(1)In the construction and application of Article 1(F)(c) of the Refugee Convention the reference to acts contrary to the purposes and principles of the United Nations shall be taken as including, in particular—
(a)acts of committing, preparing or instigating terrorism (whether or not the acts amount to an actual or inchoate offence), and
(b)acts of encouraging or inducing others to commit, prepare or instigate terrorism (whether or not the acts amount to an actual or inchoate offence).
(2)Where the Secretary of State rejects an asylum claim wholly or partly on the grounds that Article 1(F) of the Refugee Convention applies, or makes any other decision wholly or partly in reliance on the application of that Article, the Asylum and Immigration Tribunal or the Special Immigration Appeals Commission—
(a)must begin its consideration of the Refugee Convention on any appeal in which the rejection or decision is to be considered by considering whether or not Article 1(F) applies, and
(b)if it concludes that Article 1(F) applies, must dismiss the appeal in so far as it relies on the Refugee Convention.
(3)In this section—
“asylum claim” means a claim by a person that to remove him from or require him to leave the United Kingdom would be contrary to the United Kingdom’s obligations under the Refugee Convention,
“the Refugee Convention” means the Convention relating to the Status of Refugees done at Geneva on 28th July 1951, and
“terrorism” has the meaning given by section 1 of the Terrorism Act 2000 (c. 11).
(4)Section 72(10)(a) of the Nationality, Immigration and Asylum Act 2002 (c. 41) (serious criminal: Tribunal or Commission to begin by considering certificate) shall have effect subject to subsection (2)(a) above.’.—[Mr. McNulty.]
With this we may discuss the following: amendment (a), in line 4, leave out paragraphs (a) and (b) and insert
‘offences set out in section 1(1), 2, 5, 6, 8, 9, 10 or 11 of the Terrorism Act 2006.’.
Government new clause 8—Appeals: deportation—
(1) After section 97 of the Nationality, Immigration and Asylum Act 2002 (c. 41) (appeals: national security) insert—
“97ANational security: deportation (1)This section applies where the Secretary of State certifies that the decision to make a deportation order in respect of a person was taken on the grounds that his removal from the United Kingdom would be in the interests of national security. (2)Where this section applies— (a)section 79 shall not apply, (b)the Secretary of State shall be taken to have certified the decision to make the deportation order under section 97, and
(1)This section applies where the Secretary of State certifies that the decision to make a deportation order in respect of a person was taken on the grounds that his removal from the United Kingdom would be in the interests of national security.
(2)Where this section applies—
(a)section 79 shall not apply,
(c)for the purposes of section 2(5) of the Special Immigration Appeals Commission Act 1997 (c. 68) (appeals from within United Kingdom) it shall be assumed that section 92 of this Act—
(i)would not apply to an appeal against the decision to make the deportation order by virtue of section 92(2) to (3D),
(ii)would not apply to an appeal against that decision by virtue of section 92(4)(a) in respect of an asylum claim, and
(iii)would be capable of applying to an appeal against that decision by virtue of section 92(4)(a) in respect of a human rights claim unless the Secretary of State certifies that the removal of the person from the United Kingdom would not breach the United Kingdom’s obligations under the Human Rights Convention.
(3)A person in respect of whom a certificate is issued under subsection (2)(c)(iii) may appeal to the Special Immigration Appeals Commission against the issue of the certificate; and for that purpose the Special Immigration Appeals Commission Act 1997 shall apply as to an appeal against an immigration decision to which section 92 of this Act applies.
(4)The Secretary of State may repeal this section by order.”.’.
(2)In section 112 of that Act (regulations, &c.) after subsection (5A) insert—
“(5B)An order under section 97A(4)—
(a)must be made by statutory instrument,
(b)shall be subject to annulment in pursuance of a resolution of either House of Parliament, and
(c)may include transitional provision.”.’.
And the following amendment thereto: (a), in line 33, leave out subsection (4).
With your indulgence, Sir Nicholas, and without remotely challenging the order of our business, it might be expeditious if I deal with new clause 7 and the amendment and new clause 8 separately. If you would like to take a break in between, Sir Nicholas, I am more than up for that. I am here to oblige.
Article 1(F)(c) of the refugee convention provides for the exclusion of an individual from the protection of the refugee convention in cases in which there are “serious reasons for considering” that the person has been guilty of acts contrary to the purposes and principles of the United Nations. Those purposes and principles are set out in the preamble and articles 1 and 2 of the charter of the United Nations. They enumerate fundamental principles that should govern the conduct of members in relation to each other and to the international community. It is implicit in article 1(F)(c) that terrorists should be excluded from asylum decisions that have been upheld by both a tribunal and the Special Immigration Appeals Commission. However, we consider that in the light of the heightened threat of terrorism, particularly following the London bombings, but not exclusively for that reason, it is appropriate to legislate to make it explicit that such individuals should not be afforded the protection of the convention.
