Policing and Crime Bill

My Lords, while I understand the aspiration behind the amendment of the noble Earl, Lord Onslow, and what he is trying to achieve, I will resist it on the basis that the provisions of Clause 72 already provide sufficient safeguards to ensure that the return of an individual pursuant to an undertaking is compatible with the person’s fundamental rights. I heard the noble Earl say that there may be some lack of clarity on this issue. I assure him that it does not appear to have caused any difficulty to date and is working relatively clearly and very well. As the clause is drafted, the Home Secretary must refuse to return someone pursuant to an undertaking if their surrender would be incompatible with a person’s human rights or their rights under the refugee convention. The European Convention on Human Rights reflects a clear duty imposed on all public authorities by Section 6 of the Human Rights Act 1998. The purpose of new Section 153D, to be inserted by Clause 72, is to make it absolutely plain that where the Secretary of State reaches the conclusion that to return someone pursuant to an undertaking would be in breach of his duty under the Human Rights Act or the refugee convention, nothing in the preceding provisions of Clause 72 requires him to act in breach of that duty. If the Secretary of State decided to return someone, but as a matter of law that decision would breach the ECHR or the refugee convention, his decision would be unlawful and could successfully be challenged by way of judicial review. I can categorically assure the noble Earl that nothing in new Section 153D seeks to suggest that the decision as to whether return would breach a person’s human rights is a matter for the Minister’s discretion. Whether or not return would breach the ECHR is a question of law and would be reviewed by the courts on that basis. I understand the anxiety of noble Earl, Lord Onslow, but I hope that I have been able to assure him that his concern about the discretion is not well-founded. We were alive to the problem and have sought to apply the salve before it was requested—confident, as we always are, that he would notice if we had failed in our duty.