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Lord Hylton: My Lords, I am in general support of the amendment moved by the noble Lord, Lord Avebury. The courts in this country are perfectly well accustomed to considering the subject matter of the convention, in particular Article 1F(c), and they ought to be allowed to continue to do so without hindrance.

Baroness Ashton of Upholland: My Lords, the noble Lord, Lord Avebury, speaks with great passion on an issue he feels strongly about and I always listen with great care to what he says in your Lordships' House and beyond. We simply disagree on the outcome and purpose of this part of the legislation. The primary
 
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purpose of Clause 52 is to make it crystal clear in statute that terrorists are excluded from asylum by virtue of Article 1F(c) of the 1951 Geneva Convention on the Status of Refugees. There is no disagreement between us on how that was developed to make clear that terrorists were excluded.

The question the noble Lord raises is about how we have tried to do that. We are not seeking to make 146 other states think again. We are simply saying that in the context of this legislation we think it right and proper to put this provision in the Bill. Of course I take seriously what the UNHCR London office has said to us. There has been a further exchange of letters at official level. There were meetings with officials of the UNHCR before Christmas. The noble Lord will know that contact and dialogue continues with the UNHCR, but we disagree with certain elements it raises. We do so having looked carefully at the UN Security Council resolutions and the interpretation placed on aspects of the convention.

The amendment would remove subsection (1) from the clause which clarifies that acts of committing, preparing or instigating terrorism and acts of encouraging when inducing others to do so constitute,

within the meaning of Article 1F(c). The second amendment removes the definition of "terrorism" from the clause. I will try to address each in turn.

As I have indicated, Article 1F(c) has long been interpreted by the courts and by the UN Security Council resolutions as allowing for the exclusion of terrorists from asylum. It is not explicit within the wording. We think that in the light of the heightened threat from terrorism that this country now faces, it is appropriate to legislate to provide statutory backing to the accepted practice that terrorists should not be afforded the protection of the refugee convention. I do not accept that it is inappropriate for Parliament to legislate to interpret specific provisions into domestic law.

As noble Lords are aware, it has already been done on a number of occasions. In Section 34 of the Anti-terrorism, Crime and Security Act 2001, we clarified that no balancing test should be applied when deciding whether to exclude an individual from the refugee convention on the basis of Article 1F or to remove the protection of the convention from them by virtue of Article 33 of Section 2.

I turn to Amendment No. 47 on the definition of "terrorism". I think that I made the Government's position as clear as I could in Committee. Parliament legislated to define "terrorism" in the 2000 Act and we believe it is appropriate to reflect the definition of the national Parliament within this clause. It must be drawn sufficiently widely to cover all the conduct we would wish to capture.

The definition of "terrorism" in our domestic law is compatible with those accepted in other fora; for example, the definition in the European Union framework decision on combating terrorism. We have been clear, however, that we will continue to look at
 
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our approach to defining Article 1F(c) in the refugee convention in the light of developments in the Terrorism Bill. Noble Lords—the noble Lord, Lord Avebury, in particular—will be fully aware that we have asked the noble Lord, Lord Carlile of Berriew, to conduct an independent review of our definition of terrorism and report back within a year of commencement of the new Terrorism Act. If Parliament decides in the light of that review that changes to the existing definition are needed, we would commit to bringing forward this change if parliamentary time allowed and would reflect the new definition in Clause 52 of this Bill as necessary.

As I said in Committee, the Government think it appropriate to take the matter forward in the way I have stated for the reasons I have given. We believe that it is compatible with what we wish to do. We make the commitments I have given already as regards the review of the noble Lord, Lord Carlile. I hope that the noble Lord feels reassured and able to withdraw the amendment.

Lord Avebury: My Lords, the noble Baroness's disagreement is not with these Benches: it is with the UNHCR, the custodian of the convention. It is for that body to decide the proper way for the statute to be interpreted. I am glad to know that the noble Baroness has had these consultations with members of the UNHCR since the letter of 10 November and the further letter in December in which it reinforced its opinion. I am certain I can predict that in those conversations it did not resile from the position that we are setting a bad example and that, inevitably, many of the other 146 states which are parties to this treaty will reconsider their own position. There could even be a leapfrogging in the narrowing of the definition of people who come within Article 1F.

The situation is already very difficult where a person may technically have committed an act of terrorism. I take the example of a person from this country who is applying for asylum elsewhere. He was found to have committed criminal damage to council offices in pursuance of his opposition to the poll tax, when it existed. Technically, that person would be a terrorist. Anyone who damaged council property in pursuance of the political objective of getting the poll tax abolished would, within the definition adopted from the Terrorism Act 2000, have been a terrorist. In such legislation, one would not be able to question whether the surrounding circumstances were such as to make it advisable and desirable to grant that person protection because he would be a terrorist. He would be excluded from protection by the mechanism the Government have chosen.

We should continue to consult the UNHCR. We should continue to bear in mind the effect which the Minister did not mention: that other states would copy the example we set and that thereby more people would be excluded from protection in a way that the UNHCR and most of us would consider highly undesirable. However, we shall not make further progress today. Therefore, I beg leave to withdraw the amendment.
 
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Amendment, by leave, withdrawn.

Baroness Ashton of Upholland moved Amendment No. 46:


"(2) In this section—
"the Refugee Convention" means the Convention relating to the Status of Refugees done at Geneva on 28th July 1951, and
"terrorism" has the meaning given by section 1 of the Terrorism Act 2000 (c. 11)."

The noble Baroness said: My Lords, after the introduction of the Bill, we identified an overlap between the appeal provisions in Clause 52(2) and Section 33 of the Anti-terrorism, Crime and Security Act 2001 as regards appeals on Article 1F of the refugee convention.

The provisions have a similar intention; that is, to provide in cases where the Secretary of State considers that a person's criminality or other activities excludes them from the protection of the refugee convention for the appellate bodies to consider those issues first when determining an asylum appeal. However, while these provisions have the same aim, there are procedural differences between them which mean that they cannot work together. The amendment is designed to address them. It removes the appeals provisions from Clause 52, repeals Section 33 of the 2001 Act and inserts into the Bill a new clause, refugee convention certification.

I want to draw noble Lords' attention to three aspects of the new clause. First, it has a broader scope than Clause 52(2) as it makes statutory provision for appeals brought on grounds relating to the national security aspects of Article 33(2) of the refugee convention as well as Article 1F.

Secondly, under the new clause, the Secretary of State will certify that an appellant is not entitled to the protection of the refugee convention because 1F and/or Article 33(2) applies and requires the asylum immigration tribunal and SIAC to begin substantive deliberations on the asylum appeal by considering the certificate.

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Thirdly, while Section 33 of the 2001 Act excludes the possibility of judicial review in relation to decisions connected with the certification, the asylum claim or decisions made as a consequence of all or part of the asylum appeal, we have decided not to replicate this in the new clause. Individuals affected by SIAC decisions have a statutory right of appeal to SIAC. Decisions taken in connection with a certificate can therefore be challenged through this appeal route.

In summary, the amendment does two things. First, it tidies up the statute book to ensure that two legislative provisions do not impact on the same situation in a slightly different way. Secondly, it
 
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removes from the statute book a provision that excluded the possibility of judicial review on specific SIAC decisions. I beg to move.


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