HL Deb 11 December 2001 vol 629 cc1238-56

3.7 p.m.

Read a third time.

Clause 26 [Certification: review]:

Lord Goodhart moved Amendment No. 1: Page 14, line 24, after "that" insert "at the time of the review The noble Lord said: My Lords, in moving Amendment No. 1, I shall speak also to Amendments Nos. 2 and 3. These amendments are based on the 5th report of the Joint Committee on Human Rights, which was published last week. Clause 25(2)(a) of the Bill provides that on appeal, SIAC must cancel a certificate issued by the Home Secretary under Clause 21 if it considers that there are no reasonable grounds for believing that the appellant's presence in the UK is a threat to national security or there is no reason to suspect that he is a terrorist. Under Clause 25(2)(b) SIAC must also cancel the certificate if it considers for some other reason that it should not have been issued. For example, that could be relied on in a case where there has been a procedural irregularity in the issuing of the certificate.

I turn to Clause 26, which deals with SIAC's powers on review, as opposed to an appeal. On review, SIAC can cancel a certificate only if there are no reasonable grounds for the belief that the appellant's presence in the UK is a threat to national security or that there is no reason to suspect that he is a terrorist.

SIAC has no power to cancel a certificate for any other reason.

Clause 26 raises two problems that were considered by the Joint Committee on Human Rights. First, it is not clear that SIAC can cancel a certificate if the Home Secretary had a reasonable belief or suspicion at the time he issued the certificate but subsequently new information shows that that belief was mistaken. That difficulty is covered by Amendment No. 1. It makes clear that the reasonableness of the belief or suspicion must be based on facts as known at the time of the review and not simply on the information available at the time of the certificate.

Secondly, SIAC cannot, on a review as opposed to an appeal, cancel the certificate on the basis of a procedural irregularity, which means that the certificate was not validly issued, even though it would have been cancelled if the proceedings had been by way of appeal rather than review. There seems to be no logical reason for distinguishing between the powers of SIAC on an appeal under Clause 25 and on a review under Clause 26. The Joint Committee on Human Rights rightly considered that the powers on review should be brought into line with those on appeal.

Amendment No. 3 covers a different point. It was raised by the Joint Committee on Clause 27(9). At present it states: Cancellation by the commission of a certificate issued under section 21 shall not prevent the Secretary of State from issuing another certificate, whether on the grounds of a change of circumstance or otherwise". On the face of it, that gives the Home Secretary power to issue a new certificate if, for example, he disagrees with the conclusion of SIAC that the detainee was not a threat to national security. He could grant a new certificate and start all over again, perhaps with a new SIAC panel. On that issue the Joint Committee stated: This could result in cases being batted backwards and forwards indefinitely between the Secretary of State and the Commission, and would not offer adequate protection for detainees against arbitrary interference with their right to liberty under Article 5 of the ECHR". Some time ago the Home Secretary said that he was willing to look again at the wording of Clause 27(9). However, the Government have not come up with any new wording.

I go back to the report on the issue. It states: We believe that it should be possible to amend clause 27(9) in a way that will reflect the Government's intentions, which seem to now to have been spelt out sufficiently clearly to enable a satisfactory amendment to be drafted. The Secretary of State could be enabled to issue a new certificate if, and only if, (a) there is fresh evidence, (b) the original certificate was quashed on technical grounds rather than because there were insufficient grounds for making it, or (c) there has been a material change of circumstances justifying the making of a new certificate. We still consider that the sub-clause as currently drafted does not provide adequate safeguards against arbitrary detention". Amendment No. 3 achieves the objectives pointed out by the Joint Committee. New paragraph (a) allows a new certificate to be issued where SIAC cancelled the original certificate on technical grounds but does not allow a new certificate to be issued where SIAC disagreed with the Home Secretary's conclusion that reasonable grounds for the relevant belief or suspicion existed. New paragraph (b) covers the case of new evidence or some other change of circumstances.

We want to hear what the Government have to say on these issues. These are obviously issues which would have been better brought up at an earlier stage in the passage of the Bill through the House. However, owing to the extremely tight schedule that has been imposed on your Lordships' House, that has not been possible. I hope that, even at this late stage, the Government will be prepared to accept these uncontroversial amendments. If they need drafting improvements those can be provided in the other place. I beg to move.

3.15 p.m.

Lord Lester of Herne Hill

My Lords, I am sure that the Joint Committee, of which I am a member, will be grateful to my noble friend Lord Goodhart for drafting the amendments in accordance with the recommendations of its report. My noble friend has put the matter so clearly that I wish to add only a couple of additional points.

First, given that this is a derogation from the fundamental right to liberty and that the European convention requires the Government to demonstrate that the derogation is strictly necessary to meet the exigencies of the situation, the Joint Committee in both its reports attached particular importance to there being adequate safeguards against abuse of these wide powers. One of the ways in which it sought to do that is by narrowing the otherwise broad words in the way that these three amendments seek to do.

