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Criminal Justice and Immigration Bill

My Lords, I welcome the Government’s commitment to abolishing the offence of blasphemy, something I sought to do myself in 1995, again in 2001 and in a year’s work on the Select Committee on Religious Offences in 2002. My only regret is that the consultation will not be completed until after the Committee stage. I have difficulty in understanding that, considering that all the organisations to be consulted gave voluminous evidence to the Select Committee in 2002. I should like to bet the right reverend Prelate the Bishop of Liverpool that none of them will have changed its tune in the intervening six years. I wish to speak about Clauses 181 to 187, dealing with special immigration status. On 7 February 2000, an Afghan plane carrying 186 passengers landed at Stansted, having been hijacked by a few of the passengers. Three days later, the hostages were all released and the hijackers agreed to surrender unconditionally to the Essex Police. The Home Secretary, then Mr Jack Straw, said that he personally would decide any applications for asylum by persons on board the aircraft and was determined to see that, if legally possible, the passengers would all be removed from the UK as soon as possible. I stood surety for 13 of them in their application for bail, in the sum of £3,900, for well over a year, until the noble Lord, Lord Rooker, gave instructions for that guarantee to be withdrawn. I therefore declare an interest. In due course, 10 hijackers were charged with a number of offences and an 11th man was found unfit to plead. At the first trial, the jury failed to agree and, in the second, one person was acquitted and the remaining nine were convicted on all counts, but given comparatively light sentences on account of the mitigating circumstances. It was acknowledged by the prosecution that they belonged to a political organisation whose members had been arrested and tortured, and they were threatened with the same fate. In June 2003, the Court of Appeal set aside the convictions because the trial judge had misdirected the jury in relation to the defence of duress. No retrial was ordered as most respondents had, by that time, served their sentence in full. The panel of three adjudicators who considered the nine men’s applications for asylum concluded that Article 1F of the refugee convention, which applies to a person who, "““has committed a serious non-political crime outside the country of refuge””," excluded them from the protection of the refugee convention. We welcome the recommendation of the JCHR that the statutory construction of Article 1F should be repealed. However, the panel went on to say that the rights protected by Article 3 of the ECHR were unqualified or absolute and not restricted by the appellant’s conduct. It therefore granted the appeals under the ECHR and the tribunal refused an application by the Secretary of State for leave to appeal. This left the Home Secretary with only one option, to grant short-term discretionary leave to enter. However, the Home Secretary prevaricated for over a year—those are the Court of Appeal’s words, not mine—and promulgated a new policy under which discretionary leave would no longer be granted and a person could be kept on temporary admission indefinitely, with all the consequences that would follow in terms of denial of access to employment and public services, including health and social security. On 3 November 2005, the Home Secretary, then Mr John Reid, ““broke his long silence””, retrospectively applying the new policy to the Afghan nine and putting them on temporary admission. The nine then applied for judicial review of this decision. Sullivan J found on 12 May 2006, in an ““impeccable judgment””, that it was unlawful because the status of temporary admission or temporary release had no parliamentary sanction. He said that the new policy gave Ministers an arbitrary, unfettered power to breach Article 8(1) of the ECHR, the right to family life, and that it was not lawfully applicable in cases where consideration of leave to enter had been concluded and which therefore did not come within the provisions of paragraph 16 of Schedule 2 to the 1971 Act. The Secretary of State did not challenge the finding that delay in granting the nine leave to enter was unlawful or the quashing of his decision to hold them on temporary admission. However, he did challenge the court’s order that he should grant the nine discretionary leave to remain. Finally on 4 August 2006, the Court of Appeal rejected that submission, observing that during the six years that the Afghans had been in the UK, there had been ample time for the Secretary of State to clothe himself with the powers that he had awarded himself, without parliamentary approval, in the August 2005 instruction. What we now have before us , in Clauses 181 to 187, is the creation of special immigration status to cover persons such as the Afghans hijackers, who are excluded from Article 1F protection but who cannot be removed because it would put them at risk under Article 3 of the ECHR. In order to strengthen the BIA’s ability at some future date to