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Baroness Hollis of Heigham: My Lords, it is the other way around. The benefit penalty will come into play only when the court has determined whether somebody has committed an offence for the second time. From my experience, one third of benefits offenders who go before the courts receive a conditional discharge. They are not usually former footballers who have been earning #11,300 and wilfully claiming extra money. They tend to be overwhelmed lone parents struggling with a child who might be unwell. In that context, the courts do discriminate between the circumstances of individual claimants. Someone who is not on benefit may receive a heavier punishment.

The noble Earl asked whether the hardship regime will result in serious destitution. Let us suppose that a lone parent with two children receives income support, #100 a week housing benefit and council tax benefit. Let us further suppose that that parent has been convicted not once but twice of benefit fraud and that the court has not given her an absolute discharge. Her current income from any sanction, including the value of housing benefit, would be #231.85. After the sanction, that figure would be #210—a drop of #20. I am not saying that the sanction will not bite but it will not cause destitution.

As to polygamous marriages, I understand that only one spouse in the relationship is regarded as a couple for the purposes of JSA. Other spouses are treated as dependants. If another spouse had a child, that would be a further dependant within the relationship who was entitled to income support.

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On Regulation 27, it was suggested that the appeal was not erroneous. That involved establishing whether there was a challenge to the legitimacy of the court sentence. I am fairly confident that noble Lords will accept that it is reasonable that the benefits system cannot tackle that and that it should not be an appeal basis for a court sentence.

Lord Higgins: My Lords, the Minister mentioned that #160 million is being paid to local authorities to help them to catch benefit fraud. Have we any indication of how much extra they expect to receive as a result? Other figures that she gave—for example, the fact that 500 people a year might be caught by the provisions—suggest that the amount that she expects to save is not proportionate to the amount being spent on trying to catch those people.

Baroness Hollis of Heigham: My Lords, I agree. The trouble is that in this context we are spending more than we may find out we have deterred, but we do not know how much we will save in total through deterrence. The noble Lord will be interested to know that whereas last year there were 1,000 prosecutions and in the previous year there were 860, the figure now is 50 per cent higher—there will be about 1,500 or 1,600 prosecutions. Given recidivist rates of about 5 per cent, it may be that about 50 prosecutions for housing benefit fraud will result in subsequent sanctions. With that information, I hope that I have helped noble Lords further to understand these extremely complex—and unsexy—regulations.

On Question, Motion agreed to.

Anti-terrorism, Crime and Security Bill

9.22 p.m.

Consideration of amendments on Report resumed.

Clause 34 [Certificate that Convention does not apply]:

Lord Dholakia moved Amendment No. 34:

    Leave out Clause 34.

The noble Lord said: My Lords, in moving this amendment, I shall speak also to Amendment No. 35.

I raised my concerns about Clause 34 at Second Reading. It is a matter of concern that we are trying to some extent to bypass the refugee convention. We have supported that convention since 1951 and the Government have yet to explain why such draconian measures are necessary.

There is no disputing the fact that the UNHCR and the UK Government share common ground on the importance of the 1951 convention as an international instrument that is precisely framed to provide protection for those who need it while ensuring the exclusion of those who do not deserve it. That has been the practice to date, and it has served us fairly well.

The point at issue is that every aspect of the case should be known and considered by SIAC. Furthermore, examination within the asylum process

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should ensure that the final decision to exclude, with all of its potentially serious implications, takes full account of the competing nature of potential prosecution and the seriousness of the grounds for exclusion.

The international nature of the protection regime means that participating states have a legitimate interest in knowing how the decision to exclude, rather than to grant asylum, has been arrived at. That is of considerable importance when excluded cases are removed to another country.

The stated purpose of the clause is to allow the Home Secretary to certify people who are suspected of terrorism as being either undeserving or outside the scope of the 1951 refugee convention. So long as such a certificate remains in force SIAC would not be able to consider that person's asylum claim.

Certificates issued under Clause 33 will state that a person is excluded from refugee status under Article 1(F) of the refugee convention (persons considered not to be deserving of international protection) or can be returned under Article 33(2) on national security. However, SIAC will be prevented from examining substantive asylum claims. Under this clause SIAC will be able to decide only on whether the certificate was properly made. It is difficult to see how it is possible to make a proper judgment about whether someone should be excluded under Article 1(F) or Article 33(2) without considering his or her whole story in the form of a substantive asylum application. Only through such a full consideration can people be safely excluded from the 1951 refugee convention.

It is unclear why the provision is deemed necessary. SIAC was established in 1977 precisely to consider appeals by people, including asylum seekers, being removed on grounds of national security. Under existing powers, SIAC simultaneously considers the substantive asylum claim and evidence that the applicant is a threat to national security. In cases where national security considerations are present, it is able to access intelligence information in a way that does not compromise sources and then make a determination on an asylum or immigration claim.

It is worth noting that only three cases have ever been referred to SIAC. We can see no justification, including on grounds of national security and efficiency, for the provision to limit SIAC's consideration of such cases only to the issue of the Home Secretary's certificate. That is why we suggest that there should be a full substantive interview to decide the asylum claims and only then a decision on whether to exclude on the basis of Article 1(F) or Article 33(2). The call for an integrated and comprehensive approach is also the view of the UNHCR. All asylum applications should be considered fully and on their own merits before any decision is taken.

