New Clause 7 - Refugee Convention: construction
Immigration, Asylum and Nationality Bill
2:00 pm
Tony McNulty (Minister of State (Immigration, Citizenship and Nationality), Home Office; Harrow East, Labour)
I certainly agree with my hon. Friend’s final point about new clause 7 being something to which we are likely to return. It is probably the most substantive of all the new clauses. I profoundly disagree with the Immigration Law Practitioners Association’s comments that the new clause is unnecessary. I do not agree either with the Refugee Council when it says that the new clause goes too far or is objectionable for the reasons that it gives.
The debate on the Terrorism Bill is not quite a side issue to our deliberations—it certainly forms part of the text of the Bill—but none the less, on many of the comments that my hon. Friend has made, I wish things were stark enough to enable us to say, “there are certain circumstances in which we could of course fully support violence”. People are saying that there are circumstances, in this day and age, in which we fully support murder. I do not accept that there are. If people object to the approach, interpretation and the extrapolations of definitions of terrorism in the Bill in the context of the 2004 Security Council resolution 1566, to which, as I understand it, there were no objections, they are saying, as the hon. Member for Buckingham (John Bercow) said yesterday in unusually simplistic tones, that the difference between a freedom fighter and a terrorist is that a freedom fighter fights for freedom and a terrorist does not. I wish it was that straightforward in this day and age.
All the elements that we think are germane to the convention are certainly germane to any attempt to look at what we can define as terrorism. I want my hon. Friend to know that the issue is complex. I said—perhaps not as straightforwardly as I intended to in my previous intervention—that I cannot think of one explicit public pronouncement by a Government, in statute and certainly historically, that, with the exception of world wars, they fully endorse liberation movements or killings.
I accept the point, wrapped up as it was in cocaine and God knows what else—Oliver North and everybody else—about the United States’ support of the Contras. My hon. Friend will remember, however, that the fact that such a policy existed was not exactly in the public domain from the outset. It was drawn out kicking and screaming.
That is from where we start. It is glib to talk about freedom fighters and terrorism, but are we as a Government, on statute, really able to condone murder and the killing of people? The answer must be no. The answer in Security Council resolution 1566, which was passed nem. con., is no. That resolution does not go far enough.
I shall touch on yesterday’s Second Reading of the Terrorism Bill, because it is in part germane. My hon. Friend the Member for Wolverhampton, South-West (Rob Marris) asked, what if he were to endorse fully the Karen people in northern Myanmar’s attempts to blow up what they saw as empty trains? I wish it was that easy. One cannot somehow qualitatively determine the oops factor. They are not terrorists: they meant to blow up an empty train, although what is an empty train? I am sure it has a driver on it at the very least. They did not mean to murder anyone. Oops, they did.
How does one clarify that? There is no such thing as an economic war when no one gets hurt. We were blindly lucky in this country when some people from the north London cognoscenti decided that they were anarchists and started blowing things up that they did not kill anybody. It was blind luck that the Angry Brigade did not kill anybody; it was not because of its members’ astute preparation. One does not blow a big hole halfway up the GPO tower and plan that no one gets murdered. Therefore we are talking about murder. The UN Security Council resolution would not cover, for example, the Provisional IRA’s announcement that it was back and had not gone away when it blew up Canary Wharf, because the explosion killed people. The Provisional IRA may have done it at half-past 5 or 6 o’clock in the morning, but it killed people. It was an act of terror by any definition.
That must be from where we start. It is, in part, pettyfogging to talk about national liberation movements in 2005. Through our foreign policy, we have positions against particular Governments whom we do not like and would encourage democratic opposition. It is a long way from there to say that it is all right because we have some sort of repression barometer and if the reading is over seven out of 10, it is okay to kill, maim and destroy innocent people. It is not. That is where the terrorism definition starts. It is enormously difficult. I fully accept what my hon. Friend the Member for Walthamstow says. Quite where one draws the line, I do not know. I was going to have a dig at the interwar coalition Government for not supporting the Spanish republic. That was quite the opposite situation. It was a state that we should have supported. There was an almost formal terrorist threat from insurgents in their own army. But I will not go there, Sir Nicholas.