We have also made it clear that we do not believe that there are any circumstances in which terrorism is justified, wherever the terrorist act is committed; we cannot condemn terrorist acts in the United Kingdom but tolerate them elsewhere. The amendment is entirely consistent with the refugee convention. It is also in line with UN Security Council resolutions. For example, resolution 1373 states:
“Any act of international terrorism constitutes a threat to international peace and security ... acts, methods, and practices of terrorism are contrary to the purposes and principles of the United Nations and that knowingly financing, planning and inciting terrorist acts are also contrary to the purposes and principles of the United Nations”.
We need new clause 7. It is compatible with article 1(F)(c) of the refugee convention. With that in mind, and by way of introduction, I commend the new clause to the Committee.
The introduction of the interpretation of article 1(F) implies that the Minister believes that its current use is causing problems. It would help the Committee if he indicated what sort of cases there are or how many cases there have been in which the absence of new clause 7 from the current law has caused a problem? Its absence has presumably led to someone being given asylum whom the Minister feels should not have been granted it.
It is an entirely fair point. I say quite candidly that that question is difficult to answer, simply because we do not know the answer. I must stress that the new clause has not only been introduced as a result of 7 July, although those events obviously brought things into stark focus. We start from the premise that there will potentially be instances of people being granted asylum who perhaps should not have been granted it, but we are talking about a small number. It is not a blanket measure, but the legislation does require tightening up.
As I have also said, I appreciate the “good terrorist”, “bad terrorist” and “terrorist versus freedom fighter” undercurrents to the debate, as well as the broader issues that are being deliberated on elsewhere in far more depth and detail. The Committee must remember that we are dealing in a narrower sense with immigration and asylum legislation and rules. I ask it to view the new clause in those terms. I add the caveat that it is right and proper to align definitions and criteria in the Terrorism Bill with this Bill as much as we can as they proceed through both Houses.
For the reasons that I have given, it is necessary to move in the direction outlined in new clause 7. Not to pre-empt the hon. Member for Oxford, West and Abingdon (Dr. Harris), but amendment (a) to new clause 7 is effectively a rerun of what we talked about in debates on amendments to previous clauses. We shall consider the matters he raises. This Bill will evolve as it and, indeed, the other Bill progress through both Houses. I hope that amendment (a) is as probing as the hon. Gentleman’s previous amendments.
New clauses 7 and 8 are being taking together with their respective amendments. How the Committee deals with that matter is really up to it. As long as it is in order, I am happy to allow it to proceed.
The Minister’s officials detailed to my hon. Friend the Member for Woking (Mr. Malins) and me, and, I think, to the hon. Member for Oxford, West and Abingdon, that new clause 7 is about denying asylum to terrorists. We were grateful for the briefing. It was extremely helpful and reflected the way in which all parties are approaching legislation that is being dealt with in other proceedings in the House.
We all understand why the Minister wants to take these powers to himself. Nevertheless, as I think was acknowledged in our debates this morning, there will still be a fall-back position on a human rights basis, so a genuine asylum seeker will, in broad terms, be treated in exactly the same way as a terrorist. That difficulty permeates the entire new clause, which is being added to protect our borders and our citizens.
Throughout our proceedings, we have been admirably briefed by organisations with an interest. I acknowledge in particular the thoughtful representations and detailed briefs that have been made available to Opposition Members and, I understand, to the Minister by the Immigration Law Practitioners Association. Incidentally, I concur with the hon. Member for Oxford, West and Abingdon that if the Minister comes back to us on new clause 8, that will be perfectly satisfactory. The hon. Member for Oxford, West and Abingdon will lead for Opposition Members on new clause 8, too, which shows just how amicable proceedings can be in.
The Minister will know that in ILPA’s view the new clause is unnecessary. Although I may not entirely agree with that, it is only fair that ILPA’s views are put to the Committee and that he has an opportunity to respond. It believes that the refugee convention provides all that is required.
New clause 7(2) shows that the measure is not only about terrorism but about every case in which reliance on the exclusion provisions arises. It refers to paragraph (F) of article 1 as a whole, not just to sub-paragraph (c), which deals with
“acts contrary to the purposes and principles of the United Nations.”
Paragraph (F)(b), for example, with which the Minister will be familiar, covers the commission of serious non-political crimes outside the country of refuge prior to admission as a refugee.
Statutory construction of the refugee convention was a feature of section 72 of the Nationality, Immigration and Asylum Act 2002. The Minister will probably remember that that was criticised by the United Nations High Commissioner for Refugees, who described it as suggesting an approach
“which is at odds with the Convention’s objectives and purposes” and
“runs counter to long-standing understandings developed through State practice over many years regarding the interpretation and application of article 33”.
The Minister will also be familiar with resolution 1377, adopted by the Security Council in 2001. It stated:
“acts of international terrorism are contrary to the purposes and principles of the Charter of the United Nations, and ... the financing, planning and preparation of as well as any other form of support for acts of international terrorism are similarly contrary to the purposes and principles of the Charter of the United Nations”.
All is not as clear-cut as it looks, however, given that the UN has never adopted a definition of terrorism, as the Minister knows. He will be well aware of the debates surrounding the definition of terrorism and particularly what has been said by the Joint Committee on Human Rights.