I believe that the system of international refugee protection, enshrined in Article 14 of the Universal Declaration of Human Rights and embodied in the 1951 refugee convention, would be seriously

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undermined if individual states were able to pick and choose which asylum applications should be considered. We need an explanation from the Minister of why the clause is necessary when there are adequate safeguards under Article 1(F)(b). In view of the seriousness of the issue and the consequences of an incorrect decision, the application of any exclusion clause should continue to be individually assessed, based on all available evidence and conform to basic standards of fairness and justice.

With their asylum policy already in administrative shambles, the Government are generating further procedures which are a blot on the rights and liberties of the individual so clearly prescribed in the refugee convention.

I asked the UNHCR to cite me some case studies on how the clause would be applied. I have been given an interesting case study of an outspoken campaigner on women's rights who lives in a repressive regime with a poor human rights record. It is well documented that torture is routinely used in its prisons. He is the founder and director of a small human rights charity which, contrary to government legislation, utilises financial donations from a western European state. When that is discovered he is tried and sentenced to 20 years' imprisonment on charges of corruption and endangering state security and is not allowed legal representation. His conviction has been denounced by a human rights group. He seeks asylum in the United Kingdom. What happens? Under existing procedures all aspects of the case would be examined with a view to determining whether the applicant fulfils the criteria for refugee status. Facts indicating the relevance of Article 1(F) issues would emerge in the course of a comprehensive fact-finding process. At the point of decision a complex range of factors would be carefully weighed. These would include whether the threat of individualised persecution was grave enough to offset the seriousness of the charges against the applicant.

The interplay between persecution and prosecution would be looked at and the laws of the country would be set against international human rights standards. Asylum would be granted if, notwithstanding the applicant's alleged crime, he is deemed to deserve international protection. Under Clause 34 as it stands, by contrast it would appear that this applicant would be automatically excluded and the asylum claim dismissed solely on the ground that he committed crimes in his own country.

I now deal with Clause 35. We require better clarity here. Can the Minister confirm that it is not his intention that this clause in the Bill will not lay down a rule of construction applicable to all asylum cases? If it does then the issues raised take on even more importance. The clause removes the requirement to balance the gravity of exclusion grounds with the gravity of the consequences of return.

In circumstances where exclusion from the refugee convention is being considered, this clause seeks to prevent any consideration of the gravity of persecution a person has suffered, or would suffer, if returned to his or her own country. There is some doubt as to the

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purpose and scope of this clause. It is unclear whether its scope is limited to Clause 33 on certification or whether it is freestanding.

As a signatory to the refugee convention the UK has a legal obligation to fully consider all asylum applications on their merits. This clause threatens at a fundamental level our commitment in that regard. Only the consideration of the full facts of a case can lead to a decision which is sound and which does not risk the grave consequences of removing a person to face persecution.

The SIAC is equipped to consider such matters including evidence from the intelligence services. This clause runs counter to the UNHCR handbook on the interpretation of the refugee convention. It states that in applying the exclusion clause in the refugee convention,

    Xit is also necessary to strike a balance [between] the nature of the offence presumed to have been committed by the applicant and the degree of persecution feared".

The reasons for exclusion under Article 1(F) and Article 33(2) are not limited to terrorism. For example, they also exclude the commission of a serious, non-political crime outside the country of refuge prior to an asylum seeker's admission to the country. These convictions may have been politically motivated in the absence of a fair judicial process. The Government must clarify the purpose of the clause and respond to the concern that it also affects people that it does not suspect of terrorism.

I wonder whether there is some serious confusion between Clauses 34 and 35. I understand that these clauses were one clause. They were split into two clauses for the sake of clarity only. Will the Government confirm that Clause 35 is not freestanding and only an aid to the construction of Clause 34? We need to have a proper balance between maintaining national security while protecting basic liberty. The draconian powers sought by the Secretary of State are unnecessary and undermine the fundamental right to seek asylum.

We already know how easy it is to generate hostility towards genuine asylum seekers. There is a danger that they will soon be equated with potential terrorists. That is precisely the opposite of what the Government intend. The danger is that it will create a situation in which asylum seekers and members of ethnic minorities will face a heightened risk of social exclusion, racial attacks and harassment. There is enough evidence to confirm that. I beg to move.

9.30 p.m.

The Lord Bishop of Portsmouth: My Lords, I am grateful for the opportunity tonight to have this debate after last Thursday night. I believe it was Ibsen who wrote that no one should put on their best trousers when going out to do battle for freedom and truth. Although the condition of the trousers I am wearing at the moment may not be visible, I fear that on this particular clause hangs much of the balance of applying freedom and truth to the very complex issues addressed by this Bill. We have had many manifestations of those complexities so far.

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Clause 34 would prevent SIAC from looking at asylum claims when it should and would deprive those against whom it is directed from any kind of status as asylum seekers. To put it bluntly, this clause not only ties the hands of SIAC but also gags the appellants. I believe that it should be removed. In my view, and in the view of my colleagues, it is an over-reaction. It does not sit easily with our democratic traditions and I am concerned that the Government appear so willing to pay such a high price to achieve what I believe to be comparatively little.

It appears to me that Clause 35 is as unsatisfactory as Clause 34. According to this clause, any court faced with asylum claims involving serious crimes cannot in certain circumstances consider issues relating to persecution or well-founded fear. That is my understanding. It appears to be a re-interpretation of the Geneva Convention of 1951. It prevents the whole picture from being considered.

Article 1(F) and Article 33(2) appear to provide exactly what is needed and no more. Article 33(2) has its own safeguards and ensures that criminals are properly identified. In the view of these Benches, these clauses are unnecessary and misguided.

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