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Lord Mayhew of Twysden: My Lords, I join in those thanks. I do not quarrel with the new clause, but I find myself almost stupefied by it. Perhaps the Minister will deal with these questions. First, does the Government's argument depend on the proposition that the phrase "liable to detention" under the relevant Acts has a different meaning from "may be detained"? Secondly, if so, is that because "liable to detention" has the significance of a term of art?

Where legislation is ambiguous, is it not a principle of construction that the courts will always prefer the construction that favours the liberty of the individual? Is there not still an ambiguity? How confident is the Minister that there is some arcane but none the less watertight distinction between the meaning of one phrase compared to the other? Most of us would say that "may be detained" means "liable to detention". Most of us would say that "liable to detention" means "may be detained". I hope that I have sufficiently explained the nature of my anxieties to the Minister at this late hour.

Lord Hylton: My Lords, I am concerned about people who cannot be removed from the country but do not have leave to enter or remain. I do not want them to be in limbo or a vacuum. I have no objection if they are required to live in a known, defined place or have conditions of reporting attached to them.

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However, it is important that they should be entitled to work, if they can get it, and to normal national health care for themselves and education for their children. I hope that the Minister can reassure us on those points.

7.30 p.m.

Lord Filkin: My Lords, I thank noble Lords for their comments. Mr Justice Crane interpreted the law in a way that neither the Government nor their legal advisers believed was likely. Therefore, he opened up this lacuna. We had not thought that it was likely that that construction could be put upon the words, but he is a justice of the Crown and one must believe that he had good reason for doing so. We shall wait to see what the appeal brings forth.

We do not necessarily take the view that we shall have an unfavourable result on appeal, although one cannot be 100 per cent certain of judgments on appeal. If the decision goes against us for a second time, we would have a considerable problem. Hence the need for the legislation now.

I turn to the extremely good but difficult questions posed by the noble and learned Lord, Lord Mayhew. The phrase "liable to detention" describes a class of person who may be detained, so that class of person is different. I am also advised that the clause has the desired effect. I am not a lawyer and I have not spent hours studying the clauses, but clearly we have put some considerable effort into considering the issue following the discussion and the perfectly good scrutiny process that occurred after withdrawal of the amendment on the previous occasion. I am as confident as I can be that the Government have given this matter serious consideration and believe that they have now put the matter right. For those reasons we believe that our amendment is necessary.

Lord Hylton: My Lords, will the Minister reply to my point about limbo? Can he also give an assurance that the people to whom this amendment applies will be granted limited leave to remain and that that limited leave will be periodically reviewed.

Lord Filkin: My Lords, I apologise to the noble Lord, Lord Hylton, for not responding to his questions. I am struggling to see whether they are relevant to this amendment. Responding to his points takes us over issues that we have discussed throughout the Bill rather than just on this specific issue. In no sense am I seeking to avoid the questions, but for the efficiency of the House and because I do not believe that they bear directly on this measure, I shall write to him to set out the Government's position.

Lord Carlisle of Bucklow: My Lords, perhaps a simpler way of summarising the Minister's remarks would be to say that the Home Office is of the opinion that they will win in the Court of Appeal, but they are not absolutely sure that they can be confident in that opinion.

Lord Filkin: My Lords, I shall not engage in a reply. The point is well expressed and there is no need for me

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to nod consent to it. On the limbo point, the purpose of the clause is to avoid limbo, but such people will not be granted leave to remain; they will be on temporary admission.

On Question, amendment agreed to.

Clause 67 [Reporting restriction: travel expenses]:

Lord Filkin moved Amendment No. 63:


    Page 39, line 30, after "paragraph" insert "2 or"

On Question, amendment agreed to.

Clause 68 [Induction]:

Lord Filkin moved Amendment No. 64:


    Page 40, line 3, leave out from ""dependant" to "and" in line 4 and insert "of an asylum-seeker" means a person who appears to the Secretary of State to be making a claim or application in respect of residence in the United Kingdom by virtue of being a dependant of an asylum-seeker,"

On Question, amendment agreed to.

Clause 69 [Asylum-seeker: residence, &c. restriction]:

Lord Filkin moved Amendment No. 65:


    Page 41, line 6, leave out from ""dependant" to end of line 7 and insert "means a person who appears to the Secretary of State to be making a claim or application in respect of residence in the United Kingdom by virtue of being a dependant of another person"

On Question, amendment agreed to.

