HC Deb 16 June 1971 vol 819 cc536-49
Mr. S. C. Silkin

I beg to move Amendment No. 33, in page 8, line 12, leave out from 'person' to end of subsection (3) and insert: 'convicted of an offence may be recommended for deportation notwithstanding that no other penalty is imposed upon such conviction' The Amendment arises from a discussion in Committee between the Secretary of State and myself principally, although other hon. Members took part in the discussion. At the end of the day we found that there was nothing between us in principle and the question was simply as to the best way of giving effect to the principle which was agreed.

The provisions of the Bill at present are such that a person may be ordered to be deported by a court notwithstanding any enactment to the contrary and notwithstanding that the court does not proceed to conviction". In those circumstances, he is to be regarded as a person convicted of the offence.

The difficulty we had with that form of wording was that the effect of it is that people who are absolutely or conditionally discharged—the difficulty arises in particular in the case of absolute discharge—are none the less to be regarded for these purposes as persons convicted of the offence, although the whole object of the provision in the Criminal Justice Act, 1948 which brings into existence the absolute discharge is that a person shall not be regarded as having been convicted.

I suggested in Committee that the form of wording used in many cases in breach of probation cases—that a person be sentenced to one day's imprisonment, which in effect means that he does not go to prison—might be an appropriate way of avoiding what seems to be the dilution of the principle of absolute discharge not amounting to a conviction. The Secretary of State thought that even to have a day's imprisonment on one's record was a matter of moment which he regarded, apparently, as a matter of greater moment than to have on his record an order for deportation; and the right hon. Gentleman wanted to avoid that at all costs.

We ended by the Secretary of State understanding my objection to the dilution of the principle of absolute discharge and by my understanding the Secretary of State's objection to the alternative method.

In those circumstances we have considered whether there is not a third method of dealing with the matter which would solve both difficulties. The third method which we think might be appropriate is embodied in the Amendment, which provides simply that a person who is convicted of an offence may be recommended for deportation notwithstanding that no other penalty is imposed upon such conviction". That would avoid the necessity for an absolute discharge in such cases and, therefore, the dilution of the principle of the absolute discharge, and would avoid the necessity for sentencing a person to even a day's imprisonment.

The word "penalty" in relation to a recommendation for deportation is an appropriate term, because it is a part of the sentence for the purposes of appeal. One can appeal against a recommendation for deportation. Even though the Secretary of State and I were in agreement that there might well be cases where the recommendation is made not so much for the penalty purpose as because the court considers it to be in the interest of the defendant himself that he should be returned to conditions of stability in the country of his origin, none the less the term "penalty" is perfectly appropriate and, indeed, is in accordance with the provision of the clause as it stands.

This is not a matter of the widest possible significance, although I am delighted to see that, if I anticipate aright, the Solicitor-General has taken the matter under his ample wing, and no doubt he will tell us whether this form of wording is a possible one and, if so, whether it is a form of wording which would commend itself to the Government as solving what I admit is a quite narrow problem but none the less a real one.

8.15 p.m.

The Solicitor-General (Sir Geoffrey Howe)

The hon. and learned Member for Dulwich (Mr. S. C. Silkin) was kind enough to suggest that this matter was under my "ample wing". That is to exaggerate my rôle in connection with the Amendment.

The point the hon. and learned Gentleman made in Committee has received the consideration of my right hon. and hon. Friends at the Home Office as well as of my right lion, and learned Friend the Lord Advocate and myself. The hon. and learned Gentleman is right in saying that there is common ground here in the sense of wanting to ensure that in the appropriate case, be it a penalty or not, the deportation order can be made without the necessity for a sentence of one day's imprisonment.

The approach adopted by the hon. and learned Gentleman's form of words does not seem to be either necessary or right to achieve that; because in England and Wales, and in Scotland save in courts of summary jurisdiction, where a court makes an order for an absolute or a conditional discharge it does so, and can do so only, where the person concerned has been convicted of an offence. It is only the conviction which lays the foundation for making such an order. Thereafter, for other purposes the conviction no longer counts as a conviction; but only when the court has recorded a conviction can it make an order for an absolute or a conditional discharge.

