Second Standing Committee
on Delegated Legislation
Monday 8 November 2004
[Mr. Nigel Beard in the Chair]
Nationality, Immigration and Asylum Act 2002 (Specification of Particularly Serious Crimes) Order 2004
4.30 pm
Mr. Mark Oaten (Winchester) (LD): I beg to move,
That the Committee has considered the Nationality, Immigration and Asylum Act 2002 (Specification of Particularly Serious Crimes) Order 2004 (S.I. 2004, No. 1910).
It is a pleasure to serve under your chairmanship, Mr. Beard.
We thought it important to bring the Minister to the Committee to justify some significant changes proposed under the order. I start by recognising that our whole approach to the questions of who comes into our country and of refugee status has, of course, changed as a consequence of what happened on 11 September 2001. We understand that this issue is complex and difficult for the Government and that they must tread carefully in ensuring that our country is safe and protected. We have had debates elsewhere about the importance of ensuring that those connected with, or accused of being connected with, terrorist acts are dealt with appropriately. However, we want to probe the Minister on the changes proposed by the Government, because they go way beyond the remit of dealing with terrorism.
As I said, these are complex issues, but the 1951 convention on the status of refugees is extremely helpful. It was forward thinking: those who established the convention thought of a number of circumstances in which a country might want to consider the appropriateness of refugees who had been involved in crime either coming into the country or remaining in the host country. The situation laid out by the convention involved a number of justifications whereby it would be possible for a host country to exclude someone—not to allow someone to come in or to remove someone from their shores and send them back.
The justifications fell into three categories. The first related to a security threat; the second related to a danger to the community; and the third category applied if a serious crime had been committed. However, the convention linked the serious crime to a danger in the community; in other words, one had to demonstrate that the individual who had committed the serious crime presented a danger to the community in doing so. The first idea, that of a security threat to the nation, was pretty clearly set out in the convention. I have no problem with the convention: it seemed a sensible measure and it put in place the controls that one would expect in those circumstances.
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However, with the order the Government appear to be going way beyond the reasons for expulsion set out in the convention. They extend the definition of ''serious crime'' into areas that go way beyond the original meaning of the convention. Serious crime, in convention terms, related to issues such as murder or rape, but according to the order we are now including issues—
The Minister for Citizenship and Immigration (Mr. Desmond Browne): This is a very important part of the hon. Gentleman's argument, so will he point out where precisely in the convention those definitions appear? There are other documents that support the convention on which these discussions take place and advice is given.
Mr. Oaten: Paragraph 2 of article 33 of the convention sets out the reasons for which a person may be removed from the country of asylum. It lists
''danger to the security of the country . . . a particularly serious crime''
and ''danger to the community''. I was basing my introductory remarks on that interpretation. Those are the definitions given by the convention in relation to reasons why individuals may be removed. If I am incorrect, I am perfectly happy for the Minister to respond, because it would be useful to have clarification.
Mr. Browne: I am pleased to respond. The hon. Gentleman's quoting of the convention was broadly correct in that contribution but, with respect, he was not correct when he referred to individual crimes, a point that was, of course, crucial to his argument.
Mr. Oaten: We could play the debate back, but I was arguing that the convention set down, pretty helpfully and clearly, reasons why individuals could be removed from the country and that those were the ones that we both agree on—the list set out in paragraph 2 of article 33. What the convention does not do is set out what the serious crimes could be. It is on that contention that I am speaking today. If a serious crime can be demonstrated to be a danger to the security of the country, I have no problem, and the convention has no problem, with that individual being removed.
My concern is that the Government propose to go way beyond that and are including crimes such as shoplifting, graffiti and offences under the Theft Act 1968, the Criminal Damage Act 1971 and the Road Traffic Act 1988. That seems to go beyond what the convention argued were sensible reasons for removing individuals. We therefore want to probe the Government more as to the justification for that wider category of crime.