ILPA argues that new clause 7, which refers to encouraging terrorism
“(whether or not the acts amount to an actual or inchoate offence)” is enough to bring a person within the statutory construction. Thus it would appear that a person could be excluded from recognition as a refugee for actions that are not a crime under UK law.
The Home Secretary’s letter of 15 September referred to
“our scope to refuse asylum to those whose conduct is covered by the list of unacceptable behaviours” that we helpfully have here, giving some indication of the anticipated scope of the clause. However, it is unclear whether a change of policy or drafting considerations have resulted in no express reference being made to the list of unacceptable behaviours that I have here to the provisions that will govern the clause.
ILPA would like the Minister to clarify whether the Government’s intention as concerns the list of unacceptable behaviours remains as described in the letter of 15 September. It contacted the Minister’s office in response to the consultation and he is familiar with the concern that it expressed at the imprecise and subjective nature of the proposed list of unacceptable behaviours. I would be grateful if he could make some comments on those ILPA representations.
It would also be helpful to ILPA if the Minister would deal with the point it has raised as to whether the new measures are directed against those wanted in other countries for crimes committed or to serve prison sentences imposed by a court. I think that, once again, he is familiar with the debate and it would be helpful if, at this stage, he could clarify that as well.
The extra breadth of subsection (2) makes it difficult to determine whether it is envisaged that cases involving reliance on the new statutory definition might also come up before the asylum and immigration tribunal or whether they will arise only before the Special Immigration Appeals Commission. ILPA would be grateful again if the Minister would clarify that matter as the response would provide a clue as to whether the powers are to be used widely or narrowly in terms of the range of people to whom they would be applied.
I have summarised most of the points that were put to us in the ILPA briefing, but I would like to say that I have the greatest sympathy with the Minister’s decision. In the same way that there is a tension between the freedoms of people in this country and protection of our citizens, there is also a dilemma over whether deportation is warranted when perhaps ultimately prosecution here or abroad could be achieved.
I have some difficulty in seeing that deportation provides a solution to our problems because matters could be exacerbated by exporting the problems abroad where feelings could foment rather than by dissipating the threat by putting in a bit more work here and relying on other matters. In particular, if we could rely on the painstaking work, that would give us the advantage of full investigations. Going through extradition proceedings might be a suitable alternative.
I would be grateful when the Minister responds to this part of the debate and to the hon. Member of Oxford and Abingdon, West if he could deal with that dilemma and give us his personal views.
Thank you, Sir Nicholas, both for calling me and naming my constituency correctly as you have always done. I am used to everyone else not doing so, including on occasions people who should be able to.
I have major problems with new clause 7 as does my party. I want to say at the beginning that we did not push new clause 4, about which we also have concerns, to a Division as this is a relatively open debate on the Second Reading of the new clauses. However, new clause 7 is of such concern that—I hope it will not be seen as going against the grain of these proceedings—I may press it to a Division. Once a new clause is in a Bill, it is not clear that we will have an opportunity to isolate our major concerns in a vote on Report or Third Reading.
Many of the concerns have been expressed on behalf of ILPA by the hon. Member for Chesham and Amersham (Mrs. Gillan). In keeping with previous practice, I will not repeat them. I want to make it clear that I would not simply report those concerns to the Committee, I share many, if not all of them. I will touch on those that are most serious.
New clause 7 seeks to construe article 1(F)(c) of the refugee convention. I am extremely dubious about whether it is appropriate and necessary to do that for the purposes that the Government want to see in law. There is a fundamental objection to writing in statute a construction of a convention that fetters the ability of judges to look at international approaches to this and the way case law evolves. It has never been questioned that the existing wording of the refugee convention and the construction that would and has been put on it by UK courts would not be sufficient. If in response to the hon. Member for Walthamstow (Mr. Gerrard) the Minister were able to identify some cases that were frustrating to Ministers—I understand how frustrating it is when judgment goes against them—one could understand their motivation. We could then have a better engagement but, in the absence of that, the principle of seeking to create a construction here is wrong.
The second and major problem with this approach is the vague and broad scope of the construction in subsections (1)(a) and especially (1)(b) of new clause 7 which refers to
“acts of encouraging or inducing others to commit, prepare or instigate terrorism (whether or not the acts amount to an actual or inchoate offence).”
As the hon. Lady said, according to the ILPA briefing, it is possible that something within that may not be a criminal offence in this country, even under the new legislation, particularly because it does not talk about an actual offence. Moving away from our existing statute, if one has to refer to something, is extremely concerning and inappropriate. That is why amendment (a) is more relevant than it was under new clause 4. I hope that the Minister will accept that it touches on keener issues here.
I do not defend to the absolute final numeral the amendment’s construction. Clearly it is commenting on clauses of a Bill, the numbers of which will change. Clearly, in that sense, it will not be accurate. It at least, however, lists the new offences on terrorism, including reference to section 1 of what will be the Terrorism Act 2006, which will at some point define, if the Government get their way as I suspect they will, the offence of encouraging acts of terrorism. It is not appropriate here to have the discussion that is due in Committee on the Terrorism Bill, but it is a much more reasonable place to have an amendment such as amendment (a) if one is to have a construction at all, which I think is wrong.
