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104FPage 34, line 1, leave out subsections (2) to (5) and insert— "(2) This section applies as an aid to the construction and application of Article 33(2) (exclusion from protection) of the Convention relating to the Status of Refugees done at Geneva on 28th July 1951 and its Protocol.

(a) he is convicted of an offence specified by order of the Secretary of State and sentenced to a period of imprisonment of at least ten years, or
(b) he is convicted outside the United Kingdom of an offence and sentenced to a period of imprisonment of at least ten years and the Secretary of State certifies that in his opinion the offence is similar in character to an offence specified by order under paragraph (a) and that the person could have been sentenced to a period of at least ten years had his conviction been a conviction in the United Kingdom for that similar offence. (4) A reference to a person who is sentenced to a period of imprisonment of at least two years—

(a) does not include a reference to a person who receives a suspended sentence (unless at least ten years of the sentence are not suspended); and
(b) includes a reference to a person who is sentenced to an indeterminate period of custody (provided that it may last for 10 years). (5) The Secretary of State may by order specify an offence under the law of any part of the United Kingdom for the purposes of subsection (3).

    (5A) An order under subsection (5)—

(a) must be made by statutory instrument; and
(b) may not be made unless a draft has been laid before and approved by a resolution of each House of Parliament. (5B) A presumption under subsection (3) that a person constitutes a danger to the community is rebuttable by that person.

    (5C) A presumption under subsection (3) does not apply while an appeal against conviction or sentence—

(a) is pending, or
(b) could be brought (disregarding the possibility of an appeal out of time with leave)."
104GPage 34, line 31, leave out "(2) or"
104HPage 34, line 35, leave out "(2) or" "

The noble Lord said: My Lords, I shall speak to Amendments Nos. 104F to 104H standing in the name of my noble friend Lord Dholakia. I shall not speak to Amendment No. 109E. That will be spoken to by my noble friend Lord Avebury.

Amendment No. 104 and the associated Amendments Nos. 104A to 104E were totally inadequately discussed in the other place last night. Some noble Lords may feel that some of the debates on some of the earlier clauses or amendments have been unduly prolonged. That may be the case. It is certainly better to do that than to cut short an important debate in the way that it was cut short under the rules of the other place.

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The removal of the amendments of the noble Lord, Lord Kingsland, and the addition of the further amendments in Amendment Nos. 104A to 104E, make the situation of refugees considerably worse than when the Bill was first introduced. The original Bill proposed that "serious crime" meant a crime for which a sentence of at least two years was imposed. In other words, the crime was serious by reason of the actual circumstances of an actual crime, leading to a sentence of two years.

The amendments of the noble Lord, Lord Kingsland, altered the basis and proposed that "serious crime" meant a crime for which a maximum sentence of at least 10 years could be imposed. In other words, the crime was serious by reason of the type of crime to which it belonged, irrespective of the actual facts of the case or the sentence imposed. Amendments tabled at Third Reading added power to add by order certain crimes as particularly serious, irrespective of the maximum length of the sentence.

If the government amendment stands, we shall be left with the worst of both worlds. Someone will be presumed—and this part of the presumption is irrebuttable—to have been convicted of a particularly serious crime if they have been sentenced to two years' imprisonment for any crime. They will also be presumed to have been convicted of a particularly serious crime if they have been convicted of any specified offence, even if the actual offence involved mitigating factors of such strength as to mean that no punishment or only an insignificant punishment was imposed; and again even if the conviction was made abroad by courts whose decisions are directed by the Government or liable to be influenced by corruption. Finally, the offences can be specified by the negative resolution procedure which we believe is entirely inappropriate for something that has this significant effect.

Our amendments go back to the concept of the length of sentence as an essential test of the seriousness of the crime. The crime must be specified in an order approved by the affirmative resolution procedure, and the actual sentence must be at least 10 years.

I accept that the 10-year period is too high. It might be better to make the test a sentence of five or, perhaps, seven years. However, we believe that two years is too short. We also believe that, as our amendment provides, the definition of a serious crime should be a guide to the interpretation of Article 33(2) of the refugee convention, not a free-standing definition. Otherwise, there is a severe risk that we might end up with our courts being forced to accept an interpretation of Article 33(2) that is not consistent with a generally accepted interpretation of that article.

The amendments in my noble friend's name are fairer and are more likely to satisfy the requirements of Article 33(2) of the refugee convention than the test that the Government want to apply. I beg to move.

