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I beg to move amendment No. 48, in page 2, line 4, leave out from 'if' to 'he' in line 5 and insert
'at a leave or asylum interview'.
With this it will be convenient to discuss the following amendments:
No. 3, in page 2, line 5 leave out 'in the United Kingdom' and insert
'at a United Kingdom port or airport'.
No. 1, in page 2, line 5, leave out from 'him' to end of line 7 and insert 'a document which'.
Government amendment No. 49.
No. 2, in page 2, line 11 leave out from 'him' to end of line 12 and insert 'a document which'.
Government amendments Nos. 50 and 51.
No. 99, in page 2, line 30 at end insert—
'(4A) Where a person is charged with an offence under subsections (1) and (2) above, and relies on a defence under subsections (3) and (4) above, if the person adduces evidence which is sufficient to raise an issue with respect to the matter, the court or jury shall assume that the defence is satisfied unless the prosecution proves beyond reasonable doubt that it is not.'.
Government amendments Nos. 52, 34 and 53.
No. 101, in page 3, line 11, leave out second 'and'.
No. 100, in page 3, line 14, at end insert
'(c) an offence to which section 31 of the Immigration and Asylum Act 1999 (c. 33) applies.'.
Government amendments Nos. 54 and 55.
No. 102, in page 3, line 23, at end insert—
'(11) The Secretary of State shall, before commencement of this section, and thereafter from time to time as he may decide necessary, publish detailed guidance on the interpretation and implementation of section 2 of this Act.
(12) Guidance issued under subsection (11) shall not be made unless a draft has been laid before Parliament and approved by resolution of each House of Parliament.'.
I shall speak to Government amendments Nos. 48 to 55 and 34, and I intend to resist Opposition amendments Nos. 1, 2, 3, 99, 100, 101 and 102. We are dealing with clause 2 and the offence of deliberately disposing of or destroying documents.
I want first to deal with amendment No. 3 and Government amendments Nos. 48, 49 and 50, which address the linked matters of confining the clause 2 offence to ports, finding a better description of when the offence is committed and allowing a period of three days for in-country applicants to produce their documents.
Concerns were expressed in Committee about the definition of "first interview". Another concern was that someone should not be caught by the offence if, for example, their passport was mistakenly left at home—that was part of the reason why the Opposition tabled their amendments. I have considered those concerns carefully and have sought to address them in Government amendments Nos. 48 to 55. I shall set out briefly what they do and why I tabled them. As I mentioned in our debate on clause 2 in Committee, we expect that the criminal offence will in practice be used most against people who arrive at ports without documents. In those circumstances, there will rarely be an innocent explanation for lack of documentation; for people arriving in-country, however, there may be more reasons why they no longer have appropriate documentation. As was acknowledged in Committee, cases of destruction or disposal of documents by people applying in-country—for example, at the asylum screening unit—should not be excluded from the scope of the offence.
Members who served on the Committee will recall that I used as an example an issue that we are investigating at the moment. We believe and have evidence to suggest that people already given refugee status in other European countries are using those documents to come in straightforwardly through our channels at port, and then turning up at the asylum screening unit without those documents and claiming asylum. I do not think that any hon. Member would want us to be unable to take action on such behaviour.
To retain the coverage of both in-country and port claims in the offence, while not penalising people who, for example, have left their passport at home, Government amendment No. 50 allows in-country applicants three days to return with a document, should they not have it with them when making their application. While we expect people to realise that they need to bring their immigration documents, we accept both that that is not always the case and that people who were aware of the need for such documentation will sometimes forget it all the same. We do not want to penalise people who do not seek to frustrate our immigration controls and are willing to co-operate with the authorities. However, if the offence is to act as a deterrent, it must bite on both in-country and port cases. I hope that Government amendment No. 50 will reassure Members that concerns expressed in Committee have been dealt with.
There was also concern that someone could, under clause 2, avoid the offence if they had a passport when they were interviewed, but subsequently disposed of it. For port cases, there was concern that if someone was, for example, asked for a passport by a surveillance officer, that could be construed as a first interview. If so, someone who destroyed the passport between showing it to a surveillance officer and the immigration control interview might not be caught by the offence. For in-country cases, a person might be able to avoid the offence by claiming to have been interviewed at port. That could be relied on mainly, although not necessarily exclusively, by people granted leave on entry.
To address that problem, the term "first interview" has been replaced by
"at a leave or asylum interview", which is to be defined by subsection (10) to cover any interview in which a person seeks leave to enter or remain and, so far as they are not already covered, claims that removal would breach our obligations under the refugee convention or the European convention on human rights. That ensures that someone cannot avoid committing the offence by saying they have been interviewed previously and were in possession of a passport at that time.
Government amendment No. 34 and amendments Nos. 100 and 101 relate to article 31 of the refugee convention. In Committee, I said that the reasonable excuse contained in clause 2 provided for the protection offered under article 31, but I understood that that was an important issue, so I undertook to consider the way in which the defence, as set out in clause 2, would operate to ensure that it did not have the unintended effect of penalising any refugee who was protected by article 31.
In particular, we have looked at subsection (5)(b), which rules out as a reasonable excuse three situations in which a person has deliberately destroyed or disposed of documents. We have concluded that the first two situations require no amendment, as there can never be a justifiable reason for a person to dispose of a passport to delay the handling of their claim or to enhance its chances of success. The third situation is where a person disposes of a passport at the behest of an agent or facilitator. In the great majority of cases, disposing of a passport for that reason is unacceptable, and it is important that clause 2 sends out the clear message that that is so.
Is the Minister aware that there was a large influx of Chinese immigrants into my constituency during the summer? Many were illegal, and many of their passports and other documents had been destroyed by the people traffickers—the triads and snakehead gangs—who had imported them into this country at great expense to them and their families. What is her view on that?