This goes to the point that I raised earlier. In different places, the Government are using different definitions. I am grateful that the Home Secretary yesterday and the Minister today recognised that there is an issue here and that we probably have to get the Terrorism Bill out of the way first and see where we are. However, it is appropriate in terms of scrutiny to flag this up now to see whether we can get a clear indication that the Minister is at least open minded on whether subsections (1)(a) and (b) of new clause 7 could be amended to refer to specific criminal acts in this country. If the Minister can assure me that that is under consideration it will make it easier for me not to divide the Committee on new clause 7.
There are problems with subsection (1)(a), which refers to measures that are not already legislated for, and we have concerns about the whole approach. I am tempted to indicate our anxiety by voting against the proposal without in any way criticising the manner in which the Minister and the Government have approached the matter. I, too, want to reiterate how grateful I am for the explanation provided previously.
I will not repeat the points that have been made in respect of ILPA but I want to draw attention to some other comments that have been made. The Minister will be aware that my remarks echo the points made by my hon. Friend the Member for Winchester (Mr. Oaten) in his letter of 18 October. I note the Home Secretary’s reply, dated 20 October, effectively saying that there are still major concerns about how it works.
The Refugee Council is also worried about the construction of article 1(F)(c). It states that the new clause
“represents a significant extension of the grounds for denying international protection for refugees.”
It shares my view that the convention, alongside UK criminal law, already provides the necessary tools for protecting national security and, in the absence of specific cases that can be identified, it is relatively strong in that view. It also shares my concern about the definition of relevant acts in the new proposal being extremely broad, extending to acts that are not criminal and difficulties with the terminology relating to encouragement.
The problem has already been mentioned by the hon. Member for Chesham and Amersham in respect of the very broad definition of terrorism, which is already controversial. It will no doubt be subject to debate and amendment in the Terrorism Bill, which means that it is hard to see how the new clause is supportable. I say that without in any way wishing to undermine the intention to ensure that terrorists do not use the refugee convention to obtain refugee status, which would be inappropriate.
The hon. Lady also raised concerns about what many in this country would not see as terrorists except for the wide definition of terrorism in the Terrorism Act 2000. The Home Secretary made it clear in his evidence to the Joint Committee on Human Rights that he does not believe that there is any distinction between democratic freedom fighters and terrorists. However, many people will be concerned that those who take part in a democratic armed struggle involving serious damage to property but not targeting human life would be covered by the definition of terrorism in the 2000 Act, which is the definition of terrorism to which the new clause refers. Although we can get ministerial reassurances that the Attorney-General would be able to offer advice on whether certain people would not be covered, it is not necessary for us to try to define how the courts should interpret the provision.
The Law Society is also worried. It states that
“the statutory construction of Article 1(F)(c) is broad and will result in legal challenges to its application.”
“The clause is silent as to burden of proof. The Society believes that given the severity of the issues concerned and the implications for the applicant, the clause should explicitly state that the burden of proof is on the Secretary of State to prove that the applicant falls within Article 1(F)(c).”
That is my substantive opposition to the wording of the new clause as drafted, together with the points made by the hon. Lady on behalf of ILPA.
I want to raise a further point , however, which I hope has not been raised before, about the width of subsection (2)(a), which states that the tribunal or the Special Immigration Appeals Commission
“must begin its consideration of the Refugee Convention on any appeal in which the rejection or decision is to be considered by considering whether or not Article 1(F) applies.”
It does not have to consider 1(F)(c), so it is broader than the new definition. I should be grateful if the Minister could comment on the significance of that provision, which has been explained to me as a way of short-cutting the approach of the tribunal. Is it appropriate for it to be broader than 1(F)(c)? It may be that it is appropriate to refer to 1(F)(c) rather than simply to 1(F) in the subsection because, as the Committee will be aware, article 1(F) of the refugee convention contains other provisions—(a) and (b)—that do not refer to terrorism. It is not clear whether the intention of subsection (2) of the new clause for this short-cutting of the consideration of the tribunal or Special Immigration Appeals Commission is meant to refer only to terrorism, or whether it is an attempt to clarify matters in relation to the other parts of 1(F). Will the Minister clarify that matter?
My final point is about human rights. It has been argued that we need not worry about removing people when their human rights are at risk because the European convention on human rights will still apply. People can make representations on a human rights basis, appealing against removal, even if they cannot get refugee status under the refugee convention, because the European convention on human rights goes, in a sense, wider than the refugee convention.
However, it has been pointed out that recognition as a refugee carries with it enhanced rights, including the rights to family reunion, and that it is therefore vital to consider the words of the United Nations High Commissioner for Refugees handbook:
“Considering the serious consequences of exclusion for the person concerned ... the interpretation of these exclusion clauses must be very restrictive.”
That brings us back to an earlier point: when there is a convention that has been interpreted by the courts in the past, and a handbook, and UN resolutions that can be read and noted by judges, we do not need, nor is it desirable to have, a construction in our law, particularly when it is too wide and does not relate specifically to criminal acts committed in the UK.
