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Lord Avebury: My Lords, is the noble and learned Lord saying--I feared this was the case--that a person

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who is ultimately granted exceptional leave to remain will be vulnerable to prosecution for having used false documents to gain entry?

Lord Williams of Mostyn: My Lords, I seek to deal with the specific points that have been raised in the context of the amendments, which is perhaps a more sensible and practical way to get on with our business.

I believe that it was the noble Earl, Lord Russell, who asked about Sorani. If it was the noble Lord, Lord Avebury, who raised the question, I apologise to both. In that case, I am happy to be able to say that refugee status has been granted. Confirmation is still to be sent, but the interested MP has been notified and a letter is on the way.

The question was raised whether it would be better if the Attorney-General had power to authorise prosecutions rather than a defence being allowed. The Leader of the House, the Lord Privy Seal, informs me that I shall have plenty of time on my hands to deal with these matters because it is unlikely that any further bizarre applications will be made to the Committee for Privileges. My noble friend tells me that, but I do not believe it for a moment!

If one wants to produce the desired outcome, Amendment No. 29 does not bring that about. The amendment provides that,


    “No prosecution shall be instituted ... against a person who has lodged a claim for asylum ... or a person who gives information leading an immigration or police officer to believe that he may be seeking asylum, until the asylum claim is finally rejected, save with the consent of the Attorney General".

Plainly, that offers the opportunity for the consent of the Attorney-General to be given in those cases where noble Lords who have raised this point say that no prosecution should ever be launched. I believe that therein lies an internal inconsistency.

Earl Russell: My Lords, we can have confidence in the restraint of the Attorney-General.

Lord Williams of Mostyn: My Lords, yes. However, as one always reminded oneself when Mr Howard and Ms Widdecombe were in charge of the Home Office, one must legislate for the worst possible Ministers being returned to power. I have never forgotten that salutary advice.

Baroness Williams of Crosby: My Lords, we were not at this moment thinking of the worst possible Ministers--which might trouble our dreams--but the worst possible cases. The reason we inserted a provision to deal with the consent of the Attorney-General was precisely because we believed that there could be cases in which people who sought asylum under the convention could be shown by the Home Office to be doing so fraudulently. Therefore, we wanted to leave open the possibility of a prosecution in those exceptional cases. That is the reason for the present phraseology; it is not for the other purpose.

Lord Williams of Mostyn: My Lords, I understand that. I repeat that we are beginning from the same

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fundamental basis: we want an outcome which properly accommodates Article 31(1) asylum seekers and the difficulties raised by Lord Justice Simon Brown. For my part, the decision that emerges from Adimi, although it may not be acceptable to all government departments in every particular, is another example of the great value of an independent, fearless and bold judiciary in this country. I do not say that the judges are always right, but very often they are. I hope that all that I have said in the past few minutes will be deleted from Hansard immediately!

I turn to the extremely important question of administrative arrangements. The noble Baroness asked about that and I undertook to deal with the matter in some detail. I shall do so now, if noble Lords allow me. Just before the judgment was announced, the Crown Prosecution Service, which I supervise, issued interim guidance to its staff to ask them to identify cases to which Article 31(1) issues might apply. I can tell your Lordships that the advice issued by the CPS was sent to the noble Lord, Lord Avebury, after Committee stage. I have a copy of the interim advice issued by the Immigration Service. I am happy to let the noble Baroness have my copy but it is probably better if I undertake that it be lodged in the Library as soon as possible. There is no reason why that should not be done within the next day or so.

I believe that I can describe generally the careful guidance in the following way. Interim guidance was given. The further advice was given. The CPS is required to ask the police officer in the case to establish nationality. Where there are any doubts on that score, the instructions require the police to approach the Immigration Service to seek clarification and a view as to whether or not Article 31(1) applies.

Interim advice on how to deal with such inquiries was issued. I have mentioned it already. Detailed guidance is being prepared for staff who provide that advice. So far as I can see, there is no sensible reason why that should not also be published. I cannot think of a reason at the moment. If there were difficulties, the guidance might have to be redacted, but I see no reason why that should be so.

The noble Baroness used the useful phrase “the bulk of prosecutions". The bulk of prospective prosecutions will undoubtedly be dealt with by the administrative guidance. However, there will be cases where administrative arrangements are not perfect. We all know that. It is important, as it seems to us, to have the defence available. It has only to be raised. When a defence is raised in criminal prosecutions, the prosecution then has to disprove it, as long as it is not merely fanciful. That is an important mechanism which is part of our scheme in Amendment No. 30. I respectfully suggest that it is a better mechanism than is provided in Amendment No. 29.