The offence contained in the clause is designed to address precisely that kind of behaviour, so that we can send out the message that, if people destroy their documents, even at the behest of a facilitator or an agent, they will be liable to prosecution, except in the very special circumstance that I shall outline. Although some members of the Committee expressed concern that that would penalise the person who entered the country illegally, not the facilitator, we can already take strong measures against facilitators.
If we are to change people's behaviour, we need parallel measures that we can use to try to ensure that people do not destroy their documents. As hon. Members will know, as well leaving us unable to identify people at the point at which they make their claim, the destruction of documents causes great difficulty in returning people to their own country if their claims fail. Without documentation is it very difficult to satisfy other countries that such people are indeed their own nationals, and one can understand why. We would feel the same if we were asked to take people back. We would want evidence, which is very difficult to supply without documentation.
I recognise the progress that has been made, but children who come to this country may have destroyed their documents at the behest of people who may well have exerted all sorts of force and influence on them. Can my right hon. Friend assure me that the best interests of those children are being recognised in the amendments and Bill that she is proposing?
I assure my hon. Friend that the authorities—the immigration service, the police and the Crown Prosecution Service—will take such issues into account in operating the offence. I do not want to exclude children specifically from the Bill because that would provide a perverse incentive for people to declare themselves to be under 18. I can assure him—we had this discussion in Committee—that the guidance published for the authorities will make particular reference to that point.
In the great majority of cases, as I have said, disposing of a passport, even at the behest of an agent or facilitator is unacceptable, but I accept that there may be rare cases in which refugees are so vulnerable, possibly traumatised and dependent on the facilitator for ensuring safe flight from persecution in their country that it would be unreasonable to expect them to ignore the facilitator's instructions. In those rare cases, refugees could argue that they had good cause for no longer having their passport, thus meriting the protection of article 31 of the convention.
Government amendment No. 34 will modify subsection (5)(b)(iii), so that disposal on the advice or instruction of a facilitator is unacceptable,
"unless in the circumstances of the case it is unreasonable to expect non-compliance with the instructions or advice."
We have introduced the amendment primarily with refugees in mind, but Members will notice that we have not limited it to such persons. We have done so to ensure that we cater for the rare situation in which particularly vulnerable people can satisfy us that, despite their not being refugees, they still could not be expected to ignore instructions from their agent. I expect that exception to be relevant in only a very limited number of cases, but it is nevertheless important to have that safeguard in order to ensure that we comply with our obligations under the refugee convention and to cater for other exceptional cases.
Clause 2, as amended, has two safeguards that ensure that the offence is not inconsistent with a proper interpretation of the protection afforded to certain refugees under article 31. The first is the "reasonable excuse" defence, which would cover situations in which persons had no document when they began their journey. Secondly, subsection (5)(b)(iii), as amended, makes allowances for those rare situations in which a person's actions in deliberately destroying the document might be considered a reasonable cause for the purposes of article 31. I therefore believe that the amendment tabled to provide for article 31 is not necessary. In some respects, it does not go as far as my amendment, because, in rare situations, the latter can cover the actions of non-refugees who are nevertheless particularly vulnerable. I hope that that reassures Members of our commitment to the 1951 convention, and addresses the concerns raised in Committee.
I shall comment briefly on the Opposition amendments. Amendment No. 99 is a probing amendment dealing with the burden that clause 2 places on an individual to prove that, on the balance of probabilities, he or she had a reasonable excuse for destroying the document. We have placed the burden on the defendant because where someone has a reasonable excuse for not having a document on arrival, the details of that story will usually be solely within the knowledge of that individual. In Committee, I gave the example of the person who had been smuggled on to a plane by a corrupt official and who had never had a document. It is clear that only that person would know the details of how and when that happened, so it is not unreasonable to ask the defendant to prove, on the balance of probability, that it did occur. I therefore believe it justifiable to require the defendant to prove that, and I am pleased to note that the Joint Committee on Human Rights also takes that view.
The Opposition have tabled amendments Nos. 1 and 2 to allow those who can produce another document that establishes their identity to avoid the offence in question. As I said several times in Committee, if a person satisfies us that he or she has never had a passport, or has a reasonable excuse for not having one now in spite of having had one before, clause 2 will not catch him or her, and nor is it designed to do so. However, where a person has disposed of or destroyed a passport and can provide no reasonable excuse for doing so, I do not consider it right that he should be exempt from the offence simply because he then produces some other document—almost by definition, a lesser document—that, he says, shows who he is. That immediately gives rise to the questions of why the person disposed of the passport in the first place and why he has chosen to produce some other apparent evidence of identity. We need to be serious in sending out the message that destroying documents is not acceptable.
Of course, if persons are making a genuine effort to identify themselves through the production of alternative identification, that might make us more inclined to accept any reasons given for their not having a passport, but as I have said, a person who has a reasonable excuse for not having a passport will not be prosecuted, whether or not he or she has other documents that might prove who they are.
If the amendments were accepted, people could try to advance a defence by producing any sort of document that they claim establishes their identity, nationality or citizenship. Given that such documents could come from any part of the world and from many different types of organisation, deciding whether they are genuine and whether they establish identity satisfactorily would be extremely difficult and resource-intensive for United Kingdom authorities. Considerable operational difficulties attach to identifying whether alternative documents are genuine or forged. In any event, Members will appreciate that a document such as a driving licence or student identity card would not be sufficient to travel on. The fact that a person has arrived in the UK suggests that they must have had a travel document in order to board, say, a plane in the first place. Furthermore, and returning to my earlier point about removals, I must say that driving licences and student identity cards do not allow us to return individuals; they are not sufficient for that purpose. That means that those who are trying to thwart return home by destroying documents would be able to do so safe in the knowledge that they could avoid the offence by producing some other, lesser document.