This new clause, of all the new clauses, concerns me most. I recognise that some of my difficulties with it are probably more to do with the difficulties in the Terrorism Bill—particularly when we start to look at some of the definitions that are in that Bill—rather than with the content of this Bill. No doubt we will debate that Bill. However, if I remember the timetable motion for the Terrorism Bill correctly, it will be dealt with before we reach Report and Third Reading on this Bill.
I am always a bit worried by attempts to put interpretations of an international convention into our domestic law. We had this argument to some extent in 2002 in relation to an interpretation of part of the convention. The UNHCR was not terribly happy about what happened then. I accept that interpretation always happens to a degree. There have sometimes been differences of view between different countries about how, for instance, the definition of a safe third country should be applied, even though that is in the 1951 convention. However, it always concerns me when we start to go down that road, and it is of particular concern in light of the atmosphere that we have had in the past few years, in which parties in the House have suggested that we should renege on the 1951 convention because it was outdated and no longer needed. We go down some dangerous roads when we start to put into domestic law interpretations of what that convention means and how it should be applied.
The Minister rightly said that there is an issue about the broadness of the definition, that some of those concerns will be discussed when we debate the Terrorism Bill and that we should align definitions between the two Bills. It is clearly a sensible approach that whatever definitions appear in the Terrorism Bill will also apply here. There is some merit in looking not just at the definition of terrorism but at the offences specified in the Terrorism Bill. If those offences are clearly specified in the Terrorism Bill, I wonder how necessary it is to start including in this Bill definitions of what actions will result from article 1(F)(c) coming into play.
Terrorism potentially encompasses a wide range of activities. I know that many members of the Committee have worries, concerns and difficulties about how some of the definitions should be applied. Clearly, none of us wants to pass terrorism legislation. In particular, some of us who are London Members have seen the consequences in the past few months of terrorist action. None of us wants legislation that leaves loopholes that make it easier for people to commit similar acts.
The provisions relate to acts of terrorism that have happened outside the country, and that is much more difficult to deal with. The Minister referred to the bad terrorist/good terrorist argument, but genuine issues arise for many hon. Members about how one defines a terrorist or a freedom fighter, where they overlap, and what support we should be giving, or not giving, to someone in desperate circumstances who is trying to bring down an oppressive regime. I can think of instances in the past and of movements that many of us would have supported that were not entirely non-violent and were involved in damage to property, for instance.
I am curious. Will my hon. Friend will give an example of what we are talking about, which is not the individual’s ability so to do but the state’s—where a state has endorsed someone else’s “struggle” elsewhere as a matter of course?
Both situations arise. I can certainly think of many instances of freedom movements that a lot of us have supported. I can also think of examples where states have been directly involved in financing movements that were attempting to overthrow governments. I can think of examples where the United States has been directly involved in financing movements that were attempting to overthrow governments. There is no question but that that has happened. The financing of the Contras is an obvious example.
One wonders what might arise in the future and how someone involved in such a movement might then be positioned if they were trying to apply for asylum. I am not pretending that these are not complicated and difficult issues; they clearly are. It is difficult to formulate completely objective rules, regulations and laws about them. There will always be elements of subjectivity. There is no question about that. They are also often coloured by people’s political views about which movements they support.
I appreciate that questions about how the phrase “encouraging terrorism” is supposed to be interpreted are difficult and delicate. I speak from the point of view of someone who is not in any way a believer in violence as a means of achieving political ends, but then I do not live in a country where there is an oppressive regime.
Will the Minister clarify a couple of points? One relates to appeals. New clause 7(2) deals with some aspects of that. I understand the intention: if the appeals tribunal is convinced that paragraph (F) of article 1 applies, any appeal reliant on the refugee convention is bound to fail. However, that still leaves open the possibility of an appeal on human rights grounds.
I may be wrong on my next point, but I seek clarification. There is a reference to asylum claims that are rejected “wholly or partly” on the grounds that paragraph (F) of article 1 applies, so clearly there will be cases in which that is part of the reason for rejecting the claim. Can we know that if paragraph (F) of article 1 is brought into play, even partly, someone will still be entitled to an appeal? Is there the possibility of another part of the decision meaning that any appeal would be suspensive and that the person could be removed from the country before the appeal issues in new clause 7(2) came into play?
It is laid down how an appeal would work if the ground that we are discussing was the only ground on which the asylum claim was rejected. I am not clear on how the appeals come into play if that ground is part of the reason for the rejection and whether that would always mean that the appeal happened in the UK, or if there might be situations in which, in relation to refusals for other reasons—I have in mind certification, fast-tracking, third country or whatever—it became non-suspensive. I do not know whether that makes sense, but I seek clarification.
The Minister said that the measure would be used only in a small number of cases, and that is almost certainly right. I have not come across cases that I can think of in which the existing provisions were used. Nor have I have come across cases—this is the point that I raised earlier—in which the existing provisions have caused a problem, in that they have led to someone being granted asylum whom one would perhaps feel should not have been because of activities with which they have been involved.
