Lord Taylor of Holbeach
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(11 years, 4 months ago)
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“Immigration cases: appeal rights; and facilitating combined appeals
(1) In section 84(1)(b) of the Nationality, Immigration and Asylum Act 2002 (grounds of appeal: decision unlawful because of race discrimination etc by Northern Ireland public authority) after “1997” insert “or by virtue of section 29 of the Equality Act 2010 (discrimination in the exercise of public functions etc) so far as relating to race as defined by section 9(1) of that Act”.
(2) In section 99 of that Act (pending appeals lapse on issue of certificates)—
(a) in subsection (1) (list of provisions under which certificates may be issued) omit “96(1) or (2),”, and(b) in the title, for “96 to” substitute “97 and”.(3) For section 47(1) of the Immigration, Asylum and Nationality Act 2006 (decision that person is to be removed from the United Kingdom may be made while person can bring appeal) substitute—
“(1) Where the Secretary of State gives written notice of a pre-removal decision to the person affected, the Secretary of State may—
(a) in the document containing that notice,(b) in a document enclosed in the same envelope as that document,(c) otherwise on the occasion when that notice is given to the person, or(d) at any time after that occasion but before an appeal against the pre-removal decision is brought under section 82(1) of the Nationality, Immigration and Asylum Act 2002,also give the person written notice that the person is to be removed from the United Kingdom under this section in accordance with directions given by an immigration officer if and when the person’s leave to enter or remain in the United Kingdom expires.(1A) In subsection (1) “pre-removal decision” means—
(a) a decision on an application—(i) for variation of limited leave to enter or remain in the United Kingdom, and(ii) made before the leave expires,(b) a decision to revoke a person’s leave to enter or remain in the United Kingdom, or (c) a decision to vary a person’s leave to enter or remain in the United Kingdom where the variation will result in the person having no leave to enter or remain in the United Kingdom.””
The Parliamentary Under-Secretary of State, Home Office (Lord Taylor of Holbeach)
My Lords, I shall speak also to Amendment 124, which is in the group.
The new clause to be inserted by Amendment 118 makes three separate changes to the legislation governing immigration appeals. The first two respond to amendments tabled in Committee by my noble friend Lord Avebury.
Subsection (1) of the new clause will reinstate a ground of appeal against an immigration decision on race relations grounds. Such a ground of appeal existed prior to the commencement of the Equality Act 2010, but was removed by the consequential amendments made under that Act. The Government’s stated policy remains that there should be a ground of appeal on race relations grounds and we have therefore brought forward this amendment to reinstate a ground of appeal on those grounds.
Subsection (2) of the new clause corrects an anomaly in Section 99 of the Nationality, Immigration and Asylum Act 2002 identified by my noble friend Lord Avebury in Committee. Sections 96 and 99 of that Act are designed to stop repeated appeals being used to frustrate the immigration system. Where the Secretary of State makes an immigration decision that carries a right of appeal, she may also certify that decision on the basis that the application relies on issues that were, or could have been, raised earlier or dealt with at a previous appeal. The effect of certification is to prevent an appeal being brought. However, there is a lack of clarity within the 2002 Act about the effect of certification on appeals that are already under way.
Section 96(7) of the 2002 Act states that a certificate has no effect in relation to an appeal that is already under way, but Section 99, which makes provision for the interaction between certification and appeals in progress, states that a certificate would cause the appeal to lapse. It is government policy that a decision to certify should not cause an appeal that is already under way to lapse, and the contradiction needs to be resolved so that the effect of the legislation is clear. This technical amendment to Section 99 of the Nationality, Immigration and Asylum Act 2002 therefore seeks to clarify that certifying a decision under Section 96 of that Act does not cause a pending appeal to lapse. I thank my noble friend Lord Avebury for bringing that issue to the attention of the House.