We go further than that. We say that, when those who have been prosecuted--I do not use this phrase harshly--rightfully in the circumstances of our law which then obtained and were convicted or pleaded guilty so that a conviction after trial or plea was obtained, there is this opportunity. The noble Lord,

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Lord Cope of Berkeley, was right in saying that we all bristle when we see retrospective legislation. This is retrospective legislation in favour of the individual. It gives someone who was “rightly" convicted in the state of the law as it was then understood to be the opportunity to have that conviction overturned.

That is not bad. Indeed, it is--I use the word with care and caution--very liberal indeed. I cannot say that it is unprecedented but it is very unusual.

The noble Lord, Lord Avebury, raised the issue of someone who might have been sentenced to six months' imprisonment. I have no details of that. I very much doubt whether anyone is still suffering imprisonment on the basis of that sort of sentence. If there are any cases, and he will provide details to my noble friend Lord Bassam, I know that my noble friend will investigate them at once. I doubt whether there are any. There may be; I cannot say that there are not because I have no access, nor has the Home Office, to a database which will tell us that. I simply doubt it.

Baroness Williams of Crosby: My Lords, we are extremely grateful to the noble and learned Lord for new Clause 25. What he said about administrative directions helps us greatly.

Can the Minister say when he thinks it might be possible to have a look at the final directions? They influence very much how one weighs the effect of new Clause 25. It was without the directions that we felt we had to put down amendments to ensure that the prosecution of people who came here legitimately but with false documents would not proceed.

Lord Williams of Mostyn: My Lords, I accept what the noble Baroness says. I am happy to give the interim guidance which I have in my hand to the noble Baroness and to have it put in the Library in the next day or two. I hope that my old friend the noble Lord, Lord Dholakia, did not think me impertinent or disagreeable. I was responding to my noble friend Lord Sheppard, who wanted some indication of the Government's thinking. I thought that it was helpful to respond in the way that I have.

Lord Justice Simon Brown took the view that being prosecuted did not of itself constitute a penalty for the purpose of Article 31(1). With great respect, I think that that must be right. I do not think that it would be tolerable for a prosecution to be avoided simply by claiming asylum. We believe that we have a more flexible, subtle balance using administrative guidelines, which, if published, can therefore be enforced, together with the possibility of raising the defence which then has to be disproved, together with the retrospective opportunity of having the conviction put on one side.

9.45 p.m.

Earl Russell: My Lords, I am grateful to the noble and learned Lord, but the point about the need to disprove a defence has force. Does it in any way weaken that force that in the case before Lord Justice Simon Brown it appears that two out of three solicitors

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for the applicants knew nothing of Article 31? A defence does not have to be disproved until it is put forward.

Lord Williams of Mostyn: My Lords, of course and I would make two responses immediately. First, Lord Justice Simon Brown was dealing with a situation to which it has been said--and I could not possibly comment--no one in a position of authority had put his mind. That is, if not a direct citation, certainly a paraphrase of what was said.

Secondly, what the noble Earl, Lord Russell, said gives power to the elbow of the reforms which the noble and learned Lord the Lord Chancellor is introducing; that solicitors will not be able to hold themselves out, certainly at public expense, to those who need special assistance without being endowed with the necessary expertise. It seems to me that if after the discussions in your Lordships' House tonight--which of course will be avidly studied by every solicitor up and down the country--they do not know, they ought perhaps to look for alternative employment. Or certainly they are liable to be sued in negligence.

I take the point that the noble Earl makes. Certain areas of the law are difficult. What we have done here is to produce a generous outcome. I am not claiming moral credit for it because we had to respond to robust views expressed by the higher judiciary. We have achieved more in our outcome than that contended for by the noble Baroness and those who supported her.

I turn to the helpful questions put by the noble Lord, Lord Cope of Berkeley, about whether our solution was better than that put forward by the noble Baroness and her supporters. It is important to bear in mind the overall rein with which the CPS approach matters. It will not launch prosecutions unless there is a sensible prospect of being able to prove beyond reasonable doubt that the defence does not apply.

Amendment No. 29 is loose in some ways, because it could lead to abuse. We say that we recognise Article 31(1) and that the administrative directions exist to avoid prosecutions which are inappropriate. If inappropriate prosecutions get through the sieve, the defence exists. That is a much better, more subtle, more flexible answer to the problems which Lord Justice Simon Brown identified.

I think that that deals with the body of the issues put forward. I submit again that looking at the matter with an open mind and an even judgment, we have produced an appropriate and, I repeat, generous response and solution to difficult problems.


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