Moved, as an amendment to the Motion that the House do not insist on their Amendment No. 104 and do agree with the Commons in their Amendments Nos. 104A to 104E in lieu thereof, leave out "and do

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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 and do propose Amendments Nos. 104F to 104H in lieu thereof.—(Lord Goodhart.)

Lord Avebury: My Lords, I shall speak, in particular, to Amendment No. 109 and Amendments Nos. 109A to 109E.

I am grateful to the Minister for his careful explanation of the reasons why the power must be extended to persons who are the subject of a hospital order. However, I say, with great respect, that he took the matter no further than he did at Third Reading. We were not satisfied with the reasons that he gave then. I shall explain why.

Three principles underlie the applicability of Article 33(2). First, it should be restrictively interpreted and applied; secondly, it must be judged case by case; and, thirdly, the burden of proof lies principally on the state. The Minister said that there would be few hospital orders to which the section applied. That makes the case for individual consideration even stronger.

Can the Minister say how Article 33(2) is used at the moment? As I understand it, if a person is convicted of a serious offence, the court can make a recommendation for that person's deportation. At that point, the Secretary of State must consider whether Article 33(2) comes into play. The Minister may say that, sometimes, the courts do not make such a recommendation and that, in such cases, the Secretary of State would have no power to invoke Article 33(2). However, if they recognise that they can do that and that the decision on whether someone can be deported from the United Kingdom turns on whether the recommendation is made—the Secretary of State has no right to consider the matter, unless there is a recommendation by the court—the courts are capable of applying that power. That is particularly so in the few cases that, the Minister said, were the subject of hospital orders.

At Third Reading, the Minister said that it was reasonable to have a presumption that such persons—persons subject to a hospital order under Section 37 of the 1983 Act—were a danger to the community but that that presumption could be rebutted. He also said on the same occasion, and he has repeated today, that 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. How can he reconcile that with the presumption in the clause that Article 33(2) does apply, which has to be rebutted by the person concerned?

How can the examination of all those factors take place unless there is an objection to the application of Article 33(2) to which the Minister can address his mind? Does he do that of his own volition irrespective of whether the person has made an application, and, as we are considering persons subject to a hospital order,

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does the Minister think that it will be possible for that to be done by the person of his own volition, considering that he is not deemed fit to plead in court?

The Minister acknowledged that a hospital order can be made by a court after a relatively minor offence and he has repeated the two examples he gave on Third Reading of shoplifting or taking a motor vehicle without consent. He said that the key issue is not the offence, but whether a person needs to be detained for hospital treatment. The right of a person to have his application for asylum considered will be forfeited, not because he has committed a serious offence as provided for in the convention, but because he is mentally ill. That must surely be a violation of Article 33(2).

UNHCR said at an earlier stage, and has repeated, that the broad nature of this provision covers people who have been neither convicted of a particularly serious crime nor even tried in relation to a charge of such a crime. In parentheses, we hear from Mr Blunkett that he is going to go ahead with the draft mental health Bill, which provides that a person can be detained without having committed any offence. As I understand it, if that comes into force, such a person would be subject to the provisions we are discussing now. In other words, someone can have committed no crime whatever, but Article 33(2) will be invoked and he will be deemed to be a person who is not a refugee.

I discussed the matter with Mind today. My impression from the short conversation was that the Home Office or the Department of Health—whichever it is—has not discussed the matter with it. From my description of the provision which the Minister puts before the House, it strongly disagrees. I must protest that the Home Office shoves through such a provision without discussing it at all with the principal agency working on behalf of mental health patients.

I know that we are at a late stage in the Bill and I shall not get anywhere with these amendments, but pushing the matter through against the interests of mental health patients is fundamentally wrong and contrary to the convention.

11 p.m.

Lord Kingsland: My Lords, I thank the Minister and welcome the Government's conversion to the view that I had the honour to advance in Committee in July. I also welcome the generous admission made by the Home Secretary yesterday in another place in respect of the position hitherto adopted by the Government:

    "I recognise that that is unacceptable".—[Official Report, Commons, 5/11/02; col. 191.]

The Home Secretary's statement plainly shows the value of your Lordships' House as a revising Chamber. These provisions were undebated in another place. Had they not been scrutinised and amended in your Lordships' House then we would not have arrived at

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the position where the Government have recognised the anomalies in their original proposal and tabled the amendments before the House today.

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