Subsection (3) of the new clause will clarify when a decision to remove a person from the United Kingdom can be given in relation to a decision to refuse to vary leave, to curtail leave or to revoke leave. As noble Lords will be aware, this House has considered this issue before. In 2006, the House supported an amendment which then became Section 47 of the Immigration, Asylum and Nationality Act 2006. It provided a power to make immigration removal decisions where a person has statutorily extended leave to remain in the United Kingdom. Statutorily extended leave is leave which continues where an appeal can be brought against a decision to refuse to vary, to curtail or to revoke leave.
The intention behind Section 47 was that decisions should be made simultaneously, thereby allowing any appeal against removal to be heard at the same time as the appeal against the variation or curtailment decisions.
However, the Upper Tribunal in the recent case of Ahmadi concluded that secondary legislation prevents the simultaneous service of these two decisions. It concluded that the removal decision cannot be made until written notice of the decision to refuse to vary a person’s leave to remain has been given to that person. The impact of this decision is that Section 47 no longer works as it was intended, with the consequence that a removal decision can only be made after the initial appeal against a refusal to vary leave, or a decision to curtail leave or revoke leave, had been heard. The removal decision itself would then generate a second right of appeal. The effect will be to add in unnecessary, and indeed unacceptable, delays and costs into the appeals and removal process.
We are challenging the Upper Tribunal’s decision before the Court of Appeal but we have concluded that we should act swiftly to put the effect of Section 47 beyond doubt and restore the construction of that section which Parliament intended when enacting the 2006 Act. The consequential amendment to Clause 33 ensures that the provisions made by the new clause can be extended to any of the Channel Islands or the Isle of Man by Order in Council. I beg to move.
Lord Lester of Herne Hill
My Lords, perhaps I may add to what my noble friend has just said. My wife is an immigration and asylum judge and from time to time she and her colleagues are sent for training in order to try to understand what the Home Office is producing. I hope that she does not mind my mentioning this, but she and her colleagues find themselves in a quite terrible situation in trying to understand the Kafkaesque material that flows out of the Home Office. There are two people in the Chamber who will understand these amendments—one is the Minister and the other is my noble friend Lord Avebury. I do not understand them. For me to understand them I would have to read the three different Acts of Parliament, all of which are put in play in these amendments, and I would have to listen to and read again what has been said by the Minister. The net result would be that we will continue to have a network of regulations that it is quite impossible for ordinary men and women, including Members of this House, to understand unless and until the Home Office does what we have repeatedly asked it to do for the past many years—to consolidate the legislation into a single measure that can be understood by users, whether they be would-be immigrants, refugees or asylum seekers, or lawyers, NGOs or the public. At the moment it is almost incomprehensible and lacks, therefore, legal clarity. I very much hope that, when I do understand these amendments, what I have just said may be listened to by the Home Secretary and other Ministers who will instruct their officials, please, to come up with consolidating legislation that we can understand.
Lord Taylor of Holbeach
My Lords, I would like to comment on that because one of my responsibilities within the Home Office is regulatory reform. I agree with my noble friend that no area is more complex than the whole business of the Immigration Rules and the procedures surrounding them. The noble Lord, Lord Curry of Kirkharle, is aware of my involvement in this—indeed, the Better Regulation Executive is seeking to support the Home Office in this endeavour. I will bear in mind the comments of my noble friends because I am a great believer in the law being as simple and as clear as possible so that people can understand and operate it in the most effective way. I note very much what my noble friend has said. I hope he will understand that these amendments are designed to achieve the purpose of clarifying the law in areas of ambiguity.
Lord Lester of Herne Hill
My Lords, many years ago, in 1967, I did the first case in Strasbourg against the United Kingdom: a case called Mohamed Alam & Mohamed Khan. Sir Roy Wilson had produced his report advocating an appeal system. It was as a result of the Strasbourg case and Sir Roy Wilson’s report that the immigration appeals system was first introduced —a system which has gone on until now. I strongly support the explanations and powerful speeches given by the noble Baroness, Lady Smith, and my noble friend Lord Avebury.
