House of Lords

Monday 4th April 2022 Lords Chamber

Monday 4 April 2022

14:30

Prayers—read by the Lord Bishop of Oxford.

Falkland Islands

Monday 4th April 2022 Lords Chamber

Question

14:36

Asked by

[Lord Trefgarne]

To ask Her Majesty’s Government what their policy is towards the future of the Falkland Islands; and whether their policy will be determined by the views and wishes of the Falkland Islanders.

[The Minister of State, Department for the Environment, Food and Rural Affairs and Foreign, Commonwealth and Development Office (Lord Goldsmith of Richmond Park) (Con)]

My Lords, the future of the Falkland Islands is one that only the people of the Falkland Islands should decide. The United Kingdom’s relationship with the Falkland Islands and the rest of the UK overseas territories is a modern one, based on partnership, shared values and the right of the people to determine their own future. As evidenced by the overwhelming result of the 2013 referendum, the people of the Falkland Islands wish to retain their status as a self-governing UK overseas territory. The UK will always support the Falkland Islanders.

[Lord Trefgarne (Con)]

My Lords, I am grateful to my noble friend. Should we not now recall the conflict of 1982 and, above all, the 253 British personnel who gave their lives on that occasion, including 22 from HMS “Ardent”, commanded by the then Commander Alan West?

[Lord Goldsmith of Richmond Park (Con)]

My Lords, in this poignant anniversary year we will continue to defend the Falkland Islanders’ democratic rights and celebrate the modern and diverse community they have built. We remember all those who lost their lives in the conflict, and those still affected to this day. These memories are an important reminder of the long shadow the conflict casts and we remain committed to working with veterans’ organisations on both sides.

[Lord West of Spithead (Lab)]

My Lords, I thank the noble Lord, Lord Trefgarne, for his kind words. Forty years ago this week, a task force sailed to the South Atlantic. Within about 12 weeks, it had managed to expel the Argentine forces, capture the others and retake the islands. It was an incredible military achievement, even though it was nip and tuck at times. The message that had been given to the Argentines by cuts to our defence forces made them think they could do something—and we could do this only because we had not yet made the planned cuts. In the context of what is going on in Ukraine, we can see that oppressive, dictatorial regimes that invade close neighbours take note of defence forces. Will the Minister go back to Cabinet and point out that it is not Ukraine’s health or social services that are keeping the people going in their bravery; it is their military forces? Nothing extra has yet been spent on our Armed Forces and, in the final analysis, no matter how good all the other things are in your country, if you do not have those then I am afraid you suffer.

[Lord Goldsmith of Richmond Park (Con)]

The noble Lord makes an extremely important point. It is worth saying, as many have said in the past few weeks, that the bravery being shown by the people of Ukraine, playing out day after day, is staggering. I am pleased also that one thing that has enabled Ukraine to achieve what we hope is success—it is hard to know exactly what is going on—is the contributions made by this Government. That point was made emphatically yesterday by Ukraine’s President. On the Falkland Islands specifically, as noble Lords would expect, we conduct regular assessments of any military threats to the Falklands on a routine basis. We are always aware of the need to retain appropriate levels of defensive capabilities.

[Lord Purvis of Tweed (LD)]

My Lords, I agree with noble Lords that this is the appropriate time to honour the 255 British deaths, the 649 Argentinian deaths and the three Falkland Islanders who also died during the conflict. But, as the noble Lord has rightly indicated, we need to be very wary. Has the Minister seen the article by the Argentinian Foreign Minister stating that, although they wish to maintain good, strong diplomatic and trading relationships, they were seeking to make linkage between sovereignty of people who are in the Falkland Islands and our relationship, going forward. Will the Minister put on record that we will not link the sovereignty and the choice of those people with the good relations we wish to seek to have with Argentina?

[Lord Goldsmith of Richmond Park (Con)]

I did see the op-ed, and obviously that has been shared around the FCDO and Government. But the reality is that this is not a bilateral issue between the UK—or, indeed, anyone—to be negotiated between our two countries. This is about the islanders’ wishes, and those wishes are paramount.

I mentioned in my opening remarks the referendum: I cannot think of a single referendum in the history of referenda where the result has been as emphatic, with nearly 100% turnout and nearly 100% support. It is very clear what the Falkland Islanders want, and it is our duty to ensure that that is what they get.

[Lord Cormack (Con)]

My Lords, I endorse that entirely. Should we not take this opportunity to salute the memory of three exemplary parliamentarians: the Prime Minister at the time, Margaret Thatcher, for the courageous leadership she gave; Michael Foot, Leader of the Opposition, for ensuring that the other place was as united as possible by his support for the task force; and the noble Lord, Lord Carrington, who adorned this House for so long and whose resignation was one of the most honourable in British history?

[Lord Goldsmith of Richmond Park (Con)]

I am very, very happy to enthusiastically echo and support those remarks. I particularly point to the support that Margaret Thatcher received from the Opposition at the time, which made all the difference. It really showed the importance of politicians speaking with one voice in the face of an obvious and unambiguous threat.

[Lord Collins of Highbury (Lab)]

My Lords, my noble friend mentioned the heroic efforts of the military forces, and other noble Lords have mentioned that, but Help for Heroes recently warned that, 40 years on, many veterans of the Falklands War are still suffering from mental health problems resulting from their involvement in the conflict. Could the Minister tell us what the Foreign, Commonwealth and Development Office actions have been in support of the Government’s veterans strategy action plan—could we have a little bit more detail?

[Lord Goldsmith of Richmond Park (Con)]

The noble Lord can certainly have more detail, but I am going to have to follow up this discussion with a letter providing that detail—not least since most of the actions that are taken in relation to our veterans, whether from the Falklands or elsewhere, are the responsibility of other departments.

[Lord McDonald of Salford (CB)]

In the 40 years since the victory in the South Atlantic, the UK has monitored the state of preparedness of Argentinian forces much more closely. Could the Minister please tell the House when was the last time Her Majesty’s Government reviewed the state of preparedness of British forces in the Falkland Islands in reaction to that changed threat—and, if he cannot tell us, could he please write?

[Lord Goldsmith of Richmond Park (Con)]

I cannot provide a date, but I can say that the MoD conducts routine and regular assessments of any threats to the Falklands and it is our policy that we must retain appropriate levels of defensive capabilities at all times. To my knowledge, that is the case: that is certainly the position of the Government.

[Lord Hannan of Kingsclere (Con)]

My Lords, I very much welcome the Minister’s confirmation that the wishes of local people should be paramount in determining the future of the Falkland Islands. Is this a principle that we should extend more widely so that, in territorial disputes across Africa, Asia and elsewhere, we try and give paramountcy to what local people want? That is not to say other claims are meaningless—that geography and history have no force—but that the world would be a better place if people lived in units where they felt enough in common one with another to accept government from each other’s hands?

[Lord Goldsmith of Richmond Park (Con)]

I strongly agree with the noble Lord. I think that the position of the UK Government, and our historic position, in relation to countries that are part of our family is a model for the world to follow. Where those arrangements are based on genuine consent, I think the relationship will always be a happier one. It is a model that many other countries would do well to learn from.

[Viscount Waverley (CB)]

My Lords, individual overseas territories have differing needs. Nevertheless, there are similarities, which the Minister, along with others who have contributed today, has identified in his remarks. But what is the status of the current negotiations regarding Gibraltar between the Governments of the United Kingdom, Spain and Gibraltar, and the European Union? If there is an agreement, will it need to be ratified by the respective legislatures?

[Lord Goldsmith of Richmond Park (Con)]

My Lords, I thank the noble Viscount for his question; I will follow up with a letter. This issue is obviously associated with but not directly relevant to this Question. I am confident that an update will be provided in due course, but I just cannot tell him when.

[Baroness Symons of Vernham Dean (Lab)]

My Lords, do the Minister’s remarks about the prevalence and importance of local people also apply to the future of Hong Kong?

[Lord Goldsmith of Richmond Park (Con)]

I think I caught the first part of the question; it was a follow-up to the noble Lord’s question about local democracy. The reality is that Hong Kong is in a very difficult position, under the control of a gigantic state whose intentions towards the people of Hong Kong appear less than benign. It is the view of the British Government, as it is my view, that local democracy should prevail and that countries, or even regions, should be able to determine their own future in the way that our policy applies to the Falkland Islands—but it is not something that is entirely in our control.

Ethiopia

Monday 4th April 2022 Lords Chamber

Question

14:47

Asked by

[Baroness Anelay of St Johns]

To ask Her Majesty’s Government what assessment they have made of the humanitarian situation in Ethiopia.

[The Minister of State, Foreign, Commonwealth and Development Office (Lord Ahmad of Wimbledon) (Con)]

My Lords, the humanitarian situation in Ethiopia, from north to south, is grave and is worsening. This year, nearly 30 million people throughout the country will require life-saving aid. In the northern regions, conflict has affected more than 9 million people, including 5.2 million people in Tigray, where humanitarian access is negligible. Deteriorating drought conditions in southern and eastern regions are impacting nearly 7 million people.

[Baroness Anelay of St Johns (Con)]

My Lords, can my noble friend update the House specifically on the significant increase in the cost of delivering and buying food aid for Ethiopia, as a result of Russia’s illegal invasion of Ukraine—a country that has been a significant exporter of both wheat and pulses to Ethiopia via the humanitarian aid system? Can my noble friend say what work is being done with international friends in order to ensure that food can still survive that huge increase in costs? I understand, for example, that the UN World Food Programme says that it will be over $600 million short over the next six months as a result of these problems.

[Lord Ahmad of Wimbledon (Con)]

My Lords, I agree with my noble friend. Since November 2020, the UK has allocated more than £86 million in response to the humanitarian crisis in Ethiopia, but this was in advance of the situation in Ukraine—and it is not just conflict zones that are being impacted. This morning, I had a meeting with the Tunisian ambassador, who outlined the challenge being felt by the economy of Tunisia, and indeed economies across the world, because of the situation in Ukraine. Ukraine’s own Foreign Minister said, “We were the bread basket for so much of the world and now we are having to ask for support ourselves”.

In answer to my noble friend’s second question, we have been working very closely with international partners, particularly the World Food Programme. My noble friend will be aware that, over the weekend, a humanitarian convoy finally reached Tigray for the first time. This is the first time that this has happened and that overland access has been possible in nearly four months. We will continue to ensure that resourcing, including food aid, is prioritised.

[Lord Alton of Liverpool (CB)]

My Lords, is there not a grave danger that, under the cover of darkness provided by the situation in Ukraine, the world could forget what is happening in Tigray? For 17 months there has been a conflict there, which, as the noble Lord has said, has led to the mass starvation of almost 7 million people, where blockades have been used to starve people to death and where rape has been used as a weapon of war. Does the Minister agree that these are war crimes and that his own department should be collecting the evidence? Will he give an assurance that we will bring to justice those who are responsible for these heinous crimes?

[Lord Ahmad of Wimbledon (Con)]

My Lords, on the noble Lord’s final point I can give the assurance that we will do all that we can to bring these perpetrators to account, irrespective of where the conflict is, and Tigray is no exception. We have been in the region working with key partners—including, for example, experts on gathering information directly from survivors of sexual violence—to ensure that we can start building the evidence base. As the noble Lord is aware, in Ukraine we are working very closely with the ICC. But I can give the more general assurance that, notwithstanding Ukraine, we are not taking our eye off the ball. We welcome the recent inroads and indeed the truce called in Yemen, and, as the noble Lord knows, we have stood firm in our contribution to the people of Afghanistan through again endorsing £280 million in the next financial year in support for the people of Afghanistan.

[Lord Anderson of Swansea (Lab)]

Does the Minister not agree that were it not for the crisis in Ukraine, the humanitarian crisis in Tigray and in the rest of Ethiopia, with the famine and drought, would be at the forefront of world consideration today? Does he also agree that the perhaps the only glimmer of hope in this tragic situation is the initiative of the AU and the ceasefire? Is that ceasefire holding, and how can we build on the initiative?

[Lord Ahmad of Wimbledon (Con)]

My Lords, as the noble Lord rightly points out, the humanitarian ceasefire came into being on 26 March. As I said in my earlier response to my noble friend Lady Anelay, we have now seen the impact of that in that we have seen all the regions, including the authorities in Ethiopia, in Afar and Tigray, respecting that humanitarian ceasefire and allowing aid to get through to the people who need it most. I accept the point that the noble Lord makes about Ukraine but I hope I have provided a degree of reassurance that we are keeping focused not just on Ukraine but on other humanitarian situations across the world.

[Lord Purvis of Tweed (LD)]

The Minister knows that I was recently in neighbouring Sudan, where there are very many people in desperate need who have fled Tigray. Given the increased need for humanitarian assistance and in the context of the brief window of the ceasefire, will he please give an assurance that not one penny of extra assistance to Ukraine, which is justified, will be diverted from humanitarian assistance elsewhere? According to the FCDO website this afternoon, UK development support for Ethiopia in 2021 was £342 million but that is due to fall to just £40.5 million in 2023. Is it not unconscionable, given the additional need that is supported for Ethiopia, that there will be an 88% decrease in UK support, and will the Minister please put in place emergency procedures to see this reversed?

[Lord Ahmad of Wimbledon (Con)]

My Lords, as the noble Lord himself acknowledges, humanitarian crises and human suffering cannot be prioritised in any shape or form, and I assure him that our officials and the ministerial team are all very seized of the situation across the globe. While we remain focused on the situation in Ukraine and the abhorrent crimes which are taking place—indeed, we have a Private Notice Question on that today—we nevertheless remain focused on supporting those who are most in need, and retain commitments in support of Yemen and to address the crisis in Ethiopia, particularly in support of Tigray, and, as I said earlier, in places such as Afghanistan.

[Lord Polak (Con)]

My Lords, to help alleviate the humanitarian situation in landlocked Ethiopia, the port of Berbera in Somaliland is important—I am grateful that the UK Government are working to build up that port. After the destruction in war of Hargeisa in Somaliland some 30 years ago, there was a devastating fire there last weekend. I am grateful for the Prime Minister and Foreign Secretary’s tweets but what practical help has the FCDO given, and will it give, to rebuild Hargeisa?

[Lord Ahmad of Wimbledon (Con)]

My Lords, I pay tribute to my noble friend’s work within Somaliland; I know that he visited the region recently. My right honourable friends the Prime Minister and the Foreign Secretary have made public statements in this respect and we are assessing the impact of this fire and the damage it has done to infrastructure. We also recognise, as my noble friend said, the importance of access through that particular point.

[Lord Collins of Highbury (Lab)]

I welcome the Minister’s response to the Question asked by the noble Baroness, Lady Anelay, particularly the news about a convoy getting through, but the WFP has told us that funding shortages have forced ration cuts for some 4 million people, including over 700,000 refugees. Can the Minister reassure us today, in response to the question asked by the noble Lord, Lord Purvis, that we will maintain the level of support and funding for this crisis, which will get worse, and that we will work with allies to ensure that the funding shortfall is met?

[Lord Ahmad of Wimbledon (Con)]

My Lords, we are looking at all elements of funding over a three-year period. The situation in Ukraine has meant that we are reviewing all our funding support but, as I have indicated, we have stood by our commitment to the people of Afghanistan. That is the right way to move forward. On the specific issue of Ethiopia, as I have indicated, the humanitarian convoy reached Tigray, but of those 20 trucks, just under half the contents, including fuel and humanitarian aid, came directly through British support. Tigray, and the wider situation in Ethiopia, is an important priority, and once I have the full details of our funding package, I will share them with noble Lords.

[Viscount Waverley (CB)]

Somalia and Somaliland have been mentioned. Is the Minister aware that those two countries share a common three-letter code designation? I do not know whether it is in the Minister’s brief but when he is at the UN, he may wish to draw attention to that point, because there is a difference between the two areas. Is he in discussion with the Horn of Africa peace initiative of the African Union? If he is, can he say how that is going and what the union can do to help with the process?

[Lord Ahmad of Wimbledon (Con)]

My Lords, we are working very closely with the African Union. As the noble Viscount may be aware, we have a special envoy to the Horn of Africa who is looking at the situation strategically, not just how we can promote all our interests but specifically how we can support the work of the African Union, complementing what we are doing bilaterally and through the UN.

Water Companies: Duties and Accountability

Monday 4th April 2022 Lords Chamber

Question

14:57

Asked by

[Lord Sikka]

To ask Her Majesty’s Government what consideration they have given to changing water companies’ (1) duties, and (2) accountability.

[The Parliamentary Under-Secretary of State, Department for Environment, Food and Rural Affairs (Lord Benyon) (Con)]

My Lords, this Government have made it clear that improving water quality is a priority. We have taken significant steps to deliver this, including introducing new duties for water companies through the Environment Act: to modernise water resource planning, reduce harm from storm overflow discharges and make drainage planning statutory. Companies’ licences now require them to meet Ofwat’s board principles to ensure accountability. We will not hesitate to go further if we do not see the improvements that we expect.

[Lord Sikka (Lab)]

My Lords, I am grateful to the Minister for his reply. He may be aware that on 1 March 2018, Environment Secretary Michael Gove said that water companies had

“avoided paying taxes … rewarded the already well-off, kept charges higher than they needed to be and allowed leaks, pollution and other failures to persist”.

Some 49 months later, water companies are still dodging taxes, ripping off customers and polluting rivers. Can the Minister give a date by which these abuses will be completely stopped?

[Lord Benyon (Con)]

The noble Lord will no doubt be pleased by the recent statutory policy statement by Ofwat. It is through the regulator that we ensure that companies perform well, that we do not reward bad behaviour, that we reflect proper accountability for such things as remuneration, and that where bad behaviour is found out, companies receive fines. Those fines do not hit the customer but hit those who would otherwise have received bonuses, and shareholders.

[Baroness Jones of Moulsecoomb (GP)]

My Lords, there are so many ways to ask these questions of the Government, but I turn to an expert in this field, Feargal Sharkey. He tells me that there has not been a single reservoir built since 2010 and, as far as he can tell, not since privatisation. Around London, the last one built was the Queen Mother reservoir back in 1976. The National Audit Office is calculating that by 2050 England will have a shortfall of some 4 billion litres of water per day. How will Defra fix that?

[Lord Benyon (Con)]

One of the measures that we seek to take through the five-year AMP process is to get water companies to look 25 years ahead at their water demands. There is a need for new reservoirs. One could well be built in the upper reaches of the Thames, and I recently visited an existing reservoir in East Anglia that had been increased in size. This all has to be taken into account, particularly in determining how we encourage water companies to move water from one area to another to reflect demand.

[Lord McLoughlin (Con)]

My Lords, when Carsington reservoir opened in 1992, it initially met with great opposition, but it is now very much part of the landscape. It is well used and a great provider of natural resources for the people in the Midlands.

[Lord Benyon (Con)]

My noble friend is absolutely right. Like any development, it has its opponents locally, and who can do anything but feel sorry for those whose lives are disrupted by it? However, a water reservoir such as that provides not only the benefit of water resources but a massive benefit in terms of well-being, leisure and the environment.

[Baroness Bakewell of Hardington Mandeville (LD)]

My Lords, in 2021, the leading water and sewerage utility companies had very high revenues, with Thames Water recording £2.1 billion. Over the last 10 years, water companies have paid out £13.4 billion in dividends and directors’ pay. Given the number of illegal sewage discharges into our streams, waterways and seas, is it not time that the Government insisted that water companies clean up their act immediately and not in the future?

[Lord Benyon (Con)]

My Lords, we are about to embark on the largest investment in water infrastructure that any Government have ever overseen. This is at a cost, but we can delay the impact of that cost on the customer until 2025. After that, the cost, on average, will be about £12.50 on each bill. If people want more to be spent, however, they must understand that this will be reflected in the cost to customers. We have to be absolutely honest with customers: we are going to spend more now and in the coming years, and rightly so, to eliminate the grotesque image that we have all seen of sewage going into our rivers.

[Lord Hylton (CB)]

My Lords, coming back to sewage discharge, I welcome what the Minister has said about the accountability of water companies. However, will the Government make it obligatory on the companies to have emergency storage capacity to cope with such things as sudden cloudbursts and other emergencies?

[Lord Benyon (Con)]

We are asking water companies to make all kinds of provision that will address the points the noble Lord has raised. Storm waters have flooded into our rivers for hundreds of years. The difference today is that there are areas of high population dealing with infrastructure that is seeking to catch up. That is what we are investing in. Through the very strict targets we have introduced in the Environment Act, through measures that our regulators are imposing on water companies, and through the delivery of record fines for water companies when they get this wrong, we hope to see—indeed, we insist that there will be—a dramatic reduction in storm overflows.

[Lord Browne of Ladyton (Lab)]

Throughout the many years that these very companies have been discharging raw sewage into our rivers, their customers have, in contractual terms, been paying them to treat that sewage and release it safely. Surely, what they have been doing is not only a breach of contract, but fraud. They knew full well what they were doing but were charging people otherwise. Surely, accountability requires compensation for people who paid them to treat and dispose of this sewage properly, and an investigation into whether the directors and executives, who knew what they were doing, were behaving fraudulently.

[Lord Benyon (Con)]

The noble Lord will be pleased, therefore, with the fine of £100 million or thereabouts that Southern Water has recently received, which was paid back to customers in exactly the way he suggests.

[Baroness Hayman of Ullock (Lab)]

My Lords, the Minister referred earlier to the strategic policy statement that was laid before Parliament back in February, in which the Government urged Ofwat to challenge water companies on how to be more ambitious in protecting the environment and deliver the resilient and sustainable water supply we need. He also mentioned investment, so can he explain why there is no direct guidance on the investment gaps in our failing and ageing infrastructure and how this will be addressed through the price review?

[Lord Benyon (Con)]

In the existing price review there is a considerable uplift in investment in water infrastructure. Going forward, through the strategic policy statement and other measures we are imposing, we want to see a dramatic change in the way in which water companies operate, which has allowed a large number of storm overflows to go into our rivers. We all find that reprehensible and we want it stopped.

[Lord Lee of Trafford (LD)]

My Lords, I do not believe that when the earlier Government embarked on the privatisation programme, they ever imagined that so many of our utilities would end up being owned by overseas bodies. Do the Government ever have a dialogue with the overseas owners of some of our water companies, as distinct from with their professional managers or boards?

[Lord Benyon (Con)]

Some years ago, when I was the Minister with responsibility for water and brought in changes to the competition rules, I had exactly that discussion. My colleagues in Defra have frequent discussions with investors of all sorts. However, we have to recognise that overseas sovereign wealth funds and the pension funds that pay our pensions, for example, like the regulated utility sector because it offers a clear yield on their returns. We want that to continue because that is what is paying for this infrastructure improvement.

[The Lord Speaker (Lord McFall of Alcluith)]

My Lords, we have a remote contribution from the noble Lord, Lord Campbell-Savours.

[Lord Campbell-Savours (Lab) [V]]

My Lords, as to duties on flood relief, is the problem not the Environment Agency’s confused remit and influence over water companies’ flood relief expenditure? It conflicts with agency duties and responsibility for environment and habitat protection; you cannot wear both hats. Why not legislate for a new flood relief enforcement authority, separate from the agency, which, under a new community safety remit, has the power to enforce water company expenditure on water company supply-related flood relief water management programmes?

[Lord Benyon (Con)]

I thank the noble Lord for his question; he makes an interesting point. Looking at the architecture of our arm’s-length bodies, you perhaps would not have started from here. If we are to reform organisations such as the Environment Agency, it would be a great mistake not to link upstream environmental actions with the bricks and mortar and the steel and concrete of flood relief and other measures. It needs to be a coherent, cohesive reform if it happens.

Live Facial Recognition: Police Guidance

Monday 4th April 2022 Lords Chamber

Question

15:08

Asked by

[Lord Clement-Jones]

To ask Her Majesty’s Government what assessment they have made of the new College of Policing guidance on live facial recognition.

[The Minister of State, Home Office (Baroness Williams of Trafford) (Con)]

My Lords, facial recognition is an important public safety tool that helps the police to identify and eliminate suspects more quickly and accurately. The Government welcome the College of Policing’s national guidance, which responds to a recommendation in the Bridges v South Wales Police judgment.

[Lord Clement-Jones (LD)]

My Lords, despite committing to a lawful, ethical approach, the guidance gives carte blanche to the use of live and retrospective facial recognition, potentially allowing innocent victims and witnesses to be swept on to police watch-lists. This is without any legislation or parliamentary or other oversight, such as that recently recommended by the Justice and Home Affairs Committee, chaired by my noble friend Lady Hamwee. Are we not now sleep-walking into a surveillance society, and is it not now time for a moratorium on this technology, pending a review?

[Baroness Williams of Trafford (Con)]

I disagree with everything that the noble Lord has said. I think every police force in the country uses retrospective facial recognition. Watch-lists are deleted upon use at a deployment, so there is no issue regarding ongoing data protection. Importantly, just as CCTV and retrospective recognition are still used to detect criminals, missing persons and vulnerable people, so is the application of LFR.

[Baroness Chakrabarti (Lab)]

My Lords, I refer the House to my membership of the Justice and Home Affairs Committee, whose pertinent report of last week has been referred to. Given the intrusive nature and racially discriminatory potential of this technology, why does the Minister not agree that legislation would be preferable to the police writing their own guidance, which some of us find, in this case, to be permissive and wholly unsatisfactory?

[Baroness Williams of Trafford (Con)]

There already is a legal framework. In terms of bias, I quote from the US National Institute of Standards and Technology. It found that NEC, which is the technology that the police use, provided

“algorithms for which false positive differentials are undetectable”

and that the algorithm

“is on many measures, the most accurate we have evaluated”.

It is for the police, within the legal framework, to decide how and in what situation to deploy this technology.

[The Lord Bishop of Oxford]

My Lords, I declare an interest as a former board member of the Centre for Data Ethics and Innovation. I wonder if the Minister would comment on the vital importance of establishing public trust and confidence in the deployment of FRT and indeed any new technology, especially in such a sensitive area as policing. A range of concerns have been raised about rapid deployment, governance and bias by the CDEI, the European Union and the makers of popular documentaries. Yet, in the face of this, the Met and South Wales Police have both announced a ramping up of the use of FRT. Does the Minister agree that it is time to slow this down and for urgent parliamentary scrutiny and better governance of the police’s use of facial recognition technology?

[Baroness Williams of Trafford (Con)]

I do not think we need to slow it down—quite the contrary. It is important that this is done in a clear way: that the police explain why, who and where they are using their deployments. That must be explained by the police. I think this has great potential for good, and so I would not agree with the right reverend Prelate.

[Lord Sandhurst (Con)]

My Lords, I am sorry to press the Minister, but in the light of the forthcoming regulations that are going to be made in respect of non-crime hate speech, is not facial recognition likewise so important that it should not be left to mere guidance? Is it not time now for the College of Policing to be put on a statutory basis, and going forward, for facial recognition, like non-crime hate speech, to be made subject to regulations approved under the affirmative procedure?

[Baroness Williams of Trafford (Con)]

I disagree with my noble friend, because it is not left to guidance. Where guidance comes in is in the deployment. There is a legal basis on which to deploy, using powers including common-law powers. It was on the back of the court judgment that it was recommended that its use be clarified: the when and where of the use of LFR.

[Lord Hogan-Howe (CB)]

My Lords, I generally support the extension of facial recognition technology, although I take the point made by the noble Lord, Lord Clement-Jones, that it needs serious consideration. Technology is moving forward so fast that I think it is hard for all of us keep track of it. The three principles that the Minister might agree should underpin that are transparency of use, accountability about its use and that people should have a remedy. If things are done wrong, they should be able to check to see what they can do about it.

But the benefits are pretty outstanding. I know that, post the riots of 2011, we had to deploy 800 officers to look at 250,000 hours of rioters on CCTV footage. This allowed us to arrest 5,500 people over 18 months, but it took us 800 people. There has to be a smarter way of doing that. That would have been a retrospective use. Therefore, does the Minister agree that careful improvements in the future are wise, and that we should not stop, as the noble Lord, Lord Clement-Jones, suggested, the use of it altogether?

[Baroness Williams of Trafford (Con)]

I totally agree with the noble Lord. The legal framework in which it should operate is, A, for a policing purpose, B, where it is necessary and, C, where it is proportionate and fair. I think that pretty much accords with what the noble Lord said.

[The Lord Speaker (Lord McFall of Alcluith)]

The noble Lord, Lord Strasburger, will now contribute remotely.

[Lord Strasburger (LD) [V]]

My Lords, this technology is used by the Chinese Government to micro-manage the lives of its citizens, so its use here needs strict rules and effective oversight. In the absence of legislation, the police have tried to regulate themselves by writing their own rules, but these are so vague that almost anything goes: targeting people who “may cause harm”, whatever that means. When will the Government do their job and legislate to control the risks of this technology?

[Baroness Williams of Trafford (Con)]

My Lords, I have outlined the conditions in which it should be used. To compare its use with how China looks at its people is really taking a leap forward. As I have just pointed out, I think that its use when fair, proportionate and for a policing purpose is absolutely reasonable.

[Lord Rosser (Lab)]

My Lords, the new guidance acknowledges long-running concerns around algorithmic bias. Forces are rightly required to identify and mitigate against bias but doing so requires expertise and, as a result, additional costs. I have two questions: first, what steps are the Government taking to ensure that forces across the country have access to the resources they need to uphold these new elements of the public sector equality duty? Secondly, which independent body or individual has oversight powers to ensure that facial recognition powers are used appropriately by police forces and not inappropriately or for inappropriate purposes?

[Baroness Williams of Trafford (Con)]

The Bridges case tested this; it went to the courts. As the noble Lord says, it is absolutely important that the police comply with the public sector equality duty to maintain that public confidence. There have been various tests for evidence of bias; SWP and the Met have found no evidence of bias in their algorithms.

[Baroness Fox of Buckley (Non-Afl)]

My Lords, we should remember that the reassurances from the Minister fall after we had a very lively debate in this House about the College of Policing’s guidance on non-crime hate incidents. Due to the campaigns of groups like Fair Cop, Free Speech Union and Big Brother Watch, the powers have now been rolled back; they were being abused and that was recognised. Is the Minister in any way worried about enabling guidance that gives the police huge powers to survey and criminalise non-crime harms of any sort, hate or otherwise? Secondly, the number of live facial recognition watchlists has gone up from 42 in 2017 to 5,000 now. Is that overreach, success or abuse? Who decides, when on those watchlists will be victims or witnesses?

[Baroness Williams of Trafford (Con)]

My Lords, I reassure the noble Baroness that the people who can be on watchlists include those wanted by the courts or subject to bail conditions or other restrictions that would be breached if they were at that location, as well as other suspects; and they may indeed include vulnerable people. If my relative was missing and I could avail of this technology, I would be very grateful for its use.