Amendment No. 102 would create a statutory requirement for written guidance for the operation of the offence. As I said in Committee, we will produce such guidance—I intend to do so before the Bill is enacted—but I do not see a case for placing it on a statutory basis. I hope that my commitment is sufficient and that hon. Members will agree not to press the amendment.
I should tell the Minister straight away that Conservative Members welcome some of the Government amendments that have been tabled since our very constructive debates in Committee. We take the view that those who deliberately destroy their documents, thereby intentionally frustrating the system, should be punished. There can be no doubt that the House should send that message to people who arrive here on an aeroplane or a boat having boarded it with valid documentation but who, at some time during the journey or after landing, and before being interviewed by an immigration officer, destroy their documents. We are absolutely at one with the Government on that point.
The Minister said that we are dealing with offences of deliberately destroying documents. However, clause 2 does not say that; it is not headed, "Entering the United Kingdom having destroyed a document". It says:
"A person commits an offence if when . . . interviewed . . . he does not have with him an immigration document"— namely, a passport. Will the Minister tell me whether it is possible to draft the clause better to make it clear whom we are trying to prosecute?
As was said in Committee, millions of children are born in this world every year who never have any form of passport; likewise, tens of thousands of people who travel to this country to claim asylum have never had a passport. No doubt, there are also tens of thousands whose documents are destroyed, one way or another, en route. In many ways, I understand the concerns of bodies such as the Law Society, that argue that these measures may penalise genuine refugees and expose them to the risk of prosecution. Many of the strongest applications for asylum come from individuals who have been forced to enter this country with no documents or invalid documents. The mischief that we are trying to address is that of the person who, when attending before a Home Office official or an immigration officer, cannot satisfactorily prove their identity. The problem arises when it is impossible for officials to tell where people come from and they will not provide that information.
I therefore tabled amendment No. 1 as a probing amendment, which we shall not press to a vote. It would replace the requirement for a passport with one for a document which would satisfactorily establish identity. If the mischief that the Minister is trying to tackle is the person who tears up a document, surely she should understand that applicants for asylum, who may never have had a passport but who can say to the immigration officer that they have a record of military service or proof of identity such as some sort of card, should not be guilty of an offence.
The clause has been improved since our proceedings in Committee. I broadly welcome Government amendments Nos. 48, 50 and 34 because they tackle some of the issues that we raised there. I hope that the Minister can confirm some of the comments that she made then. She said:
"Our intention is to be able as a result of this clause to prosecute people who deliberately destroy or dispose of their documents between embarkation and claiming asylum in this country. It is absolutely not our intention to try to prosecute people where we believe that they never had documents in the first place or that they have not destroyed documents, whether false or not."—[Official Report, Standing Committee B,
If she is willing to repeat the undertaking that her intention is to prosecute only those who destroy documents, Conservative Members will be happier. The clause does not state that at all. It plainly provides that an offence is committed if the person
"does not have with him an immigration document".
My hon. Friend has lighted on an important point. Although the Minister made the comments that he quoted, the immigration officer at the port of entry will not have Committee Hansard in front of him, and I doubt whether it will be drawn to his attention. It is therefore important that the Minister should either include a provision in statute or undertake to provide specific guidelines to the immigration service so that the point that my hon. Friend makes so cogently is at the forefront of the mind of the officer who has to deal with each asylum applicant.
I am grateful to my hon. and learned Friend who contributed so well to our Committee proceedings. Of course, he is right. No immigration officer who conducts an interview will have Hansard in front of him or her. The immigration officer is faced simply with the proposition that the offence is committed if the person does not have the document. Throughout our Committee proceedings, we asked the Minister to come back with a better-drafted provision. The measure is sloppy because although it provides for an offence, stating that one is committed in specific circumstances, we have to rely on the Government to say that, despite the legislation, they will not prosecute in a specific case. The Minister owes us further explanation.
In Committee, I pointed out there are some 50 million unregistered births every year. That is approximately 30 per cent. of all births. The proposition that refugees, of all people, should be able to present passports is unreal. The Minister has failed to deal with that or to table a suitably drafted amendment.
I was pleased to receive a letter from the Minister in February that stated:
"Where we accept that a person began their journey with no such document we would regard that as a reasonable excuse for not having one on arrival."
It is all very well for the Minister to say that she would regard that as a reasonable excuse, but would the courts? The Bill is vague about that and does not satisfactorily establish sufficient protections for those who have simply never had a document. I have yet to hear from the Minister any argument against my proposition that the applicant could and should be able to identify himself or herself through another form of documentation.
I do not think that the Minister answered the following question in Committee, but she should be able to tell us how many people she anticipates being prosecuted each year for the offence. In a year in which more than 100,000 applications were made for asylum, it is known to the authorities, I think, that a huge percentage of those people had no documents whatever. Under the Bill, therefore, a huge percentage would find themselves having committed an offence, leaving the immigration officer in question with virtually no alternative but to ensure the arrest of those people and ensure that they were charged. It is a big problem.
On the other hand, the problem of those who tear up their documents is smaller and more easily controlled. It arises principally at airports and at ports to which people travel on boats, having provided passports in the first place. Amendment No. 1 would therefore insert the requirement for a document rather than a passport, on the basis that the mischief that the whole House is trying to address is those who destroy their documents rather than those who have never had any.
I repeat the point made by my hon. and learned Friend Mr. Garnier that it is a poor thing that the immigration officer on the case must address his or her mind to Hansard reports to find out that the Minister has no intention of prosecuting anyone, except those who destroy their documents. That is the spirit in which I tabled the amendment. As I said, the Minister has gone some way to meeting concerns expressed in Committee on the defences and the times to produce documents—three days—and that represents some progress. It is possible, however, that she can make yet more progress and make the clause clearer and easier to enforce.