At the back of the Second Report of the Joint Committee on Human Rights there is the evidence given by the Home Secretary, David Blunkett. If Members of the House are interested and look at col. 5, question 34 onwards, that is where the matter of Clause 27(9) is dealt with. Vera Baird, a Labour MP, who is a member of the committee, asked the Home Secretary questions about the vagueness and unsatisfactory nature of Clause 27(9). The Home Secretary said: I am, unusually for me, pausing because the intention is that there would have to have been a change in circumstances or material evidence that has not previously been available, in circumstances where I would take the case back to SIAC having failed". He went on to state: We did consider the question of whether a certificate could be issued by any Home Secretary in circumstances where it was necessary to override such a judgement. I adduced that that would be a breach or human rights and would not be an acceptable process, nor did I think that it would accord with the terms of the derogation which were envisaged by those who drafted the Convention". Then he said: So I am prepared to look at the term 'otherwise—'". Mr Harry Carter, the assistant legal adviser at the Home Office, asked whether he could assist the committee. The Home Secretary invited him to do so. The legal adviser said: One of the reasons for the words 'or otherwise' is to deal with the case where SIAC cancels a certificate on appeal, but the Secretary of State appeals that cancellation in a court of law and wins that appeal in a court of appeal. In that type of case he might wish to issue a fresh certificate". Then the Home Secretary said: We need to make sure that we make that absolutely clear then, because we are otherwise asking for the appeal to go back to SIAC". Vera Baird then said: Thank you very much", and went on to another matter.

We took that to be very encouraging. It shows, in the words that the noble Lord, Lord Rooker, has used several times, that this is a listening government; that they are open-minded; and that, on the crucial question of safeguards against abuse, they are willing to write them into the Bill. Therefore, we very much hope that that can now be done, even at this late stage, in order to produce a wide consensus and make it less likely that lawyers will successfully challenge the compatibility of the measure as applied before British courts or before the European Court of Human Rights.

The Lord Bishop of Portsmouth

My Lords, I am grateful to the noble Lord, Lord Goodhart, for moving the amendment. It is very much in sympathy with some of the themes of the critique made of the Bill; namely, the function and workings of SIAC. The amendment will give SIAC more teeth and—if I may add to the imagery—not tie its hands behind its back too much.

Lord Rooker

My Lords, I should say at the outset, because we have a small group of amendments to deal with on Third. Reading, that we have continued—right up until I came to the Chamber—to consider the issues raised in the House and by the Select Committee. While we do not necessarily agree with all the points made or all the amendments, that does not mean that we have not given them serious consideration.

This group of amendments relates to the operation of SIAC and the issuing of certificates. We agree with the intention behind Amendment No. 1, tabled by the noble Lords, Lord McNally and Lord Goodhart, but I hope that I can persuade your Lordships that it is unnecessary because the Bill already delivers the outcome that they seek.

The Special Immigration Appeals Commission is not exactly a high-profile body in the country at large, but we have given it a good airing. It has not just turned up. It is not created by the Bill. It was legislated for in 1997 by both Houses—by and large without dissent, as far as I am aware. So it is not a court invented for the purpose of the Bill; it is already in operation—although I accept that so far it has dealt with only three cases. It is indeed special Lind was set up to deal with a highly limited number of cases.

SIAC will be able—indeed, it is required—to take account of information post-dating the Secretary of State's decision at the review stage as well as at the appeal stage. That requirement stems from the wording in Clauses 25(2)(a) and 26(5)(a) respectively. Those provisions are identically worded and state that a certificate is to be cancelled if SIAC considers that there are no reasonable grounds for "a" suspicion or belief. So on review, as well as at the appeal, SIAC will need to come to its own view as to whether there are reasonable grounds for "a" suspicion or belief, and in doing so it will have regard to relevant information that has come to light since the original decision—including, where applicable, since the appeal or previous review.

I appreciate that the Joint Committee on Human Rights in its discussion at paragraphs 12 to 16 of its second report, issued a few days ago, may have come to a somewhat different reading of what the wording in the review provision means. But we are clear that the current wording does require SIAC to take account of all relevant information up to the time that it hears the review, and that it is compliant with Article 5(4) or the European Convention on Human Rights.

Amendment No. 2 would provide for the review procedure an additional ground on which SIAC could cancel a certificate. That would bring the wording mole closely into line with that in Clause 25 relating to the appeal, although they would not be made identical. There is a reason why the two clauses differ. The provision in Clause 25(2)(b) of the Bill—namely that SIAC considers that for some other reason the certificate should not have been issued"— is there specifically to enable SIAC to cancel a certificate where there has been some form of procedural irregularity. That issue will not arise at the review stage as, if there had been any irregularity in making the Section 21 certificate, the matter would already have been considered by SIAC at the appeal stage.

Lord Goodhart

My Lords, I am grateful to the Minister for giving way. Is it not a distinct possibility that, in some cases, there could be a review when there has been no previous appeal?

Lord Rooker

My Lords. I hope that I shall he able to address that point. If I may, I shall continue but shall certainly return to that point.