Ukraine: War Crimes Allegations

Monday 4th April 2022 Lords Chamber

Private Notice Question

15:18

Asked by

[The Lord Bishop of St Albans]

To ask Her Majesty’s Government what steps they are taking to work with international partners to investigate allegations of war crimes following the massacre in Bucha, Ukraine, by Russian Armed Forces.

[The Minister of State, Foreign, Commonwealth and Development Office (Lord Ahmad of Wimbledon) (Con)]

My Lords, we were all horrified, as we are now, by seeing evidence of appalling acts by Russian forces in the Ukrainian city of Bucha. Russia’s alleged indiscriminate attacks against civilians during this illegal invasion must be investigated as war crimes. We will fully support any investigations by the International Criminal Court, and we will not rest until those responsible for these atrocities have faced justice. The international community must continue to provide Ukraine with humanitarian and military support while stepping up sanctions to cut off funding for Mr Putin’s war machine.

[The Lord Bishop of St Albans]

My Lords, reports of atrocities coming out of Bucha must be investigated urgently. I welcome Her Majesty’s Government’s support for the war crimes investigation at the ICC, but what conversations have the Government had with our partners about an appropriate response should the ICC make a preliminary finding that war crimes have indeed been committed? What more can we do immediately not only to open up more humanitarian corridors but to ensure that they are protected, to get more people out and stop further atrocities taking place?

[Lord Ahmad of Wimbledon (Con)]

My Lords, on the right reverend Prelate’s second question, humanitarian corridors are being negotiated primarily between Ukraine and Russia, but equally it is Russia that is impeding those very corridors. I have seen myself through a visit to Poland—indeed, my right honourable friend is travelling to Poland today—the bravery of the people on the ground who are nevertheless providing humanitarian support and access into Ukraine. We are working very closely with the Ukrainian Government in that respect. On the issue of accountability and working with the ICC, the right reverend Prelate may know that we led a coalition of countries that has now secured the support of 40 other countries in support of the ICC investigation into what is under way in Ukraine, to investigate it fully. We are in close contact with the ICC prosecutor and are providing technical and financial support, and indeed professional support through the recent appointment of Sir Howard Morrison, in supporting the Ukrainian Government’s effort in gathering evidence.

[Lord Collins of Highbury (Lab)]

My Lords, Dmytro Kuleba called yesterday for a special mission from the ICC and other international bodies. What is the Government’s assessment of a mission going to Bucha to ensure that evidence is gathered? What assessment has the Minister given to the calls for a special tribunal to prosecute Putin for these outrageous war crimes?

[Lord Ahmad of Wimbledon (Con)]

My Lords, on the noble Lord’s first point, my right honourable friend the Foreign Secretary will be meeting Foreign Minister Kuleba. As the noble Lord knows, we are in close and almost daily contact with the Ukrainian Government, including the Foreign Minister. They will be talking specifically to that very point, among other areas that the noble Lord has raised. On the issue of a new special criminal tribunal for Ukraine, as I have indicated, the UK has led efforts to refer the situation in Ukraine to the ICC prosecutor. That is why, certainly at this time, we are focusing our energy, assistance and resources in support of the ICC prosecutor’s investigation. As the noble Lord will be aware, the ICC prosecutor has himself visited Ukraine in pursuit of this objective.

[Lord Purvis of Tweed (LD)]

My Lords, these horrific crimes are being perpetrated by units of the Russian military that we are aware of and mercenary groups that we are also aware of. While of course support for the ICC is vital, that will take time, but UK legislation can be used to send very strong signals that this activity is in breach of the Terrorism Act 2000, specifically its fifth factor to be considered, which is:

“the need to support other members of the international community in the global fight against terrorism.”

There is no doubt that these mercenary groups and military units are acting now in global terrorism. Will the Minister meet me to discuss the mechanisms of proscription orders against Russian mercenary groups and these specific units so that anyone engaging them will be breaking UK law anywhere in the world because of their extrajudicial characteristics?

[Lord Ahmad of Wimbledon (Con)]

Of course I will be pleased to meet the noble Lord. As I have said right from the start of this conflict, we are working across parties and across your Lordships’ House to bring forward whatever is required. I pay tribute to everyone across both Houses for the speed of the legislation and the reform that was required when it came to sanctions policy. I look forward to engaging with the noble Lord. I am delighted that the Minister of State for the Home Office, my noble friend Lady Williams, is still here; she and I are keeping in very close contact, and if there is further legislation that we can consider, we will be pleased to consider it.

[Lord Hannay of Chiswick (CB)]

My Lords, could the Minister say a little more about what the Government are doing to resource the very welcome appointment of Sir Howard Morrison to assist the Ukrainian Government in pursuing this appalling evidence of crimes? If he cannot say this at the Dispatch Box, could he write a letter, setting out what resources Sir Howard will have and how he will be able to help? Could the Minister also say what progress the prosecutor at the court appears to be making in amassing evidence and what we are doing to provide him with evidence, if we have any?

[Lord Ahmad of Wimbledon (Con)]

My Lords, there is a lot of detail to be shared in answering the noble Lord’s questions. We are certainly working very closely with Sir Howard Morrison, who was appointed by my right honourable friend the Attorney-General in conjunction with the Deputy Prime Minister and Attorney-General of Ukraine. We are working very closely in resourcing and supporting, including with technical and financial support. On the ICC prosecution, we have already allocated an initial £1 million to the ICC investigation to cover some set-up costs. We are meeting the ICC prosecutor regularly in establishing the technical support, and are looking at IT support. The offer that we have given also ranges from police and military analysis to specialist IT help, which is all helping the ICC to collect and preserve evidence. Of course, in the UK, the Met police has set up access and channel points to collect evidence from Ukrainians who are arriving here.

[Lord Anderson of Swansea (Lab)]

My Lords, when the investigations have taken place and conclusions have been reached, will the Government ensure that, by one means or another, these conclusions are passed to certain countries—even Commonwealth countries like India—that are all too ready to give the benefit of any doubt to the Russians in this conflict?

[Lord Ahmad of Wimbledon (Con)]

My Lords, that is why we are working very closely on ensuring that the work of the ICC has as wide a scope as possible. That means also securing the support of a wide range of countries. Indeed, when we first approached the ICC, 30-odd countries were supportive of this; that has now gone up to 40. I hear what the noble Lord says about the wider Commonwealth, and I am sure that, with the CHOGM that will take place in Rwanda in June, this will be one of the issues that will continue to dominate the discussions of the Commonwealth leaders.

[Lord Walney (CB)]

My Lords, does not the evidence that a permanent member of the United Nations Security Council is using the massacre and torture of civilians as a considered military strategy potentially fundamentally undermine that security apparatus? Will the UK work with allies to radically rethink what we can do about our global security governance in the aftermath of these atrocities?

[Lord Ahmad of Wimbledon (Con)]

I totally agree with the noble Lord’s point—this is a fundamental challenge to the order that was established after the Second World War, and it is posed directly by a P5 nuclear state. It has tested and continues to test the very premise of the workings of the United Nations. The appalling and abhorrent nature of it is in not just the conflict and the abuse of the UN system but the fact that even the humanitarian provisions for conflict resolution and humanitarian support for the victims of war are being impeded by Russia. I will be at the UN next week, and this will be part and parcel of the discussions that we have with not just Security Council members but the wider UN family.

[Lord Cormack (Con)]

My Lords, would it be a sensible idea to compile a detailed list of all these documented war crimes and to present it to Russian ambassadors around the world—including London, of course—and to the ambassadors of all those countries that have abstained from UN resolutions?

[Lord Ahmad of Wimbledon (Con)]

My Lords, I hear what my noble friend says but our primary focus, which I believe is right at this time, is to co-ordinate the collection of evidence and to ensure that all countries that can work together are doing so and putting that into a single source of support for the ICC prosecutor. Of course, at a given time, that evidence will be shared, but at this time the immediate priority must be the collection of evidence in a co-ordinated fashion.

[Lord Macdonald of River Glaven (CB)]

Does the Minister agree that the apparent kidnapping, torture and summary execution of the Ukrainian mayor of Motyzhyn, along with the apparent summary execution of her son and husband, is a particularly sinister development and may be a harbinger of even worse crimes to come?

[Lord Ahmad of Wimbledon (Con)]

My Lords, as the Russians pulled back from Bucha and other cities, I, like other noble Lords I am sure, was left speechless by what we saw unravelling on our screens. I have read reports at the FCDO qualifying some of the scenes that we have been seeing on our television screens. This is happening in 2022 in Europe—it is abhorrent and it churns the stomach. Equally, however, it should bring to focus our need to work together, collectively and collaboratively, to ensure that every perpetrator in the Russian regime, whoever they may be, is brought to account.

[Viscount Stansgate (Lab)]

My Lords, precisely because of what the Minister has just said, we should all bear in mind that this is all denied by the Russians on the grounds that it is fake news, there are actors and it is not real. As we consider what is, as the Minister quite rightly says, unfolding on our screens, can this evidence not be presented by the United Kingdom in our capacity as a P5 member of the United Nations Security Council, as other noble Lords have mentioned?

[Lord Ahmad of Wimbledon (Con)]

My Lords, of course, we are sharing and presenting the evidence, but the evidence—indeed, the reality—is being rejected by Russia. It is sometimes said that the evidence, the truth, can be in front of your eyes but you deny it, and that is exactly what the Russians are doing. However, we will be unrelenting in our collaboration and co-ordination to ensure that the perpetrators of these crimes are brought to account.

[Lord Alton of Liverpool (CB)]

My Lords, is the Minister able to enlarge on the statement made by the Prime Minister overnight that we will be sending military and police support to the Hague to help with the investigations that are under way, and that we will be working with our Five Eyes allies to collect evidence as well? Does he recall the question that I put to him last week about inviting Karim Kahn QC, the prosecutor of the ICC, to come here so that we can clarify the difference between the various phrases being used to describe these crimes—they are not genocide, but they are crimes against humanity and war crimes—and the existing mechanisms that there already are, which mean we do not need a new tribunal, because the existing inquiry into Donbass is already under way? Would it not be a good thing for Mr Kahn to come here to brief Members of both Houses?

[Lord Ahmad of Wimbledon (Con)]

My Lords, if Karim Khan is following our debates in Hansard, as he often does, I am sure that he will have seen the noble Lord being consistent in asking the prosecutor to come to the UK. As I have said before, he has a lot on his plate, understandably, but we are working closely with him. On the next opportunity we will—and I will personally, when I next see him—extend that invitation for him to come here to hear what noble Lords, indeed all parliamentarians, have to say on this issue. We are working very closely. The appointment of Sir Howard underlines the importance of close co-ordination. The noble Lord will know that Sir Howard himself was a very distinguished judge at the ICC.

[Lord Hogan-Howe (CB)]

My Lords, does the Minister agree that the publication today of the pictures and name of the colonel named within the latest atrocities is a good development that might start to impact on the behaviour of the troops on the ground now rather than when it is too late? I agree entirely with the Government’s strategy, which is to support the international approach, get investigations started and collect evidence but, importantly, to get investigators on the ground as soon as possible. The images that are coming back clearly show evidence, literally on the ground—both in terms of people, sadly, and in physical terms—which will be lost. The sooner the investigators can safely get in there, the less will be lost and, frankly, the more people will be held to account. Our evidence from Yugoslavia is that the system works; it usually goes right to the top—exactly as it should—but the people on the ground need to be held to account for the murders, rapes and the other atrocities that we are seeing.

[Lord Ahmad of Wimbledon (Con)]

I agree with the noble Lord; he of course speaks with great insight and knowledge on various issues, particularly on investigations of crimes on the ground. The noble Lord, Lord Alton, talked about military and technical support as well as other police support, and I assure the noble Lord that this is the kind of technical support that we are giving to the Ukrainians. I am sure that noble Lords will have seen that President Zelensky himself was visiting Bucha this morning, and with him were experts who are gathering evidence as we speak. We are working absolutely hand in glove with them to provide whatever support they require at this important time.

Business of the House

Monday 4th April 2022 Lords Chamber

Motion on Standing Orders

15:34

Moved by

[Lord Ashton of Hyde]

That Standing Order 44 (No two stages of a Bill to be taken on one day) be dispensed with on Monday 25 April to allow the Elections Bill to be taken through its remaining stages that day and that therefore, in accordance with Standing Order 47 (Amendments on Third Reading), amendments shall not be moved on Third Reading.

[Lord Ashton of Hyde (Con)]

My Lords, on behalf of my noble friend the Leader of the House, I beg to move the Motion standing in her name on the Order Paper.

[Lord Grocott (Lab)]

My Lords, I do not think we should let this Motion pass without at least acknowledging the unusual nature and significance of it. It does two things which affect the rights of all in this House, albeit in respect of one specific Bill. First, it collapses the gap between Report and Third Reading of a Bill, which is there for very good reasons, so that people can reflect on Report and maybe, in exceptional circumstances, bring forward amendments at Third Reading. Secondly—this is more significant—it removes from the House the right to put down amendments at Third Reading.

This is an exceptional state of affairs. It is not unusual for the House to agree to the rapid passage of a Bill through the House, but that is nearly always when the legislation is needed urgently. We should be particularly wary of a decision of this sort on this Bill, because it is a major constitutional Bill. It is not any old Bill, but a major constitutional one which, in many respects, has not had as much scrutiny as many of us would have liked. I am certainly not going to go into the details of the Bill, but it does make voting more difficult, which should be of interest at least to everyone in the Chamber.

I am certain that there must be good reasons why this has happened. I am very sorry that the Leader of the House was called away and is unable to answer on this. That is not because I am making any criticism of the Government Chief Whip—I think Government Chief Whips do splendid jobs, by and large. However, the Leader of the House has a specific responsibility, which is a responsibility to the whole House. This Motion diminishes the rights of the whole House, albeit in the specific way I have described. I am sure that a lot of thought has been given to this, but the Chief Whip—as it is he who is here—should acknowledge that this is a most exceptional set of circumstances. I warn in advance that Governments themselves may live to regret giving up the right to tidy up Bills at Third Reading; this is often a last chance to put things right. I register my disapproval of what is happening, without wishing to take it any further.

[Lord Cormack (Con)]

My Lords, I wish to do the same, because this Bill contains clauses that put an independent body, namely the Electoral Commission, under the control of a Secretary of State. That is an almost unprecedented step and one fraught with danger. I would never wish to see a Secretary of State from a different party having those powers. It is quite wrong to steamroller a Bill of this destructive nature through the House on the eve of Prorogation.

[Lord Hunt of Kings Heath (Lab)]

My Lords, the Government Chief Whip gave the House no explanation as to why this exceptional action should be taken. I do not know why he did not feel it was necessary to inform Members of the reason for this. Is it because there is not time? I put to him that we are due to prorogue on 28 April—he makes an expression, but he has a lot of days to play with to allow legislation to continue to be debated. I do not think it is acceptable to allow this Bill to go through its stages on one day. The noble Lord has many days to play with between 28 April and the Queen’s Speech on 10 May.

[Lord Ashton of Hyde (Con)]

I am grateful to the noble Lord, Lord Grocott, for allowing me to explain why. One of the reasons I did not do so before was because I wanted to hear these questions—of which I was given advanced warning. I take note of what the noble Lord, Lord Grocott, said, as he was a distinguished Chief Whip himself. I have no doubt that things went smoother in his day than they do now. However, we are where we are, and I will do my best.

I should say to the House that, although my noble friend the Leader of the House could not be here—because she is going to a meeting which involves the usual channels and business for the whole House—I also count myself as having responsibilities for the whole House, as well as for my party. So I understand the issue at stake here. In this particular case, this was an agreement with the leaders of the noble Lord’s party and the noble Lord, Lord Hunt. In return for having more time than we had allowed for Committee, so that more discussion could be had, it was decided that we would have two days on Report, and that we would also have Third Reading on the same day. This was an agreement between us, and not a question of the Government steamrolling business through the House, as my noble friend Lord Cormack said. In fact, in some ways, I would love to be able to steamroll any business through this House, but, when I start every vote 250 votes behind, I think it is pretty unlikely that I could steamroll much through this House.

The noble Lord made the perfectly valid point that one of the provisions was on the Electoral Commission and its relationship with the Secretary of State. Of course, this is what will come out at Report. There has been plenty of discussion in Committee—in fact, six days of discussion, including some evenings that were quite late—so there has been plenty of talk about that. On Report, noble Lords will be able to vote on exactly that provision, and we will be able to send it back, if necessary, to the other place for Members there to consider it. Not only that, we will then have the opportunity for ping-pong.

In many cases, when we come to the end of a Session, deals are done with the Opposition. They concentrate on the things they think are important, and we schedule the business accordingly. All the business is scheduled in discussion with the usual channels. So I take the noble Lord’s point and agree that this should not be done often. However, in fact, most Third Readings recently have been formal and short, and I hope that we can prove that after this is over. Therefore, in this case, I ask that the Motion be agreed to.

[Lord Kennedy of Southwark (Lab Co-op)]

My Lords, I will briefly say, as the Opposition Chief Whip, that I agreed the Motion in the usual channels. I speak to the Government Chief Whip every single day, often many times every day—I am sure the noble Lord is sometimes sick of the sight of me coming to his office. I can always make it very clear that I do not like the Elections Bill in many cases, and I will be ensuring that the House divides numerous times on Report and many other times at ping-pong. However, I do actually think that this Motion itself is good, and I am very happy to support it.

Motion agreed.

Building Safety Bill

3rd reading
Monday 4th April 2022 Lords Chamber

Third Reading

15:44

Relevant documents: 20th and 21st Reports from the Delegated Powers Committee

[Lord Ashton of Hyde (Con)]

My Lords, I have it in command from Her Majesty the Queen and His Royal Highness the Prince of Wales to acquaint the House that they, having been informed of the purport of the Building Safety Bill, have consented to place their interests, so far as they are affected by the Bill, at the disposal of Parliament for the purposes of the Bill.

[The Minister of State, Home Office and Department for Levelling Up, Housing & Communities (Lord Greenhalgh) (Con)]

My Lords, a significant number of the provisions in the Building Safety Bill apply to England and Wales and a number also apply to Scotland and/or Northern Ireland. Throughout the preparation and passage of the Bill we have been working closely with each of the devolved Administrations, and I pay tribute to officials and Ministers in Scotland, Wales and Northern Ireland for their constructive engagement and support.

There are provisions in the Bill which engage the legislative consent process in the Scottish Parliament, Senedd Cymru and the Northern Ireland Assembly. I am pleased to report that the Senedd and the Scottish Parliament have granted legislative consent. However, the Northern Ireland Executive have not brought forward a legislative consent memorandum and the Assembly has therefore not voted on legislative consent. I reassure noble Lords that the Government will continue to engage with the Northern Ireland Executive.

Schedule 8: Remediation costs under qualifying leases etc

Amendment 1

Moved by

[Baroness Hayman of Ullock]

1: Schedule 8, page 232, line 16, leave out sub-paragraphs (4) to (6) and insert—
“(4) The Secretary of State may by regulations make provision about the determination of the value of a qualifying lease for the purposes of paragraph 4.”Member’s explanatory statement
This tidying-up amendment is consequential on Amendment 155 at Report Stage which set the “permitted maximum” to zero.

[Baroness Hayman of Ullock (Lab)]

My Lords, through every stage of the proceedings I have supported the aims of the Bill, and I am sure the whole House will welcome any steps taken to make homes safer and more secure. While we may have differences of opinion on the most effective and fair way of achieving this, I do recognise the genuine desire of the Minister to address historic cladding and non-cladding defects. This Bill should represent a turning point for innocent home owners, and I hope that in the final stages of the Bill we can resolve the remaining issues of contention to ensure that the Bill properly gives leaseholders the protections in law that have long been promised by the Government.

I briefly draw to noble Lords’ attention the fact that I have tabled a short amendment. It has been tabled as a consequential to Amendment 155 on Report, following advice from the Public Bill Office. I hope that the Minister will accept that the amendment is purely technical.

Finally, on behalf of my noble friend Lord Khan of Burnley and me, I take this opportunity briefly to thank the Minister and the departmental team for their approach to the Bill. I look forward to working with them in future on any further legislation brought forward to address building safety. I beg to move.

Amendment 1 agreed.

Motion

Moved by

[Lord Greenhalgh]

That the Bill do now pass.

[Lord Greenhalgh (Con)]

My Lords, the Grenfell Tower tragedy resulted in the largest loss of life in a residential fire since the Second World War. On 14 June 2017, 72 people died and 70 more were injured. This was the deadliest structural fire in the United Kingdom since Piper Alpha in 1988. The Government are determined to ensure that a tragedy such as this never happens again. The Building Safety Bill is the landmark Bill that delivers on that mission.

These are the biggest changes to building safety legislation in our history. The Bill not only addresses the total building safety regulatory system failure head-on but protects leaseholders who are the victims in a building safety crisis. This Bill helps to ensure that there is a more proportionate approach to building safety risk, introduces a cap on the historic building safety costs that leaseholders will have to pay and, finally, provides an extensive set of tools in law that will ensure that the polluter pays.

Fifteen of the 37 disabled residents living in Grenfell Tower died in the fire. That is more than 40% of the disabled residents. The Government are committed to supporting the fire safety of disabled and vulnerable residents. We are acutely aware of the need to ensure the safety of residents with mobility concerns. The Government ran a consultation on the issue of personal emergency evacuation plans—PEEPs—in July 2021. The consultation has made clear the substantial difficulties of mandating PEEPs in high-rise residential buildings around practicality, proportionality and safety. On practicality, how can you evacuate a mobility-impaired person from a tall building before the professionals from the fire and rescue service arrive? On proportionality, how much is it reasonable to spend to do this at the same time as we seek to protect residents and taxpayers from excessive costs? On safety, how can you ensure that an evacuation of mobility-impaired people is carried out in a way that does not hinder others in evacuating or the fire and service in fighting the fire?

Given these difficulties, the Government are committing to undertake a new consultation. While our response is still being finalised, this will include a proposal called “emergency evacuation information-sharing” or EEIS. The Government will publish our response to the PEEPs consultation and our new consultation on EEIS and commence the Fire Safety Act 2021 on the same day next month, which is as soon as practical after the pre-election period. I have discussed this at some length with the noble Baronesses, Lady Grey-Thompson and Lady Brinton. I confirm to the noble Baroness, Lady Brinton, that the consultation will look to ensure as best we can that the golden thread exists between planning for the safe evacuation of a mobility-impaired person when needed and the response of fire and rescue services in the event that a building needs to be evacuated.

The Building Safety Bill leaves your Lordships’ House in a far better state than it arrived in. I welcome the clear cross-party support for the Bill. Both Opposition Benches have played hard but fair. I thank the noble Earl, Lord Lytton, for using his considerable professional expertise and the noble Baronesses, Lady Jolly and Lady Finlay of Llandaff, for their redoubtable efforts with the Safer Stairs campaign. I also thank the noble Baroness, Lady Fox of Buckley, for ensuring that the new regime is as proportionate as possible. Finally, I thank the right reverend Prelate the Bishop of St Albans for helping improve the Bill in the interests of leaseholders.

On the Government Benches, I thank my noble friend Lord Naseby for representing the interests of pensioners with pensions tied up in buy-to-let leasehold properties, my noble friend Lady Sanderson for ensuring that the voice of the Grenfell community is heard loud and clear, and last but by no means least, the dynamic duo of my noble friends Lord Young and Lord Blencathra, who have brought decades of parliamentary experience to ensure that leaseholders are protected. I also thank my long-suffering Whip, my noble friend Lady Scott, and her understudy briefly on Report, my noble friend Lady Bloomfield. My heartfelt thanks also go to Hannah Ellis in the Whips’ Office.

Finally, I thank the army of officials in the Department for Levelling Up, Housing and Communities, the Home Office and across government for their support and hard work over the last few months. I will name four who deserve special mention: the former Bill manager, Amy Payne, the current Bill manager, Catherine Canning, and the superb DHLUC government lawyers, Joanna Stewart and Katherine Bridges.

[The Deputy Speaker (Lord Haskel) (Lab)]

My Lords, the noble Baroness, Lady Brinton, is taking part remotely. I invite the noble Baroness to speak.

[Baroness Brinton (LD) [V]]

My Lords, I declare my interest as a vice-president of the Local Government Association and vice-chair of the All-Party Group on Fire Safety and Rescue, as well as a user of personal emergency evacuation plans, or PEEPs, as I am a wheelchair user.

I am very grateful to the Minister and his officials for the two meetings and our email exchange since Report. I particularly thank him for what he has just said this afternoon. Both the noble Baroness, Lady Grey-Thompson, and I have repeatedly debated the problem that residents in high-rise blocks face in the event of an emergency, because disabled people are not currently covered by the PEEP rules.

Disabled people were encouraged by the Grenfell Tower Inquiry and the Judith Hackitt report, both of which highlighted the necessity of the golden thread of planning, notification and practical support needed for vulnerable residents, whether disabled or with a mobility impairment. Last week’s evidence from civil servants and Ministers at the Grenfell Tower Inquiry exposed a real concern that, in the past, there was no real heart to make PEEPs work, as they were deemed too expensive and complicated. The department’s announcement of a third consultation on how to get disabled residents out of a high-rise building in an emergency is welcome, but we need a final answer.

The Minister rightly focused on emergency evacuation information-sharing, because it sits within the scope of this Building Safety Bill. He has argued publicly and privately that PEEPs are for the Fire Safety Bill, but it is vital that they are developed, planned and reviewed together. Otherwise, there will be disabled residents who believe that they will be looked after and removed from their flat in the event of a fire or another emergency only to discover—as the Grenfell disabled residents did—that sitting tight and waiting can result in injury or death.

I am really grateful for what the Minister has said. We in the disabled community will watch with great interest and hope to see that golden thread come into practice in just over a month’s time.

[Lord Young of Cookham (Con)]

I thank my noble friend for his very kind words, and, in return, I commend him for the progress which he has made with the Bill, with his statement on 10 January, the amendments he tabled on 14 February and the further amendments he tabled last week on Report. I also commend him for his engagement with those who have sought to improve the Bill; he engaged with patience and humour despite, from time to time, considerable provocation from two former Chief Whips.

I will make two very brief points. First, I hope the amendments that were carried last week will not be overturned in the other place: amendments protecting those in buildings under 11 metres; amendments protecting leaseholders from making any contribution; and amendments that seek to protect the position of enfranchised leaseholders and put them on a par with unenfranchised leaseholders.

Secondly, there is still some unfinished business. We need to make progress on so-called orphaned buildings. I know my noble friend recognises the problem, which he believes, I think, can be dealt with administratively, and in an exchange on Report he pointed to the funds available, but it remains to be seen whether those funds will be sufficient and who will take on the responsibility of remediating these buildings given that the leaseholders —at the bottom of the waterfall—will not have the resources to do this, particularly if they are expected to litigate first.

I hope that, in the other place, some thought might be given to this and, in what is entirely a matter for the other place, I hope they recognise that they have never seen these clauses at all and therefore allow adequate time for consideration of Lords amendments.

[The Earl of Lytton (CB)]

My Lords, your Lordships will of course know that I have one principal abiding fear about this Bill, which is exactly the point that has been made by the noble Lord, Lord Young—who I regard, along with the noble Lord, Lord Blencathra, as my co-conspirator on this Bill.

To put a little more flesh on that bone, in a case where the original developer or builder cannot be identified or is identified but has gone bust, the question is about getting the remediation cost from these defunct individuals. Given that we have effectively removed the liability of leaseholders for remediation costs—and rightly so, in my view—what then happens when those freeholders and leaseholders are faced with no other option going forward? That is my abiding fear about the overwhelming financial odds that might face these occupiers.

Whether is it possible for the Minister to clarify that, I do not know. However, I add my voice to those of others who have expressed their appreciation for what the Minister has done: he has tackled this with a real sense of purpose, with an open-door policy to talking with those who have concerns, and I appreciate that very much. Behind him is the Bill team, to which I pay tribute as well.

I pay tribute to my co-conspirators, and also all those across the House, on all sides, who have supported me in Divisions—I appreciate that very much indeed. I particularly pay tribute to fellow Cross-Bench Peers, the noble Baronesses, Lady Finlay and Lady Grey-Thompson, and the noble Lord, Lord Best, who, on individual aspects, have campaigned tremendously effectively to have this Bill altered, very much for the better.

Beyond this House, I pay tribute to the efforts of organisations such as the Leasehold Knowledge Partnership, which has been very helpful in many respects. Most of all, I thank the perpetrator pays team, Steve Day and Daniel Greenberg; as far as I am concerned, their input has been absolutely fantastic and totally indispensable.

My last point has to be for all those who wrote to me: the couples who had put off having a family, or even getting married; the distraught pensioners; the families with their hopes and finances on hold, whose children have had their education disrupted and who have been unable to move because their properties were unsaleable for work or for any other purpose; and those facing bankruptcy and repossession. They have been my driving force. In all my years of experience as a chartered surveyor, I do not think I have had so many people write to me, and I hope that I have been able to give a voice to the voiceless in that respect and some glimmer of hope that, at the end of a really long dark period for them, there might be a little bit of light. I remain committed to the principles that I have held to throughout the course of the Bill.

16:00

[The Lord Bishop of St Albans]

My Lords, I do not want to delay the House for too long, but I also add my word of thanks to the Minister. I share the concerns of other noble Lords: I hope that this is going to be given enough time for proper scrutiny and debate in the other place and that the really key amendments will not be overturned.

Many positive changes have been made, particularly reducing the cost for non-cladding remedial work to zero and the extension of this support to all buildings, not just those over 11 metres. But I remain concerned by the definition of a qualifying lease and its failure to protect those receiving a state pension who rely on rental income from a lease to sustain themselves. I am not entirely certain how these pensioners who do not qualify will pay for non-cladding remedial costs, but that is a hurdle that the Government may face in the near future.

Furthermore, I continue to think that the Government have taken a rather London-centric view when defining a qualifying lease. I personally find it odd that someone with three leases worth, say, a total of £2.7 million, or £900,000 per dwelling, would qualify to pay nothing as per the latest amendments, but an individual with, say, five leases totalling £500,000, or £100,000 per lease, would be liable for the entirety of their non-cladding remedial costs on four of those leases. Again, I can only speculate as to how this might play out once the Bill passes.

I hope that the Minister shares these concerns and might perhaps look at a fairer way to define qualifying leases in respect of buy-to-let landlords, but I do not want this sticking point to hold up what has been a very positive debate around this Bill. I reiterate my thanks to the Minister for his co-operation and willingness to listen to and work with us.

[Baroness Fox of Buckley (Non-Afl)]

My Lords, I thank the Minister for his comments. I am glad to be associated with proportionality, especially in relation to safety and the unintended consequences of a zero-risk approach to any policy, actually. I thank everyone who has been involved—the Minister, the government team and all the people across the House far more experienced than I am—for making the discussions around this have a certain sense of a collegiate endeavour, trying to solve a problem that we all knew was there. I thank your Lordships for your encouragement and, often, your patience with my own inability to quite understand the process.