I am grateful for the opportunity to make a short contribution. Like many Members, I have received powerful representations in my constituency in relation to the Bill, not least from the Religious Society of Friends led by Kurt Strauss and from Alison Williams and the Merton and Wandsworth law centre, with which I do a great deal of work to help many refugees in my constituency. They understand the need to send a strong message to people who wilfully and unnecessarily destroy their documents. It is crucial, however, that we strike the right balance in terms of protecting people's rights, particularly under the conventions—the Minister has referred to article 31 in that connection. I am pleased that she has listened to those representations, and on that basis I feel more able to support these amendments and to give support to the broad spirit of the Bill.
When the Minister responds, will she confirm that when special circumstances arise under the amendment that she is putting forward, each case will be looked at on its merits? Of course, one would not expect the circumstances in which somebody does not have valid documents to be a valid defence—that would be the exception rather than the rule. Given the exceptional circumstances of many refugees and asylum seekers, however, there may be many cases. I hope that the Minister does not have a particular target in mind, such as 2, 3 or 5 per cent., but that she will look at each case on its merits to see whether such a defence will be possible under the new amendment. It is crucial that we have those safeguards that she is now putting in place to protect those rights, while at the same time having a robust and proper system that deters people from wilfully destroying their documents. Part of the operation of those rights, however, must be that each case is viewed on its merits, and I should be grateful if the Minister would reinforce that point and confirm that that is exactly what she will do.
I am grateful to the Minister for listening so carefully to what was said in Committee. Before I say more about that, however, let me list our main problems with this part of the Bill.
To avoid misunderstanding, I reiterate that we fully acknowledge the need to deal with the specific problem of those who wilfully destroy their passports and other travel documents to cause difficulties in the asylum and immigration system. None of us doubts the necessity for adequate statutory support allowing the immigration service to deal with those who commit that offence.
Our difficulties arise in four principal areas, some of which were mentioned by Mr. Malins. First, there is the nature of the offence that the Government are putting in statute. As he pointed out, the clause relates not to an act of commission—that of destroying documents—but to an act of omission, that of simply not having the documents at the time when they are required to be produced. The Minister has gone a long way towards reassuring us about the circumstances in which the powers would be used, but as things stand the offence is effectively absolute, and prosecutions can proceed on that basis.
The second issue is the point at which the offence is committed. It seemed from the preamble that we were talking about ports of entry—seaports or airports—but the wording of the Bill made it clear that it referred to an interview at any point. In Committee, we told the Minister forcefully that we needed a much clearer definition of what constituted the interview at which the offence would be committed. I think that the Government amendments address that problem.
The third difficulty is that effectively no discretion is given to immigration officers considering whether an offence has been committed. We have had a good deal of debate about the reasonable excuses that could be adduced before a court as a defence, but the fact remains that the immigration officer is faced with a simple decision that does not allow him or her to take the individual's circumstances into account. It is a case of whether people have their documents on them or not when they are interviewed. If they do not have them, they are committing an offence; if they do, they are not. The discretion that has been suggested for immigration officers is not in the Bill as currently drafted. Again, the Minister has been helpful, but the guidance that she intends to publish will actually ask immigration officers to disregard what the Bill says and insert what the Minister wants. I would prefer legislation that stated what immigration officers were to do, and gave them the necessary discretion.
The hon. Gentleman's contributions in Committee were much appreciated. At the beginning of her speech the Minister said that we were dealing with the offence of deliberately destroying documents. Does the hon. Gentleman agree that that is not the case? Surely we are dealing with the offence of not having the documents.
The hon. Gentleman is absolutely right. That is the offence that the Bill suggests. The Minister has said that she would expect the power to be used where an officer has a reasonable suspicion that the documents have been wilfully destroyed, but that is not the same as framing the offence in those terms, which is what she has thus far failed to do.
On that point—I understand what the hon. Gentleman is saying, but I sympathise with the Minister—would it not be extraordinarily difficult to prove beyond reasonable doubt that somewhere on the high seas or on a plane, an individual had personally destroyed their documents? If that is next to impossible, is not the better model to frame the charge of being here without documents, and leave open the prospect of a reasonable excuse, exculpating the individual from it if a satisfactory explanation can be provided? Is not that perfectly fair?
I am grateful to the hon. and learned Lady and I have some sympathy with her and the Minister's position, because I understand how difficult it is to frame the offence in the terms required to deal with the mischief. The answer to her point is that it is even more important to get the burden of proof right on the available statutory defences. That is my next point. If we can do that, I will be much more satisfied that the defendant has an appropriate defence for this apparently absolute offence and that the prosecution will then have to prove its case beyond reasonable doubt. That does not apply at present, which is my fourth and most serious criticism of clause 2. Amendment No. 99, which is in my name, is designed to deal with that problem.
As I have already said, the Government have been helpful to some extent on this particular clause. What the Minister said in Committee provided some reassurance, as did a subsequent letter, what she said today and the amendments that she has introduced. I greatly welcome the Government amendments that deal with defining the interview for the purposes of the offence being committed—a specific suggestion that I made in Committee, which the Minister has obviously considered and returned to. That is doubly helpful. It will ensure that the defendant is not caught out in unfair circumstances, and, more importantly from the Government's point of view, it will help the prosecution in taking away a defence that might otherwise be available. The present clarity—though it could be improved further—is helpful.
Will the Minister deal with a minor point about Government amendment No. 49? I see no problem with it generally, but I am interested in the words "or living", which were not part of the original wording. The amendment includes the words:
"in respect of any dependent child with whom he claims to be travelling or living".