We are highly likely to return to this issue on Report. That is almost inevitable because the Terrorism Bill will have come to a conclusion by then and the Government may want to change the provisions in the new clause. The new clause is important and the first opportunity that many hon. Members will have to debate and to move amendments to it will be on Report. Obviously, there is no guarantee, but it seems highly likely that we will return to it. I do not feel that this Second Reading debate, as it were, on the new clause is the point at which to say, “No, it should not be in the Bill”, but I remain to be fully convinced of the need for it.
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.
The Minister has no need to apologise. Are there any cases that were felt not to go the Government’s way in respect of getting refugee status under the unconstructed article 1F(c), which the Minister feels would be covered now? If not, what has triggered the need to make this construction and thereby fetter the judgment or discretion of judges in this country?
It goes back to what my hon. Friend the Member for Walthamstow was asking about earlier. I do not have the information to hand but if I can provide it I will. However, given the sensitivity of those cases I might not be able to do so.
In 2004 we were able to exclude some 32 people under the current regime. If that is not the correct figure I will get back to the hon. Gentleman. I do not know how many others would have been excluded if there had been such a construction in 2004. For those who are against it, it is a good question because it is almost unanswerable. I do not have that information and I am not sure that I could have it.
We are very clear where we are now, and not just because of July 7—throw in Bali and a host of other events. In the narrow focus on the definition of refugee and terrorist under the convention it is our right at least to start from the premise that these are people we would like to exclude. The Refugee Council is entirely right in saying that refugee status does afford a degree of benefits, far beyond simply the label, and, as I said to Maeve Sherlock and others, that is precisely why I will shout from the rooftops about the contributions that refugees make and about the sanctity of our commitment to the 1951 refugee convention—I hope that the hon. Member for Chesham and Amersham and her party are with us on that after their hysteria during the election; perhaps she will clarify it. We want those who will potentially be captured by this out of that equation; that is why the proposal is so important.
The Government’s proposals may be otiose, belts-and-braces measures, but I would far rather start from that perspective than a much weaker one.
I thank the Minister for giving way and for his earlier response when he said that 32 cases may be covered. I know that unless one actively counts the ones that are not covered when one would want them to be, it is hard to get the numbers. However, to guide us in our future considerations it may be appropriate for there to be some specific instances that were not included, but which the Government envisage would be taken in by the proposed mechanism.
The main reason for my intervention is to ask the Minister about amendment (a). I was not sure when he dealt with it briefly earlier whether he accepts that it might be possible after the Terrorism Bill is enacted for him to get what he wants in respect of subsections (1)(a) and (b) by referring to the specific offences of encouragement and glorification including offences overseas under the existing terrorism definition in the 2000 Act. Can the Minister offer me some comfort that it may still be in play because it achieves what he wants it to achieve?
Again, that is an entirely fair point, and I am a fair man. I suspect that the answer is no, but that is to pre-empt both the direction of travel and the substance of the debate on the Terrorism Bill, or indeed of the deliberation on our Bill in the other place. Because I am a fair person, I am leaving the door open, but I suspect that the configuration that we have offered is more rounded in its completeness than that which the hon. Gentleman offers.
In that case, although we have still to debate other clauses, I await what happens in that respect. I want to make the point that if we divide on new clause 7, it is not because of the Minister’s approach to amendment (a); it is because we are hostile to the idea of fettering the discretion of judges, which is a different point of principle. I hope he will accept that we are not ungrateful for his consideration of the amendment.
Again, in the nicest and fairest way possible, I accept the hon. Gentleman’s point but condemn his phraseology. I do not believe that what we seek to do in new clause 7 is to fetter the discretion of judges—he would not expect me to think that. That aside, I fully accept the notion, as my hon. Friend the Member for Walthamstow also suggested, that these matters will run and run, and rightly so, given their degree of seriousness. With that in mind, I ask the Committee to reject the amendment—
Were I a brave man, I could say that before I was interrupted, I was about to commend new clause 7 and then move on to new clause 8, but that would be a lie on my part. I am grateful for your guidance, Sir Nicholas, and stand to move new clause 8, as it is part of this—[Interruption.] Challenging you, Sir Nicholas, is extremely brave, and I shall not be doing so. I learned that lesson as a neophyte Back Bencher on the Greater London Authority Bill, and I am not about to go there again. I am glad that they were not filming it at the time.
The new clause relates directly to deportation in terms of appeals. The provision may be even narrower in terms of those on whom it has an impact. However, we feel that, in situations in which deportation orders have been made on national security grounds, the current appeals system results in unnecessarily lengthy delays. That is no longer acceptable. The new clause is designed to streamline the process of appeals against deportation orders in national security cases. The aim is to be sure that those who threaten the security of the UK and its people will be removed from the UK more quickly than is currently the case.
The new clause allows the Secretary of State to issue a certificate that the decision to make a deportation order has been taken on national security grounds. In such cases, any appeal against the deportation order would be from abroad, unless the proposed deportee has made a human rights claim while in the UK. If such a claim has been made, the appeal may be brought from inside the UK, unless the Secretary of State then certifies that removal of the individual would not breach the UK’s obligations under the European convention on human rights. If such a certificate is issued, the substantive appeal against the decision to make the deportation order can only be brought once the affected party has left the UK. We again have that interplay between the various conventions.