There would be no scope for procedural irregularity in the making of a certificate to arise between the appeal and a review, or between one review and the next. We accept that SIAC would be able to cancel a certificate on review under the amendment only where the certificate could not properly have been issued immediately before the review if it had not previously been issued". But that seems to envisage a situation in which a review follows immediately upon the issuing of a certificate. There is no realistic prospect of such a situation arising because, following the making of a certificate, the first avenue of redress for the person concerned is an appeal, not a review. On appeal, procedural irregularities can be addressed. The right to an immediate appeal against a certificate applies as much to a second certificate issued in respect of the same individual as it does to a certificate issued for the first time to an individual.

I should also add that we believe that there is more than adequate opportunity for a person to make an appeal to SIAC, especially following the amendment that we made on Report enabling SIAC to hear out-of-time appeals in appropriate cases. We do not therefore think that an equivalent of Clause 25(2)(b) needs to be provided in Clause 26(5).

I now turn to Amendment No. 3, which returns us to an issue that we have previously debated: the circumstances under which it is open to the Secretary of State to issue a certificate under Clause 21 after SIAC has cancelled a previous certificate. The amendment identifies three exhaustive cases under which it would be open to the Secretary of State to remake a certificate—provided, of course, that the other requirements have been met. They correspond to the cases identified by the Joint Committee on Human Rights. They also correspond to the list of potential circumstances that the Government mentioned in debate at an earlier stage of the Bill, although we also mentioned a fourth circumstance—namely, where a decision by SIAC to cancel a certificate had been overturned.

As I said in Committee, we fully understand your Lordships' wish to ensure that the Bill does not give the Secretary of State arbitrary power to reissue a Clause 21 certificate in defiance of a decision by SIAC to cancel the first certificate. We have continued to give thought as to whether an alternative formulation can be found to that currently in Clause 27(9), but, to be honest, we remain of the view that the current wording is the best.

We accept that the list provided in the amendment, possibly with the addition of the fourth circumstance to which I just referred of an overturned certificate, captures all the circumstances that we—and, I suspect your Lordships, otherwise there would have been more items in the list—can currently think of where it might be justifiable for a new certificate to be made. But there is always a risk in creating an exhaustive list that something that none of us have thought of will be overlooked, and we do not want to take that risk in this area.

Another approach, which was referred to in Committee or on Report, would be to delete Clause 27(9) and argue that the Secretary of State would be able to issue a fresh certificate in appropriate cases. But that carries risks, the greatest of which is that if the Bill is silent on the matter, the consequences would be uncertain. We therefore prefer to include the provision in the Bill.

We confirm, as we did in Committee, that the intention is that the Secretary of State will issue a fresh certificate only where that is justified. SIAC would take a dim view of any Secretary of State who seemed to be ignoring its decisions, and would, I am sure, cancel any inappropriately made future certificate in short order. It would clearly be in possession of all the facts and the reasons why the second certificate had been issued, and those reasons would have to be good.

Furthermore, it might well be a breach of Article 5(4)—and perhaps also of Articles 6 and 13—of the European Convention on Human Rights for the Secretary of State to take such a course without justification. So it would not just be SIAC that would take a robustly dim view of a Secretary of State acting irresponsibly and arbitrarily; it would be open to challenge by authorities outside SIAC under those articles of the ECHR, with which we of course want to comply. For those reasons I ask the noble Lord to withdraw his amendment, but I shall of course he happy to answer—or to try to answer—the question that follows.

Lord Lester of Herne Hill

My Lords, realising the procedural position that we are now in, I shall be brief in my question, but it is important to get the matter clear. The words "or otherwise" are completely unfettered. That is the problem. As I understand it, the Minister said that although they are unfettered, they may well have to be read down—given some limited effect—in order to comply with the relevant provisions of the European Convention on Human Rights. But then he said that that may happen outside SIAC.

In order to be absolutely clear, will the Minister confirm that I am right in thinking that SIAC, as the Attorney-General has accepted, will he bound by the Human Rights Act to apply the European Convention on Human Rights; that SIAC will have all the powers of judicial review that a judicial review court will have; and that SIAC will therefore be able to ensure that the words "or otherwise" are not used to authorise arbitrary detention? The Minister understands that I am putting the question because it ties in with the exclusion of judicial review.

3.30 p.m.

Lord Rooker

My Lords, exactly, and I believe that the noble Lord has got it right. As I suspect that I have caused apoplexy in the Box to my left, I must add that the words "outside SIAC" do not appear anywhere in my notes. The fact is that we want to be compliant with the European Convention on Human Rights. We have derogated from Article 5, using the procedures set out.

The noble Lord is right in saying that the words "or otherwise" stand in the Bill but they are fettered in the way he has described. First, SIAC would take a dim view of a Secretary of State who without good reason simply issued another certificate after the first had been cancelled. Secondly, the Secretary of State in doing that, or in contemplating doing that, would be under legal advice from the Law Officers and others who would be involved in such cases, pointing out the high risk of possible breaches of Articles 5, 6 and 13 of the European Convention on Human Rights. That does indeed fetter the Secretary of State and, although it is not another limb as regards the words "or otherwise", the fact that those words appear in the background means that the words are fettered in the way the noble Lord described.

