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Lord Avebury: My Lords, it has certainly become an industry, and one which is backed by enormous multinationals, to attack human rights and to try to undermine them—as one sees almost daily in newspapers such as the Daily Express and the Daily Mail. But this is a matter not solely for lawyers but for the ordinary people of this country. I hope that the
 
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noble Baroness, Lady Carnegy, has had the opportunity of listening to my noble friend and of reading what the UNHCR representative said regarding this matter. Whether or not she recognises that, does she think that it is totally unprecedented for the UNHCR representative to write a memorandum in such critical terms about a matter that has come before your Lordships' House?

The UNHCR representative draws our attention to the enormous number of crimes that are treated as "particularly serious" and that also disturbs the JCHR. At one end of the scale are offences such as knowingly causing a nuclear weapon explosion or, as the noble Baroness would have it, the offences of paedophiles, which everyone would accept should be treated in the manner of this order. But, as Ms Dawson-Shepherd observes, the principle of proportionality makes it inappropriate to return a person to a country where he may face torture or death when he has been convicted of an offence as trivial as some of the 500 that are listed in the appendix, such as those that my noble friend has mentioned.

The appellate authorities are not required to consider that proportionality, which is an essential ingredient of the consideration of cases under the convention, as the right reverend Prelate the Bishop of Chelmsford reminded us. In proceedings where the offender is trying to prove that he is not a danger to the community, that matter does not come into the equation at all because, as the Minister said in the letter to Jean Corston, to which my noble friend referred, it would not be for consideration in the second leg of a decision that had to be made under the order.

All noble Lords have referred to the fact that the UNHCR points out that the order of proof in criminal trial would be reversed, even though the consequences of losing are potentially far more serious. The "rebuttal presumption" means that a person sentenced to two years or more on any of the range of offences in the schedules to the order is presumed to be "a danger to the community" unless he can prove otherwise. In the guidelines on Article 1(F), dealing with exclusion, that concept is permissible only in the circumstances given in paragraph 19: that the person remained a member of a government clearly engaged in activities such as crimes against peace, war crimes or crimes against humanity or membership of an organisation involved in violence. Under paragraph 34 of the guidelines, the burden of proof rests on the state in every single other case. But this order lifts the concept of the rebuttable presumption from the guidelines, where they are applied to a narrow set of Article 1(F)(a) cases, and applies it to all Article 33(2) expulsions.

As my noble friend has observed, the UK, in common with other signatories to the convention, has undertaken to co-operate with the UNHCR in the exercise of its functions; a duty which must include compliance with the guidelines in the absence of any formal reservation. I am not aware of any discussion between the Government and the UNHCR on the issue, or of any objections raised when the UNHCR
 
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published the latest edition of the guidelines on the interpretation of the exclusion clauses in September 2003. Although the guidelines go on to say that the exclusion clauses should not be confused with Article 33(2), which deals with the expulsion of a person who has been admitted to the host state, the underlying principles must be the same.

Paragraph 2 of the guidelines states that,

the excluding clauses,

Paragraph 38 of the background note, which should be read in conjunction with the guidelines, sets out the ingredients of such an assessment. But the order precludes any process of that kind. In sentencing a person for any of these offences, the court has no obligation to consider the seriousness of the crime for the purposes of Article 33 in relation to the five sets of criteria proposed by the UNHCR, nor has the Secretary of State to think about them in deciding whether to issue his certificate. The noble Lord, Lord Filkin, stated:

That was when we were discussing the Nationality, Immigration and Asylum Bill. But the Minister is not obliged to do that before deciding whether to certify that the person is a danger to the community. In seeking to rebut that particular presumption, it is not easy to see how the question of whether he considered the factors in the background note could be introduced. As I said, in the letter to Miss Corston, the Minister specifically says that they would not be considered.

The expression "particularly serious crime" in Article 33(2) must surely have a more restricted meaning than "serious non-political crime" in Article 1(F)(b) or the drafters would not have bothered to insert the word "particularly". It no doubt still includes offences such as murder, rape and armed robbery. Whereas crimes such as petty theft or the personal use of illegal drugs would not reach the Article 1(F)(b) threshold, there should at least have been some additional offences between those two extremes that would fall below the Article 33(2) threshold.