The provision does, however, allow for an in-country right of appeal on human rights grounds to the Special Immigration and Appeals Commission against the Secretary of State’s decision to certify that removal of the individual would not breach the convention. That ensures that proposed deportees would not be removed if it would be a breach of their human rights to do so. We think that the clause will speed up the system because the hearing of the national security aspects of a case can be the most time-consuming element of an appeal. The future of this process will happen after removal, but the clause retains judicial scrutiny, prior to removal, of the Secretary of State’s decision that removal would not breach the human rights of the individual.
The Secretary of State’s decision to certify that removal would not breach the European convention on human rights cannot, however, be appealed from within the UK on asylum grounds as a person who is a national security threat is excluded from the protection of the refugee convention. As the purpose of the clause is to ensure that the national security aspect is only to be challenged from abroad, there would be no point in granting an appeal right on asylum grounds in-country as the appeal would certainly fail.
That does not raise protection concerns as the protection afforded by the ECHR, especially by article 3—prohibition of torture, inhuman or degrading treatment and punishment—is sufficiently broad to preclude the removal of someone to a country where there is a real risk to their life or freedom. There will of course remain a full out-of-country right of appeal against the decision to make the deportation order, at which stage any claim to refugee status can be fully considered by the commission.
Those are the clear reasons for the new clause. In these narrow cases of national security, the temptation is always to look at deportation as a whole. But we are on this narrow ground. I commend the new clause to the Committee.
I am grateful to the Minister for introducing the new clause. I was hoping that he would talk about my amendment because it would delete a bit of the new clause. It would be helpful for the Minister to have the opportunity, if the procedures allow it, to explain the meaning of subsection (4), which I seek to delete, so that I do not misrepresent what he seeks to do with it.
Mr. McNultyindicated assent.
I am grateful. I will deal with the other issues relating to new clause 8. The Liberal Democrats have some concerns about the new clause. The correspondence between my hon. Friend the Member for Winchester (Mr. Oaten) and the Home Secretary was about whether the Home Secretary would be judge and jury and whether there could be a human rights appeal. The Refugee Council makes the same point. I am happy to accept that there is still the opportunity to make the application against a decision to deport on national security grounds, on human rights grounds through SIAC. I will not therefore pursue that line and that may save the Minister some time.
However, there is a concern about the fact that the fundamental appeal against national security grounds for deportation would be non-suspensive. In other words, it would be possible to do it only from abroad. It is extremely difficult and, as the Minister said, somewhat long-winded to do it in this country, let alone to do it from abroad. Provision is made for a limited appeal pre-removal to consider whether it would be a breach of the person’s human rights to remove them from the UK.
Is it appropriate to deal with that before dealing with the substance of the national security considerations in an appropriate confidential setting? There will be circumstances in which it is necessary to consider the elements of the national security case against a person before determining the risks on return. If evidence around that is deemed to be inadmissible, it is hard for SIAC to proceed without consideration of those grounds. If the proposed new statute in new clause 8 limits the ability of the appeal to do what it feels is appropriate, what would happen in those circumstances when it feels it is appropriate to hear evidence on that point?
That was my main concern about this new clause, apart from subsection (4). However, in case I have made an error in my interpretation of subsection (4), it would save time if the Minister explained its implication, and then I can decide what I wish to do.
Let me dwell briefly on subsection (4). The purpose of proposed new clause 97A(4) of the Immigration and Asylum Act 2002 is a recognition that the ECHR, particularly article 3, is fluid. New clause 8 provides a mechanism by which persons who represent a threat to national security can be removed from the UK.
A number of cases are before the European Court of Human Rights at present. Case law on article 3 may change in the near future to allow the risk of prosecution to be balanced against the danger to national security. An assessment will be made on whether removal would breach article 3. As a result, SIAC may be required to examine the substance of the national security case.
If the balancing test is introduced—any number of cases before the Court that are at various stages in the process do involve that balancing test—we can use subsection (4) to readjust our statute in the light of that subsequent case law. If we do not have subsection (4) and some of the cases that are before the Court do confirm or introduce the notion of a balancing test, that will prevail anyway, and all that the removal of subsection (4) would do would be to leave the statute in a clumsy position, because we would be unable to change it by order to reflect any subsequent changes that the Court might make.
I agree that were there not at least one case—perhaps a couple of others—before the Court, it might be too prissy and tidy to include the option of the order just in case the Court might alter its interpretation of the convention. Given that discussions on article 3 will continue for a long time to come, the substance of the cases—one is a Dutch case—that the Court potentially will discuss will all revolve around the balancing test. For completeness and tidiness it is more appropriate to have a little flick switch that says we can alter the proposed new section by statutory instrument, subject to resolution of both Houses, and include any transitional provision between what prevails now and subsequent case law.