Lord Lester of Herne Hill

My Lords, the only matter which is still unclear to me is that there is a derogation from Article 5. Therefore, I do not understand how SIAC or any other court will be able to read it in the context of Article 5. I do not expect the Minister to have an answer to that, but I should be grateful if he could have one at some stage.

Lord Rooker

My Lords, I do not have an answer to that question off the top of my head. However, I shall get one—I shall indeed get one—but I do not know whether it will be during today's proceedings. If so, I can interject and give the noble Lord the answer.

The derogation is from Article 5.1, not Article 5.4, so it is not a complete derogation from Article 5. I am pleased that I have had the opportunity to put that on the record because a derogation from the European Convention on Human Rights is extremely narrow and targeted. We did not want to take that action but it was the only course open to us. We are happy to be "fettered" by the rest of the European Convention.

Lord Campbell of Alloway

My Lords, I am grateful to the Minister for giving way. He got it absolutely right when he said that these matters will be considered outside SIAC. I believe that he was right because the noble and learned Lord, Lord Donaldson, said that SIAC did not have the full powers of judicial review and that there was a residual jurisdiction.

I intervene only because when the noble Lord, Lord Rooker, said what he said I was taken straight back to what the noble and learned Lord, Lord Donaldson, said. I think that the noble Lord has got it right.

Lord Rooker

My Lords, yes, I am extremely fettered myself in responding to that comment. Some noble Lords will understand but will not necessarily sympathise with me. However, I believe that the noble Lord, Lord Campbell of Alloway, is right in what he says about the noble and learned Lord, Lord Donaldson.

Lord Goodhart

My Lords, I thank the Minister for his answers to Amendment No. 1, which is satisfactory. It is clear and on the record that the Bill is intended to give SIAC power to look at the facts as they exist at the time of the appeal or review and not simply as they existed when the certificate was granted.

We are less satisfied with the answers to Amendments Nos. 2 and 3. Amendment No. 2 does not deal with what I believed may be a problem. It is that some detainees may not appeal, so the first time SIAC will come across a case will be at its first review at the end of the initial six months. Even if at that stage SIAC identifies a procedural irregularity, which would have meant that the certificate ought not to have been issued, it will be unable to deal with it.

As regards Amendment No. 3, it seems to me that we have not entirely met the problems raised by the Joint Committee on Clause 27(9). That shows one of the problems of dealing with the Bill too rapidly. Had we been given more time, it would more than likely have been possible to agree a satisfactory form of wording. As it was, it was not possible.

We do not intend to press the amendments further and I beg leave to withdraw Amendment No. 1.

Amendment, by leave, withdrawn.

[Amendment No. 2 not moved.]

Clause 27 [Appeal and review: supplementary]:

[Amendment No. 3 not moved.]

Clause 33 [Certificate that Convention does not apply]:

Lord Dholakia moved Amendment No. 4: Page 18, line 4, leave out "issues" and insert "has issued both a certificate under section 21 in respect of the appellant and The noble Lord said: My Lords, Amendment No, 4 is grouped with Amendment No. 5 and it deals with Clauses 33 and 34, which were Clauses 34 and 35 at the Report stage.

The aim of our amendment is to restrict the number appearing before SIAC. In reality, no one other than those against whom a certificate has been issued—and I suspect that the number will be low—will fall into the category. To an extent, our amendment will restrict the free-standing nature of the clauses. That is precisely what the Minister tried to do and failed at the Report stage.

Our main concern is two-fold. First, genuine asylum seekers may be victimised as a result of public prejudice and unduly restrictive legislative or administrative measures; and, secondly, the carefully built refugee protection standard may be eroded. Current anxieties about international terrorism risk fuelling a growing trend towards the criminalisation of asylum seekers and refugees. Asylum seekers increasingly have a difficult time in a number of states, either accessing procedure or overcoming presumptions about the validity of their claims, which stems from their ethnicity or mode of arrival. The fact that asylum seekers have arrived illegally does not vitiate the basis of their claim. The fact that certain ethnic or religious backgrounds may be shared by those who have committed grave crimes does not mean that they themselves are also to be excluded.

We saw the evidence of that during the time of the Gulf crisis when a substantial number of people were locked up either because they were Iraqi or because they came from the Arab states. The culmination of that was that at the end of the process all of them were found to have no claim against them and were granted asylum in this country.

At the Report stage, the noble Lord, Lord Rooker, spoke at length in order to assure us about the difficulties of unifying Clauses 34 and 35, now Clauses 33 and 34. He has obviously failed, but I suspect that our amendments give him a leeway in which he can address the matters in a proper manner. I do not want to rehearse the arguments which we put forward at the Report stage last Thursday, but perhaps I may take up some of the comments the Minister then made and offer our observations now on what he said then.