Clause 70 [Serious criminal]:

Lord Kingsland moved Amendment No. 66:


    Page 41, line 19, leave out from "is" to end of line 22 and insert "convicted in the United Kingdom of an offence and either—


(a) the offence is one for which the maximum period of imprisonment is ten years or more, or
(b) the offence has been specified for the purpose of this subsection under subsection (3A)."

The noble Lord said: My Lords, this group of amendments relates to the statutory presumption proposed in Clause 70 that a person is presumed to be a serious criminal for the purposes of the refugee convention if certain criteria are met. The presumption is a rebuttable one; but if it is not rebutted, the refugee convention provides that the person may lose his right to protection. Your Lordships will recall that, on Report, the House agreed to an amendment that changed the approach proposed by the Government that the presumption should apply where a person had been sentenced to two years' imprisonment or more.

The proceedings in your Lordships' House on Report were misunderstood by the national media. The BBC and several newspapers stated that the effect of the amendment agreed to on Report was simply to raise the threshold for the imposition of the presumption in an individual case from a sentence of two years' imprisonment being imposed on a defendant to one of 10 years' imprisonment and that, in consequence, it would be harder for criminals to be deported.

I cannot stress too strongly that that is simply not the case. All such reports were factually incorrect. What was agreed on Report provides greater protection for the United Kingdom against those who commit serious crime. The Government's original wording in Clause 70 provided for the presumption to be applied once a person had been sentenced to two

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years' imprisonment or more. As your Lordships are well aware, the amendment standing in my name that was agreed to on a Division on Report did not simply substitute the figure 10 for the figure 2; it changed the whole basis for the imposition of the presumption.

There are a number of problems with the Government's preferred test. Chief among them, in practical terms, is the creation of the bizarre situation that a person sentenced to two years for assault or evasion of VAT, for example, would be presumed to be a serious criminal and a danger to the community in the United Kingdom, but a person sentenced to 18, 21 or even 23 months for dealing in drugs or for a sexual offence against a child would not be presumed to be a serious criminal.

The test approved by your Lordships on Report did away with that anomaly which was the result of the Government's original drafting. The Bill now provides for the presumption to be applied in the case of any person who is convicted of a crime that carries a maximum sentence—I stress "a maximum sentence"—of 10 years or more. That is regardless of the punishment actually imposed.

I want to make it absolutely clear that Clause 70, as amended on Report, does not require the actual imposition of a sentence of 10 years or more before a person is deemed to be a serious criminal; it requires that the person is convicted of a crime for which he could be sentenced to 10 years or more. By doing away with the Government's criterion of an actual sentence of two years, drug dealers and sex offenders who are sentenced to less than two years will still be caught by the provisions of the clause. In my submission, that provides greater protection for the community of the United Kingdom than the Government's original proposal.

As I have made clear, in my submission, the amendments before your Lordships more clearly reflect the United Kingdom's international obligation under the refugee convention by focusing on the type of crime committed rather than the level of punishment imposed. Indeed, as noble Lords on the Government Front Bench and those who advise them will be aware, the test that we are advocating is the very one that the Government recently decided to use in respect of whether to allow convicted criminals into the United Kingdom under the Immigration Rules. I refer to the announcement made to your Lordships on behalf of the Government by the noble Lord, Lord Bassam of Brighton, in a Written Answer on 24th October 2000 at col. WA 18 of the Official Report.

In another place on 2lst November 2000, the then immigration Minister, Mrs Barbara Roche, said that the Government wanted to,


    "focus the power on those offences of most concern to the public . . . offences punishable by a maximum of 10 years imprisonment, or more, or any offences involving violence, violent sexual behaviour or firearms".—[Official Report, Commons, 20/11/00; col. 149W.)

The amendments now before your Lordships would replicate that test in the context of Clause 70. They would retain the threshold of offences for which the maximum sentence is 10 years' imprisonment, or

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more, but would introduce an additional opportunity for the Home Secretary to specify offences that carry a maximum of less than 10 years, the commission of which will also attract the presumption in the clause that a person is a "serious criminal". These might include such serious offences as child abduction, violent disorder, possession of child pornography, and dealing in class C drugs. As I made clear both in Committee and on Report, such an additional requirement is necessary because there are serious offences, such as those that I have described, that Parliament has decided should not attract a maximum of 10 years' imprisonment, or more.

In conclusion, in my submission, and for the reasons that I have set out, these amendments provide for greater protection for the UK community against those who may abuse our hospitality by committing serious crimes, as well as fulfilling this country's international obligations by focusing on crime rather than punishment, which is the test set out in the refugee convention. I commend the amendments to your Lordships' House. I beg to move.


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