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Lord Rooker: My Lords, anything I say at the Dispatch Box seems not to convince other parliaments or governments. We have no plans; what was on offer was tied intrinsically to the decision to have an elected regional assembly. We have made it absolutely clear that what was on offer in respect of local government in those regions would not happen if there was a "no" vote and that there would be no further reorganisation of local government at all. We have no plans in that regard.
I do not disagree with much of what the noble Lord said about some of the issues relating to local government. There are better relations between central and local government now than there have been before in my experience, from 30 years' service in the other place and my short service in this place. We are working extremely well together, in partnership. We have given local governments more freedoms and powers, so that they are not operating just as agents of central government, which would go right against the idea of a degree of independence for local government. There are far more freedoms and flexibilities now, and we hope that they are put to good effect in the near future.
Baroness Maddock: My Lords, in line with my noble friends, I am very disappointed about what has happened. It is particularly disappointing, given that it was Britain that set up in Germany after the war a very good devolved system of government, precisely to stop power being centralised. Yet we have somehow failed to do that in our own country, through a lack of enthusiasm. The other point that I feel most sad about
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is that people have become very cynical about politicians and democracy itself. We need to think how we can enthuse people back into thinking that democracy and accountability are important.
I have two questions for the Minister. I have lived in the north-east for four years, having lived in the south-east for most of my life, so I know how forgotten that corner of England is. I relate very much to the remarks made by the right reverend Prelate the Bishop of Newcastle. Even when we were discussing how the postal ballot would work, the Minister told us that there would be drop-off points in every constituency for every 50,000 people. In Northumberland, that means absolutely nothing; people would have to go 30 or 40 miles to vote. That just illustrates how people do not understand the problems of the north-east. Do the Government have any plans to ensure that the voices of people in places that are farthest from London and our Westminster village are heard?
Secondly, in the planning Bill that went through this House, planning powers were not taken down from central government but up from the counties. I think we are owed an explanation from the Minister about what the Government will do about that.
Lord Rooker: My Lords, I do not know the turnout to the exact decimal point, but it was something slightly over 47 per cent. I have not read, heard or been briefed on any complaints from people who could not drop off their ballot paper if they wanted to do so in person. There was a postal ballot, but if people wanted to take their ballot paper to the returning officer or polling station, we made sure that was available. That was consistent with the pilots for other postal ballots for local government, and the turnout was substantially higher than what we would normally get in local government.
On the noble Baroness's second question, I have to disappoint her. There is an ongoing debate on the matter, and it is true that the structure plans from the counties will be done on a regional, spatial planning level. However, planning decisions as Mr and Mrs Public understand them—in other words, who decides whether a planning application is agreed or disagreed—remains with the local authority, the district council.
Lord Evans of Temple Guiting: My Lords, it is a time limited debate and the 20 minutes is up.
Nationality, Immigration and Asylum Act 2002 (Specification of Particularly Serious Crimes) Order 2004
Lord Lester of Herne Hill rose to move to resolve, That this House calls upon Her Majesty's Government to withdraw the Nationality, Immigration and Asylum Act 2002 (Specification of Particularly Serious Crimes) Order 2004 (S.I. 2004/1910), laid before the House on 22 July, and to lay a new order which is compatible with
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the obligations imposed upon the United Kingdom as a Contracting Party to the Convention relating to the Status of Refugees (1951).
The noble Lord said: My Lords, this order was laid on the last day before the Summer Recess. This is the first opportunity to debate its lack of compatibility with the UK's international obligations under the UN refugee convention. My colleague, Mark Oaten, MP, initiated a similar debate in the Commons earlier today. I do so both in a personal capacity and as a member of the Joint Committee on Human Rights.
Our committee published a report last Wednesday expressing our concern that the order as drafted is outside the lawful scope of the order-making power. The power to make the order was conferred by Section 72(4)(a) of the Nationality, Immigration and Asylum Act 2002. Section 72 says that it applies,
To be lawful, any order made under this power must therefore be compatible with the refugee convention.
The relevant provisions of the refugee convention are Article 33(2) and Article 1F(b), the text of which is set out in paragraphs 17 and 19 of the JCHR report which is in the Printed Paper Office. Appendix 1 to the JCHR report contains a valuable memorandum from the Refugee Legal Centre. Appendix 2 sets out 10 questions contained in a letter from the chair, the right honourable Jean Corston MP, to Des Browne, MP, Minister of State at the Home Office. Mr Browne replied with commendable speed in a letter of 4 November. The Minister's letter is also available in the Printed Paper Office.
The UN High Commissioner for Refugees (UNHCR) has expressed its grave concern about this very important issue. Its views are of particular importance. UNHCR is responsible for supervising the application of the refugee convention, and the UK and other contracting states have undertaken to co-operate with the Office of the UNHCR in the exercise of its functions. States are therefore expected to pay due regard to the UNHCR's interpretation of the refugee convention. UNHCR guidance in relation to Articles 1F and 33(2) is set out in paragraphs 23 to 26 of our report.