The noble Lord, Lord Rooker, suggested (col. 1042) that the thrust of most of the speeches against Clauses 4 and 35 was that Articles 1(F) and 33.2 of the refugee convention should not exist. That is not the case. We want to reaffirm our commitment to the current convention regime where exclusionary factors are considered currently with inclusionary factors. Does the noble Lord, Lord Rooker, mean to suggest that the intention of the legislation is to give effect to Articles 1(F) and 33.2? Those articles already have effect in UK law and therefore there is no need for additional legislation to give effect to Articles 1(F) and 33.2.

It is in any event unrealistic to suggest that inclusionary and exclusionary aspects can be neatly separated in all cases. The noble Lord stated (col. 1043) that we should not just take an ill-considered decision on exclusion without hearing the person's case and that nothing in the clause is intended to produce such an approach. Does the noble Lord, Lord Rooker, mean that the inclusionary aspect will be considered if that is deemed necessary in order to assess the exclusionary aspect of the claim? How might that be judged? Can the Government give an assurance that all the relevant factors will be assessed? How will that be possible if the full asylum hearing is denied?

It is worth noting that the exclusion of a full examination of the asylum aspects of a claim in the first instance could generate further bureaucracy and costs in cases where the Secretary of State later revokes a Clause 34 certificate or where the issue of the certificate is quashed by SIAC under the terms of Clause 33(5). In such a case the applicant would have to go back to the beginning in order to have the inclusionary aspect of the claim examined once more. Considerations of time and expense are always persuasive when establishing practical guidelines.

Moreover, it is possible that in certain cases the Secretary of State will be legally obliged to rule on a refugee claim irrespective of the applicability of the exclusion clause. That possibility would arise in the context of spousal and dependent refugee claims.

My noble friend Lord Avebury has pointed out that it is not stated on the face of the Bill that factors leading to a proper consideration of an individual's case would be fully considered before a certificate is issued under the terms of Clauses 34 and 35. My noble friend went on to say that the Secretary of State should be required to consider proportionality in each case, to which the noble Lord, Lord Rooker, responded by saying: I take it as axiomatic that those considerations will be in the mind of the Home Secretary before he issues a certificate".—[Official Report, 6/12/01; col. 1044.] Can the Government confirm that the proportionality test, as codified in the terms of the refugee convention, will remain intact under the new legislation?

Clauses 33 and 34 concern certification by the Secretary of State for the purposes of expulsion, whereas Clause 21 concerns certification for the purposes of detention. Do the Government agree that, under the terms of Clause 21, there are no equal provisions for removing the asylum seeker's right to have his or her full asylum claim examined? Indeed, we have been given to understand that, under Clause 21, the suspected terrorist will remain entitled to have the inclusionary elements of his or her claim assessed at the same time as the exclusionary elements are addressed. Does the noble Lord acknowledge the absurdity of creating a higher standard for cases to be brought before SIAC, which merely concern issues of national security, than more serious cases of suspected terrorism under Clause 21? I beg to move.

Lord Hylton

My Lords, I rise to support these two amendments. It would be desirable to ensure that the number of cases going before SIAC should be kept to an absolutely irreducible minimum. I say that because those hearings are closed. The public is not admitted and no media are present. The whole procedure is opaque and held in secret.

Perhaps I may add that, in my view, it is extremely desirable that hearings concerning the vast majority of normal asylum claim cases should be conducted in full under the most open procedures. The amendments would provide a means to ensure that that would take place.

The Lord Bishop of Portsmouth

My Lords, I know that repetition is not a virtue, in particular at Third Reading, but like the noble Lord, Lord Dholakia, I am disappointed that, since this matter was debated on Report we have not made the progress towards a possible amalgamation of these clauses that some had hoped to achieve. Frankly, I would prefer it if the two clauses were not included in the Bill, for the reasons given in the debate held last Thursday night. I hope that the amendments will be given active consideration, even at this late stage. I think it is extremely important to achieve progress in this area.

Lord Campbell of Alloway

My Lords, I rise briefly to support the amendments. In my personal opinion, they are amendments of substance. They are important and essential. I hope that the Minister will take them at more than their face value. The amendments form a part of the machinery of this statutory form of justice.

3.45 p.m.

Lord Avebory

My Lords, I do not wish to add much to the comments I made in the debate on Report. However, in light of the fact that tomorrow we are to hold a debate on Zimbabwe, perhaps noble Lords would like to consider during the course of those proceedings the treatment of Zimbabwean asylum seekers in the United Kingdom. Most asylum seekers are fast-tracked through Oakington. They tend to finish up in prison or being held in a detention centre. Finally, they are sent back to a country where the rule of law does not prevail.

Under the terms of the Bill as it stands, the Secretary of State would have the power to issue a certificate stating that a person who came here from Zimbabwe, having been convicted of an ordinary criminal offence in the courts of that country, would not be eligible for substantive consideration of his application for asylum. However, we know that the courts in Zimbabwe have been suborned and fatally undermined by President Mugabe. We have seen the recent report produced by representatives of the International Bar Association as a result of their visit to Zimbabwe last March. We have also seen the report of the Commonwealth mission on the failure of President Mugabe to observe the terms of the Abuja accords.