However, in courts of summary jurisdiction in Scotland, for reasons which derive from the different formulation of the Criminal Justice (Scotland) Act, 1949, a court of summary jurisdiction does not proceed to conviction. If a Scottish court of summary jurisdiction makes an order for absolute discharge—I understand that there is no conditional discharge in Scotland—it does so without proceeding to a conviction.

So, if the formulation adopted by the hon. and learned Gentleman's words were to be adopted, a court of summary jurisdiction in Scotland would not be able to make a recommendation for a deportation order. That is one of the substantial reasons why the original wording of the Bill is that notwithstanding that the Court does not proceed to conviction the person shall be regarded as a person convicted of the offence". A person in respect of whom a Scottish court makes an order for an absolute discharge would not be and could not be regarded as a person qualifying for a recommendation for deportation without the words be regarded as a person convicted of the offence". The effect of this form of words is expressed as "for purposes of deportation" at line 12 on page 8. Therefore, it does not alter the basic quality of the conviction recorded in England and Wales or the finding of guilt that is recorded without a conviction in a court of summary jurisdiction in Scotland. It merely describes the condition which must be fulfilled in order to lay the foundation for a deportation recommendation to be made. If the words in the Amendment were to be adopted, there is that anomaly in respect of courts of summary jurisdiction in Scotland.

If I wanted to be tendentious, I could argue that the hon. and learned Gentleman in adopting the words "no other penalty" is implying perhaps further than can be implied that a recommendation for deportation is a penalty. He acknowledged that there was some force in that argument, which perhaps it is unnecessary to make here.

The point is that this form of words is necessary to lay the foundations for the making of an order or recommendation for deportation. I do not see that it can alter the quality of the associated "penalty" of absolute or conditional discharge if such should be imposed in conjunction with a deportation order. Certainly, what both sides of the House are anxious to avoid is avoided by this formulation. It is not necessary to impose the one day's formal order of imprisonment.

I hope that the hon. and learned Gentleman will be persuaded to accept that at the least his own form of words would make for some difficulty and that the present form of words is one with which he can continue to live with tolerable equanimity in the years ahead.

Mr. Robert Hughes

The position as the Solicitor-General has outlined it is obviously correct in law. I would hesitate to cross swords with the hon. and learned Gentleman on points of law.

I am concerned that, with the desire of my hon. and learned Friend the Member for Dulwich (Mr. S. C. Silkin) to get the phraseology of the Clause right, the concept of expressing deportation as a penalty in itself has been introduced. We had a considerable discussion in Committee as to how far deportation was a penalty. As we all understand the Bill as it stands, deportation from this country means, in all but very rare cases, that the opportunity for the person deported to return is completely taken away. Therefore, there was also a considerable discussion in Committee about the deportation of first offenders. We thought that no one should be deprived of the life and facilities available in this country simply on a first offence, especially as in a later part of the Bill there is reference to sentences of six months or more.

People outside the House, and even inside it, who read the legislation will not follow its precise meaning. On a perhaps cursory reading of the Clause as drafted, certainly by someone who is not au fait with the intricacies of the law, one could be led to believe that someone could be deported from this country even if not guilty of an offence. Whilst the wording suggested by my hon. and learned Friend perhaps carries with it a meaning that he did not intend, there is need to tidy up this mumbo-jumbo, perhaps in another place.

If there must be special provision in the Bill to take care of the courts of summary jurisdiction in Scotland, the way to do it would be to spell it out more clearly in a separate subsection. Otherwise, people outside the House who are extremely hostile and suspicious—in many cases with very good cause—will find in the Bill things which are not there. We should remove unfounded suspicions as far as we can. It is one thing to have suspicions about a Bill that we all dislike, to have suspicions about the real meaning and intention of a Government in introducing a Measure, but that is totally different from allowing legislation to pass which would give a completely misleading impression of its intention.

In a later Amendment we shall see the difficulties involved in trying to accommodate both the law of Scotland and law of England and Wales in one subsection. Will the Solicitor-General be prepared to consider fresh wording to make the matter completely clear both in law and for people outside the House who must understand it?