It is rare in the extreme for the JCHR to state baldly that a provision in either primary or secondary legislation is in breach of the UK's treaty obligations, but that is what has happened with this order. The committee states that it is incompatible with the refugee convention—a very serious matter which Parliament will have to examine in greater depth than is possible in one hour. But the committee goes further and suggests that Section 72 of the Nationality, Immigration and Asylum Act may itself be incompatible with the convention.
 
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We criticised that provision at the time, as did the noble Lord, Lord Kingsland, from the Tory Front Bench. We received no answer to the question why, as the courts already have power to recommend the deportation of a person who is convicted of a particularly serious crime, the Secretary of State could not then consider in each individual case whether the requirements of Article 33(2) were satisfied. At that time, the noble Lord, Lord Filkin, was unable to say even how many individuals had been sent back to their countries of origin under that article.

If the JCHR is right, this is in any case a pointless exercise because the order does not affect the rights of a person under Article 3 of the ECHR. As an applicant now has to state all the grounds of an appeal at the same time, the issue of the Secretary of State's "danger to the community" certificate will cut off only the refugee convention leg of any appeal and not the human rights leg.

It is not clear what happens during the period taken up with the separate appeal against the rebuttable presumption of the certificate, but the order contains nothing that would prevent that appeal being heard, with the possibility of a second appeal if the rebuttal is successful. But, in fact, as the detainees in Belmarsh could testify, even persons who have committed extremely serious offences are not refouled if they would be at risk of torture or execution.

It is a great pity that this Government have got themselves into such a mess with this legislation. The best thing that they could do to avoid endless futile litigation on these matters would be to withdraw the order and think again about Section 72.

Baroness Carnegy of Lour: My Lords, before the noble Lord sits down, I think I am right in saying that he stated that such people might be returned to a country where they might be tortured or might even suffer death. Surely the Human Rights Select Committee report points out that the convention on human rights precludes that.

Lord Avebury: My Lords, the rights of a person under Article 3 of the ECHR are not extinguished by the order. That is why I asked what would happen to the person's ECHR leg of his appeal during the period that the rebuttal of presumption was being considered.

Baroness Anelay of St Johns: My Lords, I start by recognising the fact that the reason that this order is even before us today is that the Government agreed to a compromise during the ping-pong on the Nationality, Immigration and Asylum Act 2002 in response to proposals put forward by my noble friend Lord Kingsland in Committee and on Report. I am grateful to the Minister in another place, Mr Des Browne, who this afternoon, during the debates in another place on this statutory instrument, referred to my noble friend's work as "a helpful intervention". I can only say that I was there at the
 
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time and the Government did not seem to treat it like that then. However, they are obviously partly reformed characters now.

It is important that we reflect briefly on how we have reached the point of having this list before us today. It will explain the view of the Front Bench that I put forward today on the order. The Government agreed that,

That statement was made by the Minister.

The Government's first approach had been very different. It was to prescribe that a person is a serious criminal for the purposes of the refugee convention simply if he has been sentenced, either in the UK or abroad, to a period of two years' unsuspended imprisonment. As noble Lords then said, the presumption could be rebutted but the burden of proof would be reversed, and the shifting of the burden of proof remains.

We were concerned that at that stage the Government's approach differed from the text of the refugee convention in the following three respects. First, the presumption in the clause arose in relation to the punishment imposed rather than to the crime committed. Secondly, the inflexible criterion of two years' imprisonment would not cover a situation where someone was convicted of a particularly serious crime—or one that we considered to be particularly serious—such as dealing in child pornography or drugs, but was sentenced to perhaps only 14 or 18 months' imprisonment because of a substantial discount for an early guilty plea or for other mitigating circumstances. The third issue was that the proposal that related to the sentences imposed for crimes committed abroad took no account of the sentencing policies or the applicability of the rule of law in foreign countries. I know that that issue remains at the heart of some of the points raised by the noble Lord, Lord Lester, today.

We argued that the presumption should arise from the crime committed and not from the punishment imposed. Here, we have ended up with a mish-mash of the two and that is what we face. We accepted the Government's compromise at that stage, and we do not resile from that position today. As my noble friend Lady Carnegy of Lour said earlier, the Government are in a difficult position in trying to protect the public and in trying to ensure that, when people are given refuge here, they should be given refuge and are not people who pose a threat to the community. I do not think that the noble Lord, Lord Lester of Herne Hill, resiles from that either. The difficulty at issue here is how broad the list of offences that we face today should be.