I particularly thank leaseholders. I got involved with this issue because I was lobbied, not by big business but by ordinary, grass-roots leaseholders. As a leaseholder myself, I found that there was a whole community out there. While we have done a huge amount to benefit their situation, going from where they were to where they are, we are not quite there yet. As much as I would like it to be the case that they are grateful for our endeavours, many of them still feel frustrated, fearful and nervous—and you cannot blame them, because they are just not sure what is going to happen; there are too many question marks. I do not think we should be disparaging of them or think that they are lacking in gratitude for what has happened.

I encourage the Government not only to give time in the other place to consider the amendments but not to wash their hands of the Bill, as it were, once it eventually fully goes through. I think we have all noted that there will be unintended consequences: hidden costs and service charges. While there might be a formal review, this will be an ongoing issue for many years to come. Therefore, I hope the Government will be open to those lobbying for leaseholders, even when we are not discussing a Bill in Parliament. I would like the department to still keep listening to them, as I certainly will. I will raise issues whenever I get the chance. Generally, this is far better than when we started, but I always want more.

[Lord Blencathra (Con)]

My Lords, simply look at the Bill that came from the other place, then take a look at what we are sending back. It has changed beyond all recognition. I pay tribute to my noble friend the Minister and his boss, my right honourable friend Michael Gove, for that extraordinary transformation. I also thank my noble friend Lord Young of Cookham and noble Lords and noble Baronesses on all sides of the House, and the right reverend Prelate, for the many amendments they have made, many of which have been accepted by the Government. We are sending back some important amendments that the Government might not quite like as much as we would like them to. However, I appeal to the other place to accept them and not to remove them, especially the zero amendment proposed by the noble Baroness, Lady Hayman of Ullock.

The Government, apparently, have had legal advice on the dangers of breaking the ECHR if we changed the cap figures, but we heard, I submit, even better legal advice that that is not so. In any case, as the noble Lord, Lord Marks of Henley-on-Thames, said, some developers will challenge the figure in court no matter what level the Government set.

We also need to do more on enfranchised leaseholders. They were encouraged to purchase their freeholds, and they must not be treated like rapacious landlords. Nevertheless, this Bill now gives leaseholders infinitely better protection. With a few further tweaks it could give them full protection. When I see the contribution my noble friends have made to the Bill, I am reminded of the words of Shakespeare’s Julius Caesar, or almost his words:

“Antonius! … Yond”


noble Lord, Lord Young of Cookham,

“has a lean and hungry look … Let me have men about me that are fat”.

I commend this Bill and hope the other place will improve it further.

[Lord Naseby (Con)]

My Lords, as one who has been involved in housing policy for over 50 years, I pay tribute to my noble friend for his time, care and effort, and his listening qualities, which have not always been a feature of those on either Front Bench. I offer sincere thanks to my noble friend.

[Baroness Pinnock (LD)]

My Lords, I start by thanking the cladding and building safety campaigners who have been resolute and unremitting, since the Grenfell fire tragedy, in pursuing justice for leaseholders and tenants. Without them, this Bill would not be in the shape it is today. It has been transformed but not transformed enough, as we have heard from others. Across the House, people have worked together to make it a better Bill. I thank them for the way we have worked together to make improvements, but it is not yet enough.

I, too, urge the Government to accept the amendments that we accepted on Report. I, for one, am not giving way. I hope that the Government, at the other end, will say that the argument has been made for a nil cost to all leaseholders. That is where I shall firmly stand to the bitter end. Leaseholders are the innocent victims; they must not pay a penny.

I pass on my thanks to the Minister for being so free with his time, discussing the various amendments, and to the officials from various parts of the Government for explaining the detailed changes that had been proposed. Particularly, I thank Sarah Pughe in the Liberal Democrat Whips’ Office, and my noble friend Lord Stunell. Without their expertise, knowledge and experience, we would not have been able to do the job that, between us, we have done. I look forward to the Bill coming back, having been accepted by the Commons.

[Lord Greenhalgh (Con)]

My Lords, I beg the indulgence of noble Lords: as my noble friend Lord Young and the noble Earl, Lord Lytton, asked pretty much the same question, I thought I would respond to that very briefly. They wanted to know what happens to orphan buildings, where there is no polluter to pay. I do not feel that this works in this setting, but I have this wonderful diagram that makes it pretty clear to me what happens. This is the so-called “non-cladding costs waterfall”, which I am going to try to have put on the Government’s website. Let us be very clear: we need to look at this in terms of cladding and non-cladding.

There is, of course, the £5.1 billion building safety fund for the remediation of cladding in high-rise residential buildings, which is open to orphan buildings. My department is seeking a further £4 billion voluntary contribution. In the first instance, it is a voluntary contribution from the developers for the remediation of unsafe cladding in medium-rise buildings, which is also open to orphan buildings. Then, we have this wonderful government waterfall for non-cladding costs: the developers must pay. In instances where the developer is not available to pay, the landlord must pay. The landlord or freeholders who pass the government test, which is a net worth of £2 million per building, become legally liable for all the costs. The landlords must comply with the law, as set out by Parliament. Freeholders or landlords must pursue those responsible, as well as any applicable grant schemes, before they can pass costs on.

Finally, as it says on this wonderful chart, which even I can read with my poor eyesight, costs are shared equitably between freeholders, lessees and leaseholders, subject to robust leaseholder protections detailed in the Bill—and sent back to the other place with some other parameters that perhaps the Government might not have wanted at this stage.

I want to make a final point about landlords. Sadly, some landlords are polluters. A number of large freeholders have appeared on the Government’s “name and shame” list for not remediating their buildings. Some freeholders or landlords have gone so far as to force leaseholders to take loans to remediate their buildings. As I said, we all agree that, in those instances, the polluter must pay.

Bill passed and returned to the Commons with amendments.

Nationality and Borders Bill

Consideration of Commons amendments
Monday 4th April 2022 Lords Chamber

Commons Amendments

16:13

Motion A

Moved by

[Baroness Williams of Trafford]

That this House do not insist on its Amendment 1, and do agree with the Commons in their Amendments 1A and 1B in lieu.

1A: Page 7, line 41, at end insert the following new Clause—
“Provision for Chagos Islanders to acquire British Nationality
In Part 2 of the British Nationality Act 1981 (British overseas territories citizenship), after section 17G (as inserted by section 2), insert—
“17H Acquisition by registration: descendants of those born in British Indian Ocean Territory
(1) A person is entitled to be registered as a British overseas territories citizen on an application made under this section if—
(a) they are a direct descendant of a person (“P”) who was a citizen of the United Kingdom and Colonies by virtue of P’s birth in the British Indian Ocean Territory or, prior to 8 November 1965, in those islands designated as the British Indian Ocean Territory on that date, and
(b) they have never been a British overseas territories citizen or a British Dependent Territories citizen.
(2) An application under this section must be made—
(a) in the case of a person aged 18 years or over on the commencement date, before the end of the period of five years beginning with the commencement date;
(b) in the case of a person aged under 18 on the commencement date, or a person who is born before the end of the period of five years beginning with the commencement date, before they reach the age of 23 years.
(3) In subsection (2), “the commencement date” means the date on which this section comes into force.””

1B: Page 8, line 6, leave out “or 17F” and insert “, 17F or 17H”

[The Minister of State, Home Office (Baroness Williams of Trafford) (Con)]

My Lords, with the leave of the House, I will also speak to Motions B, L, M, T and U.

This is a happy time of the day. I want to return to Lords Amendment 1, which provides for the Chagossians to acquire British citizenship and British Overseas Territories citizenship. We heard some very powerful speeches advocating on behalf of the Chagossians, both in your Lordships’ House and in the other place. I was deeply moved on meeting one of the Chagossians with the noble Baroness, Lady Ludford. The Government accept that the unique position of the Chagossians means that we can accept a unique solution to provide them and their descendants with a pathway to British nationality. For technical reasons we have been unable to accept the amendment agreed by your Lordships’ House. However, we have tabled, and the other place has accepted, two technically correct amendments in lieu, Amendments 1A and 1B. I hope that these amendments will now also be accepted by your Lordships’ House.

Amendment 4 relates to the deprivation of citizenship. On Report, your Lordships’ House did two things in respect of the clause in question. The first was to agree to amendments to it that were tabled by the noble Lord, Lord Anderson of Ipswich. I thank him for bringing his considerable experience and legal expertise to bear on this very important issue, and for tabling amendments that met with the favour of the House. However, your Lordships also deleted the substantive clause, as amended by the noble Lord, from the Bill.

The Government have now accepted the amendments tabled by the noble Lord, Lord Anderson, and re-tabled the substantive clause, as amended by him, in the other place, which agreed to it. I strongly invite your Lordships’ House to support this course of action by not insisting on Amendment 4, which would delete the substantive clause, and by agreeing to Amendments 4A to 4F, which will restore to the Bill the clause as amended by the noble Lord, Lord Anderson.

The noble Baroness, Lady D’Souza, has moved that subsections (5) to (7) be omitted from this clause, which, of course, in the context makes no sense. These subsections relate to existing “without notice” deprivation orders and ensure that they continue to be valid. Omitting these subsections would cast doubt on the validity of these orders and create an unacceptable risk to our security. I therefore invite the noble Baroness to withdraw this amendment.

Amendments 13 to 19 relate to the offence of illegal arrival in the UK, a key element of the Bill. We want to do everything we can to deter people from making dangerous and, sadly, as we have seen, often fatal journeys. That is why we want to change the law to provide prosecutors with additional flexibility when someone has “arrived in” but not technically “entered” the UK. Your Lordships’ amendments would remove this flexibility. The other place has therefore disagreed to these amendments for their reasons 13A to 19A. There is a need to seek prosecutions when there are aggravating circumstances, and where prosecutors agree that this is in the public interest. However, the list cannot be exhaustive, as we need to be able to respond to unforeseen circumstances. I will set out in more detail what the Government mean when we say that we are seeking prosecutions only in the most egregious cases for this offence.

We will take firm action against migrants who put themselves or others, including rescuers, in danger by their actions—for example, where migrants have been seen dangling children over the side of a boat and threatening to drop them into the channel, or dousing themselves in fuel to prevent them being picked up by French search and rescue services because they did not want to be taken back to France. This would apply to instances such as those which occurred in 2020 with the stowaways on the “Nave Andromeda”, which led to the crew locking themselves in the ship’s citadel in accordance with the ship’s safety manual and making a mayday call.

Additionally, we will be targeting for prosecution migrants who cause severe disruption to services such as shipping routes, or closure of the Channel Tunnel. This happened in 2015 when a group of migrants forced their way into the tunnel despite the attempts of French officials and police to prevent them doing so. The migrants’ actions meant that the power supply to the tunnel had to be shut down and rail traffic suspended.

We will also focus on those who have arrived in the UK without permission in cases where they are criminals who have previously been deported from the UK, persons subject to exclusion decisions or persons who have been repeatedly removed as failed asylum seekers. On this basis, your Lordships’ House should not insist on these amendments.

The noble Lord, Lord Coaker, has tabled Amendment 13B in lieu of Amendment 13, which would make it an offence for persons to knowingly arrive in the UK in breach of a deportation order. Although I welcome the recognition that we need to be able to prosecute criminals who seek to evade immigration controls and return to the UK, we cannot accept this amendment, as it is just too narrow. It would not, for example, allow for the prosecution of someone attempting to arrive in the UK who has previously been excluded from the UK on national security grounds. As I have just set out, there are a number of other aggravating behaviours for which we think prosecutions would be appropriate. I therefore hope that the noble Lord will not press his amendment.

Amendment 20 would reinsert the requirement to prove that a person is acting “for gain” if they are being prosecuted for facilitating the entry of an asylum seeker into the UK. I emphasise that this Government do not prevent and have no intention of preventing humanitarian rescues from taking place, and we have built additional safeguards to this effect into the Bill. But the problem here is that proving that someone acted “for gain” is practically very difficult. It means that prosecutors are limited in the action that they can take against people smugglers. The other place has therefore disagreed with this amendment for their Reason 20A. On that basis, I put it to noble Lords that we should not accept this amendment.

The noble Lord, Lord Paddick, has tabled Amendment 20B, in which he proposes that, instead of reinserting the requirement that a person is acting “for gain”, it should be an offence to act “without reasonable excuse”. We have already set out in detail in the Bill how this offence will work, including statutory defences that would effectively provide reasonable excuses, so we do not think that this amendment is necessary.

Amendment 40 concerns the operation of the electronic travel authorisation—ETA—scheme when

“the individual is travelling to Northern Ireland on a local journey from the Republic of Ireland.”

The other place disagreed with this amendment for its Reason 40A. The amendment could result in an unacceptable gap in UK border security, which would allow persons of interest or risk who would otherwise be refused an ETA to enter the UK legally. It would undermine the very purpose of the ETA scheme, which is to prevent the travel of those who pose a threat to the UK.

Although I understand the sensitivities engaged here, I reassure noble Lords that the Government stress our continuing commitment to the Belfast agreement, as well as the common travel area. An important part of this is our absolute commitment not to have any checks at the Ireland-Northern Ireland border, and British and Irish citizens will not be required to obtain an ETA. Neither will those who already have an immigration status in the UK—for example, those with a frontier worker permit. However, as now, all individuals—except British and Irish citizens—arriving in the UK, including those crossing the land border into Northern Ireland, need to continue to enter, in line with the UK’s immigration framework. This is a well-established principle of the operation of the CTA, and it applies when travelling in all directions. We are simply extending the principle to individuals requiring an ETA.

For those who require an ETA, the process of applying for one will be quick and light-touch. It will be valid for multiple trips over an extended period, so that this is not disruptive to lives or livelihoods, minimising the burden on those making frequent trips, including across the Ireland-Northern Ireland border, while protecting the common travel area from abuse as far as possible.

On the possible impacts on tourism, I assure the House that the Government are committed to working with a wide range of stakeholders, including Tourism Ireland and Tourism Northern Ireland. This will ensure that the ETA requirement is communicated effectively through targeted messaging and a variety of channels. It will also mitigate any risk of increased barriers to cross-border tourism on the island of Ireland. I therefore ask that this House does not insist on this amendment.

The noble Lord, Lord Murphy of Torfaen, has proposed a further, well-considered amendment, which would exempt residents of the Republic of Ireland. The relationship between the UK and Ireland is an important and unique one, and we are deeply committed to the strongest and closest possible partnership between us. We remain committed to ongoing communication with the Irish Government and other interested stakeholders to navigate their concerns on this matter. I therefore ask that your Lordships’ House does not insist on this amendment.

Finally, Amendment 54 prohibits the use of new maritime powers contained in the part of the schedule to which it applies from being used

“in a manner or in circumstances that could endanger life at sea.”

Noble Lords will know that the Government’s priority is to save and preserve life at sea. Our position has not changed, and as such, as the Government have made clear before, we do not think that we need to put these commitments into the Bill. The other place has disagreed with this amendment for its Reason 54A. I conclude by asking that noble Lords do not insist on this amendment, and I beg to move.

[Baroness Lister of Burtersett (Lab)]

My Lords, on Motion A, I am very pleased to be able to accept Amendments 1A and 1B in lieu of my original amendment. Together with assurances given on the record in the Commons, they will open up entitlement to British citizenship, which will be subject to neither a fee nor a good character test. They therefore meet the objectives of the original amendment. I thank the Minister for whatever part she may have played in helping achieve this change of heart, following the meetings she had with some of us and Rosy Leveque of BIOT Citizens.

I have two questions. When is it anticipated that applications can begin, and can the Minister confirm that it is still the Government’s intention to use some of the largely unspent £40 million Chagos support fund to help Chagossians settle here, and to help those already here who have welfare needs?

As well as the Government, I thank noble Lords from all Benches who gave such strong support to the amendment, and in particular those on the Government Benches, as I am sure their passionate support was key to encouraging the Government to think again. I thank the APPG on the Chagos Islands for helping to build that support. I also pay tribute to Henry Smith MP, who has long championed this cause in the Commons, and to the late and much-missed Lord Avebury, who first raised the issue in your Lordships’ House over a decade ago. His work to remove this and other citizenship injustices has been energetically continued by the BOT Citizenship campaign, especially David Varney and Trent L Miller.

Last but not least, I pay tribute to the Chagossians themselves, who have helped to spearhead the campaign, in particular Rosy Leveque and Chagossian Voices. The joy felt as a result of the government concession is summed up well in an email sent to me and Henry Smith from a Chagossian on Mauritius, who is longing to be reunited with his family in the UK. I will quote briefly a few lines:

“I am writing to you simply to say that words are not enough to express how thankful and grateful I am. I can’t stop crying with joy and happiness, and trust me when I say that many Chagossians in Mauritius and Seychelles are also overjoyed and overwhelmed by this result. Many of us have been keeping our grandparents’ birth certificates in a folder waiting for this day to come.”


The original injustice that deprived the Chagossians of their homeland and that perpetuates their exile remains and will rightly continue to be contested. However, I believe that all those who have contributed to the ending of the citizenship injustice done to the descendants of those for whom the Chagos Islands were home can feel pride today. I am sure that we all look forward to welcoming to the UK as British citizens the Chagossians who have been the victims of this injustice.

[Lord Horam (Con)]

I thank the noble Baroness, Lady Lister, for her leadership on this issue, the noble Baroness, Lady Whitaker, who has pursued this for many years, and Henry Smith in the other place, who has played a notable part as well. Indeed, I also thank my noble friend the Minister and the Government, who have pursued this and given way on quite an important principle and made a unique situation for the Chagossians in this country. I now hope that the Foreign Office takes the cue from the Home Office and deals with the real problem, which is giving the Chagos Islands back to Mauritius—that is the real issue. We only got four votes in the United Nations on this issue—with 150-odd against us. It is a lasting disgrace, and I hope that the Foreign Office, which is not normally behind the Home Office on these issues, takes the cue accordingly.

[Baroness Jones of Moulsecoomb (GP)]

My Lords, I take the rare step of agreeing completely with the noble Lord, Lord Horam, particularly in his praise for the noble Baroness, Lady Lister, who has worked so incredibly hard and has been so effective, as well as the Minister, who clearly smoothed the way for these changes. I will ask one question. One difference in the Commons amendment is that it does not state:

“No charge or fee may be imposed for registration under this section.”


So can the Minister tell me what fees or costs will be imposed on Chagos Islanders to rectify this injustice?

16:30

[Baroness D'Souza (CB)]

My Lords, my Motion B1 also falls in this group. I start by saying how welcome the safeguarding concessions that have been or will be incorporated into the Bill are. But there is still unfinished business. Very simply, my Motion seeks to delete the retained subsections (5) to (7) on the grounds that these clauses maintain a legal fiction that deprivation orders issued without notice continue to be valid, despite court rulings to the contrary. It is accepted by the courts that it is unjust to strip a person of his or her citizenship and all the associated rights without ever providing notice. Retaining subsections (5) to (7) seeks to overturn that ruling by legislative fiat. Instead of invalidating previous deprivation orders that were made unlawfully, the Government appear to wish to apply retrospectively these earlier orders.

The Minister, who was kind enough to write to me at an earlier stage of the Bill, justified these orders by pointing out that the proper functioning of the immigration system cannot be hijacked because an individual chooses to remove himself or herself from contact—or where to make contact might reveal sensitive intelligence. The Minister said that we cannot be in a position where we can never deprive someone of citizenship simply because it is impractical. Since then, the Government have accepted in principle amendments tabled by the noble Lord, Lord Anderson, which the Government assert achieve the right balance between safeguards and security.

I respectfully suggest that this is not what my amendment is about; rather, it is about holding to decisions and actions on orders to deprive citizenship without notice that have subsequently been declared unlawful. Thus the safeguards now included, or to be included, in the Bill will not affect deprivation orders made before commencement. This appears to be unjust. It is also puzzling. If the Government accept that safeguards are necessary, why not apply them to all deprivation orders? Section 40 of the British Nationality Act 1981 sets out individuals’ statutory right to be notified when being deprived of citizenship. The Government’s disregard for this right led to legal rulings, including from the Court of Appeal. Therefore, the retention of subsections (5) to (7), which we are discussing today, could be seen as bringing the rule of law into question. It most certainly creates two tiers of citizens subject to deprivation orders: those who benefit from the so-called Anderson safeguards and those who do not—namely, those still under pre-commencement orders.

I am not arguing, and have never argued, against deprivation orders, which may be acutely necessary. Process is the issue. Excluding the subsections in my amendments would not deny the Government the right to reconsider their earlier decisions together, in some cases, with the benefit of new evidence, particularly that which involves evidence of human trafficking, and to remake deprivation orders where necessary.

Removal of subsections (5) to (7) would immediately achieve two desirable and extremely important outcomes: it would bring the Government into conformity with the rule of law and it would extend proper safeguards to those who continue to be at risk from previous unlawful actions.

[Lord Murphy of Torfaen (Lab)]

My Lords, I shall speak to my Motion T1, which refers to the electronic travel authorisations to which the Minister referred. The amendment would make anyone who was legally resident in the Republic of Ireland able to travel to Northern Ireland without such an ETA. This issue was discussed both in Committee and on Report. The House agreed with those of us who argued that this was wrong, but of course the House of Commons has not. The arguments remain the same. I was hopeful that the Minister, who I am sure will have spoken to her colleagues at the Northern Ireland Office, would make some concessions on this matter. However, the dead hand of the Home Office is there again.

This troubles me for a number of reasons. First, it jeopardises strand 2 of the Good Friday agreement, which refers to north/south co-operation between the two parts of the island, which was vital when the agreement was negotiated. It affects tourism, as the Minister referred to. She said that tourism was a good thing. We all agree with that, as do all the stakeholders, but the Government have to do something to ensure that it remains a good thing. If we charge €14 for an ETA—with the bulk of American tourists, for example, coming from Dublin to go to the north of Ireland to enjoy the great pleasures of tourism there—that is going to be a question of jeopardy as well.

In addition to that, and perhaps more significantly for those who live in both the north and the south of the island, there is the issue of health. Many people in Northern Ireland and in the Republic travel the border to go to the best place for the particular ailment or disease from which they are suffering. Particularly up in the north-west of Ireland, the co-operation between the two Governments is immense. I would be troubled if someone who was not necessarily an Irish or British citizen but was legally resident in the Republic was not able to take advantage of those co-operation decisions by both Governments.

The other issue here is work. It is quite possible that someone could work in the Republic and live in the north, or vice versa, who was not an Irish or British citizen but was legally in the Republic because of their membership of the European Union .

Secondly, there is an issue with regard to the spirit of the Good Friday agreement, which in my view has been jeopardised by this government decision. The border is different in Ireland; it is not like any other border in the European Union. Although I do not normally read tweets, I read one the other day from the noble Lord, Lord Frost, who had got worked up about this issue and was talking about the fact that the Irish Government did not seem to think this was an international border between two countries. What does he think we were doing for year after year when we negotiated the Good Friday agreement and the St Andrews agreement? We were dealing with the border as part of the peace process. There are 300 crossings along that border with no apparatus to check people, yet now we get a completely different way in which people must apply to the bureaucrats in order to cross it.

The border is a great symbol on both sides of the community in Northern Ireland, which is why the border being put down east/west has caused such a fuss. But the reason why this proposal by the Government is simply daft is that it is unenforceable. The Minister has told us what the Marshalled List states and says the reason why these ETAs are essential is to stop people of interest or people who are risky, whether they be spies, terrorists, criminals or other ne’er-do-wells, from crossing the border. Does she really think that those people are likely to pay €14, fill in an ETA form and then cross the border? Of course not. It is nonsense because it cannot be enforced. If the border had apparatus at all 300 crossings then that might be possible, but it does not.

Some of your Lordships who are as old as me will remember Gilbert Harding. He once had to fill in a form to apply for a visa to go to America, and on the visa form was the question: “Is it your intention to undermine the Government of the United States?” His answer was “Sole purpose of my journey”. That is in a way similar to this. At the end of the day, it is unenforceable, impractical and unnecessary, and it jeopardises the relationship between two countries. Ireland and the United Kingdom are the joint guarantors in international law with regard to the Good Friday agreement. The noble Baroness knows that the Irish Government are very upset about this for all sorts of reasons; there have been discussions between Ministers even at the British-Irish Intergovernmental Conference, set up by the Good Friday agreement. Is it really worth jeopardising our relationship—which has been bad enough as it is over the last number of years—with this petty and silly proposal by the Government? I would like the Government to change their mind, but I am not hopeful.

[Lord Paddick (LD)]

My Lords, I have Motion M1, Amendment 20B, in this group but I will speak to the other Motions in order so that I speak only once.

As we have heard, this group deals with Chagos Islanders, stripping a person of their citizenship without notice, criminalising anyone arriving in the UK who claims asylum other than through a safe and legal route, criminalising those who rescue migrants from the sea, electronic travel authorisations in relation to the border on the island of Ireland and pushbacks in the Channel. We support Motion A in relation to the Chagos Islanders, but we are disappointed that, as the noble Baroness, Lady Jones of Moulsecoomb, has said, a fee will still be charged before their right to British Overseas Territories citizenship or British Dependent Territories citizenship is officially recognised. Is that wrong?

[Baroness Lister of Burtersett (Lab)]

I thought I had said it, but in the Commons, it is on the record that no fee will be charged, nor will there be a character test. It will be done through the fees order; that is why it is not in the Bill.

[Lord Paddick (LD)]

I am grateful to the noble Baroness. It is a shame that it is not in the Bill but, if that undertaking has been given, we can perhaps trust the Government on this occasion.

We are pleased that the Government have adopted the safeguards proposed by the noble Lord, Lord Anderson of Ipswich, before someone can be deprived of British citizenship without notice; we believe this will reverse the recent increase in the number of cases and, hopefully, reduce it to almost zero. We agree with Motion B1, Amendment 4G, in the name of the noble Baroness, Lady D’Souza, to remove the validation of previous deprivations of citizenship without notice, which the courts have held to be unlawful. As the Government acknowledge, the “Anderson safeguards” are necessary, so the Home Office should go back over existing cases of deprivation of citizenship without notice, applying these safeguards to ensure that they are lawful.

We agree with Motion L1 in the name of the noble Lord, Lord Coaker, as a mechanism for preventing those arriving in but not entering the UK, and then claiming asylum, from being criminalised. For the Government to say that only egregious cases would be prosecuted is not sufficient, as the fact that arriving in the UK and then claiming asylum could be a criminal offence would have a chilling effect on those legitimately seeking refuge in the UK; this is, of course, exactly what the Government intend by their Motion L.

I ask the House to support my Motion M1. The Government want to criminalise those who facilitate those entering the UK without the correct prior authority, even if those doing so are not people smugglers and not acting for their own gain. The perhaps unintended consequence is that those rescuing drowning migrants in the English Channel, for example, commit an offence unless the rescue is co-ordinated by HM Coastguard or an equivalent organisation. The Government propose a defence, once charged, if the rescuers are genuine good Samaritans, and again claim that only the most egregious cases would be prosecuted. This, again, is not sufficient, as it could have a chilling effect on would-be rescuers who knew that they would be committing an offence if they attempted rescue without prior coastguard authority were the House to agree with Motion M. How many might drown before the rescuers were able to contact HM Coastguard and enable them to co-ordinate the rescue?

Instead of a defence once charged, Motion M1 proposes that the offence is committed only if a person facilitates entry to the UK without reasonable excuse. Rescuers would then know that, provided they are acting in good faith, they would not be prosecuted, but people smugglers would not have a reasonable excuse and could be prosecuted. The Government’s suggestion that people smugglers might pretend to be genuine rescuers is, quite frankly, ridiculous, as there are likely to be many witnesses, in the form of the migrants who have paid large sums to the people smugglers, that this is not the case.

16:45

My noble friend Lady Suttie will deal with Motions T and T1. Finally, on Motion U, we find the Government’s reasoning bizarre. Pushing back flimsy dinghies in the English Channel will of course put lives at risk. I am pleased that the Lords Minister for the Ministry of Defence and the staff association representing Border Force officers have both suggested that neither the Royal Navy nor Border Force will engage in such tactics. On the one hand, the Government want to give personnel engaged in such tactics immunity from criminal and civil liability, but at the same time, they will have to be exercised in compliance with the European Convention on Human Rights and with the UK’s international obligations, in which case, no criminal or civil liability would arise. No matter what the Home Office thinks it will achieve by Motion U, we are satisfied that no one in their right mind would push back a boat full of migrants in the Channel, so we will not object to it.

[Baroness Ritchie of Downpatrick (Lab)]

My Lords, I support Motion T1 in the name of my noble friend Lord Murphy of Torfaen. As has already been explained, this amendment, in previous guises, was discussed in Committee and on Report. On those occasions, your Lordships’ House considered it a valuable amendment and that the Government, via the Ministers in the Home Office, working with the Northern Ireland Office, should see that this electronic travel authorisation does not take place. I have talked to many people and, as my noble friend has said, the requirement is unworkable and daft. I wish to give practical examples of that. It is also unenforceable. It would violate the very premise of reconciliation and bringing people together on the island of Ireland in terms of the Good Friday agreement. It would jeopardise important parts of strand 2, the north-south requirements. All this, in many ways, is simply a consequence of Brexit.

Our amendment says that those who are legally resident in the Republic of Ireland who have come from EU and other countries in the last year or so should be exempt from requiring an electronic travel authorisation if they wish to travel from the Republic of Ireland to Northern Ireland.

From a practical point of view, I have asked the Minister to consider the geography, because I believe the Home Office has not fully considered that. Let us take the county borders of Donegal and Tyrone, Donegal and Derry, and Donegal and Fermanagh. There is one village that straddles Donegal and Fermanagh, the small village of Pettigo. That border goes straight down the middle of it. One minute you could be in the Republic of Ireland and the next you could be in Northern Ireland. There is the case of Lifford in County Donegal and Strabane. There is a direct, symbiotic relationship between those towns, as they exist cheek by jowl. You can walk over the bridge from one to the other. The symbiotic friend of Belcoo in County Fermanagh is Blacklion in County Cavan. They exist cheek by jowl. In terms of the geography we are talking about, this proposal from the Government is unworkable and unenforceable.

I ask the Minister—and I say this to the Government in the most sincere terms—to please continue direct negotiations on the issue with the Irish Government, who are deeply fearful of the repercussions of this proposal for an electronic travel authorisation. They believe that it is unworkable and that it will impede tourism—an issue I am sure that other noble Lords will deal with. In that respect, the Minister referred to work with Tourism Ireland and Tourism Northern Ireland. I ask the Minister: what discussions took place with those bodies and what were the results of those discussions?

Apart from, I feel, being in breach of strand 2 of the Good Friday Agreement—and in breach of natural common sense—I say that a proposal for an ETA is not only inconvenient but disruptive, unworkable and unenforceable. Can the Minister tell us when the Government envisage introducing the secondary regulations in relation to the charging? I firmly believe that these are not required. I urge the Government to accept our reasonable amendment, which states that if the individual is legally resident in the Republic of Ireland, that should act as a reasonable exemption.