The Solicitor-General

Perhaps I may intervene here. The hon. Gentleman may be talking beside this particular point. I have read what he said in Standing Committee about the general undesirability of its being thought around the world that a deportation order of whatever kind, imposed for whatever reason, is equivalent to a conviction. As I read the OFFICIAL REPORT of the proceedings in Committee, hon. Members on both sides accepted that it would not be desirable that any deportation order should be regarded as flowing from, and therefore amounting to, a conviction.

The provision in subsection (3) is related only to Clause 3(6). Subsection 3 says: For purposes of section 3(6) above—". It therefore arises only in the context of a situation where a court has in fact found someone guilty of an offence and has therefore made a recommendation for his deportation. All that this subsection does is to say how the court is to proceed and how the Act is to work in a situation where a person is found to have committed an offence. In that situation it is inescapable, if anyone can analyse it and work back to the source, that the person was deported as a result of a recommendation by a court which can have been made only after he had been found guilty.

There is nothing I can suggest in the context of this subsection or of Clause 3(6) to avoid the conclusion that a deportation order made after a recommendation following a finding of guilt does indeed spring from a finding of guilt.

The wider argument that the hon. Gentleman advances arises outside the context of this subsection, important though it may be.

Mr. Robert Hughes

I do not think that what I have said is outside the Clause, though I accept the hon. and learned Gentleman's view that in a sense it is slightly to the side of the Clause.

Race relations is a very sensitive matter. Despite the qualifications made by the hon. and learned Gentleman, he should look at the wording, because it can be totally misconstrued. Perhaps it is not Parliament's job to worry about how legislation is construed. Some hon. Members may hold that view, but I believe that legislation must not only be legally correct, open to legal interpretation and subject to the kind of detailed analysis which someone following it through Clause by Clause can give it, but should also be clear to the layman, certainly in the case of this Bill. It seems to me that laymen could misconstrue the purpose of the Clause.

I accept that perhaps this is not a major point, but I hope that on reflection the Solicitor-General will follow the example of the Home Secretary, who has once or twice today accepted our arguments, despite the fact that in Standing Committee he was adamant that certain things were not to happen, that there were certain rights of appeal which were not justiciable, that he could not possibly give way. In the relatively short space of time since Committee he has realised that there was force in our arguments. All I am asking of the Solicitor-General is that he should bear in mind what I have said and agree that in another place, after consultation with the Lord Advocate, it may be clearer to spell the matter out in a different way.

8.30 p.m.

Mr. Weitzman

Someone who commits an offence and is given an absolute or conditional discharge has still committed the offence. If the Solicitor-General omitted the words … it shall, notwithstanding any enactment to the contrary and notwithstanding that the court does not proceed to conviction, … he would still serve his purpose. The subsection would then read: … a person who on being charged with an offence is found to have committed it shall be regarded as a person convicted of the offence, and references to conviction shall be construed accordingly.

Mr. S. C. Silkin

The point is that, whereas the absolute discharge is a sign that the court regards the offence as so trivial as not to warrant a penalty, the recommendation for deportation may be regarded as a sign that the offence is so grave that the person should be deported. That is the contradiction which we tried to correct in Committee and by our Amendment tonight.

The Solicitor-General—and I am glad to say that I was able to understand his Scottish accent—has persuaded me that, for reasons peculiar to Scotland, my proposed method of dealing with the matter is not very satisfactory; and those sitting behind me who are more expert in the subject than I have confirmed this view. Nonetheless, the problem remains, even though it may be a minor problem compared with many other problems with which we have dealt.

In the light of what has been said by my hon. and learned Friend the Member for Edinburgh, Leith (Mr. Ronald King Murray) and myself, I hope that the hon. and learned Gentleman will have another look at the wording of the Clause and see whether there is an alternative method appropriate to England and Wales as well as to Scotland which will solve the difficulty. I do not ask him to produce a solution on the spot. In the confident belief that he will not go away and forget about it. I beg to ask leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Mr. Ronald King Murray, (Edinburgh, Leith)

I beg to move Amendment No. 131, in page 8, line 40, leave out from 'appeal' to end of line 41.

The Amendment arises out of a difference between Scots law and the law of England and Wales on appeals procedure. Although the Scottish point is rather technical, it raises a point of principle of general application which may be of wider interest to the House.