I recognise the Government's difficulty. Some noble Lords have referred to this matter in terms of the fact that the country needs to face a threat of terrorism. We have always been aware of the fact, and have agreed,
 
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that the Government need to face far more difficulties due to applicants coming here who have committed other crimes that in no sense can be called terrorism, but who will form the mainstay of those who will be refused permission to be here under the order.

It is important that the Government respond to the points put today, not least because the Minister in another place did not have time to do so. That was not his fault. For once, I can say that of a Minister. Whether I would have liked what he had said if he had had time to give his answers I do not know, but he had a mere few minutes in which to respond and then the guillotine of 6.15 p.m. came down. I attended the other place earlier and listened. Much of the argument that has been put today so cogently by noble Lords simply did not receive a response from the Government earlier. Therefore it is important that we consider some of the practicalities of the issue.

First, the list raises a broad sweep of offences, not just in a list of 500, but particular offences in themselves can cover a very wide range of criminality. That is the argument used by the Joint Committee on Human Rights in its conclusion that the order is incompatible with Article 33(2) of the Refugee Convention.

I shall be interested to hear the Government's response. I do not actually object to the list, but my questions are probing. The list, as noble Lords have mentioned, includes Section 1(1) of the Theft Act 1968 which refers to dishonestly appropriating another person's property, intending permanently to deprive him of it. It also refers to Section 1(1) of the Criminal Damage Act 1971. I find that confusing, given that this is a Government who only recently introduced penalty fines for those offences and who, at the same time, say that in some circumstances those can be particularly serious crimes. So the Government are sending out a mixed message.

In one instance one can get a penalty fine and not have to go to court for theft or criminal damage and here it is said that they are such serious offences that one cannot have political refuge here. I think that is a confusion that needs to be resolved by the Government. Therefore, can the Minister explain how the Government intend to decide when offences are sufficiently serious in themselves for someone to be refused refugee status and, of course, perhaps returned to another country? I listened with interest to the right reverend Prelate. I entirely agree with him that it is important to retain a sense of proportionality. We need to know how that will underwrite what the Government will do in respect of the order.

My second question is: who is affected? I notice that the right reverend Prelate referred to refugees and asylum seekers. It is very tempting to do that, but we need to be clear who is subject to this order. Will those who have been given indefinite leave to remain here be covered and what will happen with regard to their families? I am sure that there are straightforward answers to those questions, but the Minister in another place did not have a chance to give them.
 
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Can convictions ever be considered to be spent? My honourable friend in the other place, Humfrey Malins, raised the issue of someone who in his youth commits an offence that we would all perhaps accept to be very serious, but by the time he claims asylum here at my age, 57—I shall be 87, when I think back to the jibe made by the Minister about referendums—and applies for refuge, does his seriously misspent youth count against him still, or can we consider that he has reformed? We need to hear some proportionality from the Minister.

My third question refers to the duty of the courts in all these matters. In future, what will be the duty of a district judge when, having found someone guilty of one of these offences, he sentences him to prison for more than two or three years? Does he have to say to that person, "Mr or Mrs whatever, do you have pending any claim for asylum/refugee/immigration status in this country?", and if the person says, "Yes", does the judge have to report that? What is the flow of information back to the Home Office about who is being found guilty and who should come within the circumstances of this order?

My fourth question is a technical one on Northern Ireland. In the other place the position of Northern Ireland was raised by one of my honourable friends. Perhaps I may seek reassurance from the Minister. Will the level of criminality that someone has to reach before he is denied refuge be the same in England and in Wales as in Northern Ireland? I ask that because, as ever, there are in the schedules different lists for Northern Ireland. We would like reassurance that there will not be one way of calculating criminality in England and Wales and a different way of calculating it in Northern Ireland.

Finally, perhaps I may invite the Minister to confirm what I understand to be the case, that the vast majority of people who seek refuge here will not be caught by these provisions and will not be offenders at any stage in their lives. They may be refused refuge because they do not qualify for asylum as they are economic migrants and do not come within these particularly carefully drawn rules. But it is my understanding that the majority of people coming here would not be considered to be offenders within the rules of this order.

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