I presume that that applies principally to the circumstances in which someone is interviewed in country—not at a point of entry to the UK. The Minister says that those circumstances will infrequently, but potentially, apply. The person is then required to have travel documents for a child with whom he or she may not have entered the UK, but who is now dependent on them. I believe that there is still a potential difficulty with that widening of the Bill's scope and I invite the Minister to reflect on it further.
I welcome Government amendment No. 50, which deals with the delayed production of documents for those in country. It is a perfectly sensible provision, which we urged on the Minister in Committee. She has also been helpful on a point that affects my amendments Nos. 100 and 101, which deal with section 31 of the Immigration and Asylum Act 1999. Confusingly, that deals with article 31 of the refugee convention. The Minister has been most helpful today and I believe that the Government amendments deal with the point that I sought to raise, so I shall not press it any further.
The Minister has also been helpful on the content of amendment No. 102, which deals with the statutory duty to provide guidance. She has put it on the record that we will have guidance, which is good news.
That leaves me with one final, very important matter: the burden of proof. In her opening remarks, the Minister suggested that amendment No. 99 was a probing amendment. I have to disappoint her. It is not a probing amendment, but one that I and my right hon. and hon. Friends mean very sincerely, because the effective reduction of the burden of proof is a real problem. It is not even a move from the prosecution's having to prove beyond reasonable doubt—which would normally be the case with a criminal offence—to the use of the balance of probabilities. It reverses that, because the defence will have to prove on the balance of probabilities that the reasonable excuse that it has put forward as a defence is proper. The prosecution does not have to do a thing about that, because if that proof is not shown, there is no defence.
That is profoundly unsatisfactory as a matter of law. For the House's benefit, I draw attention to the fact that the words in amendment No. 99 are not new to statute, but are already in the Terrorism Act 2000. With this Bill, we have the extraordinary situation that the openings for the defence of someone prosecuted under the Terrorism Act are better than those of an individual who, under this legislation, happens not to have their passport with them at the time of their substantive interview at the point of charge.
In my experience, where the burden of proof lies is not always terribly important during the run of a trial. However, what the hon. Gentleman is arguing for is not outside the ordinary. Not only under the Terrorism Act 2000, but in straightforward matters such as self-defence it is for the defendant to raise an issue and for the prosecution to knock it down. I am concerned that the Government seem to have forgotten that, and are placing an unusual burden on the defendant. I hope that the hon. Gentleman will argue his case with vigour.
The hon. and learned Gentleman's support on this issue in Committee was notable, and he clearly intends to maintain his support today. I am grateful for that. The Government are playing fast and loose with the rules of evidence and burden of proof in this instance, which is very significant. I quoted the 2000 Act simply because it contains an almost directly analogous situation in terms of a statutory defence available to the defendant that is then required to be disproved beyond reasonable doubt by the prosecution. I do not think it unreasonable to expect the prosecution to do its work, nor do I think it unreasonable to seek to uphold a legal principle about reasonable doubt requirements in such matters that has persisted in this country since, I think, the early 1930s, and on which there is clear guidance. I do not understand what special circumstances make the Government—not for the first time, because they have suggested changing the burden of proof in other fields when it is administratively convenient—feel that is appropriate to abandon an important tenet.
I think that the provision in my amendment, or something similar, will be passed in another place because there are enough people there who will feel strongly on the matter, and who have the expertise—well beyond my powers of persuasion—to ensure that a vote is passed. However, I should like to persuade this House that it has a role in defending the traditional tenets of our justice system, and that we should make a stand on such issues in this place.
Because I feel very strongly about this, Mr. Speaker, I hope that I shall be able to catch your eye later in order to press amendment No. 99 to a Division. A very important principle is at stake here, in terms of the conduct of our criminal trials, and it should not be allowed to go simply because of inadvertence on the part of the House or complacency on the part of Ministers or others who have advised them that this is an appropriate way to go.
Looking at the clock, I see that we have until about 4.50 pm to discuss not only this group of amendments but four others, which demonstrates the absurd nature of the proceedings with which we must now contend, on an issue of such important public interest.
I want briefly to discuss clause 2 and the amendment tabled by my hon. Friend Mr. Malins. I broadly agree with the thrust of what he said, but the Government's problem is that they have allowed themselves to be confused by the magic of terms such as "passport" and "travel document". Surely clause 2 is about discovering the identity of the person presenting himself to an official at the sea port or airport, or at a later interview. There are plenty of ways of proving one's identity other than by a passport or travel document. We had a brief discussion on this in Committee, although it was necessarily truncated because of the guillotine procedure.
The wider public who might come to read or perhaps listen to these proceedings might not know that the Government are wedded to the idea of people proving their identity at the point of presentation or interview by means of a passport or travel document only. As I have said, there are plenty of other ways of proving one's identity. Indeed, if we are to be strict about this, a passport is not necessarily a proof of identity. I see my right hon. Friend Mr. Redwood—a fellow of All Souls—sitting two Benches below me; I do not think that I need to go into a huge and interesting philosophical discussion about the nature of identity. For practical purposes, an immigration or asylum officer will need to ask, "Who is this person presenting himself to me? Is he who he says he is?" That procedure does not necessarily have to involve a passport. I therefore ask the Government to think carefully about the need to tie themselves down to a requirement for someone to prove their identity by means of a passport or immigration document.
Let us imagine, for example, the case of an army or military group that had been the military arm of a country's Government but had ceased to have the confidence of the new Government, perhaps after a coup or some other form of change in government. The armed forces would therefore cease to be the official army and would be designated as rebels by the new Government. That might require a member of the former armed force—now a rebel—to seek asylum in another country because he had a genuine fear for his life in his home country. He might not have a passport or travel document, because he had had no need for one, having lived all his life in the country that was now in turmoil. He might, however, have his military dog-tag; he would therefore have his military number and possibly his name on the brass plate around his neck.