The point was touched on by my hon. Friend the Member for Aberdeen, North (Mr. Robert Hughes) in Committee at cols. 908–9 of the OFFICIAL REPORT of 18th May. The Home Secretary in reply said: In general, the purpose of the Clause as drafted—which, I believe, follows precedence in all these respects—is to ensure that the procedures in Scotland are as similar as possible to the procedures in England, taking into account the different law which applies in the two countries. I will certainly look again at the drafting with the help of the Lord Advocate; but the principle of keeping the two countries in line and following precedent is one which I am sure will be accepted by the Committee."—[OFFICIAL REPORT, Standing Committee B, 18th May, 1971; c. 934.] I notice that the Lord Advocate is present. No doubt he has given the Home Secretary the benefit of his advice. Just as the Home Secretary suggested that both sides of the Committee would accept the view that the two countries should be in line as much as possible, I think that both sides of the House would accept it.

The point of Clause 6 is to give a right of appeal, and a statutory opportunity to appeal, to persons convicted of an offence who are recommended by the court for deportation. I use the term "convicted of an offence" with the gloss which was used in the debate on the last Amendment. The right of appeal is given for Scotland in subsection (5)(b) and for the rest of the United Kingdom in subsection (5)(a). In each case the right is assimilated to an existing form of criminal appeal, and for Scotland the phrase without prejudice to any other form of appeal under any rule of law saves the very useful Scottish form of common law appeal by what is called "bill of suspension" against gross irregularity or harsh and oppressive treatment by the court. The Government are to be commended for doing that.

May I say in parenthesis that the point which exercised the mind of my hon. Friend the Member for Aberdeen, North superficially arises here to some extent, because he will have noted that in Scotland the appeal is assimiliated to an appeal against conviction, whereas in England and Wales it is assimilated to an appeal against sentence. I assure my hon. Friend that there is nothing sinister in that. It gives a Scottish appellant greater rights than he otherwise would have. He can appeal as of right on a question of law and, on other questions, he has the right to apply for leave to appeal. The Scottish appellant has perhaps a better opportunity for appeal than his counterpart in England and Wales.

This form of appeal given by the Bill, unlike the statutory appeal which the Clause has primarily in mind, involves no time limit—and here I am referring to the Scottish common law procedure by way of bill of suspension. That is one of its merits: it is not hidebound by a time limit. If a person complains of gross irregularity or harsh and oppressive treatment by the court, it is obvious that it may not emerge within the time limit for appeal. When it does, it vitiates what has gone before finally and decisively.

In contrast with a common law appeal, the Scottish appeal against conviction to which the deportation appeal is assimilated in Scotland must be made within 10 days of the court's determination of the case. If the House gave effect to Amendment No. 131, there would be no doubt that the time in Scotland for treating an appeal as pending would expire at the end of 10 days, as provided for ordinary criminal appeals, and there would be no possibility of encroachment on the common law remedy of suspension.

But the Bill as drafted expressly provides for a period of 14 instead of 10 days during which a deportation appeal will be deemed to be pending. This extension is made in general terms, so that if the Bill is enacted a court may conceivably construe it as applying to the procedure by bill of suspension also, and the court may reach the view that an appeal by suspension could not be brought in respect of a deportation recommendation, even though a gross irregularity lay behind it or harsh and oppressive treatement was involved, after the expiry of 14 days, despite the saving words in the previous subsection.

I press the Government to say whether this is what they intend and, if it is, how they can reconcile it with the splendid words in the previous subsection about there being no prejudice to the existing common law appeal.

I pass from the technical point to the point of wider interest. Why should the time during which an appeal against a deportation order is deemed to be pending be 14 days in Scotland but be left to the ordinary rules governing appeals elsewhere? Presumably it was in an attempt to achieve a degree of uniformity that this drafting was adopted. I doubt whether it does this because if I am right, and I venture with great diffidence into the law that prevails south of the Border, the time for deportation appeals in England and Wales will vary from 14 days to 28 days, depending on the status of the court of first instance wsich is appealed against.