send back the tiny numbers involved to where they came from—we understand that there are no more than 50 of them now—the Government intend to consign them to a limbo, as my honourable friend David Heath put it, where they will have no access to employment or to public services other than very limited subsistence and accommodation along the lines that NASS provides at the moment for asylum seekers, although the details remain to be spelt out. They will not be entitled to local authority housing, social security or NHS services except in emergencies, and I believe that their children will be denied education in the state system. Perhaps the Minister will confirm that. Moreover, these conditions will continue indefinitely. The Afghans are a good example because they have lived under them for the past eight years. Will the Minister confirm that it is the Government’s intention to apply the new status to these nine people, and how do they justify that breach of the principle that legislation should not be retrospective? In Committee we will examine in more detail the circumstances of the dependants, to whom Article 1F does not apply, even under the Government’s notoriously broad interpretation, and we will want to know why the BIA has failed to respond to some of their independent asylum applications made over the past eight years. Under existing law, people who are not removable for human rights reasons are given discretionary leave to remain for six months at a time, and on each occasion this is renewed, the BIA has the power to review the circumstances and consider whether it might then be safe to remove them. After 10 years applicants may seek indefinite leave to remain, although there is no obligation to grant it. As we see it, the Law Society is right in saying that the new status is unnecessary, and we shall also argue that it is inconsistent with the Government’s declared objective of simplifying immigration law, a project that we wholeheartedly endorse. The UNHCR has reiterated its advice that Clause 182, setting out the definition of a ““foreign criminal”” by reference to Section 72(2) of the Nationality, Immigration and Asylum Act 2002 and the 2004 specification of particularly serious crimes order, inappropriately excludes persons convicted of a wide range of offences by virtue of Article 1F of the convention, creating what it called, "““a particularly low threshold for an exception to the principle of non-refoulement to apply””." We tried to argue the case on the NIA Bill at the time. But now we have a different threat. Everybody who is a foreign criminal convicted of a specified offence, whether it is hijacking or shoplifting, and everyone to whom Article 1F applies whether or not he has been convicted of any offence, can be designated by the Secretary of State, giving him what the Law Society rightly describes as ““enormous discretion””. In the words of Justice, "““the breadth of conduct giving rise to the possibility of designation is extraordinarily and inexplicably broad””." Similar criticisms have been made by the Refugee Council, Liberty. the JCWI, ILPA and others. Persons subject to this status may be required to observe conditions which ““relate to”” residence, employment, occupation or reporting, and would allow several of the conditions to be attached to control orders under Section 1(4) of the Prevention of Terrorism Act 2005. The person would also be potentially subject to electronic monitoring or tagging, and failure to comply with any of these conditions may result in a criminal conviction and a sentence of up to 51 weeks’ imprisonment. These conditions may last indefinitely and may be applied not only to the person himself, but to his spouse and children, making them subject to the hardship of special status through no fault of their own, contrary to Article 3 of the Convention on the Rights of the Child. One lawyer with whom I discussed this effect called it ““grotesque””, and I agree. Worse, the ability to rebut the presumption that a designated person is a ““danger to the community””, as in Section 72 of the NIA Act, is to be set aside, so the Afghan hijackers whose conviction was quashed by the Court of Appeal in its judgment of 6 June 2003, and who were found not to be a danger to the community or the security of this country and therefore not caught by the exclusion of Article 33(2) of the Refugee Convention, are still liable to designation. There is no independent review mechanism to oversee the use made by the Secretary of State of these extensive powers. When the Government have deliberately persisted in conduct which they knew was unlawful and then come to Parliament seeking to change the law so as to validate the past illegality and allow them to persist in the same conduct in the future, we hope that your Lordships will reject their impudent proposals. The prime duty of Parliament, as we heard earlier today, is to uphold the rule of law and not to acquiesce meekly when governments twist it to match what Prime Ministers say they are going to do, without reflection, in the heat of the moment. These costly and far-reaching clauses, offering no protection to the public, should be removed from the Bill.