Under clause 2, however, that would not be a permissible means of identification. The individual who arrived on our shores or at one of our airports presenting his dog-tag would therefore have committed an offence, because he did not have a travel document. It could well be said that the Government's new amendment, providing for a reasonable excuse, will lift liability from that individual under the clause. However, let us look again at the amendment tabled by the Home Secretary and no doubt moved—implicitly, if not expressly—by the Minister, to whom I offer many congratulations on becoming a member of the Privy Council, although I gather from Labour party circles that membership of the Privy Council is a rather fluid arrangement at the moment.
The Home Secretary's amendment again refers to a travel document and to a passport as the means of proving identity. I can well understand the Government's argument; if one arrives on these shores in a tin bath, having capsized several times, one's passport and documents will have been washed away and will not be presentable immediately to immigration officers. One will have a reasonable excuse if it can be demonstrated, on the Government's argument, that that is what happened. There are plenty of examples—I have just given one—where someone's identity can be "proved", in so far as it is possible to prove identity at all, by means other than a travel document or a passport.
In the light of the shortness of time, and the fact that I have a suspicion that others will wish to speak, I will stop there. I hope that my remarks will prove attractive to the Minister, and not only for their brevity, and that she will respond positively at the end of the debate. As my hon. Friend the Member for Woking correctly stated, we are simply trying to prevent people from destroying documents—from cheating. We do not want people to cheat the immigration and asylum system.
We want to make sure that those who have a genuine claim under our laws and who come within article 51 of the UN convention can come to this country to present their claim as asylum seekers, but are not tied to identifying themselves by a particular class of document. That seems to be silly, unfair, counter-productive and probably not what the Government intend.
The amendment covers an important point of principle. As Mr. Malins said, clause 2 still does not exclude those people whom the Minister has been at pains to say are excluded—in effect or as a matter of practice—from the scope of the Bill. Her statements in Committee were welcome, as far as they went. However, I still do not see that express exclusion and, as a lawyer, I think it helpful to have legal certainty in statutes. If it is not the Government's intention to prosecute people who never had any documents, that statement should be in the Bill.
The burden of proof is raised by amendment No. 99, which I am pleased the hon. Member for Somerton and Frome will seek to press to a Division. The amendment raises a key point of constitutional principle. The Government's recent record seems to show that they are intent on denuding this country of its fundamental constitutional principles. It has always been the case that, in criminal prosecutions, the burden is placed on the Crown to prove its case beyond a reasonable doubt. Where a special defence is raised, it is up to the accused in Scotland or the defendant south of the border to make a reasonable argument, but the burden remains with the prosecuting authorities. We have been well served by that constitutional principle for centuries, certainly in Scotland.
It is astonishing that the Government plan, with a stroke of the pen, to get rid of that principle as far as asylum is concerned. That is unacceptable; if we see the erosion of that fundamental principle today on asylum, what will we see tomorrow? Where does the buck stop? Where will the line be drawn in terms of removing that fundamental principle?
I realise that I may not have time to reply to the debate so, to reflect the comments of my hon. and learned Friend Vera Baird, will Annabelle Ewing and other Members who spoke in a similar vein explain how they think the prosecuting authorities could prove beyond reasonable doubt when, where and how an individual disposed of or destroyed their documents, between boarding a plane in another part of the world and travelling across airspace, when that act may not have taken place within UK jurisdiction but in the plane, outside British airspace?
Is not the key point that the prosecution does not have such a requirement under the wording of the offence in the Bill? Our argument is simply that the prosecution should have to prove beyond reasonable doubt that such a defence does not apply, which is completely different from proving that documents were destroyed in a particular place.
I thank the hon. Gentleman for that helpful intervention and for clarification of his amendment. The amendment provides specifically that the Crown has to knock back the defence of reasonable excuse submitted by the accused in Scotland, or the defendant south of the border. That is the purpose of the amendment. It is an important provision and I shall be happy to support it if a Division is called.
I shall confine my remarks to amendment No. 99, with which I disagree. However, I am grateful to Mr. Heath for his concession about the difficulty that would be faced by prosecution authorities when trying to prove by whom, how, when and where a document was destroyed. That is the degree of detail that is usually required when framing a criminal indictment and the hon. Gentleman readily conceded that it would be extremely difficult to prove it beyond reasonable doubt. That is the test, which is why the offence is framed as it is—a point that he seemed to accept.
However, on the question of the burden of proof in a reasonable excuse, are we not in exactly the same position? The only person who knows how the document came to be destroyed, or why it does not exist, is the person who does not have their document with them when they arrive. How is the prosecution to disprove it if the person says, "My passport fell overboard when I was moving from a big ship to a small boat somewhere just off the coast of Malaysia"? A person has only to say that and the amendment would then impose on the Crown the necessity to disprove beyond reasonable doubt that such an event had occurred, which would be quite impossible. As the hon. Gentleman has already conceded, that same impossibility shows the wisdom of the current framing of the offence.
All that is required is that the person with the unique knowledge of what happened must show that it is more probable than not that he is telling the truth. That seems a reasonable way to evaluate something that, in 90 per cent. of cases, only that person can possibly know about. The tribunal will say, "That's probably true", in which case the person has passed the test. That test is not mighty or difficult, but perfectly reasonable. It certainly is not, as Annabelle Ewing said, a constitutional principle that in each and every criminal case the prosecution must prove every element beyond reasonable doubt, and that the only requirement for the defendant is to raise a defence, which must always be disproved.
There are innumerable cases in licensing, for example, or involving other kinds of permit, when it is uniquely in the person's knowledge whether they have a reasonable excuse for not holding the required document. Sometimes, people just have to declare their excuse, while under other legislation they have to discharge the burden of showing that it is probably true. There is no constitutional principle here.