If that is right we are not getting unanimity under the Clause, so that the principle which was put forward by the Home Secretary in Committee—which would have been acceptable to both sides—will not be effective because there will be different times, during which a deportation appeal is deemed to be pending in the two countries, and indeed quite different courts. If it is unanimity which is sought so that there is substantially the same right of appeal throughout the United Kingdom, would it not be fairer and more logical to make it the same for all and to fix the term of the longest period in any court, namely 28 days. This could be achieved by redrafting subsection (6) so as to provide for a fixed, uniform period for deportation appeals and for the time during which appeals would be deemed to be pending—a period uniform for the whole of the United Kingdom. Quite frankly, for the life of me I cannot see why, if in certain circumstances an appellant is entitled to 28 days in England and Wales, it should not apply to all appeals in all parts of the United Kingdom. I would press the Government to look at this suggestion most seriously to see whether they would be prepared to come forward with an Amendment at some later stage.

The Lord Advocate (Mr. Norman Wylie)

I take the Amendment of the hon. and learned Member for Edinburgh, Leith (Mr. Ronald King Murray) as a probing Amendment.

What I can do unequivocally is to assure the hon. and learned Gentleman that nothing in this subsection affects the common law right of appeal by way of Bill of Suspension. What these provisions are designe dto do is to govern the circumstances in which the Home Secretary can exercise the powers which the legislation give to him. It does not in any way prejudice—and indeed the qualification in subsection (5)(b) is in these terms—the right of an individual to appeal in Scotland by Bill of Suspension.

The other point raised by the hon. and learned Gentleman, on the 14 days, has a degree of validity. As he is aware, the appeal provisions in Scotland are governed by the Criminal Appeal (Scotland) Act 1926 which provides under Section 4, a period of 10 days within which an appeal can be lodged. In summary cases under the Summary Jurisdiction (Scotland) Act 1954, as amended, Section 63 equally gives a period of 10 days.

As I understand it, the position in England and Wales—and I take the words from what the hon. and learned Member for Dulwich (Mr. S. C. Silkin) said, as reported in column 916 in Committee—is 14 days on appeal from the magistrates' court and 28 days, under fairly recent legislation, from the superior courts.

Accordingly, so far as England and Wales are concerned, it was perfectly adequate to relate the provisions here to the ordinary appeal provisions. In Scotland, because of the existence of the common law right of appeal by Bill of Suspension, there had to be some time limit written into the legislation. This is something which arose in the 1962 Act and the provisions of this subsection are closely related to the provisions of Section 9 of the Commonwealth Immigrants Act 1962.

I cannot put it better than the way it was put by the hon. and learned Gentleman in column 916, when he said, Obviously, I do not suggest that the period should be unlimited, —of course the period with regard to a Bill of Suspension is not limited— because then a deportation order could never be made. But I do not understand why the 28-day period should not be allowed for Scotland, which would be much more in conformity with the position of the higher courts in England and near the position in relation to an appeal under the common law procedure in Scotland."—[OFFICIAL REPORT, Standing Committee B, 18th May, 1971; c. 916.] It is a question of judgment. The 14 days was selected. It more than covered the appeal provisions in Scotland which would have restricted the period to 10 days. Since 1962 these changes have been made in England and Wales. I have a certain sympathy with the argument and I think I can say that we shall consider the question of writing 28 days into this legislation. I can see certain administrative advantages from the Home Secretary's point of view. We will consider this and with that assurance perhaps the hon. and learned Gentleman will be disposed to withdraw his Amendment.

8.45 p.m.

Mr. S. C. Silkin

Before the Lord Advocate sits down may I use him, as it were, as a vehicle to put a question to the Home Secretary and Minister of State? I wonder whether consideration could be given to what I thought was the valid point made by my hon. and learned Friend the Member for Edinburgh, Leith (Mr. Ronald King Murray), that there is a case for having a common period throughout the length and breadth of the land irrespective of the court. I think it may be a particularly valid point where one is dealing with a recommendation for deportation as distinct from ordinary penalties of fine or imprisonment, because of the nature of the problems to which it gives rise, problems rather more complex than problems with which one deals in other cases. I wonder whether he would consider, therefore, saying that he will consult his right hon. and hon. Friends on the possibility of a common period.

The Lord Advocate

I would say that my right hon. Friend has listened with care to what the hon. and learned Gentleman has said and I have no doubt that he will take it very much into account.

Mr. Ronald King Murray

In the light of what the right hon. and learned Gentleman said, I beg to ask leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

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