What is the situation at the moment? Instead of there being a proper process at first instance before there is an appeal—a process of proper decision-taking based upon the kind of common-sense approach that the noble Baroness, Lady Smith, is advocating—mistakes are made quite frequently. When the appeal comes to someone who is an immigration and asylum judge, often no presenting officer is produced by the Home Office to present the government case or there is no one to represent the applicant. My wife will come home at the end of the day and say, “I have now for the first time to take a proper decision myself as though I were doing it at first instance because I have nobody to help me on either side and I find that the initial decision is defective. I now, on appeal at great public expense, have to correct mistakes which should not have been made in the first place at first instance. The only way in which those mistakes can be corrected is by having an appeal system. It is the only safeguard”.
The system now resembles the fairy story, The Little Prince, which noble Lords may remember, in which the boa constrictor swallows a sheep. One sees the lump of the sheep passing along the boa constrictor. The sheep is the process of taking decisions in this area. Instead of the process being properly determined at first instance and making the need for appeals rare, a great lump, the creature, passes along the snake, which leads to a first-instance appeal, an upper-tier appeal and judicial review.
The remedy is simply the common-sense one. One has at first level as much information as possible for a well informed decision. The advantage of the amendment tabled by the noble Baroness, Lady Smith, is that it would at least enable proper communication between the officer and the applicant or the applicant’s representative. I can see no argument against that, especially if we were to abolish appeals, which I very much hope will not be the case.
Lord Taylor of Holbeach
My Lords, I will address Amendment 118ZA in the name of the noble Baroness, Lady Smith. Before I do so, perhaps I may say that I understand that the contributions made by the noble Baroness and my noble friends Lord Avebury and Lord Lester are designed to build a more efficient system. In my response, I hope that I can demonstrate that that also is the Government’s intention.
The UK Border Agency publishes supporting documents guidance specifically for family visitors. It provides extensive guidance in several languages on the type of documents that customers should consider submitting. Perhaps I may elaborate on that. The UKBA provides guidance on how to fill in the visa application form. It is translated into six languages—Arabic, Chinese, Hindi, Russian, Thai and Turkish. Improvements are also being made to the online visa application process, which will be completed in May 2013. All that is available on UKBA’s website for those wishing to make applications. I should also tell noble Lords that if a refused application is received, the UKBA writes to the refusee to tell them what is missing from their documentation. I believe that this is a valuable way to make sure that the process is as user friendly as possible.
If the amendment in the name of the noble Baroness, Lady Smith, was successful it would put a significant resource burden on entry clearance officers to make inquiries with the minority of applicants—it is a minority of applicants—who do not provide sufficient information with their application. The Government have not been persuaded by the noble Baroness that this is right. Of course there is work to do on continuing to improve the application process. However, the onus must be on applicants to satisfy visa officers that they meet the requirements of the Immigration Rules and to ensure that they have prepared the application properly before submitting it.
Lord Avebury
Will my noble friend deal with the point I made? The exercise of the right of appeal is not only for the purpose of getting the decision reversed but to prevent there being a blot on a person’s record, which may seriously hinder their future ability to travel anywhere?
Lord Taylor of Holbeach
I do not accept that at all. If someone’s application to visit this country is refused, then I regret to say that it must be because either they have failed to fill in the application correctly or there are substantial reasons why they should not be allowed to make that visit. I cannot accept the premise of my noble friend’s argument.
The Government are not persuaded by the case for my noble friend’s Amendment 118A. To accept it would introduce a right of appeal for people who have, for example, practised criminal or other dishonest behaviour, while those who have acted honestly would not have an appeal. It cannot be right that that type of behaviour is rewarded.
Regardless of whether an application is refused, relying on a general ground of refusal, the applicant is free to re-apply setting out why the previous refusal was unjustified. All refusals on general grounds are authorised or reviewed by entry clearance managers before being served. If refused under general grounds, it is also open for an applicant to make a fresh application by providing new evidence which an entry clearance officer will take into account. A refusal under paragraph 320 of the Immigration Rules may also be challenged by a judicial review. Prior to making decisions, all entry clearance officers have to pass a three-week training course, part of which focuses on making decisions using paragraph 320 of the Immigration Rules. There is also an e-learning package specifically relating to the sub-paragraphs of paragraph 320 that may lead to an applicant’s future applications being automatically banned. This package is completed by entry clearance officers during their induction training on arrival at their decision-making post.