I point in particular to the fact that the defence of diminished responsibility for murder relies on the defendant showing on the balance of probabilities that what he says about his state of mind at the time is true. I respectfully say that no constitutional principle is being undermined, and the amendment is wholly impractical.
Listening to the debate, I have been swayed by the softer voices of my hon. Friend Mr. Malins and my hon. and learned Friend Mr. Garnier, urging the Government to caution in framing this offence. I am persuaded to their view because the offence attracts a sentence of up to two years' imprisonment. Someone could genuinely have had their wallet or handbag stolen on the ferry over to this country, and if their plea in mitigation was unsuccessful they could go to prison here. I wonder whether we should really be adding to the prison population for such a purpose.
It is a pity that we will not have time for a proper debate on penalties, because one would have thought that people trying to come here illegally might regard being sent back as a more serious punishment, and that might be a more sensible response in our own national interest, undesirable though two years at Her Majesty's pleasure might be for most people.
I urge the Minister to think more carefully about the framing of this offence, in light of the good and learned arguments advanced by Conservative Members and the doubts expressed from those on the Liberal Democrat Benches.
To the place they had just come from, because they would be arriving at a port of entry off a flight or a ferry, and surely the authorities could work out where that flight or ferry had just come from. In most cases, the answer will be straightforward.
Would not the country at the other end, receiving this person with no passport or documents, just send them straight back here? This poor soul might spend the rest of his life flying back and forth on an aeroplane.
Of course not. Very often, these people will come from a country that shares glorious membership of the European Union with us. This is precisely the kind of thing on which we should use our influence in the European Union to come to a sensible arrangement so that we do not end up playing shuttlecock with refugees or people seeking entry who do not have the right qualifications or reasons. That is surely within the diplomatic skills of some members of the Government, so that we can have common sense in this matter.
I am grateful to the hon. Lady, because she has reinforced my case. Presumably, the Minister wants these people to go somewhere else after the prison sentence, so the problem remains. In the end, she must answer our question about where they are to be sent, and that is more difficult six months or two years later, after a prison term, than it would be on the day, on first arrival in the country, when we would normally know where they had come from. Arrangements could surely be made at the airport to ensure that that is the case. Perhaps we should pass legislation to ensure that we can identify exactly where people have come from when they arrive here, rather than legislating to send a lot of people to prison, some of whom might be innocent, because they have genuinely mislaid their travel documents or had them stolen in transit.
There are often many reasons for drafting law, and I imagine that the most powerful one in this case is to deter people from destroying their documents in the first place. Although the problem subsists beyond the prison sentence, surely that purpose at least commends itself to the right hon. Gentleman.
I, like my hon. Friends, am worried about how wide the offence will become and whether it will be enforceable. The Minister thinks that she is making a firm proposal, but I assume that many people who are challenged will give all sorts of reasons why they do not have documents. Many may claim, as I suggested, that their handbag or wallet was snatched on their way over and that that contained the documents. Some might come up with the reason suggested by Vera Baird: their documents fell overboard when they got off one ship and on to another. They might say that they left the documents lying around in the bar of the ferry and that they had disappeared when they came to pick them up again. In some cases, those people will be telling the truth and it will up to the court to listen carefully to that defence, but in other cases they will not be telling the truth. I wonder how easy it will be for the enforcement authorities to decide which people had deliberately destroyed their documents and come up with a bogus claim about what happened to them, and which had genuinely suffered a misfortune or mishap on the way over and thus did not deserve to go to prison.
I know that many hon. Members would like to hear the Minister's reply, so I shall not detain the House any longer. We want to know about the burden of proof and the width of the offence—whether it is too widely judged. I would like to know why prison is thought always to be the answer and, especially, how the Minister thinks that we will sift out those who make a reasonable defence for where their travel documents have gone from those who try to mislead the authorities—I do not think that that will be an easy task.
I am grateful to my right hon. Friend for giving way because I know that he is keen to finish his speech. Clause 6 contains a list of things that will be used to decide a claimant's credibility. I do not know whether they will satisfy Vera Baird, but clearly the Government are worried about people telling fibs to officials.
My hon. and learned Friend is exactly right. The more provisions there are in the clause—there are quite a number—the more complex things will be for the courts and the more worries I have about how enforceable the offence will be. The Minister must tell us why prison must be the result, how enforceable the offence will be, and whether it is right to reverse the burden of proof on this occasion, because that might not work with the result that she has in mind.
In the small amount of time that I have left, I would like to address a question that several hon. Members asked: why clause 2 is constructed as it is. I am again grateful to my hon. and learned Friend Vera Baird because she asked questions of hon. Members that revealed the answer to that question. Let us consider the situation that we would face if the clause created the offence of destroying or disposing of travel documents. A prosecution would have to prove beyond reasonable doubt that that had occurred. My hon. and learned Friend and I made it clear that that would require the prosecution to be able to say in court who had destroyed or disposed of the document, and when, how and where that had happened.
We are, of course, talking about a situation in which people travel from countries far across the world and thus spend a long time in a plane. They will also be airside in a British airport for some time, so they will have hundreds of opportunities to dispose of or destroy their documents during the journey. As I said, some of those opportunities will arise outside the UK, so even if it were possible to prove that people had disposed of their documents by handing them to an agent immediately after boarding a plane, that might well not be in a British court's jurisdiction. The potential for proving an offence would be negligible if the clause were constructed differently.
Similarly, under the clause as it stands, for the same reasons, it is virtually impossible for the prosecution to establish beyond reasonable doubt the fact that the defence put forward is not true. The present construction of the clause reflects the reality that we are dealing with. This is not like a police investigation within the confines of the United Kingdom, in which the authorities can adduce and search for evidence, and put it before the court to prove a case beyond reasonable doubt.