In the interests of tidy rather than sloppy legislation, it seemed appropriate to include subsection (4). No ulterior motive, which some may ascribe to it, exists. It is not a mini Henry VIII clause that says, “Well, actually, here is the new clause and here is what it says about appeals deportation. For God’s sake don’t read subsection (4); we’re slipping in a little bit of power that means the Home Secretary can do whatever he wants, whenever he wants.”
I assure the hon. Gentleman that that is not the position. Subsection (4) is merely a tidying-up provision as a result of some substantive cases that are before the European Court of Human Rights. Rather than leave one position on statute and another position prevail because of changes to case law, it was included. Therefore I ask that the amendment be withdrawn and that both new clauses, including all of the proposed new section, stand part of the Bill.
I will stick to the amendment, and I will be brief. I accept what the Minister has said. The purpose of the amendment is not to allege that subsection (4) purports to do something other than what the Minister says. His officials helped me again greatly by showing me what the Minister has set out as the true reason behind subsection (4)—it is a way to tidy up the statute.
The purpose of the amendment was to give me an opportunity to debate two points. The Minister has raised one of them. If people are due to be deported under this provision and, in the middle of it all, an order is made, it is somewhat unfair just to leave them to the balancing that might occur, although I am not sure that I followed the detail of how that would apply and we will have to return to it. It was an appropriate opportunity briefly to discuss the Government’s policy in relation to trying to reverse European jurisprudence; indeed, I think it is the only aspect that deals with it specifically. My understanding is that it is not the Government’s complaint that UK courts apply a higher test against the Government on article 3 on torture than the European courts, as otherwise they could legislate to bring it down to European court jurisprudence. The Government are not doing that; they are urging the European Court to change its decision in the Shahal case, which was a 12/7 decision, from the majority to the minority.
Subsection (4) is unnecessary. I am relatively confident that the Government will not succeed in changing jurisprudence, and rightly so, because of the increasing recognition of the important nature of article 3; the 1996 judgment is relatively recent—it is not based decades ago in a previous European context—and it was a grand change of judgment. More important, the majority judgment has been reiterated frequently and consistently by the court.
I put it politely to the Minister, as it was suggested to the Home Secretary by worthy lawyers, that the proposal is probably not an appropriate approach for the Government. It would be far better if they offered us legislation based on recognising the fact that article 3 is sacrosanct; it should not be balanced against national security. It would be more appropriate for us to consider clauses that are controversial enough, but which do not hold out the hope that there will be the ability to balance a fundamental right not to be tortured, even as the Home Secretary said in the European Parliament, against the right not to be blown up in this country, which is a false comparison.
This is a probing amendment to give us the opportunity to raise this important matter. I hope that we will be able to debate the Government’s policy on the issue in the House because their approach is fundamentally different from that of my party and others.
I do not intend to press the amendment to a Division but I am grateful for the opportunity to raise my concerns about the Government’s approach to European court jurisprudence.
I have two small points to make on new clause 8, which relates to national security. In some instances, the success of the operation will depend on the delicate international diplomacy in which the Government have been engaging. I refer specifically to the assurances and arrangements that have been secured with Jordan and Libya. I do not want to ask the Minister to go into details on the other countries with which they are conducting delicate negotiations, but there appear to be some illogicalities. I understand that the arrangements with Jordan and Libya are to ensure that if someone is returned no torture will take place and they are not in peril of their life and limb. However, by virtue of the nature of torture or of the liability to be detained in their home country, there is no way in which the Minister could monitor their return. Does that render pointless the diplomatic assurances he has received?
Without wishing to be sidelined into a debate about memorandums of understanding, they will be not be signed unless there is a monitoring dimension to them. The hon. Lady can be assured that monitoring is part and parcel of the process.
I am reassured by that. I wanted to ascertain that there was a monitoring element, particularly with respect to countries where negotiations are ongoing. Otherwise, it renders the memorandums of understanding pointless, as I am sure everyone knows.
Before the hon. Lady moves away from memorandums of understanding, and given that you, Sir Nicholas, have allowed a debate on this, I want to make a further point, although perhaps it is not directly germane. I invite the hon. Lady to recognise that having a memorandum of understanding with a country because it has a record of torture suggests that there is a problem. The presence of a memorandum of understanding, which I do not support, raises the question of whether it is legitimate to go down that path at all, irrespective of the fact that it is a bilateral arrangement to tackle torture, which should be done internationally, under the UN convention on torture and not on the basis of nation-by-nation bilateral agreements, regardless of the monitoring arrangements.
The hon. Gentleman is entitled to his view, but I disagree. It is eminently sensible that the Government should negotiate on an individual basis with those countries. The problem concerns not only our international obligations or those of the receiving countries, but the safety and security of the UK. I would not want to tie the Government’s hands in terms of who they negotiate with and on what grounds.
I also want clarification on article 33 of the refugee convention. I presume that the Minister is familiar with the non-refoulement obligation on the prohibition against torture. It is certainly a normal instance in international law and means that people cannot be sent back to their death or to torture. However, some take the view that the memorandum of understanding that has been concluded with Jordan is incompatible with the refoulement obligations. Can the Minister comment on that? If there was a view that the UK was weakening the global ban on torture, I would want that refuted and clearly spelled out. Can he give us those reassurances?