[Viscount Brookeborough (CB)]

My Lords, I rise to support Motion T1 in the name of the noble Lord, Lord Murphy. Because this is something which has been brought in, one must look at what the current situation is. The current situation is that it is an open border, and we have heard that there will be no one on it. Even before Brexit, the situation was that we had border officers at the airports and ports because of terrorism, drugs, human trafficking and whatever else. Those people are still there—so, in effect, what is this ETA actually going change? It is not going to put anyone on the border. We have already heard about people working either side of the border.

I declare interests in running a small tourism operation and because my brother is chairman of Tourism Ireland. I have not discussed this matter with him. He is perfectly aware of my feelings on it. However, the Minister rather brushed over consulting Tourism Ireland, Tourism Northern Ireland and the Government of Ireland—as if these discussions were going well. I have not spoken directly to people involved but it is my impression that these discussions are not going well. These two organisations and the Government of Ireland are entirely against this. They are against this in relation to the movement of people day by day doing everyday things. They are also against it from a tourism point of view.

A couple of years ago, the Government accepted that the passenger duty for airline passengers was an inhibiting factor, preventing airlines travelling to Northern Ireland because it was less in Dublin. They obviously accepted that it was an inhibiting factor because they dropped it and made it roughly equal—this was largely for tourists. So what are they proposing now? Putting on more than half of it to any tourist who wants to enter Northern Ireland. I ask the Minister for her honest opinion: if a £13 or £14 passenger duty inhibited people arriving in Northern Ireland, what is half of that—£6.50, plus apparently £10 or £12—going to do? Does she see this as an encouragement, or as something which will inhibit people coming north?

The Minister says that interested parties will be told—which must include travel agents and so on—in order to get people to put in for this. What will happen when somebody decides to come to Ireland as an island, and their travel agent says they will have to fill in an electronic form and pay extra money to go north, even if they want to come for a few hours? This is why I like the first amendment—because it talks about short periods of time. Noble Lords may not necessarily think that Northern Ireland is a holiday destination, but I can assure them that a lot of people do. In particular, the Titanic exhibition was voted the world’s leading tourist attraction a few years ago.

Those who have watched “Game of Thrones”—and I have not—will know that the world was hooked. Warner Brothers has invested millions of pounds in what is going to be an iconic visiting centre for “Game of Thrones” in Northern Ireland, and it is not all that far from the border. But what is going to happen? What does the Minister really think tourists are going to feel when they come to the island of Ireland and find a barrier? Some of us are pretty bad with IT anyway, and it is already difficult enough to do the filling in. Additionally, if this form is as light a touch as the Minister says, what possible checking can there be in it? Anybody can fill it in anyway. It is crazy to think that that will stop anyone.

We were talking just now about crossing the border; I will stop after this. Not only are Belcoo and Blacklion on opposite sides of the bridge, but we have in Fermanagh something that noble Lords probably do not know about: Concession Road, which runs between two Republic towns, Cavan and Clones, into the north and then back into the south. That is fact. If you had been on patrol at night during the Troubles, you would have known all about it. It caused immense problems, because Garda patrols were not allowed up that bit of road; we were allowed up it, but we had to cross a bog to get to it. The police could not get to it, because they did not particularly like bogs; they liked nice carts and whatever.

This is really unbelievable. The duty of government, surely, is to make laws not for filling pages of A4 but for something that can be implemented. Surely, it is a duty of government not to make laws that are entirely unenforceable.

[Baroness Bennett of Manor Castle (GP)]

My Lords, I rise extremely briefly, my noble friend having done the praising the Government part, to offer Green support to the other, non-government amendments in this group. We have heard very powerful practical examples on Motion T1. On Motion M1, the argument that someone acting in good faith should not face a court case, particularly in a life or death matter, is obvious.

I will focus briefly on Motion B1 on the deprivation of citizenship. Commons amendments have tightened the conditions under which citizenship can be removed without notice and improved the judicial oversight. The noble Baroness, Lady D’Souza, is seeking to do that further with this. She said she was not against the principle of deprivation orders so I must lay out, very simply and clearly, that the Green Party is totally against the deprivation of the right of citizenship; citizenship should be a right that, once granted, remains. I must declare an interest here, because I am one of over six million people who are potentially affected by this deprivation of the citizenship right because, as anyone who hears me speak will know, I hold another citizenship. Many other people feel like second-class citizens in their own country, because they are; that right can be taken away as it cannot be from other people. All I can do is apologise to all those people that we have failed to get a parliamentary consensus for this and say we are going to keep trying.

[Baroness Suttie (LD)]

My Lords, I shall speak briefly in favour of Motion T1 by the noble Lord, Lord Murphy, which proposes Amendment 40B in lieu. I will be very brief because there have been so many brilliant speeches from the noble Baroness, Lady Ritchie, the noble Viscount, Lord Brookeborough, and, of course, the noble Lord, Lord Murphy. I do not understand why the Government have not shown more willingness to concede on this matter. At every stage of the Bill so far, they have failed to provide convincing evidence that introducing these proposals will be workable or enforceable in practice, especially given the particularly sensitive circumstances on the land border on the island of Ireland.

17:00

There is clear evidence that the Government’s plans for an ETA will have a negative impact on the Northern Ireland economy, including on tourism. Will the Minister say a little more about whether the Government carried out an impact assessment on the effect on the Northern Ireland economy and tourism? I have asked this question at every stage of the Bill so far and I have not had an answer. I urge the Minister to listen to the many noble Lords this afternoon who have so much personal and practical experience and to reconsider, withdraw these proposals and accept this amendment.

[Lord Dodds of Duncairn (DUP)]

I shall speak briefly on Motion T1. It was a pleasure to listen to the noble Lords who have spoken to this important matter. One thing we all agree on is that there should be no checks or barriers along the border between Northern Ireland and the Irish Republic, and certainly there should be no barriers between Northern Ireland and the rest of the United Kingdom. That is an equal assertion. Unfortunately, those of us from a unionist position sometimes feel that the concentration is very much on the north-south dimension and that the east-west dimension is almost forgotten or people call for the rigorous implementation of checks, which is a bizarre position to adopt when there has been so much passion. I agree with those who have argued that there should be no checks between Northern Ireland and the Irish Republic and vice versa.

As someone who lives just about 15 miles from the border, I understand the concerns. However, there are a couple of myths that need to be dispelled. First, we are talking about an international border between Northern Ireland and the Irish Republic and between the United Kingdom and the Irish Republic. It is a different jurisdiction for currency, taxation and fiscal rules. For goodness’ sake, even the road signs change from kilometres to miles. We have different voting systems. All these things matter, and it is wrong to dismiss the guarantees and agreements that were made in the Belfast agreement, as amended by the St Andrews agreement, because it enshrined the principle of consent and that the people of Northern Ireland should remain part of the United Kingdom so long as they voted that way.

The second thing to say gently to the House is that there were checks for immigration on the UK side and on the Irish Republic side of the border—not at the border because nobody wants to stay at the border—even before we left the European Union. I am looking at a tweet put out by the Garda and PSNI in 2018, which eulogises and praises a checkpoint near the Monaghan/Armagh border seeking those in breach of immigration law. There are many other examples we could give. Eight illegal immigrants were caught at a checkpoint in Dundalk just across the Irish border by the Garda Síochána after travelling via England and Northern Ireland. These checks are not done at the border but they are intelligence-led, so it is wrong to suggest that somehow any checks are contrary to the spirit of the Belfast agreement because that is exactly the sort of regime that will apply going forward as it did previously.

The final thing I will say, very briefly, is that—as I mentioned at the start—we must have the same considerations and the same passion and desire to avoid problems against the spirit of the Belfast agreement which has been evoked today and we must ensure that it applies east-west for strand 3 as it does for strand 2. In June 2021, the European Union, as published by the DAERA department in January of this year, was complaining to the UK Government that ferry passengers coming from Great Britain into Larne or Belfast, where there is no border at all—British citizens moving from one part of the United Kingdom to the other—were not having their luggage checked. If anything illustrated the detriment to tourism, for instance, which has been mentioned in this regard, there is an example.

Issues have been raised about people getting access to health and the protocol’s effect on medicines for UK citizens and Irish citizens coming from one part of the United Kingdom to the other. There are barriers to that, yet we do not hear the same concerns. All I am pleading for is balance and equivalence. If checks are wrong north-south, they are wrong east-west.

[Lord Coaker (Lab)]

My Lords, I speak to Motion L1 in my name and, briefly, to some of the other amendments before us. I congratulate the Government on Motion A and welcome the movement from them with respect to the Chagossian community—the Minister deserves credit for persuading the Government to move on that, as does my noble friend Lady Lister and many others for the campaign to advance this cause and issue. The noble Lord, Lord Horam, was right also to point out the efforts of Henry Smith MP who has worked exceedingly hard on this issue.

There will be a number of disagreements between us as we debate this Bill today, as well as many challenges to the Government and pushback—if that is the right phrase to use in the context of this Bill—asking the Government to think again. It shows the importance of how the Lords works to ask the Government to revise their legislation. This is an example of where the Government have responded positively to the various concerns that have been expressed. This shows Parliament at its best and, hopefully, with respect to other issues that I and other noble Lords will raise through our amendments, we will see the same happen elsewhere before the Bill becomes an Act.

On Motions B and B1, the deprivation of citizenship in certain cases, with proper safeguards, is an important tool of our national security. We do not believe that the Government have made the case for the suggested powers under Clause 9 to remove citizenship without giving notice. It remains our preference that the clause should be removed altogether; however, it is clear the debate has moved on from this. In that light, we strongly welcome that there has at least been some movement to introduce safeguards. I pay tribute to the noble Lord, Lord Anderson, whose work has improved the clause and has added much-needed safeguards into the process.

However, Motion B1 from the noble Baroness, Lady D’Souza, raises further extremely important questions about Clause 9. I ask again: is it not the case that the Government must reissue existing deprivation orders that were made without notice under the processes now defined by—what I would call—the Anderson amendments? If a person is currently subject to a deprivation order but they have not been notified of that, when do their appeal rights start and finish? Can the Minister provide clarity on this? There are a number of questions and the noble Baroness, Lady D’Souza, is quite right to point out through her Motion the various problems that still exist, notwithstanding the improvements that have been made. I will be interested to hear the Minister’s response to the noble Baroness with respect to her Motion B1.

On Motion L and my Motion L1, the proposed arrival offence makes arriving in the UK to seek asylum a criminal act. We feel really strongly about this, as indeed your Lordships did. The Commons reason for disagreeing with the Lords over this offence is that

“the Commons consider that it should be a criminal offence for a person who requires entry clearance to knowingly arrive in the United Kingdom without such clearance.”

But do the Government genuinely believe that a person arriving in the UK and asking for sanctuary is a criminal act? That is what is suggested by this offence. At the same time, Ministers have repeatedly stated that they do not intend it to be used in all circumstances to which it applies.

A specific example of what we are talking about came up last week in the debate in the other place when considering a Ukrainian who had fled to the UK to join their family in the first few days after the appalling Russian invasion to escape the bombing and destruction of their home, but who had not completed a lengthy visa process. Under the Government’s proposals, that Ukrainian person would have been guilty of a criminal offence and liable to up to four years in prison. That is surely not what the Government want, but that would be the consequence of their Bill as drafted. Therefore, although that is a very emotive example to give because we all feel so passionately about that, that is exactly what the Bill does. That cannot be right.

The Government say that we need to ensure that there are safe and legal routes, and much of this has been driven by what has happened with respect to migrants crossing the channel. As Damian Green MP, a former Immigration Minister, asked of the Government,

“Home Office data confirms that 87% of those arriving by small boats in 2021 comprised nationals from Iran, Iraq, Syria and Yemen,”—[Official Report, Commons; 22/3/22; col. 199.]

but what safe route is open to them? I know the Government’s answer is that they should stop in the first country in which it is safe for them to do so, but if 87% are from those four countries—as the Home Office data itself says—what difference does the criminalisation of the offence of arrival make? The Bill does not make sense in this regard.

Throughout the passage of the Bill, as I say, Ministers have repeatedly said that this offence is intended to be prosecuted only in specific cases, such as where a person arrives in the UK in breach of a deportation order. If the Government’s intention is for those cases to be prosecuted, they should pass a law which says that. That is why we have tabled our amendment in lieu: to do just that. We have listened to Ministers and what they are seeking to achieve and have actually tried to find a way through. So, our Amendment 13B would provide a specific offence of arriving in the UK in breach of a deportation order. It is an example of the type of specific offence that Ministers can put into the Bill to achieve their desired outcomes. The Commons reason regarding the offence as drafted does not reflect the assurances or the policy intent expressed to both Houses by Ministers. For that reason, we believe that further action is needed on the issue—hence my Motion L1.

On Motions M and M1, the Government have ended up in a position where a person who saves lives at sea without co-ordination of that rescue attempt by the coastguard risks committing an offence. The Government’s answer is that a rescuer in that situation will have a full defence that they have gone to the aid of people in distress, which they are duty bound to do under international law. I accept that the change is not intended to lead to the prosecution of anyone who rescues lives at sea, and we recognise that the Government have moved some way during consideration of the Bill to put beyond doubt that a coastguard co-ordinated rescue is not in the scope of the offence. But we are still left with an unsatisfactory outcome and a lack of clarity on what should be included in the scope of the offence. We have this problem throughout the Bill, and this is yet another example of an offence capturing behaviour that should not be captured. The Bill does not clarify the position and the Government so far refuse in many instances to give us the clarity we need.

Turning to Amendment 20, tabled by my noble friend Lord Rosser, regrettably, we do not believe that there is more to be gained by insisting on sending it back to the Commons a further time. But the Motion tabled by the noble Lord, Lord Paddick, perfectly highlights the remaining issue and would be a simple and sensible addition to the Bill. We support it, and we ask the Minister to consider it seriously.

On Motions T and T1, spoken to by my noble friend Lord Murphy and supported by the noble Baroness, Lady Ritchie, and the noble Viscount, Lord Brookeborough, there is a real problem here, notwithstanding the important points made by the noble Lord, Lord Dodds. We have been raising this issue for months; the border is still an afterthought, and we are seeking to clear the issue up at this juncture. The problem is that the proposed approach is not only unworkable but does not reflect the reality of those who live and work on the border at all.

17:15

Our understanding—we need some clarity from the Minister on this—was that the Government were considering an exemption for those who are not UK or Irish citizens but who are resident. That would cover people who are settled or resident in Ireland and who may cross the border multiple times a day for work, healthcare or childcare. It does not solve the issues of the tourism industry, but it would have been a major step forward. The concession seemed to have been considered—but then it just disappeared. What happened to it? What will the Government do on this issue? Notwithstanding that, we very much support Motion T1 in the name of my noble friend Lord Murphy. We need this exemption to be confirmed and in the Bill.

Finally, the Government are in real difficulty on Motion U, on maritime enforcement powers. The Home Secretary has failed to convince not only Members of your Lordships’ House on her proposals for pushing back dinghies in the channel but the Royal Navy, the Ministry of Defence and Ministers of this Government, who are saying they would not put these policies into action. We will not stop challenging the Government on this issue, but it is clear that this will continue outside the Bill, so I do not intend to vote a further time on it here.

A number of very serious amendments have been put forward. At their heart is the desire of this House to say to the Commons that it needs to think again, providing that they are passed. We seek clarity from the Government on this Bill. That clarity is needed, and that is what these amendments seek to provide.

[Baroness Williams of Trafford (Con)]

My Lords, I thank all noble Lords who have spoken in this debate.

In moving Motion A, I neglected to thank the noble Baroness, Lady Lister, who also attended the meeting about the Chagossians. I thank her for her kind words and acknowledge the role she has played. It sounds like there is agreement to the proposals we have put forward in Motion A. They were definitely well received by the other place and the Chagossian community. The route will be open in due course. I will keep the noble Baroness and the House updated. The Home Office will need some time to put in place the processes that will allow applicants, wherever they live, to make an application for BOTC and British citizenship. This will include creating access to historical records, which will help applicants demonstrate that they are direct descendants of someone born in the BIOT. I will update the House as soon as we have some clear idea of timescales.

I also confirm that, as the noble Baroness said, there will not be application fees. In the meantime, we will continue to work to deliver the £40 million support package she referred to, and we are working with the FCDO to consider whether we can use these funds to support Chagossians seeking to relocate to the UK, which seems a sensible use of the funds. I commend the measures to your Lordships’ House.

I turn to Motion B. I hope noble Lords will agree, as we have already done on Report, with the amended deprivation of citizenship clause. Thanks here are due to the noble Lord, Lord Anderson of Ipswich. We are simply not talking about measures which could affect 6 million people; we are talking about situations where a naturalised person has acquired citizenship fraudulently, or where this is conducive to the public good. I repeat, deprivation on conducive grounds is used sparingly and against those who pose a serious threat to the UK or whose conduct involves high harm. Appeal rights kick in when a person receives the notice telling them of the decision to deprive them of their citizenship. I also point out that the courts have found that only the deprivation order made without notice in the case of D4 was invalid. They did not find that all such orders are invalid. With respect, I therefore ask the noble Baroness, Lady D’Souza, to withdraw her amendment.

Turning to criminal offences and Motions L and M, I repeat that we want to ensure that prosecutors have maximum flexibility to deal with people arriving in but not entering the UK and also to tackle people smuggling. I have set out the sort of circumstances in which we expect these offences to be prosecuted. Amendments proposed by the noble Lords, Lord Coaker and Lord Paddick, would undermine our efforts to tackle egregious forms of criminality, and I invite the noble Lords not to press them.

Moving on to electronic travel authorisations, in Motion T, I was interested to note that the arguments being made against them are actually the reasons for the Irish to introduce one. Once the EU’s comes into force next year, Ireland will stand out as one of the few countries in Europe without an ETA-style pass, among all the other countries that have them. I am very grateful to the noble Lord, Lord Murphy of Torfaen, for explaining to me—an Irishwoman, with a father from Northern Ireland—the context of his amendment. We accept the need for further dialogue with interlocutors, including the Irish Government, Tourism Ireland and Tourism Northern Ireland. I totally accept that point.

I would also like to tell the House that the secondary legislation that will underpin the scheme, which will include details of fees, will be brought forward once the Bill receivers Royal Assent. I can provide assurances that the fees will be competitive with those of comparative systems run by other countries.

In response to concerns about tourism, I observe that people travel for a whole host of reasons, and while the cost or requirement to obtain an ETA in advance of travel may be a consideration, the experiences of other countries with similar schemes show that it is very unlikely to deter a genuine visitor. Once granted, an ETA will be valid for multiple trips to the UK. The cost is likely to be very small for travellers, relative to the cost of travel and the benefits of visiting the UK, and therefore it is unlikely to deter the majority of visitors. Moreover, many of the UK’s international partners have taken a similar approach to border security—the United States of America, Canada, Australia and New Zealand—meaning it is a very familiar concept for travellers. I invite the noble Lord not to press his amendment.

That leaves us only with Motion U. The preservation of life at sea remains our priority and we do not think we need to put this in the Bill. We therefore hope that noble Lords will not insist on this amendment; it is not necessary.

Motion A agreed.

Motion B

Moved by

[Baroness Williams of Trafford]

That this House do not insist on its Amendment 4, and do agree with the Commons in their Amendments 4A to 4F in lieu.

4A: Clause 9, page 11, line 31, leave out “it appears to the Secretary of State that”

4B: Page 11, leave out lines 35 to 41 and insert—
“(b) the Secretary of State reasonably considers it necessary, in the interests of—
(i) national security,
(ii) the investigation or prosecution of organised or serious crime,
(iii) preventing or reducing a risk to the safety of any person, or
(iv) the relationship between the United Kingdom and another country,
that notice under that subsection should not be given.”

4C: Clause 9, page 11, line 44, at end insert—
“(5C) Subsection (5D) applies where—
(a) the Secretary of State has made an order under subsection (2) and, in reliance on subsection (5A), has not given the notice required by subsection (5), and
(b) the person in respect of whom the order was made makes contact with the Secretary of State for the Home Department.
(5D) The Secretary of State must, as soon as is reasonably practicable, give the person written notice specifying—
(a) that the Secretary of State has made the order,
(b) the reasons for the order, and
(c) the person’s right of appeal under section 40A(1) or under section 2B of the Special Immigration Appeals Commission Act 1997.
(5E) Schedule 4A makes provision for the Special Immigration Appeals Commission to consider a decision of the Secretary of State—
(a) not to give notice to a person before depriving them of a citizenship status on the grounds mentioned in subsection (2) (deprivation conducive to the public good), or
(b) not to give late notice to a person who has been deprived of a citizenship status on those grounds without having been given prior notice.”

4D: Page 12, line 9, at end insert—
“(b) after subsection (2) insert—
“(2A) In the case of an order made as described in subsection (1)(b), for the purposes of any rule or other provision limiting the time within which an appeal under this section may be brought, time does not start to run unless and until the person is given notice of the fact that the order has been made (see section 40(5D) and Schedule 4A).
(3A) After Schedule 4 to the 1981 Act insert the Schedule 4A set out in Schedule 1A.”

4E: Page 85, line 1, leave out paragraph (a)

4F: Page 87, line 4, insert the following new Schedule—
“SCHEDULE 1A
DEPRIVATION OF CITIZENSHIP WITHOUT NOTICE: JUDICIAL OVERSIGHT
This is the Schedule to be inserted after Schedule 4 to the British Nationality Act 1981—
“SCHEDULE 4A Section 40(5E)
DEPRIVATION OF CITIZENSHIP WITHOUT NOTICE: JUDICIAL OVERSIGHT
Deprivation without notice: application to Special Immigration Appeals Commission
1 (1) If the Secretary of State proposes to make a conducive grounds deprivation order without notice, the Secretary of State may apply to the Special Immigration Appeals Commission under this paragraph.
(2) If the Secretary of State makes a conducive grounds deprivation order without notice, the Secretary of State must apply to the Special Immigration Appeals Commission under this paragraph within the period of seven days beginning with the day on which the order is made (unless an application has already been made under sub-paragraph (1)).
(3) The function of the Commission on an application under this paragraph is to determine whether, in respect of each condition in section 40(5A) on which the Secretary of State relies, the Secretary of State’s view is obviously flawed.
(4) In determining that question, the Commission must apply the principles that would be applicable on an application for judicial review.
(5) If the Commission determines that the Secretary of State’s view is obviously flawed in respect of each condition in section 40(5A) on which the Secretary of State relies—
(a) if the order in question has not been made, section 40(5) applies in relation to the order (notwithstanding section 40(5A));
(b) if the order has been made, the Secretary of State must, within the period of 14 days beginning with the day on which the Commission made the determination—
(i) give late notice in respect of the order,
(ii) revoke the order, or
(iii) make an application under sub-paragraph (6).
(6) The Secretary of State may (at any time) make an application to the Special Immigration Appeals Commission for fresh consideration of a decision the Secretary of State has made under section 40(5A) where—
(a) in the opinion of the Secretary of State, circumstances have changed materially since the determination mentioned in sub-paragraph (5), or
(b) the Secretary of State wishes to provide further evidence to the Commission.
Sub-paragraphs (3) to (5) apply to an application under this sub-paragraph.
Deprivation of citizenship without notice: review
2 (1) Sub-paragraphs (2) to (5) apply if—
(a) the Secretary of State makes a conducive grounds deprivation order without notice, and
(b) the Special Immigration Appeals Commission has not made the determination mentioned in paragraph 1(5) (Secretary of State’s decision obviously flawed).
(2) The Secretary of State must, at least once in every review period, review the circumstances of the person in respect of whom the order was made (so far as known) and decide whether to give late notice in respect of the order.
(3) On such a review, the Secretary of State must decide to give late notice to the person unless it appears to the Secretary of State that any of the conditions in section 40(5A) is met (reading any reference in those provisions to notice under section 40(5) as a reference to late notice).
(4) If the Secretary of State decides at any point to give late notice in respect of the order—
(a) the Secretary of State must give the notice as soon as reasonably practicable, and
(b) once the notice is given, sub-paragraph (2) ceases to apply in relation to the person.
(5) If on the expiry of the final review period the Secretary of State has not given, or has not decided to give, late notice in respect of the order, the Secretary of State must make an application to the Special Immigration Appeals Commission within the period of seven days beginning with the day after the final day of that review period.
(6) Sub-paragraphs (3) to (6) of paragraph 1 (except subparagraph (5)(a)) apply for the purposes of an application under sub-paragraph (5) as they apply for the purposes of an application under that paragraph.
(7) For the purposes of this paragraph, each of the following is a “review period”—
(a) the period of four months beginning with the day after the day on which the Special Immigration Appeals Commission first determined an application in relation to the order under paragraph 1, and
(b) each of the next five successive periods of four months.
Interpretation
3 (1) In this Schedule, references to making a conducive grounds deprivation order without notice are to making an order under section 40(2) without giving notice under subsection (5) of that section (in reliance on subsection (5A) of that section).
(2) In this Schedule, “late notice”, in respect of an order under section 40(5), means written notice to the person in respect of
whom the order was made specifying—
(a) that the Secretary of State has made the order,
(b) the reasons for the order, and
(c) the person’s right of appeal under section 40A(1) or under section 2B of the Special Immigration Appeals Commission Act 1997.””

Motion B1 (as an amendment to Motion B)

Moved by

[Baroness D'Souza]

At end insert “and do propose Amendment 4G to the words so restored to the Bill—

4G: Page 12, line 13, leave out subsections (5) to (7)”

[Baroness D'Souza (CB)]

The Minister talks about numbers and the D4 case, but there is a principle at stake here: illegal orders have been made and there is no recourse for those affected pre-commencement of this Bill. That is unjust and must be dealt with. I beg to move.

17:24

Division 1

Ayes: 209

Noes: 165

17:42

Motion C

Moved by

[Baroness Williams of Trafford]

That this House do not insist on its Amendment 5, to which the Commons have disagreed for their Reason 5A.

5A: Because the Commons consider that the provisions of Part 2 are compliant with the Refugee Convention, and that it is therefore not necessary to provide expressly that this is so.

[Baroness Williams of Trafford (Con)]

My Lords, I bring noble Lords’ attention to Lords Amendment 5, on compliance of Part 2 of the Bill with the refugee convention. The other place disagrees with this amendment for its Reason 5A. The Government have made it explicitly clear that everything we do is compliant with our obligations under international law, including our obligations under the refugee convention. Consequently, we do not think it is necessary to set that out in the Bill. I therefore respectfully ask noble Lords not to insist on the amendment.

The noble Baroness, Lady Chakrabarti, has proposed a new amendment which seeks to do much the same as the previous amendment: to clarify that the provisions in Part 2 are compliant with our obligations under the refugee convention and international law. For the reasons I have given, I invite the noble Baroness to withdraw her amendment.

Amendment 6 would remove from the Bill the substantive clause relating to differentiation. The other place has disagreed with this for its Reason 6A. The differentiation of those classed as refugees is a fundamental part of the Bill, and as such the Government cannot accept the amendment agreed by your Lordships’ House. It is right that we take all steps to discourage people from risking their lives at sea, and this clause and the criteria it sets do just that. I respectfully ask noble Lords not to insist on the amendment.

For the same reason, we cannot accept the amendment in the name of the noble Lord, Lord Kerr of Kinlochard, which seeks to remove the list of ways in which group 2 refugees may be differentiated from group 1 refugees, under the presumption that this approach will not uphold our international obligations. The Government have been extremely clear on this point throughout the passage of the Bill. I repeat that all the provisions in the Bill are in compliance with all our international legal obligations, including those under the 1951 refugee convention and the 1967 Protocol relating to the Status of Refugees. With this in mind, I ask the noble Lord not to press his amendment.

Lords Amendment 7 would change our approach to allowing people who are claiming asylum to work by reducing the period in which claimants may not work from 12 months to six months. It would also remove the condition restricting jobs for those who are allowed to work to those on the shortage occupation list. We think that this would allow people to bypass the proper process of applying for visas and paying relevant fees to work in the UK. It could also encourage channel crossings. We recognise the importance of ensuring that claims are settled as quickly as possible, and I am grateful to my noble friend Lady Stroud for the conversations that we have had. We want to see claims settled within six months so that people can get on with rebuilding their lives, and that includes working. However, the Government cannot accept this amendment, which the other place disagrees with for its Reason 7A. As such, I ask that it not be insisted on.

17:45

As I have said, I am grateful to my noble friend Lady Stroud for the discussions that we have had on this topic; she has now tabled an amendment on it. When debating the policy, much has been made of the fact that recent polls suggest that more than 80% of people support a right to work for asylum seekers. I counter that by saying that the poll was framed in such a way as to get this sort of response; I suspect the result would have been rather different had people been asked whether they thought that small-boat migrants ought to be able to work after six months. This takes the issue completely out of context and ignores the bigger picture.

Polling has also suggested that 73% of people think that illegal channel crossings are a “serious” issue; 50% think that the UK does not have a responsibility to protect people who have travelled from safe countries such as France; 65% think that Britain should refuse to accept asylum applications from people who have entered the UK illegally and could reasonably have claimed asylum in another safe country; and 55% think that our current approach to small boats is “too soft”.

From this, I conclude that this Government have a clear mandate to both protect the integrity of our economic migration schemes and ensure that there is no incentive for people to make secondary movements across the channel. Academic evidence, from which I have previously quoted at length, suggests that many engage in secondary movements primarily for economic reasons. We must instead ensure that our asylum seeker right to work policy supports our objectives elsewhere in the immigration system, and we must ensure that it does not offer people the opportunity to undercut our position on economic migration by simply lodging an asylum claim—that is why our policy is designed as it is. A more relaxed asylum seeker right to work policy would create a back door into our labour market. I am sure that noble Lords will agree that we simply cannot encourage that.

I turn now to the reporting requirement in my noble friend’s amendment, which says that a review must be completed within four years of implementation —but no sooner than three years—to consider whether the amendment has encouraged people to claim asylum in the UK. This would be inappropriate simply because it could tie the hands of a future Government. Not only that, but there is already plenty of publicly available evidence—academic and otherwise—to suggest that secondary movements from safe country to safe country are economic. Indeed, a draft document shared with us by Fedasil, the Belgian asylum service, intended to handle frequently asked questions from transit migrants in Belgium, features as its number one question:

“Is it easier to find a job in the UK?”

This illustrates the primary economic motives of migrants moving from one safe European country to another. It is firmly supported in academic studies by, among others, Brekke and Aarset, Brekke and Brochmann, Takle and Seeberg, and Hagen-Zanker and Mallett. Accordingly, I do not think it necessary to repeat this work, all the while leaving our economic migration schemes compromised and making the UK even more attractive for those wishing to make unmeritorious asylum claims. It is also unclear to me how we would go about disaggregating the impacts of this policy from other pull factors and deterrents in a satisfactory manner, given that the evidence I have already cited is still not accepted in some quarters as enough to support the Government’s current policy position.