Mr. Browne: This goes to the nub of the debate on the order. The hon. Gentleman has chosen a small number of descriptions of parts of a very large number of offences and crimes. Perhaps he will explain why the Government should take the view that they cannot use more broadly descriptive definitions that are entirely consistent with UK criminal law when those broad definitions can, in individual circumstances, apply in such cases and can apply to some serious offences too.
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Mr. Oaten: With respect, it is not for me to justify to the Minister why they have been included but for the Minister to justify to me why the Government are broadening the category in this way. Why does the Minister believe that some of the crimes that have been listed can be included? It is not the approach taken in other countries.
There is clearly concern from experts in the field about including these crimes. They are serious but do not fall into the category of crimes included when the convention was drafted in 1951. Those are crimes that would have such a serious consequence that they would be a danger to the community or indeed to the country itself. The Minister needs to make that case. How could individuals involved in theft or graffiti be regarded as falling foul of the convention?
Mr. John Gummer (Suffolk, Coastal) (Con): If we look at the example of the United States Government, we see that there is no doubt that they have gone far beyond what is reasonable in the legislation that they have passed. We should therefore be very careful that we do not use the very obvious threat of terror to include in our legislation things that might be seen as contrary to human rights. I agree with the hon. Gentleman that it is extremely difficult to see how some examples can be considered serious crimes under any definition connected with terrorism.
Mr. Oaten: I am grateful to the right hon. Gentleman for his intervention. The United States has used a very different benchmark and taken a very different approach, one which looks at the length of sentence. It is perhaps a slightly crude way of judging the seriousness of a crime before considering returning a refugee. The United States would regard a serious crime as one with a sentence of five years' imprisonment or more, whereas, as I understand it, the Government will look at a sentence length of more than two years. That seems a strange guideline to put in place.
First, can the Minister explain why some of the crimes in the order could be regarded as a threat to the wider community and the state? Secondly, how will the Government look at crimes that were committed in other countries? I understand the argument that if a crime is committed in this country at least one knows what the criminal justice system is. One can charge a person and they can be given a two-year sentence. It is clear how we regard crimes committed in this country, but does the Minister acknowledge that some very difficult decisions might have to be taken if a judgment was based on someone's criminal record in another country? Throughout the world there are different approaches to, and different sentences for, different crimes.
In some countries a two-year sentence could be given for something that would not, in this country, be a criminal offence. Some of the refugees who come to the United Kingdom will have incurred a criminal sentence for an offence that was not proved, because the standards of proof in some countries are not as high as ours. Others, who are fleeing from persecution, may have been set up by the regime from which they
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were fleeing, or their crime may have had something to do with the reason that they fled persecution in the first place.
Mr. Browne: The hon. Gentleman raises an interesting point, but it is not strictly relevant to the order. Those issues arise from the provisions of section 72 of the Nationality, Immigration and Asylum Act 2002, and were more properly debated in the context of the passing of that Act, which is now the law.
Mr. Oaten: If the Minister is saying to me that he can give me a hand-on-heart assurance that the order has nothing to do with judging an individual's previous criminal record, I shall be delighted. However, that is not my interpretation of it.
Mr. Browne: That is not the matter that we are debating. We are debating whether offences have been committed outwith the jurisdiction of the United Kingdom. I will read to the hon. Gentleman section 72(4) of the 2002 Act, which has two provisions, and is the basis of the order, so that he will be clear about it. It states:
''A person shall be presumed to have been convicted by a final judgment of a particularly serious crime and to constitute a danger to the community of the United Kingdom if . . . he is convicted of an offence specified by order of the Secretary of State''—
I pause to note that that is the type of order that we are now debating—
''or . . . he is convicted outside the United Kingdom of an offence and the Secretary of State certifies that in his opinion the offence is similar to an offence specified by order under paragraph (a).''
The provision relating to the Secretary of State's power to make the order lies in primary legislation and not in the order. The proper place for a debate on that matter was in the consideration of section 72 of the Act. I am happy to deal with the issues that the hon. Gentleman raises, but I do not want other members of the Committee to get the impression that the order confers that power: it does not. That issue was debated in 2002.
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