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Lord Avebury: My Lords, paragraph 7 of the Minister's letter says that Section 72 makes it clear that in considering whether Article 33(2) applies, no account is to be taken of the gravity of the fear or the risk of persecution which a person may face if returned to their country. So the individual consideration which is being given by the Minister in deciding whether to issue a certificate bears no relation to the threat which a person might incur of persecution, torture or even death if he is returned to his own country.

Lord Rooker: My Lords, as I have already said, they may not be returned, but if the situation in that country changes, they will be returned. That is the point. It has to be the consideration at the time when we want to remove a person. We want to make it clear that a person cannot commit a crime in a country where it is known that he or she will not be returned by the UK and still claim refugee status later when that country has a brand new government, is democratic and has good human rights structures. Such a person cannot say, "No, no. I am staying in the UK. That is where they gave me refugee status. I may have committed these serious crimes, but my human rights are affected". The Government could reply, "Sorry sunshine—back home".

A person would not be removed until the situation in his country has changed, but he would lose the permanent right that he gains now, which allows him to remain in the UK. That is the difference. We are not in the business of sending people back who have a well founded fear of persecution, of being tortured, murdered or whatever. We are not in that business. I want to make that absolutely clear.

Of course, situations in countries change and we want to take account of that. No one knows, but that may serve as a deterrent to stop someone committing a crime. As I have said, "Don't commit the crime. Then you don't come up against these problems".

The noble Baroness, Lady Anelay, asked who was affected by the order. It applies to recognised refugees if, having been recognised, they commit a Section 72 offence subsequently. It also applies to asylum seekers whose claims have not been decided. It is part of the decision making process. The asylum seeker has the chance to rebut before the decision is made.
 
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The order will not apply to recognised refugees who the Secretary of State knew had committed a crime specified in the order when he decided to recognise the refugee but chose not to rely on Article 33(2) at that time. That is fair enough. Otherwise, a person would be done twice for the same thing, which would be unfair.

The noble Baroness asked me about the position in Northern Ireland. We have tried as far as possible to ensure that there is comparability between the offences in the order as they apply in England and Wales, Northern Ireland, and Scotland. That is why the order is set out as it is. Unfortunately, it appears more complicated than it is, simply because of the judicial systems.

It is not possible to get a 100 per cent match in areas where the nature of the offences is different in those different areas; that is, England and Wales, Northern Ireland, and Scotland. The intention is to make things as fair and as even handed as we can.

Finally, the noble Baroness, Lady Anelay, asked me about offences committed a long time ago and what the courts will have to do. Offences committed a long time ago might be affected by the order if we have not previously assessed them. However, if the person is a reformed character, he or she can provide evidence of that in rebutting the presumption that they are a danger to the community. It is still open to the person concerned to have the chance to rebut.

The courts will not be obliged to inform the Immigration and Nationality Directorate of any convictions for offences under the order. Those offences would be relevant only for refugees or asylum seekers. So we do not consider it appropriate. The Immigration and Nationality Directorate has good links with the Prison Service, which will advise us whenever a non-UK national is being released. That will provide a source of information for those offences. That happened when I was at the Home Office. Sometimes it was quite distasteful when people were released from prison having committed very serious offences against, in some cases, young children. They could not be sent out of the country because they could not be returned to their country and they had to be let out of prison. So there are good links for knowing who has and who has not been released.

I shall get the transcript checked. If there are any points that I have not covered in detail, I shall write to all noble Lords participating in this debate. The intention is to change the structure—we do not want people to commit the crimes—and to set up a fair system that is clear for everyone to understand when they apply for refugee status in this country.

Lord Lester of Herne Hill: My Lords, I am grateful to all noble Lords who have participated in this important debate. I am glad that this debate has not been disfigured as it was in the other place where I am
 
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told that the Minister interrupted my honourable friend Mark Oaten MP four or five times. Therefore, the Minister took up time in doing that and was not able to reply to the debate. With respect to the other place, that is not the right way to proceed. It certainly has not happened here.

