, the subsection makes no sense, following the change made to Clause 70 on Report. Alternatively or additionally, the noble Lord may wish to omit the subsection because it provides for the inclusion within Article 33(2) of people detained in an institution under the mental health powers. Whatever the reason, we believe that it would be wrong to omit subsection (9)(b) and put nothing in its place.

The purpose of the subsection is to ensure that the different types of order to which we wish Article 33(2) to apply are covered by the clause. Thus, for example, young offenders under 21 are generally not subject to imprisonment; instead, they are detained. Mandatory life sentences and indeterminate periods of detention in young offender institutions must be provided for. Those technical points—and others—are included in subsection (9)(b). If the subsection is left out, it will not be possible to apply Article 33(2) effectively, and we will encounter problems in the law.

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I turn to the point made by the noble Lord, Lord Avebury. I appreciate the reservations about including within Article 33(2) people who are convicted of an offence and who, in view of their mental disorder, are made subject to a hospital order under Section 37 of the Mental Health Act 1983. As I said, the Government are aware that a hospital order can be made by a court after a relatively minor offence, such as shoplifting or taking a motor vehicle without consent. The key issue is not the offence but whether the person needs to be detained for hospital treatment.

I assure the House again that few hospital order cases are likely to arise, in the context of Article 33(2). However, we must provide for the possibility, as people in that category could be a danger to the community on their release from detention. A decision to apply Article 33(2) in a hospital case would not be made without the most thorough examination of personal circumstances, overall state of health and other relevant factors.

We need a provision to deal with the cases of people who are sentenced to detention because of their mental health. Clause 70 does that. It is reasonable to have a presumption that such persons are a danger to the community, but that presumption can be rebutted. The Secretary of State is not required to use Article 33(2) of the refugee convention in all cases. He has a discretion that he can, should and must exercise. He will not act without carefully considering the individual circumstances of the case.

The noble Earl, Lord Russell, said that we would make it more likely that the presumption would apply to those to whom severe and arbitrary punishment had been applied abroad. He asked whether that was the Government's intention. The presumption can be rebutted by producing evidence of the arbitrariness of the penalty imposed abroad. On Report, we gave examples of places where it was so out of kilter with what we would think to have been serious. An offence of which someone is convicted arbitrarily may not carry a punishment of two years or more in the UK. Clause 70(3) refers. It would depend on the facts and circumstances of the case.

For those reasons, we have not, despite the eloquence of the noble Lord, Lord Kingsland, been persuaded.

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