We need to look at the context. I also accept the point that the hon. Member for Oxford, West and Abingdon made about amendment (a). There is a sharper element to the construction of the convention than previously. I am in a better mood now. I was going to say that ILPA’s claims that it was not necessary and all its comments on this bit of the Bill were a tortuous interpretation laced with cynicism. But I will not say that. I agree with the hon. Member for Chesham and Amersham that whichever bits I agree or disagree with, ILPA’s thoughts throughout the Bill have been well informed and focused, as we would expect.
I should like to touch on a few specific points. Even though there is a sharper relevance here, for the reasons I have suggested before, we are unable to accept amendment (a). The hon. Member for Oxford, West and Abingdon said that the clause should state that the burden of proof lies with the Government. It is a well-known position in our law that the burden lies on the party making an assertion. The burden will therefore implicitly lie with the Secretary of State and his ability to show that there are
“serious reasons for considering that a person falls within the scope of article 1(F)(c)”.
The implication is there under normal law and due process.
Although we are looking at specific redefinitions in the context of article 1(F)(c) in subsection (1) of the clause, subsection (2) is germane to appeals across all of 1(F). It is not a sleight of hand that 1(F)(c) is referred to in subsection (1) and all of 1(F) in subsection (2). As I understand it, subsection (2) refers specifically to the wider issue of appeals.
I was asked whether subsection (2) applies to terrorist cases. Yes, it applies to all cases in which the Secretary of State makes a decision in part or whole under 1(F) for the reasons that I have outlined. I was asked whether appeals would be heard by the Special Immigration Appeals Commission or the asylum and immigration tribunal. When a person to whom new clause 7 applies presents a threat to national security, he will be liable to deportation under powers that we are seeking to add to the Bill in new clause 8. The appeal for those people will be heard by SIAC and for other cases the appeal is likely to go to the AIT, unless the refusal decision is based on intelligence information, in which case the SIAC arrangements would apply. That is the normal practice.
We would expect the number of article 1(F)(c) cases that do not involve matters of national security for the reasons implicit in the clause to be relatively low. There is no internationally accepted definition of terrorism. Article 1(F)(c) of the refugee convention refers to acts contrary to the principles of the UN. The Government have a domestic definition of terrorism in the 2000 Act, as the hon. Member for Chesham and Amersham knows. Terrorism is contrary to the purposes and principles of the UN, as stated in a number of resolutions, not least the one I referred to earlier, resolution 1566. It was passed sometime in 2004.
I was asked whether this is a clause directed at crimes committed abroad. Terrorist acts committed abroad will be covered by the definition of article 1(F)(c) and subsection (1) of the clause. Other crimes committed abroad may come under article 1(F)(b) of the convention, which relates to non-political crimes committed overseas. It is nothing to do with us or the new clause. That happens anyway. A person excluded from refugee status on that basis would therefore be covered by subsection (2) in relation to how the appeal is approached. Again, subsection (2) is about all article 1(F) appeals. It refers to unacceptable behaviour or terrorism. The clause is about excluding those who commit, prepare or instigate acts of terrorism or encourage or induce them. Some of the unacceptable behaviours fall in the area of terrorism and encouraging terrorism and the clause covers them but the list of unacceptable behaviours goes wider to deal with issues such as serious criminality.
The new clause is not concerned with serious non-terrorist crimes, but as the hon. Lady is aware we highlighted serious criminality in section 72 of the Nationality, Immigration and Asylum Act 2002. My officials give me notes on everything and the third time that the hon. Member for Oxford, West and Abingdon raised the matter of appeals under article 1F(c) they sent me another note, so I apologise for reading it out.