Immigration Control (Gross Human Rights Abuses) Bill [HL] — House of Lords, 2017-12-15
Topic: Law and Crime
Simon Denis Brown (Crossbench, Unknown): My Lords, I, too, strongly support the Bill and warmly commend the noble Baroness, Lady Kennedy of The Shaws, on her commitment to this cause and her good fortune in the Private Member’s Bill ballot. As she has explained, essentially it seeks to complete what must surely be accepted by all as a compellingly necessary legislative response to the particular form of gross abuse of human rights to which it is directed We addressed part of that response—the monetary part, as has been explained—in the Criminal Finances Act earlier this year, which provides, by way of amendment to the Proceeds of Crime Act 2002, for the civil recovery of the proceeds of unlawful conduct. That unlawful conduct is now defined, pursuant to the 2017 Act, to include, under the title "gross human rights abuses or violation", the appalling ill treatment of, in shorthand, whistleblowers and the like. Under the 2002 Act, as now amended, the financial gain from this form of gross human rights abuse can be frozen by establishing a "good arguable case" and recovered by legal action if the case is then established on the balance of probabilities Having supported that provision in my speech at Second Reading of the 2017 Bill, when I simply mentioned the name Magnitsky, I received by post a copy of Bill Browder’s book, Red Notice. Generally, one never gets around to reading such unsolicited books, but I was tempted to dip into it by the endorsements on the cover. Tom Stoppard called it, "a shocking true-life thriller", while Lee Child said: "Reads like a classic thriller … but it’s all true, and it’s a story that needs to be told" And so indeed it is. Having picked it up, I could not put it down and I finished it with a deep sense of outrage. Subsequently, I lent it to the noble Lord, Lord Butler of Brockwell, who described it as the best thriller he had ever read, and now I have it on loan to the noble Baroness, Lady Chakrabarti The Criminal Finances Act earlier this year dealt only with the material proceeds of that sort of appalling misconduct. As has been explained, United States legislation, which Mr Browder secured previously, prohibited—and surely rightly—the entry of certain individuals to the United States. It is essentially to achieve that that the Bill today is directed, and I applaud it, but there are two questions that are worth raising First, Clause 1(1) of the Bill provides for the banning on entry, and so forth, in respect of a third-country national, "who is known to be, or to have been, involved in", the dreadful conduct in question. I would suggest that "known" is a pretty high test. What standard of proof is intended to apply? In what state of mind must the Secretary of State or immigration officer be before he can act as the Bill envisages? For what it is worth—and it may not be much—in a judgment that I gave in the Supreme Court in 2010, in the case of JS (Sri Lanka) v the Home Secretary, on the correct approach to deciding whether an asylum seeker was barred from refugee status as a war criminal under Article 1F(a) of the 1951 convention, we were concerned with the test of whether, "there are serious reasons for considering", the applicant to be a war criminal. In considering what that involved, we concluded that, clearly, a lower standard is required than would be applicable to an actual war crimes trial, but that there was a higher test for exclusion than, say, having "reasonable grounds for suspecting". We decided that the word "considering" approximated rather to "believing" than to "suspecting" I note from the short but helpful Library briefing on the Bill that the Home Office guidance on the approach to Immigration Rule 320(19), the paragraph that provides for an immigration officer to refuse entry if he, "deems the exclusion of the person from the United Kingdom to be conducive to the public good", is that entry must be refused if the person is suspected of crimes against humanity. It is one thing to refuse entry clearance or leave to enter or leave to remain on the basis of mere suspicion, as the guidance suggests, but it is perhaps another thing, as the Bill envisages, to cancel or curtail an existing leave on that basis. At this stage, all I would say is that further thought may need to be given to the word "known", which is perhaps too exacting a demand to make of the immigration officer and Secretary of State; it may need amendment in Committee Secondly, over the past few months, the House has devoted considerable time to the Sanctions and Anti-Money Laundering Bill. Knowing of this impending Private Member’s Bill, it has occurred to me from time to time that its objective could possibly have been encompassed within the sanctions provision in this substantially more comprehensive public Bill. The sanctions Bill has just reached Report in the House. Could and should this further Magnitsky provision now be introduced into that Act? At least, the possibility should be considered—unless, of course, it already has been, and for some reason of which I know nothing, it has been rejected. I suggest that thought be given to that. All that said, I repeat my strong support for introducing this further provision into our law, and I wish the Bill a fair wind.