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Baroness Anelay of St Johns: My Lords, I thank the Minister for her explanation of these amendments. I seek an assurance from her about the position on something I raised in Grand Committee. Given her explanation, I suspect she will easily be able to give me reassurance. As I have given her advance notice, it is a matter on which I require something to be put clearly on the record.
In Grand Committee, on 19 January at col. 258, I asked how Clause 52 would affect the position of child soldiers. There must be occasions when such children will seek to come here for refuge. We would all hope and expect that their application will be considered positively on the basis that they acted under duress. All too often we hear of children as young as 10 or even less being kidnapped and, by force majeure, forced to become soldiers. They are traumatised, often given drugs so that they can be kept in thrall, and they can be psychologically as well as physically damaged.
In the light of the Government's amendments to Clause 52 and their tabling of the new clause after Clause 52 today, I therefore need to ask the Minister to confirm whether her undertaking given in Grand Committee holds true for the new clause.
Lord Dholakia: My Lords, I wish to speak to government Amendment No. 48, which inserts a new clause after Clause 52. It replaces the other provision in Clause 52 and also repeals and replaces Section 33 of the Anti-terrorism, Crime and Security Act 2001. Section 33 applied only in national security cases considered serious enough that they should be heard before the Special Immigration Appeals CommissionSIAC. The new clause will apply similar provisions to asylum appeals which do not meet this level of seriousness.
It is no good the Government seeking to justify this clause by referring to cases raising serious national security concerns. Those cases undoubtedly will go to SIAC. Under Section 97 of the Nationality, Immigration and Asylum Act 2002, cases are sent to SIAC if the Secretary of State, acting in person, certifies that the decision appealed was taken wholly or partly on the basis that the person's exclusion or removal from the United Kingdom would be in the interests of national security, or in the interests of the relationship between the United Kingdom and
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another country; or where the decision was taken on the basis of information that in the opinion of the Secretary of State should not be made public in the interests of national security, in the interests of the relationship with the United Kingdom and another country or otherwise in the public interestmaybe the interest of national security.
What examples can the Minister give of the people at whom this clause is aimed, since it is not aimed at those who raise national security concerns? How can the Minister justify using a procedure previously reserved for national security cases in such cases? My noble friend Lord Avebury raised the information supplied by the UNHCR. It has provided detailed criticism of the way in which the Government have interpreted Article 1F in the clause, which makes clear that the use of the definition of terrorism in the 2001 Act is a misinterpretation of that article. It notes:
"the assertion in Security Council resolutions that an act is "terrorist" in nature would not by itself suffice to warrant the application of Article 1F(c), especially, as there remains no universally accepted legal definition at the international level".
are persons who could act contrary to the principles and purpose of the United Nations and fall within 1F(c). So, the clarity is already there. Article 1F(c) envisages acts of such a nature as to impinge on the international plane in terms of gravity, international impact and implications for international peace and security.
The Government attempt to justify the new clause by reference to Security Council resolutions, as the Minister did both in Committee and in her letter of January 2006 to the House of Lords Constitution Committee, but we do not believe that that stands up to argument. In Committee in the House of Commons, the Minister of State noted that there had been 32 exclusions under the whole of Article 1F in 2004. He accepted that they could not point to any cases where the absence of the clause had led to a person being recognised as a refugee who should not have been so recognised. Such a case is not going to be found among the cases that do not pose sufficient threat to warrant their going to SIAC, and thus the justification for the new clause appears weak.
"To give effect to the Government's stated purpose of merely making explicit what Article 1F(c) implicitly requires, the clause would need to be amended to decouple it from both the broad definition of 'terrorism'"
"We share the view of others that it is not appropriate for Parliament acting unilaterally as a national legislature to reinterpret in this way an international treaty to which the UK has become a party."
In response, the Government cited two examples of their doing so: Section 72 of the Nationality, Immigration and Asylum Act 2002, which purports to interpret the meaning of "particular serious crime" under Article 33(2) of the refugee convention, and Section 31 of the Immigration and Asylum Act 1999.
All that is at odds with the convention's objective and purposes. Moreover, it runs counter to the longstanding understandings developed through state practice over many years regarding the interpretation and application of Article 33. We see no good reason for including Clause 52 in the Bill and very good reasons for not doing so.
Lord Hylton: My Lords, I rise briefly to support the noble Baroness, Lady Anelay of St. Johns, because she raised the issue of child soldiers. These wretchedly exploited people pose serious problems in Uganda, the Congo, Sudan and West Africa and probably sometimes also in Asia and South America. The problem is worldwide and urgent and I hope that the Minister can say something helpful about them.
Baroness Ashton of Upholland: My Lords, I begin with the noble Lord, Lord Hylton, and the noble Baroness, Lady Anelay. I stand by everything that I said in Committee and reiterate it. That will be done on a case-by-case basis. It is clear to all of us that if there is compulsion or coercion, we are not dealing with a terrorist. In the case of child soldiers, that could not be clearer. I hope that noble Lords will take that as an absolute certaintythe Government will look very carefully, case by case. Where a child has been coerced by any means, they could not conceivably be a terrorist and we will act on that basis. I want to be as clear as I possibly can on that. I am very grateful to the noble Baroness and the noble Lord for raising what is an important issue in that context.
The purpose of my amendment was to try to bring together what we saw as two bits of legislation that were rubbing along each other in an inappropriate way. I know that the noble Lord, Lord Dholakia, is concerned that the Government's amendment slightly expands what is in Section 33 of the 2001 Act. We seek through the amendment to ensure that there is a certification procedure for appeals involving all exclusion cases. We are trying to ensure proper safeguards in all such cases and, in a sense, to try to tidy up the statute book. That is not quite consolidation in the way that the noble Lord, Lord Avebury, seeks, which we have already addressed during the passage of the Bill, but we are trying to tidy it up.
On the particular question raised by the noble Lordthat the UNHCR's paper suggested that it appears that only those who have been in power in a state or a state-like entity, for argument's sake, are
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capable of committing such actsit is clear that in the case of KK v Immigration Appeals Tribunal, that was rejected. The tribunal stated:
"owing at least partly to the growth of terrorist activity, it is now accepted by almost everybody that the meaning of Article 1F(c) is not so confined . . . we are perfectly content to hold that a private individual may be guilty of an act contrary to the purposes and principles of the United Nations, and we see no difficulty in reading the words in this way . . . we should have some difficulty in confining 1(F)(c) to individuals who control States".
That is a clear indication of how we have sought to address questions about Clause 52, interpretation and the dialogue that we have with UNHCR in London. That dialogue continues. We seek to ensure that it is fully aware of what we seek to do and why, but there are areas in which we have a fundamentally different view. I cite that as an example where we have looked carefully to interpret who is covered.
I do not really know what else I can say to the noble Lord, Lord Dholakia. We disagree. It said in my briefing that there should be part of our proposals that the Liberal Democrats, in particular, would likenot least the removal of the judicial ouster, which I thought would be dear to the noble Lord's heart, but it is clearly not dear enough. The purpose of this group of amendments is to try to make the legislation work more effectively. I hope that, reflecting on that, the noble Lord will not press his amendment.
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