The situation in the country is very well known; namely, that it is not possible to trust the convictions of a Zimbabwean court of law. Preferential prosecution of members of the opposition is widespread and members of the MDC are constantly under threat of being arrested, thrown into prison and sometimes suffer torture before being brought before the courts of law.

Under the terms of Clause 34, an individual who came to this country from Zimbabwe to claim asylum could become the subject of a certificate issued by the Secretary of State. My noble friend has already pointed out that other instances were drawn to the attention of the noble Lord, Lord Rooker, at the previous stage. The Minister responded by commenting that the Secretary of State would hear those matters "in mind" when considering whether to issue a certificate. But it does not say that on the face of the Bill. There is no form of words to make it plain that the Secretary of State would consider the proportionality of signing a certificate against all the surrounding circumstances pertaining in a country such as Zimbabwe.

I think that the Minister should seek to reassure the House by adding to what he said during the previous debate. He should promise that, when the Secretary of State issues a certificate, he will make clear what factors he took into consideration and how he sought to strike a balance between the fact that an individual might have been technically ineligible under the terms of Article 1(F) and the considerations that I have already mentioned regarding the application of the rule of law in the country concerned. If a certificate was accompanied by such a statement it would be, in effect, equivalent to a substantive determination of the individual's asylum application. In this way the Minister would be able to reassure the supporters of the amendment that the power will not be misused.

Lord Thomas of Gresford

My Lords, it is important to try to grasp what Clauses 33 and 34 seek to achieve. We are considering here the circumstances where a refugee, or an alleged refugee, has applied for asylum and has failed in the first instance to establish the main ground; namely, that he has a well-founded fear of being persecuted for reasons of race, religion, nationality and so forth. The individual then lodges an appeal to the Special Immigration Appeals Commission. At that stage, the Secretary of State would intervene and slap on to that individual a certificate, which will have the following effect.

The commission, which would normally balance the arguments as regards whether there is a well-founded fear of persecution, would then turn away from the issue raised in the appeal itself to consider whether the Secretary of State was right intervene by issuing the certificate on the appellant. If, having examined the statements and certificate, the commission agrees with the former, the appeal is dismissed without the commission ever considering the gravity of the events or fear—by virtue of which Article 1A would or might apply to the person or the threat by reason of which Clause 33(1) might apply. The Secretary of State's intervention completely distorts the appeal process.

That apart, under Clauses 33 and 34 the asylum seeker does not have to be a suspected terrorist. Clause 33 does not make clear what it is that the commission considers when deciding on the statements and the certificate. The clause does not state, for example, that SIAC will take evidence on either side—only that it will consider the statements. Presumably the commission is entitled to or must take into account evidence on either side but only in relation to the statements in the certificate—not to the applicant's well-founded fear of persecution.

That seems to be an extraordinary interference in the provisions regarding a commission which we have been told will in effect exercise the jurisdiction of the High Court by way of judicial review. The commission will not be reviewing the decision against which the appeal is brought. It will be sidetracked into reviewing something quite different.

Article 32(2) of the 1951 United Nations convention states that the expulsion by a contracting state of a refugee, shall only be in pursuance of a decision reached in accordance with due process of law. Except where compelling reasons of national security otherwise require, the refugee shall be allowed to submit evidence to clear himself, and to appeal to and be represented for the purpose before competent authority or a person or persons specially designated by the competent authority". Presumably the Government are trying to take account of except where compelling reasons of national security otherwise require". That brings us within the scope of the anti-terrorism provisions for suspected international terrorists. Amendments Nos. 4 and 5 seek to ensure that the curious intervention by the Secretary of State in the normal appeal process will only be in circumstances where he is in a position to issue a certificate under Clause 21, believing that the asylum seeker is a suspected international terrorist. We take the view that it would be wrong to apply Clauses 33 and 34 to every asylum seeker, whether or not he is a suspected international terrorist.

If this is truly an anti-terrorism Bill, we invite the Government to reconsider whether it is necessary to include provisions that apply to all asylum seekers or whether intervention by the Secretary of State shall take place only where he is also of the view that the person is a risk to national security and suspects that the person is a terrorist.

If those small amendments were made, that would greatly alter the scope of Clauses 33 and 34 and maintain our world standing as the foremost country for the protection of people who seek relief from persecution. In that spirit, I urge the Minister to think again.

Lord Rooker

My Lords, I am grateful to noble Lords who tabled the amendments as they provide the opportunity to revisit the issue in the latter stages of the Bill. The substance of Amendment No. 5 in particular was debated on Report.

As to Amendment No. 4, the provisions in Clauses 33 and 34 are separate from those in Clauses 21 to 32 and do not cover exactly the same set of people. Nor are they intended to do so. A person may be identified as a suspected international terrorist as someone whom the Secretary of State considers is excluded from the protection of the 1951 convention and whose removal would be conducive to the public good.

For such a suspected terrorist, there is no legal or practical barrier to his removal. A certificate under Clause 21 would be inappropriate and would not be required because the person would not be detained. However, we would want Clause 33 to apply to such a person because its purpose is to make more upfront use of the 1951 convention exclusion. Clause 33 is already narrowly focused and further narrowing, as Amendment No. 4 proposes, would not be appropriate.