I think I have demonstrated that the process is thorough and that there will be considerable advantage to the efficiency of the system and, indeed, to applicants themselves if the Government’s proposals are approved. I trust that I have been able to satisfy my noble friend.
Baroness Smith of Basildon
My Lords, the Minister has always been generous with his time and courteous in his response, but I am sad that he is also disappointing. He seems to have relied on existing guidance being adequate and user-friendly. I thought that my comments that the genuine mistakes that are made could be more easily rectified than they are under the current process or the process proposed by the Government indicated that it is not quite user-friendly. No matter how many languages are used, if people do not understand what is required of them they cannot provide it. Perhaps the Minister thinks the guidance is adequate. If it were adequate, applicants would submit all the information required. There is no interest for applicants to make a mistake or not to supply something that they should.
It beggars belief and is against natural justice that the appeal process can be scrapped and that the Government are not taking steps to improve the original decision-making when the figures show that 37% of appeals are successful.
Lord Taylor of Holbeach
The allegation that we are not taking steps to improve the original decision-making has been refuted by what I said in my response to the amendments. I do not want to make an argument out of this issue, but the Government are very much focused on trying to ensure that the decision-making process is efficient and fair to applicants, as well as to taxpayers.
Baroness Smith of Basildon
I do not doubt that that is the Minister’s intention, but when we hear that the success rate of appeals against family visit visa refusals has risen from 19% in 2004 to 37% in 2010, that does not sound as if the system is getting more efficient, rather that the system is less efficient.
The point I am making is about removing the appeal process at that time. We heard from Sir John Vine about the huge backlog of cases that are currently in the system. There are 100,000 envelopes unopened, including 14,000 containing recorded delivery information. I think that our amendment is a common-sense approach. Remarkably, even the noble and learned Lord, Lord Lester of Herne Hill, who takes a legal approach to these things, agrees with me on this point. I am seeking to be helpful to the Minister and the Government. He may think there are times when I am not, but on this occasion I am seeking to be helpful.
The Minister spoke of the letter which is sent to applicants on reasons for refusal. That reason for refusal may be one very minor, technical matter that can easily be resolved via a phone call. I am extremely disappointed by the Minister’s response. I hope he will take this away and consider further the points that I have made. I beg leave to withdraw the amendment.
Lord Lester of Herne Hill
My Lords, the noble Baroness described me as “noble and learned”. I should not be described in that way because I am not a former law officer or Law Lord—and I am not sure about being noble. However, it is true that I look at matters as a lawyer. I cannot help that; it is a problem that comes with 40 years of doing it.
I am interested to know what the Minister’s response would be to the remark made by the noble Lord, Lord Pannick, when he described this as “arbitrary”. That seems to be a correct way of describing it. Can the Minister explain why, if the amendment tabled by the noble Lord, Lord Avebury, were rejected, the Government would not be highly vulnerable to a legal challenge in our courts or, I dare say, the European Court of Human Rights?
Lord Taylor of Holbeach
My Lords, we set out in Committee the reasons for Clause 27. It demonstrates a current anomaly in legislation that allows high-harm individuals to return here to appeal the decision to cancel leave, despite being excluded from the United Kingdom by the Secretary of State.
Exclusion from the United Kingdom is a key tool in tackling those who seek to cause harm to the United Kingdom. Exclusion is used to tackle a range of conduct including terrorist-related activity, serious criminality and engagement in unacceptable behaviours. The exclusion power is used sparingly and is reserved for those who are considered to be the highest-harm cases. It is therefore crucial that once the Secretary of State makes such a decision, it is given full and immediate effect. It should not be undermined by a separate immigration decision, taken only to give effect to the exclusion, and the accompanying rights of appeal.