A letter from UNHCR's representative in the UK, Anne Dawson-Shepherd, summarises UNHCR's concerns. It explains that the overriding objective of the refugee convention is to ensure that refugees are protected and are not returned to their countries of origin to face persecution. Exceptions to the convention's protections include individuals considered to be a danger to the security of the host countries or those who have committed a crime so serious as to pose a threat to the citizens of the host country.
The UNHCR is concerned that this order includes a list of some 500 acts said to be "particularly serious" and warranting the removal of refugees to their countries of origin, where they may face persecution. The JCHR report notes in paragraph 27 that the list includes,
"a number of crimes which cannot on any view be regarded as 'particularly serious crimes' as that phrase is to be interpreted in the context of the Refugee Convention. It includes, for example,
- theft, entering a building as a trespasser intending to steal, aggravated taking of a vehicle, criminal damage, and possession of controlled drugs. We doubt whether these offences, per se, would amount to 'serious crimes' even for the purpose of Article 1(F)(b) and are even more doubtful that they are capable of amounting to 'particularly serious crimes'".
I have marked up, and have here, copies of the offences highlighted to show that many of them are not even offences triable only on indictment. Any noble Lord who wishes can have a copy of my marked up visual aid.
"Both law and basic notions of fairness dictate that there must be proportionality between crime and consequences".
But the order includes a sweepingly broad interpretation of what is considered to be a "particularly serious crime", as well as disproportionately serious consequences to a refugee.
UNHCR notes that the threshold for determining a particularly serious crime in the legislation of other countries is significantly higher than in the UK, and that in those countries,
"proportionality tests are maintained and decisions are made using appropriate checks and balances".
The Minister, Des Browne, MP, has made it clear in answer to our questions one and two that the UNHCR guidance on the meaning of "serious crime" in Article 1F has been disregarded by the Home Office, even though it is plainly relevant in construing what is meant by "particularly serious crime" in Article 33(2). I find that extraordinary.
The lowering of the high threshold for the applicability of Article 33(2) is made explicit in the Minister's answer to question nine where he states that offences have been included which do not show a direct physical threat to the community, but,
"pose a danger . . . by creating significant anxieties within communities and breaking down cohesion".
Resort to "anxiety within communities" or community "cohesion" are not permissible under Article 33(2) because they fall far short of "danger to the community". That is the most explicit statement of what I can only describe as the Home Secretary's populist motives. It is in line with the response to the JCHR's concerns about asylum seekers being subjected to forced labour, where the Home Office referred in a letter to our committee to the need to be doing something to preserve "community cohesion"—see JCHR 17th report of Session 2003–04, 9 July, page 48. That illustrates how political populism is undermining the principle of non-refoulement in Article 33(1) by a deliberately over-expansive interpretation of what should be restrictively interpreted exceptions.
Another alarming element is the effective removal of case-by-case consideration, since individual circumstances should always be analysed. Indeed, Des Browne MP's letter confirms in answer to question five that, contrary to UNHCR guidance, no special circumstances relating to the offence will affect the presumption that a particularly serious crime has been committed for the purpose of Article 33(2). He also confirms in answer to question seven that no account will be taken of the gravity of the fear or risk of persecution the person may face if returned, which is also directly
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contrary to the UNHCR's interpretation of the convention. The Government simply state brazenly that they disagree without giving any reason.
The order shifts the burden of proof to the refugee to prove that he or she is not a danger to the community. UNHCR notes that this will be,
"a near impossible task, particularly for an individual with little or no command of English and limited financial means".
The Home Office accepts in answer to question six that the burden of proof will, indeed, be on the individual. That is directly contrary to UNHCR's interpretation of the UK's convention obligations. Also
"of grave concern to UNHCR are recent guidelines issued by the Immigration and Nationality Directorate that extend the range of Home Office powers by denying access to protection to individuals seeking asylum".
The JCHR report recognises in paragraph 30 that it is highly unlikely in practice that the order will lead to the return of refugees to persecution because they will continue to be able to rely on human rights grounds, and because Article 3 of the European Convention on Human Rights is probably at least as wide as Article 33 of the refugee convention. But even if that is so—and it is a question only of probability—as the JCHR notes in paragraph 31, there is the,
"deprivation of an opportunity to establish refugee status, and the various concomitant advantages which come from such status".
For example, once convicted of a crime prescribed by the order—theft or breach of the peace—and labelled as a danger to the community, the individual will be limited to six months' discretionary leave, at the end of which a further six months may be applied for. No greater degree of settlement could be applied for until after 10 years. That will effectively preclude or impair family reunion, and interfere with the ability to work and study.
The Minister will need to explain to the House why this unsightly and unfair measure is thought to be necessary. It appears to be a squalid exercise in populism at the expense of one of the world's most vulnerable minorities. I beg to move.
Moved to resolve, That this House calls upon Her Majesty's Government to withdraw the Nationality, Immigration and Asylum Act 2002 (Specification of Particularly Serious Crimes) Order 2004 (S.I. 2004/1910), laid before the House on 22 July, and to lay a new order which is compatible with the obligations imposed upon the United Kingdom as a Contracting Party to the Convention relating to the Status of Refugees (1951).—(Lord Lester of Herne Hill.)
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