Clause 21 exists because we envisage that we will want to prosecute alleged international terrorists first, before removing them from the country. If we cannot do that, we shall want to detain them. There may be people whom we want to prosecute but cannot—but we shall still want to remove them. If they can be removed, we would not want to detain them—so a certificate would not arise. On the other hand, if Clause 33 says that the convention does not apply, it is necessary to have that extra power.

Lord Avebury

My Lords, almost every asylum seeker who fails in his claim is detained prior to removal.

Lord Rooker

My Lords, persons may be removed from their homes and detained for a few hours. At some holding centres, we cannot detain people for more than six hours anyway. We must either let them return home or keep them overnight at a detention centre. Detention may take the form of transport from the person's home to the airport. The noble Lord is correct to that extent but not in general. Not everyone necessarily passes through Immigration Service detention centres. I do not know the numbers off the top of my head.

4 p.m.

Lord Avebury

My Lords, the Government's whole argument for the expansion of the present detention centres by 1,900 places is that we need them to speed up the process of the removal of people who are not entitled to be here. The supposition is, therefore, that these people do spend time in detention centres prior to their departure from this country.

Lord Rooker

My Lords, that is what I am saying, but I could not agree with the noble Lord's first question without extra advice. It is true that people are detained, but not necessarily in a detention centre. Incidentally, detention centres have been renamed "removal centres", and even I have to get used to that. That is the purpose of the centres; they are for removal.

But not everyone passes through these centres. There are areas other than detention centres—for example, some of the reporting centres—where we can detain people for up to six hours prior to removal. People who will not leave voluntarily are necessarily detained. In some ways, the process of removal could be described as a detention because people are escorted.

A very small number of people—I cannot offer the House a view as to how many—will he covered by a Clause 21 certificate and a very small number will be covered by Clause 33. They could be the same people, but not necessarily. I hope that that is an answer—it may not be satisfactory—as to why we need the power in Clause 33. It would not apply necessarily to everyone who had a certificate under Clause 21 issued against them.

I shall come to the points raised by the noble Lord, Lord Dholakia, in a moment. Amendment No. 5—with which, I should say to the right reverend Prelate, many of us have sympathy—seeks to provide that the construction provision in Clause 34 should apply only in cases where a certificate has been issued under Clause 21. For the reasons I have given already, I do not believe that there should be a linkage back to Clause 21.

However, I agree that there is a question as to whether Clauses 33 and 34, as they are now numbered, should be linked together. As the noble Lord, Lord Dholakia, said at Report stage, originally, in an earlier draft, they were one clause. They have been separated for clarity. I have taken this matter away, thought about it and discussed it with my ministerial colleagues and advisers. I have some sympathy with the view that the clauses should be linked because the Bill is concerned with a specific set of people and, in some ways, should not read across to the generality of the public. We have thought about the issue carefully and we have concluded that we will be better off leaving the Bill as it stands.

The Government believe that, as a matter of law, there is no inherent balancing test within Articles 1(F) and 33(2) of the refugee convention. If Clause 34 was to be linked to Clause 33, that might incorrectly suggest that we took the view that the legal construction of Articles 1(F) and 33(2) was different in cases not covered by the Bill to which those exclusion clauses would apply.

Based on the evidence and the discussions we have had, we believe that there is a fine legal balance—which has been put to Ministers—and that we could have problems in some cases by linking the two clauses. I freely admit to noble Lords that we have changed our mind every few hours since we debated the clause on Report, but that has been the nature of our considerations.

There are two further points I should like to cover before I answer specific questions. First, we have been reviewing our policy on the exclusion clauses in the refugee convention in relation to cases not covered by the Bill. We shall make our views known in the new year. I am not able to share any parts of the review at the moment.

Secondly, Clause 33 is confined to a small group of individuals. The procedural approach set out in the Bill for certain Article 1(F) and Article 33(2) cases will not always be applied to cases which fall outside Clause 33. That approach is confined to cases where not only do the exclusion clauses apply but where the removal would be conducive to the public good.

As to the point made by the noble Lord, Lord Dholakia, I wish to put on record that there is nothing in the Bill to state that a person who enters the UK illegally would be automatically excluded from protection under the refugee convention; nor would a person from a particular ethnic background be automatically excluded. Everything relevant to whether a person is excludable under the convention would be assessed. However, this does not mean that all matters relevant to whether a person has a well-founded fear of persecution would be considered, but only those matters which had a bearing on the exclusion clause.

That brings me to the issue of proportionality. Clause 34 provides that Articles 1(F) and 33(2) will not have a proportionality test in the sense that the degree of mistreatment a person might face if returned would not be taken into account when considering whether the exclusion clause applies. But, in considering whether an exclusion clause applies, the Secretary of State would take account of all factors relevant to whether the exclusion clause should apply. For example, he would consider whether allegations that a person had committed a crime abroad were true—as in the Zimbabwean example given by the noble Lord, Lord Avebury—or whether the alleged crime had a strong political motive. The Secretary of State would not return someone who had been excluded from the refugee convention if to do so would breach the European Convention on Human Rights.