I will touch briefly on the requirement in my noble friend’s amendment that the repeal of the Immigration Rules governing the proposed policy change should be done via the affirmative procedure. That would be highly irregular. Not only would the amendment set out in primary legislation what the policy should look like and make repeal conditional on a report—meaning that further scrutiny was surely unnecessary—but the Immigration Rules are subject to their own parliamentary procedure, as set out in Section 3(2) of the Immigration Act 1971. Parliamentarians may of course pray against any changes to the rules within a 40-day period.

On Motion F, on inadmissibility and returns agreements, Amendment 8 would require one or more returns agreements to be in place with a safe third country before the inadmissibility provisions in Clause 15 could be brought into force. The other place has disagreed to this amendment for its Reason 8A. Inadmissibility provisions are already in operation under the Immigration Rules, and that will continue until the Bill’s provisions are commenced. These provisions do not require agreements to be in place and allow for case-by-case removals, and such removals are no less appropriate or safe for being arranged in that way. In our view, it is simply wrong to tie the commencement of Clause 15 to the conclusion of international agreements with other countries or states. I therefore ask that the House does not insist on this amendment.

The noble Lord, Lord Rosser, has tabled a further amendment, which is identical to that agreed on Report in the Lords but for a sunset clause that would cease its effect after five years. That slight variation does little to address the issue that we have with this amendment, and which we have been very clear about throughout the passage of the Bill. I repeat: it is right to allow for removals to be sought on a case-by-case basis where appropriate, and where the consent of the relevant country is obtained to make that removal. As I have made clear, this approach has formed part of our inadmissibility process since the changes to our Immigration Rules in December 2020, and until the Bill provisions come into force we will continue to rely on those rules. I therefore ask that this Motion not be moved.

On Motion G, Amendment 9 would remove provisions that support our future objective of enabling asylum processing overseas. Overseas asylum processing is one part of a system-wide reform designed to break the business model of people smugglers and disincentivise unwanted behaviours. We will do this by making it possible to remove someone without going through a certification process, provided that the place to which they are being removed meets specified safety requirements. By working to establish overseas asylum processing, we are sending a clear message to those risking their lives and funding criminal gangs both here in the UK and abroad, or else otherwise abusing the asylum system, that such behaviour is not worth it.

We must make it easier to ensure that such people are simply not allowed to remain in the UK. Access to protection in the UK should be based on need, focusing primarily on people in regions of conflict, not on those brought to our shores by the actions of criminal enterprise. So I ask noble Lords not to insist on this amendment, nor on the consequential Amendments 52 and 53, to which the other place disagrees for its Reasons 52A and 53A.

I note that the right reverend Prelate the Bishop of Durham has tabled Amendments 53B to 53D, which aim to limit our ability to remove someone with a pending asylum claim overseas for their claim to be processed unless both Houses have agreed to a state being prescribed by order as safe. The amendments would also prevent the laying of an order before Parliament until we had laid before both Houses a proposal setting out our estimated costs for any arrangement made with a third state.

I remind noble Lords that these measures are in fact not new and alone they do not enable overseas asylum processing. For nearly 20 years it has been possible under UK law to remove individuals from the UK while their asylum claim is pending, if a certificate is issued under Schedule 3 to the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004. That Act already contains an affirmative procedure for adding countries to the list of safe countries. This aspect of the amendment is therefore, with respect, unnecessary. That is because the measure in the Bill simply amends the existing legal framework to make it easier to remove individuals without going through that certification process, provided that the country they are being removed to meets the safety criteria that we have set out in the Bill. The principal consideration prior to removal will be the individual’s safety.

I know that the costs of overseas asylum processing have been the source of some speculation in the House. That is clearly a matter for the negotiating table and I will not prejudice those discussions by providing an estimation at this time, but I will update the House in the usual way if and when a deal is struck. I therefore ask the right reverend Prelate the Bishop of Durham not to move his Motion.

On Motion H, dealing with family reunion, the other place disagrees with Amendment 10, which would expand family reunion rights for asylum seekers and create a more generous approach on family reunion to those who are already in Europe. We do not think this would be fair. We have been very generous in our provision of family reunion rights, granting over 40,000 family reunion visas since 2015. The Government’s family reunion policy allows a spouse or partner, and children under 18, of those granted protection in the UK to join them here if they formed part of the family unit before the sponsor fled their country.

There are separate provisions in the Immigration Rules to allow extended family to sponsor children to come here where there are serious and compelling circumstances. There is also discretion to grant leave outside of the Immigration Rules, which caters for extended family members in exceptional circumstances, including young adult sons or daughters who are dependent on family here and living in dangerous situations. This is a single global approach to family reunion that does not encourage what are often dangerous journeys into Europe. I also note that the other place disagrees with the amendment for its Reason 10A, as it would alter financial arrangements made in that House.

The noble Lord, Lord Dubs, has tabled an amendment in lieu relating to Amendment 10. He has also written to me. I owe him a response, and I apologise for the fact that he does not yet have it. I assure him that it is coming; in fact, I signed it off this afternoon. We think that his amendment was to broadly cover the same ground as the amendment already rejected by the other place but with an intention to remove references to adults who might want to come to the UK to claim asylum where they have family links, focusing instead on unaccompanied minors. Children, including unaccompanied children, can already apply under existing immigration routes relating to family reunion from any part of the world.

However, the drafting of the proposed new clause remains very broad. There are also risks with having such a clause on the statute book, given that proposed new subsection (1) could be interpreted as a broad duty requiring us to provide a route for all persons of all ages to be able to claim asylum in the UK. We cannot encourage dangerous journeys to Europe to benefit from such a provision; nor can we support such unclear legislation. We therefore cannot accept the proposed new clause.

On Motion J, regarding the target number, in Amendment 11 we are asked to consider the proposition that we set a resettlement target of at least 10,000 refugees per year. The Government’s policy on resettlement is that schemes operate outside of the Immigration Rules and on a discretionary basis. We have resettled over 27,000 people in this way since 2015. We do not think that setting targets is appropriate. On that basis, the other place has disagreed with this amendment for its Reason 11A, and I ask that this House does not insist on it.

Similarly, we cannot accept the further amendment proposed by the right reverend Prelate the Bishop of Durham, which asks us to set an undetermined figure for the resettlement of refugees in the UK each year. This would essentially allow the Government to set any figure they want, which I am not sure would take us any further forward. I also emphasise that we are completely committed—as we need to be—to having the appropriate infrastructure in place to manage the inflow of resettled persons. I respectfully ask the right reverend Prelate not to move his Motion.

18:00

Moving on to Motion K on genocide, and Lords Amendment 12 relating to specific provisions in the asylum system for victims of genocide, I put on the record my thanks to noble Lords for debating with compassion an issue that unfortunately still haunts the world today. The UK stands with all victims of genocide. The Government use their voice in the world to ensure that human rights are stringently maintained. But, to echo the Minister for Justice and Tackling Illegal Migration’s words on this topic in the other place, it is not practical for us to be bound to consider asylum claims in British missions from the very large number of individuals overseas who might like to come here. Once processed, this would add an extra burden to UK-based caseworkers, who would also have to assess whether the individual then met set criteria. This is not practical and would alter the financial arrangements made in the other place, which has disagreed with this amendment for Reason 12A.

The noble Lord, Lord Alton of Liverpool, has proposed another amendment on genocide, which would publish—with reference to the UK’s asylum and immigration systems—a report on the Government’s approach to the treatment of victims of genocide and a comprehensive policy on the Government’s response to the duties contained in the 1948 Convention on the Prevention and Punishment of the Crime of Genocide. It will of course be for the other place to determine whether this amendment engages its financial privilege but, either way, the Government cannot accept the further amendment.

As noble Lords will know, the UK has a very proud history of providing protection to those who need it. Protection is normally granted where a claimant has a well-founded fear of persecution under the refugee convention or where their circumstances engage our obligations under Article 3 of the ECHR. Although we do not specifically reference the genocide convention as part of our asylum consideration, if an individual were to be at risk as a result of genocide, they would likely qualify for protection as a result of either the refugee convention or the ECHR. Each claimant is an individual with unique circumstances, and this requires individual consideration. I do not think that it is necessary for the Government to publish reports to demonstrate our compliance with international obligations —we comply, and we will continue to comply. I therefore ask the noble Lord not to move his Motion.

Motion C1 (as an amendment to Motion C)

Moved by

[Baroness Chakrabarti]

At end insert “and do propose Amendment 5B in lieu—

5B: Insert the following new Clause—
“Interpretation of Part 2
For the avoidance of doubt, the provisions of this Part are compliant with the 1951 Convention relating to the Status of Refugees and the 1967 Protocol relating to the Status of Refugees, and must be read and given effect as such.””

[Baroness Chakrabarti (Lab)]

My Lords, while supporting a number of other Motions in this group, I beg to move Motion C1. The refugee convention is both a memorial to Hitler’s victims and an essential component of the post-1945 rules-based order. It offers protection as of right, not dependent on executive largesse to pick and choose which refugees should be saved and which continent or conflict these should be escaping from.

Renowned jurists in your Lordships’ House and beyond say that the Bill violates the convention; Ministers disagree. Our intention is to resolve the argument with a modest but vital insurance policy, ensuring, for the avoidance of doubt, that our courts will resolve disputes of interpretation and action compatibly with the convention.

As a public and constitutional lawyer, I take the primacy of the other place very seriously. This is neither a money nor a manifesto matter. Indeed, it gives effect to the Government’s emphatic policy of refugee convention compliance in times when this could not be more important. No reasonable Government should object. If your Lordships’ House were not to insist on its inclusion in the legislation, we would fail in our duty to protect the international rule of law.

[Lord Judge (CB)]

My Lords, I support the noble Baroness, Lady Chakrabarti. It is perfectly obvious that the Commons reasons tell us that it agrees that the legislation should be compliant with our international obligations. The Minister has just told us that everything that we do will be compliant with them. I regret that a number of us take the view that these provisions do not so comply. The decision will ultimately be made by a court. If the Commons is right, that is well and good—fine, there would be nothing to argue about—but, if we are right and the view of the Commons is wrong, the judge would be bound by this legislation to disapply the convention and the protocol. No one would be able to say, “Ah, but the Commons reasons say that it is compliant”. The Commons reasons will not be in the legislation.

It is very simple: we respectfully suggest that the Commons should be asked to think again and reflect on the consequences if the advice that it is receiving is wrong and the advice that we are suggesting is right, and to avoid the problem that its own expressed legislative intention—that the legislation should be compliant—will prove to be wrong. It is very simple—all doubt can be avoided by this amendment.

[Lord Brown of Eaton-under-Heywood (CB)]

My Lords, my focus in this group will be on Motion C1 of the noble Baroness, Lady Chakrabarti, but I crave your Lordships’ indulgence to make one or two introductory remarks.

There could never be a good time for this particular Bill, but we can quite sure that there could hardly be a worse time. Make no mistake: the Bill will affect our standing on the world stage. It seems to me fairly obvious that the Bill was drafted with one particular major objective in mind: to make asylum seeking in the UK as unattractive as one can, to deter and discourage as many prospective refugees from coming here as one can and to refuse such claims as one can.

Of course I recognise that we have special refugee resettlement schemes for a number of substantial groups from around the world, from Syria, Afghanistan, Hong Kong and now—if, alas, somewhat delayed—Ukraine. I also recognise that there is a real and growing problem with a number of refugees—not, of course, those profiting from these schemes—so desperate as to risk their lives in the tragedies of crossing the channel. The draconian measures proposed here will not solve that problem and are not justified—as if aspiring refugees will henceforth say to each other, “Don’t bother coming to the UK. It is very unwelcoming and inhospitable. Just read this Bill”. I do not believe that for all the world and, frankly, I regard it as entirely fanciful. Unless noble Lords believe that this will solve the problem, we should continue to resist at least the most objectionable of the measures being promoted.

As to these, coming to Motion C1, my focus as an ex-judge who used to decide quite a lot of these asylum cases is above all on the legality of these proposals. I truly believe, as do many others, that several of these provisions flagrantly breach our obligations as interpreted by the UNHCR, the body responsible for that under the convention. That is why Motion C1 is all-important. Several later clauses in this part of the Bill purport to define or redefine our obligations under the convention. Of course, as my noble and learned friend Lord Judge says, the Government assert that they do so absolutely fairly and that they give effect to the convention, but that is not the view of a great number of respected bodies besides the UNHCR, such as the Bingham Centre, the Joint Committee on Human Rights and so forth.

On Report, we passed the amendment which Motion C1 is designed to replace and effectively reproduce. Having passed it, we did not go to the lengths of voting down the individual substantive clauses that redefine all the various ingredients of our obligations under the convention. Instead, we inserted that amendment and that is what we must do again. The Government’s objection to it is no more and no less than that it is not necessary, because they are going to comply with the convention anyway. I always think that the weakest grounds for objecting to any clause is that it is not necessary. I respectfully suggest that here it is crucial. I must explain why and noble Lords must forgive me as I do so.

On 28 February, during Report, the Minister then promoting the clause of the Bill, the noble Lord, Lord Wolfson, rightly said of the proposed new clause—the Baroness Chakrabarti clause, if I may call it that—that it

“potentially leaves the nature of obligations and terms under the convention open to the interpretation of the courts, removing the certainty that we are trying to achieve.”

I then intervened before the Minister sat down, because that rang a great red bell with me. I asked whether I rightly understood him as saying by that that, without this amending provision, the courts would be excluded from considering whether the Bill correctly implements the convention obligations. That he confirmed, rightly observing that the courts

“are not there to go behind legislation”.—[Official Report, 28/2/22; col. 609.]

As I suggest, we then wisely passed the amendment introducing the new clause by 218 to 140, a majority of 78.

We come then—I am anxious not to bore the House, but it is necessary to get this point across—to the Commons debate on the Lords amendments on 22 March. That makes depressing reading when you consider how cursorily—and, dare I suggest, superficially —our various amendments, passed after long, painstaking hours, were summarily rejected. Here, one finds that, in response to the suggestions of some Members that it would indeed be a good idea to leave the amendment in, because some of us were saying that the legislation would otherwise be in flagrant breach, the Minister said:

“I … make the crucial point that we have an independent judiciary in this country, and it is open to people to bring points of challenge where they believe that there are grounds for doing so.”


This the Minister described as a

“cornerstone … evolved over centuries”.—[Official Report, Commons, 22/3/22; col. 185.]

I do not for a moment suggest that the Minister was intentionally misleading the House, but the plain fact is that, as the noble Lord, Lord Wolfson, had rightly agreed at Report, Mr Pursglove was quite wrong to suggest that there was no need for this amendment because the courts would anyway deal with the challenge to the legislation based on suggested non-compliance. I repeat: the amendment is vital. The courts otherwise cannot go behind the definitive clauses in the Bill and would have to apply them, compliant or not. Without this clause, the lead argument is pre-empted and foreclosed, as the substantive clauses operate, if I may use the term, as ouster clauses of the courts’ jurisdiction. I urge your Lordships not to accept them.

18:15

Finally, at Third Reading, the noble Baroness, Lady Stowell of Beeston, for whom I have the greatest respect and no little liking, cautioned us, with some justification I felt, against a tendency to treat those opposed to this Bill, as we are, as “kind and generous” in feeling and those promoting and supporting it as uncaring and ungenerous. Indeed, I for my part would accept that, on occasion, some of us do seem to fall or succumb to the temptation of what I think we can call virtue signalling, rather than facing up to harsh realities. However—I really cannot overemphasise this—I assert that standing up for the rule of law, internationally as well as domestically, is not virtue signalling, but rather our constitutional duty. The only way to achieve this in the Bill and to even have the opportunity of testing the Bill for compliance in future is by including this clause, the subject of Motion C1. We need to stand up and be counted. I support this group as a whole, but if ever one cannot afford to lose a provision, this is it.

[Lord Kerr of Kinlochard (CB)]

My Lords, after two such learned speeches and such fireworks, I fear it falls to me to make an unlearned speech on the Motion in my name, Motion D1. Most of my arguments have just been pre-empted, of course, because the case for Motion C1 applies in full to Motion D1. I would not dare to go into the law as powerfully as the two previous speakers have done. However, it is perfectly clear that the 146 states party to the refugee convention, the courts of the United Kingdom and the UNHCR have all applied the convention in one way up to now and, if we pass this Bill, we will have decided that it should be applied in a different way. There is nothing in the refugee convention about how the individual reaches the country in which he seeks sanctuary. There is nothing in the refugee convention which provides a basis for differentiation and the creation of two classes of refugees, which Clause 11 of the Bill introduces. The only question one asks is: does the would-be asylum seeker have a well-founded fear of persecution back home? If so, under the convention, he is entitled to seek our protection and, since 1951, we have been committed to providing it. That, in layman’s terms, is what is wrong with Clause 11 of this Bill and that is why we struck it out by a large majority.

What happened then is really rather bizarre—and very similar to the description from the noble and learned Lord, Lord Brown, of the debate on Clause 9 in the House of Commons. The arguments that have just been made by two distinguished learned Members of this House, and the argument that I am making, had been advanced over several days of debate in this House. They were dismissed in three sentences in the other place. The Minister simply said, without attempting to refute anything that had been said here, that the new differentiated approach was needed to deter dangerous journeys to this country. That is not so. We all know that the way to stop tragedy in the channel is to open a safe route. We all know that if somebody from Kyiv, desperate and despairing of our creaking bureaucracy, were to turn up here without a visa it would be quite wrong to refuse her full rights to refugee protection. Her well-founded fear of persecution would be all too obvious, yet Clause 39 might criminalise her and Clause 11 would guarantee that, if she were accepted as a refugee, she could be only a class 2 refugee, subject to offshoring and all the nastiness that follows in the subsequent clauses of the Bill, and those who had helped her could face criminal charges. With respect, the Minister in the other place was wrong. Clause 11 would not deter her from coming here; it would simply penalise her for doing so. I do not believe that the country would think that right.

The same goes for those coming from Kabul. Like from Kyiv, there is no direct route, so they automatically all fall into class 2, as with those fleeing famine in Ethiopia, Eritrea and the Yemen, the great majority of those now trafficked across the Channel. Since we do not issue humanitarian visas, there is no official route open to them. The way to put the traffickers out of business is to open such a route. For us to treat with group 2 inhumanity those who the traffickers have exploited and endangered would be rather immoral and would certainly be a breach of the refugee convention. I think we got it right the first time in taking the clause out. I think the concern across the country about the way that the Government are treating the victims of Putin’s war in Ukraine shows that we are more in tune with the national mood than the Home Office.

I have been advised, however, that I should offer a compromise, hence Motion B1, which concedes to group differentiation but only if it does not rob group 2 of any of their rights under the convention. It would permit the Secretary of State to privilege group 1, if she so wished, but it would mean that we did not betray our traditions or breach international law. I hope that, given another chance, the other place may be willing to consider the legal arguments so thoroughly explored in this House and by the two preceding speakers.

[Lord Cormack (Con)]

I shall be brief. I have not really spoken on this Bill before. I sat with increasing disappointment and sadness through the debate on Report and I became increasingly convinced that this largely unnecessary Bill is narrow and mean-minded and at times approaches the vindictive. I did not vote in the 10 votes that we had, but I feel moved to get up and say a few words this evening, largely because of the powerful and commendably brief speech by the noble Baroness, Lady Chakrabarti. We have had some excellent speeches since which make one essential point: do you wish to be in danger of breaching international law and also international humanity? That is what fundamentally it is all about.

The other place treated your Lordships’ House with disdain. The way in which it dismissed amendments that had been carefully argued and, in many cases, passed by large majorities was not worthy of a House of which I was proud to be a Member for 40 years. I was thinking of this and it dawned on me—although it should not have dawned on me and I should have been very well aware of it—that there is no scrutiny at the other end of the Corridor. The timetabling of every Bill is, I am afraid, the fault of the Labour Government provoked by the Conservative Opposition in 1997. I made a promise on behalf of the Front Bench on behalf of the Conservative Party that, come a Conservative Government, programming would be done away with. Of course when we first had a coalition Government and then a Conservative Government, programming was very convenient and so it was maintained. So there is no proper scrutiny. Sometimes important chunks of Bills are not even discussed. There is scrutiny at this end of the Corridor. Very occasionally, there is a little glimpse of filibustering, but not very often, and we try to look at these things in depth and with care. There are various watchwords which should guide us in what we do: do not give powers to your own Government that you would not wish an Opposition Government to have; err on the side of caution; be careful not to do to others what you do not want them to do to you. Those of us with a Christian background feel that very acutely.

What are we talking about here? We are talking about some of the most persecuted and endangered of humanity who are not motivated by legislation when they catch the train or drive their car or get into boats but are motivated by a desire to enjoy a freer and better way of life. Of course they come from all sorts of backgrounds, but at the moment we have a particular group uppermost in our minds. They are fellow Europeans and we can identify with them. When we see the blitzed remnants of their flat or house, we know it is the sort of place that we could live in.

18:30

We have a duty, which has been embraced with an extraordinary fullness of compassion by the Poles and other nations in Europe, to make it as easy as possible for those who want to come here to do so. They do not want to be here for long. It is their desire to go back to Ukraine that motivates them. It is not a question of asking the Commons to think again, since they have not thought, but of asking them to think. If tonight we pass the amendment tabled by the noble Baroness, Lady Chakrabarti, we are saying, “Please, do consider, and also consider your country’s reputation and your Parliament’s reputation as an upholder of the rule of law, nationally and internationally.” If they send it back, we will have to think again, but for the moment, we have a duty to support Motion C1. I will certainly do so.

[Baroness Jones of Moulsecoomb (GP)]

My Lords, there is a danger for a Green such as me in agreeing so strongly with two noble Lords from the opposite side of the Chamber—the noble Lords, Lord Cormack and Lord Horam—but it is not my fault; they have moved towards my position, just to be clear. The noble Lord, Lord Cormack, made a wonderful speech.

I disagree with the noble Lord, Lord Cormack, on the other place having treated this House with “disdain”. It is worse than that. It is contempt. It is real contempt that they have not read what we have done. I say to the Minister that here we have some incredible legal advice, from the noble Baroness, Lady Chakrabarti, the noble Lord, Lord Kerr, and the noble and learned Lords, Lord Judge and Lord Brown. It is free and it is good, so why are we not taking it? Why do the Government still resist that we are breaking the law if we allow the Bill to go through?

The brilliant Twitter lawyer, David Allen Green, often mocks the use of “for the avoidance of doubt”, because well-drafted text should not allow any doubt in the first place. However, the Government seem not to understand that this is what they are doing. They are opening an option for a lot of court cases, and they have slashed the amount of money that is going into the legal system anyway, so it will be very difficult to do those court cases. They are not just avoiding taking the advice of this House but allowing themselves to break the law. I do not understand why any Government would think like that.

If we are to comply with our duties and obligations to the refugee convention, we must vote for Motion C1.

[Lord Horam (Con)]

My Lords, perhaps I might offer a slightly different perspective. One of the difficulties that we have had with the Bill throughout is that we are considering things back to front. Normally, when there is policy proposal, you get a White Paper, then a period of consultation, then you come down to the details of the Bill when you can see in law what the proposals are and discuss them in detail. Here it is the opposite way round. We have a Bill, but we do not know what the policy is. Essentially, the Bill has come forward as an enabling Bill to allow the Government to address the issue of illegal crossings of the channel, so we are doing things the wrong way round. It is even worse than that; old hands here will remember the halcyon days when we had Green Papers, which proposed a certain progress of action. We would then have a White Paper setting out a government policy, and then we would have legislation. Here, we are doing it the wrong way round.

The reason is a fairly practical one, as I understand it. In this case, dealing with cross-channel migrants, we must deal with foreign Governments. We must have agreements, certainly with the French and possibly with the Belgians, Dutch and other countries that we want to deal with. That is the problem, and the practical reason why we are doing things the wrong way round.

It leads to a difficulty in that the Opposition rightly have questions which they want answers to, but the Government cannot answer the questions because they do not yet know what the policy will be. There is a package of measures, some of which we can imagine would work and some that would not work, but we do not know what those practical measures are. Equally, the Government have difficulties. They cannot answer some of the questions that are being put by the Opposition because they do not know what the policies are either. Certainly, we Back-Benchers are in darkness. There is a real problem there.

That has a bearing on the arguments which have taken place and which we cannot entirely resolve in this sort of debate. The noble Lord, Lord Kerr, made the point, which I think is the Opposition’s principal position, that the problem would be solved if we could open legal routes to all the refugees who wish to come to this country. The problem would be resolved that way if we had enough proper legal routes.

The Government’s position is clearly that this probably would not work, because even if you had large numbers of legal routes, if traffickers were still able to give the clear message to their victims that they could get into this country and could stay, work and have a life here, they would still be in business. That is a matter of practicality and judgment. Would having enough legal routes solve the problem? Remember that the traffickers deal not just with human beings but with drugs and all sorts of criminality. If they remained in business, doing business across the channel, you would still have this trade in human beings. That is the practical, judgmental issue at the bottom of this, and we do not know the answer because we do not know the package of measures that the Government will come forward with. We are looking only at the enabling legislation.

I fully accept the additional point that we must look at the effect on refugees of international law. I take the point made by the noble and learned Lord, Lord Brown, that there is a significant issue here. However, those who make that point must accept that the Government are equally sincere in thinking that there is an issue here on which they remain fully compliant with the 1951 convention. The noble Lord, Lord Wolfson of Tredegar, gave a very well-organised defence of the Government’s position, setting it out very clearly. I am not a lawyer so cannot comment on that. All I can do is accept the Government’s advice that they are compliant with the convention.

Finally, I agree with my noble friend Lord Cormack that there is a problem with the House of Commons considering these issues because of timetabling. This is a pervasive issue in the House of Commons. It has been there for years, and they have found no real solution to it. Just as we can go on for as long as we want and for as long as time and patience permit, they are timetabled for six hours or whatever it may be and, therefore, inevitably, immensely important and worthwhile issues such as this as compressed, very often into a few moments, with a ministerial response of a few minutes. This is wholly unacceptable. We have found no way round that, but we must deal with a situation as we have it. For example, in response to the point made by the noble Lord, Lord Kerr, the vote in the House of Commons was a majority of 98 against his proposal that there should be differentiation between group 1 and group 2—that decision to differentiate passed by a majority of 98 in the House of Commons.

That is a massive majority and reflects not just questions of law but the justified concern of the House of Commons about human trafficking across the channel. I am sure that we are all concerned about refugees not only from Ukraine but from other countries —everyone is concerned about that—but how we stop illicit human trafficking across the channel is a separate issue. Everybody is trying to do their best here; in some cases, the procedures that we have to adopt are very unsatisfactory but I hope that people accept that the Government are trying to do something that, in their judgment, is a practical answer. Even those who do not agree with them should understand that this is a matter of judgment. We will not know the full consequences for some time to come, until the Government’s policies are clear—but not to allow them to pursue their policy with the flexibility and elbow room that they need would in my view be a grave misjudgment.

[Baroness Stroud (Con)]

My Lords, I speak in support of Motion E1 in my name, and refer to my entry in the Members’ register of interests and my connections with RAMP. I am grateful to my noble friend the Minister for the constructive way in which she has engaged with me since we last debated in this House the right of asylum seekers to work after six months. I will not rehearse all the arguments for extending the right to work as we have done that on multiple occasions, but I want to address some of the arguments that have been put forward by the Government. I am grateful to the Minister for sharing some of her concerns with me; I will briefly address three of these.

First, there appears to be a concern that, if we extend the right to work for asylum seekers, we will extend that right to those who are convicted criminals in their home country. Although only a tiny proportion of those who apply for asylum fall into this category, it is a legitimate concern. However, I do not believe that it should stand in the way of right-to-work reforms because all those in this category should be held in immigration detention anyway and would be unable to work by virtue of that status.

Secondly, there is a concern that this may encourage more mendacious claims; again, I believe that this has become an exaggerated argument. The figures as they stand find that 72% of people who apply for asylum get accepted on the initial decision before any appeals process has begun. This is a sign that the vast majority are not applying with mendacious claims but are genuine refugees. There is a danger that, in our current system, we are penalising these people by not allowing them to work and unnecessarily putting significant stumbling blocks in the way of their integration.

Thirdly, there is a concern about incentivising the pull factors; we have heard an awful lot about this. I once again believe that this is exaggerated, based on anecdote rather than raw empirical data. I also think that this adjusted amendment before the House today addresses any possible concern by introducing a four-year trial period with a review three years in to determine whether indeed there is any pull factor. This has the pragmatic benefit of meaning that we will be able to address existing labour shortages in the immediate term while giving the Home Office an opportunity to assess whether concerns that this contributes as a pull factor have any backing in meaningful empirical data. There are no studies that currently back this perspective.

In summary, the Government say that the amendment is not needed because, in the new system, all those coming by legal and safe routes would have an immediate right to work—but this actually supports the amendment. Why are we happy to give an immediate right to work to Ukrainians but not to others who come to this country? The Government say this is not needed because in the new system, even including appeals, the process will take only six months. That is great, but we are not there yet and, to my knowledge, we have never been there. The Government say this is not needed because the new system will be so clear that they will be able to focus on the backlog and on those who come in via alternative routes. Again, this sounds great but, at this moment, all evidence is to the contrary.

Even the new system for Ukrainians cannot flex or adapt quickly enough and already shows signs of significant strain. No one more wants the system to be sorted than me or other noble Lords, but we have waited many years to see it happen. There are between 60,000 and 80,000 people who need to be able to work; they should be experiencing a Britain that enables asylum seekers to rebuild their lives and create their own pathway from poverty to prosperity.

18:45

[The Lord Bishop of Durham]

My Lords, in rising to speak in support of Motions G1 and J1, I declare my interests in relation to both RAMP and Reset, as set out in the register. I continue to be of the view that Clause 11 is the most inhumane part of the Bill. I therefore continue to support both Motions C1 and D1; I also support Motions E1 and F1.

The noble Lord, Lord Kirkhope, would have liked to move Motion G1 but is unable to be in the Chamber today, so we have worked together on this. When people arrive on our shores seeking protection, we have a responsibility to treat them as we would wish to be treated if indeed we had to flee for our lives. It is right that we have a process to determine who meets the criteria for refugee status but, while we determine this, we are responsible for people’s safety, welfare and care. If we move them to other countries for the processing of their asylum claims, I very much fear that a blind eye will be turned to their treatment; the Nauru experience in Australia sadly points that way.

The inhumanity of this part of the Bill is my primary concern. There are, however, significant practical and financial concerns related to the passing of Clause 28 given that we do not have details of how or where this offshoring would operate. Although this was acknowledged by many MPs supporting the legislation in the other place, they were of the opinion that the Home Secretary should have these powers available to her if needed. On that basis, Motion G1 would allow the Home Secretary these powers while introducing much-needed transparency and a check on the introduction of an offshore processing and detention system. This would allow proper consideration by both Houses of the appropriateness and safety of the host country proposed, and whether it meets the Home Secretary’s assurance of being a safe third country for the asylum seekers transferred there, including whether it can provide safe, humane and appropriate accommodation and processing of asylum claims.

