Immigration, Asylum and Nationality Bill |
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Mr. McNulty: 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. The Chairman: I am grateful. Mr. McNulty: 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:
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. Mr. Neil Gerrard (Walthamstow) (Lab): 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. Column Number: 285 Mr. McNulty: 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. The Chairman: 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. Dr. Harris: On a point of order, Sir Nicholas. I have two amendments in the group. May I say for the Committee’s benefit that I am happy to go along with the approach that the Minister suggested? I recognise that he will have to speak to new clause 8. I shall restrict my next remarks to amendment (a). The Chairman: I understand that point of clarification. I am prepared to say from the Chair that I am happy for that process to be adopted. Mrs. Cheryl Gillan (Chesham and Amersham) (Con): 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
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
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
and
The Minister will also be familiar with resolution 1377, adopted by the Security Council in 2001. It stated:
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. 1.30 pmILPA argues that new clause 7, which refers to encouraging terrorism
Column Number: 287 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
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. Column Number: 288 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. The Chairman: I call the hon. Member for Oxford, West and Abingdon. Dr. Harris: 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
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
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
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
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
It continues:
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
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
1.45 pmMy 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:
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. Mr. Gerrard: 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
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. Mr. McNulty: 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? Mr. Gerrard: 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
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. Column Number: 294 2 pm |
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