My Lords, I have three amendments in this group: Amendments 101, 110 and 113. Two of these amendments, to which the noble Lord, Lord Anderson, has added his name, are about the meaning of words. They are words to which the noble Baroness, Lady Ludford, drew attention in her opening remarks on this group.
Amendment 101 directs attention to the definition in Clause 38(3) of the serious harm condition. The Bill says that this requirement will be satisfied if the person faces a
“real, imminent and foreseeable risk of serious and irreversible harm if removed from the United Kingdom … to the country … specified in the third country removal notice”.
Amendment 113 directs attention to the requirement in Clause 41(5) that a serious harm suspensive claim must
“contain compelling evidence that the serious harm condition is met in relation to the person”
making the claim. I am grateful to the noble Baroness, Lady Chakrabarti, for drawing our attention to the reference in the JCHR report to the word “compelling” and its consequences.
So far as
“real, imminent and foreseeable risk”
is concerned, we suggest that that phraseology is unnecessarily complex. If a risk is imminent and foreseeable then one would say it must be a real risk and not a hypothetical one. Conversely, if the risk is real then it would follow that that is because it is imminent and foreseeable. These words are unnecessarily complex. It would be better, we suggest, to delete the words “imminent and foreseeable” or, alternatively, delete the word “real”. The real question is whether the word “real” adds anything if the other two words are satisfied.
As for the word “compelling”, there is an important question in addition to the fundamental point raised in the JCHR report as to what exactly “compelling”, in Clause 41(5), is dealing with. Clause 41(5) is telling the asylum seeker what his or her claim must contain. There are various requirements set out, and the first is that it
“must … contain compelling evidence that the serious harm condition is met”.
The first question is who is to judge that the evidence in that claim is compelling? The clause begins by telling us that the Secretary of State must consider the claim, before the end of the decision period, and make one of the following decisions:
“that the serious harm condition is met … or … that the serious harm condition is not met”.
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The obscurity caused by the fact that that is set out in a separate subsection from subsection (5) is around what standard the Secretary of State is to apply in deciding that the evidence is compelling. That drives straight to the point raised in the JCHR’s report that this is a new, possibly very high standard and, if so, one that would be very difficult to reach. Normally, one would expect the standard in a matter of this kind to be on balance of probabilities. Is the position here that the Government are requiring that the condition be satisfied beyond reasonable doubt? If not, what is the word “compelling” telling us must be satisfied, and who is to form the judgment?
These are important questions to understand how the structure of this particular clause is intended to work. I hope the Minister can explain more fully how the Secretary of State is to apply his mind and whether the standard is, as has been suggested, a very high standard beyond the ordinary one of beyond reasonable doubt. Is it beyond even the standard of beyond reasonable doubt and not just the standard of the balance of probabilities?
The other amendment in this group is Amendment 110, to which the noble Lord, Lord Anderson, has added his name. This has to be read with the list of examples of harm that constitute serious and irreversible harm
for the purposes of the Bill in Clause 38(4). We make no criticism of the examples set out in that subsection, all of which are entirely appropriate for inclusion on this list, and of course they borrow heavily from the European Convention on Human Rights itself. Our concern is directed to the power given to the Secretary of State by Clause 39(1) by regulation to amend Clause 38 to
“make provision about the meaning of ‘serious and irreversible harm’ for the purposes of the Act”.
The words “make provision about” are so wide; they are without any qualification whatever, and that raises serious doubts about the extent of the power and the circumstances in which it might be exercised.
We do not go so far as the JCHR has. We are seeking to qualify the power to at least make it clear that it cannot be exercised in a way to remove from the list any of the examples that are set out in Clause 38(4). We assume that that is not the intention, but it is a possibility because of the wide wording of the provision as it stands. The safer course is to make it absolutely clear that the power cannot be exercised in that way. Perhaps the Minister would be kind enough to give us a little more explanation as to the circumstances in which the power would be exercised and the extent of it. If it is not the intention to remove any of the examples set out in subsection (4), I would have thought that a proviso to make the exact position entirely clear would be perfectly acceptable. That is the point we make in Amendment 110.