Offshore processing and detention of asylum seekers is likely to be many times more expensive per person than alternatives that would see asylum seekers processed in our communities in the UK. This amendment would ensure that parliamentarians can ensure that the offshore system proposed provides value for money for the British taxpayer, that spending on the system is proportionate to the issue addressed, and that the same goals cannot be better served by an alternative approach on our own shores.

The Home Secretary is committed to the option of transferring asylum seekers offshore and at this time she has the support of the majority of her party. She should therefore be confident that an additional check and degree of transparency will not obstruct that policy but reassure her party and the public that offshore processing and detention of asylum seekers is the best approach. The noble Lord, Lord Kirkhope, and I are grateful to the Minister for the conversations and contact we have had regarding this over the past few days. We remain willing to engage in further dialogue to help Her Majesty’s Government reach a positive conclusion to our proposals. I hope that the Minister may still change her mind. I have one other question: will the Minister confirm that discussions are already at an advanced stage with at least one nation?

I turn now to Motion J1, in relation to Lords Amendment 11. Again, I have tabled this Motion is association with the noble Lord, Lord Kirkhope. The fundamental premise of the Bill is that people seeking safety in the UK should arrive by safe and legal routes, rather than by making irregular journeys. My concern in tabling this amendment is that there are not sufficient safe routes from the countries where the majority of asylum seekers arriving in the UK originate. For these countries, the UK resettlement scheme offers a safe route, but the numbers currently remain small. The Syrian resettlement scheme offered an orderly pathway to protection and integration for the most vulnerable refugees. I was therefore encouraged when Ministers set out in their Explanatory Notes to the Bill that the Government intend to enhance resettlement routes to continue to provide pathways for refugees to be granted protection in the UK. The reality, however, is that we are still awaiting further policy proposals around better and fuller safe routes.

During Commons consideration of the amendments, Ministers asserted that the number of refugees resettled each year must be based on our capacity and assessment of the international situation. What we know from the Syrian resettlement scheme is that political commitment and leadership generated political buy-in at a local level and enabled a well-functioning and correctly costed system which was successfully delivered. However, since that target number was reached, resettlement numbers have dropped significantly—partly, we accept, because of Covid. Without political commitment, we see that resettlement drops as a priority. The result is that, for the three top countries of origin for those arriving on small boats across the channel, there is currently no effective safe route. For example, in 2021, only four people were resettled from Iran and 112 from Iraq.

I acknowledge that we have opened our doors to an uncapped number of Ukrainian refugees. This is very welcome, but it has highlighted the need for robust mechanisms to be in place. Are the Government now saying that their assessment of the wider international situation is that resettling refugees in low numbers from some of the most dangerous conflict zones reflects the UK’s ambition to take its fair share? Amendment 11B seeks to address the objections of the Minister and seeks compromise on expanding safe routes by simply calling on the Government to publish a flexible target for resettlement each year. It specifies that the Government must properly support local authorities to deliver the benchmark. The Minister for Justice and Tackling Illegal Migration in the other place stated that

“what is really needed to deliver refugee resettlement is not a number but an approach—an approach that is compassionate and flexible.”—[Official Report, Commons, 22/3/22; col. 188.]

This amendment, with its revised wording, does precisely that. It represents, though, an advance on the current status quo.

I take the Government at their word. The proposal in this amendment aligns, almost identically, with what the Home Office claims it wants to achieve in unlocking new safe routes. I hope that the Minister will consider what we are proposing very carefully and recognise that this reform aims to address a significant gap in our responsibility to those seeking refuge globally. Again, the noble Lord, Lord Kirkhope, and I are grateful for the contact and engagement that we have had, and we remain willing to engage further.

To finish, I express my support, as I did at Committee and Report, in relation to Motions H1 and K1. In relation to Motions G1 and J1 in my name, I live in hope that, even at this stage, the Minister might accept them both. If she does not, I will be minded to test the opinion of the House.

[Lord Dubs (Lab)]

My Lords, it is a privilege to follow the right reverend Prelate. I have one question about offshore processing. Can she comment on the suggestion that the country designated for offshore processing is Rwanda? The Minister looks surprised; I wonder if she would care to comment on whether that is under discussion.

I am in agreement with all these amendments, but I will talk particularly about Motion H1. The Commons reason for rejecting Lords Amendment 10 is:

“Because it would alter the financial arrangements made by the Commons, and the Commons do not offer any further reason, trusting that this Reason may be deemed sufficient.”


No, it is not sufficient. This argument about financial privilege has been used before. I remind the Minister that, in 2016, I moved an amendment that was passed by this House; when it got to the Commons, the Commons again used the argument of financial privilege. Although I had been in the Commons for years, I actually did not know what financial privilege was. It is always a pleasure when I talk to a university student of politics to challenge them on whether they know what financial privilege is—I am pleased to say that none of them ever does, until I explain it to them.

The point is that what this reason says, in effect, is that the Government choose whether to use financial privilege to oppose a particular noble Lord’s amendment —or whether they choose not to; quite often, they waive that argument. As far as I can see, they use it only when they cannot be bothered to put forward a sufficient reason. If the argument about financial privilege is to be used against Lords amendments, we become unicameral, because so many of our amendments involve financial expenditure. It seems to me that this is not a sensible or tenable position. I agree that the Minister gave some reasons and does not hide behind this financial privilege point, but there is an argument about our procedures if the Commons is going to do what it has done in this case.

I will go back just a little bit: in 2017, we passed an amendment about family reunion, which is of course the subject of Motion H1. There, we were concerned that the Dublin treaty, particularly Dublin III, worked quite well to achieve family reunion, so that children in an EU country could join relatives in another EU country. This relates to those who are claiming asylum. That worked quite well and, in order to safeguard the matter, this House passed an amendment, which I moved, that the Government should negotiate to continue the provisions of the Dublin treaty even after we left the EU. It was passed by this House and accepted by the Commons. But then came the 2019 legislation and the Government withdrew the provision. I had various meetings and, on one occasion—I have mentioned this before, but I will mention it again—I was invited to a meeting with three government Ministers and seven officials in order to persuade me that everything was all right and we did not need this particular amendment. They were trying to explain to me why they were withdrawing it.

I was given assurances that, notwithstanding that, there would be plenty of opportunities for children to achieve family reunion with relatives in this country. This was not borne out by the facts. When we got the figures last year, no child from France was able to come under that provision and there were only two or three from Greece. This was a massive drop in what the figures had been when the Dublin III provisions were in effect. Although I was given assurances that everything would be all right and I need not worry, in fact those assurances do not apply. While, in theory, there are a number of ways in which children can be reunited with their families here, it hardly works in practice. The evidence is those figures, which are so low. It does not work—we have gone backwards in that respect. Their assurances did not work.

I have quoted something like it before, but I will quote again what the Home Office said in rejecting an application. The Home Office has argued that a child being alone in France or Greece is not “serious and compelling” enough to warrant a visa. When referring to one case, the Home Office said:

“You currently live in a shelter for unaccompanied Minors … I note you have provided no evidence why this arrangement cannot continue or any serious and compelling considerations in your case.”


If those are not sufficiently compelling reasons, I do not know what can be. If that is the way in which the Home Office turn down applications, I am afraid that I do not have confidence that the existing position is satisfactory. This is why I put forward this Motion and why I urge the House to support it. I also believe that this would lessen the dangerous journeys that young people make to join their families—it might eliminate them altogether, but it would certainly lessen them. If we believe that traffickers should not have opportunities, surely the right thing to do is to provide a safe and legal route. I cannot think of a matter more compelling than for a child to be allowed to join their relatives. Family reunion is surely fundamental to what a civilised society should support. This is why I hope that, when we get to it, this House will support Motion H1.

19:00

[Lord Alton of Liverpool (CB)]

My Lords, it is a great pleasure to follow the noble Lord, Lord Dubs. I entirely agree with what he has just said, and I associate myself with the other amendments in this group in speaking to Motion K1. I also refer to relevant all-party parliamentary groups of which I am an officer, and my role as a patron of the Coalition for Genocide Response.

The Minister set out the terms of Motion K1 at the beginning of our debate and explained what it does. At Second Reading, she challenged us—quite rightly—to come up with safe and legal routes, and that is what this genocide amendment seeks to do. I should say in parentheses that I am grateful to the noble Baroness, not least for the support and consideration that she gave to the amendment that I moved earlier in proceedings on this Bill, on the position of young people in Hong Kong who did not qualify under the BNO scheme but who now, under the regulations which the Government will introduce, will do. Like the right reverend Prelate the Bishop of Durham, I also applaud what the Government have done in the case of refugees from Ukraine. Like the noble Baroness, Lady Stroud, however, I ask the question: should we not make the same provision, as far as the right to work is concerned, for all those who seek asylum in this country?

Of course, I am disappointed that the all-party amendment on genocide, which had its origins in the Yazidi genocide that began in 2014, has not been accepted by the Government. I place on record my thanks to those Conservative Members of Parliament, including former Ministers, the Opposition Front Benches and other Members of the House of Commons, for their strong and welcome support. I must admit to sharing some of the frustration that has been expressed during this debate—even bewilderment—as we heard from the noble and learned Lord, Lord Brown of Eaton-under-Heywood, and the noble Lords, Lord Cormack and Lord Horam.

I spent pretty well two decades as a Member of the other place, and I read with perplexity the debate on 22 March when the guillotine was imposed after just three hours. That was three hours of debate on amendments that had been considered one by one in your Lordships’ House in great detail and with great scrutiny: Amendments 1, 4 to 9, 52, 53, 10 to 20, 54, 2, 3, 43 to 51, and 21. All these amendments were taken together in an inevitably disjointed debate in which Members ranged across multiple issues. By way of example, in the case of the genocide amendment, it was linked with Amendment 11, on the issue of numbers coming into this country, so it was impossible even to vote with any differentiation between those amendments.

As the Minister told us earlier, the Minister in the Commons, Tom Pursglove, opposed the genocide amendment, because, he said, “many thousands” would apply for asylum. Confusingly, however, he admitted that the amendment as it left your Lordships’ House contained a cap on the numbers. Then he said that that it would put the lives of our officials in our embassies at risk. These are victims of genocide whom we are talking about. They do not pose a risk: they are hunted down by the perpetrators. It is the victims, not British officials, who are at risk. Mr Pursglove went on to argue that bespoke schemes were a better approach, but there has never been a bespoke scheme for the Yazidis or other victims of the ISIS genocide. This demonstrates that this, too, is a straw man argument.

I received an email just two days ago from one of those who works for Yazidi interests, and she told me that she believes that there is bias in the implementation of other programmes because of the exclusion of people from minorities in the leadership and oversight of these programmes. It is an issue I have previously raised, as the Minister knows, with the Home Office. My correspondent copied in the Bishop of Truro, whose excellent report is being reviewed by the Foreign Office this year. This lady said:

“We failed Yezidis who have been left to rot in tents; only 8 are recorded as resettled from Iraq and 44 from Syria, although without knowing who they are we cannot say they are truly Yezidi. I doubt the Home Office would know the difference.”


Quoting Home Office guidance about ethnic and religious minorities, she says:

“Recognising their vulnerability and ACTUALLY including them in these schemes are obviously two different things.”


For years, the Government have emphasised that Yazidis have been facing horrific atrocities, especially when Ministers have met Nadia Murad and other victims. But opening doors in “a bespoke scheme” to welcome at least some from their community simply did not happen. Let us contrast that with Canada and Germany, among others, which have provided protection.

One of those who spoke in favour of the amendment in the House of Commons was the former Conservative Minister, Tim Loughton. He and I are two of the seven parliamentarians who have been sanctioned by the Chinese Communist Party for raising what the Foreign Secretary has described as the genocide of the Uighurs. During a very helpful and encouraging meeting which sanctioned parliamentarians recently had with the Prime Minister and Elizabeth Truss, the Foreign Secretary, we were told that the Government would look again at this country’s response to genocide. I put this on record and greatly welcome what they have said. It is significant progress. Accepting today’s amendment, which would place on the Home Secretary a duty within one year to publish a report on the Government’s approach to the treatment of genocides—at least as it pertains to those seeking asylum—would be a good start. Failing that, I hope that the Minister will at least commit the Home Office to taking part, which has been promised by the Foreign Secretary and the Prime Minister, in looking again at the duties that are laid out in the 1948 convention on the crime of genocide. That requires us to prevent and protect, and to punish those responsible. Given what has been said to me, I am willing to take back this amendment this evening and not take it to a Division. Needless to say, of course, I will keep pressing the Minister until progress is made on what I regard as an incredibly important issue.

[Baroness Meacher (CB)]

My Lords, I hesitate to rise after that excellent contribution from my noble friend Lord Alton, but I just want to express very strong support, obviously, for Motions C1 and D1 and, indeed, all the amendments in this group. I want to follow the noble Baroness, Lady Stroud, and support her Amendment E1 on the right of asylum seekers to work. She made a very powerful speech, and I certainly will not repeat any of the words that she said. We can do without repetition—everybody wants to get to the votes—so I will take one minute maximum.

The main argument of the Government against this amendment is that it would be a pull factor, attracting asylum seekers to come here. It is worth mentioning at this point that there have been fully 29 academic papers assessing whether a more generous right to work has anything to do with a pull factor for asylum seekers. All those 29 academic papers showed that there was no correlation whatever between the right-to-work aspect and asylum seekers’ attraction to this country. It is also worth saying that even if this amendment passes, we would still be the toughest of all European nations—there would be seven nations then—with a six-month ban on asylum seekers seeking work. All the rest of the European countries are more generous: they have shorter bans. That is incredibly powerful.

It costs money to do this. Is it really sensible to spend an unnecessary £300 million stopping people working; albeit we only pay these people—what is it—£5.75 or something a week, plus a bit for utility bills? We could save £300 million: is that not worth doing, just to be no more ungenerous than any other country in Europe? I suggest that we should support the amendment from the noble Baroness, Lady Stroud.

[Baroness Hamwee (LD)]

My Lords, from these Benches, I want to speak just to Motions E and H; my noble friend Lord Paddick will speak for us on the other amendments in this group. The Commons reasons on asylum seekers’ right to work seem to be completely circular: asylum seekers should not be permitted to work because they should not be permitted to work. In a way, I cannot argue with that.

The condition that the noble Baroness has added to her amendment is completely sensible. Ministers speak about undermining our economic migration schemes. I am aware that a great many asylum seekers disappear into the black economy. That undermines an awful lot of things.

The asylum seekers in question are impelled by significant push factors. I take issue with people who find it difficult to accept that. There is a distinction between what prompts fleeing one’s own country and choosing where to go. I accept that the English language plays a part in that second matter, but it really does not deal with the Government’s position.

Leaving aside—though I do not leave it aside—the importance of work to self-worth, dignity and so on, the overwhelming majority of asylum seekers in our country, and no doubt in others, want to play their part in society and want to pay tax. They have skills they want to use and which we should want them to use. The noble Baroness, Lady Meacher, has talked about the financial interests. I absolutely agree with her, and I am not going to repeat that. But it is in the interests of our society to allow asylum seekers to work. We support Motion E1 very enthusiastically.

With regard to family reunion, I agree completely with the noble Lord, Lord Dubs, regarding the Commons reasons and with others who have made comments on Commons procedure—it is not up to us, I suppose, to comment on it—and the importance of scrutiny. I doubt that the Commons reasons would go down very well with those many British people who have responded to the powerful images of, and other information about, families in Ukraine and leaving Ukraine which are incomplete, without husbands or fathers. The noble Lord has narrowed his amendment down, and I congratulate him on finding a way to bring it back. The crisis for Ukrainians is no different from other crises in conflict zones in countries where actions and the threat of actions against individuals are so extreme.

The noble Lord, Lord Dubs, my noble friend Lady Ludford and I have made it clear on a number of occasions, including in the various Private Members’ Bills, that what is being proposed today is the bare minimum. It is not even, in my view, the least we can do. But it is what we must do, and we support Motion H1.

[Lord Hodgson of Astley Abbotts (Con)]

My Lords, I rise briefly to speak to Motions J and J1, to support the Government in respect of Motion J and to suggest that the House reject Motion J1, the revised amendment tabled by the right reverend Prelate the Bishop of Durham. I accept that this amendment, like the former amendment, is exceptionally well intentioned, but I think its practical results may not be as the right reverend Prelate and my noble friend hope.

We were reminded in Committee on 8 February by the noble Baroness, Lady Jones of Moulsecoomb, that we needed to see refugees as human beings. Of course, she is right. We have to do that. The noble Lord, Lord Alton, has already spoken powerfully this afternoon about the tragic cases around the world: 80 million, 30 million of them children, with horrifying stories to tell and urgent needs to be answered. My doubts are as follows.

The first is the potential inflexibility implied by the revised amendment. It suggests we must publish a numerical target for the resettlement of refugees in the United Kingdom each year. This is only half, or a quarter, or a slice, of the issue that this country is facing about the increase in our population, which is going up by between 250,000 and 300,000 every year. If we were to tackle this issue as we should be tackling it, we would take the right reverend Prelate’s amendment and say that the Government should set out their belief about what the total amount of new arrivals in the country should be. No Government have been prepared to grasp that particular nettle.

19:15

The Government have established a number of safe and legal routes, much called for by noble Lords in earlier stages of the proceedings on this Bill—routes, as some noble Lords have said, to help such disparate groups as Afghan citizens, those seeking family reunion, Hong Kong citizens and, latterly and tragically, citizens of Ukraine. Given this, I am not quite sure what this amendment adds. If I was going to be harsh—and I do not wish to be harsh to the right reverend Prelate—I might say it is an example of what the noble and learned Lord, Lord Brown of Eaton-under-Heywood, said is virtue signalling and of no real practical impact.

Also, many Members of your Lordships’ House have expressed the belief in the past that hard numbers have no role to play in this particular debate and debates like this. For example, my noble friend Lord Horam has on occasions ventured to suggest that one approach would be to agree a figure for total admissions in a year. I am afraid he has been treated on most occasions with derision. If my noble friend Lord Horam is wrong and this cannot be done, I do not see anything different in principle between what my noble friend is asking about the total number of admissions and what the right reverend Prelate is asking about the numbers in respect of refugees.

The noble Lord, Lord Alton, has rightly reminded us of the needs and views of millions of refugees and asylum seekers. But we must not forget the needs and views of another group of people: the 66 million people who make up the current population of the United Kingdom. They are intrinsically a generous and hospitable people, but they need to give what might be called their informed consent to policy decisions such as these that are the focus of this and some other amendments. Regrettably, the trade-offs inevitable in population growth and the informed consent required have been overlooked by successive Governments and parties over these past 20 years. No Government, including that of my party when it was in power, as it is now, have been honest enough to debate publicly the central issue of how many additional people this country can reasonably absorb every year. Once that debate has been held, we will be in a position to see how we split them up between the various categories—asylum seekers, refugees and economic migrants—and we can have an informed debate that carries the country with us.

The noble Lord, Lord Kerr of Kinlochard, who I am glad is in his place, speaking in the debate on 8 February, compared this country’s record on refugees unfavourably with that of Canada. With the greatest respect to the noble Lord, that is an unfair comparison. I gently remind him that by 2040, England will have become the most densely populated country in Europe, having overtaken the Netherlands, and there will be 4 million more people here, equivalent to one and a half cities the size of Manchester, where my noble friend the Minister comes from. We will have 400 people per square kilometre in England. There are four people per square kilometre in Canada.

Nobody underestimates or does not understand the agonising, horrifying position of so many people around the world. However, we need to step back and take a strategic, long-term look at this difficult and sensitive issue. Writing a target or an ambition into primary legislation will risk compounding the policy errors of the past and, once again, taking the informed consent of the British people for granted. That is why I cannot in truth support the right reverend Prelate.

[Baroness Bennett of Manor Castle (GP)]

My Lords, in the interests of time I will forbear from commenting on the geographical and climatic differences between the UK and Canada.

I offer Green support for all the amendments from Motion E1 onwards; my noble friend has already spoken on Motions C1 and D1—that is, on all the non-government amendments. On Motion E1, I will simply say that I wish to strongly applaud everything that the noble Baroness, Lady Stroud, said. It was plain common sense about the best outcome for asylum seekers and for the UK, and I commend her bravery in working on this issue.

I find Motions F1 and G1 the most difficult. I entirely understand and sympathise with the desire to make the Bill less bad in this area, but they still condone third-country processing. About the Australian third-country processing that this was modelled on, Human Rights Watch commented that the

“abusive offshore processing policy has caused immeasurable suffering for thousands of vulnerable asylum seekers”.

It noted that

“seven people have committed suicide”

in this process and said that

“children have been terribly traumatized”.

If we even pass a law that allows third-country processing, whether or not it is ever actually implemented, this will be a stain on Britain’s international reputation, as the practice has been a huge stain on Australia’s international reputation. The Government talk about global Britain; the globe will look at Britain and say that Britain is doing something utterly unconscionable if we even move to allow it, let alone actually implement it.

[Lord Paddick (LD)]

My Lords, in Motion C the Government claim that the provisions in Part 2 are compliant with the UN refugee convention—in which case, they should have no objection to Motion C1 in the name of the noble Baroness, Lady Chakrabarti, which puts such an assertion on the face of the Bill to ensure that the courts are able to test Part 2 against the UN refugee convention. In accordance with the Government’s claim in Motion C, the Government must surely agree with Motion D1 that, whether the Government categorise a refugee as falling into group 1 or group 2, as set out in the Bill, none the less, both groups must be given all the rights under the UN refugee convention. If not, Part 2, contrary to the Government’s claim in Motion C, would not be compliant with the UN refugee convention.

My noble friend Lady Hamwee has dealt with Motion E1 on the right to work, and Motion H1 on family reunion, which we also support. We hesitate to support Motion G1 in the name of the right reverend Prelate the Bishop of Durham, because it leaves offshoring on the face of the Bill. We totally, absolutely and completely disagree with offshoring but my understanding is that we are running out of options other than double insisting on the removal of the provisions from the Bill, which, I am told, would have serious consequences. Therefore, we will vote for Motion G1 to force the Government to secure the approval of both Houses for each country they propose to use for offshoring, by means of the affirmative resolution procedure once they have laid before Parliament the estimated first two-year costs for operating such a system for each country. Once Parliament has seen the countries that the Government propose to use for such an abhorrent practice, and the costs involved, we hope that no Parliament would approve such a practice.

The Ukrainian refugee crisis and the lamentable shambles created by insisting that those fleeing Putin’s war must have a visa to enter the UK, with the Home Office being unable to cope with the numbers of applications, clearly demonstrates the need for there to be appropriate resourcing, infrastructure and support for local authorities permanently in place to cope with such crises before they arise. Before Ukraine it was Afghanistan, before Afghanistan it was Syria; we need systems and processes in place to deal with these crises. The Motion in the name of the right reverend Prelate the Bishop of Durham seeks to achieve this without the previous set annual numerical target, instead allowing the Secretary of State to set the target and to put in place such measures as are necessary to achieve that target. Of course, we also support the noble Lord, Lord Alton of Liverpool, in his Motion K1 in relation to those fleeing genocide.

I say to the noble Lord, Lord Hodgson of Astley Abbotts, that less than 20% of immigration to the UK in recent years has been asylum seekers, and the Bill deals only with that 20%. I ask the noble Lord, Lord Horam: where are the provisions that specifically target people smugglers in the Bill? These policies target what he himself described as victims, and only the victims.

[Lord Rosser (Lab)]

My Lords, I will attempt to be brief, as I am sure the House would now like to hear the Government’s response rather than listen to me at any great length. On Motion C1, proposed by my noble friend Lady Chakrabarti, as has just been said, if the Government are convinced that Part 2 is compliant with the convention and indeed agree with the principles that it should be so compliant, why should they be opposed to nailing their colours to the mast on this crucial issue and making this clear in the Bill by accepting this amendment?

On Motion D1 on differential treatment, to which the noble Lord, Lord Kerr of Kinlochard, spoke, as well as a number of other noble Lords, this new version of the previous Lords amendment disagreed to by the Commons deletes the subsections which provide for differential treatment of refugees. Instead, it provides that the Secretary of State must guarantee both group 1 and group 2 refugees all their rights under the convention and ensure that family unity can be maintained. I only make the point—I do not want to repeat all the points that have already been made—that under the Government’s plans for the Bill, a person who had fled Ukraine and travelled across Europe to get here could not be a group 1 refugee because they would have passed through other countries rather than “coming here” directly. At best, they would be group 2 refugees and could be treated as having committed a criminal offence for having reached this country without prior authority or a pre-approved claim. That is the reality of what differential treatment of refugees, which the Government are so determined to implement, can actually mean in all its harshness in respect to people currently fleeing for their lives from a war happening now in Europe.

On Motion E1 on the right to work, the noble Baroness, Lady Stroud and indeed other noble Lords have more than covered all the arguments in favour. It is just interesting that the Government have always argued in other situations that people should be in employment rather than requiring benefits, even though a considerable percentage of those in work also qualify for benefits because of low pay. The Government have reversed their stance with asylum seekers since the Government deny them the ability to work for 12 months and then only in specific circumstances, even though many asylum seekers want to work, have the skills to work and would be contributing further through paying taxes and not claiming more than minimal benefits. Reducing the qualifying period for being able to work for six months would also encourage the Government to work harder at providing the necessary resources to determine a much higher percentage of asylum applications within a six-month period.

I need to speak a little longer on Motion F1. I have put down a new version of our Amendment 8 that still provides that the Government may not commence their inadmissibility provisions until they have safe, formal returns agreements with third states. This time, though, our amendment has a sunset provision, since we have to put down a different amendment, which means that it delays the commencement of Clause 15 to allow time for international agreements to be put in place, but after five years that protection will lapse so it does not block the plans indefinitely. However, frankly, if the Government have not managed to negotiate any international agreements over the span of five years, one would hope they would take a hard look at the plausibility of their plans in the first place—clearly, they intend to use Clause 15 and its provision on a significant scale, or at least one must assume so.

19:30

The Commons and government reasons for disagreeing sound pretty absurd. The Government’s reason is that they do not think it is appropriate that Clause 15 be dependent on international agreements having been reached, yet the provisions on the safe return of a person making an asylum claim to another state where the claimant has a connection is reliant on such agreement with other states. Safe, reciprocal returns agreements whereby an asylum seeker may be returned to another country where they have already been offered asylum or are in the claims system are a recognised part of international asylum arrangements. What is not recognised is unilaterally keeping our system stagnant for months at a time while looking to see whether a person could be sent to a country they may have briefly passed through or never been to.

The cost of doing that for six months before starting to consider the asylum application will be considerable, because accommodation and sustenance will have to be provided for each person concerned for up to six months at the expense of the taxpayer, before starting processing their asylum claim six months later than it could—indeed, should—have been. This, in the continuing absence of returns agreements, will be very expensive and a complete and unnecessary waste of taxpayers’ money by the Government, at a time when money for our basic overstretched public services is in short supply. The Government are proposing a complete waste of taxpayers’ money, and they must know it.

On Motion G1, on offshoring, the right reverend Prelate the Bishop of Durham’s new amendment provides that, before a country can be used for offshoring, a proposal must be laid before Parliament detailing the costs of running such a scheme. Campaigners claim it would cost less to put asylum seekers in the Ritz than run an offshoring policy; I cannot vouch for that, as I do not happen to know what the cost of staying in the Ritz is. I am sure the Ritz is extremely grateful that I have never tried to stay there. Experience elsewhere, not least in Australia, suggests that the costs of such a scheme would be considerable per person and not cost effective, even assuming that the very concept of offshoring asylum seekers to another currently unknown country while their claim was pending was acceptable and that that third country would have similar standards and values as us when it came to looking after people and how it treated them.

Motion H1, which my noble friend Lord Dubs spoke to, is not asking for something new, since it is a replacement for something we have recently lost—what was being provided by the UK while we were under the Dublin III arrangements. As the Conservative MP Tim Loughton said in the Commons during the debate on the Lords amendment on this issue:

“The Home Secretary did say some time ago that she wanted to see a generous equivalent replacement for Dublin III as we came beyond Brexit. I want to hold her to that promise, but I fear what is contained in the Bill does not hold water.”

This amendment would expand family reunion so that unaccompanied children in Europe can easily join family members in the UK, such as grandparents, aunts, uncles and siblings because for some children—perhaps many—these are their closest surviving relatives. Incidentally, Tim Loughton went on:

“The Government have also argued that there is discretion to allow family reunion outside the rules in certain circumstances, but it is not right that children who had a clear official route to safety and family reunion under the EU’s Dublin III regulation are now reliant on Government discretion.”—[Official Report, Commons, 22/3/22; cols. 220-21.]

On Motion J1 on resettlement, the right reverend Prelate the Bishop of Durham’s revised version of the amendment no longer specifies 10,000 a year. Instead, it requires the Secretary of State to publish the number of refugees the UK will resettle each year and provide appropriate resources and infrastructure to support local authorities in delivering this. The key point here is planning and infrastructure; we need to be ready to respond to immediate need when it arises, such as with Ukraine. The Afghan citizens resettlement scheme took months to get up and running. The British public and MPs, including those on the Government’s own Benches, have been frustrated by Home Office failures and delays on Ukraine. This amendment is about making sure we are always ready to play our part in the international effort.

The noble Lord, Lord Alton, spoke to Motion K1. Like other noble Lords, I pay tribute to his determination and doggedness in continuing to pursue this issue, certainly not entirely without success—far from it; there have been some considerable successes along the way. Frankly, we have reached an unfortunate position when the stated argument that the Government and Commons produce against a genocide amendment is a very weak financial privilege one, behind which they seek to take refuge.

Along with other noble Lords, I await the Government’s response to this group.

[Baroness Williams of Trafford (Con)]

My Lords, the noble Lord, Lord Rosser, might think the House does not want to hear from him, but it certainly does not want to hear from me either. It never likes what I have to say.

There have been a few disparaging comments about our approach to Ukraine. I have just looked on Twitter, and this is the first comment from President Zelensky:

“The United Kingdom is our powerful ally.”


It must be acknowledged that we have done much to assist Ukraine over the years. We have now issued over 20,000 visas and done some other fundamental things for our friends in Ukraine. We have been training 22,000 troops for years; we have given them 2,000 NLAWs, or, as President Zelensky calls them, “in-loves”—apparently, on their launch, people in Ukraine shout “God save the Queen”. We have also provided them with the Starstreak missile. We have been terribly generous and supportive to Ukraine and will go on being so.

My noble friend Lord Horam said there had been no pre-legislative scrutiny; it may seem a long time ago but, I guess by way of a White Paper, the New Plan for Immigration was published—I know we do not do Green Papers these days; that stopped years ago.