We are not in that situation, and it is impossible for the prosecuting authorities to do that, so the clause is not sloppy. Neither I, nor my officials, nor parliamentary counsel are complacent because we constructed the clause in that way. We did so because that is the only feasible way of constructing an offence that will catch some people who have disposed of their documents.
The burden of proof in clause 2 means that it is for the prosecution to establish that someone has arrived without a document, and the defence of reasonable excuse is open to the applicant. On the balance of probabilities, the burden of proof is for the defendant to establish, because only the defendant knows what has happened. It is virtually impossible for the prosecution to know what has happened, or to be able to establish that with any degree of credibility.
In response to Mr. Redwood, I should explain that the main purpose of the provision is deterrence, and if hon. Members are serious about agreeing that we need a sanction to prevent people from disposing of or destroying their documents, and to enable us to take action when they do, they should realise that this is the only feasible way of constructing such an offence. Anything else would be impossible for the prosecuting authorities to operate.
I am grateful to the right hon. Lady—as I now know her to be, and I congratulate her on that status—for giving way to me. However, the limited range of opportunities to exercise the reasonable excuse defence means that there is a limited number of options for the prosecution to prove. Given that, as she said, only the defendant knows what has happened, it will be equally difficult for the defendant to establish to the satisfaction of the court, even on the balance of probabilities, that there is a reasonable excuse. In that case, surely it is a basic principle of British law that people are presumed to be innocent unless they are proved guilty.
The hon. Gentleman must consider what I said about the reality of the situation here. I concede that it is possible that the reason why someone has no document when they arrive is that they have never had one—and I am happy to give the right hon. Member for Wokingham an assurance that we are not interested in prosecuting people in those circumstances. However, we had a considerable debate on that subject in Committee, and the fact is that the vast majority of people who arrive without documents have destroyed them or disposed of them. There is only a very limited range of excuses. [Interruption.] If people have a reasonable excuse, it is up to them to put it forward and establish it on the balance of probabilities.
As the right hon. Lady now has only 30 seconds left in this rather important debate, will she briefly deal with the argument that I put to her about the passport as opposed to the means of identity?
We cannot accept other documents because people cannot travel on other documents. They must a have a travel document—
They must have a travel document—
It being one hour and fifteen minutes after the commencement of proceedings on the Bill, Mr. Deputy Speaker put forthwith the Question already proposed from the Chair, pursuant to Order [this day] .
Amendment agreed to.
Mr. Deputy Speaker then proceeded to put forthwith the Questions necessary for the disposal of the business to be concluded at that hour.
Amendment proposed: No. 99, in page 2, line 30, at end insert—
'(4A) Where a person is charged with an offence under subsections (1) and (2) above, and relies on a defence under subsections (3) and (4) above, if the person adduces evidence which is sufficient to raise an issue with respect to the matter, the court or jury shall assume that the defence is satisfied unless the prosecution proves beyond reasonable doubt that it is not.'.—[Mr. Heath.]
Question accordingly negatived.
Amendments made: No. 49, in page 2, leave out from beginning of line 9 to second 'an' in line 11 and insert—
'(2) A person commits an offence if at a leave or asylum interview he does not have with him, in respect of any dependent child with whom he claims to be travelling or living,'.
No. 50, in page 2, line 14, at end insert—
'(2A) But a person does not commit an offence under subsection (1) or (2) if—
(a) the interview referred to in that subsection takes place after the person has entered the United Kingdom, and
(b) within the period of three days beginning with the date of the interview the person provides to an immigration officer or to the Secretary of State a document of the kind referred to in that subsection.'.
No. 51, in page 2, line 30, at end insert—
'( ) Where the charge for an offence under subsection (1) or (2) relates to an interview which takes place after the defendant has entered the United Kingdom—
(a) subsections (3)(c) and (4)(c) shall not apply, but
(b) it is a defence for the defendant to prove that he has a reasonable excuse for not providing a document in accordance with subsection (2A).'.
No. 52, in page 2, line 33, after first 'it', insert
'or for not providing it in accordance with subsection (2A)'.
No. 34, in page 2, line 44, at end insert
', unless in the circumstances of the case it is unreasonable to expect non-compliance with the instructions or advice.'.
No. 53, in page 2, line 46 , after 'officer', insert
'or official of the Secretary of State'.
No. 24, in page 3, line 4, leave out 'six' and insert 'twelve'.
No. 54, in page 3, line 23, at end insert—
"leave or asylum interview" means an interview with an immigration officer or an official of the Secretary of State at which a person—
(a) seeks leave to enter or remain in the United Kingdom, or
(b) claims that to remove him from or require him to leave the United Kingdom would breach the United Kingdom's obligations under the Refugee Convention or would be unlawful under section 6 of the Human Rights Act 1998 (c. 42) as being incompatible with his Convention rights.'.
No. 25, in page 3, line 23, at end insert—
'( ) In so far as this section extends to England and Wales, subsection (7)(b) shall, until the commencement of section 154 of the Criminal Justice Act 2003 (c. 44) (increased limit on magistrates' power of imprisonment), have effect as if the reference to twelve months were a reference to six months.
( ) In so far as this section extends to Scotland, subsection (7)(b) shall have effect as if the reference to twelve months were a reference to six months.
( ) In so far as this section extends to Northern Ireland, subsection (7)(b) shall have effect as if the reference to twelve months were a reference to six months.'.
No. 55, in page 3, line 23, at end insert—
'( ) Section 11 of the Immigration Act 1971 (c. 77) shall have effect for the purpose of the construction of a reference in this section to entering the United Kingdom.'.—[Beverley Hughes.]