Of course any such decision by the Secretary of State should be open to challenge and review by the courts. No one is denying that. However, the Government believe that, given the nature of these cases, it is wholly reasonable that judicial scrutiny of the facts should be carried out while the individual remains outside the United Kingdom. When noble Lords consider the type of conduct that has led to these decisions by the Secretary of State, it seems to be an entirely reasonable and proportionate proposition.
Lord Maclennan of Rogart
The point has already been made in this debate that if such an appeal is made, the appellant is put at a very grave disadvantage as a result of difficulty in communicating with counsel and in speaking to witnesses who may have something to say that is relevant. The rule of law cannot be properly discharged if the Minister cannot find more support for the absence of the appellant.
Lord Taylor of Holbeach
I tend to disagree with the noble Lord. I cannot see why it should be possible to allow somebody whom the Secretary of State for the Home Department has decided to exclude to return to this country purely to pursue an appeal against that decision. I do not accept that that is reasonable and that is why we have included this clause in the Bill.
Lord Pannick
I am grateful to the noble Lord. Is not the point that however reprehensible the allegations against the individual, if they are present in this country then they are entitled to remain and pursue an appeal? The question is whether, because of the accident that they may be abroad for a day or two for entirely understandable compassionate reasons and because the Secretary of State takes advantage of that absence to make a decision, they should then be unable to pursue an appeal while within the United Kingdom.
Lord Taylor of Holbeach
I think we disagree on that. Noble Lords will understand the premise on which the Government are basing their decision. It cannot be right to allow someone to return to this country when the decision has already been made by the Secretary of State that that person is considered to be undesirable to admit to this country and that is the reason for their exclusion. I should perhaps help the debate by giving some figures. Since 2005, 426 individuals have been excluded on the grounds of national security, unacceptable behaviour, serious criminality or war crimes. Annual figures have varied over the years from 111 in 2007 to 40 last year. Incidences of the decision to exclude an individual with an accompanying decision to cancel leave have totalled 30 over that period. The most was seven in one year and the fewest was two. This year to date: nil. I hope that helps noble Lords to put this matter in perspective. The Government have a responsibility for the security of the country and I hope that will carry some weight with noble Lords in this argument.
I will now carry on with what I was intending to say. Clause 27 seeks to provide the Secretary of State with a certification power where she decides that the decision to cancel leave under Section 82(2)(e) of the Nationality, Immigration and Asylum Act 2002 was taken on the grounds that the individual’s presence in the United Kingdom would not be conducive to the public good. The individual must be outside the United Kingdom at the time of the decision for the Clause 27 provision to have effect, the effect being that on certification the in-country right of appeal under Section 92 of the Nationality, Immigration and Asylum Act 2002 no longer applies to such a decision, which means that the person has an appeal from outside the United Kingdom. To be clear, the individual will still have a full merits appeal but that will be exercisable from outside the United Kingdom instead of from within the United Kingdom. We accept that the power to remove appeal rights from the United Kingdom to abroad must be reserved for highest-harm cases. This is why we have restricted the application of the certification power to individuals where the decision to cancel their leave is based on the Secretary of State’s assessment that their presence in the United Kingdom is not conducive to the public good. We have also expressly stated that this applies only to individuals outside the United Kingdom at the time of that decision.
Such cases have been, and will remain, the exception rather than the norm. Clause 27 seeks to maintain the operational integrity of the Secretary of State’s power to exclude an individual from the United Kingdom. Such decisions are not taken lightly and are reserved for the highest-harm individuals. It is therefore imperative that such a decision remains operationally effective, pending judicial scrutiny. For these reasons I cannot support Amendment 118D, which seeks to remove Clause 27 from the Bill. Similarly, Amendment 118C could seriously undermine the Government’s ability to secure our borders against individuals who pose a threat to the United Kingdom. The amendment would exclude from Clause 27 those individuals who are stateless, those who have previously been granted leave to enter, those who remain based on a successful asylum or human rights claim, and those who raise human rights or asylum issues in their grounds for appeal. As previously stated, it is right that we provide protection to those in need and the Government remain committed to their international obligations to such individuals. However, the Government also have an important obligation to protect the public from high-harm individuals whose actions pose a threat to national security or the rule of law.