Motions C and D deal with the refugee convention and our policy of differentiation. We have been clear throughout the development of this policy that it fully complies with all our international obligations, including the refugee convention. I will not go over my noble friend Lord Wolfson’s comments, but I know he wrote to noble Lords setting out our legal position on this. However, I should clarify that a person in group 2 would, to gain that status, necessarily already be recognised as a refugee in the UK and would not subsequently have, or be eligible to have, their claim processed overseas. We intend that prosecutions follow only in egregious cases. I therefore ask noble Lords not to insist on their amendments and the noble Baroness, Lady Chakrabarti, and the noble Lord, Lord Kerr of Kinlochard, not to press theirs.

It has long been our position that when someone who is claiming asylum has been waiting for a decision on their claim for more than 12 months, through no fault of their own, they should be able to take up one of the jobs on the shortage occupation list. Motion E deals with this issue and, although I have a great deal of respect for my noble friend Lady Stroud and we have spoken at some length over the last few days, we cannot agree to reduce this period to six months, for the reasons I have set out previously. There is not much more I can add to my previous comments other than to point out academic evidence suggesting that economic factors are in play in secondary movements. For all those reasons, I invite my noble friend not to press her amendment.

Motions F and G deal with inadmissibility and overseas asylum processing respectively. It is vital that we have strong measures in this Bill to deter people from making dangerous journeys and to encourage them to seek asylum in the first safe country that they reach. We cannot agree to measures that would undermine these measures, either by restricting our ability to work on a case-by-case basis on returns or making the job of our negotiators more difficult. I therefore ask the noble Lord, Lord Rosser, and the right reverend Prelate the Bishop of Durham not to press their amendments.

On the question the right reverend Prelate asked me about what advanced discussions are taking place and the point that the noble Lord, Lord Dubs, asked about Rwanda, all I can say at this point is that the Government are talking to a range of partners. I am sure that Parliament will be fully informed when any of those discussions are concluded.

The noble Lord, Lord Dubs, has the respect not just of me but of the whole House. Turning to Motion H, I know how strongly he feels on the subject behind his amendment relating to family reunion, but there are risks that the proposed new clause creates a very broad duty that was not intended.

Moving on to Motion J, I also understand the strength of feeling on having a target number for refugee resettlement, noting in particular the amendment tabled by the right reverend Prelate the Bishop of Durham. I also reflect in this context on Motion K and the amendment concerning genocide tabled by the noble Lord, Lord Alton of Liverpool. But I can only say again that we already have generous family reunion offers, that we have numerous safe and legal routes to the UK, and that a person fleeing genocide is already likely to qualify for protection, as I said, under either the refugee convention or the ECHR.

The UK is firmly committed to protecting ethnic and religious minorities in Iraq. We raise this regularly with the Government of Iraq and the Kurdistan Regional Government, and we continue to monitor the situation of the Yazidis and other minority groups in Iraq. But I will take back again those comments on religious bias, because it is not the first time that the noble Lord, Lord Alton, has raised them with me.

I do not think that the amendments tabled to Motions H, J and K are necessary, so I invite the noble Lord, Lord Dubs, the right reverend Prelate the Bishop of Durham and the noble Lord, Lord Alton, not to press their amendments.

[Baroness Chakrabarti (Lab)]

My Lords, I am grateful to all noble Lords and noble and learned Lords who spoke in such a vital debate. The House will forgive me for not waxing lyrical by way of summary—out of respect for noble Lords, self-discipline and the need to get on and vote. I just say that I heard not a single constitutionally or legally coherent argument against the vital overarching protection for the refugee convention in Motion C1. With that, I ask noble Lords to agree Motion C1.

19:43

Division 2

Ayes: 189

Noes: 151

19:55

Motion D

Moved by

[Baroness Williams of Trafford]

That this House do not insist on its Amendment 6, to which the Commons have disagreed for their Reason 6A.

6A: Because the Commons consider that it should be possible to accord different treatment to refugees depending on whether they have complied with the criteria set out in clause 11.

Motion D1 (as an amendment to Motion D)

Moved by

[Lord Kerr of Kinlochard]

At end insert “and do propose Amendment 6B to the words so restored to the Bill—

6B: Page 14, line 7, leave out subsections (5) to (8) and insert—
“(5) The Secretary of State must make provision within the Immigration Rules to—
(a) guarantee Group 1 and Group 2 refugees all of their rights under the 1951 Convention relating to the Status of Refugees and the 1967 Protocol relating to the Status of Refugees and international law, without distinction;
(b) ensure that the classification of a refugee as a Group 1 or a Group 2 refugee does not affect the ability to maintain the unity of that person’s family.””

[Lord Kerr of Kinlochard (CB)]

I beg to move.

19:55

Division 3

Ayes: 191

Noes: 148

20:07

Motion E

Moved by

[Baroness Williams of Trafford]

That this House do not insist on its Amendment 7, to which the Commons have disagreed for their Reason 7A.

7A: Because the Commons consider that asylum-seekers (save in limited circumstances) and their adult dependants should not be permitted to work while a decision on their claim for asylum is pending.

Motion E1 (as an amendment to Motion E)

Moved by

[Baroness Stroud]

At end insert “and do propose Amendments 7B and 7C in lieu—

7B: After Clause 12, insert the following new Clause—
“Changes to the Immigration Act 1971
(1) The Immigration Act 1971 is amended as follows.
(2) After section 3(2) (general provisions for regulation and control) insert—
“(2A) Regulations under subsection (2) must provide that persons, and adult dependants of persons who are applying for asylum in the United Kingdom are granted permission by the Secretary of State to take up employment if—
(a) a decision at first instance has not been taken on the applicant’s asylum application within six months of the date on which the application was made, or
(b) a person makes an application or a further application which raises asylum grounds, and a decision on that new application, or a decision on whether to treat such further asylum grounds as a new application, has not been taken within six months of the date on which the further application was made.
(2B) For the purposes of subsection (2A), regulations must ensure that permission granted allowing people applying for asylum in the UK, and their adult dependants to take up employment, are on terms no less favourable than the terms granted to a person with recognised refugee status.
(2C) This permission is to be valid until the claim is determined and all appeal rights have been exhausted and individuals granted permission to work will be issued with physical proof of the right to work.”
(3) The Secretary of State may, by regulations made by statutory instrument, repeal subsection (2) of this section, if the conditions set out in subsections (4) and (5) have been met.
(4) The first condition is that within four years of the coming into force of this section, but no sooner than three years after the coming into force of this section, the Secretary of State has commissioned a review of whether the provisions inserted into the Immigration Act 1971 by subsection (2) have acted in such a way as to encourage persons applying for asylum, and adult dependants of such persons, to travel to the United Kingdom.
(5) The second condition is that the Secretary of State has, within four years of the coming into force of this section, published the outcome of the review under subsection (4).
(6) Regulations under subsection (3) may not be made unless a draft of the regulations has been laid before, and approved by a resolution of, each House of Parliament.”

7C: Clause 83, page 84, line 27, at end insert—
“(aa) section (Changes to the Immigration Act 1971);””

20:08

Division 4

Ayes: 199

Noes: 132

20:20

Motion F

Moved by

[Baroness Williams of Trafford]

That this House do not insist on its Amendment 8, to which the Commons have disagreed for their Reason 8A.

8A: Because the Commons do not consider it appropriate that the commencement of clause 15 should be dependent on the conclusion of international agreements with other States.

Motion F1 (as an amendment to Motion F)

Moved by

[Lord Rosser]

At end insert “and do propose Amendments 8B and 8C in lieu—

8B: After Clause 15, insert the following new Clause—
“Safe third State: commencement
(1) The Secretary of State may exercise the power in section 83(1) so as to bring section 15 into force only if the condition in subsection (2) has been met.
(2) The condition in this subsection is that the United Kingdom has agreed formal returns agreements with one or more third States.
(3) A “formal returns agreement” means an agreement which provides for the safe return of a person making an asylum claim (a “claimant”) to a State which is party to the agreement, where the claimant has a connection to that State.
(4) This section, and the condition it imposes, cease to have effect at the end of the period of five years beginning with the day on which this section comes into force.”

8C: Clause 83, page 84, line 27, at end insert—
“(aa) section (Safe third State: commencement);”

20:20

Division 5

Ayes: 179

Noes: 152

20:32

Motion G

[Baroness Williams of Trafford]

Moved by

That this House do not insist on its Amendments 9, 52 and 53, to which the Commons have disagreed for their Reasons 9A, 52A and 53A.

9A: Because the Commons consider that it is appropriate to allow the removal of an asylum seeker to a safe third country while their claim for asylum is pending.

52A: Because it is consequential on Lords Amendment 9 to which the Commons disagree.

53A: Because it is consequential on Lords Amendment 9 to which the Commons disagree.

[Baroness Williams of Trafford (Con)]

I have already spoken to Motion G. I beg to move.

Motion G1 (as an amendment to Motion G)

[The Lord Bishop of Durham]

Moved by

At end insert “and do propose Amendments 53B, 53C and 53D in lieu—

53B: Page 88, line 14, leave out “falling within subsection (2B)” and insert “prescribed by an order under subsection (2B)”

53C: Page 88, line 15, leave out “A State falls within this subsection if” and insert “The Secretary of State may by order prescribe a State for the purposes of subsection (2A) if”

53D: Page 88, line 31, at end insert—
“(2BA) No order under subsection (2B) may be made unless a draft of the order has been laid before, and approved by a resolution of, each House of Parliament.
(2BB) The Secretary of State must not lay before Parliament a draft of an order prescribing a State under subsection (2B) unless the Secretary of State has first laid before each House of Parliament a proposal setting out—
(a) the estimated costs, for at least the first two years after the order is to come into effect, of any arrangements made with that State in respect of the removal of asylum seekers from the United Kingdom to that State; and
(b) the estimated costs, for at least the first two years after the order is to come into effect, of any additional aid provided to that State as a result of any such arrangements.””

[The Lord Bishop of Durham]

I beg to move, partly because this issue was not properly debated in the other place, and I wish to give it an opportunity to explore it fully in this amended form.

20:33

Division 6

Ayes: 176

Noes: 153

20:45

Motion H

Moved by

[Baroness Williams of Trafford]

That this House do not insist on its Amendment 10, to which the Commons have disagreed for their Reason 10A.

10A: Because it would alter the financial arrangements made by the Commons, and the Commons do not offer any further reason, trusting that this Reason may be deemed sufficient.

Motion H1 (as an amendment to Motion H)

Moved by

[Lord Dubs]

At end insert “and do propose Amendment 10B in lieu—

10B: Insert the following new Clause—
“Immigration Rules: entry to seek asylum and join family
(1) The rules laid down by the Secretary of State in accordance with section 1(4) and section 3(2) of the Immigration Act 1971 for regulating the entry into and stay in the United Kingdom of persons not having the right of abode must include provision for admitting persons coming for the purpose of seeking asylum.
(2) These rules must make provision, for the purpose of seeking asylum, for unaccompanied children in Europe who have a family member in the United Kingdom who is ordinarily and lawfully resident in the United Kingdom.
(3) For the purposes of this section, a “family member” means—
(a) a parent, including adoptive parent;
(b) an aunt or uncle;
(c) a grandparent;
(d) a sibling, including an adoptive sibling; or
(e) such other persons as the Secretary of State may determine, having
regard to—
(i) the importance of maintaining family unity;
(ii) any dependency between the family members;
(iii) the best interests of a child; and
(iv) any compelling circumstances.””

20:45

Division 7

Ayes: 181

Noes: 144

20:57

Motion J

Moved by

[Lord Stewart of Dirleton]

That this House do not insist on its Amendment 11, to which the Commons have disagreed for their Reason 11A.

11A: Because the Commons do not consider it appropriate for there to be a statutory requirement on the minimum number of refugees to be resettled in the UK each year.

Motion J1 (as an amendment to Motion J)

Moved by

[The Lord Bishop of Durham]

At end insert “and do propose Amendment 11B in lieu—

11B: Insert the following new Clause—
“Refugee resettlement schemes
(1) The Secretary of State must publish a numerical target for the resettlement of refugees to the United Kingdom each year.
(2) The target under this section must include the numbers of people resettled under—
(a) dedicated schemes for the evacuation of people from a geographical locality, such as a specific third State,
(b) a general UK resettlement scheme, and
(c) other routes as appropriate.
(3) The Secretary of State must put in place appropriate resourcing and infrastructure to support local authorities to deliver the target under subsection (1).””

20:58

Division 8

Ayes: 159

Noes: 150

21:10

Motion K

Moved by

[Lord Stewart of Dirleton]

That this House do not insist on its Amendment 12, to which the Commons have disagreed for their Reason 12A.

12A: Because it would alter the financial arrangements made by the Commons, and the Commons do not offer any further reason, trusting that this Reason may be deemed sufficient.

Motion K1 not moved.

Motion K agreed.

Motion L

Moved by

[Lord Stewart of Dirleton]

That this House do not insist on its Amendments 13 to 19, to which the Commons have disagreed for their Reasons 13A to 19A.

13A: Because the Commons consider that it should be a criminal offence for a person who requires entry clearance to knowingly arrive in the United Kingdom without such clearance.

14A: Because it is consequential on Lords Amendment 13 to which the Commons disagree.

15A: Because it is consequential on Lords Amendment 13 to which the Commons disagree.

16A: Because it is consequential on Lords Amendment 13 to which the Commons disagree.

17A: Because it is consequential on Lords Amendment 13 to which the Commons disagree.

18A: Because it is consequential on Lords Amendment 13 to which the Commons disagree.

19A: Because it is consequential on Lords Amendment 13 to which the Commons disagree.

Motion L1 (as an amendment to Motion L)

Moved by

[Lord Coaker]

Leave out from “Amendments” to end and insert “13, 14 and 16 to 19, to which the Commons have disagreed for their Reasons 13A, 14A and 16A to 19A, do insist on its Amendment 15, to which the Commons have disagreed for their Reason 15A, and do propose Amendment 13B in lieu of Amendment 13—

13B: Page 40, leave out lines 5 to 9 and insert—
“(D1) A person who knowingly arrives in the United Kingdom in breach of a deportation order commits an offence.”

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Division 9

Ayes: 163

Noes: 138

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Motion M

Moved by

[Baroness Williams of Trafford]

That this House do not insist on its Amendment 20, to which the Commons have disagreed for their Reason 20A.

20A: Because the Commons consider that the offence of facilitating the entry of an asylum seeker into the United Kingdom should be capable of prosecution whether or not the defendant was acting for gain.

Motion M1 (as an amendment to Motion M)

Moved by

[Lord Paddick]

At end insert, “and do propose Amendment 20B to the words so restored to the Bill—

20B: Page 41, line 40, leave out “omit “and for gain”” and insert “for “for gain” substitute “without reasonable excuse””

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Division 10

Ayes: 162

Noes: 141

21:35

Motion N

Moved by

[Lord Stewart of Dirleton]

That this House do not insist on its Amendment 22, to which the Commons have disagreed for their Reason 22A.

22A: Because the Commons consider that the additional requirements for age assessments, as set out in the new clause, are either inappropriate or unnecessary.

[The Advocate-General for Scotland (Lord Stewart of Dirleton) (Con)]

My Lords, with the leave of the House, I will also speak to Motions P, Q, R and S. Let me begin with Amendment 22, which inserts a new clause relating to age assessment. I reiterate to the House that assessments are and will only be used when necessary. There is no appetite to use them when there is no doubt of an asylum seeker’s age. As we have discussed in previous debates, failure to ensure proper assessments are conducted on individuals whose age is doubted creates obvious safeguarding concerns. It can also create a plethora of risks to the most vulnerable, to children in our schools and care systems and to asylum seekers themselves.

The problem with this amendment is that it creates numerous restrictions on our ability to use age assessments and risks, perpetuating the very real challenges within the current system. First, this amendment would mean that only local authority social workers would be able to undertake age assessments under the Bill. This would curtail our ability to support overburdened local authorities in this difficult task, given that there is significant variation between local authorities in experience, capacity and resource to undertake age assessments. It is the Government’s intention to establish a national age assessment board with qualified expert social workers employed by the Home Office, specialising in age assessments, to improve the quality and consistency of decision-making and to relieve the burden on local authorities where local authorities choose to refer a case. It is not our intention to increase the percentage of age assessments conducted, and local authorities will retain the ability to conduct these assessments themselves if they wish to do so.

Secondly, the amendment would mean that scientific methods of age assessment are specified in regulations only if they are

“ethical and accurate beyond reasonable doubt”

as approved by relevant professional bodies. The UK is one of very few European countries that does not currently employ scientific methods of age assessment. We have already set up an independent interim Age Estimation Science Advisory Committee to advise on the accuracy and associated ethical considerations of scientific methods. No one method of age assessment is entirely accurate, so this amendment sets an unreasonable expectation for what scientific methods could achieve, especially when they will be used in tandem with other evidence from social workers and others as part of an holistic approach.

In addition, I stress that although there are questions about the accuracy of scientific methods, we simply do not know how accurate or reliable the current approach of the Merton-compliant age assessment is. We are aware of cases where individuals have been assessed to be of vastly different ages when assessed independently by different social workers in different local authorities. Genuine children whose ages are in doubt will therefore benefit from more informed decision-making as a result of supplementing the current age assessment process with scientific methods with known accuracy—or a known margin of doubt, I perhaps might more accurately say—and reducing the risk that children may be misidentified as adults and vice versa.

We also contest the idea that professional bodies should be required to approve scientific methods, because any scientific method proposed will be considered by the independent Age Estimation Science Advisory Committee. The committee, formed by the Home Office chief scientific adviser, will comprise representatives of the relevant professions and will consider the scientific, ethical and contextual issues and provide advice to the Home Office, via its chief scientific adviser, on appropriate methods.

Finally, the amendment would lower the current standard of proof for social worker age assessments from the “balance of probabilities”, which is long established in case law, to a “reasonable degree of likelihood”. Lowering this standard would require social workers to accept as children individuals whom, on balance, they believe to be adults. On this basis, I put it that we cannot accept this amendment, to which the other place disagrees for its Reason 22A.

The noble Baroness, Lady Hamwee, has tabled further amendments on age assessment—Amendments 22B to 22F. Although I recognise the intent behind them, I cannot support their inclusion for a number of reasons. First, I reassure the noble Baroness that social workers conducting age assessments for the national age assessment board will of course be able to refer to comprehensive guidance that, in line with standard practice, will be published and accessible on GOV.UK.

Although the vast majority of age assessments are expected to take place following referral from a local authority, the legislation provides the flexibility to enable other public authorities to refer cases in the event that this becomes necessary for the delivery of their official functions. The specification of any additional public authorities through regulation would of course occur following consultation with them and is therefore not considered to be controversial.

Secondly, we have already commissioned the independent interim Age Estimation Science Advisory Committee to advise on both scientific and ethical aspects of scientific age assessment. In line with the noble Baroness’s proposals, this committee in fact comprises expertise from the relevant disciplines, and the Home Secretary will seek advice from it via the Home Office chief scientific adviser before specifying a method in regulations. On this basis I ask the noble Baroness not to move her Motion.

I now bring back to the House’s attention Amendments 23 and 24, to which the other place has disagreed because of its Reasons 23A and 24A. These amendments remove provisions from the Bill relating to late compliance with a slavery or trafficking information notice—or STIN. The Government are determined to deliver the right outcomes for victims while focusing resources where they are needed. This will ensure that potential victims of modern slavery are proactively identified as early as possible.

However, we have listened to the concerns raised by your Lordships’ House and appreciate that there may be particular vulnerabilities for children, which is why the vulnerability of children will be included in our “good reasons” guidance. This is why the Government have now tabled their Amendment 24B, to exempt from the Bill’s credibility provisions those who were under 18 when the most recent STIN was served. Therefore, if an individual were under 18 on the date of service of the most recent STIN, these provisions would not apply and there would be no obligation on decision-makers to find the individual’s credibility to be damaged. I hope that this reassures the House that the needs of children are being taken into account by this Government when identifying victims of modern slavery. I commend this Motion to the House.

Amendments 25 and 25B in the name of the noble Lord, Lord Coaker, replace the original provision for disqualification from modern slavery protections where an individual is a threat to public order, or has claimed to be a victim in bad faith, with a new clause. Unfortunately, however, Amendment 25 does not provide a definition for “public order” at all, and Amendment 25B defines “public order” as coming into play only when an individual has been convicted of a terrorist offence—and even then, only in exceptional circumstances.

21:45

We submit that this definition is very narrow and is unworkable as it does not include individuals who have been served with terrorism notices, who have been involved in terrorism-related activity or who otherwise pose a risk to national security; nor does it include individuals who have been convicted of serious criminal offences, such as manslaughter, culpable homicide, murder, violent acts and sexual offences. It is right that the Government should be able to withhold the protections afforded in the NRM—national referral mechanism—from dangerous individuals where lawful and appropriate, in line with our international obligations so to do, and that is what the original drafting of this clause does.

However, I understand the concerns of noble Lords, and so I would like to provide further clarity and reassurance on how the disqualification would operate. To begin, it is not our intention to carry out a full consideration of every individual who enters the NRM for a public order disqualification decision. A mechanism will be established to identify cases of public order concern at the point of referral to the NRM. This clause, therefore, is about cases where individuals have been identified specifically as being a possible risk to public order in line with the definition, and this process will involve relevant experts; for example, national security experts will be involved to assess where an individual poses a national security risk. The relevant competent authority will then take consideration of the circumstances of the individual—including mitigating factors—which may mean, on balance, that the public order disqualification should not apply.

We have said previously that guidance will set out the mitigating factors to be taken into account but I reassure the House, specifically, that these will include: consideration of the nature and seriousness of the offence; the time that has elapsed since the person committed any such offence; whether this offence was committed as part of that individual’s exploitation, and the level of culpability attached; and whether an individual is assisting or co-operating with the relevant investigation or prosecution effort. As I have made clear here, we recognise the specific vulnerabilities of children. That is why we will also take particular consideration of the age and maturity of the individual, their exploitation and public order offence; and of course, children have separate protections under the Children Act.

I also wish to clarify that, where necessary, the individual will receive needs-based support following a positive reasonable grounds decision while the public order disqualification decision is being considered and, where individuals are entitled to legal aid following a positive reasonable grounds decision, to access legally aided immigration advice on leave to enter or to remain in the UK. This will continue to be available to individuals who are subject to a public order disqualification.

I hope this gives the reassurances needed to not insist on Amendment 25, and I hope it gives the noble Lord, Lord Coaker, the assurances he may need in order to not to insist on his Amendment 25B.

Amendment 26 comes back to your Lordships’ House after not being accepted in the other place for its Reason 26A. This amendment would delete provisions relating to leave to remain for victims of slavery or human trafficking, replacing them with new provisions which include support for confirmed victims. I acknowledge my noble friend Lord McColl of Dulwich and the work that he has carried out on this matter.

The Government have committed to providing where necessary the appropriate tailored support for a minimum of 12 months to all those who receive a positive conclusive grounds decision and need specific support. The other place has considered this amendment and concluded, for its Reason 26A, that it would alter the financial arrangements that the other place has made. I therefore ask that this House does not insist on the amendment.

My noble friend Lord McColl has proposed an amendment in lieu further relating to the provision of 12 months of support. It is clear that he and the Government both firmly agree on the principle of entitlement to support. However, it is also the Government’s firm position that both support and leave to remain should be provided on the basis of need, tailored to the individual and their particular circumstances. The Government are committed to supporting victims of modern slavery in their recovery in line with our international obligations. In fact, the Bill confirms that support and protections are provided where necessary, from a positive reasonable grounds decision up to the conclusive grounds decision.

During that recovery period, potential victims can access a wide range of specialist support services through the modern slavery victim care contract—MSVCC—to help rebuild their lives. Once a victim receives a positive conclusive grounds decision, following the recovery needs assessment, MSVCC support services are provided, based on need. There is no overall set time limit for that support. I hope that for the reasons outlined, my noble friend will be prepared not to press his amendment.

I turn to Amendment 27, the final amendment relating to modern slavery, which creates new provision for victims of slavery and human trafficking for victims under 18 or who were under 18 at the time of their exploitation. The aspect of this amendment regarding the STIN has been addressed by the Government’s Amendment 24B, which also preserves the benefits of early identification and access to support for children. As I said earlier, we will take account of age and maturity in the guidance on the public order disqualification, as we recognise the specific vulnerabilities of children, and we will do the same for instances of additional recovery periods.

However, it is not appropriate that individuals who were exploited as children but who are referred as adults and have been convicted of serious criminal offences, or who pose a risk to national security as adults, should be exempted from disqualification automatically. I submit that that is simply wrong. The risk to public order must be considered, but it is not a blanket disqualification and we will take mitigating factors into account.

We have been consistent in our approach that providing both support and leave should be based on individual need. We will continue, as now, to consider the best interests of the child while making decisions. The other place has disagreed with this amendment for its Reason 27A. I put it to your Lordships’ House that this amendment is not necessary and should not be insisted upon. I hope that, for the same reasons, the noble Lord, Lord Coaker, will not press his Motion S1.

Motion N1 (as an amendment to Motion N)

Moved by

[Baroness Hamwee]

At end insert “and do propose Amendments 22B, 22C, 22D, 22E and 22F in lieu—

22B: Clause 49, page 55, line 42, after second “person” insert “or persons”

22C: Clause 49, page 56, line 31, leave out “negative” and insert “affirmative”

22D: Clause 50, page 56, line 46, at end insert—
“(2A) An assessment under subsection (1) shall be conducted in accordance with guidance published by the Secretary of State, and the guidance must provide that a designated person must take into account all relevant information available from all available sources.”

22E: Clause 51, page 57, line 10, at end insert—
“(1A) An independent advisory board shall advise in respect of the regulations, and the Secretary of State must have due regard to the board’s advice.
(1B) The board shall comprise experts in relevant disciplines, including nominees of relevant medical, dental and scientific professional bodies.
(1C) The board shall give ethical advice and scientific advice for the purposes of subsection (3).”

22F: Clause 52, page 58, line 15, after “conduct” insert “or contribute to”

[Baroness Hamwee (LD)]

My Lords, these amendments concern age assessments. The noble Baroness, Lady Neuberger, moved the amendment at the previous stage and apologises that she cannot be here today. We had a very helpful briefing from the noble Baroness, Lady Black of Strome—who I think for this purpose would term herself Professor Dame Sue Black—the interim chair of the interim scientific advisory committee. I thank the Minister for his letter listing the interim members and their positions, which of course indicate their disciplines. The amendments today flow from that meeting.

The Minister referred to mitigating risk. Of course, we understand that there is risk attached to assessing an age wrongly, but the most controversial part of the provisions in the Bill regards ionising radiation from X-rays, about which the British Dental Association has expressed particular concern. There are both ethical and scientific criteria in play here. The Commons said that our original amendments were not necessary, but, as I understand it, “not necessary” means, “Don’t worry, because current practice is good”. One of the difficulties with statutory provisions, as proposed here, is when they stand alone and you cannot look at other legislation which constrains them, if I can put it that way.

I assumed that the Minister would give assurances of the type that he has already referred to; indeed, I gave him notice by email earlier today and was grateful for the response from the Bill team. But without at all impugning the Minister’s integrity, it is important to hear from the Dispatch Box. I am always reluctant to accept that the best way to approach these matters is to seek assurances, when one really wants to see them in legislation, but I have been persuaded that this would be the best thing to do this evening.

What I have been concerned about and have asked for assurances on is that the Age Estimation Science Advisory Committee should include independent experts from across a range of fields reflecting, as the Minister said, “a range of possible biological evaluation methods”. Members of the current interim body include those with dental and dental-related expertise, but, personally, I would like to see a paediatric dentist on the list. I would like to see the regulations require the approval of the professional bodies which are so concerned. The Bill team responded to me that the regulations are a matter for government, “considering the challenges to the current age assessment process”. But that takes this issue into what are political matters, which is also part of the concern.

I also put it to the Minister that, as Sue Black told us, triangulation of different views and assessments would be brought together for a final assessment. It is important to involve professionals from very different disciplines, including those not represented on a scientific committee. I have mentioned ethics, and I would mention psychology as well. I am told that triangulation and my reference to an ethicist is part of existing practice, but I am seeking assurances for the future. It may be trite, but it is true that one can take absolutely at face value everything that is said about current practice—but the current Government will not always be the Government. One does not know what may happen in the future. It is harder to change legislation than it is to change practice, which is why one goes for the changes in legislation.

I also asked the Minister—I do not think he has covered this—about the benefit of the doubt given to the claimant, which we were told is existing practice. Again, one would like to see a legislative basis for this. I hope that the Minister can add to the assurances he has given on this and on other matters that other noble Lords—particularly the noble Baroness, Lady Lister, and the right reverend Prelate, who have been much involved with this issue—may raise. If so, I am not minded to divide the House.

22:00

I know that I may not speak after the movers—I think it is only the noble Lord, Lord Coaker, moving the other amendments in this group—and I can speak only once on Part 5, so, rather rapidly, I will say that we on these Benches are concerned that Part 5 is a really retrograde step in our response to modern slavery. That view has not changed during the passage of this Bill, nor has our view that Clause 62 is particularly pernicious—nor our view that slavery has no place in a Bill on borders and nationality. As with asylum, there is an important element of seeking protection from the state as distinct from prosecution and other treatment by the state. Nor has our view changed that if, as we understand it, legislation on slavery is coming, then that is the place for any changes—not here, out of context.

We will support Motion Q1 in the name of the noble Lord, Lord Coaker, which is an alternative to Clause 62, with its answer to what the threat is to public order and putting the response in the context of the trafficking convention. We have always supported the noble Lord, Lord McColl, in his valiant, persistent and right campaign regarding support for victims of modern slavery and trafficking, and we will do so again tonight. We support Motion S1, in the name of the noble Lord, Lord Coaker, narrowing the scope of the new clause on victims under the age of 18, responding to the reason that the amendment is not workable. I beg to move Motion N1.

[Lord McColl of Dulwich (Con)]

My Lords, I am speaking to Motion R1, which I will press to a vote because I am extremely disappointed that the progress made in this House on Part 5 has been undone in the other place. We must keep striving to ensure that victims of modern slavery are properly identified and supported. I am grateful for support across the House in passing my original Amendment 26. When Amendment 26 left this House, it would have provided 12 months’ statutory support to confirmed victims in England and Wales and leave to remain for those who needed it across the UK to access long-term support. In that moment, there was a glimmer of hope that victims would finally receive the vital support that evidence has shown they need. Needless to say, the hope that this support will be provided is growing increasingly faint and I am deeply disappointed that the Government have still not taken steps to put it on a statutory footing.