I know that there is a division between the two opposition parties on this issue. It is quite clear that the Liberal Democrats are with the Government and that the Conservative Party would like us to pull out of Article 3 and return people. We are not prepared to countenance returning anyone in breach of Article 3 of the European Convention on Human Rights. I want to make that absolutely clear. We have said it before and it does not need any qualification.

As to the issue raised by the noble Lord, Lord Goodhart—which I hope to answer if I have not done so already—if an appellant raises human rights issues as part of an appeal, SIAC would go on to hear those issues after it had upheld the Secretary of State's certificate. The noble Lord is correct to say that SIAC could hear both sides of the case as to whether a certificate should have been issued. I hope that that is a positive answer to the noble Lord's question.

As regards Article 32 of the refugee convention, we do not consider that Clauses 33 and 34 of the Bill are contrary to the safeguards provided in that article. This is a matter that we shall come back to when the review I have referred to is produced in the new year. I suspect that the matter will figure very much in our debates on the Bill referred to during Questions today.

I should tell noble Lords and the right reverend Prelate that, along with my ministerial colleague, I met today with a representative of the United Nations refugee body, but I was not able to go into great discussions about this issue. Indeed, I was not able to give the conclusions of our considerations because they are on-going following the brief meeting I had this morning.

We are very conscious of the United Kingdom's position internationally. We are carrying out practices and upholding the convention for those who have a well-founded belief of persecution in the way that we have done—and been proud to do—over the past five decades. We are not seeking to cause ourselves any problems internationally in the way that the Bill is drafted. I agree with the arguments that if the two issues were linked it would make matters clearer, but that would present us with the fine balance of legal arguments to which I have referred. This has caused us to structure the Bill in this way.

Lord Thomas of Gresford

My Lords, I am grateful to the noble Lord for giving way. I hope he will forgive me, but I am a little confused by his response. Let us take an ordinary asylum case. Let us suppose that a person makes an application for asylum and, without the issue of any certificate by the Secretary of State, the initial adjudicator turns him down because the other side have succeeded in establishing under 1(F) that there are serious reasons for considering that the applicant has committed a serious non-political crime outside the country of refuge.

Let us suppose that under Clause 33(2) the Government establish that there are reasonable grounds for regarding the person as a danger to the security of the country. That is just an ordinary case. Does that mean that the initial adjudicator, as a result of the drafting of Clause 34, is not entitled to take into account the degree of persecution that individual might suffer were he to be returned to a particular country? Are all those aspects excluded simply because grounds in Article 1(F) and 33(2) are urged at first instance or does it mean that the appeal from that initial decision must ignore the degree of persecution which the individual is likely to suffer?

As it appears in the Bill, it seems to me that whenever the Government put forward Article 1(F) or 33(2) in answer to a claim for asylum, that immediately precludes the applicant from relying on his basic right of establishing that he has a well-founded fear of being persecuted for reasons of race, religion, nationality and so on. Is that really what the Government intend?

Lord Rooker

My Lords, as regards the first part of the noble Lord's question when he spoke about an ordinary asylum case, those that are before the Special Immigration Appeals Commission cannot in any way be considered as ordinary asylum cases. At present there are 1,200 applications a week. That has been the rate in a constant flow for a couple of years. There are approximately 60,000 applications a year. Of that number only a few in single figures will be subject to SIAC or this Bill. We are talking about a handful of people and we have never spoken of any larger number. So to try to translate these issues to an ordinary asylum case does not carry across. That may be an unsatisfactory answer from a non-lawyer, but it is satisfactory for a person such as myself as a former constituency Member in the other place for asylum seekers and now the Minister dealing with the case work as well.

But the ordinary asylum case bears no relation whatever to the people who are subject to parts of this Bill, particularly as regards the issue of certificates under Clause 21 of the Act or anyone who comes near SIAC. That commission was set up four years ago and in that time there have been three cases. We have been dealing with 60,000 cases a year for the past four years, which represents 250,000 cases. To try to translate those figures to this Bill does not work. There is no comparison whatsoever.

Lord Avebury

My Lords, the noble Lord said that Clause 34 applies only to appeals before SIAC. That is not what it says.

Lord Rooker

My Lords, I am not saying that at all. Clause 34 does not say that. In Clause 33 the certificate of the convention does not apply. Subsection (1) states: This section applies to an asylum appeal before the Special Immigration Appeals Commission". Clause 34 is not linked in that way for the reasons I have explained.

Lord Dholakia

My Lords, I am grateful to the Minister for the explanation that he has offered and to all noble Lords in all parts of the House who have contributed to this debate. It is rather unsatisfactory that the review of the convention's exclusion clauses will be published in the new year when in reality some of the implications should have been known at this stage, particularly in how they apply to Article 1(F) and 33(2). That would have been most helpful.

I do not know whether the Minister had completed his contribution, but I am grateful that his views are now on record. Therefore, I shall not seek the opinion of the House. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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