As the Minister has said, ultimately the question of the lawfulness or otherwise of the order and the compatibility or otherwise of Section 72 are questions of law for the courts and, in the event of a legal challenge, it will be for the courts to decide those questions. Unfortunately I shall not, as I would like, be able to appear pro bono in such a case because today I have behaved as a parliamentarian, but I hope and believe that an advocate who is sufficiently public-spirited and who is representing a client will challenge what we have been listening to today against the standards of law.

As the right reverend Prelate the Bishop of Chelmsford indicated, one of the principles that will have to be considered is that of proportionality: are the means employed proportionate to the Government's legitimate aims? But other principles—of legality and fairness—also arise.

I shall not test the opinion of the House on what are issues of law, but I hope and believe that this debate will prove to be influential. I hope too that the Minister has enough of a sense of humour to understand what I am about to say, because I mean it honestly. I believe that his reply is one of the best speeches I can think of to show the unlawfulness of what is being proposed. But that will have to be considered carefully if it comes to court.

I have great respect for the noble Lord, Lord Rooker, and for Des Browne, MP, who was an original member of the Joint Committee on Human Rights. I am genuinely sorry that they have to bear collective responsibility for a measure which I believe stains the reputation of this country and is an ultra vires abuse of power. But that is a matter for the courts to decide. On that basis, I beg leave to withdraw the Motion.

Motion, by leave, withdrawn.

Pensions Bill

Further consideration of amendments on Report resumed on Clause 284.

Lord Higgins moved Amendment No. 276:

The noble Lord said: My Lords, I am glad that the noble Baroness has moved the Motion, since she omitted to do so on the last occasion that we resumed business. I see that my amendment has been grouped with Amendment No. 278 in the name of the noble Baroness, Lady Turner, and Amendment No. 279 in the name of the noble Lord, Lord Oakeshott. The content of our
 
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debate is more clearly illustrated by the two subsequent amendments than by my rather brief one; namely, the question of whether a scheme that was closed while the sponsoring employer was solvent and found to have insufficient assets to meet the scheme's liabilities in full shall be a qualifying pension scheme for the purposes of the financial assistance scheme.

In our earlier exchanges the noble Baroness said that this matter was still being considered by the Government. I was slightly surprised by that because while we all agree that it is highly deplorable for a company which is perfectly solvent to renege on its pension promises, a classic moral hazard argument would ensue if the company concerned believes that the FAS will pick up the pieces and lets it do so. It would indeed be singularly unfortunate were that to happen.

The first case which came to my attention was that of Maersk, but eventually public opinion in that instance caused it to change its position. The other one, which was referred to several times in Grand Committee, is that of the Japanese company, Nikko. I think that the name of the company has changed over time from Nikko Securities to Nikko Cordial, which I understand is part of Citigroup. That company seems to be in the same position. Complaints have been made by some 400 deferred pensioners of the company who have found that, as a subsidiary, the company went into what is known as members' voluntary liquidation. The result of that has been that the parent company, which is perfectly solvent and, indeed, extremely profitable, has not met the commitment to the deferred pensioners. This is very unfortunate.

I shall be interested to hear to what extent the Minister's consideration of the matter has developed. It seems to me that this will be a burden on the financial assistance scheme, which clearly, from what the Minister has said, will have limited resources. Therefore it will be to the disadvantage of someone else. If all the schemes which are solvent renege on their promises and act in that way, presumably the cost on the financial assistance scheme would be considerable.

The Nikko case raises difficult questions about the position of trustees who, I gather, have changed over time. These are very difficult issues. It may be that publicity and moral persuasion is not sufficient.

The Government's position is also not clear on the question of what date they will select as a cut-off point. I was going to say a "deadline" but, in a sense, it is a lifeline; it is how far back you go rather than stopping at a certain point. Perhaps the Minister will tell us the Government's present position so far as concerns the start date of the scheme.

These are difficult issues which affect people very seriously and it is important that we get them right. I shall be interested to hear the Minister's response and to what extent this is still a live issue or to what extent it is one on which the Government have not yet made up their mind. I beg to move.
 
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8.45 p.m.


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