While it is my firm belief that support and leave to remain must go together, your Lordships will see that I have unpackaged my original amendment. I have tabled only one amendment in lieu, Amendment 26B, to provide 12 months’ statutory support to confirmed victims in England and Wales. This is not because issues of leave to remain are not important: quite the opposite. Leave to remain is critical for victims who need it to access support for their recovery. I have unpacked the two only to assist the Government in making good on their commitments to provide support. The Government are already halfway there through the assurance that we have heard reiterated multiple times in both Houses that confirmed victims in England and Wales will receive a minimum of 12 months’ support.

I have said it before; putting this in guidance is not enough. We must finish the job and put this in the Bill. The Government have said that guidance will provide flexibility. This misses the point entirely. The evidence provided by front-line workers on the need to provide at least 12 months’ support to all confirmed victims is falling on deaf ears. Of course support will rightfully be tailored to the individual, but the point stands that victims need a minimum of 12 months to begin to work through their trauma and come to terms with their exploitation.

If we support victims, they will be in a stronger position to support investigations. This will increase convictions of this heinous crime and send out a message to those criminals that they will not get away with this exploitation. The Government have continually said that leave to remain will be considered on a case-by-case basis. I am concerned that they are continuing to wriggle out of their promise to provide support in their arguments for not providing leave to remain.

That is why I have disentangled the two, to ensure that these excuses can no longer be made. Regrettably, in rejecting Amendment 26, the other place has reinstated original Clause 64, in which discretionary leave to remain criteria are narrower than the current guidance. This is truly a case of one step forward, two steps back. I would be grateful if the Minister could make a statement on the recent Court of Appeal ruling and how this will impact future decision-making on leave to remain to ensure that it is in line with the European trafficking convention. Can he also increase transparency by committing to publish statistics on leave to remain decisions for victims of modern slavery?

I will return to issues of leave to remain in the future but, for now, I urge your Lordships and those in the other place to hear what victims need on long-term support and to act accordingly to ensure they receive it by supporting Amendment 26B.

[Baroness Lister of Burtersett (Lab)]

My Lords, I will speak to Motion N1. I thank the noble Baroness, Lady Hamwee, for tabling Amendments 22B to 22F. I simply seek some assurances from the Minister on behalf of the British Dental Association, the Royal College of Nursing and the Refugee and Migrant Children’s Consortium.

First, when the noble Baroness, Lady Neuberger, sought the opinion of the House on Report, she noted that

“we need to know more about the ethical response”.—[Official Report, 8/3/22; col. 1285.]

I and others raised concerns voiced by the BMA, the BDA and others that to use dental X-rays in particular where there is no clinical justification is unethical. Yet neither in Committee nor on Report did the Minister really address this concern. Can he please do so now and provide some reassurance to these bodies and to us?

Secondly, following on from what the Minister said, can he provide an assurance that the statutory guidance will continue to make it clear that there must be reason to doubt an age claim before any age assessment is made?

Thirdly, will the Government seek and publish the agreement of the relevant medical bodies before any scientific method is approved for use? I was partially reassured by the meeting the noble Baroness referred to with the interim chair of the Age Estimation Science Advisory Committee, but it is still important that formal agreement is sought from the relevant medical bodies. Can he confirm that the Minister accepts the interim committee’s recommendation that scientific advice should be used to decide whether a claimed age is possible rather than specify what that age is? Will the same principle apply to the holistic decision made in any age assessment?

With reference to the committee—this echoes what the noble Baroness said—in the Commons the Minister agreed to take away the call for it to include a practising dentist. Is the Minister in a position to give a commitment on that point today?

Finally, can the Minister provide some reassurance with regard to the insistence on the use of Home Office social workers? That has caused considerable concern among members of the consortium given their record hitherto, which has been found wanting by the courts. The lack of independence is even more worrying given Wendy Williams’s update on the Windrush Lessons Learned Review, which suggests that progress in reforming Home Office culture has some way to go. Her report says:

“I have seen limited evidence that a compassionate approach is being embedded consistently across the department”—


that is, the Home Office. Is it surprising that there is considerable suspicion of the lack of independence in what is proposed?

[Lord Alton of Liverpool (CB)]

My Lord, as a trustee of the Arise Foundation, a charity that works with people who are victims of human trafficking or modern-day slavery, I have certainly seen at first hand some of the examples that the noble Lord, Lord McColl, outlined to the House tonight. Indeed, in Committee and on Report I was privileged to be a signatory to the amendments that he laid before your Lordships’ House. This evening I will briefly support Amendment 26B, because I believe that he is right that guidance alone is not enough and that something has to be placed on a statutory basis.

I also agree with what the noble Baroness, Lady Hamwee, said in her remarks about Part 5. It has no place in this Bill at all. It should not be in this Bill—it should have been exorcised much earlier. I think all of us have a great sense of regret that it is still there this evening, even more so when we consider that there is a new Act of Parliament waiting in the wings—we are going to get new legislation on this issue. How much better it would be if we did what the noble Lord, Lord Horam, said to us earlier this evening and went through the normal process of consultation with the equivalent of Green Papers and White Papers, and saw the debates we have been having on this part of the legislation as something to prepare us for that legislation when it is laid before your Lordships’ House. It is putting the cart before the horse. The Government have said in their most recent Bill fact sheet on modern-day slavery that they recognise that

“victims of modern slavery may have had periods of high vulnerability and … multiple, complex needs”

or

“experience multiple forms of exploitation at different points in time”.

If that is so—I believe it is—we need the amendment in the name of the noble Lord, Lord McColl.

[Lord Morrow (DUP)]

My Lords, I too rise this evening to speak in support of the Motion in the name of the noble Lord, Lord McColl. I fully supported his Amendment 26 last month and will continue to support him in his work to ensure that victims of modern slavery are given the practical care they need to begin to recover from their abuse.

I am pleased to support his Amendment 26B in lieu, as it is similar to a provision agreed by the Northern Ireland Assembly a few weeks ago to give confirmed victims long-term support. I am proud to say that the Assembly is once again leading the way—it does not always do that—on support for victims, as it did in 2015 when my Private Member’s Bill became the first comprehensive human trafficking legislation in any region of the United Kingdom.

As the noble Lord, Lord McColl, rightly pointed out, this proposal for long-term support in England and Wales is not a new commitment that the Government do not support. They have made it clear they do—but they are not willing to go beyond guidance. I urge the Minister to reconsider. I hope the Government will support the noble Lord’s amendment and not see England and Wales fall behind again.

I put on record my disappointment that the Government have not been willing to move on leave to remain for victims who are not British citizens and who do not have secure immigration status. The intention of Amendment 26 was that victims who are eligible for long-term support would be given temporary leave to remain to ensure that they could remain in the UK to access this support to help them recover from their exploitation, to prevent their retrafficking, and for them to co-operate with police and prosecutors. The need for that leave to remain has come into even clearer focus for victims in Northern Ireland who will now be able to get longer-term support but might not be able to remain in the country to receive it. I hope your Lordships’ House will return to this issue and not forget the needs of victims of exploitation for security and certainty for their recovery. In the meantime, I shall support the noble Lord’s amendment if it is pressed this evening.

22:15

[Lord Harris of Haringey (Lab)]

My Lords, I intervene briefly in support of the noble Baroness, Lady Hamwee, and the remarks made by my noble friend Lady Lister. In doing so, I declare my interest as chair of the General Dental Council. In that capacity, I had a meeting with the British Dental Association earlier today, not specifically about this issue, but the British Dental Association is still very exercised by it.

I again pursue an issue I raised on Report, to which I have not seen a satisfactory response: the precise terms under which consent will be known to exist in respect of certain scientific procedures being carried out. For example, if there is to be a dental X-ray, will freely given consent be obtained from the individuals concerned? By “freely given” I mean not under duress. The reality is that young people who are fearful of not having their rights accepted are hardly likely to give their consent willingly. Can the Minister tell us exactly how we can be reassured that that consent will be freely given and that it will genuinely be the case that if somebody does not give consent that will not be in some way held against them elsewhere? The reason why this matters is that for a professional, whether a dental professional or any other professional, to carry out a medical procedure, including a dental X-ray, without that free consent is unethical and against all professional standards. It is an extremely important point.

Can we also have clarity about whether it will always be an appropriate professional who will carry out the necessary scientific assessment? If, for example, someone employed by the Home Office or some other agency carries out an X-ray or whatever without being an appropriate professional, that is a criminal offence. I would really like clarity on whether the Government have thought through these ethical and professional issues in terms of these clauses and in rejecting the amendment passed by your Lordships’ House that was moved on Report by the noble Baroness, Lady Neuberger.

[Lord Coaker (Lab)]

My Lords, before I move on to Part 5, I will speak briefly to Motion N1 on Part 4 and age assessments. I support the concerns raised by the noble Baroness, Lady Hamwee, and supported by my noble friend Lady Lister. I pay tribute to them for their work on this issue.

In the Commons, the Conservative MP Peter Aldous raised the concerns we have just heard of the British Dental Association on ethical, health and accuracy grounds about using X-rays for age assessment purposes. In response, the Minister could not even give a commitment that a dentist would be included on the planned oversight committee for the policy, as my noble friend Lady Lister has just pointed out. It seems to me that what is being asked is perfectly reasonable and moderate: that before a method is approved as somehow being scientific, advice is taken by experts in the field. It is remarkable that these concerns have to be raised.

I will concentrate my remarks on Part 5, but first I declare my interest as a research fellow at the University of Nottingham’s Rights Lab, and as a trustee of the Human Trafficking Foundation.

I hope that noble Lords will forgive me for pointing out, as the noble Lord, Lord Alton, and the noble Baroness, Lady Hamwee, have done, that it is quite remarkable that a series of changes to the modern slavery legislation is included in an immigration Act. That is unbelievable. I say to Conservative Members, indeed to all Members of this House, that the Modern Slavery Act 2015—I got it out and read it again—is a signpost piece of legislation of which we are all proud, and one of the legacies of Prime Minister Theresa May.

Throughout our debates and in the amendments that we are debating now, we are trying to improve a piece of legislation that should not be in here—but, having said that, we will try to improve it. For example, the House voted to remove Clause 58 in its entirety from the Bill. There was recognition of the dangers of penalising a victim for not meeting a deadline to disclose information. It can be difficult for a victim to even recognise themselves as a victim, let alone to process and communicate that trauma to a deadline.

The Bill provides that credibility will not be damaged where a person has a good reason for late compliance, but we struggled throughout the Bill to get certainty on what counts as a good reason. It was our belief that the authorities should not be instructed to consider a victim’s credibility damaged because they might have disclosed information about what they had been subject to—human trafficking, exploitation or modern slavery—a little late.

Therefore, we strongly welcome the step taken by the Government today to exempt at least child victims from this clause; we welcome the amendment that the Minister has just brought before us. I recognise that the Government have listened to some of the concerns raised and have moved some way on this issue. We are grateful to them for that. For that reason, we will not seek to vote again on Clause 58 today, since we have narrowed our focus to, as the Minister pointed out, key issues where there is still need for further movement from the Government.

This leads us to Motions S and S1, which focus in greater detail on child victims of trafficking. We are talking about children here, and my Amendment 27B would put in the Bill that the best interests of the child must be primary in all decisions about child victims. I do not understand why that is not a reasonable thing to include in the Bill. Also, it would not allow slavery and trafficking notices to be served on a victim under the age of 18. You could have a child of 12 or 13, or even younger, being given an information notice to be complied with—not late notice now; they will not be penalised for that—and being required to present an information notice about the circumstances of their trafficking. It is ridiculous that we are asking children to do that.

My amendment would also exempts children from restrictions under Clauses 61 and 62, so that they have access to additional recovery periods if they are re-trafficked and are not covered by public order provisions. It would provide that child victims can have leave to remain, to give them time to access support as well as supporting prosecutions against their traffickers. Finally, it would ensure that the burden of proof for a child victim to enter the NRM is not heightened by the Bill, so that no extra barriers are put in place to a child victim being recognised by the system.

It is worth pointing out again that child victims constituted 43% of the referrals to the NRM. That is what we are talking about—nearly a majority of those referred to the NRM were children. The Office for National Statistics says that, in the UK, 24,675 children have been referred to the NRM since 2009—a frankly unbelievable figure. That is why it is so important that, although the Government have moved on this, there must be more done to protect children and child victims of trafficking.

Our original Amendment 27 provided that a trafficking notice could not be served where a person had experienced exploitation while they were under 18. In the Commons, the Minister, Tom Pursglove, said when a trafficking notice was served on a person the precise timeline or date of their exploitation would not be known, so it would not be possible to exempt people based on when their exploitation took place. In light of that, we have amended subsection (2) of our proposed new clause to specify that a trafficking notice cannot be served on a person under the age of 18. In these cases, there is no question that the exploitation took place while this person was a child, because they are still under 18 years of age.

Another argument put forward by the Minister in the Commons is that our clause provides protection for children yet not for other victims. Of course, we are seeking to provide specific protection for children; that is the responsible way to make law. It is crucial to recognise that the Government have now moved to exempt children in respect of Clause 58 so that, as I have said, they will not be penalised. That is important for two reasons. I am hugely grateful to the Minister for the concession; it also shows that the Government now accept that in certain cases it is right to recognise child victims for what they are—exploited, traumatised children—and to exempt them from the provisions of this part. We do that in every area of law; we provide differently for children than for adults. It is important that we do the same with respect to modern slavery; we are asking the Government for further concessions on that.

It is most important that we resolve the part relating to Motions Q and Q1 as well. The anti-slavery commissioner has said that the Government’s proposals make it harder to prosecute people traffickers. The Government recognise that it is common for victims to be criminally exploited and so have a criminal record as part of their exploitation. Our replacement for Clause 62 therefore seeks to protect children and adults—all victims of slavery—against being penalised for having been at some point criminally exploited.

The key issue raised by Ministers about our original amendment is that it did not provide a definition of who could be considered a threat to public order. So, our Amendment 25B provides that a person is considered a threat if they have been convicted of a terrorism offence; it also requires the Secretary of State to consult within a year on whether further offences listed under Schedule 4 to the Modern Slavery Act should be added to this definition. In other words, we have made an important concession in that we understand the need for a definition and that the Home Office is debating what that definition should be. Rather than hold up the Bill, let us have a situation where, within one year of this Act coming into force, the Government must come forward with a consultation on whether a person convicted of any offence listed in Schedule 4 to the Modern Slavery Act 2015, other than a terrorism offence, should be considered as presenting

“an immediate, genuine, present and serious threat to public order”.

We have tried to be reasonable, but we say to the Government again that excluding victims of trafficking from the NRM on the basis that at some point they have had a minor conviction for a crime does not recognise the reality of the situation in which these victims find themselves.

To conclude on this, I say to the Minister that if he were a victim of slavery, he, like me, would in many instances be forced into criminal action. As it stands, the Bill will penalise those people and prevent them from getting the support that should be given to them under the NRM. That is not acceptable. It is not in the spirit of the Modern Slavery Act, nor what the Government themselves would want to happen.

Finally, on the amendment from the noble Lord, Lord McColl, I pay tribute to the noble Lord for the work that he has done on this over so many years. It is an important amendment; frankly, it is disappointing and unbelievable that the Government have not accepted his effort to ensure that people get the support they deserve for 12 months. I hope that your Lordships will support the noble Lord, Lord McColl, as we will, if it comes to a Division.

22:30

[Lord Cormack (Con)]

Make it short.

[Lord Stewart of Dirleton (Con)]

With that exhortation from behind me ringing in my ears, I step forward to address the points made by noble Lords from across the House in a further interesting and wide-ranging debate. I will touch first on age assessment.

It is important to stress at the outset that the purpose of setting up a scientific advisory committee is that the Government should receive guidance from it. The consideration of what scientific methods of age assessment should be used, if any, is at the preliminary stage. The Government propose to be guided by the body which has been set up on an interim basis to provide them with advice. The Government are not seeking to compel any member of any profession to take part in any practice which offends that person’s ethical sensibilities, whether individually or as a member of a scientific or professional body. No compulsion can be contemplated as a means of obliging anyone to carry out a particular step.

The noble Lord, Lord Harris of Haringey, raised the issue of the identity of personnel carrying out particular steps, and I assure him from the Dispatch Box that only an appropriately qualified person would be asked to carry out the sort of testing that he discussed which, reflecting his specific area of expertise, related to dentistry.

I do not at this stage give any undertaking as to the constituent members of the committee which, as your Lordships have heard, is set up at the moment on an interim basis. However, it is very much in the way in which such bodies of learned people carry out their work that they will call for additional evidence and support from people skilled in specific disciplines where they feel there is any gap in their expertise which might properly be filled.

Reference was made by two noble Baronesses who participated in this debate to the meeting, in which I participated, with the noble Baroness, Lady Black, the interim head of the interim committee which has been set up. I invite the House to reflect on a number of aspects of the discussion we had with the noble Baroness which, for the benefit of Members who were not present at that electronic discussion, I will now précis. There are anxious discussions being carried out by professionals and academics within the committee, who compass this wide range of academic and professional disciplines, about what may be appropriate to carry out as—I gratefully adopt the phrase used by noble Baroness, Lady Black—a triangulation of methodologies in relation to the critical assessment of the age of a young person, where that is contested or where there is reasonable ground to believe that the age offered is inaccurate.

I interrupt myself to answer a point made by the noble Baroness, Lady Lister of Burtersett. Yes, the parameters within which a decision will be taken are those set out at that meeting. There is no attempt to say that any one method can arrive with any degree of certainty at a specific age, whether expressed in years or months. As the noble Baroness suggested to the House, the matter is whether the scientific expertise can place a person so that the claimed age is possible. I am happy to assure the noble Baroness on that basis.

Noble Lords will also recollect that, in the context of that discussion, the noble Baroness, Lady Black, brought out certain matters which we have discussed in this House at earlier stages. I stress that she pointed out that the very prolongation of testing and interviews under the current regime—perhaps “testing” is the wrong word; “assessment” might be better when referring to Merton-compliant procedures, which your Lordships may well recollect from previous stages and which relate to a series of interviews—and repeated rehearsal of information that might be of a sensitive character and might oblige the person to relate traumatic events, is itself a source of harm. The scientific methodology that the Government have tasked this interim committee to look into is anticipated as serving two functions: to provide for that triangulation of methodologies, and to provide—as I have said on previous occasions to your Lordships—additional information to assist in that difficult process which currently falls exclusively upon the shoulders of social workers. It is not, and has never been argued as being, a means by which some value or accuracy can be ascribed to scientific testing, which we acknowledge it does not have.

None the less, as I have said, these methodologies are used in other places in Europe. Their use is widespread, and the United Kingdom is unusual in not using them. Given the nature of the problems that we face and the nature of the trauma from which people may be escaping—and which may be caused by the mere fact of having to rehearse events earlier in their lives—we consider it incumbent upon us to do what we can to shorten that process, at all times acknowledging the overriding importance of fairness to the persons involved.

I am not in a position to commit to there being a member of any specific profession on the committee, whether in its interim iteration or later on. However, as I said earlier, in the way of these things, it will be for the committee to call for additional expertise to support its working and to allow it to provide conclusions—

[Baroness Lister of Burtersett (Lab)]

I think that we are going backwards because, in the Commons, the Minister said that he would take away this point and look into it, but now the noble and learned Lord seems to be saying that it is enough to be able to call on expertise from outside. Can he take this away and think a bit further about the membership of the committee, including dentists?

[Lord Stewart of Dirleton (Con)]

I am grateful to the noble Baroness and was not aware of the remarks to which she referred. If the Minister in the other place has given an undertaking that he will go away and think about it, I will certainly row back from what I said—that it would be more of a matter of leaving it to the committee to say. If an undertaking has been given to revisit the matter, I am happy to depart from what I have said already.

We recognise the strength of feeling in the House about these matters. In particular, we recognise the strength of feeling about the ethical questions that arise out of the application of scientific techniques from which no therapeutic value flows directly—as was said at earlier stages in the debate. However, I repeat that our intention is to be guided by the views of the scientific committee which has been established. For that reason, at this stage, we cannot support the amendments, and we stand by the clauses which we have already tabled for the reasons I have set out.

On the matter of modern slavery, I will consider together Motions P, Q, R and S. I begin by commending to your Lordships’ House the government amendment that will exempt the credibility provisions in this part of the Bill from people who were under 18 at the time when they were most recently served with a slavery or trafficking information notice. But I say again that we cannot accept amendments to other clauses in this part. It is vital, I submit, that we are able to withhold the protections afforded by the national referral mechanism from dangerous individuals. I will not rehearse what I said in my opening submission about the manner in which the amendment as framed restricts too narrowly our scope for investigation. I consider it is not appropriate for me to make any concession to the noble Lord on this point, recognising though I do the principled basis upon which he has addressed the House, at this stage and previously in our deliberations.

With the utmost respect to my noble friend Lord McColl of Dulwich, we consider that the provision of a minimum of 12 months’ appropriate, tailored support to all those who receive a positive conclusive grounds decision and are in need of specific support is appropriate; it is “tailored” in the sense that it is directed to the individual facts and circumstances of the person in question. We do not think his amendment, as with that tabled by the noble Lord, Lord Coaker, is necessary.

On the verge of resuming my seat, I thank the noble Baroness, Lady Hamwee, for doing us the courtesy of contacting us by email and submitting a list of questions, which she went over in the course of her speech. I am greatly obliged to her for taking that step, which has enabled me to curtail my submissions at this stage still further.

[Baroness Hamwee (LD)]

My Lords, with regard to the questions around age assessment, and particularly the role of a dentist in all of this, the noble Lord, Lord Coaker, said it is remarkable that these concerns have to be raised. I would say it is remarkable that they have had to be raised again. There was the exchange in the Commons—I will come to that in a moment—and after the Commons debate on the Lords amendments, I asked about this, not on the Floor of the House; I have not heard.

In the debate in the Commons, in reply to a question about whether the process would include a practising dentist, the Minister, Tom Pursglove, said:

“I know that he has discussed this issue with the Home Secretary separately”—


I had forgotten that. He continued:

“I am not in a position to give … a firm undertaking today, but we will certainly take away and consider that particular point, and perhaps we could remain in contact on it.”—[Official Report, Commons, 22/3/22; cols. 264-65.]


As we have not heard any sort of assurance, I assume that this has not progressed any further.

The noble and learned Lord the Minister made the point that the Government do not appoint a body, interim or otherwise, of such illustrious people without listening to it. Government advisers have been known to have their advice ignored or dismissed. However, very reluctantly, I will not press this, so I beg leave to withdraw the Motion.

Motion N1 withdrawn.

Motion N agreed.

Motion P

Moved by

[Lord Stewart of Dirleton]

That this House do not insist on its Amendments 23 and 24, to which the Commons have disagreed for their Reasons 23A and 24A, but do propose Amendment 24B in lieu—

23A: Because it is consequential on Lords Amendment 24 to which the Commons disagree

24A: Because the Commons consider that it is appropriate for the fact that a person claiming to be a victim of slavery or human trafficking has provided information late, without good reason, to be taken into account by the competent authority.

24B: Page 62, line 15, after “person” insert “aged 18 or over”

Motion P agreed.

Motion Q

Moved by

[Lord Stewart of Dirleton]

That this House do not insist on its Amendment 25, to which the Commons have disagreed for their Reason 25A.

25A: Because the Commons consider that the clause proposed by the Lords Amendment provides an unworkable regime for operating the public order and improper claim exemptions to Article 13 of the Trafficking Convention.

Motion Q1 (as an amendment to Motion Q)

Moved by

[Lord Coaker]

At end insert “and do propose Amendment 25B in lieu—

25B: Leave out Clause 62 and insert the following new Clause—
“Identified potential victims etc: disqualification from protection
(1) This section applies to the construction and application of Article 13 of the Trafficking Convention.
(2) A competent authority may determine that it is not bound to observe the minimum recovery period under section 60 of this Act in respect of a person in relation to whom a positive reasonable grounds decision has been made if the authority is satisfied that it is prevented from doing so—
(a) as a result of an immediate, genuine, present and serious threat to public order, or
(b) because the person is claiming to be a victim of modern slavery improperly.
(3) For the purposes of section (2)(a), a person is considered as presenting an immediate, genuine, present and serious threat to public order where the person has been convicted of a terrorist offence.
(4) The Secretary of State must, within one year of this Act coming into force—
(a) prepare and publish a consultation on whether a person convicted of any offence listed in Schedule 4 to the Modern Slavery Act 2015, other than a terrorist offence, should be considered as presenting an immediate, genuine, present and serious threat to public order for the purposes of section (2)(a); and
(b) lay a response to the consultation before each House of Parliament.
(5) In subsection (3), “terrorist offence” means any of the following (whenever committed)—
(a) an offence listed in—
(i) Schedule A1 to the Sentencing Code (terrorism offences: England and Wales), or
(ii) Schedule 1A to the Counter-Terrorism Act 2008 (terrorism offences: Scotland and Northern Ireland);
(b) an offence that was determined to have a terrorist connection under—
(i) section 69 of the Sentencing Code (in the case of an offender sentenced in England and Wales), or
(ii) section 30 of the Counter-Terrorism Act 2008 (in the case of an offender sentenced in Northern Ireland, or an offender sentenced in England and Wales before the Sentencing Code applied);
(c) an offence that has been proved to have been aggravated by reason of having a terrorist connection under section 31 of the Counter Terrorism Act 2008 (in the case of an offender sentenced in Scotland).
(6) Any determination made under subsection (2) must only be made—
(a) in exceptional circumstances,
(b) where necessary and proportionate to the threat posed, and
(c) following an assessment of all the circumstances of the case.
(7) A determination made under subsection (2) must not be made where it would breach—
(a) a person’s rights under the European Convention on Human Rights,
(b) the United Kingdom’s obligations under the Trafficking Convention, or
(c) the United Kingdom’s obligations under the Refugee Convention.
(8) For the purposes of a determination under subsection (2)(b) victim status is being claimed improperly if the person knowingly and dishonestly makes a false statement without good reason, and intends by making the false statement to make a gain for themselves.
(9) A good reason for making a false statement includes, but is not limited to, circumstance where—
(a) the false statement is attributable to the person being or having been a victim of modern slavery, or
(b) any means of trafficking were used to compel the person into making a false statement.
(10) This section does not apply where the person is under 18 years at the time of the referral.
(11) Nothing in this section affects the application of section 60(2).””

22:45

Division 11

Ayes: 116

Noes: 111

22:57

Motion R

Moved by

[Lord Stewart of Dirleton]

That this House do not insist on its Amendment 26, to which the Commons have disagreed for their Reason 26A.

26A: Because it would alter the financial arrangements made by the Commons, and the Commons do not offer any further reason, trusting that this Reason may be deemed sufficient.

Motion R1 (as an amendment to Motion R)

Moved by

[Lord McColl of Dulwich]

At end insert “and do propose Amendment 26B in lieu—

26B: Before Clause 64, insert the following new Clause—
“Confirmed victims in England and Wales: assistance and support
After section 50A of the Modern Slavery Act 2015 insert—
“50B Confirmed victims etc: assistance and support
(1) This section applies if a positive conclusive grounds decision is made in respect of a person.
(2) If the person has received support under section 50A, the Secretary of State must continue to secure tailored assistance and support for that person at the end of the recovery period for at least 12 months beginning on the day the recovery period ends.
(3) Any duty under this section ceases to apply in relation to a person in respect of whom a determination is made under section 62(1) of the Nationality and Borders Act 2022 (disqualification from protection).
(4) References in this section to “assistance and support”, a “conclusive grounds decision” and the “recovery period” have the same meaning as in section 50A.””

[Lord McColl of Dulwich (Con)]

I beg to move Motion R1.

22:58

Division 12

Ayes: 108

Noes: 107

23:09

Motion S

[Lord Stewart of Dirleton]

Moved by

That this House do not insist on its Amendment 27, to which the Commons have disagreed for their Reason 27A.

27A: Because the Commons consider that the clause inserted by the Lords Amendment makes provision in relation to persons under the age of 18 that is not necessary, or not practically workable, or not appropriate.

Motion S1 (as an amendment to Motion S)

[Lord Coaker]

Moved by

At end insert “and do propose Amendment 27B in lieu—

27B: Insert the following new Clause—“Slavery and human trafficking: victims aged under 18 years (1) Where a competent authority is making a decision in relation to a person who is aged under 18 years, the best interests of the child must be a primary consideration.(2) The Secretary of State may not serve a slavery or trafficking information notice on a person who is aged under 18 years. (3) Section 61 of this Act does not apply in cases where either the first reasonable grounds decision or a further reasonable grounds decision made in relation to a person relates to an incident or incidents which occurred when the person was aged under 18 years.(4) Section 62 of this Act does not apply in cases where a positive reasonable grounds decision has been made in respect of a person which relates to an incident or incidents which occurred when the person was aged under 18 years.(5) The Secretary of State must grant a person leave to remain in the United Kingdom where a positive conclusive grounds decision is made in respect of a person who—(a) is under 18 years, or (b) was under 18 years at the time of the incident or incidents to which the positive reasonable grounds decision relates.(6) Guidance issued under section 49(1)(c) of the Modern Slavery Act 2015 on determining whether there are reasonable grounds to believe that a person is a victim of slavery or human trafficking must provide that, where the determination relates to an incident or incidents which occurred when the person was aged under 18 years, the determination must be made on the standard of “suspect but not prove”.””

23:10

Division 13

Ayes: 101

Noes: 110

23:21

Motion S agreed.

Motion T

[Lord Stewart of Dirleton]

Moved by

That this House do not insist on its Amendment 40, to which the Commons have disagreed for their Reason 40A.

40A: Because the Commons consider that the immigration rules should be able to include provision requiring persons travelling from the Republic of Ireland to Northern Ireland to have an electronic travel authorisation.

Motion T1 (as an amendment to Motion T)

[Lord Murphy of Torfaen]

Moved by

At end insert “and do propose Amendment 40B in lieu—

40B: Page 74, line 16, at end insert— “(c) the individual is legally resident in the Republic of Ireland.””

[Lord Murphy of Torfaen (Lab)]

My Lords, in view of the lateness of the night, I do not intend to burden the House by insisting on a vote on this issue, but I ask the Minister to liaise with his counterparts in the Northern Ireland Office to see whether a compromise can be reached on an issue that is extremely important, not just for the people of Northern Ireland but with regard to relations with the Irish Government. I therefore beg leave to withdraw my Motion.

[Lord Stewart of Dirleton (Con)]

I am grateful to the noble Lord for his observations. I was not present in the Chamber but I listened to his submission to your Lordships via the TV link earlier and will make sure that the points he raised are taken up by the Bill team and passed on, as he proposes.

Motion T1 withdrawn.

Motion T agreed.

Motion U

[Lord Stewart of Dirleton]

Moved by

That this House do not insist on its Amendment 54, to which the Commons have disagreed for their Reason 54A.

54A: Because the amendment is unnecessary given that the maritime enforcement powers will in any event have to be exercised in compliance with the European Convention on Human Rights (by virtue of section 6 of the Human Rights Act 1998) and with the UK’s international obligations.

Motion U agreed.

House adjourned at 11.23 pm.