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Baroness Anelay of St Johns: My Lords, I am grateful to the Minister for his explanation. He has gone into somewhat more helpful detail than perhaps he was able to do in Committee when I moved this amendment.

I was particularly interested in the point that he made concerning a person who would have to travel a short distance but who would not need to incur travelling expenses. If such a person could have walked but took a taxi, that would obviously be an abuse of claiming travel expenses. That was not quite the way that the Minister expressed the matter in Committee when I envisaged him thinking that people would

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claim for shoe leather. That was what drove me to think that the answer from the Minister was less than satisfactory.

I am also grateful to him for addressing the issue of those who are destitute. Such people are, after all, being forced to report; they do not have a choice in the matter. I believe that the noble Lord has addressed my concerns in his response.

On Question, Motion agreed to.

10.45 p.m.

LORDS AMENDMENT

104Clause 61, page 34, line 3, leave out from "is" to end of line 5 and insert "convicted in the United Kingdom of an offence, and either—
(a) the offence is one for which the maximum period of imprisonment is ten years or more, or
(b) the offence has been specified for the purpose of this subsection under subsection (3A)." The Commons disagreed to Lords Amendment No. 104 but proposed Amendments Nos. 104A to 104E in lieu thereof—


104APage 34, line 13, at end insert— 
(a) he is convicted of an offence specified by order of the Secretary of State, or
(b) he is convicted outside the United Kingdom of an offence and the Secretary of State certifies that in his opinion the offence is similar to an offence specified by order under paragraph (a). (3B) An order under subsection (3A)—
(a) must be made by statutory instrument, and
(b) shall be subject to annulment in pursuance of a resolution of either House of Parliament."
104BPage 34, line 14, leave out "or (3)" and insert ", (3) or (3A)"
104CPage 34, line 16, leave out "or (3)" and insert ", (3) or (3A)"
104DPage 34, line 31, leave out "or (3)" and insert ", (3) or (3A)"
104EPage 34, line 35, leave out "or (3)" and insert ", (3) or (3A)"

Lord Filkin: My Lords, I beg to move that the House do not insist on their Amendment No. 104 to which the Commons have disagreed and do agree with the Commons in their Amendments Nos. 104A to 104E in lieu thereof.

The other place have disagreed to Lords Amendments Nos. 104 to 106 and they have also disagreed with Lords Amendment No. 109 and restored Amendments Nos. 109A to 109D.

In putting forward Amendments Nos. 104A to 104E the other place have listened carefully to the thoughtful and helpful contributions that your Lordships, in particular the noble Lord, Lord Kingsland, have made to the debate on how to define who is a particularly serious criminal.

The effect of the amendments made yesterday is as follows. We now have a clause which contains a two part definition of who is presumed to be a danger to the community. Both parts of the definition allow the person to whom it is supplied to rebut it on appeal. One part reflects the clause as it was originally drafted, so that a serious criminal, presumed to be a danger to

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the community, will be anyone who has been convicted of an offence and sentenced to a period of imprisonment of two years or more. As I have explained before, we believe that the actual sentence imposed is the best general measure of seriousness because it takes full account of the individual nature of the offence and the circumstances of the offender. We have had that discussion several times and I shall not develop that further.

However, the other part of the definition draws upon an idea put forward by the noble Lord, Lord Kingsland, which many of your Lordships have favoured. Its value was acknowledged yesterday by my honourable friend the Home Secretary. That is that the Secretary of State should be in a position to specify in an order offences which, whatever the length of sentence imposed, by their very nature connote such a degree of seriousness that conviction of one of them would be appropriate to create a presumption that the offender is a danger to the community. For such serious crimes one would of course expect a sentence of well in excess of two years to be imposed but I accept the point that we should cater for those rare situations where a shorter sentence is imposed.

To achieve that we have therefore inserted into the clause an order-making power which the noble Lord, Lord Kingsland, suggested. We will of course work closely with the Scottish Executive before making an order to ensure when listing any offences that there is equivalent treatment both sides of the Border. As your Lordships will know the criminal law in Scotland differs from that in England and Wales, having a wider range of offences covered by common law. It will be possible under this order-making power to cater for these differences.

On the amendments tabled by the noble Lord, Lord Dholakia, the Government believe that Clause 61 as amended last night is the right way to proceed. We think that it is right to set a tough criterion of seriousness. It should be remembered that, whatever the nature of the crime, no refugee is at risk of removal if on appeal to the independent authorities he rebuts the presumption that he is a danger to the community.

The noble Lord, Lord Dholakia, has put forward a number of proposed amendments as alternatives to Amendments Nos. 104A to 104E. Their effect would be to define a particularly serious crime so narrowly as to make the possible application of the clause very rare indeed. I do not believe that the public would understand why, for example, a sentence of nine years for rape or a maximum sentence of seven years for child abduction would not be regarded as a particularly serious crime. Yet that appears to be the position that would be the consequence of the noble Lord's amendments.

The amendments would also alter the clause from being a firm definition of how Article 33(2) of the Refugee Convention is to be applied to being merely a guide to construction. That would lose the elements of certainty and clarity that we want to achieve in this clause, so that is another reason why we could not accept the amendments.

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The noble Lord has also put down an amendment to reinstate Amendment No. 109, which deleted the definitional provision in subsection (9)(b). I think that subsection is necessary. In order that Article 33(2) can be applied effectively in the light of Clause 61, the clause must refer to the different types of offender who may fall within its scope and provide for the different types of disposal by the courts and for the different types of institution where offenders may be detained.

The wording of subsection (9)(b) also links with the Government's two years or more actual sentence criterion. It is essential that it is retained. Otherwise the application of Article 33(2) would lead to problems in the courts.

We have understood the reservations which certain of your Lordships have about the possibility of Article 33(2) being applied to people who are convicted of an offence and who, in view of their mental disorder, are made subject to a hospital order. Very few hospital order cases are likely to arise in the context of Article 33(2). I accept that it is possible that there will be a case where a person needing to be detained for hospital treatment has been convicted of a minor offence—for example shoplifting—which would not usually involve a two year sentence and/or a case where the danger that the person poses is more to themselves than to the community.

However, we have to provide in this clause for hospital order cases because people in this category could be a danger to the community on release from detention. We must ensure that an exceptional and compelling case for removal is not jeopardised by the fact that a hospital order has been imposed rather than imprisonment.

It has always been our position that we would take real care when seeking to rely on this presumption in such circumstances. I would reiterate that a decision to apply Article 33(2) in a hospital order case would not be made without the most thorough examination of the person's personal circumstances, overall state of health and other relevant factors. The Secretary of State has a discretion whether or not to issue a certificate under this clause and he would not do so if he did not consider that Article 33(2) was applicable. If we decided to apply Article 33(2) in a case of this kind, it would of course be a decision which could be challenged on appeal, as with any certificate issued under these clauses. For those reasons I beg to support the amendment as made and to suggest that the amendments of the noble Lord, Lord Dholakia, are not appropriate.

Moved, that the House do not insist on their Amendment No. 104 to which the Commons have disagreed and do agree with the Commons in their Amendments Nos. 104A to 104E in lieu thereof.—(Lord Filkin.)

Lord Goodhart rose to move, as an amendment to the Motion that the House do not insist on their Amendment No. 104 to which the Commons have disagreed, and do agree with the Commons in their Amendments Nos. 104A to 104E in lieu thereof, leave

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out from "and do agree with the Commons in their Amendments Nos. 104A to 104E in lieu thereof" and insert ", do disagree with the Commons in their Amendments Nos. 104A to 104E in lieu thereof and do propose the following amendments in lieu of the Commons amendments—


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