Lord Lester of Herne Hill
I am sorry to interrupt the Minister but I am now genuinely bemused. We know from the Chahal case that the Special Immigration Appeals Commission was set up so that appeals could be dealt with through closed material proceedings, protecting national security and the interests of justice. I welcomed that because I care about national security as well as justice, and that scheme had to be introduced because the European court said so. Now we are in a position where the Government concede that, if the high-harm person is within this country, they should have the necessary right of appeal. The noble Lord, Lord Pannick, made the point that if the high-harm person happens to be abroad for compassionate reasons, it is arbitrary and irrational that that person should not be in as good a position as if he were in this country. Simply using the Home Secretary’s power to say that someone’s presence is not conducive to the public good, which is what happened in Chahal, is arbitrary. That is what is bewildering us. We cannot understand why the interests of national security should not, at this point, understand the needs of the rule of law.
Lord Taylor of Holbeach
I am not a lawyer but I am, I hope, filled with common sense. It strikes me as being quite nonsensical to allow an individual back into this country to pursue an appeal against exclusion. The exclusion decision, if I may say so, is taken on grounds that the noble Lord has admitted may well include protecting national security. Indeed, criminality and protecting national security are the only grounds on which high-harm individuals may be pursued. Their right of appeal is not removed. The question is whether they should be readmitted to this country to pursue that appeal. I suggest that is nonsensical and I cannot accept the noble Lord’s position on the matter.
I was explaining that for many of these cases the primary objective is to protect the public from individuals where credible evidence suggests involvement in terrorist-related activity or serious criminality. In other cases, it is to protect the public from individuals intent on inciting others to commit crime or on creating divisions between communities. Therefore, the legislative proposal is designed to target the highest-harm cases, and it is proportionate, for the protection of the public, to ensure that any appeal for which a full-merits appeal right still exists is from outside the United Kingdom.
Amendment 118C would potentially provide every individual refused under this provision with an in-country right of appeal as they would simply need to raise human rights or asylum grounds in their appeal. That cannot be right and for that reason we are unable to support the amendment. I hope that, in the light of my remarks, my noble friend Lord Avebury will understand the drivers behind this clause and why the Government have to ask him to withdraw his amendment.
Baroness Butler-Sloss
I have been listening to this debate without any particularly strong views either way. However, perhaps the Minister can assist with this question. On the assumption that a stateless person, for instance, or indeed anyone else who has been refused a return, is outside the country somewhere, how on earth does he or she actually continue an appeal?
Lord Taylor of Holbeach
My Lords, the process of appeal is open to anybody and the circumstances in which they have found themselves is a matter for them. This country and its Government have decided that their presence in this country is not conducive to the public good, which I think is a reasonable decision for the Government to make. It is open to challenge through the judicial process and that individual still has a right of appeal. It is not for me to suggest the details of ways in which that appeal should be processed.
Lord Gilbert
I, too, have been listening very closely to this debate, with no expertise whatever. However, I take on board the concerns of various noble Lords. Could not the matter be satisfactorily resolved by placing on the person making a decision the requirement to let the individual under suspicion know when a decision is going to be taken?
Lord Taylor of Holbeach
I think that would be counterproductive. If the noble Lord thinks through the circumstances of that question, he will understand that.
Lord Woolf
Am I right in thinking that this form of appeal from outside the country has been part of the immigration process for a substantial period? In addition, is it not the case that it can be a written process and that forms can be used for the purposes of the appeal?
Lord Taylor of Holbeach
The noble and learned Lord is perfectly correct in that regard.
Lord Mackay of Clashfern
My Lords, just before my noble friend sits down, I would like to understand the position. Somebody is outside the country having had leave to remain in it previously; the Secretary of State gets information to suggest that that person would be dangerous to the country if he or she returns; and the Secretary of State decides, on that information, that that is so. Is the position then that, in order to comply with the amendment of the noble Lord, Lord Avebury, the Secretary of State would have to allow that person, whom he or she believes to be a dangerous person to the security of the country, back to lodge an appeal? Why should that be? Why should the Secretary of State allow somebody, whom he or she thinks to be a danger to the country, to come back into the country solely for the purpose of appealing against that judgment? If he does come back into the country, there is at least a risk that his activities will not be confined to appealing but may include doing what the Home Secretary has considered constitutes the possibility of danger to the country.
Lord Avebury
My Lords, the crux of the matter is that the Minister suggests that credible evidence exists for the Home Secretary to have made this decision that the person has been involved in serious criminality, terrorism and so on. The Secretary of State waits until the person goes abroad for some reason, whether it be for compassionate reasons, as the noble Lord, Lord Pannick, has suggested, or for any other reason, and then pounces—
Lord Taylor of Holbeach
I realise we are on Report, but I will just say to the noble Lord that it may be that the conduct that leads to the Home Secretary making this decision takes place while this individual is abroad. I think the notion that this is a premeditated trap is false. It is more to do with the possibility that the individual, while abroad, makes contact with someone, or evidence comes to light as to their true intent, or what they might do when they return to this country becomes apparent, and the Home Secretary wishes to deal with the problem.
Baroness Smith of Basildon
My understanding of the case concerning Mr Braithewaite and Miss Williams is that the defendant was charged and convicted of a Section 5 Public Order Act offence for the homophobic insults. There were other offences as well, but homophobic insults were a significant part of that prosecution. It is for the Government to bring forward what they intend to do. I am not against change or further discussion on this but, on the evidence today, I want to see the evidence from the Government in much greater detail and to know exactly what the outcomes and the consequences would be for those who the law currently protects.
Lord Taylor of Holbeach
My Lords, I understand the interest that has been shown in this debate. I thank the noble Baroness, Lady Smith, for at least demonstrating that the issues that the House has to consider are perhaps a little more complicated than some of the speeches have implied. It is important to stress that there was a further sentence to the letter of which the noble Lord, Lord Dear, kindly sent me a copy. After the comments about the ability to prosecute, the letter continued:
“However, I appreciate there are other policy considerations involved”.
He is right that the Government have to consider the full implications of this amendment.
Let us make it clear: the Government are not seeking to change the law. It is this debate and this amendment that are seeking to change the law. The law has existed and has protected free speech, and incidents have been demonstrated. But we need to be properly considerate before we change the law in this area.
Lord Taylor of Holbeach
I am sorry, but I am not prepared to give way. I want the House to hear the argument that has gone through the Government.
We have considered this matter at great length—for too long, as the noble Baroness has suggested—and we have reached the firm view that Section 5 should not be reformed. There is insufficient evidence that the removal of the word “insulting” would be beneficial overall. I regret that this decision will not be welcomed by everyone, but I assure the House that it has been given careful consideration. I regret to say that should the noble Lord, Lord Dear, seek to test the opinion of the House, I will urge noble Lords—
Lord Morris of Aberavon
Would the noble Lord like to comment on the fact that the Director of Public Prosecutions has changed his mind? How do the Government respond to and answer that change of decision?
Lord Taylor of Holbeach
The letter is available, no doubt, from the noble Lord, Lord Dear, in full. I suggest that noble Lords read the full text of the letter, not just selective quotations.
Lord Maginnis of Drumglass
In so far as I understand the term “abusive”—most noble Lords will understand that term—can the Minister define in legal terms the word “insulting”? I have not heard in anything that he said tonight a proper definition of “insulting”. I have heard it defined by the Opposition Front Bench. I shall leave my question at that. Can the Minister define “insulting”?
“( ) Subsection (11) applies to section (Use of force in self-defence at place of residence) only so far as the provisions amended extend to England and Wales or apply in relation to service offences.”